LEUNG v. VERDUGO HILLS HOSPITAL No. B204908.

193 Cal.App.4th 971 (2011)

AIDAN MING-HO LEUNG, a Minor, etc., Plaintiff and Appellant, v. VERDUGO HILLS HOSPITAL, Defendant and Appellant.

Court of Appeals of California, Second District, Division Four.
March 23, 2011.
Thomas and Thomas, Michael Thomas, Maureen F. Thomas; Greines, Martin, Stein & Richland, Feris M. Greenberger, Jennifer C. Yang and Robert A. Olson for Defendant and Appellant.

CERTIFIED FOR PARTIAL PUBLICATION*

OPINION

WILLHITE, J.

Six days after birth, plaintiff Aidan Ming-Ho Leung suffered irreversible brain damage caused by "kernicterus," a condition that results when an infant's level of "bilirubin" (a waste product of red blood cells which causes jaundice) becomes toxic. Through his guardian ad litem (his mother, Nancy Leung), Aidan sued his pediatrician, Dr. Steven Wayne Nishibayashi, and his professional corporation, Dr. Steven Wayne Nishibayashi, M.D., Inc., alleging that Dr. Nishibayashi was negligent in his care and treatment. Aidan also sued the hospital at which he was born, Verdugo Hills Hospital (the Hospital), alleging that the Hospital was negligent for, inter alia, failing to provide his parents with adequate education on neonatal jaundice and kernicterus, and failing to implement policies to reduce the risk of kernicterus in newborns.

Aidan reached a settlement with Dr. Nishibayashi and his corporation, under which Dr. Nishibayashi agreed to pay the limits of his malpractice insurance, $1 million, and to participate at a trial in which the jury would allocate the negligence, if any, of the Hospital and Dr. Nishibayashi and set the amount of damages. In exchange, Aidan would give Dr. Nishibayashi and his corporation a release of liability. The trial court ruled that the settlement did not meet the standard of good faith under Code of Civil Procedure sections 877 and 877.6, because it was grossly disproportionate to Dr. Nishibayashi's potential share of liability and to the total expected recovery. Nonetheless, Aidan and Dr. Nishibayashi chose to proceed with the settlement.

The case was tried to a jury, which found both the Hospital and Dr. Nishibayashi negligent, and awarded damages of $78,375.55 for past medical costs, $250,000 for noneconomic damages, $82,782,000 for future medical care (with a present value of $14 million) and $13.3 million for loss of future earnings (with a present value of $1,154,000). Apportioning fault, the jury found the Hospital 40 percent negligent, Dr. Nishibayashi 55 percent negligent, and plaintiffs parents, Nancy and Kevin Leung, each 2.5 percent negligent.

Ultimately, the court approved a minor's compromise regarding Aidan's settlement with Dr. Nishibayashi, and incorporated the verdict into a periodic payments judgment under Code of Civil Procedure section 667.7, which declared the Hospital jointly and severally liable for 95 percent of all economic damages found by the jury and severally liable for its 40 percent share of noneconomic damages.1 The Hospital appeals from the judgment.

(1) In the published portion of our opinion, we address the Hospital's contention that common law, rather than Code of Civil Procedure sections 877 and 877.6, governs the effect of Aidan's settlement with and release of Dr. Nishibayashi. Under the common law release rule, a release for consideration of one joint tortfeasor operates as a release of the joint and several liability of the other joint tortfeasors. (See, e.g., Bee v. Cooper (1932) 217 Cal. 96, 99-100 [17 P.2d 740] (Bee); Tompkins v. Clay Street R. R. Co. (1884) 66 Cal. 163, 166-168 [4 P. 1165] (Tompkins).) According to the Hospital, Aidan's release of Dr. Nishibayashi in consideration of his $1 million settlement payment released the Hospital from its joint and several liability for Aidan's economic damages, though not for its proportionate share of Aidan's noneconomic damages (such liability being "several only and ... not ... joint" (Civ. Code, § 1431.2, subd. (a)).

As we explain, although the California Supreme Court has criticized the common law release rule as applied to concurrent tortfeasors, the court has not abandoned it. Stare decisis compels us to follow the rule. We therefore reverse that portion of the judgment imposing joint and several liability on the Hospital for Aidan's economic damages. However, we urge the California Supreme Court to grant review, conclusively abandon the release rule, and fashion a new common law rule concerning the effect of a non-good-faith settlement on a nonsettling tortfeasor's liability.

Because this holding does not affect the Hospital's several liability for Aidan's noneconomic damages, we address, in the unpublished portion of our opinion, two other contentions attacking the judgment. In response to those contentions, we conclude that substantial evidence supports the jury's finding that the Hospital's negligence was a substantial factor in causing Aidan's brain damage, and that comments by the trial court neither improperly instructed the jury on causation nor influenced two jurors to change their votes on that issue. We therefore affirm that portion of the judgment that requires the Hospital to pay its proportionate share of Aidan's noneconomic damages.2

BACKGROUND*

DISCUSSION

I. Settlement with and Release of Dr. Nishibayashi

The Hospital contends that common law, rather than Code of Civil Procedure sections 877 and 877.6,14 governs the effect of Aidan's settlement with and release of Dr. Nishibayashi. According to the Hospital, the common law principle, as held in controlling California Supreme Court authority, is that a release for consideration of one joint tortfeasor operates as a release of the joint and several liability of the other joint tortfeasors. (See, e.g., Bee, supra, 217 Cal. at pp. 99-100; Tompkins, supra, 66 Cal. at pp. 166-168.) The Hospital argues that under this rule, Aidan's release of Dr. Nishibayashi in consideration of his $1 million settlement payment released the Hospital from its joint and several liability for Aidan's injuries. In other words, while the Hospital remains liable for its proportionate share of Aidan's noneconomic damages (such liability being "several only and ... not ... joint" (Civ. Code, § 1431.2, subd. (a)), the Hospital is released from its joint and several liability for Aidan's economic damages.15

As we explain, although the California Supreme Court has been critical of the release rule and limited its application in some circumstances, the court has not abandoned it with respect to concurrent tortfeasors who produce a single injury. Under the doctrine of stare decisis, we conclude that we remain bound by the Supreme Court's decisions applying the rule, and therefore we reverse the judgment against the Hospital to the extent it requires the Hospital to pay economic damages for which it was jointly and severally liable with Dr. Nishibayashi. At the same time, we urge the California Supreme Court to grant review, abandon the release rule, and fashion a new common law rule concerning the effect of a non-good-faith settlement on a nonsettling tortfeasor's liability.

A. Background

Before trial, Aidan entered a written "Settlement Agreement and Release" with Dr. Nishibayashi, under which Dr. Nishibayashi would pay the limit of his malpractice insurance policy, $1 million, pursuant to a specified payment schedule during Aidan's life, and would participate as a defendant in the trial. In exchange, Aidan would release Dr. Nishibayashi and his professional corporation from all claims. The settlement was conditioned on the court approving a minor's compromise for Aidan, and on the court finding the settlement to be in good faith under sections 877 and 877.6. It also provided that the release and discharge of Dr. Nishibayashi did not apply to the Hospital.

Dr. Nishibayashi moved for a declaration of good faith settlement. The trial court denied the motion, agreeing with the Hospital that the settlement did not meet the good faith standard of Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 [213 Cal.Rptr. 256, 698 P.2d 159] (Tech-Bilt), in that the settlement amount was grossly disproportionate to Dr. Nishibayashi's potential share of liability and to the total expected recovery.16

Rather than abandoning the settlement, Aidan and Dr. Nishibayashi elected to pursue it, and amended their agreement to delete the condition requiring the court to declare the settlement to be in good faith, though the condition requiring approval of the minor's compromise remained. On May 9, 2007, Aidan filed a petition to approve the compromise of his claim against Dr. Nishibayashi. On May 22, 2007, shortly before trial, with the consent of Aidan's counsel, the court continued the hearing on the petition in order to have it reviewed by a staff attorney in the probate department. The court stated that a new date for hearing on the petition would be scheduled after the review was complete.

Meanwhile, the trial occurred, and the jury returned its verdict on July 2, 2007, awarding damages and finding Dr. Nishibayashi 55 percent negligent and the Hospital 40 percent. On July 20, 2007, after the court informed Aidan's attorney of recommendations for changes to the proposed special needs trust, Aidan filed a revised petition which was heard on September 21, 2007.

Aidan's counsel argued that the settlement was in Aidan's best interests because although Dr. Nishibayashi was 55 percent liable for the judgment, Aidan's parents had determined that it was economically unfeasible to try to obtain more from him than the $1 million settlement, and it was in Aidan's interests to receive the settlement funds immediately in order to ensure his continuing care. Further, according to Aidan's attorney, the Hospital remained jointly and severally liable for the entire amount of economic damages in the judgment. Thus, regardless of the settlement, Aidan could collect the full sum of economic damages from the Hospital alone. For his part, Dr. Nishibayashi's counsel argued that the Hospital could seek equitable indemnity from Dr. Nishibayashi for amounts it paid in excess of its percentage share of the judgment.

The Hospital did not oppose the petition, and did not initially argue that the common law release rule would extinguish the Hospital's joint and several liability for Aidan's economic damages. Rather, it argued that if the petition were approved and Aidan settled with Dr. Nishibayashi, then under the terms of the settlement, the Hospital would be relieved of its joint liability for Dr. Nishibayashi's 55 percent share of the economic damages.

After argument, the court granted the petition to approve the minor's compromise, but referred the revised plan for a special needs trust to the probate department for further review. The order approving the minor's compromise was not signed and entered until October 12, 2007.

In the meantime, the parties filed competing versions of the judgment. As part of that debate, the Hospital filed objections to the judgment which invoked the common law release rule and argued that the settlement with and release of Dr. Nishibayashi released the Hospital's joint liability for Aidan's economic damages, leaving only the Hospital's several liability for its proportionate share of the $250,000 in noneconomic damages. Alternatively, the Hospital argued that its liability was reduced (as reflected in Rest.3d Torts, § 16) to its comparative share of economic damages—40 percent. The court rejected the arguments, finding that the common law release rule was not "the current state of the law," and noting that "it would be nice to have a court of appeal opinion on it and maybe this is the case that is going to do it. And I would urge you to go find out." The court entered judgment on November 2, 2007.

The Hospital then moved to vacate the judgment, reiterating its argument that Aidan's settlement with and release of Dr. Nishibayashi released the Hospital's joint and several liability for Aidan's economic damages. The court denied the motion.

B. Discussion

(2) As here relevant, section 877 applies to a release only if it is "given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort."17 Under section 877, such a release (1) does not release the other tortfeasors unless it so provides; (2) reduces the claims against the other tortfeasors in the amount of the consideration paid in the settlement (or in the amount stipulated, if that amount is greater); and (3) bars claims against the released tortfeasor for contribution. Section 877.6, which provides the procedure for determining good faith, adds that a determination of good faith also bars any claim for equitable indemnity based on comparative fault.18 (See Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 817 [251 Cal.Rptr. 202, 760 P.2d 399] [§ 877.6 bars all equitable indemnity claims, including total equitable indemnity].)

(3) The California Supreme Court has identified two major goals served by sections 877 and 877.6: "equitable sharing of costs among the parties at fault and the encouragement of settlements." (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 872 [239 Cal.Rptr. 626, 741 P.2d 124] (Abbott Ford).) Based on these goals, the court adopted a flexible standard for determining good faith, which involves consideration of a number of factors, including whether the settlement amount is "`grossly disproportionate'" to the settling defendant's liability. (Tech-Bilt, supra, 38 Cal.3d at p. 499; see Abbott Ford, supra, 43 Cal.3d at pp. 874-875.)

(4) Here, Aidan's settlement with Dr. Nishibayashi does not fall under the provisions of sections 877 and 877.6: the trial court found the settlement was not in good faith, because it was grossly disproportionate to Dr. Nishibayashi's individual liability.19 Therefore, the effect of Aidan's settlement with Dr. Nishibayashi on the Hospital's liability depends on the common law.

Before the 1957 enactment of section 877, the California Supreme Court followed the common law rule that a release of one "joint tortfeasor" for consideration constitutes a release of all, thus barring the plaintiff from pursuing the action against the remaining joint tortfeasors. (Bee, supra, 217 Cal. at p. 102; Chetwood v. California Nat. Bank (1896) 113 Cal. 414, 427 [45 P. 704]; Tompkins, supra, 66 Cal. at pp. 166-167; see 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 70, pp. 142-143 [tracing common law rule]; Comment, Joint Tortfeasors: Legislative Changes in the Rules Regarding Releases and Contribution (1958) 9 Hastings L.J. 180, 182-185 [same].) The term "joint tortfeasor" was used loosely, referring to all tort feasors who were jointly and severally liable for the plaintiff's harm. As the Supreme Court explained: "The rule that the release of one joint tort feasor releases all the others is intended to prevent double recovery for the injury and is based on the theory that there can be but one compensation for the joint wrong, that each joint tort feasor is responsible for the whole damage, that the cause of action is satisfied once the injured party is paid for his injury by one of the joint tort feasors, and that the receipt by the injured party of any sum, if accepted as payment in satisfaction of the cause of action against one joint tort feasor, is in law full satisfaction as to all joint tort feasors." (Lamoreux v. San Diego etc. Ry. Co. (1957) 48 Cal.2d 617, 624 [311 P.2d 1] (Lamoreux); see Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 298 [216 Cal.Rptr. 443, 702 P.2d 601] (Mesler); see also Rest.2d Torts (appen.) § 885, reporter's notes, p. 162 [explaining origin of rule in England].) Moreover, the Supreme Court applied the rule even if the release expressly reserved the right to sue the remaining tortfeasors. (Bee, supra, 217 Cal. at p. 100 [reservation of plaintiff's rights against other defendants held "nugatory and of no effect," and declared "void as being repugnant to the legal effect and operation of the release itself"].)20

Because the release rule could work unintended hardship, the court adopted the concomitant rule that if the plaintiff entered a covenant not to sue instead of a release, the other tortfeasors were not released. (Pellett v. Sonotone Corp. (1945) 26 Cal.2d 705, 710-711 [160 P.2d 783] (Pellett); Kincheloe v. Retail Credit Co., Inc. (1935) 4 Cal.2d 21, 23 [46 P.2d 971].) Such a covenant did not release the other tortfeasors, because its language was not a release but a promise not to prosecute the suit. (Mesler, supra, 39 Cal.3d at p. 298.)

Although before enactment of section 877 the court chipped away at the release rule, it never fully repudiated it. Its decisions leave the rule in effect as to concurrent tortfeasors, such as Dr. Nishibayashi and the Hospital, whose independent acts concur to produce a single harm.

In Ash v. Mortensen (1944) 24 Cal.2d 654 [150 P.2d 876] (Ash), the court acknowledged the release rule, but refused to apply it to successive tortfeasors who produced separate, though related, injuries. The court held that the plaintiff's release of the negligent driver in a car accident in which the plaintiff was injured did not bar her malpractice suit against the treating doctors who aggravated the injuries she suffered in the accident. (Id. at pp. 658-659.) The court reasoned that "[a] release of a cause of action against a wrongdoer is not a release of a separate or distinct cause of action against another independent wrongdoer.... We are of the opinion that a release of the original wrongdoer should release an attending doctor from liability for aggravation of the injury `if there has been full compensation for both injuries, but not otherwise.' [Citations.]" (Ibid.)

(5) But the court did not overrule the release rule as applied to concurrent tort feasors who produce a single injury: "It has been held in some cases involving unliquidated tort demands that the payment of any sum in consideration of the release of one of several joint or independent concurrent tort feasors will be presumed to have been made and accepted as full compensation or satisfaction for the alleged injury. [Citations.] There is also authority to the contrary. [Citation.] But whatever may be the rule with regard to a settlement with joint or independent tort feasors whose acts concur to produce a single injury, it does not follow that such presumption should be indulged where, as here, the injured person's claim embraces separate injuries caused by independent successive tort feasors and is liquidated by a judgment against the original tort feasor." (Ash, supra, 24 Cal.2d at pp. 659-660, italics added.) Thus, while the court refused to apply the release rule to successive tortfeasors who produce separate injuries, it did not overrule the release rule as applied to concurrent tortfeasors who produce a single injury.

One year after Ash, in Pellett, supra, 26 Cal.2d 705, the court refused to apply the release rule to a plaintiff's covenant not to execute on any future judgment that might be obtained against one joint tortfeasor—a pledge that was "not strictly a release or a covenant not to sue, although it par[took] somewhat of the nature of both." (Id. at p. 711.) In its discussion of the relevant law, the court reiterated "[t]he rule in this state, applied in many cases, ... that a release of one joint tort feasor is a release of all [citations], but that a mere covenant not to sue one joint tort feasor does not release the others." (Id. at p. 710.) The court candidly observed, however, that "the distinction between a release and a covenant not to sue is entirely artificial. As between the parties to the agreement, the final result is the same in both cases, namely, that there is no further recovery from the defendant who makes the settlement, and the difference in the effect as to third parties is based mainly, if not entirely, on the fact that in one case there is an immediate release, whereas in the other there is merely an agreement not to prosecute a suit." (Pellett, supra, 26 Cal.2d at p. 711.)

Pellett was followed by Lamoreux, supra, 48 Cal.2d 617, a wrongful death action in which the court again refused to apply the release rule. The court held that the plaintiff's claim against the railroad whose train struck the decedent's car was not barred by the plaintiff's release of the decedent's employer, who had been sued along with the railroad, but who received a release in a collateral workers' compensation proceeding. The court acknowledged that "[s]ome California decisions which followed the general rule that the release, for a consideration, of one of several asserted joint tort feasors bars an action against another have stated that it is immaterial whether the person who made the payment for the release was or was not legally liable." (Id. at p. 627.) Rather than disapproving such decisions, however, the court distinguished them, "because none of them involved the settlement of a claim based upon a special limited liability such as workmen's compensation, the settlement of which does not, as a matter of law, constitute full payment or satisfaction for all the damage suffered." (Ibid.)

In 1957, the same year the court decided Lamoreux, the Legislature enacted section 877. As of that date, the state of the common law, never repudiated by the California Supreme Court, was that a release for consideration of one concurrent tortfeasor who acted with other tortfeasors to cause a single harm barred suit against the others. Section 877 abrogated that rule only as to releases given in "good faith" and "before verdict or judgment." (§ 877.) Later, in 1980, responding to the California Supreme Court's decision in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899], the Legislature enacted section 877.6, which, among other things, "codifies the American Motorcycle result by providing that a section 877 settlement bars claims for partial or comparative indemnity as well as for contribution." (Tech-Bilt, supra, 38 Cal.3d at p. 496.) But the California Supreme Court, to date, has not authoritatively abandoned the release rule. To the contrary, as late as 1985, in Mesler, supra, 39 Cal.3d 290, the court implicitly acknowledged that the rule remains part of California common law.

In Mesler, the trial court granted the summary judgment motion of the defendant parent corporation. The plaintiff appealed, and while the appeal was pending, settled with and released another defendant that was a subsidiary corporation of the parent. As stated by the Supreme Court, the issue presented was "whether a plaintiff may pursue a tort action against a parent corporation on the theory that it is the alter ego of its subsidiary, the alleged tort feasor, after entering into a settlement and release agreement with the subsidiary." (Mesler, supra, 39 Cal.3d at p. 294.) Resolution of this issue depended, in part, on whether settlement with an alter ego was covered by section 877 or whether the common law release rule applied. In discussing the release rule, the court noted that "[t]he rule was ... based on the misconception, as Dean Prosser suggested, that a `satisfaction' is the equivalent of a `release.' [Citation.] However, while `[a] satisfaction is an acceptance of full compensation for the injury; a release is a surrender of the cause of action, which may be gratuitous, or given for inadequate consideration.' [Citation.] Even if it could be said that any sum the plaintiff received in settlement was a compensation for the joint wrong [citation], the rule produced unfair results. For example, a plaintiff who settled with a defendant of modest resources for an amount below the value of his damages did not have his claim fully satisfied; nevertheless, under the common law rule he could not seek further compensation from other defendants." (Mesler, supra, 39 Cal.3d at p. 298.)

The court in Mesler thus recognized the dubious lineage of the release rule and questioned its wisdom. But the court also acknowledged its continued viability as part of California common law. In summarizing the issue presented in the case and its holding, the court stated: "At issue is the applicability of ... section 877, which abrogates the common law rule that settlement with one alleged tortfeasor bars action against any others claimed liable for the same injury. We conclude that the statute does apply, and thus release of an alleged tortfeasor under these circumstances does not preclude suit against its claimed alter ego." (Mesler, supra, 39 Cal.3d at pp. 294-295, italics added, fn. omitted.) Later in its discussion, the court was even clearer concerning the viability of the release rule: "the alter ego corporation would be dismissed together with the subsidiary under the common law release rule, unless section 877 applies." (Id. at p. 301, italics added.) It thus appears that the court was acknowledging the continued viability of the release rule in California common law.21

Since enactment of section 877, at least three decisions by Courts of Appeal have recognized that the common law applies when section 877 does not. (Thomas v. General Motors Corp. (1970) 13 Cal.App.3d 81, 86 [91 Cal.Rptr. 301] [acknowledging that "[e]xcept as modified by section 877, the former law still applies, and a release of one joint tortfeasor is a release of all," but applying common law rule that a covenant not to sue does not release joint tortfeasors to a case involving multiple defendants who executed covenant after judgment was entered and an appeal filed]; Watson v. McEwen (1964) 225 Cal.App.2d 771, 775 [37 Cal.Rptr. 677] [satisfaction of judgment against negligent lessee barred action against landowner; § 877 held not applicable because it applies to a release before judgment, and therefore release rule applied, because "[e]xcept as modified by that section, the rule is that a release of one joint tortfeasor is a release of all"]; Apodaca v. Hamilton (1961) 189 Cal.App.2d 78, 82 [10 Cal.Rptr. 885] [pre-section 877 release of negligent driver of dump truck also released rock company that negligently overloaded the truck: "Whatever fault may be found with it, we do not question that, except as it may have been modified by section 877 ..., `The rule in this state, applied in many cases, is that a release of one joint tort feasor is a release of all.'"].)

Our research has disclosed only one decision, River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986 [103 Cal.Rptr. 498] (River Garden Farms), which holds that after the passage of section 877, the common law release rule does not apply to non-good-faith settlements. In River Garden Farms, the trial court approved the minors' compromises for claims against three of four tort defendants, but made no determination whether the settlements were in good faith under section 877, subdivision (a). The case was decided before the 1980 enactment of section 877.6, which specified the procedure for determining good faith. Following the trial court's denial of its motion to dismiss, the fourth defendant petitioned for a writ of mandate, contending that the settlements were not in good faith. (River Garden Farms, supra, 26 Cal.App.3d at p. 989.) In a holding later endorsed by the California Supreme Court (see Tech-Bilt, supra, 38 Cal.3d at pp. 495-496), the court held that the definition of good faith must be consistent with the purposes of section 877—equitable sharing of costs among tortfeasors and encouragement of settlement—and thus must involve consideration of whether the settlement is within a reasonable range of the settling defendant's share of liability. (River Garden Farms, supra, 26 Cal.App.3d at p. 998.)

But in a separate portion of the opinion, the court also held that section 877 abrogated the release rule, even for settlements not in good faith. The court reasoned that section 877's purpose of encouraging settlements "cannot co-exist with the rule releasing all upon the release of one," because "[a]n injured party would have little motivation for settling with one defendant at the possible sacrifice of his claim against the other." (River Garden Farms, supra, 26 Cal.App.3d at p. 999.) The court declared: "Only its utter demise and its supersession by statutory controls are consistent with the settlement goal of the contribution law. Section 877 implicitly but firmly dispatched it." (Id. at p. 1000.)

We find several problems in this analysis. First, it ignores the express language of section 877, which by its terms applies to a release only when "given in good faith before verdict or judgment." (§ 877.) Given this language, it is difficult to see how section 877 can be read to "implicitly ... dispatch[]" the release rule for non-good-faith settlements occurring after verdict or judgment. Second, it does not accord proper respect for stare decisis, and fails to consider that, although the California Supreme Court certainly appeared to be moving toward abandoning the release rule entirely, it did not do so. Third, as we have noted, in Mesler (decided after River Garden Farms), the California Supreme Court necessarily acknowledged that the release rule remained part of California common law. For all these reasons, we find River Garden Farms unpersuasive.22

Because the California Supreme Court never repudiated the release rule with respect to concurrent tortfeasors, such as Dr. Nishibayashi and the Hospital who act independently to cause a single injury, and because Mesler necessarily assumed the continued viability of the release rule as applied to the issue presented in that case, we are unable to hold, as Aidan requests us to do, that the rule is no longer part of California common law. We agree with many of Aidan's arguments. The rule lacks a creditable heritage. It can create unintended and inequitable results, resulting in the plaintiff receiving an inadequate settlement from a defendant of modest means and unintentionally releasing another culpable tortfeasor with no opportunity to receive additional compensation from that tortfeasor. The rationale of the release rule— preventing a plaintiff's double recovery—has largely been eviscerated by California's modification of the joint and several liability rule to require allocation of noneconomic damages based on each tortfeasor's percentage of fault (Civ. Code, § 1431.2, subd. (a); see Dafonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140]), and by the adoption of the right of partial indemnity on a comparative fault basis among multiple tortfeasors (American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d at p. 598).

(6) But our role as an intermediate appellate court in a case such as this is not to disregard controlling Supreme Court precedent, or to purport to find in sections 877 and 877.6 an implicit abrogation of that precedent with respect to non-good-faith settlements in violation of the statutory language. Rather, our role is to "defer[] to [the California Supreme Court] for any reconsideration of the doctrine." (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 388 [115 Cal.Rptr. 765, 525 P.2d 669].) We do so here, and urge the California Supreme Court to repudiate the release rule once and for all.23

We note, as well, that should the release rule be abandoned, there is an important related issue, namely, the extent of the setoff to which the nonsettling defendant is entitled after a codefendant enters a settlement that does not qualify under section 877. The Hospital asserts that the rule stated in section 16 of the Restatement Third of Torts should be adopted as the common law rule applicable to non-good-faith settlements. Under that rule, "[t]he plaintiff's recoverable damages from a jointly and severally liable tortfeasor are reduced by the comparative share of damages attributable to a settling tortfeasor who otherwise would have been liable for contribution to jointly and severally liable to defendants who do not settle." (Ibid.) On the other hand, Aidan argues that the nonsettling tortfeasor should receive only a pro tanto (i.e., dollar-for-dollar) setoff, regardless of whether the settlement was in good faith. We express no opinion on the subject, and leave it to the Supreme Court, should it repudiate the release rule in this case, to determine the proper approach.

Because the release rule applies, we reverse that portion of the judgment imposing joint and several liability on the Hospital for Aidan's economic damages. However, because the Hospital remains liable for its proportionate share of noneconomic damages, we address, in the unpublished portion of our opinion, the Hospital's contentions that substantial evidence fails to prove that the Hospital's negligence was a substantial factor in causing Aidan's brain damage, and that the trial court improperly instructed on causation and influenced two jurors to change their votes.

II., III.*

DISPOSITION

The judgment is reversed insofar as it imposed joint and several liability on the Hospital for Aidan's economic damages, and affirmed insofar as it imposed several liability on the Hospital for Aidan's noneconomic damages. Otherwise, the judgment is affirmed. Aidan's cross-appeal is dismissed as moot. Each side shall bear its own costs.

Epstein, P. J., and Suzukawa, J., concurred.

FootNotes


* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of the Background and Discussion parts II.-III.
1. The court judgment awarded damages from the Hospital as follows: (1) $1,274,793.52, due immediately, representing noneconomic damages, past medical expenses, and a portion of future lost earnings and future medical expenses; (2) $330,055.63, due December 1, 2007, representing future medical expenses and other items from the date of judgment through October 31, 2008; and (3) monthly periodic payments beginning November 1, 2008, pursuant to an attached schedule, this portion of the judgment to cease upon plaintiff's death or October 1, 2065, whichever occurs first. The court also awarded $1,085,338.86 in prejudgment interest under Civil Code section 3291, and $221,034.93 in costs.
2. Because we reverse the judgment as to the Hospital's joint and several liability for Aidan's economic damages, we do not address the Hospital's issues related to that portion of the damage award. Those contentions are that the court erred in excluding evidence of future insurance coverage, in awarding and calculating prejudgment interest on future periodic payments, and in requiring the Hospital to provide security for the periodic payments judgment.
* See footnote, page 971.
14. All undesignated section references in this part of our opinion are to the Code of Civil Procedure.
15. Civil Code section 1431.2 provides:
16. We summarily denied Dr. Nishibayashi's petition for writ of mandate challenging the trial court's ruling ( (June 27, 2007, B199419)).
17. Section 877 provides in relevant part: "Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect:
18. Section 877.6, subdivision (c) states: "A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault."
19. We note also that the release contemplated by the settlement was not "given ... before verdict or judgment," a requirement interpreted to mean "before liability is established by jury verdict or by judgment." ( (1987) , 1405 []; see (1997) , 1144 [64 Cal.Rptr.2d 527].) Although the settlement agreement was entered before trial, it was not binding on Aidan, because without court approval of a minor's compromise, a guardian ad litem has no authority to bind a minor to a settlement and release of the minor's claim. ( (1995) , 1606 [].) Moreover, the settlement agreement itself was expressly contingent on the court approving the minor's compromise. Thus, until the compromise of Aidan's claim against Dr. Nishibayashi was approved by the court, there could be no valid release of that claim. As we have noted, the order approving the minor's compromise was not entered until October 12, 2007, long after the July 2, 2007 jury verdict fixing Dr. Nishibayashi's liability. Therefore, the release of Aidan's claim against Dr. Nishibayashi was not "given ... before verdict or judgment" under section 877.
20. On this point, was arguably inconsistent with (1929) 207 Cal. 465 [279 P. 148], decided three years earlier. In the court stated that "it is a well-settled rule that before one tort-feasor can be held to be discharged from liability through the release of another, the consideration for such release must have been accepted by the plaintiff in full satisfaction of the injury." ( at p. 473.)
21. We note that there are comments in other Supreme Court decisions that might be interpreted as questioning the viability of the release rule. In 38 Cal.3d at page 493, apparently referring to the effect of and and citing to the then current edition of Witkin's Summary of California Law, the court commented in dicta that "[w]hether [the common law release rule] applied also to concurrent tortfeasors was open to question." (See 5 Witkin, Summary of Cal. Law, Torts, § 70, p. 142 [noting that the court rejected the release rule for successive tortfeasors, "leaving open the question as to concurrent tortfeasors"].) However, in light of the court's later discussion in we do not believe this statement constitutes sufficient authority for us to refuse to follow the release rule here.
22. Aidan cites two other cases in support of the notion that section 877 abrogated the release rule for non-good-faith settlements, (1984) [], and (1993) []. Neither decision is helpful.
23. Aidan argues that even if the common law release rule applies, his settlement should be construed to be a covenant not to sue. We disagree. First, the judgment recites that Aidan "released for consideration defendant[] ... Nishibayashi." Second, Aidan did not raise this issue in the trial court, and has thus forfeited it. ( (1997) , 847 [60 Cal.Rptr.2d 780].) Third, in any event, the language of the release simply does not permit such an interpretation. The agreement is entitled, "Settlement Agreement and Release." It provides in relevant part: "In consideration of the payments set forth in Section 2 and the agreement to attend and participate at trial, as set forth in Section 1.7, Plaintiff hereby completely releases and forever discharges the Nishibayashi Defendants and Insurer for any and all past, present or future claims, demands, [etc.,] which the Plaintiff now has, which are the subject of the Complaint." The document repeatedly refers to "this release." It is true that the agreement contemplated that Aidan would execute a covenant not to record or execute any judgment that might be entered against Dr. Nishibayashi, but such a separately executed covenant did not transmute the "Settlement Agreement and Release" into a covenant not to execute or sue.
* See footnote, page 971.

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