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MORGAN, Lewis &
Bocius LLP
Avtonneys AT LAW
SAN FRANCISCO
MORGAN, LEWIS & BOCKIUS LLP
JOSEPH DUFFY, State Bar No. 241854
joseph.duffy@morganlewis.com
AMY J. TALARICO, State Bar No. 209112
amy.talarico@morganlewis.com
MARISA R. CHAVES, State Bar No. 236533
marisa.chaves@morganlewis.com
One Market, Spear Street Tower
San Francisco, CA 94105-1126
Tel: 415.442.1000
Fax: 415.442.1001
Attorneys for Defendant
JOHNSON CONTROLS, INC.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
11/15/2019
Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
WILLIAM MINGRAM, as Successor-in-
Interest to and as Wrongful Death Heir of
ROBERT MILGRAM, Deceased,
Plaintiffs,
vs.
RILEY POWER INC.), et al.,
Defendants.
Case No. CGC-19-276801
DEFENDANT JOHNSON CONTROLS,
INC.’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR SURVIVAL,
WRONGFUL DEATH — ASBESTOS
Case No. CGC-19-276801
DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT
FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
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JOHNSON CONTROLS, INC. (“Defendant” or “Johnson Control”), answers Plaintiffs’
Complaint for Survival, Wrongful Death — Asbestos (“Complaint”) as follows:
Under the provisions of Section 431.30(d), California Code of Civil Procedure, Defendant
denies each and every allegation of Plaintiffs’ Complaint and the whole thereof, and denies that
Plaintiffs have been damaged in any sum or amount whatsoever, or at all.
Whenever “Plaintiff” or “Plaintiffs” is used in this Answer, that reference embraces each
Plaintiff individually as well as collectively, plus the words “each of them.”
FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each of its purported causes of action alleged therein fail to state
facts sufficient to constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
applicable statute of limitations, including but not limited to, Code of Civil Procedure sections
337.15, 340.2, 343 and 361, and California Commercial Code section 2725.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs are barred from recovery herein by virtue of the application of the Doctrine of
Laches (inexcusable delay and prejudice to Defendant).
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
equitable Doctrine of Unclean Hands.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
equitable Doctrine of Waiver.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
equitable Doctrine of Estoppel.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the
1 Case No. CGC-19-276801
DEFENDANT JOHNSON CONTROLS, INC,’S ANSWER TO PLAINTIFFS* COMPLAINT
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NY NR YY NY N NR NY Ye wee ewe Be eB eB eB ew ke
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Complaint with full knowledge thereof, thereby proximately causing the injuries and damages, if
any, complained of by Plaintiffs and Plaintiffs are thereby barred from recovery herein.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff acknowledged, ratified, consented to, and/or acquiesced in the alleged acts or
omissions, if any, of this Defendant, thus barring Plaintiffs from any relief as prayed for herein.
NINTH AFFIRMATIVE DEFENSE
Plaintiff was advised, informed, and/or warned of any potential hazards and/or dangers, if
there were any, associated with the normal or foreseeable use, handling, and storage of the
products, substances, and/or equipment described in the Complaint.
TENTH AFFIRMATIVE DEFENSE
If Defendant provided the products alleged to have been defective, and without admitting
that it did so or that any product was defective, Defendant provided such products to distributors
or other intermediaries, including Plaintiff's employers, who were knowledgeable, informed and
sophisticated concerning the use of the products and the alleged risks to the health of ultimate
users, such as Plaintiff, from the use of the products.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ causes of action are barred under Johnson v. American Standard, Inc.,
(2008) 43 Cal. 4th 56, because Plaintiff and/or his employers are sophisticated users.
TWELFTH AFFIRMATIVE DEFENSE
No conduct by or attributable to Defendant was the cause in fact or the proximate cause of
the damages, if any, sustained by Plaintiffs, nor a substantial factor in bringing about said
damages.
THIRTEENTH AFFIRMATIVE DEFENSE
Any exposure of Plaintiff to Defendant’s products was so minimal as to be insufficient to
establish by a reasonable degree of probability that any such product caused any alleged injury,
damage, or loss to Plaintiffs.
FOURTEENTH AFFIRMATIVE DEFENSE
This Defendant’s products were not a substantial factor in bringing about the injuries and
2 Case No, CGC-19-276801
DEFENDANT JOHNSON CONTROLS, INC.°S ANSWER TO PLAINTIFFS” COMPLAINT
DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOSdamages complained of by Plaintiffs, and, therefore, Defendant may not be held liable to
Plaintiffs as alleged.
FIFTEENTH AFFIRMATIVE DEFENSE
That any and all events and happenings in connection with the allegations contained in
Plaintiffs’ Complaint and the resulting injuries and damages, if any, referred to therein, were
proximately caused and contributed to by the negligence of the Plaintiff, thereby barring or
reducing Plaintiffs’ recovery herein.
SIXTEENTH AFFIRMATIVE DEFENSE
Any loss, injury or damage to Plaintiffs was proximately caused or contributed to by the
negligent or other tortious acts, omissions, conduct, or products of persons, entities or parties
other than Defendant, and that each, any, and all damages recoverable by Plaintiffs must be
diminished in proportion to the amount of fault attributable to said other persons, entities or
parties, and there must be apportioned among all such persons, entities, and parties the amount of
damages attributed to them as an offset against damages, if any, awarded against Defendant.
SEVENTEENTH AFFIRMATIVE DEFENSE
Any loss, injury, or damage, if any, incurred by Plaintiffs was the result of superseding or
intervening causes arising from the negligent or willful acts or omissions of other parties which
Defendant neither controlled nor had the right to control, and that said loss, injury or damage was
not proximately or legally caused by any act, omission, or other conduct of Defendant.
EIGHTEENTH AFFIRMATIVE DEFENSE
If Plaintiff sustained any injury or illness attributable to the use of any products and/or
equipment manufactured, sold, or supplied by Defendant, which allegations are expressly denied,
the injuries were solely caused by and attributable to the unreasonable and improper use which
was made of said products and/or equipment, and each of them, by other persons, entities, or
parties whom Defendant neither controlled nor had the right to control.
NINETEENTH AFFIRMATIVE DEFENSE
The product(s) involved was materially altered or changed by a party or parties other than
and without the permission of Defendant, its employees, servants, or other agents, and such
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DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT
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alteration or change created the alleged defect, if any, which was the proximate or legal cause of
Plaintiffs’ injuries or damages, if any.
TWENTIETH AFFIRMATIVE DEFENSE
The state of the medical, scientific, and industrial knowledge and practice was at all
material times such that Defendant neither breached any alleged duty owed Plaintiffs, nor knew,
nor could have known, that its products presented a foreseeable risk of harm to Plaintiffs in the
normal and expected use of such products.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Any products, substances, and/or equipment manufactured, formulated, sold or supplied
by Defendant were made consistent with the state of the art and all health and safety statutes and
regulations applicable to said products, substances, and/or equipment at the time of their
manufacture, sale, formulation, or supply.
TWENTY-SECOND AFFIRMATIVE DEFENSE
The products, substances, and/or equipment referred to in the Complaint were properly
designed and manufactured, and safe for the purpose intended. Said products, substances, and/or
equipment were modified, altered, misused, abused, and/or improperly maintained by Plaintiff or
others, and said conduct was not reasonably foreseeable to Defendant and proximately caused or
contributed to the injuries, losses, and damages complained of, if any, thus barring Plaintiffs’
recovery herein.
TWENTY-THIRD AFFIRMATIVE DEFENSE
The asbestos-containing products, if any, for which Defendant had legal responsibility
were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged,
supplied, marketed, and/or sold in accordance with contract specifications imposed by its co-
defendants, by the U.S. Government, by Plaintiff's employers, and/or by third parties yet to be
identified.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each purported cause of action alleged therein are barred under
the government contractor defense.
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DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS” COMPLAINT
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each cause of action alleged therein, which are admittedly based
upon a lack of identification of the manufacturer(s) and/or supplier(s) of the alleged injury-
causing product(s), fail to state facts sufficient to constitute a cause of action in that Plaintiff have
asserted a claim for relief which, if granted, would contravene Defendant’s constitutional rights to
substantive and procedural due process of law as preserved for Defendant by the Fourteenth
Amendment to the United States Constitution and by Article I section 7, of the Constitution of the
State of California.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ causes of action are barred under O'Neil v. Crane Co., (2012) 53 Cal.4th 335
and Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, among other cases,
because Plaintiffs have not pleaded and cannot show that Plaintiff was exposed to asbestos-
containing products that were manufactured, sold or supplied by Defendant or that were original
to any equipment alleged to be manufactured, sold or supplied by Defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate his damages, if any, in that they failed to use reasonable
diligence in caring for Plaintiff's injuries and reasonable means to prevent their aggravation or to
accomplish their healing.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs failed to give Defendant reasonably prompt notice of the breaches of warranty,
if any, alleged in the Complaint.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Plaintiffs were not in privity of contract with Defendant and said lack of privity bars
Plaintiffs’ recovery herein upon any theory of warranty.
THIRTIETH AFFIRMATIVE DEFENSE
wv
jaintiffs herein have failed to join indispensable parties (California Code of Civil
Procedure section 389) such that the Complaint is defective, and Plaintiffs are thereby precluded
from any recovery whatsoever as prayed for herein.
5 Case No. CGC-19-276801
DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS” COMPLAINT
DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOSTHIRTY-FIRST AFFIRMATIVE DEFENSE
To the extent the Complaint asserts Defendant’s alleged “alternative,” “market share,” or
“enterprise” liability, the Complaint fails to state facts sufficient to constitute a cause of action
against Defendant.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint and each cause of action alleged therein fail to state facts sufficient
to constitute a cause of action against Defendant in that Plaintiffs have failed to join a substantial
market share of the producers of the product or products to which Plaintiff was allegedly exposed.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing products that allegedly caused Plaintiff's injuries. Therefore, Defendant may
not be held liable to Plaintiffs based on Defendant’s alleged percentage share of the applicable
market.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs have no standing or right to sue for fraud and conspiracy, breach of warranty,
deceit, or any cause of action under California Civil Code sections 1708-1710, and therefore each
such cause of action in the Complaint, if any, fails to state facts sufficient to constitute a cause of
action against this Defendant.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Fraud and conspiracy do not constitute a separate and distinct form of damages from
general damages. Therefore, the prayer for fraud and conspiracy in addition to general damages
does not sufficiently support or constitute a separate claim for damages against this Defendant,
but is simply cumulative and included in general damages.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ alleged cause of action seeking punitive damages against Defendant, if any,
does not state facts sufficient to constitute a cause of action against this Defendant.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the due process
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DEFENDANT JOHNSON CONTROLS, INC.*S ANSWER TO PLAINTIFFS” COMPLAINT
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clause of the Fourteenth Amendment to the United States Constitution.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the Eighth
Amendment to the United States Constitution, as applied to the States through the Fourteenth
Amendment, prohibiting the imposition of excessive fines.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the “double
jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the
States through the Fourteenth Amendment.
FORTIETH AFFIRMATIVE DEFENSE
To the extent that these words purportedly apply to Defendant, which Defendant denies,
the Complaint does not state sufficient facts constituting “fraud,” “oppression,” or “malice,” as
these terms are used in California Civil Code section 3294.
FORTY-FIRST AFFIRMATIVE DEFENSE
Defendant alleges that California Civil Code Section 3294, ef seq. violates the California
and/or the United States Constitutions because, among other things, it violates the due process
clauses and the equal protection clauses thereof, respectively; it is void because it is vague and
ambiguous; it constitutes an undue burden on interstate commerce; and it violates the Eighth
Amendment to the United States Constitution, and that, therefore, Plaintiffs are barred from any
recovery thereunder.
FORTY-SECOND AFFIRMATIVE DEFENSE
If Defendant is responsible to Plaintiffs, which responsibility is expressly denied,
Defendant shall be liable to Plaintiffs only for the amount of non-economic damages allocated to
each defendant in direct proportion to each defendant’s percentage of fault, if any. (California
Civil Code sections 1431, ef seq.).
FORTY-THIRD AFFIRMATIVE DEFENSE
As between Plaintiffs and Defendant, the law applicable to this action is the law as it
existed during the period Defendant engaged, if at all, in the manufacture, sale, or supply of
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DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT
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asbestos-containing products to which the Plaintiffs claim exposure. It is unlawful, inequitable,
and in violation of Defendant’s contractual, statutory, and constitutional rights to apply principles
of law other than or in a manner different from those which existed for the period in which
Defendant manufactured, sold, or supplied products to which Plaintiffs claim exposure.
FORTY-FOURTH AFFIRMATIVE DEFENSE
Defendant denies any and all liability to the extent that Plaintiffs assert Defendant’s
alleged liability as a successor-in-interest, successor-in-business, successor-in-product line, or a
portion thereof; assign, predecessor, predecessor in business, predecessor in product line, or a
portion thereof; parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial
owner of or member in an entity researching, studying, manufacturing, fabricating, designing,
labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing,
installing, contracting, or installation, repairing, marketing, warranting, re-branding,
manufacturing for others, packaging and advertising a certain substance, the generic name of
which is asbestos.
FORTY-FIFTH AFFIRMATIVE DEFENSE
The court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and each purported cause of action alleged therein against Defendant are
barred by the provisions of California Labor Code sections 3600, ef seq.
FORTY-SIXTH AFFIRMATIVE DEFENSE
At the time and place of the happening of the occurrences and injuries alleged in the
Complaint, and all times material thereto, Plaintiff was employed by various employers, the
names of which are unknown to this Defendant, and working within the course and scope of their
employment. Said employers and Plaintiff were subject to the provisions of the Workers’
Compensation Act of the State of California and Plaintiff was entitled to receive Workers’
Compensation benefits from his employers. Certain sums have been paid to or on behalf of
Plaintiff herein under the applicable provisions of the Labor Code of the State of California. Said
employers and each of them were negligent, careless, and at fault in and about the matters
referred to in the Complaint and such negligence, carelessness, and fault proximately and
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DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT
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concurrently contributed to and caused the happening of the incidents complained of by Plaintiffs,
if there were any. By these premises, any judgment rendered in favor of Plaintiffs herein must be
reduced by any benefits or payments made or to be made to Plaintiff by Plaintiffs employers or
their compensation carrier(s) under Witt vs. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 360
P.2d 641].
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs have received, or in the future may receive, Workers’ Compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, and, in the event Plaintiffs are awarded damages
against Defendant, Defendant claims a credit against this award to the extent that Defendant is
barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that
Plaintiffs have received or may in the future receive.
Each denial of Plaintiffs’ allegations, together with each of Defendant’s allegations,
defenses and factual contentions, all as set forth herein, are hereby specifically identified as
denials, allegations, defenses and factual contentions subject to reasonable opportunity for further
investigation and discovery, as set forth in Code of Civil Procedure section 128.7(b)(3)(4).
WHEREFORE, this Defendant prays that Plaintiffs’ Complaint be dismissed and that
Plaintiffs take nothing by virtue of this Complaint on file herein, for its costs of suit herein
incurred, for appropriate credits and setoffs arising out of any payment of Workers’
Compensation benefits alleged herein, and for any other and further relief as the Court may deem
proper.
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9 Case No. CGC-19-276801
DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS” COMPLAINT
DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOSoe YN DH BR WN
Dated: November 15, 2019 Respectfully submitted,
MORGAN, LEWJS8S’& BOCKIUS LLP
Go o
By
arisa R. Chaves
One Market, Spear ‘ower
San Francisco, CA 94105
(415) 442.1000
SBN 236533
Attorneys for Defendant
JOHNSON CONTROLS, INC.
10 Case No, CGC-19-276801
DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT
DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOS27
Morcan, LEwis &
Bock1us LLP
ATTORNEYS AT La
SAN FRANcIsco
PROOF OF SERVICE
William Mingram, et al. vs. Riley Power Inc., et al.
San Francisco County Superior Court Case No. CGC-19-276801
Iam a resident of the State of California and over the age of eighteen years, and not a
party to the within action; my business address is One Market, Spear Street Tower, San
Francisco, CA 94105-1126. On November 15, 2019, I served the within documents:
DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH — ASBESTOS
BY ELECTRONIC TRANSMISSION: Pursuant to San Francisco Court General
Order No. 158, CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and
Order Authorizing Electronic Service, or by an agreement of the parties, at
approximately 4:30p.m. I electronically eserved through File & ServeXpress and
caused the document(s) to be sent to the person(s) at the email addresses designated
on the Transaction Receipt located on the File & ServeXpress website. To the best
of my knowledge, at the time of the transmission, the transmission was reported as
complete and without error.
&
Executed on November 15, 2019, at San Francisco, California.
I declare under penalty of perjury, under the laws of the State of California and the United
States of America, that the foregoing is true and correct.
Mulehelte.
Paula R. Lesure
Morgan, Lewis & Bockius
One Market, Spear Street Tower
San Francisco, CA 94105
415-442-1000
PROOF OF SERVICE
DB1/ 109732755.1