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  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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                                1 MARK S. KANNETT, SBN/104572
PAUL S. LECKY, SBN.154480
2 | BECHERER KANNETT & SCHWEITZER ELECTRONICALLY
The Water Tower FILED
3 1255 Powell Street Superior Court of California,
4 Emeryville, CA 94608-2604 County of San Francisco
Telephone: (510) 658-3600 OCT 07 2010
5 Facsimile: (510) 658-1151 Clerk of the Court
BY: EDNALEEN JAVIER
6 Attorneys for Defendant Deputy Clerk
JOHNSON CONTROLS, INC.
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SAN FRANCISCO-COURT OF UNLIMITED JURISDICTION
9 :
10 LOUIS CASTAGNA, CASE NO.: CGC 07 -— 274230
11 Plaintiff, MOTION IN LIMINE NO. 2
12 Vv. DEFENDANT JOHNSON CONTROLS,
INC.’S MOTION IN LIMINE FOR AN
13 ASBESTOS DEFENDANTS (B*P), et al. ORDER DISCLOSING THE AMOUNTS,
TERMS AND SOURCES OF ALL PRIOR
14 Defendants. SETTLEMENTS; OR IN THE
ALTERNATIVE, PRECLUDING EVIDENCE
15 OF DAMAGES
16
17 Compliant Filed: June 6, 2007
Trial: October 12, 2010
18
19
20 Defendant JOHNSON CONTROLS, INC. ("JCI") hereby moves, before the start of the
21 | trial and before the selection of a jury, for an order to compel Plaintiff to disclose the amounts,
22 | terms and sources of all prior settlements in this case.
23 | iti
Kennett 24 | ///
Schweitzer
25} i1/
1255
Eregaie,ca 26 7 /f/
Srv 658-3600
27 | itt
28
1 “
MIL NO.: 2 DEF JOHNSON CONTROLS, INC.’'S MOTION IN LIMINE FOR AN ORDER DISCLOSING THE AMOUNTS, TERMS 4
AND SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGESBecherer
Kannett &
Schweitzer

1285
Powell St.
Emeryville, CA
94608
510-658-3600

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L INTRODUCTION

Plaintiff has sued multiple defendants in this asbestos lawsuit and many defendants
have settled. JCI and the other defendants are entitled to know the amounts, terms and
sources of all prior settlements in this case because:

(1) in order to engage in meaningful settlement negotiations, it must be in the same
informed state as counsel for plaintiff regarding the settlements in the case;

(2) JCI must be able to determine whether the existing settlements would be likely
to completely offset any damages assessed against a non-settling joint tortfeasor in this case;
and .

(3) JCI must be able to determine any possible biases of witnesses who may be
called to testify by either the plaintiffs or other defendants at trial.

I PRIOR SETTLEMENTS REDUCE THE PLAINTIFF’S CLAIM AGAINST OTHERS

Public policy prohibits Plaintiff from obtaining a double recovery for any single injury.
(Fletcher v. California Portland Cement Co, (1979) 99 Cal.App.3d 97, 99; Milicevich v.
Sacramento Medical Center (1984) 155 Cal.App.3d 997.) Moreover, California Code of Civil
Procedure Section 877(a) provides that when a release or dismissal has been given to a co-
defendant allegedly at fault for the same tort, prior to a verdict or judgment, "it shall not
discharge any other party 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 greater.”

Simply stated, the amount of Plaintiff's judgment against non-settling tortfeasors must
be reduced by the amount of all prior settlements. (Arbuthnot v. Relocation Realty Service Corp.
(1991) 227 Cal.App.3d 682, 689.) "Where a plaintiff's settlement completely offsets the
damages assessed against a non-settling joint tortfeasor, it reduces the judgment to zero by
operation of law." (Syverson v. Heitman (1985) 171 Cal.App.3d 106, 112.) It is the amount the
plaintiff has recovered in settlement from settling defendants that diminishes the plaintiff's

recovery, not the amount measured by the settling defendants' proportionate responsibility for

2

MIL NO.: 2: DEF JOHNSON CONTROLS, INC.’S MOTION {N LIMINE FOR AN ORDER DISCLOSING THE AMOUNTS, TERMS yl
AND SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGESBecherer
Kannett &
Schweitzer

510-658-3600

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the injury. (See McGee v. Cessna Aircraft Co. (1978) 82 Cal.App.3d 1005, 1021-1022.)
Additionally, a non-settling defendant is entitled to a credit against the verdict for the costs
waived by dismissed defendants. (See Armstrong World Industries, Inc. v. Superior Court
(1989) 215 Ca1,App.3d 951, 955-957.)

The purpose of Code of Civil Procedure section 877 is to promote settlement and the
equitable sharing of costs among joint tortfeasors. (See Abbot Ford v. Superior Court (1987) 43
Cal.3d 858, 871-872; Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231, 236.) Defendants
must be provided with the amounts and sources of prior settlements in order to intelligently
engage in settlement negotiations and comply with the public policy behind § 877. Moreover,
Defendant, as a non-settled defendant, has a "palpable financial interest” in this information. As
explained by the Court of Appeal in River Garden Farms, Inc. v. Superior Court (1982) 26
Cal.App.3d 986, 993:

Each prejudgment settlement effects the ultimate expense borne by
each judgment debtor. Absent a prejudgment settlement, all
defendants found liable would share pro rata, that is, equally, by
settling before verdict. One defendant may acquit himself by
contributing something less than his equal share, leaving the other
defendants saddled with the entire judgment less pro tanto credit for
the settlement. The cheaper the settlement, the smaller the pro tanto
credit. Thus, a non-negotiating defendant has a palpable financial
interest in the amount at which the negotiating defendant settles.

Finally, JCI and all the other defendants have a right to determine whether any
witnesses called by the Plaintiff or co-defendants have a bias on existing settlements.
(Moreno v. Sayre (1984) 162 Cal.App.3d 116. ("While evidence of a settlement agreement
is inadmissible to prove liability ... it is admissible to show bias or prejudice of an adverse
party.") Accord, Zelayeta v. Pacific Greyhound Lines (1951) 104 CalApp.2d 716, 729.)

Thus, JCI has the right to be informed of all existing settlements, including the terms,
source and amount of each settlement, in order to: (1) engage in intelligent settlement
negotiations; (2) determine whether any ultimate judgment against it would be completely offset

by existing settlements; and (3) to determine whether any witness called by the plaintiffs or co-

3

MIL NO.: 2: DEF JOHNSON CONTROLS, INC.’S MOTION IN LIMINE FOR AN ORDER DISCLOSING THE AMOUNTS, TERMS =

AND SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGESBecherer
Kannett &
‘Schweitzer

1285

Powell St

Emeryville, CA
1608

910-658-600

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defendants have a bias based on existing settlements.

Tt. ALTERNATIVELY, THE COURT SHOULD PRECLUDE INTRODUCTION OF
EVIDENCE OF DAMAGES

San Francisco Superior Court General Order No. 154(3) provides that "no
later than 10 days prior to the date set for the asbestos settlement conference”
counsel for Plaintiff shall provide a Case Status Report, which must include "[a]
summary of prior settlements obtained in the case (with confidential settlements
listed without identification of the settling party)."

As of the filing of this motion, to date, plaintiff has failed to provide defendants with a
summary of settlements. JCI needs to know the accurate and current amount of prior
settlements in this matter to properly assess risk of litigation and defend itself during litigation.
Prior settlement information is needed to evaluate the issues presented in this case, including
damages, among others.

Additionally, pursuant to Proposition 51, all defendants are entitled to know the amount
of the settlement and the settling party.

Plaintiff should either comply with his obligation to produce evidence of his
settlements, or be precluded from adducing evidence of their damages.

Iv. CONCLUSION

Based on the foregoing, as well as any evidence and argument introduced at the

hearing on this matter, JCI respectfully requests that the court issue an order directing

Plaintiff to immediately disclose the sources and amounts of all existing settlements to

date.
Dated: October 6, 2010 BECHERER KANNETT & SCHWEITZER
Paul S. Lecky

Attorneys for Defendant
JOHNSON CONTROLS, INC.

4

MIL NO.: 2: DEF JOHNSON CONTROLS, INC.'S MOTION IN LIMINE FOR AN ORDER DISCLOSING THE AMOUNTS, TERMS
AND SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGESee

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

1, Sonjua R. Fisher, declare that | 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 | am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.

On October 7, 2010, | electronically served the document(s) via LexisNexis File & Serve
described as:

MOTION IN LIMINE NO. 2
DEFENDANT JOHNSON CONTROLS, INC.’S MOTION JN LIMINE FOR AN ORDER

DISCLOSING THE AMOUNTS, TERMS AND SOURCES OF ALL PRIOR SETTLEMENTS; OR
IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGES

oO on A a fF WN

on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve
10 |. website.

11 | declare under penalty of perjury purs!
foregoing is true and correct and that this de
12 | Emeryville, California.

if to the laws of the State of California that the

Becherer
Kannett & 24
Schweitzer

510-658-3600

5
MIL NO.: 2: DEF JOHNSON CONTROLS, INC.'S MOTION IN LIMINE FOR AN ORDER DISCLOSING THE AMOUNTS, TERMS 3

AND SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGES