Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Sharon Barry 

 

RESPONDING PARTY: Defendant People of the State of California by and through the Department of Transportation (erroneously sued as California Department of Transportation) (“Caltrans”)  

 

BACKGROUND 

Adrine Mekertichian was struck by a car and died while crossing Pacific Coast Highway to dine at a restaurant.  Plaintiff, the Estate of Adrine Mekertichian, has sued the driver (Sharon Barry), the restaurant (Moonshadows Malibu, Inc.), Caltrans, and the City of Malibu. 

  Plaintiff entered into a settlement agreement with Barry, whereby Barry’s insurer will pay Plaintiff $100,000 which Plaintiff represents is the entirety of all policy limits available.  The settlement is expressly conditioned upon the entry of a Good Faith Settlement Order pursuant to Code Civ. Proc. §877.6.   

This hearing is on Barry’s motion for determination of a good faith settlement.  Barry seeks an order determining that the settlement is entered in good faith and any other joint tortfeasor or co-obligator are barred from seeking equitable indemnity, contribution or other relief precluded under Code Civ. Proc. §877.6.  Caltrans initially opposed the motion but has now filed a “limited non-opposition” to the motion, on the condition that Barry cooperate in making her car available for inspection. 

LEGAL STANDARD¿ 

Under Code of Civil Procedure section 877.6, “[a]ny party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt 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 or co-obligors.”  (Code Civ. Proc.§ 877.6(a)(1).)  “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 counter-affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.” (Code Civ. Proc.§ 877.6(b).)   

“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.”  (Code Civ. Proc.§ 877.6(c).)  The party asserting the lack of good faith shall have the burden of proof on that issue.  (Code Civ. Proc.§ 877.6(d).)   

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal. 3d 488 (1985)(“Tech-Bilt”), the California Supreme Court set forth the following factors for evaluating whether a proposed settlement was made in good faith: (1) a rough approximation of plaintiffs’ total recovery and the settler’s proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) discount for settlement before trial; (5) the financial conditions and insurance policy limits of settling defendants; and, (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants.  (Id. at 499.)   

DISCUSSION 

Rough Approximation/Amount of Settlement  

The first Tech-Bilt factor consists of two parts – a rough approximation of Plaintiff’s total recovery and the settlor’s proportionate liability.¿ When approximating a plaintiff’s total recovery or the settling defendant’s proportionate liability, “judges should . . . not yearn for the unreal goal of mathematical certainty.¿ Because the application of section 877.6 requires an educated guess as to what may occur should the case go to trial, all that can be expected is an estimate, not a definitive conclusion.”¿ (North County Contractor’s Assn. v. Touchstone Ins. Services (1994) 27 Cal.App.4th 1085, 1090 (hereafter, North County).)¿¿¿ 

¿ Additionally, “a court not only looks at the alleged tortfeasor’s liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury.¿ Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor.¿ [Citation.]”¿ (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.)¿ 

‘“[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the defendant’s liability to be.’¿ [Citation.]”¿ (Tech-Bilt, 38 Cal.3d at p. 499.)¿ However, even though “an offer of settlement must bear some relationship to one’s proportionate liability, bad faith is not ‘established by a showing that a settling defendant paid less than his theoretical proportionate or fair share.’¿ [Citation.]”¿ (North County, supra, 27 Cal.App.4th at p.1090.)¿ “Such a rule would unduly discourage settlements” and “convert the pretrial settlement approval procedure into a full-scale mini-trial.”¿ (Tech-Bilt, supra, 38 Cal.3d at p. 499.)¿ Rather, in order to meet the proportionality requirement, “all that is necessary is that there be a ‘rough approximation’ between a settling tortfeasor’s offer of settlement and his proportionate liability.  [Citation.]” (North County, supra, 27 Cal.App.4th at pp. 1090–1091.)¿  

The second Tech-Bilt factor – amount of settlement – is closely related to the first factor and addresses whether the settlement amount is within the ballpark of settling defendant’s share of liability.  In determining whether the settling defendant’s settlement figure is “within the ballpark”, the Court may rely on “the judge’s personal experience” and the experience of “experts in the field.”¿ (Tech-Bilt, supra, 38 Cal.3d at p. 500.)¿      
Here, the settlement amount of $100,000 is not out of the ballpark of a reasonable settlement.  Defendant is tendering to Plaintiff the entire limits of her insurance policy with Allstate Northbrook Indemnity Company.  (Murga Decl. ¶6, Ex. B.)   

In assessing Defendant’s proportionate share of liability, the Court considers the following facts: Defendant was driving home on Pacific Coast Highway after grocery shopping for her quadriplegic husband.  (Barry Decl. ¶4.)  Defendant had no vision issues on the date of the accident.  (Id. ¶6)  Defendant had only been driving on Pacific Coast Highway for approximately seven minutes, when Decedent jumped out in the middle of a heavily transited highway with a speed limit of 45 miles per hour.  (Id. ¶8)  Decedent was wearing dark clothing and darted in front of Defendant’s car traveling at approximately 45 miles per hour.  (Id. ¶¶ 8, 9)  Decedent was attempting to cross four lanes of traffic.  This area has no crosswalk, no streetlights, no stop sign and no pedestrian crossing signs.  (Id. ¶10.)  Together, these facts suggest Barry has a strong comparative negligence defense, and her proportionate share of liability would be limited.   

The settlement amount of $100,000 is therefore reasonable and represents more than the anticipated amount Plaintiff would be able to recover from the settling party if the case were to go to trial.   

Allocation of Settlement Proceeds 

The third factor under Tech Bilt is the allocation of settlement proceeds amongst plaintiffs.  Here, there is only one plaintiff and therefore this factor is irrelevant. 

Discount for Settlement Before Trial 

The fourth Tech-Bilt factor is intended to recognize that a settlor should pay less in settlement than she would if she were found liable at trial.  (Tech-Bilt, 38 Cal.3d at 499.)  There is no dispute that this factor weighs in favor of a good faith determination.  While Barry has strong comparative negligence defenses, litigation is uncertain and the recovery against her may well have been in excess of the settlement amount.   

Financial Condition of Settling Defendant 

The next factor under Tech-Bilt is the financial condition of Defendant.  The settlement amount exhausts Barry’s entire insurance policy limits.  Barry’s husband suffered a spinal cord injury and consequently is a quadriplegic.  (Barry Decl. ¶12.)  Her husband requires full time caregivers.  (Id. ¶14.)  Barry devotes her time and finances to the care of her husband.  (Id. ¶13.)   All of Barry’s assets will be depleted due to the required full time and long term care of her quadriplegic husband.  (Id. ¶17.)  This Tech-Bilt factor, therefore, weighs in favor of a good faith determination. 

Collusion, Fraud or Tortious Conduct 

The last Tech-Bilt factor is whether there is evidence of collusion, fraud or tortious conduct aimed to injure the interests of the non-settling parties.  There is no fraud or collusion here.  Barry has chosen to settle with Plaintiff to avoid the further expenditure of attorneys’ fees and costs.  Plaintiff agreed to the settlement amount which constitutes Barry’s entire insurance policy limit.  Non-settling defendants do not raise any claim of fraud or collusion.  This factor, therefore, also weighs in favor of a good faith determination.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Barry’s motion for determination of a good faith settlement.   

 

DATED: September 19, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court