# Abbott Ford, Inc. v. Superior Court

> California Supreme Court · September 3, 1987 · 43 Cal. 3d 858

URL: https://www.frixlaw.com/law-library/cases/9537170

## Case

- **Full name:** ABBOTT FORD, INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; FORD MOTOR COMPANY Et Al., Real Parties in Interest
- **Court:** California Supreme Court
- **Decided:** September 3, 1987
- **Citations:** 43 Cal. 3d 858; 239 Cal. Rptr. 626; 741 P.2d 124; 1987 Cal. LEXIS 408
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Panelli, Broussard, Mosk
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9537170

## How later opinions describe it (automated extraction)

- holding that because a nonsettling defendant may challenge the settlement amount, it is appropriate to place the burden of assigning value of consideration on the parties to the agreement who have particular knowledge of the facts
- noting the "enormous variety of contractual arrangements” that are considered Mary Carter agreements

## Opinion text

MOSK. J.
I dissent.
The majority opinion’s central holding is as follows: The “good faith” required by Code of Civil Procedure section 877 (hereafter section 877) to relieve a defendant, settling under a sliding scale recovery agreement, from *889 liability for contribution or comparative equitable indemnity demands that the settling defendant pay an amount within the reasonable range of his proportional share of comparative liability for the plaintiff’s injury. (Ante, at pp. 871-884.) As I shall explain, this holding is fundamentally unsound. Section 877 requires nothing more than that the plaintiff and the settling defendant simply refrain from collusive conduct intended to prejudice the interests of the nonsettling defendants. Accordingly, I would affirm the judgment of the "Court of Appeal which correctly found such “good faith” as a matter of law on the facts of this case.
At the threshold I approve the majority’s conclusion that sliding scale recovery agreements are subject to the “good faith” requirement. I also approve the conclusion that such agreements are not invalid as against public policy. There, however, my approval ends. I am of the opinion that both the language of section 877 and its history establish that the phrase “good faith” simply requires noncollusive conduct.
Chapter 1 of title 11 of part 2 of the Code of Civil Procedure, which is entitled “Releases From And Contribution Among Joint Tortfeasors,” includes sections 875 through 880 of that code. The provisions of sections 877, 877.5, and 877.6 are set forth in the margin. 1
*890 That the Legislature intended the phrase “good faith,” which appears in the “substantive” section 877 and the “procedural” section 877.6, to refer simply to noncollusive conduct is suggested by the words themselves. “The phrase ‘good faith’ in common usage has a well-defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.” (People v. Nunn (1956) 46 Cal.2d 460, 468 [ 296 P.2d 813 ], citing authorities; accord, Gunter v. City of Stockton (1974) 43 Cal.App.3d 203, 211 [ 117 Cal.Rptr. 601 ]; Appel v. Morford (1943) 62 Cal.App.2d 36, 40 [ 144 P.2d 95 ].) There is nothing in the language of the statutory provisions that in any way supports an inference that the Legislature intended the phrase to bear a meaning other than that which it commonly bears.
*891 That the Legislature intended the phrase “good faith” simply to require noncollusive conduct is established by the history of section 877.
At the 1955 Regular Session of the Legislature, the State Bar proposed legislation that dealt with contribution among joint tortfeasors—but not with the effect of a release given by the plaintiff to a settling defendant. (Macomber & Farley, The State Bar’s Legislative Program (1955) 30 State Bar J. 29, 33-34; Third Progress Rep. to the Legis. by the Sen. Interim Com. on Judiciary, p. 52, 2 Appen. to Sen. J. (1955 Reg. Sess.) [hereafter Jud. Com. Third Prog. Rep.].) That proposal—evidently modeled on the 1939 Uniform Contribution Among Tortfeasors Act (12 West’s U.Laws Ann. (1975) U. Contribution Among Tortfeasors Act (1955 rev. act) Hist. Note, pp. 57-59 [hereafter 12 U.L.A., U. Contrib. Act])—was incorporated in Senate Bill No. 412 (hereafter S.B. 412), and contained the source-provisions for Code of Civil Procedure sections 875, 876, 878, 879, and 880. The proposal, however, did not contain a source-provision for section 877.
The official explanation presented by the State Bar and adopted by the Senate Committee on Judiciary ran in relevant part as follows: “Under the common law there is no contribution between joint tortfeasors. One of several joint tortfeasors may be forced to pay the whole claim for the damages caused by them yet he may not recover from the others their pro rata share of the claim. California follows this rule. [Citations.] The purpose of this bill is to lessen the harshness of that doctrine.
“The ancient basis of the rigid rule against contribution in this type of case is the policy that the law should deny assistance to tortfeasors in adjusting losses among themselves because they are wrongdoers and the law should not aid wrongdoers. But this overemphasizes the supposed penal character of liability in tort; it ignores the general aim of the law for equal distribution of common burdens and of the right of recovery of contribution in various situations, e.g., among co-sureties. It ignores also the fact that most tort liability results from inadvertently caused damage and leads to the punishment of one wrongdoer by permitting another wrongdoer to profit at his expense.” (Jud. Com. Third Prog. Rep., supra, p. 52.)
Several hearings on S.B. 412 were held before the Senate Committee on Judiciary. (Fourth Progress Rep. to the Legis. by the Sen. Interim Com. on Judiciary, Explanation to Interim Com., p. 129, 1 Appen. to Sen. J. (1957 Reg. Sess.) [hereafter Jud. Com. Fourth Prog. Rep.].) No objections were made to the principle of the bill. (Ibid.) Some suggestions, however, were made—including a suggestion that the bill should provide for the effect of a release given by the plaintiff to a settling defendant. (Ibid.) The bill was *892 finally referred to the Senate Interim Judiciary Committee for further study. (Ibid.)
At the 1957 Regular Session of the Legislature, the State Bar presented a modification of its 1955 proposal. (Mull & Farley, 1957 Legislative Program (1957) 32 State Bar J. 13, 17; Jud. Com. Fourth Prog. Rep., supra, p. 129.) The modification dealt with release from liability for contribution as well as with contribution itself, and contained one relevant addition—the source-provision for section 877. Senate Bill No. 1510 (hereafter S.B. 1510) incorporated the modified proposal, and stated in pertinent part as follows:
“877. Where a release or a convenant not to sue or not to enforce judgment is given to one of two or more persons liable for the same tort—
“(a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release or the covenant, or in the amount of the consideration paid for it which ever is the greater; and
“(b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors.” (Jud. Com. Fourth Prog. Rep., supra, p. 129.)
The model for proposed section 877 was evidently section 4 of the 1955 Revised Uniform Contribution Among Tortfeasors Act (hereafter the Uniform Act):
“When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
“(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and,
“(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.” (12 U.L.A., U. Contrib. Act, supra, § 4, p. 98.)
Section 4 was plainly the sole and immediate source of proposed section 877: section 877 parallels section 4 almost word for word, and research has not disclosed the existence of any other model. Indeed, as of January 22, *893 1957, the date on which S.B. 1510 was introduced (Jud. Com. Fourth Prog. Rep., supra, p. 128), no jurisdiction had yet adopted section 4 (12 U.L.A., U. Contrib. Act, supra, Table of Juris. Wherein Act Has Been Adopted, P-57).
In its original form, proposed section 877 in S.B. 1510 differed in only one significant aspect from section 4 of the Uniform Act—it did not contain the phrase “in good faith” which appears in the latter. S.B. 1510 was subsequently amended in the Senate and the Assembly. (Jud. Com. Fourth Prog. Rep., supra, p. 131.) In the Assembly, the phrase in question was inserted after the word “given.” (3 Assem.J. (1957 Reg. Sess.) p. 4716.) As a result of that amendment, proposed section 877 became virtually identical to section 4 of the Uniform Act.
The comment made by the National Conference of Commissioners on Uniform State Laws (hereafter National Conference of Commissioners) on subsection (b) of section 4 of the Uniform Act is pertinent here and runs in relevant part as follows.
“The 1939 Act provided, in Section 5, that a release of any tortfeasor should not release him from liability for contribution unless it expressly provided for a reduction ‘to the extent of the pro rata share of the released tortfeasor’ of the injured person’s recoverable damages. This provision has been one of the chief causes for complaint where the Act has been adopted, and one of the main objections to its adoption.
“The requirement that the release or covenant be given in good faith gives the court occasion to determine whether the transaction is collusive, and if so there is no discharge.
“The idea underlying the 1939 provision was that the plaintiff should not be permitted to release one tortfeasor from his fair share of liability and mulct another instead, from motives of sympathy or spite, or because it might be easier to collect from one than from the other; and that the release from contribution affords too much opportunity for collusion between the plaintiff and the released tortfeasor against the one not released. Reports from the state where the Act is adopted appear to agree that it has accomplished nothing in preventing collusion. In most three-party cases two parties join hands against the third, and this occurs even when the case goes to trial against both defendants. ‘Gentlemen’s agreements’ are still made among lawyers, and the formal release is not at all essential to them. If the plaintiff wishes to discriminate as to the defendants, the 1939 provision does not prevent him from doing so.
*894 “The effect of Section 5 of the 1939 Act has been to discourage settlements in joint tort cases, by making it impossible for one tortfeasor alone to take a release and close the file. Plaintiff’s attorneys are said to refuse to accept any release which contains the provision reducing the damages ‘to the extent of the pro rata share of the released tortfeasor,’ because they have no way of knowing what they are giving up. The ‘pro rata share’ cannot be determined in advance of judgment against the other tortfeasors. In many cases their chief reason for settling with one rather than another is that they hope to get more from the party with whom they do not settle. A provision for reduction in fixed amount will not protect the settling tortfeasor from contribution. No defendant wants to settle when he remains open to contribution in an uncertain amount, to be determined on the basis of a judgment against another in a suit to which he will not be a party. Some reports go so far as to say that the 1939 Act has made independent settlements impossible. Many of the complaints come from plaintiff’s attorneys, who say that they can no longer settle cases with one tortfeasor. Such reports have reached other states, and have been responsible for a considerable part of the opposition to the 1939 Act. The New York Law Revision Commission has introduced a number of bills for contribution acts, and this objection has been the chief factor in defeating them.
“It seems more important not to discourage settlements than to make an attempt of doubtful effectiveness to prevent discrimination by plaintiffs, or collusion in the suit. Accordingly the subsection provides that the release in good faith discharges the tortfeasor outright from all liability for contribu tion.” (12 U.L.A., U. Contrib. Act, supra, § 4, Comrs. Com. on subsec. (b), pp. 99-100, italics added.)
S.B. 1510 was passed as amended, and section 877 enacted in its present form. (Sen. Jud. Com. Fourth Prog. Rep., supra, pp. 131-133; Stats. 1957, ch. 1700, § 1, p. 3077.)
The foregoing history of section 877 establishes that the Legislature intended the phrase “good faith” simply to require noncollusive conduct. First, section 877 was directly modeled on section 4 of the Uniform Act. Second, in drafting section 4 the National Conference of Commissioners had as their express purpose the facilitation of settlement and accordingly expressly intended the phrase in question simply to require noncollusive conduct. (12 U.L.A., U. Contrib. Act, supra, § 4, Comrs. Com. on subsec. (b), pp. 99-100.) Third, it must be presumed that the Legislature shared the purpose and intent of the National Conference of Commissioners. It has been stated that the intention of the drafters of a uniform act becomes the intention of the legislature upon enactment. (Layne-Minnesota Co. v. Regents of Univ. of Minn. (1963) 123 N.W.2d 371 [Minn. 284, 290-291, fn. *895 13].) This rule is sound: that the legislature has adopted the words of a uniform act supports, if not compels, the conclusion that it has adopted as well the purpose and intent of those who drafted that act. There is no evidence even suggesting that the rule should not apply here.
That the Legislature intended the phrase “good faith” simply to require noncollusive conduct is confirmed by the history of section 877.6.
In American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ], we held that under section 877 a “good faith” settlement discharges the settling defendant from liability not only for contribution but also for comparative equitable indemnity. (Id. at p. 604.)
In Fisher v. Superior Court (1980) 103 Cal.App.3d 434 [ 163 Cal.Rptr. 47 ], the court concluded that in order to further section 877’s goal of encouraging settlements, “the issue of the good faith settlement between the plaintiff and the settling tortfeasor should be tried separately and in advance of the trial of the tort issues, and upon motion of any party to the action should be tried as soon after the settlement as the court’s calendar permits.” (Id. at pp. 438-439.)
The Fisher court also concluded: “Upon the trial of the ‘good faith’ settlement issue, the burden of proving that there has been a settlement is on the settlor who asserts that settlement as a bar to all claims for contribution or comparative (equitable) indemnity by any other tortfeasor. . . . Once there is a showing made by the settlor of a settlement, we are of the opinion that the burden of proof on the issue of ‘good faith’ shifts to the nonsettling tortfeasor who asserts the claim that the settlement was not made in good faith.” (Id. at p. 447.)
The Fisher court explained its allocation of the burden of proof as to the issue of good faith in substance as follows: section 877—the court impliedly concluded—simply requires lack of wrongdoing on the part of the plaintiff and the settling defendant; Evidence Code section 520 provides that “The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue”; further, public policy encourages settlement and discourages needless litigation; therefore, the party attacking the “good faith” of a settlement bears the burden of proof on the issue. (Id. at pp. 448-449.)
In enacting section 877.6 (Stats. 1980, ch. 562, § 1, p. 1549; amended by Stats. 1984, ch. 311, § 1, p. 1551; Stats. 1985, ch. 621, § 2), the Legislature codified both Fisher’s procedures for the determination of the issue whether *896 a settlement was in “good faith” within the meaning of section 877 and American Motorcycle’s holding extending the bar raised by a “good faith” settlement to claims for comparative equitable indemnity. (Roberts, The Good Faith Settlement: An Accommodation of Competing Goals (1984) 17 Loyola L.A. L.Rev. 841, 867-869 [hereafter Roberts, Good Faith Settle ment].)
Speaking of the intent underlying the statutory provision, Professor Florrie Young Roberts has stated: “[Section 877.6] had the same purpose as section 877, namely to encourage settlements by providing that a settlor would be free from future claims by his joint tortfeasors. The legislative history supports this conclusion. The bill’s proponents stated: ‘A procedural uncertainty under existing law had caused the loss of settlements in a substantial number of trial court cases .... [Defendants contemplating settlement with the plaintiff are reluctant to risk vulnerability to a later jury trial in which a concurrent tortfeasor may claim that the settlement lacks “good faith.” ’ Unlike section 877, section 877.6 provided a cure for the finality problem by allowing a pretrial hearing to determine the issue of the ‘good faith’ of a settlement. Under this procedure the defendant is not discouraged from entering into a settlement with the plaintiff because of the fear he may be required later to litigate the issue of his liability if the issue of ‘good faith’ is decided against him. Thus, section 877.6 permits a defendant who wants to settle to know in advance whether this settlement is in ‘good faith’ and whether he will, therefore, be free from partial indemnity claims.” (Roberts, Good Faith Settlement, supra, 17 Loyola L.A. L.Rev. at pp. 887-888, fns. omitted (quoting Assem. Judiciary Com., Bill Dig. Assem. Bill No. 3425, p. 2 (hg. Apr. 30, 1980) and citing Sen. Republican Caucus, Third Reading Analysis of Assem. Bill No. 3425, p. 2); accord, Note, California’s Sliding Scale Settlement Agreements—Finality Instead of Fairness (1986) 23 San Diego L.Rev. 227, 231.)
Section 877.6 was also intended, as Professor Roberts has observed, to ease court congestion and limit complex trials. (Roberts, Good Faith Settlement, supra, 17 Loyola L.A. L.Rev. at pp. 890-891.) “The fact that settlements were discouraged under the procedural system before Code of Civil Procedure § 877.6 ‘contributed widely to metropolitan court congestion.’ [Citation.] The Senate Judiciary Committee cited the Fisher case for the proposition that the legislation was needed to stop ‘the needless proliferation of a great number of more complex trials.’ ” (Id. at p. 891, fn. 207; see Sen. Judiciary Com., Rep. on Assem. Bill No. 3425, p. 3 (analysis of Assem. Bill No. 3425 as amended May 7, 1980).)
The foregoing history of section 877.6 confirms that the Legislature intended the phrase “good faith”—which originally appeared in section 877 *897 and was repeated in section 877.6—simply to require noncollusive conduct. No more and no less.
First, in enacting section 877.6 the Legislature codified Fisher’s procedures, including the allocation of the burden of proof to the party attacking the good faith of the settlement in question. The Fisher court allocated the burden as it did because it read the phrase in question simply to require noncollusive conduct. (See 103 Cal.App.3d at pp. 448-449.) Thus, in codifying Fisher’s allocation of the burden of proof, the Legislature must be presumed to have read the phrase similarly.
Second, in seeking to encourage settlements and to ease court congestion and limit complex trials, the Legislature must be presumed to have intended the-phrase in question to impose a requirement that would, at the very least, not frustrate those goals.'“Noncollusive conduct” is such a requirement.
As Professor Roberts has explained: “California Code of Civil Procedure section 877.6 provides for a pretrial hearing on the issue of ‘good faith’ to be conducted upon twenty days written notice. The hearing is similar to ones conducted in other law and motion matters, and the judge may in his discretion decide the issue based on affidavits and declarations. Thus, any definition of ‘good faith’ must be one that will allow the issue to be determined at a pretrial hearing.” (Roberts, Good Faith Settlement, supra, 17 Loyola L.A. L.Rev. at p. 894, fns. omitted.)
Understood simply to require noncollusive conduct, the phrase in question “provides for an efficient and uncomplicated ‘good faith’ hearing. Because the only issue with respect to whether a settlement is made in ‘good faith’ is whether the parties acted in a tortious manner toward the nonsettling defendants, the nonsettling tortfeasors who wish to dispute the finding of ‘good faith’ will not have much evidence to present at the hearing.” (Id. at p. 910.)
By contrast, as is admitted even by Professor Roberts, who herself construes the phrase in question as do the majority, “There is no doubt the utilization of a reasonable range test will complicate the ‘good faith’ settlement hearing.....[T]his type of ‘good faith’ hearing takes longer to hear, takes more preparation by counsel, and is more complex than a hearing solely into the tortious conduct of the parties.” (Id. at p. 932.)
In concluding that section 877 requires more of the parties to a sliding scale recovery agreement than simply noncollusion, the majority rely on the decision in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 [ 213 Cal.Rptr. 256 , 698 P.2d 159 ]. The premise fundamental to the *898 analysis of both Tech-Bilt (38 Cal. 3d at pp. 494-496) and the majority opinion (a nte, at pp. 871-872) is that section 877 “ha[s] two major goals: the equitable sharing of costs among the parties at fault and the encouragement of settlements” (id. at p. 872). It is on this premise that their construction of the phrase “good faith” rests: since, they assume, section 877 serves “the equitable sharing of costs among the parties at fault” as well as “the encouragement of settlements,” the phrase must be interpreted not simply to require that the plaintiff and the settling defendant refrain from collusive conduct intended to prejudice the interests of the nonsettling defendants, but also to require that the “ ‘amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional share of comparative liability for the plaintiff’s injuries’ ” (maj. opn., ante, p. 873, italics deleted [quoting Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 499 ]).
Section 877, however, was not intended to further both the equitable sharing of costs among parties adjudged liable for the plaintiff’s injury and the encouragement of settlements: it was intended rather to serve only the latter. The reasons that support this conclusion are as follows.
To begin with, it is undisputed that section 877 was indeed intended to encourage settlements. (E.g., Roberts, Good Faith Settlement, supra, 17 Loyola L.A. L.Rev. at pp. 883-884.) Both Tech-Bilt (38 Cal.3d at pp. 494-496) and the majority opinion (ante, pp. 871-872) recognize as much.
Moreover, there is nothing in the language of section 877 suggesting that it was intended to further the equitable sharing of costs among parties adjudged liable for the plaintiff’s injury. Contrary to the majority’s implication (a nte, at pp. 872-873), subdivision (a) of section 877—declaring that a good faith settlement “shall reduce the claims against [the nonsettling defendants] in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater”—does not establish that the provision serves equitable sharing as well as the encouragement of settlements. Rather, subdivision (a) reveals only a legislative intent to bar double recovery. (De Cruz v. Reid (1968) 69 Cal.2d 217, 225-226 [ 70 Cal.Rptr. 550 , 444 P.2d 342 ].)
There is also nothing in the history of section 877 suggesting that it was intended to further the equitable sharing of costs among parties adjudged liable for the plaintiff’s injury. It is true that the official explanation presented by the State Bar together with its 1955 legislative proposal and adopted by the Senate Committee on Judiciary for S.B. 412 (Jud. Com. Third Prog. Rep., supra, pp. 52-53)—and reprinted for S.B. 1510 in 1957 (Jud. Com. Fourth Prog. Rep., supra, pp. 130-131)—evidences the equitable-sharing *899 goal. That text, however, cannot be understood to refer in any way to what was to become section 877: the State Bar’s 1955 legislative proposal dealt only with contribution among joint tortfeasors and not with release from contribution, and specifically did not contain a source-provision for section 877. Further, an intent to promote equitable sharing is plainly absent from the comment of the National Conference of Commissioners on section 4 of the Uniform Act. (12 U.L.A., U. Contrib. Act, supra, § 4, Commrs. Com., pp. 98-100.)
On the positive side, the language of section 877 and its history reveal that the Legislature intended to encourage settlements and not to promote equitable sharing among parties adjudged liable for the plaintiff’s injury.
The statutory scheme codified in chapter 1 of title 11 of part 2 of the Code of Civil Procedure abrogrates the common law’s rule that barred contribution—and thereby prevented equitable sharing—postjudgment. (Code Civ. Proc., §§ 875, 876, 878.) By dealing only with the situation that obtains “Where a money judgment has been rendered” (id., § 875), the statutory scheme “leav[es] the common law anti-contribution rule to prevail before judgment.” (River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 999 [ 103 Cal.Rptr. 498 ]; accord, Guy F. Atkinson Co. v. Consani (1963) 223 Cal.App.2d 342, 344 [ 35 Cal.Rptr. 750 ]; American Can Co. v. City & County of San Francisco (1962) 202 Cal.App.2d 520, 523 [ 21 Cal.Rptr. 33 ]; see also Note, Sliding Scale Agreements and the Good Faith Requirement of Settlement Negotiation (1980) 12 Pacific L.J. 121, 126 [“The restriction of the right of contribution to judgment debtors meant an equitable allocation was not available to . . . [other] parties”].) It follows that since the Legislature failed to abrograte the common law rule, which prevents equitable sharing, insofar as that rule operates prejudgment, it must not have intended section 877—which expressly governs only releases given “before verdict or judgment”—to further equitable sharing.
The legislative history of section 877 confirms what the statutory scheme clearly implies—i.e., the provision was not intended to promote the goal of equitable sharing. As explained above, on the basis of all the available evidence it must be presumed that in enacting section 877 the Legislature had the same intent that the National Conference of Commissioners had in drafting section 4 of the Uniform Act. Contrary to what the Tech-Bilt court suggested ( 38 Cal.3d at p. 494 & fn. 4), the commissioners did not intend the provision to further equitable sharing and did not intend the phrase “good faith” to require anything more of the plaintiff and the settling defendant than that they simply refrain from collusive conduct intended to prejudice the interests of the nonsettling defendants.
*900 As Chief Justice Bird explained in her dissenting opinion in Tech-Bilt: “Section 5 [of the 1939 version of the Uniform Act] provided that a settling tortfeasor was not released from liability unless the release provided that plaintiff’s ultimate recovery would be reduced to the extent of the released tortfeasor’s pro rata share of the damages.
“The commissioners noted that ‘[r]eports from the state where the Act is adopted appear to agree that [section 5] has accomplished nothing in preventing collusion.’ [Citation.] Moreover, its effect ‘has been to discourage settlements in joint tort cases, by making it impossible for one tortfeasor alone to take a release and close the file. Plaintiff’s attorneys are said to refuse to accept any release which contains the provision reducing the damages . . . because they have no way of knowing what they are giving up.’ [Citation.]
“Therefore, in 1955 the commissioners abandoned section 5 of the uniform act in favor of permitting release from contribution where the settlement is made in good faith. ‘It seems more important not to discourage settlements than to make an attempt of doubtful effectiveness to prevent discrimination by plaintiffs, or collusion in the suit. Accordingly [section 4(b)] provides that the release in good faith discharges the tortfeasor outright from all liability for contribution.’ [Citation.] Thus, ... the 1955 revisions to the uniform act represented a policy decision to encourage settlement. The commissioners abandoned as unworkable their earlier attempt to protect nonsettling parties from inequity other than that caused by collusive conduct.” ( 38 Cal.3d at p. 504 (dis. opn. of Bird, C.J.), italics added.)
Even apart from what the language and history of section 877 reveal, it appears that the Legislature did not intend section 877 to further the goal of equitable sharing among parties adjudged liable for the plaintiff’s injury. This is so because the Legislature could not reasonably have acted with such an intention: equitable sharing presupposes that the parties have in fact been adjudged liable; section 877, however, expressly governs releases given before liability has been determined.
The unsoundness of the construction of the phrase “good faith” that the majority opinion and Tech-Bilt have adopted is revealed by its consequences—which are plainly contrary to what the Legislature intended. If the phrase is read to require the settling defendant to pay an amount within the reasonable range of his proportional share of comparative liability for the plaintiff’s injury, rather than simply to require the plaintiff and the settling defendant to refrain from collusive conduct intended to prejudice the interests of the nonsettling defendants, then the section 877.6 “good faith” hearing—as even Professor Roberts, who agrees with the broad con *901 struction of the phrase, is compelled to admit (see Roberts, Good Faith Settlement, supra, 17 Loyola L.A. L.Rev. at pp. 910, 932)—is rendered more complex, thereby discouraging settlement and increasing court congestion and causing complex trials to proliferate. 2 Such consequences, however, are the very evils the Legislature sought to eradicate by enacting section 877.6.
The unsoundness of the broad construction of the phrase “good faith” is also suggested by the fact that the rule it implies conflicts with a fundamental principle of the common law. If the phrase is read in accord with the majority opinion and Tech-Bilt, then the statutory provision imposes on the plaintiff and the settling defendant the duty to protect the interests of third parties—the nonsettling defendants—whose interests are adverse to their own. It goes almost without saying that when, as here, parties are not bound by contract or by a special relationship, the common law is loath to impose a duty on one to protect the interests of the other. (See generally, e.g., Prosser & Keeton, The Law of Torts (5th ed. 1984) § 56, pp. 373-385.) The Legislature, of course, could abrogate the common law rule and impose such a duty. If it had intended to do so, however, it would likely have made its intention plain. It certainly did not make any such intention plain here.
Therefore, the fundamental premise shared by Tech-Bilt (38 Cal.3d at pp. 494-496) and the majority opinion (ante, pp. 871-872) is unsound: as explained above, section 877 was not intended to further the goal of equitable sharing of costs among parties adjudged liable for the plaintiff’s injury.
*902 For the foregoing reasons, I conclude that the “good faith” requirement of section 877 is satisfied if the plaintiff and the defendant settling under a sliding scale recovery agreement simply refrain from collusive conduct intended to prejudice the interests of the nonsettling defendants. Accordingly, I conclude that the central holding of the majority opinion—viz., the “good faith” requirement is satisfied only if the settling defendant pays an amount within the reasonable range of his proportional share of comparative liability for the plaintiff’s injury—is fundamentally unsound. Therefore, I dissent. 3
Section 877 provides as follows: “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—
“(a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater; and
“(b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors.”
Section 877.5 provides as follows:
“(a) Where an agreement or covenant is made which provides for a sliding scale recovery agreement between one or more, but not all, alleged defendant tortfeasors and the plaintiff or plaintiffs:
“(1) The parties entering into any such agreement or covenant shall promptly inform the court in which the action is pending of the existence of the agreement or covenant and its terms and provisions; and
“(2) If the action is tried before a jury, and a defendant party to the agreement is a witness, the court shall, upon motion of a party, disclose to the jury the existence and content of the agreement or covenant, unless the court finds that such disclosure will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
“The jury disclosure herein required shall be no more than necessary to be sure that the jury understands (1) the essential nature of the agreement, but not including the amount paid, or any contingency, and (2) the possibility that the agreement may bias the testimony of the alleged tortfeasor or tortfeasors who entered into the agreement.
“(b) As used in this section a ‘sliding scale recovery agreement’ means an agreement or covenant between a plaintiff or plaintiffs and one or more, but not all, alleged tortfeasor defendants, where the agreement limits the liability of the agreeing tortfeasor defendants to an amount which is dependent upon the amount of recovery which the plaintiff is able to recover *890 from the nonagreeing defendant or defendants. This includes, but is not limited to, agreements within the scope of Section 877, and agreements in the form of a loan from the agreeing tortfeasor defendant to the plaintiff or plaintiffs which is repayable in 'whole or in part from the recovery against the nonagreeing tortfeasor defendant.”
Section 877.6 provides as follows:
“(a) Any party to an action wherein it is alleged that two or more parties are joint tortfeasors shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors, upon giving notice thereof in the manner provided in Sections 1010 and 1011 at least 20 days before the hearing. In addition, the notice may be served by mail pursuant to Section 1012, but in those cases the period of notice shall be at least 25 days if the place of address is within the State of California, at least 30 days if the place of address is outside the State of California but within the United States, and at least 40 days if the place of address is outside the United States. Upon a showing of good cause, the court may shorten the time for giving the required notice to permit the determination of the issue to be made before the commencement of the trial of the action, or before the verdict or judgment if settlement is made after the trial has commenced.
“(b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response thereto, or the court may, in its discretion, receive other evidence at the hearing.
“(c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
“(d) The party asserting the lack of good faith shall have the burden of proof on that issue.
“(e) When a determination of the good faith or lack of good faith of a settlement is made, any party aggrieved by the determination may petition the proper court to review the determination by writ of mandate. The petition for writ of mandate shall be filed within 20 days after service of written notice of the determination, or within such additional time not exceeding 20 days as the trial court may allow.
“(1) The court shall, within 30 days of the receipt of all materials to be filed by the parties, determine whether or not the court will hear the writ and notify the parties of its determination.
“(2) If the court grants a hearing on the writ, the hearing shall be given special precedence over all other civil matters on the calendar of the court except those matters to which equal or greater precedence on the calendar is granted by law.
“The running of any period of time after which an action would be subject to dismissal pursuant to Section 583 shall be tolled during the period of review of a determination pursuant to this subdivision.”
Contrary to Tech-Bilt’s implication, the Legislature’s enactment of section 877.6 does not affect the correctness of the “noncollusion” reading of the phrase “good faith.” The relevant discussion in that opinion is as follows.
“The Legislature responded to American Motorcycle in 1980 by its enactment of section 877.6. That section codifies the American Motorcycle result by providing that a section 877 settlement bars claims for partial or comparative indemnity as well as for contribution. [Citation.] It also specifically reiterates the proviso that a settlement must be made in good faith before it will operate as a bar and clarifies the procedures for judicial determination of the good faith issue. [j[] This background strongly suggests that the Legislature intended the term ‘good faith’ in section 877.6 to bear the meaning ascribed to that term in section 877 by the Court of Appeal’s decision in River Garden Farms and by this court in American Motorcy cle.” ( 38 Cal.3d at p. 496 .)
In enacting section 877.6, the Legislature codified both the procedure laid down in Fisher for the conduct of the “good faith” hearing (103 Cal.App.3d at pp. 438-449) and the substantive holding of American Motorcycle, to the effect that a “good faith” settlement bars claims for comparative equitable indemnity as well as contribution ( 20 Cal.3d at p. 604 ). In so doing, the Legislature cannot reasonably be presumed to have affirmed or adopted what Tech-Bilt asserts is the American Motorcycle court’s implied approval of the broad construction of the phrase “good faith”: there is no evidence that it even adverted to that aspect of the American Motorcycle opinion. The Legislature can, however, reasonably be presumed to have accepted the “noncollusion” reading of the phrase: in allocating the burden of proof to the party attacking the “good faith” of the settlement, the Fisher court relied on this reading (103 Cal.App.3d at pp. 447-449); in codifying that allocation in section 877.6, subdivision (d), the Legislature must have done the same.
I find the repeated use of the expression “in the ballpark” in both the majority and concurring opinions to be disturbing. While it may be accepted in current vernacular, I suggest it may puzzle the reader of this text 25 or 50 years from today. We are, of course, writing not merely for the moment but for future guidance of the bench and bar.
My colleagues lean on the use of that argot in the majority opinion in Tech-Bilt. While he did make passing reference to the “ballpark,” Justice Grodin did not include that term in the actual Tech-Bilt test. Rather, he denominated the proposed rule as the “ ‘reasonable range’ test.” ( 38 Cal.3d at p. 500 .) In my view, that phrase would be more readily understood than the sport-page idiom employed by the opinions in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9537170. Public record. Not legal advice.