Preview
1 Douglas G. Wah, Esq. SBN 64692
Nicole B. Yuen, Esq. SBN 184120
2 FOLEY & MANSFIELD, PLLP
ELECTRONICALLY
2185 North California Boulevard, Suite 575
3 Walnut Creek, CA 94596 F I L E D
Telephone: (510) 590-9500 Superior Court of California,
County of San Francisco
4 Facsimile: (510) 590-9595
Email: nyuen@foleymansfield.com 01/28/2022
5 Clerk of the Court
BY: ERNALYN BURA
Attorneys for Defendant Deputy Clerk
6 COLUMBIA MECHANICAL CONTRACTORS, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10
11 CAROL CHULICK, as Successor-in-Interest to Case No.: CGC-19-276757
and as Wrongful Death Heir of JOHN
12 CHULICK, Deceased; and DEBORAH [Assigned for Trial purposed to Hon. Jeffrey S.
HAGEN and JOLEEN HAGLER, as Wrongful
13 Death Heirs of JOHN CHULICK, Deceased, Ross, Dept. 502]
14 Plaintiffs,
DECLARATION OF NICOLE BROWN
15 vs. YUEN IN SUPPORT OF JOINT
DEFENDANTS MEMORANDUM OF
16 RILEY POWER INC., et al., POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO BIFURCATE ON THE
17 Defendants. ISSUE OF WHETHER PLAINTIFFS’
CLAIMS FOR SURVIVAL DAMAGES ARE
18 BARRED BY THE APPLICABLE STATUTE
OF LIMITATIONS
19
Date: February 28, 2022
20 Time: 9:30 a.m.
Department: 502
21
22
23 Complaint Filed: January 22, 2019
Trial Date: December 27, 2021
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DECLARATION OF NICOLE BROWN YUEN IN SUPPORT OF JOINT DEFENDANTS MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO BIFURCATE ON THE ISSUE OF WHETHER
PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF
LIMITATIONS
1 DECLARATION OF NICOLE BROWN YUEN
2 I, Nicole Brown Yuen, declare as follows:
3 1. I am an attorney at law, duly licensed to practice before all the Courts of the State of
4 California and am a partner at the law firm of Foley & Mansfield, PLLP, the attorneys of record for
5 Defendant Columbia Mechanical Contractors, Inc. (“Columbia Mechanical” or “Defendant”) in this
6 action. I have personal knowledge of the matters stated herein, and if called upon could and would
7 competently testify thereto.
8 2. Attached hereto as Exhibit A are a true and accurate copy of Columbia Mechanical
9 Contractors, Inc.’s Answer to Complaint, which includes an affirmative defense relating to statute of
10 limitations as well as barred for failing to merge into prior action at 2:17-21; 7:12-17; 8:4-8; 11:12-
11 15; 15:12-15.
12 3. Defendant requests that the Court take judicial notice of the Answer. A Request for
13 Judicial Notice is filed herewith.
14 I declare under penalty of perjury under the laws of the State of California that the foregoing
15 is true and correct. Executed on January 28, 2022, at Moraga, California.
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19 Nicole Brown Yuen
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DECLARATION OF NICOLE BROWN YUEN IN SUPPORT OF JOINT DEFENDANTS MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO BIFURCATE ON THE ISSUE OF WHETHER
PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF
LIMITATIONS
EXHIBIT A
1 FIRST AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that Plaintiffs complaint, fails to state facts sufficient to constitute a cause of
4 action against Defendant.
5 SECOND AFFIRMATIVE DEFENSE
6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
7 Defendant alleges that Plaintiffs have failed to join all persons and parties needed for a just
8 adjudication of this action.
9 THIRD AFFIRMATIVE DEFENSE
10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
11 Defendant alleges that Plaintiffs claim is barred by laches, waiver and/or estoppel.
12 FOURTH AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that this Court does not have subject matter jurisdiction over this action or
15 alternatively that the Court lacks jurisdiction due to insufficiency of process or the service thereof
16 and/or improper venue.
17 FIFTH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that Plaintiffs have failed to commence this action within the time required by the
20 applicable statute of limitations, including but not limited to California Code of Civil Procedure
21 sections 337.1, 337.15, 338(a), 338(d), 340(3), 340.2 and 343.
22 SIXTH AFFIRMATIVE DEFENSE
23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
24 Defendant alleges that Plaintiffs’ Decedent was careless and negligent in and about the matters
25 alleged in the complaint and said carelessness and negligence of Plaintiffs’ Decedent proximately
26 contributed to the happening of the accident, incident and occurrence alleged in the complaint, and
27 to the injuries, losses and damages complained of therein, ifany there were, and said contributory
28 negligence bars a recovery or proportionately reduces any potential verdict.
2
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 SEVENTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that Plaintiffs’ Decedent failed to mitigate his/her alleged damages, if any there
4 were.
5 EIGHTH AFFIRMATIVE DEFENSE
6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
7 Defendant alleges that if Plaintiffs’ Decedent was injured by products used or installed at
8 Defendant's premises, which is denied, such injury occurred after the expiration of the useful safe
9 life of such products.
10 NINTH AFFIRMATIVE DEFENSE
11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that if Plaintiffs’ Decedent suffered any damages, which are denied, such damages
13 were the sole and proximate result of an unavoidable accident.
14 TENTH AFFIRMATIVE DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 Defendant alleges that if Plaintiffs’ Decedent suffered any damages, which are denied, such damages
17 were caused and/or contributed to by Plaintiffs’ Decedent’s misuse of the product or products and
18 Plaintiffs recovery should be barred or reduced accordingly.
19 ELEVENTH AFFIRMATIVE DEFENSE
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
21 Defendant alleges that if Plaintiffs’ Decedent suffered any damages, which are denied, such damages
22 were solely and proximately caused by material modifications or alterations of the product or
23 products involved in this action after it or they left the custody and control of Defendant.
24 TWELFTH AFFIRMATIVE DEFENSE
25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
26 Defendant alleges that any asbestos-containing product or products alleged to have caused Plaintiffs’
27 Decedent’s injuries were manufactured, used, installed and/or distributed in mandatory compliance
28 with specifications promulgated by the United States government under its war powers, as set forth
3
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 in the U. S. Constitution, and that any recovery by Plaintiffs is barred as a consequence of the
2 exercise of those sovereign powers.
3 THIRTEENTH AFFIRMATIVE DEFENSE
4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
5 Defendant alleges that any product or products alleged by Plaintiffs’ Decedent to have caused their
6 injuries were manufactured, installed, used or distributed in compliance with specifications provided
7 by third parties to Defendant and/or in compliance with all applicable health and safety statutes and
8 regulations.
9 FOURTEENTH AFFIRMATIVE DEFENSE
10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
11 Defendant alleges that ifPlaintiffs’ Decedent suffered any damages, which are denied, the risk of
12 any such damages was not foreseeable to Defendant. Defendant at all times material hereto acted in
13 accordance with the industry custom and practice and the state of scientific knowledge available to
14 manufacturers, installers and/or users of asbestos-containing products.
15 FIFTEENTH AFFIRMATIVE DEFENSE
16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
17 Defendant alleges that it received no notice of any dangerous, hazardous or defective condition or
18 any breach of warranty, either expressed or implied.
19 SIXTEENTH AFFIRMATIVE DEFENSE
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
21 Defendant alleges that Plaintiffs’ Decedent’s claim against Defendant is barred by the holding of
22 Privette v. Superior Court (1993) 5 Cal.4th 689.
23 SEVENTEENTH AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 Defendant, alleges that Plaintiffs claim against Defendant is barred by the holding of Hooker v.
26 Dept. of Transportation, (2002) 24 Cal.4th 198, in that Defendant, a general contractor, did not retain
27 control over any independent contractor sufficient to affirmatively contribute to Plaintiffs’
28 Decedent’s alleged injuries.
4
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that Plaintiffs’ Decedent’s exposure to any asbestos-containing product or
4 products allegedly used or installed at Defendant's premises was minimal and insufficient to
5 establish the probability that said product or products were a legal cause of Plaintiffs’ Decedent’s
6 alleged injuries.
7 NINETEENTH AFFIRMATIVE DEFENSE
8 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
9 Defendant alleges that this action is barred by the applicable state and/or federal industrial insurance
10 and/or Workers' Compensation laws, including, but not limited to, California Labor Code sections
11 3601 and 3602, and 33 U.S.C. Section 905.
12 TWENTIETH AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that at the time of the injuries alleged in Plaintiffs' complaint, Plaintiffs’ Decedent
15 JOHN CHULICK was employed by persons other than Defendant; was entitled to receive and did
16 receive Workers' Compensation benefits from said employer(s) or their insurers; and that said
17 employer(s) were negligent and careless in and about the matters referred to in Plaintiff’s complaint.
18 Defendant is, therefore, entitled to set-off any such benefits received by Plaintiffs against any
19 judgment rendered in Plaintiffs favor and said employer(s) are barred from any recovery by lien or
20 otherwise against Defendant in connection with this matter.
21 TWENTY-FIRST AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges that Plaintiffs’ Decedent voluntarily and knowingly assumed the alleged risks and
24 hazards incident to the alleged operations, acts and conduct at the times and places alleged in
25 Plaintiffs complaint and that Plaintiffs’ Decedent’s said acts proximately caused and contributed to
26 the alleged damages, if any there were.
27 TWENTY-SECOND AFFIRMATIVE DEFENSE
28 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
5
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ complaint, Plaintiffs’
2 Decedent’s employers were sophisticated users of asbestos-containing products and said employers’
3 negligence in providing said products to its employees was a superseding and/or intervening cause of
4 Plaintiffs’ Decedent’s injuries, if any there were.
5 TWENTY-THIRD AFFIRMATIVE DEFENSE
6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
7 Defendant alleges that there was no concert of action among Defendant and other defendants to this
8 action and that any alleged liability or responsibility of Defendant, which is denied, is minimal in
9 proportion to the alleged liability and responsibility of this person and entities including the other
10 defendants herein. Plaintiffs should therefore be limited to seeking recovery from Defendant for a
11 proportion of the alleged injuries and damages for which Defendant is allegedly liable or
12 responsible, all such alleged liability and responsibility being denied.
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE
14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, to
15 the extent the complaint alleges that Defendant has “market share” liability or “enterprise liability”,
16 the complaint fails to state facts sufficient to constitute a cause of action against Defendant.
17 TWENTY-FIFTH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts received
20 by Plaintiffs, against any judgment rendered against it in Plaintiffs favor.
21 TWENTY-SIXTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges, in accordance with section 1431.2 of the Civil Code, known as the Fair
24 Responsibility Act of 1986, that if Plaintiffs complaint states a cause of action, each defendant is
25 liable, if at all, only for those non-economic damages allocated to each defendant in direct
26 proportion to each defendant's percentage of fault, if any. Defendant requests a judicial
27 determination of the amount of non-economic damages, if any. Defendant also requests a judicial
28 determination of the amount of non-economic damages, if any, allocated to Defendant in direct
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance
2 therewith.
3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
5 Defendant alleges that the damages and injuries, if any, were proximately caused or contributed to,
6 in whole or in part, by the negligence or fault or other acts and/or omissions of persons or entities
7 other than Defendant, for which Defendant is not responsible.
8 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
10 Defendant alleges that neither the complaint nor any purported causes of action alleged therein state
11 facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant.
12 TWENTY-NINTH AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that Plaintiffs instant action is barred or, alternatively, merged into a prior cause
15 of action for which Plaintiffs have previously sued upon, recovered, and dismissed with prejudice,
16 thereby requiring a complete extinguishment of the instant action due to the doctrines of res judicata
17 and collateral estoppel.
18 THIRTIETH AFFIRMATIVE DEFENSE
19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
20 Defendant alleges that Plaintiffs instant action is barred and discharged, pursuant to Title 11 U.S.C.
21 section 1141(d), and that Plaintiffs action violates the pending injunction against such claims that
22 exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2).
23 THIRTY-FIRST AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 Defendant alleges that its products were manufactured, produced, supplied, sold and distributed
26 pursuant to contract with the United States government, and that any recovery by Plaintiffs is barred
27 by consequence of the judicially recognized doctrine of immunity conferred upon that contractual
28 relationship and any occurrences arising therefrom.
7
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 THIRTY-SECOND AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that the allegations of the complaint are uncertain, vague and ambiguous.
4 THIRTY-THIRD AFFIRMATIVE DEFENSE
5 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
6 Defendant alleges that the allegations of the complaint should be dismissed pursuant to sections
7 583.210 through 583.250, and 583.410 through 583.430 of the California Code of Civil Procedure,
8 and other applicable code sections.
9 THIRTY-FOURTH AFFIRMATIVE DEFENSE
10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
11 Defendant alleges that it does not have and never has had a successor, successor-in-business,
12 successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor,
13 predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest,
14 partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon
15 which Plaintiffs base their allegations of liability.
16 THIRTY-FIFTH AFFIRMATIVE DEFENSE
17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
18 Defendant alleges that it did not have a sufficient market share with respect to products and materials
19 which Plaintiffs allegedly caused the alleged injuries and damages. Defendant may not be held
20 liable to Plaintiffs for any alleged share of said market or upon any theory premised upon market-
21 share liability.
22 THIRTY-SIXTH AFFIRMATIVE DEFENSE
23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
24 Defendant alleges that if Plaintiffs’ Decedent sustained injuries or damages attributable to the use of
25 any product researched, tested, studied, manufactured, fabricated, inadequately researched, designed,
26 inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected,
27 serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded,
28 manufactured for others, packaged, advertised and/or which contained or lacked warnings by
8
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 Defendant, which allegations are expressly denied, the injuries or damages were proximately caused
2 by the unreasonable and unforeseeable misuse, abuse, alteration, or improper maintenance of the
3 product by Plaintiffs’ Decedent or by others.
4 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
5 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
6 Defendant alleges that at all times mentioned, Plaintiffs’ Decedent consented to the alleged acts of
7 Defendant.
8 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
10 Defendant alleges that all claims asserted by Plaintiffs and Plaintiffs’ Decedent were proximately
11 caused by a superseding, intervening cause.
12 THIRTY-NINTH AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that the entire complaint and each cause of action thereof, is barred on the grounds
15 that the products or materials referred to in the complaint, if any, were not a substantial factor in
16 bringing about the injuries and damages alleged by Plaintiffs.
17 FORTIETH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that the Plaintiffs are not entitled to an award of punitive or exemplary damages in
20 this action. Such an award would be unconstitutional unless Defendant is accorded the safeguards
21 provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and
22 Fourteenth Amendments to the United States Constitution.
23 FORTY-FIRST AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 Defendant alleges that to the extent Plaintiffs’ Decedent’s claims arise out of contract Plaintiffs
26 claims do not state facts sufficient to entitle Plaintiffs to an award of punitive or exemplary damages
27 against Defendant.
28 ///
9
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 FORTY-SECOND AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that Plaintiffs’ Decedent, at all times mentioned, was not in privity of contract
4 with Defendant, and that said lack of privity bars any recovery by Plaintiffs against Defendant under
5 any theory of breach of warranty.
6 FORTY-THIRD AFFIRMATIVE DEFENSE
7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
8 Defendant alleges that Plaintiffs’ Decedent failed to give adequate and timely notice of any alleged
9 breach of warranty.
10 FORTY-FOURTH AFFIRMATIVE DEFENSE
11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that Plaintiffs entire complaint, is barred by the Statute of Frauds to the extent that
13 any such causes of action are based on alleged oral agreements.
14 FORTY-FIFTH AFFIRMATIVE DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 Defendant alleges that all products and materials researched, tested, studied, manufactured,
17 fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed,
18 leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation,
19 repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised
20 and/or which contained or lacked warnings by Defendant which allegations are expressly denied,
21 were not defective in any manner, as said products and materials conformed with the state-of-the-art
22 in existence at all times mentioned in the complaint.
23 FORTY-SIXTH AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful.
26 FORTY-SEVENTH AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 Defendant alleges that its alleged actions, which are the subject of the complaint, were justified.
10
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 FORTY-EIGHTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that Plaintiffs lack standing to sue Defendant.
4 FORTY-NINTH AFFIRMATIVE DEFENSE
5 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
6 Defendant alleges that any danger or defect on the premises was obvious or could have been
7 observed by Plaintiffs’ Decedent’s exercise of reasonable care.
8 FIFTIETH AFFIRMATIVE DEFENSE
9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
10 Defendant alleges that it warned Plaintiffs’ Decedent’s employers of all dangers on the premises
11 known to Defendant.
12 FIFTY-FIRST AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that Plaintiffs have improperly split their causes of action and seeks to maintain a
15 duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed.
16 FIFTY-SECOND AFFIRMATIVE DEFENSE
17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
18 Defendant alleges that it presently has insufficient knowledge or information on which to form a
19 belief as to whether it may have additional, as yet unstated, defenses available. Defendant reserves
20 the right to assert additional defenses in the event discovery indicates that they would be appropriate.
21 WHEREFORE, Defendant prays for judgment as follows:
22 1. That Plaintiff takes nothing by reason of their complaint herein;
23 2. That judgment is entered in favor of Defendant;
24 3. For costs of suit incurred herein;
25 4. For appropriate credits and set-offs arising out of any payment of Workers'
26 Compensation benefits as alleged above;
27 5. For a judicial determination of the amount of non-economic damages, if any,
28 allocated to Defendant in direct proportion the Defendant’s percentage of fault, if any, and a separate
11
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 judgment in conformance therewith; and
2 6. For such other and further relief as the Court may deem just and proper.
3 NOTICE OF REQUEST FOR JURY TRIAL
4 Pursuant to California Code of Civil Procedure § 631, COLUMBIA MECHANICAL
5 CONTRACTORS, INC. hereby gives Notice of Its Request for Trial by Jury.
6
7 DATED: March 8, 2019 FOLEY & MANSFIELD, PLLP
8
By:
9 Douglas G. Wah
Christine L. Hawkins
10 Attorneys for Defendant
COLUMBIA MECHANICAL CONTRACTORS, INC.
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DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS
1 Carol Chulick (WD John), et al. v. Riley Power Inc., et al.
San Francisco Superior Court Case No. CGC-19-276757
2
3 PROOF OF SERVICE
BY ELECTRONIC TRANSMISSION
4
5 I am employed in the County of Contra Costa, State of California. I am over the age of 18
and not a party to the within action; my business address is 2185 North California Boulevard,
6 Suite 575, Walnut Creek, CA 94596.
7
On the date executed below, I served the foregoing document(s) on the interested parties in
8 this action as follows:
9 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL
10 DEATH – ASBESTOS
11
☒ BY ELECTRONIC TRANSMISSION: Pursuant to San Francisco Court General
12 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, I electronically served
13
through File & ServeXpress and caused the document(s) to be sent to the person(s) at
14 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
15 transmission was reported as complete and without error.
16 I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
17
Executed on March 8, 2019, at Walnut Creek, California.
18
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20 Michelle C. Arslanian
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PROOF OF SERVICE
3/8/2019 https://secure.fileandservexpress.com/WebServer/WebPages/FileAndServe/prcReviewSubmit.asp?doWhat=Confirm&nUserID=407108&n…
File & ServeXpress Transaction Receipt
File & ServeXpress Transaction ID: 63046427
Submitted by: Michelle Arslanian, Foley & Manseld PLLP-Oakland
Authorized by: Christine Hawkins, Foley & Manseld PLLP-Oakland
Authorize and le on: Mar 8 2019 10:50AM PST
Time received by San Francisco County: Pending
Court: CA Superior Court County of San Francisco-Civil
Division/Courtroom: N/A
Case Class: Civil
Case Type: Personal Injury-Asbestos
Case Number: CGC-19-276757
Case Name: Chulick vs Asbestos Defendants (Brayton)
Transaction Option: File and Serve
Billing Reference: 15813-0007
Read Status for e-service: Not Purchased
Documents List
2 Document(s)
Attached Document, 13 Pages
Document Type: Access: Statutory Fee: Linked:
Answer (w/ Complex Litigation Fee) Public $1,450.00
Document title:
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.S ANSWER TO PLAINTIFFS COMPLAINT FOR SURVIVAL, WRONGFUL DEATH -
ASBESTOS
Attached Document, 2 Pages
Document Type: Access: Statutory Fee: Linked:
Jury Deposit forrst day of trial Public $150.00
Document title:
DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.S NOTICE OF POSTING JURY FEES
Expand All
Sending Parties (2)
Party Party Type Attorney Firm Attorney Type
Columbia Mechanical Contractors Inc (pending) Defendant Hawkins, Christine Foley & Mans eld PLLP-Oakland Attorney in Charge
Columbia Mechanical Contractors Inc (pending) Defendant Thompson, Hanna M Foley & Mans eld PLLP-Oakland Attorney in Charge
Recipients (36)
Service List (36)
Delivery Attorney
Party Party Type Attorney Firm Method
Option Type
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1 Douglas G. Wah, Esq. SBN 64692 Nicole B. Yuen, Esq. SBN 184120 2 FOLEY & MANSFIELD, PLLP ELECTRONICALLY 2185 North California Boulevard, Suite 575 3 Walnut Creek, CA 94596 F I L E D Telephone: (510) 590-9500 Superior Court of California, County of San Francisco 4 Facsimile: (510) 590-9595 Email: nyuen@foleymansfield.com 01/28/2022 5 Clerk of the Court BY: ERNALYN BURA Attorneys for Defendant Deputy Clerk 6 COLUMBIA MECHANICAL CONTRACTORS, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 CAROL CHULICK, as Successor-in-Interest to Case No.: CGC-19-276757 and as Wrongful Death Heir of JOHN 12 CHULICK, Deceased; and DEBORAH [Assigned for Trial purposed to Hon. Jeffrey S. HAGEN and JOLEEN HAGLER, as Wrongful 13 Death Heirs of JOHN CHULICK, Deceased, Ross, Dept. 502] 14 Plaintiffs, DECLARATION OF NICOLE BROWN 15 vs. YUEN IN SUPPORT OF JOINT DEFENDANTS MEMORANDUM OF 16 RILEY POWER INC., et al., POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO BIFURCATE ON THE 17 Defendants. ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE 18 BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 19 Date: February 28, 2022 20 Time: 9:30 a.m. Department: 502 21 22 23 Complaint Filed: January 22, 2019 Trial Date: December 27, 2021 24 25 /// 26 /// 27 /// 28 /// 1 DECLARATION OF NICOLE BROWN YUEN IN SUPPORT OF JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 1 DECLARATION OF NICOLE BROWN YUEN 2 I, Nicole Brown Yuen, declare as follows: 3 1. I am an attorney at law, duly licensed to practice before all the Courts of the State of 4 California and am a partner at the law firm of Foley & Mansfield, PLLP, the attorneys of record for 5 Defendant Columbia Mechanical Contractors, Inc. (“Columbia Mechanical” or “Defendant”) in this 6 action. I have personal knowledge of the matters stated herein, and if called upon could and would 7 competently testify thereto. 8 2. Attached hereto as Exhibit A are a true and accurate copy of Columbia Mechanical 9 Contractors, Inc.’s Answer to Complaint, which includes an affirmative defense relating to statute of 10 limitations as well as barred for failing to merge into prior action at 2:17-21; 7:12-17; 8:4-8; 11:12- 11 15; 15:12-15. 12 3. Defendant requests that the Court take judicial notice of the Answer. A Request for 13 Judicial Notice is filed herewith. 14 I declare under penalty of perjury under the laws of the State of California that the foregoing 15 is true and correct. Executed on January 28, 2022, at Moraga, California. 16 17 18 ____________________________________ 19 Nicole Brown Yuen 20 21 22 23 24 25 26 27 28 2 DECLARATION OF NICOLE BROWN YUEN IN SUPPORT OF JOINT DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO BIFURCATE ON THE ISSUE OF WHETHER PLAINTIFFS’ CLAIMS FOR SURVIVAL DAMAGES ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS EXHIBIT A 1 FIRST AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that Plaintiffs complaint, fails to state facts sufficient to constitute a cause of 4 action against Defendant. 5 SECOND AFFIRMATIVE DEFENSE 6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 7 Defendant alleges that Plaintiffs have failed to join all persons and parties needed for a just 8 adjudication of this action. 9 THIRD AFFIRMATIVE DEFENSE 10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 11 Defendant alleges that Plaintiffs claim is barred by laches, waiver and/or estoppel. 12 FOURTH AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that this Court does not have subject matter jurisdiction over this action or 15 alternatively that the Court lacks jurisdiction due to insufficiency of process or the service thereof 16 and/or improper venue. 17 FIFTH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that Plaintiffs have failed to commence this action within the time required by the 20 applicable statute of limitations, including but not limited to California Code of Civil Procedure 21 sections 337.1, 337.15, 338(a), 338(d), 340(3), 340.2 and 343. 22 SIXTH AFFIRMATIVE DEFENSE 23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 24 Defendant alleges that Plaintiffs’ Decedent was careless and negligent in and about the matters 25 alleged in the complaint and said carelessness and negligence of Plaintiffs’ Decedent proximately 26 contributed to the happening of the accident, incident and occurrence alleged in the complaint, and 27 to the injuries, losses and damages complained of therein, ifany there were, and said contributory 28 negligence bars a recovery or proportionately reduces any potential verdict. 2 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 SEVENTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that Plaintiffs’ Decedent failed to mitigate his/her alleged damages, if any there 4 were. 5 EIGHTH AFFIRMATIVE DEFENSE 6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 7 Defendant alleges that if Plaintiffs’ Decedent was injured by products used or installed at 8 Defendant's premises, which is denied, such injury occurred after the expiration of the useful safe 9 life of such products. 10 NINTH AFFIRMATIVE DEFENSE 11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that if Plaintiffs’ Decedent suffered any damages, which are denied, such damages 13 were the sole and proximate result of an unavoidable accident. 14 TENTH AFFIRMATIVE DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 Defendant alleges that if Plaintiffs’ Decedent suffered any damages, which are denied, such damages 17 were caused and/or contributed to by Plaintiffs’ Decedent’s misuse of the product or products and 18 Plaintiffs recovery should be barred or reduced accordingly. 19 ELEVENTH AFFIRMATIVE DEFENSE 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 21 Defendant alleges that if Plaintiffs’ Decedent suffered any damages, which are denied, such damages 22 were solely and proximately caused by material modifications or alterations of the product or 23 products involved in this action after it or they left the custody and control of Defendant. 24 TWELFTH AFFIRMATIVE DEFENSE 25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 26 Defendant alleges that any asbestos-containing product or products alleged to have caused Plaintiffs’ 27 Decedent’s injuries were manufactured, used, installed and/or distributed in mandatory compliance 28 with specifications promulgated by the United States government under its war powers, as set forth 3 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 in the U. S. Constitution, and that any recovery by Plaintiffs is barred as a consequence of the 2 exercise of those sovereign powers. 3 THIRTEENTH AFFIRMATIVE DEFENSE 4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 5 Defendant alleges that any product or products alleged by Plaintiffs’ Decedent to have caused their 6 injuries were manufactured, installed, used or distributed in compliance with specifications provided 7 by third parties to Defendant and/or in compliance with all applicable health and safety statutes and 8 regulations. 9 FOURTEENTH AFFIRMATIVE DEFENSE 10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 11 Defendant alleges that ifPlaintiffs’ Decedent suffered any damages, which are denied, the risk of 12 any such damages was not foreseeable to Defendant. Defendant at all times material hereto acted in 13 accordance with the industry custom and practice and the state of scientific knowledge available to 14 manufacturers, installers and/or users of asbestos-containing products. 15 FIFTEENTH AFFIRMATIVE DEFENSE 16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 17 Defendant alleges that it received no notice of any dangerous, hazardous or defective condition or 18 any breach of warranty, either expressed or implied. 19 SIXTEENTH AFFIRMATIVE DEFENSE 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 21 Defendant alleges that Plaintiffs’ Decedent’s claim against Defendant is barred by the holding of 22 Privette v. Superior Court (1993) 5 Cal.4th 689. 23 SEVENTEENTH AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 Defendant, alleges that Plaintiffs claim against Defendant is barred by the holding of Hooker v. 26 Dept. of Transportation, (2002) 24 Cal.4th 198, in that Defendant, a general contractor, did not retain 27 control over any independent contractor sufficient to affirmatively contribute to Plaintiffs’ 28 Decedent’s alleged injuries. 4 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that Plaintiffs’ Decedent’s exposure to any asbestos-containing product or 4 products allegedly used or installed at Defendant's premises was minimal and insufficient to 5 establish the probability that said product or products were a legal cause of Plaintiffs’ Decedent’s 6 alleged injuries. 7 NINETEENTH AFFIRMATIVE DEFENSE 8 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 9 Defendant alleges that this action is barred by the applicable state and/or federal industrial insurance 10 and/or Workers' Compensation laws, including, but not limited to, California Labor Code sections 11 3601 and 3602, and 33 U.S.C. Section 905. 12 TWENTIETH AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that at the time of the injuries alleged in Plaintiffs' complaint, Plaintiffs’ Decedent 15 JOHN CHULICK was employed by persons other than Defendant; was entitled to receive and did 16 receive Workers' Compensation benefits from said employer(s) or their insurers; and that said 17 employer(s) were negligent and careless in and about the matters referred to in Plaintiff’s complaint. 18 Defendant is, therefore, entitled to set-off any such benefits received by Plaintiffs against any 19 judgment rendered in Plaintiffs favor and said employer(s) are barred from any recovery by lien or 20 otherwise against Defendant in connection with this matter. 21 TWENTY-FIRST AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges that Plaintiffs’ Decedent voluntarily and knowingly assumed the alleged risks and 24 hazards incident to the alleged operations, acts and conduct at the times and places alleged in 25 Plaintiffs complaint and that Plaintiffs’ Decedent’s said acts proximately caused and contributed to 26 the alleged damages, if any there were. 27 TWENTY-SECOND AFFIRMATIVE DEFENSE 28 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 5 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ complaint, Plaintiffs’ 2 Decedent’s employers were sophisticated users of asbestos-containing products and said employers’ 3 negligence in providing said products to its employees was a superseding and/or intervening cause of 4 Plaintiffs’ Decedent’s injuries, if any there were. 5 TWENTY-THIRD AFFIRMATIVE DEFENSE 6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 7 Defendant alleges that there was no concert of action among Defendant and other defendants to this 8 action and that any alleged liability or responsibility of Defendant, which is denied, is minimal in 9 proportion to the alleged liability and responsibility of this person and entities including the other 10 defendants herein. Plaintiffs should therefore be limited to seeking recovery from Defendant for a 11 proportion of the alleged injuries and damages for which Defendant is allegedly liable or 12 responsible, all such alleged liability and responsibility being denied. 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE 14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, to 15 the extent the complaint alleges that Defendant has “market share” liability or “enterprise liability”, 16 the complaint fails to state facts sufficient to constitute a cause of action against Defendant. 17 TWENTY-FIFTH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts received 20 by Plaintiffs, against any judgment rendered against it in Plaintiffs favor. 21 TWENTY-SIXTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges, in accordance with section 1431.2 of the Civil Code, known as the Fair 24 Responsibility Act of 1986, that if Plaintiffs complaint states a cause of action, each defendant is 25 liable, if at all, only for those non-economic damages allocated to each defendant in direct 26 proportion to each defendant's percentage of fault, if any. Defendant requests a judicial 27 determination of the amount of non-economic damages, if any. Defendant also requests a judicial 28 determination of the amount of non-economic damages, if any, allocated to Defendant in direct 6 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance 2 therewith. 3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 5 Defendant alleges that the damages and injuries, if any, were proximately caused or contributed to, 6 in whole or in part, by the negligence or fault or other acts and/or omissions of persons or entities 7 other than Defendant, for which Defendant is not responsible. 8 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 10 Defendant alleges that neither the complaint nor any purported causes of action alleged therein state 11 facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant. 12 TWENTY-NINTH AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that Plaintiffs instant action is barred or, alternatively, merged into a prior cause 15 of action for which Plaintiffs have previously sued upon, recovered, and dismissed with prejudice, 16 thereby requiring a complete extinguishment of the instant action due to the doctrines of res judicata 17 and collateral estoppel. 18 THIRTIETH AFFIRMATIVE DEFENSE 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 20 Defendant alleges that Plaintiffs instant action is barred and discharged, pursuant to Title 11 U.S.C. 21 section 1141(d), and that Plaintiffs action violates the pending injunction against such claims that 22 exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2). 23 THIRTY-FIRST AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 Defendant alleges that its products were manufactured, produced, supplied, sold and distributed 26 pursuant to contract with the United States government, and that any recovery by Plaintiffs is barred 27 by consequence of the judicially recognized doctrine of immunity conferred upon that contractual 28 relationship and any occurrences arising therefrom. 7 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 THIRTY-SECOND AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that the allegations of the complaint are uncertain, vague and ambiguous. 4 THIRTY-THIRD AFFIRMATIVE DEFENSE 5 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 6 Defendant alleges that the allegations of the complaint should be dismissed pursuant to sections 7 583.210 through 583.250, and 583.410 through 583.430 of the California Code of Civil Procedure, 8 and other applicable code sections. 9 THIRTY-FOURTH AFFIRMATIVE DEFENSE 10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 11 Defendant alleges that it does not have and never has had a successor, successor-in-business, 12 successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor, 13 predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest, 14 partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon 15 which Plaintiffs base their allegations of liability. 16 THIRTY-FIFTH AFFIRMATIVE DEFENSE 17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 18 Defendant alleges that it did not have a sufficient market share with respect to products and materials 19 which Plaintiffs allegedly caused the alleged injuries and damages. Defendant may not be held 20 liable to Plaintiffs for any alleged share of said market or upon any theory premised upon market- 21 share liability. 22 THIRTY-SIXTH AFFIRMATIVE DEFENSE 23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 24 Defendant alleges that if Plaintiffs’ Decedent sustained injuries or damages attributable to the use of 25 any product researched, tested, studied, manufactured, fabricated, inadequately researched, designed, 26 inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, 27 serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, 28 manufactured for others, packaged, advertised and/or which contained or lacked warnings by 8 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 Defendant, which allegations are expressly denied, the injuries or damages were proximately caused 2 by the unreasonable and unforeseeable misuse, abuse, alteration, or improper maintenance of the 3 product by Plaintiffs’ Decedent or by others. 4 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 5 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 6 Defendant alleges that at all times mentioned, Plaintiffs’ Decedent consented to the alleged acts of 7 Defendant. 8 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 10 Defendant alleges that all claims asserted by Plaintiffs and Plaintiffs’ Decedent were proximately 11 caused by a superseding, intervening cause. 12 THIRTY-NINTH AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that the entire complaint and each cause of action thereof, is barred on the grounds 15 that the products or materials referred to in the complaint, if any, were not a substantial factor in 16 bringing about the injuries and damages alleged by Plaintiffs. 17 FORTIETH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that the Plaintiffs are not entitled to an award of punitive or exemplary damages in 20 this action. Such an award would be unconstitutional unless Defendant is accorded the safeguards 21 provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and 22 Fourteenth Amendments to the United States Constitution. 23 FORTY-FIRST AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 Defendant alleges that to the extent Plaintiffs’ Decedent’s claims arise out of contract Plaintiffs 26 claims do not state facts sufficient to entitle Plaintiffs to an award of punitive or exemplary damages 27 against Defendant. 28 /// 9 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 FORTY-SECOND AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that Plaintiffs’ Decedent, at all times mentioned, was not in privity of contract 4 with Defendant, and that said lack of privity bars any recovery by Plaintiffs against Defendant under 5 any theory of breach of warranty. 6 FORTY-THIRD AFFIRMATIVE DEFENSE 7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 8 Defendant alleges that Plaintiffs’ Decedent failed to give adequate and timely notice of any alleged 9 breach of warranty. 10 FORTY-FOURTH AFFIRMATIVE DEFENSE 11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that Plaintiffs entire complaint, is barred by the Statute of Frauds to the extent that 13 any such causes of action are based on alleged oral agreements. 14 FORTY-FIFTH AFFIRMATIVE DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 Defendant alleges that all products and materials researched, tested, studied, manufactured, 17 fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, 18 leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, 19 repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised 20 and/or which contained or lacked warnings by Defendant which allegations are expressly denied, 21 were not defective in any manner, as said products and materials conformed with the state-of-the-art 22 in existence at all times mentioned in the complaint. 23 FORTY-SIXTH AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful. 26 FORTY-SEVENTH AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 Defendant alleges that its alleged actions, which are the subject of the complaint, were justified. 10 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 FORTY-EIGHTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that Plaintiffs lack standing to sue Defendant. 4 FORTY-NINTH AFFIRMATIVE DEFENSE 5 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 6 Defendant alleges that any danger or defect on the premises was obvious or could have been 7 observed by Plaintiffs’ Decedent’s exercise of reasonable care. 8 FIFTIETH AFFIRMATIVE DEFENSE 9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 10 Defendant alleges that it warned Plaintiffs’ Decedent’s employers of all dangers on the premises 11 known to Defendant. 12 FIFTY-FIRST AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that Plaintiffs have improperly split their causes of action and seeks to maintain a 15 duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. 16 FIFTY-SECOND AFFIRMATIVE DEFENSE 17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 18 Defendant alleges that it presently has insufficient knowledge or information on which to form a 19 belief as to whether it may have additional, as yet unstated, defenses available. Defendant reserves 20 the right to assert additional defenses in the event discovery indicates that they would be appropriate. 21 WHEREFORE, Defendant prays for judgment as follows: 22 1. That Plaintiff takes nothing by reason of their complaint herein; 23 2. That judgment is entered in favor of Defendant; 24 3. For costs of suit incurred herein; 25 4. For appropriate credits and set-offs arising out of any payment of Workers' 26 Compensation benefits as alleged above; 27 5. For a judicial determination of the amount of non-economic damages, if any, 28 allocated to Defendant in direct proportion the Defendant’s percentage of fault, if any, and a separate 11 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 judgment in conformance therewith; and 2 6. For such other and further relief as the Court may deem just and proper. 3 NOTICE OF REQUEST FOR JURY TRIAL 4 Pursuant to California Code of Civil Procedure § 631, COLUMBIA MECHANICAL 5 CONTRACTORS, INC. hereby gives Notice of Its Request for Trial by Jury. 6 7 DATED: March 8, 2019 FOLEY & MANSFIELD, PLLP 8 By: 9 Douglas G. Wah Christine L. Hawkins 10 Attorneys for Defendant COLUMBIA MECHANICAL CONTRACTORS, INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS 1 Carol Chulick (WD John), et al. v. Riley Power Inc., et al. San Francisco Superior Court Case No. CGC-19-276757 2 3 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 4 5 I am employed in the County of Contra Costa, State of California. I am over the age of 18 and not a party to the within action; my business address is 2185 North California Boulevard, 6 Suite 575, Walnut Creek, CA 94596. 7 On the date executed below, I served the foregoing document(s) on the interested parties in 8 this action as follows: 9 DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL 10 DEATH – ASBESTOS 11 ☒ BY ELECTRONIC TRANSMISSION: Pursuant to San Francisco Court General 12 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, I electronically served 13 through File & ServeXpress and caused the document(s) to be sent to the person(s) at 14 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 15 transmission was reported as complete and without error. 16 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 17 Executed on March 8, 2019, at Walnut Creek, California. 18 19 20 Michelle C. Arslanian 21 22 23 24 25 26 27 28 PROOF OF SERVICE 3/8/2019 https://secure.fileandservexpress.com/WebServer/WebPages/FileAndServe/prcReviewSubmit.asp?doWhat=Confirm&nUserID=407108&n… File & ServeXpress Transaction Receipt File & ServeXpress Transaction ID: 63046427 Submitted by: Michelle Arslanian, Foley & Manseld PLLP-Oakland Authorized by: Christine Hawkins, Foley & Manseld PLLP-Oakland Authorize and le on: Mar 8 2019 10:50AM PST Time received by San Francisco County: Pending Court: CA Superior Court County of San Francisco-Civil Division/Courtroom: N/A Case Class: Civil Case Type: Personal Injury-Asbestos Case Number: CGC-19-276757 Case Name: Chulick vs Asbestos Defendants (Brayton) Transaction Option: File and Serve Billing Reference: 15813-0007 Read Status for e-service: Not Purchased Documents List 2 Document(s) Attached Document, 13 Pages Document Type: Access: Statutory Fee: Linked: Answer (w/ Complex Litigation Fee) Public $1,450.00 Document title: DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.S ANSWER TO PLAINTIFFS COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS Attached Document, 2 Pages Document Type: Access: Statutory Fee: Linked: Jury Deposit forrst day of trial Public $150.00 Document title: DEFENDANT COLUMBIA MECHANICAL CONTRACTORS, INC.S NOTICE OF POSTING JURY FEES Expand All Sending Parties (2) Party Party Type Attorney Firm Attorney Type Columbia Mechanical Contractors Inc (pending) Defendant Hawkins, Christine Foley & Mans eld PLLP-Oakland Attorney in Charge Columbia Mechanical Contractors Inc (pending) Defendant Thompson, Hanna M Foley & Mans eld PLLP-Oakland Attorney in Charge Recipients (36) Service List (36) Delivery Attorney Party Party Type Attorney Firm Method Option Type