On December 11, 2019 a
Answer
was filed
involving a dispute between
Blake, Victoria,
French, Susan,
Mcclary, Steven,
Niskanen, Valeri,
Ortegon, Tamlyn,
and
3M Company,
A.J. Peters & Son,
Aladdin Heating Corporation,
Anderson, Rowe & Buckley, Inc.,
Asbestos Corporation Limited,
Brand Insulations, Inc., Individually And As,
Chicago Bridge & Iron Company,
Consolidated Insulation, Inc., A Dissolved,
Contra Costa Electric, Inc.,
Cooper Bros., Inc.,
Cooper Brothers, Inc.,
Cosco Fire Protection, Inc.,
Dillingham Construction N.A., Inc.,
Does 1 Through 800, Inclusive, As Required By,
Douglass Insulation Company, Inc.,
Dow Chemical Company, The,
D. Zelinsky & Son, Incorporated,
D. Zelinsky & Sons, Inc.,
Fdcc California, Inc.,
Fluor Corporation,
Frank Bonetti Plumbing, Inc.,
General Electric Company,
Golden Gate Drywall,
Goulds Pumps Llc,
Grinnell Llc,
Imo Industries Inc.,
Ingersoll-Rand Company,
International Business Machines Corporation,
James A. Nelson Co., Inc.,
Johnson Controls, Inc.,
Kelly-Moore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Metalclad Insulation Llc,
Metropolitan Life Insurance Company,
N.V. Heathorn, Inc.,
O C Mcdonald Co Inc,
O.C. Mcdonald Company, Inc.,
Oscar E. Erickson, Inc.,
Pfizer, Inc.,
Riley Power Inc.,
Riley Power Inc., (Erroneously Sued As Alternate,
Robertshaw Controls Company,
Rosendin Electric, Inc.,
Sam P. Wallace Company, Inc.,
Scott Co. Of California,
Shell Oil Company,
S.J. Amoroso Construction Co., Inc.,
S.J. Amoroso Construction Co., Llc.,
Therma Corporation,
Trane U.S. Inc.,
Union Oil Company Of California,
University Mechanical & Engineering Contractors,,
Valley Sheet Metal Co.,
Veolia Es Industrial Services, Inc.,
Viacomcbs Inc,
Viacomcbs, Inc. F K A Cbs Corporation, A Delaware,
W.L. Hickey Sons, Inc.,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 Emily D. Bergstrom (SB #191395)
ebergstrom@bhc.law
2 Juniper Bacon (SB # 256687) ELECTRONICALLY
jbacon@bhc.law FILED
3
BHC LAW GROUP LLP Superior Court of California,
County of San Francisco
4 5900 Hollis Street, Suite O
Emeryville, CA 94608 10/09/2020
Clerk of the Court
5 Telephone: (510) 658-3600 BY: ANNA TORRES
Facsimile: (510) 658-1151 Deputy Clerk
6
Attorneys for Defendant
7
DILLINGHAM CONSTRUCTION N.A., INC.
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN FRANCISCO
10
11
VALERI NISKANEN, as Successor-in- SFSC Case No. CGC-19-276813
12 Interest to and as Wrongful Death Heir of
BILLY JOE McCLARY, Deceased; and DEFENDANT DILLINGHAM
13 VICTORIA BLAKE, TAMLYN ORTEGON, CONSTRUCTION N.A., INC.’S ANSWER
14 SUSAN FRENCH and STEVEN McCLARY, TO PLAINTIFFS’ FIRST AMENDED
as Wrongful Death Heirs of BILLY JOE COMPLAINT FOR SURVIVAL,
15 McCLARY, Deceased, WRONGFUL DEATH - ASBESTOS
16 Plaintiffs,
17 vs.
18
GOLDEN GATE DRYWALL, et al.
19
Defendants.
20
21
Defendant DILLINGHAM CONSTRUCTION N.A., INC. (“DCNA” or “Defendant”),
22
answers the unverified Amended Complaint (“Complaint”) for Survival, Wrongful Death –
BHC 23
LAW
GROUP LLP Asbestos of VALERI NISKANEN, as Successor-in-Interest to and as Wrongful Death Heir of
_____________________________
24
5900 Hollis Street, BILLY JOE McCLARY, Deceased; and VICTORIA BLAKE, TAMLYN ORTEGON, SUSAN
Suite O 25
Emeryville, CA 94608
FRENCH and STEVEN McCLARY, as Wrongful Death Heirs of BILLY JOE McCLARY,
T: 510-658-3600 26
F: 510-658-1151
Deceased, (hereinafter “Plaintiffs”), herein, as amended, now or in the future, or otherwise admits,
27
denies, and alleges as follows:
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 DEFINITIONS
2 The word “Plaintiff,” as used herein, shall include the plural (i.e., Plaintiffs) as well as the
3 singular (i.e., Plaintiff), as may be appropriate to the particular context in which the word appears.
4 Whenever “Plaintiff” or “Plaintiffs” is used in this answer, its reference embraces each Plaintiff
5 named in any Complaint in response to which some, or all, of this Answer has been adopted,
6 individually and collectively, plus the words “and each of them,” as well as decedent, where
7 applicable, and all other family members upon whose alleged exposure to asbestos give rise to this
8 lawsuit.
9 Whenever “decedent” is used in this answer, it refers to the deceased, BILLY JOE
10 McCLARY.
11 GENERAL DENIAL
12 Pursuant to California Code of Civil Procedure (“CCP”) § 431.30, Defendant hereby denies,
13 generally and specifically, each and every allegation contained in the Complaint, and each and
14 every alleged cause of action thereof. Defendant further denies that Plaintiffs were injured in any
15 manner by the acts or omissions of Defendant and denies that Defendant is legally responsible for
16 any damages or injury that may have been suffered by Plaintiff. Defendant additionally denies that
17 Plaintiff is entitled to recover damages of any kind in any amount whatsoever from Defendant.
18 Defendant pleads and sets forth separately and distinctly the following affirmative defenses
19 to each and every cause of action of Plaintiffs’ Complaint, as though pleaded separately to each
20 and every said cause of action.
21 AFFIRMATIVE DEFENSES
22 FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
BHC 23
LAW This answering Defendant alleges that Plaintiffs’ Complaint, and each and every cause of
GROUP LLP 24
_____________________________
5900 Hollis Street, action therein, fails to state facts sufficient to constitute a cause of action, or any cause of action,
Suite O 25
Emeryville, CA 94608
against Defendant.
T: 510-658-3600 26
F: 510-658-1151
///
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///
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 SECOND AFFIRMATIVE DEFENSE
(Comparative Fault)
2
This answering Defendant alleges that Plaintiffs were negligent and unreasonable in or
3
about the matters alleged in the Complaint, and that such matters actually and proximately caused
4
all or part of Plaintiffs and/or Decedent’s claimed injuries and damages, if any. Any damages which
5
Plaintiff and/or Decedent seeks to recover from Defendant must be reduced in proportion to the
6
extent that Plaintiffs and/or Decedent’s own negligence contributed to the claimed injuries or
7
damages.
8
THIRD AFFIRMATIVE DEFENSE
9 (Assumption of Risk)
10 This answering Defendant alleges that Plaintiffs and/or Decedent knew, or in the exercise
11 of ordinary care should have known, of the risks and hazards involved in the undertaking in which
12 he was engaged, but nevertheless, and knowing these things, did freely and voluntarily consent to
13 assume the risks and hazards incident to said operations, acts and conduct at the time and place
14 mentioned in said Complaint.
15 FOURTH AFFIRMATIVE DEFENSE
(Witt v. Jackson: Apportionment and Offset)
16
This answering Defendant alleges that excepting when Plaintiff and/or Decedent was
17
employed by this Defendant, if at all, Plaintiffs and/or Decedent’s employers and former employers
18
were careless and/or negligent in and about the matters alleged in Plaintiffs’ Complaint, and this
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carelessness and/or negligence contributed directly and proximately to any alleged injuries and/or
20
damages sustained by Plaintiff. Plaintiffs and/or Decedent’s employers and former employers have
21
or had Workers’ Compensation insurance. Plaintiffs and/or Decedent has received or will receive
22
disability and medical benefits under a Workers’ Compensation law, or similar laws, from Plaintiffs
BHC 23
LAW
GROUP LLP and/or Decedent’s employers or former employers, or their Workers’ Compensation insurance, on
_____________________________
24
5900 Hollis Street, account of the injuries and damages allegedly sustained by Plaintiff and/or Decedent which give
Suite O 25
Emeryville, CA 94608
rise to this lawsuit. Any judgment or verdict that might be rendered in favor of Plaintiffs should be
T: 510-658-3600 26
F: 510-658-1151
reduced by the amount of all the payments by the employers or insurers, and that each of the
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 employers or insurers should be barred from any recovery by lien or otherwise in connection with
2 this matter under the authority of Witt v. Jackson (1961) 57 Cal.2d 57.
3 FIFTH AFFIRMATIVE DEFENSE
(Third Party Negligence)
4
This answering Defendant alleges that the damages and injuries, if any, were proximately
5
caused or contributed to, in whole or in part, by the negligence or fault or other acts and/or
6
omissions of persons or entities other than Defendant, for which Defendant is not responsible.
7
SIXTH AFFIRMATIVE DEFENSE
8 (Employer’s Assumption of the Risk)
9 This answering Defendant alleges that Plaintiffs and/or Decedent’s employers, except when
10 Plaintiff and/or Decedent was employed by this Defendant, voluntarily and knowingly entered into
11 and engaged in the operations, acts and conduct alleged in said Complaint, and voluntarily and
12 knowingly assumes all of the risks incident to said operations, acts and conduct at the time and
13 place mentioned in the Complaint.
14 SEVENTH AFFIRMATIVE DEFENSE
(Alteration or Misuse)
15
This answering Defendant alleges that any product or products alleged by Plaintiff and/or
16
Decedent to have caused Plaintiffs and/or Decedent’s injuries were misused, abused or altered by
17
Plaintiff and/or Decedent or by others, which misuse, abuse or altercation was not reasonably
18
foreseeable to Defendant, and such misuse, abuse or altercation proximately caused any loss, injury
19
or damages incurred by Plaintiff.
20
EIGHTH AFFIRMATIVE DEFENSE
21
(Failure to Mitigate)
22
This answering Defendant alleges that the injuries, loss or damage, if any there was to
BHC 23
LAW Plaintiff and/or Decedent, were aggravated due to Plaintiffs and/or Decedent’s failure to use
GROUP LLP 24
_____________________________
reasonable diligence to mitigate them.
5900 Hollis Street,
Suite O 25
Emeryville, CA 94608 ///
T: 510-658-3600 26
F: 510-658-1151 ///
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///
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 NINTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
2
This answering Defendant alleges that Plaintiffs’ complaint and the purported causes of
3
action therein are barred by the applicable statute of limitations, including but not limited to those
4
set forth in California Code of Civil Procedure §§ 335.1; 338 (a), (b); 340.2 (a), (b), (c); 340.8 (a),
5
(b), (c), (d); 343; 355; 583.210 (a), (b); 583.250 (a), (b); 583.310; 583.320 (a), (b); 583.330 (a), (b);
6
583.340 (a), (b), (c); 583.350; 583.360 (a), (b); 583.410 (a), (b); 583.420 (a), (b); 583.430 (a), (b).
7
Plaintiffs’ claims are further barred by the statutes of limitations of states other than California
8
pursuant to California Code of Civil Procedure § 361.
9
TENTH AFFIRMATIVE DEFENSE
10 (Workers’ Compensation – Exclusive Remedy)
11 This answering Defendant alleges that this action is barred by the applicable state and/or
12 federal industrial insurance and/or Workers’ Compensation laws, including, but not limited to,
13 California Labor Code §§ 3600, 3602, 4401-4418 and Melendrez v. Ameron (2015) 240
14 Cal.App.4th 632.
15 ELEVENTH AFFIRMATIVE DEFENSE
(Laches)
16
This answering Defendant alleges that Plaintiff and/or Decedent unreasonably delayed in
17
the bringing and service of this action without good cause therefore, and thereby has prejudiced
18
this Defendant; and as a proximate result thereof, this entire action is barred by laches.
19
TWELFTH AFFIRMATIVE DEFENSE
20
(State of the Art)
21
This answering Defendant alleges that at all times relevant, Defendant’s acts and omissions,
22
if any, were in conformity with all government statutes and regulations and all industry standards
BHC 23
LAW based upon the state of knowledge existing at the time of the acts or omissions.
GROUP LLP 24
_____________________________
THIRTEENTH AFFIRMATIVE DEFENSE
5900 Hollis Street,
Suite O 25 (Proportionate Fault)
Emeryville, CA 94608
T: 510-658-3600 26 This answering Defendant alleges that while at all times denying any liability whatsoever
F: 510-658-1151
27 to Plaintiff and/or Decedent herein, this Defendant alleges that any alleged liability or responsibility
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 of this Defendant, and such alleged liability and responsibility being denied, is small in proportion
2 to the alleged liability and responsibility of other persons and entities, including other persons who
3 are Defendants herein, and that Plaintiff and/or Decedent should be limited to seeking recovery
4 from this Defendant for the proportion of alleged injuries and damages for which this Defendant is
5 allegedly liability or responsible, all such alleged liability and alleged responsibility being expressly
6 denied.
7 FOURTEENTH AFFIRMATIVE DEFENSE
(Modification of Product)
8
This answering Defendant is informed and believes, and based upon said information and
9
belief alleges, that the Plaintiff and/or Decedent is barred from recovery herein because of
10
modification, alteration or change in some other manner, of the products alleged in Plaintiffs’
11
complaint.
12
FIFTEENTH AFFIRMATIVE DEFENSE
13 (Waiver)
14 This answering Defendant alleges that Plaintiff and/or Decedent acknowledged, ratified,
15 consented to and acquiesced in the alleged acts or omissions, if any, of this answering Defendant,
16 thus barring Plaintiff and/or Decedent from any relief as prayed herein.
17 SIXTEENTH AFFIRMATIVE DEFENSE
(Sophisticated User)
18
This answering Defendant alleges that Plaintiffs’ claims are barred because Defendant was
19
under no legal duty to warn Plaintiff and/or Decedent of the potential risk, harm, or danger of
20
asbestos-containing products alleged in Plaintiffs’ complaint. Plaintiff and/or Decedent was a
21
sophisticated user through Plaintiff and/or Decedent’s employment, training, experience,
22
knowledge, or skill and knew, or should have known, of the potential risk, harm, or danger of the
BHC 23
LAW
GROUP LLP asbestos-containing products alleged in Plaintiffs’ complaint. Defendant did not have a duty to
_____________________________
24
5900 Hollis Street, warn a sophisticated user, if any such warning was warranted, about the alleged dangers of which
Suite O 25
Emeryville, CA 94608
Plaintiff and/or Decedent already knew or should have known. (Restatement (Second) of Torts §
T: 510-658-3600 26
F: 510-658-1151
402A; Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.)
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 SEVENTEENTH AFFIRMATIVE DEFENSE
(Sophisticated Intermediary)
2
This answering Defendant alleges that Plaintiffs’ claims are barred and/or this answering
3
Defendant’s duty, if any, is limited, satisfied and/or discharged by the sophisticated intermediary
4
doctrine. The sellers, suppliers, or distributors of the asbestos-containing material products to
5
which the Plaintiff and/or Decedent was allegedly exposed, as well as Plaintiffs and/or Decedent’s
6
employers or certain third parties yet to be identified, were sophisticated intermediaries and in a
7
better position to warn Plaintiff and/or Decedent of the potential risk associated with using products
8
containing asbestos and, assuming a warning was required, it was the failure of such persons or
9
entities to give such warnings that was the proximate and superseding cause of Plaintiffs and/or
10
Decedent’s injuries and damages, if any. Defendant reasonably relied upon these sophisticated
11
intermediaries to decide how and what information or warnings, if any, should have been passed
12
on to others, including end-users. The injuries and damages of which Plaintiff and/or Decedent
13
complains were proximately caused by, or contributed to, the failure of instructions and warnings
14
be given not only to purchasers, users, and consumers, but also to others who a reasonable seller
15
should know will be in a position to reduce or avoid the risk of harm. (Webb v. Special Electric
16
Company, Inc. (2016) 63 Cal.4th 167.)
17
EIGHTEENTH AFFIRMATIVE DEFENSE
18 (Fair Responsibility Act)
19 This answering Defendant alleges that the provisions of the Fair Responsibility Act of 1986,
20 Civil Code §§ 1431.1, et seq. are applicable to Plaintiffs’ complaint and to each cause of action
21 therein. This answering Defendant shall be liable, if at all, only for the amount of said non-economic
22 damages, if any, allocated to this answering Defendant’s percentage of fault, if any.
BHC 23 NINETEENTH AFFIRMATIVE DEFENSE
LAW
GROUP LLP (Privette Doctrine)
_____________________________
24
5900 Hollis Street, Defendant alleges that Plaintiffs claims against this Defendant are barred under the Privette
Suite O 25
Emeryville, CA 94608
doctrine, set forth in Privette v. Superior Court (1993) 5 Cal.4th 689.
T: 510-658-3600 26
F: 510-658-1151
///
27
///
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 TWENTIETH AFFIRMATIVE DEFENSE
(Outside Scope)
2
This answering Defendant alleges that at the time and place of the happening of the
3
occurrence as alleged in the Complaint, Plaintiff and/or Decedent was engaged as a contractor
4
outside the scope and control of this answering Defendant, thus precluding Plaintiff and/or
5
Decedent from asserting a claim against this answering Defendant.
6
TWENTY-FIRST AFFIRMATIVE DEFENSE
7 (Intervening and Superseding Causes)
8 This answering Defendant alleges that the injuries and damages of which Plaintiff and/or
9 Decedent complains were proximately caused by, or contributed to, by the acts of other Defendants,
10 persons and/or other entities, and that said acts were an intervening and superseding cause of the
11 injuries and damages, if any, of which Plaintiff and/or Decedent complains, thus barring Plaintiff
12 and/or Decedent from any recovery against this answering Defendant.
13 TWENTY- SECOND AFFIRMATIVE DEFENSE
(Ultra-hazardous Activities)
14
This answering Defendant alleges that, to the extent that Defendant engaged in the activities
15
alleged in the Complaint, if at all, those activities were not ultra-hazardous under California law.
16
TWENTY- THIRD AFFIRMATIVE DEFENSE
17
(Standard of Care)
18
This answering Defendant alleges that Plaintiff and/or Decedent is barred and precluded
19
from any recovery in this action because this answering Defendant, at all times, complied with the
20
applicable standard of care, and in compliance with specifications provided by third parties to
21
Defendant and/or in compliance with applicable health and safety statutes and regulations, at the
22
applicable times and locations.
BHC 23
LAW TWENTY-FOURTH AFFIRMATIVE DEFENSE
GROUP LLP 24 (Res Judicata and Collateral Estoppel)
_____________________________
5900 Hollis Street,
Suite O 25 This answering Defendant alleges that Plaintiffs claims are or may be barred in whole or in
Emeryville, CA 94608
T: 510-658-3600 26 part by res judicata, collateral estoppel, issue preclusion and/or release.
F: 510-658-1151
27 ///
28 ///
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Failure to Join Necessary and/or Indispensable Parties)
2
This answering Defendant alleges that Plaintiffs have failed to join necessary and/or
3
indispensable parties to this action.
4
TWENTY-SIXTH AFFIRMATIVE DEFENSE
5
(Reservation)
6
This answering Defendant alleges that it presently has insufficient knowledge or
7
information on which to form a belief as to whether it may have additional, as yet unasserted
8
defense available, and, therefore, Defendant reserves the right to assert additional defenses in the
9
event discovery indicates that they would be appropriate.
10
11
WHEREFORE, this answering Defendant prays as follows:
12
1. That Plaintiffs take nothing by reason of the Complaint on file herein;
13
2. That judgment be entered in favor of DILLINGHAM CONSTRUCTION N.A.,
14
INC.
15
3. For recovery of DILLINGHAM CONSTRUCTION N.A., INC.’s cost of suit;
16
4. For appropriate credits and set-offs arising out of any payment of Workers’
17
Compensation benefits, or otherwise, as alleged above;
18
5. For appropriate credits and set-offs arising from allocation of liability to other
19
named and unnamed tortfeasors; and
20
For such other and further relief as the Court deems just and proper.
21
22
Dated: October 9, 2020 BHC LAW GROUP LLP
BHC 23
LAW
GROUP LLP 24 By:
_____________________________
5900 Hollis Street,
Suite O 25 Emily D. Bergstrom
Emeryville, CA 94608 Juniper Bacon
T: 510-658-3600 26 Attorneys for Defendant
F: 510-658-1151
DILLINGHAM CONSTRUCTION N.A., INC
27
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DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Valeri Niskanen (WD Billy Joe McClary), et al. v. Golden Gate Drywall, et al.
2
SFSC Case No. CGC-19-276813
3
4 I, Kristina Kalkhorst, declare that I am, and was at the time of service of the documents herein
referred to, over the age of 18 years, and not a party to the action; and I am employed in the County
5
of Alameda, State of California. My business address is 5900 Hollis St., Ste. O, Emeryville,
6 California 94608.
7 On October 9, 2020, I electronically served the document(s) via File & ServeXpress
described as:
8
9 DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’
FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
10
on the recipients designated on the Transmission Receipt located on the File & ServeXpress website.
11
12 I declare under penalty of perjury pursuant to the laws of the State of California that the
13 foregoing is true and correct and that this declaration was executed on October 9, 2020, at
Emeryville, California.
14
15
16
17
18
19
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21
22
23
BHC
LAW 24
GROUP
LLP
25
___________________________
5900 Hollis Street,
Suite O
Emeryville, CA
26
94608
27
T: 510-658-3600
F: 510-658-1151
28
1
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Preview
1 Emily D. Bergstrom (SB #191395) ebergstrom@bhc.law 2 Juniper Bacon (SB # 256687) ELECTRONICALLY jbacon@bhc.law FILED 3 BHC LAW GROUP LLP Superior Court of California, County of San Francisco 4 5900 Hollis Street, Suite O Emeryville, CA 94608 10/09/2020 Clerk of the Court 5 Telephone: (510) 658-3600 BY: ANNA TORRES Facsimile: (510) 658-1151 Deputy Clerk 6 Attorneys for Defendant 7 DILLINGHAM CONSTRUCTION N.A., INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 VALERI NISKANEN, as Successor-in- SFSC Case No. CGC-19-276813 12 Interest to and as Wrongful Death Heir of BILLY JOE McCLARY, Deceased; and DEFENDANT DILLINGHAM 13 VICTORIA BLAKE, TAMLYN ORTEGON, CONSTRUCTION N.A., INC.’S ANSWER 14 SUSAN FRENCH and STEVEN McCLARY, TO PLAINTIFFS’ FIRST AMENDED as Wrongful Death Heirs of BILLY JOE COMPLAINT FOR SURVIVAL, 15 McCLARY, Deceased, WRONGFUL DEATH - ASBESTOS 16 Plaintiffs, 17 vs. 18 GOLDEN GATE DRYWALL, et al. 19 Defendants. 20 21 Defendant DILLINGHAM CONSTRUCTION N.A., INC. (“DCNA” or “Defendant”), 22 answers the unverified Amended Complaint (“Complaint”) for Survival, Wrongful Death – BHC 23 LAW GROUP LLP Asbestos of VALERI NISKANEN, as Successor-in-Interest to and as Wrongful Death Heir of _____________________________ 24 5900 Hollis Street, BILLY JOE McCLARY, Deceased; and VICTORIA BLAKE, TAMLYN ORTEGON, SUSAN Suite O 25 Emeryville, CA 94608 FRENCH and STEVEN McCLARY, as Wrongful Death Heirs of BILLY JOE McCLARY, T: 510-658-3600 26 F: 510-658-1151 Deceased, (hereinafter “Plaintiffs”), herein, as amended, now or in the future, or otherwise admits, 27 denies, and alleges as follows: 28 -1- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 DEFINITIONS 2 The word “Plaintiff,” as used herein, shall include the plural (i.e., Plaintiffs) as well as the 3 singular (i.e., Plaintiff), as may be appropriate to the particular context in which the word appears. 4 Whenever “Plaintiff” or “Plaintiffs” is used in this answer, its reference embraces each Plaintiff 5 named in any Complaint in response to which some, or all, of this Answer has been adopted, 6 individually and collectively, plus the words “and each of them,” as well as decedent, where 7 applicable, and all other family members upon whose alleged exposure to asbestos give rise to this 8 lawsuit. 9 Whenever “decedent” is used in this answer, it refers to the deceased, BILLY JOE 10 McCLARY. 11 GENERAL DENIAL 12 Pursuant to California Code of Civil Procedure (“CCP”) § 431.30, Defendant hereby denies, 13 generally and specifically, each and every allegation contained in the Complaint, and each and 14 every alleged cause of action thereof. Defendant further denies that Plaintiffs were injured in any 15 manner by the acts or omissions of Defendant and denies that Defendant is legally responsible for 16 any damages or injury that may have been suffered by Plaintiff. Defendant additionally denies that 17 Plaintiff is entitled to recover damages of any kind in any amount whatsoever from Defendant. 18 Defendant pleads and sets forth separately and distinctly the following affirmative defenses 19 to each and every cause of action of Plaintiffs’ Complaint, as though pleaded separately to each 20 and every said cause of action. 21 AFFIRMATIVE DEFENSES 22 FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) BHC 23 LAW This answering Defendant alleges that Plaintiffs’ Complaint, and each and every cause of GROUP LLP 24 _____________________________ 5900 Hollis Street, action therein, fails to state facts sufficient to constitute a cause of action, or any cause of action, Suite O 25 Emeryville, CA 94608 against Defendant. T: 510-658-3600 26 F: 510-658-1151 /// 27 /// 28 -2- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 SECOND AFFIRMATIVE DEFENSE (Comparative Fault) 2 This answering Defendant alleges that Plaintiffs were negligent and unreasonable in or 3 about the matters alleged in the Complaint, and that such matters actually and proximately caused 4 all or part of Plaintiffs and/or Decedent’s claimed injuries and damages, if any. Any damages which 5 Plaintiff and/or Decedent seeks to recover from Defendant must be reduced in proportion to the 6 extent that Plaintiffs and/or Decedent’s own negligence contributed to the claimed injuries or 7 damages. 8 THIRD AFFIRMATIVE DEFENSE 9 (Assumption of Risk) 10 This answering Defendant alleges that Plaintiffs and/or Decedent knew, or in the exercise 11 of ordinary care should have known, of the risks and hazards involved in the undertaking in which 12 he was engaged, but nevertheless, and knowing these things, did freely and voluntarily consent to 13 assume the risks and hazards incident to said operations, acts and conduct at the time and place 14 mentioned in said Complaint. 15 FOURTH AFFIRMATIVE DEFENSE (Witt v. Jackson: Apportionment and Offset) 16 This answering Defendant alleges that excepting when Plaintiff and/or Decedent was 17 employed by this Defendant, if at all, Plaintiffs and/or Decedent’s employers and former employers 18 were careless and/or negligent in and about the matters alleged in Plaintiffs’ Complaint, and this 19 carelessness and/or negligence contributed directly and proximately to any alleged injuries and/or 20 damages sustained by Plaintiff. Plaintiffs and/or Decedent’s employers and former employers have 21 or had Workers’ Compensation insurance. Plaintiffs and/or Decedent has received or will receive 22 disability and medical benefits under a Workers’ Compensation law, or similar laws, from Plaintiffs BHC 23 LAW GROUP LLP and/or Decedent’s employers or former employers, or their Workers’ Compensation insurance, on _____________________________ 24 5900 Hollis Street, account of the injuries and damages allegedly sustained by Plaintiff and/or Decedent which give Suite O 25 Emeryville, CA 94608 rise to this lawsuit. Any judgment or verdict that might be rendered in favor of Plaintiffs should be T: 510-658-3600 26 F: 510-658-1151 reduced by the amount of all the payments by the employers or insurers, and that each of the 27 28 -3- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 employers or insurers should be barred from any recovery by lien or otherwise in connection with 2 this matter under the authority of Witt v. Jackson (1961) 57 Cal.2d 57. 3 FIFTH AFFIRMATIVE DEFENSE (Third Party Negligence) 4 This answering Defendant alleges that the damages and injuries, if any, were proximately 5 caused or contributed to, in whole or in part, by the negligence or fault or other acts and/or 6 omissions of persons or entities other than Defendant, for which Defendant is not responsible. 7 SIXTH AFFIRMATIVE DEFENSE 8 (Employer’s Assumption of the Risk) 9 This answering Defendant alleges that Plaintiffs and/or Decedent’s employers, except when 10 Plaintiff and/or Decedent was employed by this Defendant, voluntarily and knowingly entered into 11 and engaged in the operations, acts and conduct alleged in said Complaint, and voluntarily and 12 knowingly assumes all of the risks incident to said operations, acts and conduct at the time and 13 place mentioned in the Complaint. 14 SEVENTH AFFIRMATIVE DEFENSE (Alteration or Misuse) 15 This answering Defendant alleges that any product or products alleged by Plaintiff and/or 16 Decedent to have caused Plaintiffs and/or Decedent’s injuries were misused, abused or altered by 17 Plaintiff and/or Decedent or by others, which misuse, abuse or altercation was not reasonably 18 foreseeable to Defendant, and such misuse, abuse or altercation proximately caused any loss, injury 19 or damages incurred by Plaintiff. 20 EIGHTH AFFIRMATIVE DEFENSE 21 (Failure to Mitigate) 22 This answering Defendant alleges that the injuries, loss or damage, if any there was to BHC 23 LAW Plaintiff and/or Decedent, were aggravated due to Plaintiffs and/or Decedent’s failure to use GROUP LLP 24 _____________________________ reasonable diligence to mitigate them. 5900 Hollis Street, Suite O 25 Emeryville, CA 94608 /// T: 510-658-3600 26 F: 510-658-1151 /// 27 /// 28 -4- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 NINTH AFFIRMATIVE DEFENSE (Statute of Limitations) 2 This answering Defendant alleges that Plaintiffs’ complaint and the purported causes of 3 action therein are barred by the applicable statute of limitations, including but not limited to those 4 set forth in California Code of Civil Procedure §§ 335.1; 338 (a), (b); 340.2 (a), (b), (c); 340.8 (a), 5 (b), (c), (d); 343; 355; 583.210 (a), (b); 583.250 (a), (b); 583.310; 583.320 (a), (b); 583.330 (a), (b); 6 583.340 (a), (b), (c); 583.350; 583.360 (a), (b); 583.410 (a), (b); 583.420 (a), (b); 583.430 (a), (b). 7 Plaintiffs’ claims are further barred by the statutes of limitations of states other than California 8 pursuant to California Code of Civil Procedure § 361. 9 TENTH AFFIRMATIVE DEFENSE 10 (Workers’ Compensation – Exclusive Remedy) 11 This answering Defendant alleges that this action is barred by the applicable state and/or 12 federal industrial insurance and/or Workers’ Compensation laws, including, but not limited to, 13 California Labor Code §§ 3600, 3602, 4401-4418 and Melendrez v. Ameron (2015) 240 14 Cal.App.4th 632. 15 ELEVENTH AFFIRMATIVE DEFENSE (Laches) 16 This answering Defendant alleges that Plaintiff and/or Decedent unreasonably delayed in 17 the bringing and service of this action without good cause therefore, and thereby has prejudiced 18 this Defendant; and as a proximate result thereof, this entire action is barred by laches. 19 TWELFTH AFFIRMATIVE DEFENSE 20 (State of the Art) 21 This answering Defendant alleges that at all times relevant, Defendant’s acts and omissions, 22 if any, were in conformity with all government statutes and regulations and all industry standards BHC 23 LAW based upon the state of knowledge existing at the time of the acts or omissions. GROUP LLP 24 _____________________________ THIRTEENTH AFFIRMATIVE DEFENSE 5900 Hollis Street, Suite O 25 (Proportionate Fault) Emeryville, CA 94608 T: 510-658-3600 26 This answering Defendant alleges that while at all times denying any liability whatsoever F: 510-658-1151 27 to Plaintiff and/or Decedent herein, this Defendant alleges that any alleged liability or responsibility 28 -5- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 of this Defendant, and such alleged liability and responsibility being denied, is small in proportion 2 to the alleged liability and responsibility of other persons and entities, including other persons who 3 are Defendants herein, and that Plaintiff and/or Decedent should be limited to seeking recovery 4 from this Defendant for the proportion of alleged injuries and damages for which this Defendant is 5 allegedly liability or responsible, all such alleged liability and alleged responsibility being expressly 6 denied. 7 FOURTEENTH AFFIRMATIVE DEFENSE (Modification of Product) 8 This answering Defendant is informed and believes, and based upon said information and 9 belief alleges, that the Plaintiff and/or Decedent is barred from recovery herein because of 10 modification, alteration or change in some other manner, of the products alleged in Plaintiffs’ 11 complaint. 12 FIFTEENTH AFFIRMATIVE DEFENSE 13 (Waiver) 14 This answering Defendant alleges that Plaintiff and/or Decedent acknowledged, ratified, 15 consented to and acquiesced in the alleged acts or omissions, if any, of this answering Defendant, 16 thus barring Plaintiff and/or Decedent from any relief as prayed herein. 17 SIXTEENTH AFFIRMATIVE DEFENSE (Sophisticated User) 18 This answering Defendant alleges that Plaintiffs’ claims are barred because Defendant was 19 under no legal duty to warn Plaintiff and/or Decedent of the potential risk, harm, or danger of 20 asbestos-containing products alleged in Plaintiffs’ complaint. Plaintiff and/or Decedent was a 21 sophisticated user through Plaintiff and/or Decedent’s employment, training, experience, 22 knowledge, or skill and knew, or should have known, of the potential risk, harm, or danger of the BHC 23 LAW GROUP LLP asbestos-containing products alleged in Plaintiffs’ complaint. Defendant did not have a duty to _____________________________ 24 5900 Hollis Street, warn a sophisticated user, if any such warning was warranted, about the alleged dangers of which Suite O 25 Emeryville, CA 94608 Plaintiff and/or Decedent already knew or should have known. (Restatement (Second) of Torts § T: 510-658-3600 26 F: 510-658-1151 402A; Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.) 27 28 -6- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 SEVENTEENTH AFFIRMATIVE DEFENSE (Sophisticated Intermediary) 2 This answering Defendant alleges that Plaintiffs’ claims are barred and/or this answering 3 Defendant’s duty, if any, is limited, satisfied and/or discharged by the sophisticated intermediary 4 doctrine. The sellers, suppliers, or distributors of the asbestos-containing material products to 5 which the Plaintiff and/or Decedent was allegedly exposed, as well as Plaintiffs and/or Decedent’s 6 employers or certain third parties yet to be identified, were sophisticated intermediaries and in a 7 better position to warn Plaintiff and/or Decedent of the potential risk associated with using products 8 containing asbestos and, assuming a warning was required, it was the failure of such persons or 9 entities to give such warnings that was the proximate and superseding cause of Plaintiffs and/or 10 Decedent’s injuries and damages, if any. Defendant reasonably relied upon these sophisticated 11 intermediaries to decide how and what information or warnings, if any, should have been passed 12 on to others, including end-users. The injuries and damages of which Plaintiff and/or Decedent 13 complains were proximately caused by, or contributed to, the failure of instructions and warnings 14 be given not only to purchasers, users, and consumers, but also to others who a reasonable seller 15 should know will be in a position to reduce or avoid the risk of harm. (Webb v. Special Electric 16 Company, Inc. (2016) 63 Cal.4th 167.) 17 EIGHTEENTH AFFIRMATIVE DEFENSE 18 (Fair Responsibility Act) 19 This answering Defendant alleges that the provisions of the Fair Responsibility Act of 1986, 20 Civil Code §§ 1431.1, et seq. are applicable to Plaintiffs’ complaint and to each cause of action 21 therein. This answering Defendant shall be liable, if at all, only for the amount of said non-economic 22 damages, if any, allocated to this answering Defendant’s percentage of fault, if any. BHC 23 NINETEENTH AFFIRMATIVE DEFENSE LAW GROUP LLP (Privette Doctrine) _____________________________ 24 5900 Hollis Street, Defendant alleges that Plaintiffs claims against this Defendant are barred under the Privette Suite O 25 Emeryville, CA 94608 doctrine, set forth in Privette v. Superior Court (1993) 5 Cal.4th 689. T: 510-658-3600 26 F: 510-658-1151 /// 27 /// 28 -7- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 TWENTIETH AFFIRMATIVE DEFENSE (Outside Scope) 2 This answering Defendant alleges that at the time and place of the happening of the 3 occurrence as alleged in the Complaint, Plaintiff and/or Decedent was engaged as a contractor 4 outside the scope and control of this answering Defendant, thus precluding Plaintiff and/or 5 Decedent from asserting a claim against this answering Defendant. 6 TWENTY-FIRST AFFIRMATIVE DEFENSE 7 (Intervening and Superseding Causes) 8 This answering Defendant alleges that the injuries and damages of which Plaintiff and/or 9 Decedent complains were proximately caused by, or contributed to, by the acts of other Defendants, 10 persons and/or other entities, and that said acts were an intervening and superseding cause of the 11 injuries and damages, if any, of which Plaintiff and/or Decedent complains, thus barring Plaintiff 12 and/or Decedent from any recovery against this answering Defendant. 13 TWENTY- SECOND AFFIRMATIVE DEFENSE (Ultra-hazardous Activities) 14 This answering Defendant alleges that, to the extent that Defendant engaged in the activities 15 alleged in the Complaint, if at all, those activities were not ultra-hazardous under California law. 16 TWENTY- THIRD AFFIRMATIVE DEFENSE 17 (Standard of Care) 18 This answering Defendant alleges that Plaintiff and/or Decedent is barred and precluded 19 from any recovery in this action because this answering Defendant, at all times, complied with the 20 applicable standard of care, and in compliance with specifications provided by third parties to 21 Defendant and/or in compliance with applicable health and safety statutes and regulations, at the 22 applicable times and locations. BHC 23 LAW TWENTY-FOURTH AFFIRMATIVE DEFENSE GROUP LLP 24 (Res Judicata and Collateral Estoppel) _____________________________ 5900 Hollis Street, Suite O 25 This answering Defendant alleges that Plaintiffs claims are or may be barred in whole or in Emeryville, CA 94608 T: 510-658-3600 26 part by res judicata, collateral estoppel, issue preclusion and/or release. F: 510-658-1151 27 /// 28 /// -8- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Failure to Join Necessary and/or Indispensable Parties) 2 This answering Defendant alleges that Plaintiffs have failed to join necessary and/or 3 indispensable parties to this action. 4 TWENTY-SIXTH AFFIRMATIVE DEFENSE 5 (Reservation) 6 This answering Defendant alleges that it presently has insufficient knowledge or 7 information on which to form a belief as to whether it may have additional, as yet unasserted 8 defense available, and, therefore, Defendant reserves the right to assert additional defenses in the 9 event discovery indicates that they would be appropriate. 10 11 WHEREFORE, this answering Defendant prays as follows: 12 1. That Plaintiffs take nothing by reason of the Complaint on file herein; 13 2. That judgment be entered in favor of DILLINGHAM CONSTRUCTION N.A., 14 INC. 15 3. For recovery of DILLINGHAM CONSTRUCTION N.A., INC.’s cost of suit; 16 4. For appropriate credits and set-offs arising out of any payment of Workers’ 17 Compensation benefits, or otherwise, as alleged above; 18 5. For appropriate credits and set-offs arising from allocation of liability to other 19 named and unnamed tortfeasors; and 20 For such other and further relief as the Court deems just and proper. 21 22 Dated: October 9, 2020 BHC LAW GROUP LLP BHC 23 LAW GROUP LLP 24 By: _____________________________ 5900 Hollis Street, Suite O 25 Emily D. Bergstrom Emeryville, CA 94608 Juniper Bacon T: 510-658-3600 26 Attorneys for Defendant F: 510-658-1151 DILLINGHAM CONSTRUCTION N.A., INC 27 28 -9- DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION Valeri Niskanen (WD Billy Joe McClary), et al. v. Golden Gate Drywall, et al. 2 SFSC Case No. CGC-19-276813 3 4 I, Kristina Kalkhorst, declare that I am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and I am employed in the County 5 of Alameda, State of California. My business address is 5900 Hollis St., Ste. O, Emeryville, 6 California 94608. 7 On October 9, 2020, I electronically served the document(s) via File & ServeXpress described as: 8 9 DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 10 on the recipients designated on the Transmission Receipt located on the File & ServeXpress website. 11 12 I declare under penalty of perjury pursuant to the laws of the State of California that the 13 foregoing is true and correct and that this declaration was executed on October 9, 2020, at Emeryville, California. 14 15 16 17 18 19 20 21 22 23 BHC LAW 24 GROUP LLP 25 ___________________________ 5900 Hollis Street, Suite O Emeryville, CA 26 94608 27 T: 510-658-3600 F: 510-658-1151 28 1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION