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  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview 
						
                                
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                                LLP

KNOX RICKSEN

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Kenneth J. McCarthy - SBN 120875
Gregory D. Pike - SBN 124847

KNOX RICKSEN LLP ELECTRONICALLY

1300 Clay Street, Suite 500

Oakland, CA 94612-1427 sopeh wilt ED

Teepe 28m Sinai
. AUG 24 2010

Attorneys for Defendant Clerk of the Court

BIGGE CRANE AND RIGGING CO. BY: WILLIAM TRUPEK

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO

LAURANCE HAGEN, No. CGC-10-275582
Plaintiff, DEFENDANT BIGGE CRANE AND
RIGGING CO.’S OBJECTION TO
v. PLAINTIFF’S OFFER TO
COMPROMISE

ASBESTOS DEFENDANTS (BP). et al.,

Defendants,

Defendant BIGGE CRANE AND RIGGING CO., hereby objects to plaintiff's Offer to
Compromise pursuant to Code of Civil Procedure section 998 on the grounds that it is premature
and made in bad faith. At the date at which the offer was made, and at the date of this objection,
defendant does not have sufficient facts or information to determine whether the offer is reasonable.

Section 998 was enacted to encourage settlement of lawsuits prior to trial and to punish
parties that fail to accept reasonable offers. See T.M. Cobb Co. v. Superior Court, (1984) 36 Cal. 3d
273, 280. No party is expected to accept an unreasonable offer, however, or one not made in good
faith. Elrod v. Oregon Cummins Diesel, Inc., (1987) 195 Cal.App. 3d 692, 698-99. The
reasonableness of an offer is determined by the information known or the information that
reasonably should have been known to the offeree when. the offer is made. /d. at 699. Furthermore,
if a party makes a section 998 offer to compromise with the knowledge that the offeree lacks
information necessary to evaluate the offer, the offer was not made in good faith. Jd. at 700. As the

court of appeal stated in Wear v. Calderon, (1981) 121 Cal. App. 3d 818, 821, “we believe that in

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BIGGE CRANE AND RIGGING CO.’S OBJECTION TO PLAINTIFF’S OFFER TO COMPROMISELLP

KNOX RICKSEN

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order to accomplish the legislative purpose of encouraging settlement of litigation without trial (see
Brown v. Nolan (1979) 98 Cal.App.3d 445, 449), a good faith requirement must be read into section
998.” In other words, the pretrial offer of settlement required under section 998 must be
realistically reasonable under the circumstances of the particular case.

Accordingly, an offer that is either unreasonable or made with a lack of good faith is not a
valid section 998 Offer to Compromise; such and offer cannot serve as the basis for applying the
cost-and fee-shifting provisions of section 998. Elrod, supra, 195 Cal.App.3d at 698-99. By
extension, such an offer also is ineffective to invoke the prejudgment interest penalty provided in
section 3291 of the Civil Code and require payment of offeror’s expert witness fees.

The parties have not completed depositions of plaintiff, percipient witnesses, or expert
witnesses. This discovery is absolutely essential to evaluate the merits of plaintiffs claims and to
determine the unreasonableness of the offer to compromise. Therefore, defendant lacks the
requisite information to accurately determine the reasonableness of the offer. In short, the status of]
this case is now so unclear and the offer so premature that defendant cannot yet determine whether
plaintiff's claims have any reasonable settlement value at all. Plaintiff is aware of the incomplete
status of the discovery, but has served a Section 998 offer nonetheless. Therefore, defendant objects
to plaintiff's section 998 Offer to Compromise on the basis that it is unreasonable, not made in good
faith, and hence invalid.

DATED: August 23, 2010 KNOX RICKSEN LLP

By:_/s/ Gregory D. Pike.

Gregory D. Pike

Attorneys for Defendant

BIGGE CRANE AND RIGGING CO.

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BIGGE CRANE AND RIGGING CO.’S OBJECTION TO PLAINTIFF’S OFFER TO COMPROMISELLP

KNOX RICKSEN

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Re: Hagen v. Asbestos Defendants (BP), et al.
San Francisco Superior Court No. CGC-10-275582

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, the undersigned, declare: that I am and was at the time of service of the documents herein referred

to, over the age of 18 years, and not a party to the action; and I am employed in the County of
Alameda, California. My business address is 1300 Clay Street, Suite 500, Oakland, California
94612-1427.

On the date executed below, 1 electronically served the document(s) via LexisNexis File & Serve
described as:

BIGGE CRANE AND RIGGING CO.’S OBJECTION TO PLAINTIFF’S OFFER TO
COMPROMISE

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. | declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and was executed on August 24, 2010, at Oakland, California.

/s/ Nicholas J, Bertolino
Nicholas J, Bertolino

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BIGGE CRANE AND RIGGING CO.’S OBJECTION TO PLAINTIFF’S OFFER TO COMPROMISE