Answer: VALERI NISKANEN ET AL VS. KELLY-MOORE PAINT COMPANY, INC. ET AL

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                                1 JEFFREY M. VUCINICH, ESQ. BAR#: 67906
     jvucinich@clappmoroney.com
 2 STEPHEN V. HARRINGTON, ESQ. BAR#: 222064                         ELECTRONICALLY
 3
     sharrington@clappmoroney.com                                       FILED
   CLAPP, MORONEY, VUCINICH, BEEMAN and SCHELEY                     Superior Court of California,
                                                                     County of San Francisco
 4 A PROFESSIONAL CORPORATION
   1111 Bayhill Drive, Suite 300                                        12/01/2020
                                                                     Clerk of the Court
 5 San Bruno, CA 94066                                                 BY: JUDITH NUNEZ
   (650) 989-5400 (650) 989-5499 FAX                                              Deputy Clerk
 6

 7 CLEAVINGER      APLC
   MARC D. CLEAVINGER, ESQ.          BAR#: 133145
   7825  Fay Avenue, Suite 200
 8 La Jolla, CA 92037

 9 (619) 980-8898 (858) 750-2196
10 Attorneys for Defendant
   UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.
11

12                   SUPERIOR COURT OF THE STATE OF CALIFORNIA

13                              COUNTY OF SAN FRANCISCO

14

15 VALERI NISKANEN, as Successor-in-            Case No. CGC-19-276813
   Interest to and as Wrongful Death Heir of
16 BILLY JOE McCLARY; Deceased; and             DEFENANT UNIVERSITY
   VICTORIA BLAKE, TAMLYN ORTEGON,              MECHANICAL & ENGINEERING
17                                              CONTRACTORS, INC.’S ANSWER TO
   SUSAN FRENCH and STEVEN McCLARY,             PLAINTIFFS’ SECOND AMENDED
18 as Wrongful Death Heirs of BILLY JOE         COMPLAINT
   McCLARY, Deceased.
19
                   Plaintiffs,
20
   vs.
21                                              Complaint filed: 12/11/2019
                                                First Amended Complaint filed: 08/07/2020
22 GOLDEN GATE DRYWALL, et al.,

23               Defendants.
24

25        COMES NOW Defendant UNIVERSITY MECHANICAL & ENGINEERING
26 CONTRACTORS, INC. and answers the Second Amended Complaint of Plaintiffs, VALERI

27 NISKANEN, as Successor-in-Interest to and as Wrongful Death Heir of BILLY JOE McCLARY,

28 Deceased; and VICTORIA BLAKE, TAMLYN ORTEGON, SUSAN FRENCH and STEVEN
                                         1
      DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                        PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1 McCLARY, as Wrongful Death Heirs of BILLY JOE McCLARY, Deceased, Wrongful Death -

 2 Asbestos as follows:

 3          This answering Defendant denies each and every, all and singular, generally and

 4 specifically, the allegations of the complaint for Survival, Wrongful Death - Asbestos and each

 5 cause of action thereof. This answering Defendant further specifically denies that the Plaintiffs

 6 were injured or damaged in any sum or sums alleged, or in any sum or sums whatsoever, or at all.

 7                                  FIRST AFFIRMATIVE DEFENSE

 8          AS AND FOR A FIRST, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

 9 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING
10 DEFENDANT STATES:

11          Each and every cause of action of Plaintiffs’ complaint is barred by the statute of limitations.
12                                SECOND AFFIRMATIVE DEFENSE

13          AS FOR A SECOND, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND

14 EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

15 DEFENDANT STATES:

16          The Plaintiffs and/or others were careless and negligent in and about the matters alleged in

17 the complaint on file herein. The carelessness and negligence of Plaintiffs and/or others proximately

18 and/or legally contributed to the injuries and damages, if any, alleged by the Plaintiffs.

19          In event of any judgment in favor of Plaintiffs herein, said judgment must be reduced to the

20 extent that said carelessness and negligence of Plaintiffs and/or others caused and contributed to the

21 injuries and damages, if any, alleged by the Plaintiffs.

22                                 THIRD AFFIRMATIVE DEFENSE

23          AS FOR A THIRD, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND

24 EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

25 DEFENDANT STATES:

26          Plaintiffs knew of the risks, if any, referred to in the complaint on file herein, and had full

27 knowledge of the conditions existing, and appreciated the risks involved, and voluntarily and

28 knowingly assumed the same. Plaintiff’s assumption of the risks was the sole proximate and/or
                                                        2
       DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                         PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1 legal cause of the injuries and damages, if any, alleged by the Plaintiffs.

 2                                FOURTH AFFIRMATIVE DEFENSE

 3          AS AND FOR A FOURTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

 4 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

 5 DEFENDANT STATES:

 6          Plaintiffs’ alleged injuries, loss or damage, if any, were aggravated by the failure of Plaintiffs

 7 and/or others to use reasonable diligence to mitigate the same.

 8                                  FIFTH AFFIRMATIVE DEFENSE

 9          AS AND FOR A FIFTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH
10 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

11 DEFENDANT STATES:

12          Each and every cause of action in Plaintiffs’ complaint fails to state facts sufficient to
13 constitute a cause of action against this answering Defendant, if at all.

14                                  SIXTH AFFIRMATIVE DEFENSE

15          AS AND FOR A SIXTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

16 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

17 DEFENDANT STATES:

18          Plaintiffs acknowledged, ratified, consented to and acquiesced in the alleged acts or

19 omissions, if any, of this answering Defendant, thus barring Plaintiffs from any recovery

20 whatsoever.

21                                SEVENTH AFFIRMATIVE DEFENSE

22          AS AND FOR A SEVENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

23 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

24 DEFENDANT STATES:

25          Each and every cause of action of Plaintiffs’ complaint is uncertain, ambiguous and

26 unintelligible.

27 //

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                                                         3
        DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                          PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1                                EIGHTH AFFIRMATIVE DEFENSE

 2          AS AND FOR AN EIGHTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

 3 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

 4 DEFENDANT STATES:

 5          Each and every cause of action of Plaintiffs’ complaint fails to state facts sufficient to

 6 constitute a cause of action against this answering Defendant because Plaintiffs’ alleged injuries

 7 preexisted or were suffered after Plaintiffs worked at premises where this answering Defendant was

 8 also performing work. As a result, Plaintiffs’ injuries were neither caused by nor exacerbated by

 9 his work at those locations where this answering Defendant was simultaneously working.
10                                 NINTH AFFIRMATIVE DEFENSE

11          AS AND FOR A NINTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

12 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

13 DEFENDANT STATES:

14          Each and every cause of action of Plaintiffs’ complaint is barred by the doctrine of laches.

15                                TENTH AFFIRMATIVE DEFENSE

16          AS AND FOR A TENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

17 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

18 DEFENDANT STATES:

19          Each and every cause of action of Plaintiffs’ complaint is barred by the doctrines and

20 principles of waiver, estoppel, and unclean hands.

21                              ELEVENTH AFFIRMATIVE DEFENSE

22          AS AND FOR AN ELEVENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO

23 EACH AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS

24 ANSWERING DEFENDANT STATES:

25          Plaintiffs are barred from any recovery from this answering Defendant by the provisions of

26 the California Labor Code, including but not limited to, Section 3330, et seq. and 3601, et seq.

27 //

28 //
                                                       4
        DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                          PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1                              TWELFTH AFFIRMATIVE DEFENSE

 2          AS AND FOR A TWELFTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

 3 AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS ANSWERING

 4 DEFENDANT STATES:

 5          The injuries and damages, if any, sustained by the Plaintiffs were solely and proximately

 6 caused by Plaintiffs’ own misuse of the products referred to in the Plaintiffs’ complaint.

 7                            THIRTEENTH AFFIRMATIVE DEFENSE

 8          AS AND FOR A THIRTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO

 9 EACH AND EVERY CAUSE OF ACTION PLAINTIFFS’ COMPLAINT, THIS
10 ANSWERING DEFENDANT STATES:

11          The injuries and damages, if any, sustained by the Plaintiffs were solely and proximately
12 caused by modification, alteration or change, by persons or entities other than this answering

13 Defendant, or the products referred to in the Plaintiffs’ complaint.

14                            FOURTEENTH AFFIRMATIVE DEFENSE

15          AS AND FOR A FOURTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO

16 EACH AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS

17 ANSWERING DEFENDANT STATES:

18          Plaintiffs have received or will receive disability and medical benefits under applicable

19 compensation law, from the Plaintiffs’ employers and/or their insurers in compensation for the

20 injures and damages, if any, alleged by the Plaintiffs herein.

21          In the event of a judgment against this answering Defendant and in favor of Plaintiffs herein,

22 said judgment must be reduced by the amount of any and all compensation to be received by the

23 Plaintiffs herein.

24                             FIFTEENTH AFFIRMATIVE DEFENSE

25          AS AND FOR A FIFTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO

26 EACH AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS

27 ANSWERING DEFENDANT STATES:

28          Plaintiffs’ claim for punitive damages, if any, against this answering Defendant is barred
                                                       5
       DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                         PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1 because an award for punitive damages in this action would be unconstitutional under both the

 2 California Constitution and the United States Constitution.

 3                              SIXTEENTH AFFIRMATIVE DEFENSE

 4          AS AND FOR A SIXTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO

 5 EACH AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS

 6 ANSWERING DEFENDANT STATES:

 7          Plaintiffs’ complaint fails to state facts sufficient to constitute a cause of action for punitive

 8 damages against this answering Defendant.

 9                            SEVENTEENTH AFFIRMATIVE DEFENSE
10          AS AND FOR A SEVENTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO

11 EACH AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS

12 ANSWERING DEFENDANT STATES:

13          Plaintiffs’ claims for non-economic damages are subject to the provisions of the Fair

14 Responsibility Act of 1986, California Code of Civil Procedure Sections 1431 through 1431.5.

15                             EIGHTEENTH AFFIRMATIVE DEFENSE

16          AS AND FOR AN EIGHTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO

17 EACH AND EVERY CAUSE OF ACTION OR PLAINTIFFS’ COMPLAINT, THIS

18 ANSWERING DEFENDANT STATES:

19          Without admitting any of the allegations of the complaint, Defendant alleges that the

20 Complaint filed against this Defendant was brought without reasonable care and without a good

21 faith belief that here was a justiciable controversy under the facts and the law which warranted the

22 filing of the complaint against this responding Defendant, and that Plaintiffs should therefore be

23 responsible for all of Defendant’s necessary and reasonable defense costs, including attorneys’ fees,

24 as more particularly set forth in California Code of Civil Procedure Sections 128.5, 128.7, 1038 and

25 1021.6; and further, demand is hereby made that Plaintiffs undertake the defense of this responding

26 Defendant against the claim of implied indemnity made by others in the above captioned action.

27 //

28 //
                                                         6
        DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                          PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1        WHEREFORE, this answering Defendant prays as follows:

 2        1.    That Plaintiffs take nothing by reason of their complaint on file herein;

 3        2.    For costs of suit incurred herein; and

 4        3.    For such other and further relief as the Court deems proper.

 5

 6 Dated: December 1, 2020                         CLAPP, MORONEY, VUCINICH, BEEMAN
                                                   and SCHELEY
 7

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 9                                                 By:
                                                          JEFFREY M. VUCINICH, ESQ.
10                                                        STEPHEN V. HARRINGTON, ESQ.
                                                          Attorneys for Defendant
11                                                        UNIVERSITY         MECHANICAL &
12                                                        ENGINEERING CONTRACTORS, INC.

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                                                   7
      DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                        PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1              NISKANEN, VALERI, et al. v. GOLDEN GATE DRYWALL, et al.
                    San Francisco Superior Court Case No. CGC-19-276813
 2
                                     PROOF OF SERVICE - Civil
 3                            [Code of Civ. Proc. §§ 1011, 1013, 1031a, 2015.5]

 4 METHOD OF SERVICE:

 5         ☐ By Personal Service         □ By Mail               □By Overnight Delivery
           ☐ By Messenger Service        □ By Facsimile          ▣By E-Mail/Electronic Transmission
 6

 7 1.      I am a citizen of the United States and am employed in the County of San Mateo, State of
           California. I am over the age of 18 years and not a party to the within action.
 8

 9 2.      My place of employment is 1111 Bayhill Drive, Suite 300, San Bruno, CA 94066.
10 3.      On the date set forth below, I caused to be served a true and correct copy of the document
           described as:
11

12 4.      I served the document on the persons below, as follows:
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     DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S
14           ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT
15 5.      The document was served by the following means (specify):
16         a.      □      BY PERSONAL SERVICE. I personally delivered the documents to the
                              persons at the addresses listed in item 4. (1) For a party represented by
17                            an attorney, delivery was made to the attorney or at the attorney's office
                              by leaving the documents in an envelope or package clearly labeled to
18                            identify the attorney being served with a receptionist or an individual
                              in charge of the office. (2) For a party, delivery was made to the party
19                            or by leaving the documents at the party's residence with some person
                              not less than 18 years of age between the hours of eight in the morning
20                            and six in the evening.
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           b.     □       BY UNITED STATES MAIL. I enclosed the documents in a sealed
22                           envelope or package addressed to the persons at the addresses in item 4
                             and (specify one):
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                  (1)     □ deposited the sealed envelope with the United States Postal Services, with
24                                    the postage fully prepaid.
25                (2)     □       placed the envelope for collection and mailing, following our ordinary
                                       business practices. I am readily familiar with this business's
26                                     practice for collecting and processing correspondence for
                                       mailing. On the same day that correspondence is placed for
27                                     collection and mailing, it is deposited in the ordinary course of
                                       business with the United States Postal Service, in a sealed
28                                     envelope with postage fully prepaid.
                                                      8
        DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                          PLAINTIFFS’ SECOND AMENDED COMPLAINT
 1         I am resident or employed in the County where the mailing occurred. The envelope or
     package was placed in the mail at San Bruno, California, County of San Mateo.
 2

 3          c.      □      BY OVERNIGHT DELIVERY. I enclosed the documents in an envelope
                               or package provided by an overnight delivery carrier and addressed to
 4                             the persons at the addresses in item 4. I place the envelope or package
                               for collection and overnight delivery at an office or a regularly utilized
 5                             drop box of the overnight delivery carrier.

 6          d.      □      BY MESSENGER SERVICE. I served the documents by placing them in
                               an envelope or package addressed to the persons at the addresses listed
 7                             in item 4 and providing them to a professional messenger service for
                               service.
 8
            e.     □       BY FAX TRANSMISSION. Based on an agreement of the parties to accept
 9                             service by fax transmission, I faxed the documents to the persons at the
                               fax numbers listed in item 4. No error was reported by the fax machine
10                             that I used. A copy of the record of the fax transmission, which I printed
                               out, is attached.
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            f.     ▣       BY E-MAIL OR ELECTRONIC TRANSMISSION: FILE AND SERVE
12                             XPRESS. Based on a court order or an agreement of the parties to
                               accept service by e-mail or electronic transmission, I caused the
13                             documents to be sent to the persons at the email addresses listed in item
                               4. I did not receive, within a reasonable time after the transmission, any
14                             electronic message or other indication that the transmission was
                               unsuccessful.
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16 ▣      (State) I declare under penalty of perjury under the laws of the State of California that the
   foregoing is true and correct.
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18 □      (Federal) I declare that I am employed in the offices of a member of the bar of this court at
   whose direction this service was made. I declare under penalty of perjury that the foregoing is true
19 and correct.

20          Executed on December 1, 2020, at San Bruno, California.

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22                                                        Erica Ramirez

23                                       Proof of Service - Civil
                            [Code of Civ.Proc. §§ 1011, 1013, 1013a, 2015.5]
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       DEFENANT UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.’S ANSWER TO
                         PLAINTIFFS’ SECOND AMENDED COMPLAINT