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CHRISTOPHER B. BRUNI, SBN 116521
SINUNU BRUNI LLP
333 Pine Street, Suite 400 ELECTRONICALLY
San Francisco, CA 94104-3311
(4 FILED
Telephone: (415) 362-9700 Superior Court of California,
Facsimile: (415) 362-9707 County of San Francisco
cbruni@sinunubruni.com 10/16/2020
Attorneys for Defendant, OO uort wn
THERMA CORPORATION Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION
VALERI NISKANEN, ET AL,
Case No.: CGC-19-276813
DEFENDANT THERMA
CORPORATION’S ANSWER TO
COMPLAINT FOR PERSONAL INJURY -
ASBESTOS
Plaintiffs,
GOLDEN GATE DRYWALL, et al.,
Defendants.
SSeS
COMES NOW defendant, THERMA CORPORATION (hereinafter “THERMA” or “Responding
Defendant”) and files its answer to the Complaint of Plaintiffs VALERI NISKANEN, as Successor-in
Interest to and as Wrongful Death Heir of BILLY JOE McCLARY, Deceased; and VICTORIA
BLAKE, TAMLYN ORTEGON, SUSAN FRENCH and STEVEN McCLARY, as Wrongful Death
Heirs of BILLY JOE McCLARY, Deceased.
I. DEFINITIONS
Whenever “Plaintiff” is used in this answer, its reference embraces each Plaintiff or decedent
named in any Complaint in response to which some or all of this Answer has been adopted,
individually and collectively, plus the words, “and each of them,” as well as all other family members
upon whose alleged exposure to asbestos Plaintiff bases his or her claims of paraoccupational
exposure, when relevant.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS,When the context so requires, references to the masculine gender includes the feminine and
neuter, the feminine gender includes the masculine and neuter, the singular includes the plural, and the
plural includes the singular.
Il. GENERAL DENIAL
Pursuant to California Code of Civil Procedure Section 431.30, this Responding Defendant
files its general denial to said Complaint, and denies generally and specifically, each and every
allegation and cause of action in said Complaint, and in this connection, this Defendant denies that
Plaintiff has been injured or damaged in the sums set forth, or in any other sums, or in any manner
whatsoever by reason of any alleged product of, any product allegedly sold by, carelessness,
negligence and/or any alleged act, conduct or omission on the part of this Responding Defendant.
Ti. AFFIRMATIVE DEFENSES
Responding Defendant hereby pleads and sets forth separately and distinctly the following
affirmative defenses to each and every allegation and cause of action of Plaintiffs complaint:
FIRST AFFIRMATIVE DEFENSE
Failure to State Cause of Action
Alleged Against Plaintiff
This Responding Defendant states that neither the Complaint nor any alleged cause of action
therein states facts sufficient to constitute a cause of action against this Responding Defendant.
SECOND AFFIRMATIVE DEFENSE
Violation of Statute of Limitations
Alleged Against Plaintiff
This Responding Defendant states that the Complaint and any alleged cause of action therein,
is barred by the applicable statute of limitations stated in the California Code of Civil Procedure,
including but not limited to Sections 335.1, 337, 337.1, 338(a), 338(d), 338.1, 339(1), 340(a), (b), and
(c), 340.2 (a)(1),(2), (b), (c)(1)(2), 340.8, 343, 350, 353.1, 357, 360.5, 361, 366.1, and California
Commercial Code Section 2725.
THIRD AFFIRMATIVE DEFENSE
Invalid “Doe” Defendant
Alleged Against Plaintiff
Plaintiff was not truly ignorant of Responding Defendant’s identity when the Complaint was
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filed, and therefore is not entitled to avail himself of Code of Civil Procedure section 474 by naming
Responding Defendant as a “Doe” Defendant to avoid the applicable statute of limitations, which has
run. (Hazel v. Hewlett, (2000) 201 Cal.App.3d 1458, 1464-1465.) Accordingly, Plaintiff's action
against this Responding Defendant is barred.
FOURTH AFFIRMATIVE DEFENSE
Laches
Alleged Against Plaintiff
This Responding Defendant states that the Complaint and any alleged cause of action therein
are barred by laches due to Plaintiffs unreasonable delay in commencing said action without any good
cause therefore, and further, as a direct and proximate result of such delay, this Responding Defendant
has been prejudiced.
FIFTH AFFIRMATIVE DEFENSE
Unreasonable Delay in Prosecution
Alleged Against Plaintiff
This Responding Defendant hereby objects that the Complaint and any alleged cause of action
therein should be dismissed for Plaintiff's unreasonable delay in prosecution of this action pursuant to
the Code of Civil Procedure, including but not limited to sections 583.210, 583.240, 583.250, 583.310,
583.360, 583.410, and 583.420 in serving this Responding Defendant or bringing this matter to trial
without any good cause therefore, and further, as a direct and proximate result of such delay, this
Responding Defendant has been prejudiced.
SIXTH AFFIRMATIVE DEFENSE
Denial of Successor/Predecessor Liability
Alleged Against Plaintiff
This Responding Defendant denies any and all liability as a successor, successor in business,
successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor
in product line or a portion thereof, parent, "alter ego," subsidiary, wholly or partially owned, by or the
whole or partial owner of or member in any entity researching, studying, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
servicing, installing, contracting or installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising a certain substance, the generic name of which is
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSasbestos.
SEVENTH AFFIRMATIVE DEFENSE
Lack of Legal Capacity
Alleged Against Plaintiff
This Responding Defendant states that Plaintiff lacked legal capacity to sue, is not a real party
in interest, and is thereby precluded from any recovery whatsoever as prayed for herein.
EIGHTH AFFIRMATIVE DEFENSE
Failure to Join Adequate Defendants
Alleged Against Plaintiff
This Responding Defendant states that the Complaint, and each cause of action thereof, is
barred by the California Code of Civil Procedure, Section 389, in that Plaintiff has failed to join in this
action a party or parties in whose absence complete relief cannot be accorded among defendants
herein, causing this Responding Defendant exposure to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations.
NINTH AFFIRMATIVE DEFENSE
Lack of Privity
Alleged Against Plaintiff
This Responding Defendant states that at all times and places alleged in the Complaint,
Plaintiff was not in privity of contract with this Responding Defendant, and said lack of privity bars
recovery herein upon any theory of warranty.
TENTH AFFIRMATIVE DEFENSE
Contribution of Plaintiff’s Negligence
Alleged Against Plaintiff
Plaintiff was negligent in and about the matters alleged in the Complaint and each and every
alleged cause of action therein. Such negligence proximately caused and contributed to, in whole or in
part, the incidents, injuries, losses and damages alleged. In the event Plaintiff is awarded any
damages, the amount of such should be reduced by the comparative fault of Plaintiff and any person
whose negligent acts or omissions are imputed to Plaintiff.
ELEVENTH AFFIRMATIVE DEFENSE
Consent of Plaintiff
Alleged Against Plaintiff
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSPlaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions,
if any, of this Responding Defendant, thus barring Plaintiff from any relief as prayed for herein.
TWELFTH AFFIRMATIVE DEFENSE
Failure to Mitigate
Alleged Against Plaintiff
Plaintiff failed to exercise due diligence to mitigate the loss, injury or damages alleged herein.
Accordingly, the amount of damages to which Plaintiff is entitled, if any, should be reduced by the
amount of damages which would have otherwise been mitigated and Plaintiff is barred from any
recovery of any injury or damages suffered thereby.
THIRTEENTH AFFIRMATIVE DEFENSE
Knowledge of Hazard / Sophisticated User
Alleged Against Plaintiff
Plaintiff was advised, informed, and warned of any purported hazards and/or dangers, if any,
associated with the normal or foreseeable use, handling, and storage of the products, substances, and
equipment described in the Complaint and was a sophisticated user with regard to same. Plaintiff
knew, or in the exercise of ordinary care should have known, of the purported risks and hazards
involved in the undertaking alleged, was a sophisticated user of said products, but nevertheless freely,
voluntarily and unreasonably consented to assume such purported risks and hazards incident to said
undertaking and conduct, at the time and place alleged in said Complaint, all of which proximately
caused and contributed to any loss, injury or damages alleged.
FOURTEENTH AFFIRMATIVE DEFENSE
Knowledge of Adjacent Hazard / Sophisticated User
Alleged Against Plaintiff
Plaintiff was advised, informed, and warned of any purported hazards or dangers, if any,
associated with the use and misuse, handling and mishandling, and proper and improper storage of the
products, substances, and equipment described in the Complaint, and was sophisticated in the use and
misuse of such products, including products situated near Plaintiff's work. Plaintiff knew, or in the
exercise of ordinary care should have known, of the purported risks and hazards involved in working
with, adjacent to, or in the general vicinity of, such hazardous substances, but nevertheless freely,
voluntarily and unreasonably consented to assume such purported risks and hazards incident to said
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undertaking and conduct, at the times and places alleged in said Complaint, all of which proximately
caused any loss, injury or damages alleged. Because of Plaintiffs sophistication and knowledge of
such risks, their voluntary presence near such hazardous substances, or use of same, was a superseding
cause of Plaintiff's injuries, barring recovery from adjacent workers installing, removing or otherwise
disturbing such products.
FIFTEENTH AFFIRMATIVE DEFENSE
Injury Caused by Actions of Others Outside Control of Defendant
Alleged Against Plaintiff
Any alleged loss, injury or damage incurred by Plaintiff was proximately caused by the
negligent or willful acts or omissions of parties or others whom this Responding Defendant neither
controlled nor had the right to control, and was not proximately or legally caused by any acts,
omissions or other conduct of this Responding Defendant.
SIXTEENTH AFFIRMATIVE DEFENSE
Negligence of Other Entities Caused Injury
Alleged Against Plaintiff
At the time of the injuries alleged in the Complaint, parties other than this Responding
Defendant were negligent in and about the matters referred to in said Complaint, and such negligence
proximately and concurrently contributed to any loss or damage, including non-economic damages,
alleged by Plaintiff. This Responding Defendant shall not be liable for said parties’ proportionate
share of non-economic damages.
SEVENTEENTH AFFIRMATIVE DEFENSE
Entities Not Named Caused the Alleged Injuries
Alleged Against Plaintiff
It is alleged that the sole or partial proximate cause of the injuries, losses, or damages claimed
was the fault, negligence, and/or strict liability of other named defendants, and persons, firms, or
entities not specifically named in the Complaint. In the event of a finding of any against this
Responding Defendant by way of judgment, settlement, or otherwise, this Responding Defendant
requests that an apportionment of fault among all parties be made by the court or jury, and that a
judgment and declaration of partial or total indemnification and contribution against all other parties
be made in accordance with such apportionment of fault. Further, in the event of a finding of liability
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSagainst this Responding Defendant, this Responding Defendant shall be liable only for the amount of
non-economic damages allocated to this Responding Defendant in direct proportion to this Responding
Defendant's percentage of fault in accordance with the Civil Code Section 1431.2.
EIGHTEENTH AFFIRMATIVE DEFENSE
Action is in Violation of Labor Code
Alleged Against Plaintiff
The court lacks subject matter jurisdiction over the matters alleged in said Complaint in that
each alleged cause of action against this Responding Defendant is barred by the provisions of
California Labor Code, Section 3600, 3600 (a) and (b); 3601 (a), (b), (c); and 3602(a), as well as the
special employer doctrine, annunciated in case law, including but not limited to Riley v. Southwest
Marine, (1988) 203 Cal.App.3d 1242 and its progeny.
NINETEENTH AFFIRMATIVE DEFENSE
Employer Negligence Caused the Alleged Injuries
Alleged Against Plaintiff
This Responding Defendant states that at the time of the injuries alleged in the Complaint,
certain of Plaintiff's employers were negligent in and about the matters alleged, and that such
negligence proximately and concurrently caused and/or contributed to any loss, injuries or damages,
including non-economic damages alleged by Plaintiff. This Responding Defendant is not liable for
said employers’ proportionate share of non-economic damages.
TWENTIETH AFFIRMATIVE DEFENSE
Knowing Acts of Plaintiff’s Employer
Caused the Alleged Injuries
Alleged Against Plaintiff
Certain of Plaintiff's employers voluntarily and knowingly entered into and engaged in the
operations, acts and conduct alleged in said Complaint, and voluntarily and knowingly assumed the
risks incident to said operations, acts and conduct at the time and place alleged in the Complaint. The
operations, acts and conduct of certain of Plaintiffs employers were the cause of the injuries alleged in
the Complaint, and this Responding Defendant is not liable or at fault for such injuries.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Judgment to be Reduced by Workers' Compensation Benefits
Alleged Against Plaintiff
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSAt all times material herein, Plaintiff was employed by various employers, the names of which
are currently unknown to this Responding Defendant, and was working within the course and scope of
their employment. Each such employer and Plaintiff was subject to the provisions of the Workman's
Compensation Act of the State of California which entitled Plaintiff to receive Workers' Compensation
benefits from such employers. Certain sums have been paid to or on behalf of Plaintiff under the
applicable provisions of the Labor Code of the State of California. Certain of such employers were
negligent and careless in and about the matters alleged in the Complaint and such negligence and
carelessness proximately and concurrently contributed to and caused the incidents complained of and
injuries and damages alleged. Any judgment rendered in favor of Plaintiff must be reduced, as a set-
off, by any benefits or payments made or to be made by the employer or the employers' compensation
carrier under authority of Witt v. Jackson (1961) 57 Cal.2d 57.
In the event Plaintiff is awarded damages against this Responding Defendant, this Responding
Defendant claims a credit against such award to the extent that this Responding Defendant is barred
from enforcing its rights to reimbursement for Workers’ Compensation benefits that Plaintiff have
received or may in the future receive.
Although this Responding Defendant denies the validity of Plaintiffs claims, in the event those
tort claims are held valid and not barred by the statute of limitations or otherwise, this Responding
Defendant asserts that cross-demands for money have existed between Plaintiff and this Responding
Defendant and the demands are compensated, so far as they equal each other, pursuant to California
Code of Civil Procedure Section 431.70.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Products Conformed With Existing Safety Knowledge
Alleged Against Plaintiff
Plaintiff is barred from recovery in that all products allegedly formulated, sold, distributed or
produced by this Responding Defendant were in conformity with the existing state-of-the-art
applicable at the time of their manufacture, sale, formulation or distribution, and thus, such products
were not defective in any manner.
Mil
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSTWENTY-THIRD AFFIRMATIVE DEFENSE
Products Were Unforeseeably Misused
Alleged Against Plaintiff
The products allegedly sold or distributed and referred to in the Complaint were properly
designed, manufactured, and fit for the purpose for which they were intended. Said products were
improperly maintained, misused, and/or abused by Plaintiff and/or others and proximately caused
Plaintiff's alleged damages, thus barring recovery herein. Such misuse, abuse or improper
maintenance was not reasonably foreseeable to this Responding Defendant.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Negligent Product Use by Plaintiff’s Sophisticated Employers
Was Proximate, Superseding Cause of Alleged Injuries
Alleged Against Plaintiff
This Responding Defendant states that the Plaintiff is barred from recovery herein, because of
modification, alteration or change in some other manner, of the product(s) alleged in Plaintiffs
Complaint. Certain of Plaintiff's employers were sophisticated users/intermediaries of asbestos-
containing products and said employers’ negligence in providing such equipment and material to its
employees in an altered, modified, negligent, careless and reckless manner was a superseding
intervening cause of Plaintiffs alleged injuries.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Failure to Warn Plaintiff by Plaintiff’s Sophisticated
Employers Caused the Alleged Injuries
Alleged Against Plaintiff
This Responding Defendant states that certain of Plaintiff's employer or employers, by reason
of advice, information, warnings, and use, handling and storage information given to them, and/or by
reason of their long standing and continuous experience with the products, substances, and equipment
alleged, are and were sophisticated users, intermediaries, handlers, and storers of any and all such
products, substances, garments and equipment, and thus acquired a separate and affirmative duty to
warn, advise and inform Plaintiff of any potential harmful effects from the mishandling, misstorage,
and/or misuse of the subject products, if any. Certain of such employers failed to so warn Plaintiff and
thereby breached said duty. Such failure and breach directly and proximately caused all damages,
injuries, and losses alleged.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSTWENTY-SIXTH AFFIRMATIVE DEFENSE
Failure to State Market Share Cause of Action
Alleged Against Plaintiff
This Responding Defendant states that the Complaint fails to state facts sufficient to constitute
a cause of action against this Defendant, to the extent it asserts and bases a claim upon “alternative,”
“market share,” or “enterprise liability.”
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Failure to Join a Substantial Share of the
Market Defeating Market Share Theory
Alleged Against Plaintiff
This Responding Defendant has never possessed a substantial percentage of the market, if any,
for the alleged asbestos-containing products which allegedly caused Plaintiff's injuries. Further,
Plaintiff has failed to join in this action Defendants representing a substantial share of said market.
Therefore, this Responding Defendant shall not be liable to Plaintiff based on its alleged percentage
share of the applicable market.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Liability Absent Identification Violates
Constitutional Rights
Alleged Against Plaintiff
The Complaint, and each cause of action therein, which is admittedly based upon a lack of
identification of the manufacturer of the alleged injury causing product, fails to state facts sufficient to
constitute a cause of action in that Plaintiff has asserted a claim for relief which, if granted, would
contravene this Responding Defendant's constitutional rights to substantive and procedural due process
and equal protection laws as required by the Fourteenth Amendment to the United States Constitution,
and by Article I, Section 7 of the Constitution of the State of California, and further, if granted would
constitute the taking of private property for public use without just compensation and would deprive
this Responding Defendant of its property in contravention of the Fifth and Fourteenth Amendments to
the United States Constitution and Article I, Sections 7 and 19 of the Constitution of the State of
California, and the applicable California statutes.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Actions of Defendant Conformed to Existing Knowledge
And So Were Not Negligent
Alleged Against Plaintiff
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Plaintiff is barred from recovery in that all actions taken by this Responding Defendant that
involved the handling, disturbing, manipulation or dissemination, if any, of asbestos were done in
conformity with the existing state-of-the-art applicable at the time of such acts, and thus, such actions
were not negligent, and no liability can result.
THIRTIETH AFFIRMATIVE DEFENSE
Plaintiff Were Directed by Contractor
That Was Not Controlled by Defendant
Alleged Against Plaintiff
This Responding Defendant is not liable for any injury to Plaintiff, the existence of which
injuries are denied, in that Plaintiff was employed by others as an independent contractor or worked
for an independent contractor hired by this Responding Defendant or its contractors, during any time at
which they worked at a site ostensibly controlled by this Responding Defendant, and this Responding
Defendant did not in any fashion direct the manner in which Plaintiff's job duties were accomplished,
nor control the environment in which those job duties were accomplished.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Defendant is not Liable Because of
Lack of Control of Work Site
Alleged Against Plaintiff
This Responding Defendant is not liable for any of Plaintiff's injuries and damages, the
existence of which is denied, pursuant to the holding of the Court in Privette v. Superior Court (1993)
5 Cal.4th 689, and the cases that follow Priverte in that this Defendant was not negligent, did not
control Plaintiffs activities, and did not cause Plaintiff's injuries.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Defendant Has No Liability Because Defendant
Retained Independent Contractor Employer of Plaintiff
Alleged Against Plaintiff
If Plaintiff has developed any injury, which this Responding Defendant denies, as a result of
being the employee of a sub-contractor retained by this Responding Defendant, their exclusive remedy
is workers' compensation, in that this Responding Defendant has no liability for any negligence of
Plaintiffs employer, nor any liability for negligence of any other sub-contractors on the site, and this
Responding Defendant effectively provided the payments for any workers’ compensation policy in
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effect to provide compensation to Plaintiff.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Defendant is Not Liable Because of
Knowledge of Hazard by Controlling Entity
Alleged Against Plaintiff
Any work performed by this Responding Defendant in the capacity of a contractor or general
contractor was conducted according to the specifications of the entity that owned or controlled the site
of any relevant actions, and under the direction and supervision of persons and entities that owned or
controlled the site, which entities had equal or superior knowledge regarding asbestos and the potential
health effects of asbestos-containing products, and superior knowledge regarding the potential for the
presence of asbestos on properties owned or controlled by those entities. This Responding Defendant
is not liable for any injuries to Plaintiff because of the lack of control of the site, and lack of superior
knowledge regarding potential hazards at the site, if any. Further, this Responding Defendant is not
liable for any injuries to Plaintiff, during any time at which they worked at a site ostensibly controlled
by this Responding Defendant, because it was not itself actually on notice of a concealed hazardous
condition at the site, if any.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s Status as "Borrowed Employee"
Limits Remedies to Workers' Compensation
Alleged Against Plaintiff
At the time that Plaintiff incurred their alleged injuries, which injuries are disputed by this
Defendant, Plaintiff was working in the capacity of a “borrowed employee”, and thus Plaintiff's
remedies against this Responding Defendant are limited to workers’ compensation remedies.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Complaint Fails to State Cause of Action
For Punitive Damages
Alleged Against Plaintiff
This Responding Defendant states that neither the Complaint nor any alleged cause of action
therein states facts sufficient to allow Plaintiff an award of punitive damages.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Imposition of Punitive Damages
Would Constitute Criminal Fine or Penalty
Alleged Against Plaintiff
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The causes of action asserted herein by Plaintiff fail to state facts sufficient to constitute a
cause of action, in that Plaintiff may have asserted claims for punitive damages which, if granted,
would violate the prohibition against laws impairing the obligation of contracts set forth in Article I,
Section 10 of the United States Constitution and further, if granted would contravene this Responding
Defendant's constitutional right to be free of excessive fines as set forth in the Eighth Amendment to
the United States Constitution.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
An Award of Punitive Damages Would Be
In Violation of California Law
Alleged Against Plaintiff
Plaintiff's claim for punitive damages, if any, against this Responding Defendant should not be
sustained, because an award of punitive damages under California law by a jury that (1) is not
provided a standard of sufficient clarity for determining the appropriateness, or the appropriate size, of
a punitive damages award, (2) is not instructed on the limits of punitive damages imposed by the
applicable principles of deterrence and punishment, (3) is not expressly prohibited from awarding
punitive damages, or determining the amount of an award of punitive damages in whole or in part, on
the basis of invidiously discriminatory characteristics, including the corporate status of this
Responding Defendant, (4) is permitted to award punitive damages under a standard for determining
liability for punitive damages that is vague and arbitrary and does not define with sufficient clarity the
conduct or mental state that makes punitive damages permissible, and (5) is not subject to judicial
review on the basis of objective standards, would violate this Responding Defendant's due process and
equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution and
double jeopardy clause of the Fifth Amendment as incorporated into the Fourteenth Amendment and
the California Constitution's provisions providing for due process, equal protection, and guaranty
against double jeopardy.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Action Violates Rule Against Splitting Cause of Action
Alleged Against Plaintiff
This action violates California law against splitting a cause of action, in that Plaintiff has sued
this Responding Defendant and other Defendant parties to this case in another State, that other action
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOShaving been filed prior to the filing of this case.
THIRTY-NINTH AFFIRMATIVE DEFENSE
No Failure To Warn
Responding Defendant alleges that, as ruled in O’Neil v. Crane Co. (2012) 53 Cal.4th 335,
Responding Defendant was under no legal duty to warn Plaintiff of the alleged dangers in materials
manufactured by others that may have been used in or with Responding Defendant's alleged products.
if any.
FORTIETH AFFIRMATIVE DEFENSE
Not in Chain of Distribution
Responding Defendant alleges that, as ruled in O'Neil v. Crane Co. (2012) 53 Cal.4th 335,
Responding Defendant was not a part of the manufacturing or marketing enterprise, or chain of
distribution, of the allegedly defective product(s), if any, that allegedly caused the injury in question.
FORTY-FIRST AFFIRMATIVE DEFENSE
Component Parts
Responding Defendant is not liable for other manufacturers’ allegedly defective component
part(s) that may have been used in or with its alleged product, if any, under the component parts
doctrine, as ruled in O’Neil v. Crane Co. (2012) 53 Cal.4th 335.
FORTY-SECOND AFFIRMATIVE DEFENSE
Action Violates Labor Code Section 6304.5
Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said
complaint for negligence per se are barred by California Labor Code Section 6304.5 and derivative
authority.
FORTY-THIRD AFFIRMATIVE DEFENSE
Improper Venue
Alleged Against Plaintiff
Plaintiffs claims are barred by applicable state and/or federal venue provisions.
FORTY-FOURTH AFFIRMATIVE DEFENSE
Forum Non Conveniens
Alleged Against Plaintiff
Plaintiff's claims are due to be dismissed under the doctrine of forum non conveniens.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS,FORTY-FIFTH AFFIRMATIVE DEFENSE
Failure to Join Bankrupt or Trust Entities as Defendants
Alleged Against Plaintiff
This Responding Defendant states that the Complaint, and each cause of action thereof, is
barred by California Code of Civil Procedure section 389 in that Plaintiff has failed to join a party or
parties in this action, specifically, those entities which are now bankrupt or whose liabilities are
covered by a trust, in whose absence complete relief cannot be accorded among defendants herein,
causing this Responding Defendant exposure to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations.
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IV. PRAYER
WHEREFORE, this Responding Defendant prays:
1.
2
3.
4
Pursuant to California Code of Civil Procedure § 631, this Responding Defendant hereby gives
That Plaintiff take nothing by this Complaint;
That judgment be entered in favor of Defendant;
For recovery of Defendant's costs of suit;
For appropriate credits and set-offs arising out of any payment of Workers’
Compensation benefits as alleged above;
For appropriate credits and set-offs arising from allocation of liability to other named
and unnamed tortfeasors; and
For such other and further relief as the court deems just and proper.
V. NOTICE OF REQUEST FOR JURY TRIAL
notice of its request for trial by jury.
Dated: October 16, 2020
(\\
SINUNU BRUNI LLP
\ | ) ON.
4
‘ ‘EHRISTOPHER B. BRUNI
Attorneys for Defendant,
THERMA CORPORATION
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSPROOF OF SERVICE
Valeri Niskanen, et al. v. Golden Gate Drywall, et al.
San Francisco County Superior Court Case No. CGC-19-276813
I am over the age of eighteen years and not a party to the above-captioned matter.
My business address is 333 Pine Street, Suite 400, San Francisco, California 94104-3311,
where the service described below took place on the date set forth below.
Person(s) Served and Manner of Service:
Electronic Service: On the date executed below, I electronically served the
document(s) described below via File & ServeXpress on each recipient designated
on the Transaction Receipt located on the File & ServeXpress website.
Document(s) Served:
DEFENDANT THERMA CORPORATION’S ANSWER TO COMPLAINT FOR
PERSONAL INJURY - ASBESTOS
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: October 16, 2020
Elizabe imo
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PROOF OF SERVICE
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CHRISTOPHER B. BRUNI, SBN 116521 SINUNU BRUNI LLP 333 Pine Street, Suite 400 ELECTRONICALLY San Francisco, CA 94104-3311 (4 FILED Telephone: (415) 362-9700 Superior Court of California, Facsimile: (415) 362-9707 County of San Francisco cbruni@sinunubruni.com 10/16/2020 Attorneys for Defendant, OO uort wn THERMA CORPORATION Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION VALERI NISKANEN, ET AL, Case No.: CGC-19-276813 DEFENDANT THERMA CORPORATION’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS Plaintiffs, GOLDEN GATE DRYWALL, et al., Defendants. SSeS COMES NOW defendant, THERMA CORPORATION (hereinafter “THERMA” or “Responding Defendant”) and files its answer to the Complaint of Plaintiffs VALERI NISKANEN, as Successor-in Interest to and as Wrongful Death Heir of BILLY JOE McCLARY, Deceased; and VICTORIA BLAKE, TAMLYN ORTEGON, SUSAN FRENCH and STEVEN McCLARY, as Wrongful Death Heirs of BILLY JOE McCLARY, Deceased. I. DEFINITIONS Whenever “Plaintiff” is used in this answer, its reference embraces each Plaintiff or decedent named in any Complaint in response to which some or all of this Answer has been adopted, individually and collectively, plus the words, “and each of them,” as well as all other family members upon whose alleged exposure to asbestos Plaintiff bases his or her claims of paraoccupational exposure, when relevant. 1 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS,When the context so requires, references to the masculine gender includes the feminine and neuter, the feminine gender includes the masculine and neuter, the singular includes the plural, and the plural includes the singular. Il. GENERAL DENIAL Pursuant to California Code of Civil Procedure Section 431.30, this Responding Defendant files its general denial to said Complaint, and denies generally and specifically, each and every allegation and cause of action in said Complaint, and in this connection, this Defendant denies that Plaintiff has been injured or damaged in the sums set forth, or in any other sums, or in any manner whatsoever by reason of any alleged product of, any product allegedly sold by, carelessness, negligence and/or any alleged act, conduct or omission on the part of this Responding Defendant. Ti. AFFIRMATIVE DEFENSES Responding Defendant hereby pleads and sets forth separately and distinctly the following affirmative defenses to each and every allegation and cause of action of Plaintiffs complaint: FIRST AFFIRMATIVE DEFENSE Failure to State Cause of Action Alleged Against Plaintiff This Responding Defendant states that neither the Complaint nor any alleged cause of action therein states facts sufficient to constitute a cause of action against this Responding Defendant. SECOND AFFIRMATIVE DEFENSE Violation of Statute of Limitations Alleged Against Plaintiff This Responding Defendant states that the Complaint and any alleged cause of action therein, is barred by the applicable statute of limitations stated in the California Code of Civil Procedure, including but not limited to Sections 335.1, 337, 337.1, 338(a), 338(d), 338.1, 339(1), 340(a), (b), and (c), 340.2 (a)(1),(2), (b), (c)(1)(2), 340.8, 343, 350, 353.1, 357, 360.5, 361, 366.1, and California Commercial Code Section 2725. THIRD AFFIRMATIVE DEFENSE Invalid “Doe” Defendant Alleged Against Plaintiff Plaintiff was not truly ignorant of Responding Defendant’s identity when the Complaint was 2 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS27 28 filed, and therefore is not entitled to avail himself of Code of Civil Procedure section 474 by naming Responding Defendant as a “Doe” Defendant to avoid the applicable statute of limitations, which has run. (Hazel v. Hewlett, (2000) 201 Cal.App.3d 1458, 1464-1465.) Accordingly, Plaintiff's action against this Responding Defendant is barred. FOURTH AFFIRMATIVE DEFENSE Laches Alleged Against Plaintiff This Responding Defendant states that the Complaint and any alleged cause of action therein are barred by laches due to Plaintiffs unreasonable delay in commencing said action without any good cause therefore, and further, as a direct and proximate result of such delay, this Responding Defendant has been prejudiced. FIFTH AFFIRMATIVE DEFENSE Unreasonable Delay in Prosecution Alleged Against Plaintiff This Responding Defendant hereby objects that the Complaint and any alleged cause of action therein should be dismissed for Plaintiff's unreasonable delay in prosecution of this action pursuant to the Code of Civil Procedure, including but not limited to sections 583.210, 583.240, 583.250, 583.310, 583.360, 583.410, and 583.420 in serving this Responding Defendant or bringing this matter to trial without any good cause therefore, and further, as a direct and proximate result of such delay, this Responding Defendant has been prejudiced. SIXTH AFFIRMATIVE DEFENSE Denial of Successor/Predecessor Liability Alleged Against Plaintiff This Responding Defendant denies any and all liability as a successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, "alter ego," subsidiary, wholly or partially owned, by or the whole or partial owner of or member in any entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting or installation, repairing, marketing, warranting, rebranding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is 3 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSasbestos. SEVENTH AFFIRMATIVE DEFENSE Lack of Legal Capacity Alleged Against Plaintiff This Responding Defendant states that Plaintiff lacked legal capacity to sue, is not a real party in interest, and is thereby precluded from any recovery whatsoever as prayed for herein. EIGHTH AFFIRMATIVE DEFENSE Failure to Join Adequate Defendants Alleged Against Plaintiff This Responding Defendant states that the Complaint, and each cause of action thereof, is barred by the California Code of Civil Procedure, Section 389, in that Plaintiff has failed to join in this action a party or parties in whose absence complete relief cannot be accorded among defendants herein, causing this Responding Defendant exposure to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations. NINTH AFFIRMATIVE DEFENSE Lack of Privity Alleged Against Plaintiff This Responding Defendant states that at all times and places alleged in the Complaint, Plaintiff was not in privity of contract with this Responding Defendant, and said lack of privity bars recovery herein upon any theory of warranty. TENTH AFFIRMATIVE DEFENSE Contribution of Plaintiff’s Negligence Alleged Against Plaintiff Plaintiff was negligent in and about the matters alleged in the Complaint and each and every alleged cause of action therein. Such negligence proximately caused and contributed to, in whole or in part, the incidents, injuries, losses and damages alleged. In the event Plaintiff is awarded any damages, the amount of such should be reduced by the comparative fault of Plaintiff and any person whose negligent acts or omissions are imputed to Plaintiff. ELEVENTH AFFIRMATIVE DEFENSE Consent of Plaintiff Alleged Against Plaintiff 4 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSPlaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this Responding Defendant, thus barring Plaintiff from any relief as prayed for herein. TWELFTH AFFIRMATIVE DEFENSE Failure to Mitigate Alleged Against Plaintiff Plaintiff failed to exercise due diligence to mitigate the loss, injury or damages alleged herein. Accordingly, the amount of damages to which Plaintiff is entitled, if any, should be reduced by the amount of damages which would have otherwise been mitigated and Plaintiff is barred from any recovery of any injury or damages suffered thereby. THIRTEENTH AFFIRMATIVE DEFENSE Knowledge of Hazard / Sophisticated User Alleged Against Plaintiff Plaintiff was advised, informed, and warned of any purported hazards and/or dangers, if any, associated with the normal or foreseeable use, handling, and storage of the products, substances, and equipment described in the Complaint and was a sophisticated user with regard to same. Plaintiff knew, or in the exercise of ordinary care should have known, of the purported risks and hazards involved in the undertaking alleged, was a sophisticated user of said products, but nevertheless freely, voluntarily and unreasonably consented to assume such purported risks and hazards incident to said undertaking and conduct, at the time and place alleged in said Complaint, all of which proximately caused and contributed to any loss, injury or damages alleged. FOURTEENTH AFFIRMATIVE DEFENSE Knowledge of Adjacent Hazard / Sophisticated User Alleged Against Plaintiff Plaintiff was advised, informed, and warned of any purported hazards or dangers, if any, associated with the use and misuse, handling and mishandling, and proper and improper storage of the products, substances, and equipment described in the Complaint, and was sophisticated in the use and misuse of such products, including products situated near Plaintiff's work. Plaintiff knew, or in the exercise of ordinary care should have known, of the purported risks and hazards involved in working with, adjacent to, or in the general vicinity of, such hazardous substances, but nevertheless freely, voluntarily and unreasonably consented to assume such purported risks and hazards incident to said 5 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS27 28 undertaking and conduct, at the times and places alleged in said Complaint, all of which proximately caused any loss, injury or damages alleged. Because of Plaintiffs sophistication and knowledge of such risks, their voluntary presence near such hazardous substances, or use of same, was a superseding cause of Plaintiff's injuries, barring recovery from adjacent workers installing, removing or otherwise disturbing such products. FIFTEENTH AFFIRMATIVE DEFENSE Injury Caused by Actions of Others Outside Control of Defendant Alleged Against Plaintiff Any alleged loss, injury or damage incurred by Plaintiff was proximately caused by the negligent or willful acts or omissions of parties or others whom this Responding Defendant neither controlled nor had the right to control, and was not proximately or legally caused by any acts, omissions or other conduct of this Responding Defendant. SIXTEENTH AFFIRMATIVE DEFENSE Negligence of Other Entities Caused Injury Alleged Against Plaintiff At the time of the injuries alleged in the Complaint, parties other than this Responding Defendant were negligent in and about the matters referred to in said Complaint, and such negligence proximately and concurrently contributed to any loss or damage, including non-economic damages, alleged by Plaintiff. This Responding Defendant shall not be liable for said parties’ proportionate share of non-economic damages. SEVENTEENTH AFFIRMATIVE DEFENSE Entities Not Named Caused the Alleged Injuries Alleged Against Plaintiff It is alleged that the sole or partial proximate cause of the injuries, losses, or damages claimed was the fault, negligence, and/or strict liability of other named defendants, and persons, firms, or entities not specifically named in the Complaint. In the event of a finding of any against this Responding Defendant by way of judgment, settlement, or otherwise, this Responding Defendant requests that an apportionment of fault among all parties be made by the court or jury, and that a judgment and declaration of partial or total indemnification and contribution against all other parties be made in accordance with such apportionment of fault. Further, in the event of a finding of liability 6 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSagainst this Responding Defendant, this Responding Defendant shall be liable only for the amount of non-economic damages allocated to this Responding Defendant in direct proportion to this Responding Defendant's percentage of fault in accordance with the Civil Code Section 1431.2. EIGHTEENTH AFFIRMATIVE DEFENSE Action is in Violation of Labor Code Alleged Against Plaintiff The court lacks subject matter jurisdiction over the matters alleged in said Complaint in that each alleged cause of action against this Responding Defendant is barred by the provisions of California Labor Code, Section 3600, 3600 (a) and (b); 3601 (a), (b), (c); and 3602(a), as well as the special employer doctrine, annunciated in case law, including but not limited to Riley v. Southwest Marine, (1988) 203 Cal.App.3d 1242 and its progeny. NINETEENTH AFFIRMATIVE DEFENSE Employer Negligence Caused the Alleged Injuries Alleged Against Plaintiff This Responding Defendant states that at the time of the injuries alleged in the Complaint, certain of Plaintiff's employers were negligent in and about the matters alleged, and that such negligence proximately and concurrently caused and/or contributed to any loss, injuries or damages, including non-economic damages alleged by Plaintiff. This Responding Defendant is not liable for said employers’ proportionate share of non-economic damages. TWENTIETH AFFIRMATIVE DEFENSE Knowing Acts of Plaintiff’s Employer Caused the Alleged Injuries Alleged Against Plaintiff Certain of Plaintiff's employers voluntarily and knowingly entered into and engaged in the operations, acts and conduct alleged in said Complaint, and voluntarily and knowingly assumed the risks incident to said operations, acts and conduct at the time and place alleged in the Complaint. The operations, acts and conduct of certain of Plaintiffs employers were the cause of the injuries alleged in the Complaint, and this Responding Defendant is not liable or at fault for such injuries. TWENTY-FIRST AFFIRMATIVE DEFENSE Judgment to be Reduced by Workers' Compensation Benefits Alleged Against Plaintiff 7 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSAt all times material herein, Plaintiff was employed by various employers, the names of which are currently unknown to this Responding Defendant, and was working within the course and scope of their employment. Each such employer and Plaintiff was subject to the provisions of the Workman's Compensation Act of the State of California which entitled Plaintiff to receive Workers' Compensation benefits from such employers. Certain sums have been paid to or on behalf of Plaintiff under the applicable provisions of the Labor Code of the State of California. Certain of such employers were negligent and careless in and about the matters alleged in the Complaint and such negligence and carelessness proximately and concurrently contributed to and caused the incidents complained of and injuries and damages alleged. Any judgment rendered in favor of Plaintiff must be reduced, as a set- off, by any benefits or payments made or to be made by the employer or the employers' compensation carrier under authority of Witt v. Jackson (1961) 57 Cal.2d 57. In the event Plaintiff is awarded damages against this Responding Defendant, this Responding Defendant claims a credit against such award to the extent that this Responding Defendant is barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that Plaintiff have received or may in the future receive. Although this Responding Defendant denies the validity of Plaintiffs claims, in the event those tort claims are held valid and not barred by the statute of limitations or otherwise, this Responding Defendant asserts that cross-demands for money have existed between Plaintiff and this Responding Defendant and the demands are compensated, so far as they equal each other, pursuant to California Code of Civil Procedure Section 431.70. TWENTY-SECOND AFFIRMATIVE DEFENSE Products Conformed With Existing Safety Knowledge Alleged Against Plaintiff Plaintiff is barred from recovery in that all products allegedly formulated, sold, distributed or produced by this Responding Defendant were in conformity with the existing state-of-the-art applicable at the time of their manufacture, sale, formulation or distribution, and thus, such products were not defective in any manner. Mil 8 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSTWENTY-THIRD AFFIRMATIVE DEFENSE Products Were Unforeseeably Misused Alleged Against Plaintiff The products allegedly sold or distributed and referred to in the Complaint were properly designed, manufactured, and fit for the purpose for which they were intended. Said products were improperly maintained, misused, and/or abused by Plaintiff and/or others and proximately caused Plaintiff's alleged damages, thus barring recovery herein. Such misuse, abuse or improper maintenance was not reasonably foreseeable to this Responding Defendant. TWENTY-FOURTH AFFIRMATIVE DEFENSE Negligent Product Use by Plaintiff’s Sophisticated Employers Was Proximate, Superseding Cause of Alleged Injuries Alleged Against Plaintiff This Responding Defendant states that the Plaintiff is barred from recovery herein, because of modification, alteration or change in some other manner, of the product(s) alleged in Plaintiffs Complaint. Certain of Plaintiff's employers were sophisticated users/intermediaries of asbestos- containing products and said employers’ negligence in providing such equipment and material to its employees in an altered, modified, negligent, careless and reckless manner was a superseding intervening cause of Plaintiffs alleged injuries. TWENTY-FIFTH AFFIRMATIVE DEFENSE Failure to Warn Plaintiff by Plaintiff’s Sophisticated Employers Caused the Alleged Injuries Alleged Against Plaintiff This Responding Defendant states that certain of Plaintiff's employer or employers, by reason of advice, information, warnings, and use, handling and storage information given to them, and/or by reason of their long standing and continuous experience with the products, substances, and equipment alleged, are and were sophisticated users, intermediaries, handlers, and storers of any and all such products, substances, garments and equipment, and thus acquired a separate and affirmative duty to warn, advise and inform Plaintiff of any potential harmful effects from the mishandling, misstorage, and/or misuse of the subject products, if any. Certain of such employers failed to so warn Plaintiff and thereby breached said duty. Such failure and breach directly and proximately caused all damages, injuries, and losses alleged. 9 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSTWENTY-SIXTH AFFIRMATIVE DEFENSE Failure to State Market Share Cause of Action Alleged Against Plaintiff This Responding Defendant states that the Complaint fails to state facts sufficient to constitute a cause of action against this Defendant, to the extent it asserts and bases a claim upon “alternative,” “market share,” or “enterprise liability.” TWENTY-SEVENTH AFFIRMATIVE DEFENSE Failure to Join a Substantial Share of the Market Defeating Market Share Theory Alleged Against Plaintiff This Responding Defendant has never possessed a substantial percentage of the market, if any, for the alleged asbestos-containing products which allegedly caused Plaintiff's injuries. Further, Plaintiff has failed to join in this action Defendants representing a substantial share of said market. Therefore, this Responding Defendant shall not be liable to Plaintiff based on its alleged percentage share of the applicable market. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Liability Absent Identification Violates Constitutional Rights Alleged Against Plaintiff The Complaint, and each cause of action therein, which is admittedly based upon a lack of identification of the manufacturer of the alleged injury causing product, fails to state facts sufficient to constitute a cause of action in that Plaintiff has asserted a claim for relief which, if granted, would contravene this Responding Defendant's constitutional rights to substantive and procedural due process and equal protection laws as required by the Fourteenth Amendment to the United States Constitution, and by Article I, Section 7 of the Constitution of the State of California, and further, if granted would constitute the taking of private property for public use without just compensation and would deprive this Responding Defendant of its property in contravention of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 7 and 19 of the Constitution of the State of California, and the applicable California statutes. TWENTY-NINTH AFFIRMATIVE DEFENSE Actions of Defendant Conformed to Existing Knowledge And So Were Not Negligent Alleged Against Plaintiff 10 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS27 28 Plaintiff is barred from recovery in that all actions taken by this Responding Defendant that involved the handling, disturbing, manipulation or dissemination, if any, of asbestos were done in conformity with the existing state-of-the-art applicable at the time of such acts, and thus, such actions were not negligent, and no liability can result. THIRTIETH AFFIRMATIVE DEFENSE Plaintiff Were Directed by Contractor That Was Not Controlled by Defendant Alleged Against Plaintiff This Responding Defendant is not liable for any injury to Plaintiff, the existence of which injuries are denied, in that Plaintiff was employed by others as an independent contractor or worked for an independent contractor hired by this Responding Defendant or its contractors, during any time at which they worked at a site ostensibly controlled by this Responding Defendant, and this Responding Defendant did not in any fashion direct the manner in which Plaintiff's job duties were accomplished, nor control the environment in which those job duties were accomplished. THIRTY-FIRST AFFIRMATIVE DEFENSE Defendant is not Liable Because of Lack of Control of Work Site Alleged Against Plaintiff This Responding Defendant is not liable for any of Plaintiff's injuries and damages, the existence of which is denied, pursuant to the holding of the Court in Privette v. Superior Court (1993) 5 Cal.4th 689, and the cases that follow Priverte in that this Defendant was not negligent, did not control Plaintiffs activities, and did not cause Plaintiff's injuries. THIRTY-SECOND AFFIRMATIVE DEFENSE Defendant Has No Liability Because Defendant Retained Independent Contractor Employer of Plaintiff Alleged Against Plaintiff If Plaintiff has developed any injury, which this Responding Defendant denies, as a result of being the employee of a sub-contractor retained by this Responding Defendant, their exclusive remedy is workers' compensation, in that this Responding Defendant has no liability for any negligence of Plaintiffs employer, nor any liability for negligence of any other sub-contractors on the site, and this Responding Defendant effectively provided the payments for any workers’ compensation policy in ll ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS27 28 effect to provide compensation to Plaintiff. THIRTY-THIRD AFFIRMATIVE DEFENSE Defendant is Not Liable Because of Knowledge of Hazard by Controlling Entity Alleged Against Plaintiff Any work performed by this Responding Defendant in the capacity of a contractor or general contractor was conducted according to the specifications of the entity that owned or controlled the site of any relevant actions, and under the direction and supervision of persons and entities that owned or controlled the site, which entities had equal or superior knowledge regarding asbestos and the potential health effects of asbestos-containing products, and superior knowledge regarding the potential for the presence of asbestos on properties owned or controlled by those entities. This Responding Defendant is not liable for any injuries to Plaintiff because of the lack of control of the site, and lack of superior knowledge regarding potential hazards at the site, if any. Further, this Responding Defendant is not liable for any injuries to Plaintiff, during any time at which they worked at a site ostensibly controlled by this Responding Defendant, because it was not itself actually on notice of a concealed hazardous condition at the site, if any. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiff’s Status as "Borrowed Employee" Limits Remedies to Workers' Compensation Alleged Against Plaintiff At the time that Plaintiff incurred their alleged injuries, which injuries are disputed by this Defendant, Plaintiff was working in the capacity of a “borrowed employee”, and thus Plaintiff's remedies against this Responding Defendant are limited to workers’ compensation remedies. THIRTY-FIFTH AFFIRMATIVE DEFENSE Complaint Fails to State Cause of Action For Punitive Damages Alleged Against Plaintiff This Responding Defendant states that neither the Complaint nor any alleged cause of action therein states facts sufficient to allow Plaintiff an award of punitive damages. THIRTY-SIXTH AFFIRMATIVE DEFENSE Imposition of Punitive Damages Would Constitute Criminal Fine or Penalty Alleged Against Plaintiff 12 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS27 28 The causes of action asserted herein by Plaintiff fail to state facts sufficient to constitute a cause of action, in that Plaintiff may have asserted claims for punitive damages which, if granted, would violate the prohibition against laws impairing the obligation of contracts set forth in Article I, Section 10 of the United States Constitution and further, if granted would contravene this Responding Defendant's constitutional right to be free of excessive fines as set forth in the Eighth Amendment to the United States Constitution. THIRTY-SEVENTH AFFIRMATIVE DEFENSE An Award of Punitive Damages Would Be In Violation of California Law Alleged Against Plaintiff Plaintiff's claim for punitive damages, if any, against this Responding Defendant should not be sustained, because an award of punitive damages under California law by a jury that (1) is not provided a standard of sufficient clarity for determining the appropriateness, or the appropriate size, of a punitive damages award, (2) is not instructed on the limits of punitive damages imposed by the applicable principles of deterrence and punishment, (3) is not expressly prohibited from awarding punitive damages, or determining the amount of an award of punitive damages in whole or in part, on the basis of invidiously discriminatory characteristics, including the corporate status of this Responding Defendant, (4) is permitted to award punitive damages under a standard for determining liability for punitive damages that is vague and arbitrary and does not define with sufficient clarity the conduct or mental state that makes punitive damages permissible, and (5) is not subject to judicial review on the basis of objective standards, would violate this Responding Defendant's due process and equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution and double jeopardy clause of the Fifth Amendment as incorporated into the Fourteenth Amendment and the California Constitution's provisions providing for due process, equal protection, and guaranty against double jeopardy. THIRTY-EIGHTH AFFIRMATIVE DEFENSE Action Violates Rule Against Splitting Cause of Action Alleged Against Plaintiff This action violates California law against splitting a cause of action, in that Plaintiff has sued this Responding Defendant and other Defendant parties to this case in another State, that other action 13 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOShaving been filed prior to the filing of this case. THIRTY-NINTH AFFIRMATIVE DEFENSE No Failure To Warn Responding Defendant alleges that, as ruled in O’Neil v. Crane Co. (2012) 53 Cal.4th 335, Responding Defendant was under no legal duty to warn Plaintiff of the alleged dangers in materials manufactured by others that may have been used in or with Responding Defendant's alleged products. if any. FORTIETH AFFIRMATIVE DEFENSE Not in Chain of Distribution Responding Defendant alleges that, as ruled in O'Neil v. Crane Co. (2012) 53 Cal.4th 335, Responding Defendant was not a part of the manufacturing or marketing enterprise, or chain of distribution, of the allegedly defective product(s), if any, that allegedly caused the injury in question. FORTY-FIRST AFFIRMATIVE DEFENSE Component Parts Responding Defendant is not liable for other manufacturers’ allegedly defective component part(s) that may have been used in or with its alleged product, if any, under the component parts doctrine, as ruled in O’Neil v. Crane Co. (2012) 53 Cal.4th 335. FORTY-SECOND AFFIRMATIVE DEFENSE Action Violates Labor Code Section 6304.5 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint for negligence per se are barred by California Labor Code Section 6304.5 and derivative authority. FORTY-THIRD AFFIRMATIVE DEFENSE Improper Venue Alleged Against Plaintiff Plaintiffs claims are barred by applicable state and/or federal venue provisions. FORTY-FOURTH AFFIRMATIVE DEFENSE Forum Non Conveniens Alleged Against Plaintiff Plaintiff's claims are due to be dismissed under the doctrine of forum non conveniens. 14 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS,FORTY-FIFTH AFFIRMATIVE DEFENSE Failure to Join Bankrupt or Trust Entities as Defendants Alleged Against Plaintiff This Responding Defendant states that the Complaint, and each cause of action thereof, is barred by California Code of Civil Procedure section 389 in that Plaintiff has failed to join a party or parties in this action, specifically, those entities which are now bankrupt or whose liabilities are covered by a trust, in whose absence complete relief cannot be accorded among defendants herein, causing this Responding Defendant exposure to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations. 27 28 IV. PRAYER WHEREFORE, this Responding Defendant prays: 1. 2 3. 4 Pursuant to California Code of Civil Procedure § 631, this Responding Defendant hereby gives That Plaintiff take nothing by this Complaint; That judgment be entered in favor of Defendant; For recovery of Defendant's costs of suit; For appropriate credits and set-offs arising out of any payment of Workers’ Compensation benefits as alleged above; For appropriate credits and set-offs arising from allocation of liability to other named and unnamed tortfeasors; and For such other and further relief as the court deems just and proper. V. NOTICE OF REQUEST FOR JURY TRIAL notice of its request for trial by jury. Dated: October 16, 2020 (\\ SINUNU BRUNI LLP \ | ) ON. 4 ‘ ‘EHRISTOPHER B. BRUNI Attorneys for Defendant, THERMA CORPORATION 15 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSPROOF OF SERVICE Valeri Niskanen, et al. v. Golden Gate Drywall, et al. San Francisco County Superior Court Case No. CGC-19-276813 I am over the age of eighteen years and not a party to the above-captioned matter. My business address is 333 Pine Street, Suite 400, San Francisco, California 94104-3311, where the service described below took place on the date set forth below. Person(s) Served and Manner of Service: Electronic Service: On the date executed below, I electronically served the document(s) described below via File & ServeXpress on each recipient designated on the Transaction Receipt located on the File & ServeXpress website. Document(s) Served: DEFENDANT THERMA CORPORATION’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: October 16, 2020 Elizabe imo 1 PROOF OF SERVICE