Judge Teresa A. Beaudet, Case 19STCP00397 2022-07-26 Tentative Ruling

RASHADA BYARS, Plaintiff, vs. INTOUCH AT HOME, LLC, et al. Defendants.	Case No.:	19STCP00397
	Hearing Date:	July 26, 2022
	Hearing Time:	8:30 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT MICKEY SCHWARZ’(Now Deceased) MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT PER CCP § 877.6(a)(l)

Plaintiff Rashada Byars (“Plaintiff”) filed this action on February 7, 2019 against Defendants InTouch at Home, LLC (“InTouch”) and Mickey Schwarz (“Schwarz”). The operative First Amended Complaint (“FAC”) was filed on June 24, 2019 and asserts causes of action for (1) harassment based on gender, (2) failure to investigate and prevent harassment, (3) sexual assault, and (4) negligence. In the FAC, Plaintiff alleges that she was employed by InTouch as a caregiver, and was assigned on January 19, 2019 to provide services to Schwarz, one of InTouch’s clients. (FAC, ¶ 9.) Plaintiff alleges that she was sexually harassed and/or assaulted by Schwarz on January 19, 2019. (FAC, ¶¶ 3, 9.)

On October 15, 2021, Schwarz died. (Avrahamy Decl., ¶ 4.) On June 1, 2022, Plaintiff and “Defendant” entered into a settlement for payment of $15,000.00, in exchange for a release of all claims and a dismissal of the complaint. (Avrahamy Decl., ¶ 5.)

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” ((Irm Corp. v. Carlson (1986) 179 Cal.App.3d 94, 104.)

Section 877.6, subdivision (a)(1) provides, in relevant part, that, on noticed motion, “[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 party asserting the lack of good faith shall have the burden of proof on that issue.” ((Id., § 877.6(d).)

As an initial matter, it is unclear to the Court who entered into the asserted settlement with Plaintiff. As set forth above, Schwarz’s counsel indicates that Schwarz died on October 15, 2021 and that on June 1, 2022, Plaintiff and “Defendant” entered into a settlement for payment of $15,000.00. (Avrahamy Decl., ¶¶ 4-5.) In the motion, Schwarz indicates that the settlement was “entered into on or about June 1, 2022 between plaintiff Rashada Byars (“Plaintiff”) and defendant Mickey Schwarz (“Defendant”)” (Mot. at 2:1-2), but the reply references a “$15,000 settlement reached between Plaintiff and the estate of Schwarz.” (Reply at 4:8.) No evidence has been provided that a settlement was reached between Plaintiff and Schwarz’s estate.

The Court notes that “[a]t a minimum, a party seeking confirmation of a settlement must explain to the court and to all other parties: who has settled with whom, the dollar amount of each settlement, if any settlement is allocated, how it is allocated between issues and/or parties, what nonmonetary consideration has been included, and how the parties to the settlement value the nonmonetary consideration.” (Alcal Roofing & Insulation v. Superior Court (1992) 8 Cal.App.4th 1121, 1129.) In Alcal, the Court of Appeal noted that “[d]eveloper and Association lay blame on roofer for failing to present convincing evidence that $100,000 was an improper joint allocation to roofing issues. We conclude, however, that roofer’s burden to show an improper allocation did not arise during the proceedings below because the settling parties failed to present to roofer and the court a clear and complete description of the settlement or settlements.”

Moreover, the Court notes that pursuant to Code of Civil Procedure section 377.41, “[o]n motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.” Schwarz contends that “[t]he settlement allows the case to continue without Plaintiff having to file a petition in Probate Court and a motion in this Court to substitute the personal representative of the decedent.” (Mot. at 5:3-5.) The Court notes that no evidence has been provided of this provision of the settlement, nor has Schwarz provided any legal authority demonstrating that it is permissible.

Based on the foregoing, Schwarz’s motion for a good faith determination is denied without prejudice.

Superior Court of California

County of Los Angeles

Department 50