Preview
1 ROGERS JOSEPH O’DONNELL
James Robert Maxwell (State Bar No. 143203)
2 jmaxwell@rjo.com
311 California Street ELECTRONICALLY
3 San Francisco, California 94104
Telephone: 415.956.2828 FILED
4 Facsimile: 415.956.6457 Superior Court of California,
County of San Francisco
5 Attorneys for Defendant 08/28/2020
Clerk of the Court
ALMAR SALES CO., INC. BY: EDWARD SANTOS
6 Deputy Clerk
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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11 PRECILA BALABBO,, Case No. CGC-20-583875
12 Plaintiff, DEFENDANT ALMAR SALES CO.,
INC.’S ANSWER TO PLAINTIFF’S
13 vs. FIRST AMENDED COMPLAINT FOR
CIVIL PENALTIES AND INJUNCTIVE
14 CVS PHARMACY, INC., et al., RELIEF
15 Defendants.
16 Date of first filing: March 20, 2020
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Defendant ALMAR SALES CO., INC. (“Defendant”), hereby answers Plaintiff
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PRECILA BALABBO’S (“Plaintiff”) First Amended Complaint for Civil Penalties and
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Injunctive Relief (the “Complaint”) as follows:
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GENERAL DENIAL
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Pursuant to California Code of Civil Procedure Section 431.30, Defendant
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generally and specifically denies each and every allegation in the Complaint, and specifically
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denies that any penalty should be assessed or injunction entered against Defendant, denies
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that Plaintiff is entitled to any attorneys’ fees or costs of suit, and denies that Defendant has
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1 injured or damaged Plaintiff or the general public in any manner or amount whatsoever, or at
2 all.
3 FIRST AFFIRMATIVE DEFENSE
4 (Failure To State Facts To Constitute A Cause Of Action)
5 The Complaint fails to state facts sufficient to constitute a cause of action
6 against Defendant.
7 SECOND AFFIRMATIVE DEFENSE
8 (Statutes of Limitations)
9 The Complaint, and each claim for relief therein, is barred and/or limited by the
10 applicable statutes of limitations, including but not limited to, California Code of Civil
11 Procedure Sections 338, 340, and/or 343.
12 THIRD AFFIRMATIVE DEFENSE
13 (Scientific Standards Unreliable)
14 At all times relevant therein, the exposure limits and science underlying the
15 warning requirements alleged in the Complaint were, and continue to be, scientifically
16 untrustworthy and unreliable and, for this reason, the Complaint fails to state facts sufficient
17 to constitute a cause of action against Defendant.
18 FOURTH AFFIRMATIVE DEFENSE
19 (No Knowing And Intentional Exposure Of Any Individual)
20 Defendant has not violated California Health & Safety Code Section 25249.6
21 because, in the course of doing business, neither it, nor its agents or employees, has
22 knowingly and intentionally exposed any individual to a chemical known to the State of
23 California to cause cancer or reproductive toxicity.
24 FIFTH AFFIRMATIVE DEFENSE
25 (Primary Jurisdiction)
26 The Complaint should be stayed or dismissed pursuant to the doctrine of
27 primary jurisdiction as set forth in Farmers Ins. Exch. v. Superior Court, 2 Cal. 4th 377, 386,
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1 826 P.2d 730, 735 (1992), as an agency of the United States has primary jurisdiction over the
2 subject matter contained in Plaintiff's Complaint.
3 SIXTH AFFIRMATIVE DEFENSE
4 (Lack of Exposure)
5 Defendant is exempt from the application of Health & Safety Code Section
6 25249.6 pursuant to Health & Safety Code Section 25249.10(c) and its implementing
7 regulations, because any exposure to the subject products poses no significant risk of cancer
8 and no observable reproductive effect as therein defined, and/or is below the maximum-
9 allowable-daily-dose level. Further, any alleged exposure falls within the “safe harbor level”
10 established by Title 27 of the California Code of Regulations Section 25701 et seq. so that
11 there is no duty to warn.
12 SEVENTH AFFIRMATIVE DEFENSE
13 (Reasonable Warnings Provided)
14 Defendant has provided clear and reasonable warnings within the meaning of
15 Health & Safety Code Sections 25249.6, 25249.11, and Title 27, Article 6 of the California
16 Code of Regulations when required to do so.
17 EIGHTH AFFIRMATIVE DEFENSE
18 (Adequate Warnings)
19 Plaintiff’s claims are barred, in whole or in part, to the extent that members of
20 the general public are and/or have been warned of the potential exposure to the chemicals and
21 compounds that are the subject of the Complaint.
22 NINTH AFFIRMATIVE DEFENSE
23 (Action Not In Public Interest)
24 Plaintiff is not authorized to bring this action because it is not in the public
25 interest as required under Health & Safety Code § 25249.7(d).
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1 TENTH AFFIRMATIVE DEFENSE
2 (Failure to Notify Defendant)
3 Plaintiff failed to provide adequate and sufficient notice to Defendant of the
4 alleged violation that is the subject of this action at least 60 days in advance of filing the
5 Complaint, as required by Health & Safety Code Section 25249.7(d)(1).
6 ELEVENTH AFFIRMATIVE DEFENSE
7 (Failure to Notify Enforcement Agencies)
8 Plaintiff failed to provide notice to the Attorney General of the State of
9 California and the appropriate District Attorneys and City Attorneys prior to filing this action
10 against Defendant, at least 60 days prior to filing, as required by Health & Safety Code
11 Section 25249.7(d)(1).
12 TWELFTH AFFIRMATIVE DEFENSE
13 (Inadequate Notice to Enforcement Agencies)
14 Any notice which Plaintiff provided to the Attorney General of the State of
15 California and the appropriate District Attorneys and City Attorneys prior to filing this action
16 against Defendant (the fact of which Defendant denies) was inadequate and failed to satisfy
17 the requirements of Health & Safety Code Section 25249.7(d)(1).
18 THIRTEENTH AFFIRMATIVE DEFENSE
19 (Lack of Standing)
20 To the extent Plaintiff purports to seek relief on behalf of members of the
21 general public who have suffered no damages, the Complaint and each of its claims for relief
22 are beyond the standing conferred upon private plaintiffs pursuant to the citizen suit provision
23 of the California Health and Safety Code§§ 25249.5 et seq.
24 FOURTEENTH AFFIRMATIVE DEFENSE
25 (Inadequate Certificate of Merit)
26 To the extent that a cause of action in the Complaint is based upon Health &
27 Safety Code Section 25249.6 et seq., Plaintiff is barred from proceeding with the cause of
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1 action because Plaintiff’s certificate of merit is inadequate and fails to satisfy the
2 requirements of Health & Safety Code Section 25249.7.
3 FIFTEENTH AFFIRMATIVE DEFENSE
4 (Product Misuse)
5 Each cause of action is barred because any exposure to a significant amount of
6 Proposition 65 substances resulted from misuse of the products.
7 SIXTEENTH AFFIRMATIVE DEFENSE
8 (Conduct)
9 Defendant’s conduct is, and at all times since prior to the filing of the
10 Complaint has been, in full compliance with all laws and government regulations, including
11 the requirements of Health & Safety Code Section 25249.6 and its implementing regulations,
12 or is in substantial compliance with them.
13 SEVENTEENTH AFFIRMATIVE DEFENSE
14 (Estoppel and Res Judicata)
15 Each cause of action is barred by the doctrines of estoppel and/or res judicata
16 to the extent the parties and issues seeking to be litigated in this action have been litigated in
17 other actions resulting in consent judgments covering the same products and/or chemicals.
18 EIGHTEENTH AFFIRMATIVE DEFENSE
19 (Release)
20 The Complaint, and each and every purported cause of action asserted against
21 Defendant, is barred, in whole or in part, to the extent that the claims have been released.
22 NINTEENTH AFFIRMATIVE DEFENSE
23 (Laches)
24 Each cause of action is barred by the doctrine of laches as Plaintiff’s
25 inexcusable and unreasonable delay in filing and serving the action has operated to the
26 detriment and prejudice of Defendant.
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1 TWENTIETH AFFIRMATIVE DEFENSE
2 (Pending Action)
3 Plaintiff is barred from prosecuting this action against Defendant to the extent
4 Plaintiff is prosecuting separate actions against any of Defendant's suppliers on the same
5 cause of action covering the same products.
6 TWENTY-FIRST AFFIRMATIVE DEFENSE
7 (Violation of First Amendment of the Constitution)
8 If Defendant is required to warn in the manner suggested by Plaintiff, such a
9 warning would violate the Defendant's First Amendment right of free speech.
10 TWENTY-SECOND AFFIRMATIVE DEFENSE
11 (Reasonable Ability To Control)
12 The exposures of which Plaintiff has complained do not arise from
13 circumstances reasonably foreseeable to Defendant or its agents or employees and are not
14 within its reasonable ability to control.
15 TWENTY-THIRD AFFIRMATIVE DEFENSE
16 (Conformance to Industry Standards)
17 Defendant’s actions conformed to industry standards and practices and were
18 based upon the state of knowledge existing at the time such actions took place.
19 TWENTY-FOURTH AFFIRMATIVE DEFENSE
20 (Business Justification)
21 The Complaint, and each cause of action therein, is barred because Defendant’s
22 actions at all times were justified and the commercial benefit to the public rendered by
23 Defendant’s actions outweigh the alleged injuries, if any.
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ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND
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1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 (Uncertainty)
3 The Complaint and each cause of action presented are vague, ambiguous, and
4 uncertain with respect to, among other things, which defendants are responsible for which of
5 the multiple products that are the subject of Plaintiff's claims.
6 TWENTY-SIXTH AFFIRMATIVE DEFENSE
7 (Indispensable Parties)
8 Plaintiff has failed to join indispensable parties.
9 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
10 (No Basis For Penalties)
11 Defendant alleges that no individual has suffered any injury through the alleged
12 exposure, and that there is therefore no basis for the imposition of civil penalties.
13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
14 (No Basis For Equitable or Injunctive Relief)
15 Plaintiff is not entitled to equitable relief and no threat of harm exists to
16 support a grant of preliminary or permanent injunctive relief.
17 TWENTY-NINTH AFFIRMATIVE DEFENSE
18 (Due Process)
19 The Complaint, and each and every purported cause of action asserted against
20 Defendant, is barred, in whole or in part, by the Due Process Clause of the Fifth and
21 Fourteenth Amendments of the United States Constitution and Article I, Section 7 of the
22 California Constitution because California Health and Safety Code Sections 25249.5, et seq.
23 (“Proposition 65”) and its implementing regulations do not provide Defendant with adequate
24 notice as to what conduct constitutes a violation. Accordingly, Proposition 65, which
25 Plaintiff attempts to enforce in this action, is impermissibly vague and overbroad on its
26 face. Further, requiring Defendant to prove that any exposure meets the vague, overbroad,
27 and uncertain requirements of Proposition 65 violates Defendant’s due process rights.
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1 THIRTIETH AFFIRMATIVE DEFENSE
2 (Commerce Clause)
3 The Complaint, and each and every purported cause of action asserted against
4 Defendant, is barred, in whole or in part, to the extent that Plaintiff seeks to apply Proposition
5 65 in a manner that could pose an undue and impermissible burden on interstate commerce
6 under the United States Constitution. If Defendant are required to warn in a manner that
7 requires Defendants to use a California-specific warning or keep products not bearing this
8 warning from being sold in California by third parties, this would unduly and impermissibly
9 burden interstate commerce in violation of the United States Constitution.
10 THIRTY-FIRST AFFIRMATIVE DEFENSE
11 (Preemption)
12 Each cause of action is preempted by federal law because each cause of action
13 purports to impose requirements or standards different from those imposed by federal law
14 governing the subject chemicals or subject exposure.
15 THIRTY-SECOND AFFIRMATIVE DEFENSE
16 (Defendant Has Not Caused an Exposure)
17 Each cause of action is barred because Defendant has not caused an exposure
18 to a listed chemical through its sale of the products subject to Plaintiff’s Complaint.
19 THIRTY-THIRD AFFIRMATIVE DEFENSE
20 (Acts And Omissions Of Third Parties)
21 Each cause of action is barred because it arises from acts and omissions of third
22 parties not under the control of Defendant.
23 THIRTY-FOURTH AFFIRMATIVE DEFENSE
24 (Indemnity)
25 If Defendant is found in some manner responsible to Plaintiff for the matters
26 alleged in the Complaint, any such injuries, damages, penalties or other costs were
27 proximately caused and contributed to by the negligence, fault, acts or omissions of other
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1 individuals or entities for whose conduct Defendant is not responsible. By reason of the
2 foregoing, Defendant requests a court declaration of its rights to be indemnified and held
3 harmless by such persons or entities.
4 THIRTY-FIFTH AFFIRMATIVE DEFENSE
5 (Other Applicable Defenses)
6 Defendant hereby adopts and incorporates by this reference any and all other
7 affirmative defenses asserted or to be asserted by any other defendants in this proceeding to
8 the extent Defendant may share in such affirmative defenses.
9 THIRTY-SIXTH AFFIRMATIVE DEFENSE
10 (Assertion Of Additional Defenses)
11 As discovery progresses, other affirmative defenses may become apparent or
12 available. Defendant reserves the right to assert other affirmative defenses as they become
13 apparent or available, to delete affirmative defenses if it becomes apparent that they are not
14 applicable, and to amend this answer accordingly. No affirmative defense is being knowingly
15 or intentionally waived.
16 WHEREFORE Defendant prays:
17 1. That this action and each of the causes of action alleged in the
18 Complaint be dismissed with prejudice;
19 2. That Plaintiff take nothing by way of its Complaint;
20 3. That a judgment in favor of Defendant be entered;
21 4. That Defendant be awarded its costs of suit; and
22 5. For such other relief as the Court deems just and proper.
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Dated: August 27, 2020 ROGERS JOSEPH O'DONNELL
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25
26 By: ________________________
JAMES ROBERT MAXWELL
27 Attorneys for Defendant Almar Sales Co.,
Inc.
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I PROOF OF SERVICE
[c.c.P. $s 1010.6, 1011, I0T-,01 1 3 a, 20 15 . 5, C. R. C. $ $ I . 2 1, 2 .2 60, 2 .3 0 6l
2
I, Richard Mukai, state:
J
My business address is 3 1 1 California Street, 1Oth Floor, San Francisco, CA 941.04. I
4 am employed in the City and County of San Francisco where this service occurs.or mailing
occurr6d.'The envelop6 or package-was placed in the mail at San Francisco, California. I am
5 over the age of eightei:n yedrs anilnot aparty to this action. On August 28,2020,I served the
following documents described as:
6
ALMAR SALES CO., INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR
7 CIVIL PENALTIES AND INJLINCTIVE RELIEF
8 on the following person(s) in this action by placing a true copy thereof enclosed in a sealed
envelope, with fhb postage prepaid, addressed as follows:
9
Jordan Schatz, Esq. Attorneys for Plaintiff
10 Evan J. Smith, Esq.
Ryan P. Cardona, Esq.
11 Brodsky & Smith, LLC
9595 Wilshire Blvd., Ste. 900
t2 Beverly Hills, CA 90212
Telephone: (877) 534-2590
13 Facsimile: (310) 247-0160
Email : jschatz@brodskysmith.com
t4 esmith@brodskysmith. com
15 X BY FIRST CLASS MAIL: I am readily familiar with my firm's practice for
t6
@fcorrespondenceformailing.withtheUnitedStates
will be deposited with the United States
Postal Service, to-wit, th-at correspondence
Postal Service this same day in the ordinary course of business. I sealed said
t7 envelope and placed it for collection and mailing on August 28,2020, following
ordinary business practices.
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t9 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed this date at San
20 Francisco, California.
2l Dated: August 28,2020
M
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1 ROGERS JOSEPH O’DONNELL James Robert Maxwell (State Bar No. 143203) 2 jmaxwell@rjo.com 311 California Street ELECTRONICALLY 3 San Francisco, California 94104 Telephone: 415.956.2828 FILED 4 Facsimile: 415.956.6457 Superior Court of California, County of San Francisco 5 Attorneys for Defendant 08/28/2020 Clerk of the Court ALMAR SALES CO., INC. BY: EDWARD SANTOS 6 Deputy Clerk 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN FRANCISCO 9 10 11 PRECILA BALABBO,, Case No. CGC-20-583875 12 Plaintiff, DEFENDANT ALMAR SALES CO., INC.’S ANSWER TO PLAINTIFF’S 13 vs. FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE 14 CVS PHARMACY, INC., et al., RELIEF 15 Defendants. 16 Date of first filing: March 20, 2020 17 18 19 20 Defendant ALMAR SALES CO., INC. (“Defendant”), hereby answers Plaintiff 21 PRECILA BALABBO’S (“Plaintiff”) First Amended Complaint for Civil Penalties and 22 Injunctive Relief (the “Complaint”) as follows: 23 GENERAL DENIAL 24 Pursuant to California Code of Civil Procedure Section 431.30, Defendant 25 generally and specifically denies each and every allegation in the Complaint, and specifically 26 denies that any penalty should be assessed or injunction entered against Defendant, denies 27 that Plaintiff is entitled to any attorneys’ fees or costs of suit, and denies that Defendant has 28 Page 1 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 injured or damaged Plaintiff or the general public in any manner or amount whatsoever, or at 2 all. 3 FIRST AFFIRMATIVE DEFENSE 4 (Failure To State Facts To Constitute A Cause Of Action) 5 The Complaint fails to state facts sufficient to constitute a cause of action 6 against Defendant. 7 SECOND AFFIRMATIVE DEFENSE 8 (Statutes of Limitations) 9 The Complaint, and each claim for relief therein, is barred and/or limited by the 10 applicable statutes of limitations, including but not limited to, California Code of Civil 11 Procedure Sections 338, 340, and/or 343. 12 THIRD AFFIRMATIVE DEFENSE 13 (Scientific Standards Unreliable) 14 At all times relevant therein, the exposure limits and science underlying the 15 warning requirements alleged in the Complaint were, and continue to be, scientifically 16 untrustworthy and unreliable and, for this reason, the Complaint fails to state facts sufficient 17 to constitute a cause of action against Defendant. 18 FOURTH AFFIRMATIVE DEFENSE 19 (No Knowing And Intentional Exposure Of Any Individual) 20 Defendant has not violated California Health & Safety Code Section 25249.6 21 because, in the course of doing business, neither it, nor its agents or employees, has 22 knowingly and intentionally exposed any individual to a chemical known to the State of 23 California to cause cancer or reproductive toxicity. 24 FIFTH AFFIRMATIVE DEFENSE 25 (Primary Jurisdiction) 26 The Complaint should be stayed or dismissed pursuant to the doctrine of 27 primary jurisdiction as set forth in Farmers Ins. Exch. v. Superior Court, 2 Cal. 4th 377, 386, 28 Page 2 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 826 P.2d 730, 735 (1992), as an agency of the United States has primary jurisdiction over the 2 subject matter contained in Plaintiff's Complaint. 3 SIXTH AFFIRMATIVE DEFENSE 4 (Lack of Exposure) 5 Defendant is exempt from the application of Health & Safety Code Section 6 25249.6 pursuant to Health & Safety Code Section 25249.10(c) and its implementing 7 regulations, because any exposure to the subject products poses no significant risk of cancer 8 and no observable reproductive effect as therein defined, and/or is below the maximum- 9 allowable-daily-dose level. Further, any alleged exposure falls within the “safe harbor level” 10 established by Title 27 of the California Code of Regulations Section 25701 et seq. so that 11 there is no duty to warn. 12 SEVENTH AFFIRMATIVE DEFENSE 13 (Reasonable Warnings Provided) 14 Defendant has provided clear and reasonable warnings within the meaning of 15 Health & Safety Code Sections 25249.6, 25249.11, and Title 27, Article 6 of the California 16 Code of Regulations when required to do so. 17 EIGHTH AFFIRMATIVE DEFENSE 18 (Adequate Warnings) 19 Plaintiff’s claims are barred, in whole or in part, to the extent that members of 20 the general public are and/or have been warned of the potential exposure to the chemicals and 21 compounds that are the subject of the Complaint. 22 NINTH AFFIRMATIVE DEFENSE 23 (Action Not In Public Interest) 24 Plaintiff is not authorized to bring this action because it is not in the public 25 interest as required under Health & Safety Code § 25249.7(d). 26 /// 27 /// 28 Page 3 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 TENTH AFFIRMATIVE DEFENSE 2 (Failure to Notify Defendant) 3 Plaintiff failed to provide adequate and sufficient notice to Defendant of the 4 alleged violation that is the subject of this action at least 60 days in advance of filing the 5 Complaint, as required by Health & Safety Code Section 25249.7(d)(1). 6 ELEVENTH AFFIRMATIVE DEFENSE 7 (Failure to Notify Enforcement Agencies) 8 Plaintiff failed to provide notice to the Attorney General of the State of 9 California and the appropriate District Attorneys and City Attorneys prior to filing this action 10 against Defendant, at least 60 days prior to filing, as required by Health & Safety Code 11 Section 25249.7(d)(1). 12 TWELFTH AFFIRMATIVE DEFENSE 13 (Inadequate Notice to Enforcement Agencies) 14 Any notice which Plaintiff provided to the Attorney General of the State of 15 California and the appropriate District Attorneys and City Attorneys prior to filing this action 16 against Defendant (the fact of which Defendant denies) was inadequate and failed to satisfy 17 the requirements of Health & Safety Code Section 25249.7(d)(1). 18 THIRTEENTH AFFIRMATIVE DEFENSE 19 (Lack of Standing) 20 To the extent Plaintiff purports to seek relief on behalf of members of the 21 general public who have suffered no damages, the Complaint and each of its claims for relief 22 are beyond the standing conferred upon private plaintiffs pursuant to the citizen suit provision 23 of the California Health and Safety Code§§ 25249.5 et seq. 24 FOURTEENTH AFFIRMATIVE DEFENSE 25 (Inadequate Certificate of Merit) 26 To the extent that a cause of action in the Complaint is based upon Health & 27 Safety Code Section 25249.6 et seq., Plaintiff is barred from proceeding with the cause of 28 Page 4 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 action because Plaintiff’s certificate of merit is inadequate and fails to satisfy the 2 requirements of Health & Safety Code Section 25249.7. 3 FIFTEENTH AFFIRMATIVE DEFENSE 4 (Product Misuse) 5 Each cause of action is barred because any exposure to a significant amount of 6 Proposition 65 substances resulted from misuse of the products. 7 SIXTEENTH AFFIRMATIVE DEFENSE 8 (Conduct) 9 Defendant’s conduct is, and at all times since prior to the filing of the 10 Complaint has been, in full compliance with all laws and government regulations, including 11 the requirements of Health & Safety Code Section 25249.6 and its implementing regulations, 12 or is in substantial compliance with them. 13 SEVENTEENTH AFFIRMATIVE DEFENSE 14 (Estoppel and Res Judicata) 15 Each cause of action is barred by the doctrines of estoppel and/or res judicata 16 to the extent the parties and issues seeking to be litigated in this action have been litigated in 17 other actions resulting in consent judgments covering the same products and/or chemicals. 18 EIGHTEENTH AFFIRMATIVE DEFENSE 19 (Release) 20 The Complaint, and each and every purported cause of action asserted against 21 Defendant, is barred, in whole or in part, to the extent that the claims have been released. 22 NINTEENTH AFFIRMATIVE DEFENSE 23 (Laches) 24 Each cause of action is barred by the doctrine of laches as Plaintiff’s 25 inexcusable and unreasonable delay in filing and serving the action has operated to the 26 detriment and prejudice of Defendant. 27 /// 28 Page 5 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (Pending Action) 3 Plaintiff is barred from prosecuting this action against Defendant to the extent 4 Plaintiff is prosecuting separate actions against any of Defendant's suppliers on the same 5 cause of action covering the same products. 6 TWENTY-FIRST AFFIRMATIVE DEFENSE 7 (Violation of First Amendment of the Constitution) 8 If Defendant is required to warn in the manner suggested by Plaintiff, such a 9 warning would violate the Defendant's First Amendment right of free speech. 10 TWENTY-SECOND AFFIRMATIVE DEFENSE 11 (Reasonable Ability To Control) 12 The exposures of which Plaintiff has complained do not arise from 13 circumstances reasonably foreseeable to Defendant or its agents or employees and are not 14 within its reasonable ability to control. 15 TWENTY-THIRD AFFIRMATIVE DEFENSE 16 (Conformance to Industry Standards) 17 Defendant’s actions conformed to industry standards and practices and were 18 based upon the state of knowledge existing at the time such actions took place. 19 TWENTY-FOURTH AFFIRMATIVE DEFENSE 20 (Business Justification) 21 The Complaint, and each cause of action therein, is barred because Defendant’s 22 actions at all times were justified and the commercial benefit to the public rendered by 23 Defendant’s actions outweigh the alleged injuries, if any. 24 /// 25 /// 26 /// 27 /// 28 Page 6 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (Uncertainty) 3 The Complaint and each cause of action presented are vague, ambiguous, and 4 uncertain with respect to, among other things, which defendants are responsible for which of 5 the multiple products that are the subject of Plaintiff's claims. 6 TWENTY-SIXTH AFFIRMATIVE DEFENSE 7 (Indispensable Parties) 8 Plaintiff has failed to join indispensable parties. 9 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 10 (No Basis For Penalties) 11 Defendant alleges that no individual has suffered any injury through the alleged 12 exposure, and that there is therefore no basis for the imposition of civil penalties. 13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 14 (No Basis For Equitable or Injunctive Relief) 15 Plaintiff is not entitled to equitable relief and no threat of harm exists to 16 support a grant of preliminary or permanent injunctive relief. 17 TWENTY-NINTH AFFIRMATIVE DEFENSE 18 (Due Process) 19 The Complaint, and each and every purported cause of action asserted against 20 Defendant, is barred, in whole or in part, by the Due Process Clause of the Fifth and 21 Fourteenth Amendments of the United States Constitution and Article I, Section 7 of the 22 California Constitution because California Health and Safety Code Sections 25249.5, et seq. 23 (“Proposition 65”) and its implementing regulations do not provide Defendant with adequate 24 notice as to what conduct constitutes a violation. Accordingly, Proposition 65, which 25 Plaintiff attempts to enforce in this action, is impermissibly vague and overbroad on its 26 face. Further, requiring Defendant to prove that any exposure meets the vague, overbroad, 27 and uncertain requirements of Proposition 65 violates Defendant’s due process rights. 28 Page 7 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 THIRTIETH AFFIRMATIVE DEFENSE 2 (Commerce Clause) 3 The Complaint, and each and every purported cause of action asserted against 4 Defendant, is barred, in whole or in part, to the extent that Plaintiff seeks to apply Proposition 5 65 in a manner that could pose an undue and impermissible burden on interstate commerce 6 under the United States Constitution. If Defendant are required to warn in a manner that 7 requires Defendants to use a California-specific warning or keep products not bearing this 8 warning from being sold in California by third parties, this would unduly and impermissibly 9 burden interstate commerce in violation of the United States Constitution. 10 THIRTY-FIRST AFFIRMATIVE DEFENSE 11 (Preemption) 12 Each cause of action is preempted by federal law because each cause of action 13 purports to impose requirements or standards different from those imposed by federal law 14 governing the subject chemicals or subject exposure. 15 THIRTY-SECOND AFFIRMATIVE DEFENSE 16 (Defendant Has Not Caused an Exposure) 17 Each cause of action is barred because Defendant has not caused an exposure 18 to a listed chemical through its sale of the products subject to Plaintiff’s Complaint. 19 THIRTY-THIRD AFFIRMATIVE DEFENSE 20 (Acts And Omissions Of Third Parties) 21 Each cause of action is barred because it arises from acts and omissions of third 22 parties not under the control of Defendant. 23 THIRTY-FOURTH AFFIRMATIVE DEFENSE 24 (Indemnity) 25 If Defendant is found in some manner responsible to Plaintiff for the matters 26 alleged in the Complaint, any such injuries, damages, penalties or other costs were 27 proximately caused and contributed to by the negligence, fault, acts or omissions of other 28 Page 8 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 1 individuals or entities for whose conduct Defendant is not responsible. By reason of the 2 foregoing, Defendant requests a court declaration of its rights to be indemnified and held 3 harmless by such persons or entities. 4 THIRTY-FIFTH AFFIRMATIVE DEFENSE 5 (Other Applicable Defenses) 6 Defendant hereby adopts and incorporates by this reference any and all other 7 affirmative defenses asserted or to be asserted by any other defendants in this proceeding to 8 the extent Defendant may share in such affirmative defenses. 9 THIRTY-SIXTH AFFIRMATIVE DEFENSE 10 (Assertion Of Additional Defenses) 11 As discovery progresses, other affirmative defenses may become apparent or 12 available. Defendant reserves the right to assert other affirmative defenses as they become 13 apparent or available, to delete affirmative defenses if it becomes apparent that they are not 14 applicable, and to amend this answer accordingly. No affirmative defense is being knowingly 15 or intentionally waived. 16 WHEREFORE Defendant prays: 17 1. That this action and each of the causes of action alleged in the 18 Complaint be dismissed with prejudice; 19 2. That Plaintiff take nothing by way of its Complaint; 20 3. That a judgment in favor of Defendant be entered; 21 4. That Defendant be awarded its costs of suit; and 22 5. For such other relief as the Court deems just and proper. 23 Dated: August 27, 2020 ROGERS JOSEPH O'DONNELL 24 25 26 By: ________________________ JAMES ROBERT MAXWELL 27 Attorneys for Defendant Almar Sales Co., Inc. 28 Page 9 ALMAR SALES CO., INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF - Case No. CGC-20-583875 516084.1 I PROOF OF SERVICE [c.c.P. $s 1010.6, 1011, I0T-,01 1 3 a, 20 15 . 5, C. R. C. $ $ I . 2 1, 2 .2 60, 2 .3 0 6l 2 I, Richard Mukai, state: J My business address is 3 1 1 California Street, 1Oth Floor, San Francisco, CA 941.04. I 4 am employed in the City and County of San Francisco where this service occurs.or mailing occurr6d.'The envelop6 or package-was placed in the mail at San Francisco, California. I am 5 over the age of eightei:n yedrs anilnot aparty to this action. On August 28,2020,I served the following documents described as: 6 ALMAR SALES CO., INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR 7 CIVIL PENALTIES AND INJLINCTIVE RELIEF 8 on the following person(s) in this action by placing a true copy thereof enclosed in a sealed envelope, with fhb postage prepaid, addressed as follows: 9 Jordan Schatz, Esq. Attorneys for Plaintiff 10 Evan J. Smith, Esq. Ryan P. Cardona, Esq. 11 Brodsky & Smith, LLC 9595 Wilshire Blvd., Ste. 900 t2 Beverly Hills, CA 90212 Telephone: (877) 534-2590 13 Facsimile: (310) 247-0160 Email : jschatz@brodskysmith.com t4 esmith@brodskysmith. com 15 X BY FIRST CLASS MAIL: I am readily familiar with my firm's practice for t6 @fcorrespondenceformailing.withtheUnitedStates will be deposited with the United States Postal Service, to-wit, th-at correspondence Postal Service this same day in the ordinary course of business. I sealed said t7 envelope and placed it for collection and mailing on August 28,2020, following ordinary business practices. 18 t9 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed this date at San 20 Francisco, California. 2l Dated: August 28,2020 M 22 23 24 25 26 27 28 Page l0 ALMAR SALES CO., INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INruNCTIVE RELIEF - Case No. CGC-20-583875 5 I 6084. I