Filed 7/19/24 Shabani v. Regions Bank CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JOSEPH SHABANI,

Plaintiff and Respondent,

v.

REGIONS BANK,

Defendant and Respondent; 

CAL BURTON, as Trustee, etc.,

Defendant and Appellant.

B324217

Los Angeles County

Super. Ct. No. BC696195

APPEAL from an order of the Superior Court of Los

Angeles County, Christopher K. Lui, Judge. Affirmed.

Collins + Collins and James C. Jardin for Defendant and 

Appellant.

Law Offices of Saul Reiss, Saul Reiss, and Faye Pugh for 

Plaintiff and Respondent.
2

Sacks, Glazier, Franklin, & Lodise, Terrence M. Franklin, 

and Antonieta Pimienta Lefebvre for Defendant and Respondent.

_______________________________________

INTRODUCTION

This appeal arises from the trial court’s approval of a 

settlement agreement between plaintiff and respondent Joseph 

Shabani and defendant and respondent Regions Bank. The Bank, 

acting as a trustee, agreed to sell certain trust assets to plaintiff. 

The sale was obstructed by the beneficiary of the trust and

protracted litigation ensued in this case and in a parallel probate 

proceeding. The Bank resigned as trustee and was replaced by 

defendant and appellant Cal Burton, who refuses to complete the 

sale. Plaintiff sued Cal Burton for breach of the asset purchase 

agreement and related claims and sued the Bank for fraudulent 

misrepresentation.

Plaintiff’s claims against the Bank are barred as a matter 

of law. In the interest of halting further litigation, the Bank 

settled with plaintiff for $150,000 in exchange for a release of all 

claims against it. The court approved the settlement under Code 

of Civil Procedure section 877.6.

1 Finding no error, we affirm.

1 All undesignated statutory references are to the Code of Civil 

Procedure.
3

FACTS AND PROCEDURAL BACKGROUND

1. The Trust

In 1998, Julius Burton, Sr. and Christopher Burton created 

a trust and transferred to it, as relevant here, several pieces of 

real property located on Crenshaw Boulevard in Los Angeles 

(Crenshaw properties). The sole beneficiary of the trust is the 

trustors’ son, Julius Burton, Jr. (beneficiary). The surviving 

trustor died in 2006 and at that time the trust owned no liquid 

assets or cash accounts.

In May 2007, the Bank became the trustee of the trust. The 

trust was insolvent and burdened with substantial federal estate 

tax liability.

2. The Purchase Agreement

In July 2013, the Bank agreed to sell the Crenshaw 

properties to plaintiff for $775,000 as documented in a purchase 

agreement. The purchase price was later reduced to $685,000. 

The parties agreed that escrow would close 45 days after the date 

of the purchase agreement, in early September 2013. The parties 

agreed to extend the date several times during 2013 and 2014.

Plaintiff fully performed under the agreement by depositing 

funds into escrow and removing contingencies as required.

3. Obstacles to Sale of the Crenshaw Properties

In 2010, the beneficiary filed a petition in probate court to 

remove the Bank as trustee under Probate Code section 17200. 

Extensive litigation ensued. The court conducted a trial on the 

petition and other pending issues and, in October 2013, 

terminated the trust noting that “[t]here are substantial 

outstanding tax liabilities.”
4

Approximately six months later, in April 2014, the Bank 

filed a petition to instruct the trustees regarding the sale of the 

trust’s property. The petition explained that the estate’s federal 

tax liability, including interest, then exceeded $817,000. Further, 

the Bank represented that it had obtained a commitment from 

the Internal Revenue Service to settle that debt for $280,000, to 

be paid no later than April 18, 2014. The Bank requested 

authority to sell the Crenshaw properties to plaintiff for $685,000

to satisfy the debt.

The Bank did not complete the transaction by the deadline, 

due in part to ongoing negotiations with the Internal Revenue 

Service regarding liens on the properties for estate tax liability 

and attempts by the beneficiary, in parallel probate proceedings,

to prevent the sale of the properties.

In May 2018, pursuant to a settlement agreement between 

the Bank and the beneficiary, the parties stipulated to and the 

court approved the appointment of Cal Burton as successor 

trustee of the trust. It is undisputed that Cal Burton has refused 

to proceed with the sale of the Crenshaw properties to plaintiff.

4. Complaint

In 2018, plaintiff filed the present action against the Bank 

and Cal Burton relating to the unconsummated purchase of the 

Crenshaw properties. As to Cal Burton, the complaint states 

causes of action for breach of contract (the purchase agreement), 

breach of the implied covenant of good faith and fair dealing, and 

specific performance. As to Regions Bank, the complaint states 

causes of action for intentional misrepresentation, promissory 

fraud, negligent misrepresentation, and declaratory relief.

Plaintiff also alleges that each of the defendants acted as an 
5

agent, employee, servant, partner, guarantor, or successor of the 

other defendants.

5. Summary Adjudication of Contract Claims Against 

Cal Burton

In July 2019, the court summarily adjudicated plaintiff’s 

claims against Cal Burton. The court found the undisputed 

material facts established that Cal Burton breached the purchase 

agreement and the covenant of good faith and fair dealing by 

refusing to sell the Crenshaw properties to plaintiff. The court 

ordered specific performance of the purchase agreement.

6. Settlement Between Plaintiff and the Bank

In June 2022, plaintiff and the Bank executed a settlement 

agreement. As pertinent here, the Bank agreed to pay plaintiff 

$150,000 in exchange for plaintiff’s agreement to dismiss with 

prejudice all of his claims against the Bank.

The Bank filed an application for a determination of good 

faith settlement under section 877.6. The Bank asserted that the 

$150,000 settlement amount is generous because plaintiff 

admitted that no fraud had occurred and, further, plaintiff’s 

fraud claims were barred as a matter of law. Specifically, and as 

pertinent here, the Bank argued that the economic loss rule 

precluded plaintiff from recovering damages from the Bank on 

his fraud claims because plaintiff did not suffer any damages 

beyond those caused by the breach of the purchase agreement. In 

support of its application, the Bank submitted discovery 

responses from plaintiff stating that his only damages for fraud 

relate to the loss of income from the properties during the time 

the sale of the properties was delayed.
6

Cal Burton opposed the application. He argued that 

section 877.6 does not apply because he and the Bank are neither 

joint tortfeasors nor are they co-obligors on a contractual 

obligation. In addition, Cal Burton asserted the Bank failed to 

offer any evidence that its $150,000 settlement was within the 

“ballpark” of what plaintiff could expect to recover from it if the 

matter proceeded to trial. He claimed, further, that it was 

improper for the Bank to argue that it would not be liable to 

plaintiff, thereby rendering any settlement payment “in the 

ballpark.” As to the economic loss doctrine, Cal Burton noted that 

the doctrine does not bar recovery of damages relating to fraud

insofar as those damages are different from the damages 

resulting from a breach of contract. But he did not identify any 

damages claimed by plaintiff aside from the damages resulting 

from the breach of the purchase agreement. Finally, Cal Burton 

urged the court, if it was inclined to find against him, to grant a 

continuance to allow further (but unidentified) discovery.

Cal Burton submitted several declarations in support of his

opposition.2 The first, by his attorney, described attempted 

settlement discussions with plaintiff. Next, the beneficiary 

submitted a declaration describing, among other things, his failed 

attempt to obtain a loan against the Crenshaw properties, the 

proceeds of which he hoped to use to satisfy the estate’s tax 

liability. A tenant leasing space at the Crenshaw properties also 

provided a declaration describing his relationship with one of the 

trustors and an interaction with plaintiff. Finally, Cal Burton 

2 The court sustained numerous evidentiary objections to the 

declarations including but not limited to relevance. We describe the 

content of the declarations generally but do not rely on any evidence 

excluded by the court.
7

provided a declaration discussing the beneficiary’s attempt to 

obtain a loan against the Crenshaw properties, his attempts to 

satisfy the federal tax lien, and his opinion that the sale of the 

Crenshaw properties to plaintiff would not be in the interest of 

the trust because the properties were then worth nearly 

$3 million, far more than the agreed-upon sale price of $685,000.

In reply, the Bank noted it was Cal Burton’s burden to 

establish that the settlement was not made in good faith and he 

failed to do so. The Bank noted, again, that it had strong legal 

defenses against plaintiff’s claims. For that reason, the Bank 

argued, its settlement with plaintiff was more than reasonable.

The Bank also opposed the request for a continuance, noting that 

the litigation had been pending at that point for more than four 

years, giving both sides ample opportunity to conduct and 

complete discovery.

7. The Order Approving the Settlement; Appeal

The court granted the Bank’s application and approved the 

settlement.

As an initial matter, the court found that section 877.6 

applied. Specifically, the court determined that the Bank and 

Cal Burton were joint tortfeasors because the complaint alleged 

that each defendant acted as the others’ agent. Thus, although 

the causes of action asserted against Cal Burton were 

contractual, he could also be found liable for the Bank’s tortious 

conduct, if any.

As to the settlement, the court found the settlement was 

made in good faith. More particularly, the court stated that the 

$150,000 settlement amount was not facially unreasonable, 

particularly in light of the litigation risks plaintiff faced with 

respect to the fraud claims. The court also noted that the 
8

evidence submitted by Cal Burton in support of his opposition to 

the motion did not suggest an absence of good faith. Finally, the 

court rejected the request for a continuance, noting that the case 

had been filed nearly four and a half years earlier.

The court issued its order on August 25, 2022. Cal Burton 

timely appeals.3

DISCUSSION

Cal Burton argues that the court erred by approving the 

settlement for two reasons. Procedurally, he contends section 

877.6 does not apply. Substantively, he contends the order 

approving the settlement is not supported by substantial 

evidence. We reject both arguments.

1. Code of Civil Procedure section 877.6 applies.

We first consider whether, as the trial court found, the 

settlement approval mechanism provided by section 877.6 applies 

here. Because the essential facts are undisputed, we review the 

court’s finding de novo. (See, e.g., Boling v. Public Employment 

Relations Bd. (2018) 5 Cal.5th 898, 912 [noting “the application of 

law to undisputed facts ordinarily presents a legal question that 

is reviewed de novo”]; Gallo v. Wood Ranch USA, Inc. (2022) 81 

Cal.App.5th 621, 633 [same].)

Section 877.6 applies in “an action in which it is alleged 

that two or more parties are joint tortfeasors or co-obligors on a 

3 There is a split of authority regarding whether an order granting a 

motion for good faith settlement is appealable or may be challenged 

only in an original proceeding. Cal Burton filed a petition for writ of 

mandate challenging the court’s order approving the settlement, which 

we summarily denied. We elect to hear this appeal on the merits so as 

not to insulate the court’s decision from review.
9

contract debt” and the plaintiff enters into a settlement with “one 

or more alleged tortfeasors or co-obligors[.]” (§ 877.6, subd. (a)(1).) 

The court found, based on the allegations of the complaint, that 

Cal Burton and the Bank are alleged to be joint tortfeasors. Cal 

Burton claims they are not.

It is true, as Cal Burton notes, that the causes of action 

against him are based on an alleged breach of contract while the 

causes of action asserted against the Bank sound in tort. As 

discussed ante, the complaint states causes of action for breach of 

contract (the purchase agreement), breach of the implied 

covenant of good faith and fair dealing, and seeks specific 

performance of the purchase agreement as against Cal Burton

while the causes of action against the Bank are for intentional 

misrepresentation, promissory fraud, negligent 

misrepresentation, and declaratory relief.

Cal Burton mistakenly concludes, however, that “[p]laintiff 

does not allege that [the Bank] and [Cal] Burton are co-obligors 

on a single contract debt, or that they are joint tortfeasors.”

Specifically, he disregards the fact that the complaint provides an 

avenue by which he could be found liable on the tort claims. The 

complaint states: “Plaintiff is informed and believes, and based 

thereon, alleges that each of the named Defendants are 

responsible in some manner for the occurrences herein alleged, 

and Plaintiff’s damages as herein asserted were proximately 

caused by such Defendants. Plaintiff is informed and believes, 

and upon such information and belief alleges that at all times 

herein mentioned each of the Defendants were the agent, 

employee, servant, partner, guarantor, or successor of each of the 

named Defendants and in doing the things herein asserted, were 

acting within such course and scope. Plaintiff is also informed 
10

and believes and upon such information and belief alleges that at 

all relevant times mentioned herein, Defendants, and each of 

them, were joint venturers with each, every, and all other 

Defendants and said Defendants were acting in furtherance of 

said joint venture.” Based on this allegation (the agency 

allegation), we conclude, as the trial court did, that Cal Burton 

and the Bank are joint tortfeasors within the meaning of section 

877.6.

Cal Burton does not analyze or discuss the agency 

allegation. Indeed, his only reference to it is to say that “where 

‘good faith’ is contested, conclusory allegations as to the settling 

parties’ liability are insufficient[,]” citing Greshko v. County of 

Los Angeles (1987) 194 Cal.App.3d 822, 834. The issue in Greshko

was whether substantial evidence supported the trial court’s 

finding that a settling defendant was unlikely to be found liable 

to an accident victim. The settling defendant submitted a 

declaration by its attorney giving his general opinion (without 

foundation or other evidentiary support) that his client would not 

be found liable. (Id. at pp. 831–832.) The opposing party (the 

plaintiff in the indemnity action, and a co-defendant in a personal 

injury action) submitted testimony by two experts suggesting the 

settling defendant was at least partially responsible for the 

victim’s substantial injuries. (Id. at pp. 832–833.) The Court of 

Appeal concluded the court abused its discretion in disregarding 

the expert evidence as “self-serving” and instead crediting the 

attorney’s declaration, which lacked foundation, specificity, and 

evidentiary support. (Id. at pp. 834–836.)

Greshko is inapposite. The court did not improperly rely on 

the agency allegation as evidence of Cal Burton’s liability on any 

of the causes of action at issue, as was the case in Greshko. 
11

Instead, it properly relied on the agency allegation to evaluate 

whether Cal Burton may be liable as a joint tortfeasor, i.e., to 

assess plaintiff’s legal theories and determine the applicability of

the statute.

Having concluded that section 877.6 applies, we turn to 

Cal Burton’s remaining contentions.

2. Cal Burton fails to establish prejudicial error.

Cal Burton contends the court’s finding that the $150,000 

settlement amount is “in the ballpark” of the Bank’s probable 

liability is unsupported by substantial evidence. Specifically, he 

argues the Bank failed to present any analysis or evidence of its 

proportionate liability. We disagree and conclude Cal Burton 

failed to carry his burden below to establish the settlement was 

not made in good faith. Further, he fails to explain why the 

court’s approval of the settlement, if erroneous, is prejudicial to 

him.

2.1. Standard of Review and Applicable Legal 

Principles

The procedure for a good faith settlement determination is 

set forth in section 877.6. In an action in which it is alleged that 

two or more parties are joint tortfeasors or co-obligors on a 

contract debt, “a settling party may give notice of settlement to 

all parties and to the court, together with an application for 

determination of good faith settlement and a proposed order.” 

(§ 877.6, subd. (a)(2).) After such an application is made, “a 

nonsettling party may file a notice of motion to contest the good 

faith of the settlement.” (Ibid.) “The party asserting the lack of 

good faith shall have the burden of proof on that issue.” (Id., 

subd. (d).)
12

“The factors to be taken into account in the determination 

of whether a settlement is in ‘good faith’ include a rough 

approximation of the plaintiff’s total recovery and the settlor’s 

proportionate liability, the amount paid in settlement, the 

allocation of settlement proceeds among plaintiffs, and a 

recognition that a settlor should pay less in settlement than if 

found liable after a trial. (Tech-Bilt, [Inc. v. Woodward-Clyde & 

Associates (1985)] 38 Cal.3d [488,] 499 [(Tech-Bilt)].) Other 

relevant considerations include the financial conditions and 

insurance policy limits of settling defendants, as well as the 

existence of collusion, fraud, or tortious conduct aimed at injuring 

the interests of nonsettling defendants. (Ibid.)” (Dole Food Co., 

Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 909 (Dole 

Food).) Because every case is unique, “[t]he Tech-Bilt factors are 

nonexhaustive and ‘may not apply in all cases.’ [Citation.]” (Id. at 

p. 909; see Cahill v. San Diego Gas & Electric Co. (2011) 194 

Cal.App.4th 939, 968 (Cahill) [noting “each case must be decided 

based on its particular circumstances and the trial court may 

consider its own judicial experience”].)

A party contesting the good faith of a settlement must 

“demonstrate ... that the settlement is so far ‘out of the ballpark’ 

in relation to” the factors identified by our Supreme Court “as to 

be inconsistent with the equitable objectives of the statute.” 

(Tech-Bilt, supra, 38 Cal.3d at pp. 499–500.) “ ‘[A] “good faith” 

settlement does not call for perfect or even nearly perfect 

apportionment of liability. In order to encourage settlement, it is 

quite proper for a settling defendant to pay less than his 

proportionate share of the anticipated damages. What is required 

is simply that the settlement not be grossly disproportionate to 

the settlor’s fair share.’ ” (PacifiCare of California v. Bright 
13

Medical Associates, Inc. (2011) 198 Cal.App.4th 1451, 1465; Dole 

Food, supra, 242 Cal.App.4th at p. 909.)

The determination as to whether a settlement is in good 

faith is a matter left to the discretion of the trial court. (§ 877.6, 

subd. (d); Tech-Bilt, supra, 38 Cal.3d at p. 499; Mattco Forge, 

Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1349, 

1350, fn. 6 (Mattco Forge).) “ ‘On appellate review, a trial court’s

determination of good faith of a settlement involving the 

resolution of factual issues will be upheld if supported by 

substantial evidence. [Citation.]’ [Citation.]” (Dole Food, supra,

242 Cal.App.4th at p. 909.) 

2.2. Burden Shifting and Relevant Evidence

As noted, “[t]he party asserting the lack of good faith shall 

have the burden of proof on that issue.” (§ 877.6, subd. (d).)

Specifically, “[o]nce there is a showing made by the settlor of the 

settlement, the burden of proof on the issue of good faith shifts to 

the nonsettlor who asserts that the settlement was not made in 

good faith. [Citations.] If contested, declarations by the nonsettlor should be filed which in many cases could require the 

moving party to file responsive counterdeclarations to negate the 

lack of good faith asserted by the nonsettling contesting party.” 

(City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 

1251, 1261–1262.)

2.2.1. The Bank’s Evidence

In support of its petition for a good faith settlement 

determination, the Bank provided a copy of the settlement 

agreement. As noted, the Bank agreed to pay plaintiff $150,000 

in exchange for plaintiff’s release of all claims against it. The

Bank contended the settlement was reasonable because plaintiff’s 
14

tort claims against it were barred as a matter of law by the 

economic loss rule, which precludes a plaintiff from recovering in 

tort damages sustained as a result of a breach of contract. The 

Bank submitted copies of plaintiff’s discovery responses, in which 

plaintiff conceded the damages he suffered related solely to the 

breach of the purchase agreement.4

2.2.2. Cal Burton’s Evidence

In opposition, Cal Burton submitted several declarations in 

support of his opposition, none of which addressed issues relating 

to the Bank’s liability. The first, by his attorney, described 

attempted settlement discussions with plaintiff. The beneficiary’s

declaration related to his failed attempt to obtain a loan against 

the Crenshaw properties. A tenant leasing space at the Crenshaw 

properties also provided a declaration describing his relationship 

with one of the trustors and an interaction with plaintiff. And

Cal Burton’s declaration detailed the beneficiary’s attempt to 

obtain a loan against the Crenshaw properties, his own attempts 

to reduce the amount of the federal tax lien, and his opinion that 

the sale of the Crenshaw properties to plaintiff would not be in 

the interest of the trust because the properties were then worth 

nearly $3 million, far more than the agreed-upon sale price of 

$685,000.

2.3. Analysis

We begin with the first (and arguably most important)

Tech-Bilt factor, the Bank’s potential and proportionate liability 

to plaintiff. (See Mattco Forge, supra, 38 Cal.App.4th at p. 1350.) 

We conclude this factor is dispositive on the facts of this case.

4 The Bank did not submit any additional evidence with its reply brief.
15

Plaintiff asserted three fraud claims against the Bank: 

intentional misrepresentation, negligent misrepresentation, and 

promissory fraud.5 “ ‘The elements of fraud, which give rise to the 

tort action for deceit, are (a) misrepresentation (false 

representation, concealment, or nondisclosure); (b) knowledge of 

falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; 

(d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. 

Superior Court (1996) 12 Cal.4th 631, 638.) Damages are an 

essential element of a fraud claim. (E.g., Behnke v. State Farm 

General Ins. Co. (2011) 196 Cal.App.4th 1443, 1453.) 

Plaintiff generally alleged that at the time the parties 

signed the purchase agreement and thereafter, the Bank falsely 

represented that it owned the Crenshaw properties and could sell 

them to plaintiff, that it was seeking permission from the Los 

Angeles Superior Court to proceed with the sale, and that it 

intended to comply with the terms of the purchase agreement. He 

further alleged that he relied on these misrepresentations to his 

detriment.

Generally, a plaintiff may not recover damages in tort that 

relate to a breach of contract. (E.g., Sheen v. Wells Fargo Bank, 

N.A. (2022) 12 Cal.5th 905, 923 (Sheen) [noting the wellestablished principle that “ ‘there is no liability in tort for 

economic loss caused by negligence in the performance or 

negotiation of a contract between the parties’ ”].) Instead, a party 

to a contract may recover in an action for breach of contract. 

Here, the Bank established that plaintiff’s only damages arose 

from the breach of the purchase agreement. Indeed, plaintiff 

5 Plaintiff’s fourth claim against the Bank is a request for declaratory 

relief.
16

admitted that fact in response to form interrogatories from the 

Bank. By proving that plaintiff would be unable to recover any 

damages on his fraud claims, the Bank conclusively established it 

would not be liable on those claims insofar as they related to a 

breach of the purchase agreement. In other words, the Bank 

established that its “proportionate liability” for plaintiff’s

damages was zero. And as this is the only Tech-Bilt factor 

addressed by Cal Burton, we presume the other factors support 

the court’s order. We conclude, therefore, the court did not abuse 

its discretion in finding that the parties’ $150,000 settlement of 

claims was made in good faith.

Cal Burton attacks the court’s ruling on three grounds. 

First, he asserts “there is substantial evidence that [the Bank] 

engaged in fraudulent conduct in order to induce Plaintiff to 

enter the Contract, including its concealment of the dispute 

between the beneficiary and [the Bank], as well as its affirmative, 

written representations that it had authority to sell Crenshaw 

while refusing to do so absent court approval.” And as Cal Burton 

correctly notes, a party to a contract may assert tort claims, 

including fraud, against the other party to the contract where 

tortious conduct unrelated to the breach of contract occurs. (See 

Erlich v. Menezes (1999) 21 Cal.4th 543, 551–552 [explaining that 

“[t]ort damages have been permitted in contract cases” when “the 

duty that gives rise to tort liability is either completely 

independent of the contract or arises from conduct which is both 

intentional and intended to harm”]; Sheen, supra, 12 Cal.5th at 

pp. 923–924 [citing Erlich].) But that is not the case here. Even if 

there is some evidence supporting some elements of the fraud 

claims, plaintiff concedes no damages independent of the 

damages arising from the breach of the purchase agreement
17

resulted from the alleged fraudulent conduct. As just explained, 

plaintiff’s fraud claims fail without proof of damages independent 

of the damages relating to breach of the purchase agreement.

Second, Cal Burton argues repeatedly that the Bank 

offered no evidence of its proportionate liability. He states, for 

example, that “[t]here is no evidence of the total amount of jointly 

shared liability among [the Bank] and [Cal] Burton,” and he 

criticizes the Bank for failing to offer any analysis of plaintiff’s 

total damages as compared to the amount of the settlement. If 

there was any evidence that the Bank could be liable on 

plaintiff’s tort claims, an analysis of proportionate responsibility 

for plaintiff’s total damages might be necessary. But where, as 

here, it is conclusively established that the claims against a 

settling party are barred as a matter of law, no analysis of 

proportionate responsibility is required. In other words, because 

the Bank established it cannot be found liable on the claims 

asserted against it, any analysis of the Bank’s share of potential 

liability to plaintiff would be nonsensical. (See Cahill, supra, 

194 Cal.App.4th at pp. 964–965 [where evidence established 

plaintiff’s recovery from settling defendant would be 

“insubstantial, if any,” court reasonably concluded defendant 

“would likely have no proportionate liability” for plaintiff’s total 

recovery].) Relatedly, Cal Burton complains that the court’s order 

does not include any specific factual findings supporting the 

conclusion that the Bank is not liable as a matter of law. But on 

appeal, we presume the judgment of the trial court is correct and 

will affirm on any ground supported by the record. (Denham v. 

Superior Court (1970) 2 Cal.3d 557, 564; Estate of Beard (1999) 

71 Cal.App.4th 753, 776–777; D’Amico v. Board of Medical 

Examiners (1974) 11 Cal.3d 1, 18–19.) And as we have said, the 
18

Bank provided conclusive evidence that plaintiff would not be 

able to prove damages independent of the damages resulting 

from the breach of the purchase agreement.

Third, analogizing to Mattco Forge, Cal Burton asserts the 

court’s finding that the settlement was made in good faith rests 

on unsupported assumptions rather than substantial evidence. In 

Mattco Forge, the Court of Appeal considered whether the trial 

court abused its discretion in finding a settlement was made in 

good faith. In a prior action, Mattco sued General Electric (G.E.) 

in federal court, claiming G.E.’s elimination of Mattco as an 

approved subcontractor was racially motivated. Helmer & Neff 

represented Mattco in that action. To help establish Mattco’s 

damages, Arthur Young & Co. (Young), an accounting firm, was 

retained as a consultant and expert witness. (Mattco Forge, 

supra, 38 Cal.App.4th at p. 1343.) After the court found that 

Mattco fabricated documents to inflate its damages claim, Mattco 

dismissed its case against G.E. with prejudice. (Ibid.)

Mattco then sued Young for professional negligence; Young 

filed a cross-complaint against Helmer & Neff alleging fraud, 

indemnity, and partial indemnity. (Mattco Forge, supra, 38 

Cal.App.4th at p. 1344.) Helmer & Neff, which was not named as 

a defendant in plaintiff’s action, entered into a sliding scale 

settlement with Mattco that guaranteed Mattco a minimum 

$750,000 recovery in its suit against Young (e.g., if Mattco 

recovered $600,000 at trial, Helmer & Neff would provide an 

additional payment of $150,000.) (Id. at p. 1345.) The settlement 

stated the present value of the guarantee by Helmer & Neff was 

$250,000. The trial court found the settlement was made in good 

faith and Young appealed. (Id. at pp. 1345–1346.) 
19

The Court of Appeal reversed. The total estimated value of 

plaintiff’s damages was $39 million. (Mattco Forge, supra, 38 

Cal.App.4th at p. 1350.) In seeking approval of the settlement, 

however, Helmer & Neff offered no evidence regarding the extent 

of its liability to the plaintiff. Instead, it used seemingly random 

assumptions regarding the plaintiff’s likelihood of success, 

plaintiff’s share of fault, and its own share of the total liability: 

“Mattco’s total recovery in the underlying action would have been 

$39 million. Assuming Mattco had only a 50/50 chance of 

prevailing against G.E., its damages would have been about 

$20 million. Assuming Mattco were 50 percent at fault for the 

events giving rise to the dismissal of the underlying action, its 

damages would have been $10 million. Further assuming 

Helmer & Neff’s share of fault in the production of the 

noncontemporaneous documents was not more than 5 or 

10 percent, the settling attorneys’ share of the damages should 

not exceed $500,000 to $1 million.” (Id. at pp. 1350–1351.) The 

Court of Appeal concluded the trial court abused its discretion in 

approving the settlement in part because there was no 

substantial evidence the settlement was in the ballpark of 

Helmer & Neff’s proportionate liability. (Id. at p. 1352.)

Cal Burton claims this case is analogous to Mattco Forge

because the Bank did not submit any evidence of its 

proportionate liability. But in Mattco Forge, the settling 

defendant conceded it bore some responsibility for the plaintiff’s 

damages, thereby raising the issue of proportionate fault. Here, 

by contrast, the Bank argued—and successfully established—

that it is not liable to plaintiff on his fraud claims. Moreover, the 

Bank offered conclusive evidence to support its argument, unlike 

the settling defendant in Mattco Forge, which presented 
20

argument and assumptions—but no evidence—about its potential 

liability to the plaintiff.

For the reasons discussed, we conclude Cal Burton has 

failed to establish any error by the trial court. But even if the 

court did err in approving the settlement, Cal Burton has also 

failed to explain how the settlement prejudices him. He simply 

asserts, without explanation, that the order “materially impairs 

[his] rights as Successor Trustee.” An appellant has the burden 

not only to show error but prejudice from that error. (Cal. Const., 

art. VI, § 13.) If an appellant fails to satisfy that burden, his 

argument will be rejected on appeal. (Century Surety Co. v. 

Polisso (2006) 139 Cal.App.4th 922, 963.) “[W]e cannot presume 

prejudice and will not reverse the judgment in the absence of an 

affirmative showing there was a miscarriage of justice. 

[Citations.] Nor will this court act as counsel for appellant by 

furnishing a legal argument as to how the trial court’s ruling was 

prejudicial. [Citations.]” (Ibid.) 
21

DISPOSITION

The order is affirmed. Respondents Joseph Shabani and 

Regions Bank shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.