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

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                                1   ROSS M. PETTY, State Bar No. 166366
     rpetty@nixonpeabody.com
 2   AARON M. BRIAN, State Bar No. 213191                                            ELECTRONICALLY
     abrian@nixonpeabody.com
 3   NIXON PEABODY LLP                                                                   FILED
                                                                                     Superior Court of California,
     One Embarcadero Center, 32nd Floor                                               County of San Francisco
 4   San Francisco, CA 94111                                                             10/02/2020
     Telephone: (415) 984-8200                                                       Clerk of the Court
 5   Facsimile: (866) 984-8300                                                          BY: JUDITH NUNEZ
                                                                                                   Deputy Clerk
 6   Attorneys for Defendant
     SHELL OIL COMPANY
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 9                             SUPERIOR COURT OF THE STATE OF CALIFORNIA

10                                         COUNTY OF SAN FRANCISCO

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12    VALERI NISKANEN, as Successor-in-                       Case No. CGC-19-276813
      Interest to and as Wrongful Death Heir of
13    BILLY JOE McCLARY, Deceased; and                        DEFENDANT SHELL OIL COMPANY’S
      VICTORIA BLAKE, TAMLYN ORTEGON,                         ANSWER TO PLAINTIFFS’
14    SUSAN FRENCH and STEVEN McCLARY,                        UNVERIFIED FIRST AMENDED
      as Wrongful Death Heirs of BILLY JOE
      McCLARY, Deceased,                                      COMPLAINT FOR SURVIVAL,
15                                                            WRONGFUL DEATH – ASBESTOS
16                                Plaintiffs,
                                                              First Amended Complaint filed: August 7,
                 vs.                                          2020
17

18    GOLDEN GATE DRYWALL, et al.,

19                                Defendants.

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21              Defendant Shell Oil Company, (herein “defendant”), answers plaintiffs’ unverified First

22   Amended Complaint for Survival, Wrongful Death – Asbestos (hereinafter “complaint”) as

23   follows:

24                                                GENERAL DENIAL

25              Pursuant to section 431.30 of the California Code of Civil Procedure, defendant denies,

26   generally and specifically, each and every allegation of the complaint, denies that plaintiffs or

27   decedent have been injured in any manner by the acts or omissions of defendant, and denies that

28   defendant is legally responsible for any damages that may have been suffered by plaintiffs.
                                                           -1-
                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1                                         FIRST AFFIRMATIVE DEFENSE
 2              As a first separate and distinct affirmative defense to the entire complaint, and to each
 3   cause of action thereof, defendant alleges that plaintiffs have failed to state facts sufficient to
 4   constitute a claim upon which relief may be granted.
 5                                       SECOND AFFIRMATIVE DEFENSE
 6              As a second separate and distinct affirmative defense, defendant alleges that the entire
 7   complaint, and each cause of action thereof, is barred by the limitations periods set forth in
 8   sections 337(1)-(3); 337.1(a)-(f); 337.15(a)-(g); 338(a)-(k); 338.1; 339(1)-(3); 340(1)-(5);
 9   340.2(a)-(c); 343; 355; and 361 of the California Code of Civil Procedure, and all other applicable
10   limitations periods.
11                                        THIRD AFFIRMATIVE DEFENSE
12              As a third separate and distinct affirmative defense to the entire complaint, and each cause
13   of action thereof, defendant alleges that plaintiffs have failed to join all proper parties, or
14   alternatively, has misjoined the parties to this action.
15                                       FOURTH AFFIRMATIVE DEFENSE
16              As a fourth separate and distinct affirmative defense to the entire complaint, and each
17   cause of action thereof, defendant alleges that plaintiffs lack standing to sue defendant.
18                                         FIFTH AFFIRMATIVE DEFENSE
19              As a fifth separate and distinct affirmative defense to the entire complaint, and each cause
20   of action thereof, defendant alleges that plaintiffs, and/or decedent, were negligent and
21   unreasonable in or about the matters alleged in the complaint, and that such matters actually and
22   proximately caused all or part of plaintiffs’ claimed injuries and damages, if any. Any damages
23   which plaintiffs seek to recover from defendant must be reduced in proportion to the extent that
24   plaintiffs and/or decedent’s own negligence contributed to the claimed injuries or damages.
25                                        SIXTH AFFIRMATIVE DEFENSE
26              As a sixth separate and distinct affirmative defense to the entire complaint, and each cause
27   of action thereof, defendant alleges that all or part of plaintiffs’ or plaintiffs’ decedent’s injuries or
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                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1   damages, if any, were actually and proximately caused by the conduct of third parties, and not
 2   defendant.
 3                                      SEVENTH AFFIRMATIVE DEFENSE
 4              As a seventh separate and distinct affirmative defense to the entire complaint, and each
 5   cause of action thereof, defendant alleges that plaintiffs or plaintiffs’ decedent failed to exercise
 6   reasonable diligence in mitigating any damages allegedly sustained as a result of the alleged acts
 7   of defendant.
 8                                       EIGHTH AFFIRMATIVE DEFENSE
 9              As an eighth separate and distinct affirmative defense to the entire complaint, and each
10   cause of action thereof, defendant alleges that at all times mentioned, plaintiffs and plaintiffs’
11   decedent had knowledge of the risks of the matters set forth in the complaint, as well as the
12   magnitude of the risks, and thereafter, knowingly, willingly, and voluntarily assumed those risks.
13                                        NINTH AFFIRMATIVE DEFENSE
14              As a ninth separate and distinct affirmative defense to the entire complaint, and each cause
15   of action thereof, defendant is informed and believes, and based thereon alleges that plaintiffs
16   claim(ed) workers’ compensation benefits from one or more of decedent’s employers or the
17   employers’ insurance carriers, and that any award of damages, judgment or settlement in favor of
18   plaintiffs against defendant should be reduced by the amount paid, or to be paid in the future, by
19   those employers or their workers’ compensation carrier(s).
20                                        TENTH AFFIRMATIVE DEFENSE
21              As a tenth separate and distinct affirmative defense to the entire complaint, and each cause
22   of action thereof, defendant alleges that the entire complaint, and each cause of action thereof, is
23   barred against defendant by the provisions of section 3601, et seq., of the California Labor Code
24   and Section 905(b), Title 33 of the United States Code, and related authority.
25                                     ELEVENTH AFFIRMATIVE DEFENSE
26              As an eleventh separate and distinct affirmative defense to the entire complaint, and each
27   cause of action thereof, defendant alleges that any danger or defect on the premises was obvious or
28   could have been observed by plaintiffs and/or decedent’s exercise of reasonable care.
                                                    -3-
                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1                                      TWELFTH AFFIRMATIVE DEFENSE
 2              As a twelfth separate and distinct affirmative defense to the entire complaint, and each
 3   cause of action thereof, defendant alleges that if plaintiffs and/or decedent sustained injuries or
 4   damages attributable to the use of any product allegedly researched, tested, studied, manufactured,
 5   fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed,
 6   leased, bought, offered for sale, sold, supplied, inspected, serviced, installed, contracted for
 7   installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others,
 8   packaged, advertised and/or which contained or lacked warnings by defendant, which allegations
 9   are expressly denied, the injuries or damages were proximately caused by the unreasonable and
10   unforeseeable misuse, abuse, alteration, or improper maintenance of the product by plaintiffs,
11   decedent or others.
12                                    THIRTEENTH AFFIRMATIVE DEFENSE
13              As a thirteenth separate and distinct affirmative defense to the entire complaint, and each
14   cause of action thereof, defendant alleges that claims asserted by plaintiffs were proximately
15   caused by a superseding, intervening cause.
16                                    FOURTEENTH AFFIRMATIVE DEFENSE
17              As a fourteenth separate and distinct affirmative defense to the entire complaint, and each
18   cause of action thereof, defendant alleges that all products and materials allegedly researched,
19   tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested,
20   labeled, assembled, distributed, leased, bought, offered for sale, sold, supplied, inspected,
21   serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded,
22   manufactured for others, packaged, advertised, and/or which contained or lacked warnings by
23   defendant were not defective in any manner, as said products and materials conformed with the
24   state-of-the-art in existence at all times mentioned in the complaint.
25                                     FIFTEENTH AFFIRMATIVE DEFENSE
26              As a fifteenth separate and distinct affirmative defense to the entire complaint, and each
27   cause of action thereof, defendant alleges that the state of medical and scientific knowledge and
28   published literature and materials reflecting such state of medical and scientific knowledge, at all
                                                      -4-
                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1   times pertinent hereto, was such that defendant neither knew, nor could have known, that the
 2   plaintiffs and/or decedent could sustain an asbestos-related injury from any brief or intermittent
 3   exposure that is alleged to have occurred at any defendant premises.
 4                                     SIXTEENTH AFFIRMATIVE DEFENSE
 5              As a sixteenth separate and distinct affirmative defense to the entire complaint and each
 6   cause of action thereof, defendant alleges that the entire complaint, and each cause of action
 7   thereof, is barred on the grounds that the products or materials referred to in the complaint, if any,
 8   were not a substantial factor in bringing about the injuries and damages alleged by plaintiffs.
 9                                   SEVENTEENTH AFFIRMATIVE DEFENSE
10              As a seventeenth separate and distinct affirmative defense to the entire complaint, and each
11   cause of action thereof, defendant alleges that the entire complaint, and each cause of action
12   thereof, is barred against defendant by the doctrine of waiver.
13                                    EIGHTEENTH AFFIRMATIVE DEFENSE
14              As an eighteenth separate and distinct affirmative defense to the entire complaint, and each
15   cause of action thereof, defendant alleges that the entire complaint, and each cause of action
16   thereof, is barred against defendant by the doctrine of estoppel.
17                                    NINETEENTH AFFIRMATIVE DEFENSE
18              As a nineteenth separate and distinct affirmative defense to the entire complaint, and each
19   cause of action thereof, defendant alleges that the entire complaint, and each cause of action
20   thereof, is barred against defendant by the doctrine of unclean hands.
21                                     TWENTIETH AFFIRMATIVE DEFENSE
22              As a twentieth separate and distinct affirmative defense to the entire complaint, and each
23   cause of action thereof, defendant alleges that any defect or danger on the premises was trivial.
24                                   TWENTY-FIRST AFFIRMATIVE DEFENSE
25              As a twenty-first separate and distinct affirmative defense to the entire complaint and each
26   cause of action thereof, defendant alleges that the entire complaint, and each cause of action
27   thereof, is barred on the grounds that decedent and/or decedent’s employers were sophisticated
28   users or buyers of the products or materials referred to in the complaint.
                                                      -5-
                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1                                 TWENTY-SECOND AFFIRMATIVE DEFENSE
 2              As a twenty-second separate and distinct affirmative defense to the entire complaint, and
 3   each cause of action thereof, defendant alleges that plaintiffs have improperly split the causes of
 4   action and seeks to maintain a duplicative lawsuit based on the same facts and circumstances as a
 5   lawsuit previously filed.
 6                                  TWENTY-THIRD AFFIRMATIVE DEFENSE
 7              As a twenty-third separate and distinct affirmative defense to the entire complaint, and
 8   each cause of action thereof, defendant alleges that the provisions of the Fair Responsibility Act of
 9   1986, Civil Code sections 1431.1 through 1431.5 are applicable. Liability of this defendant to
10   plaintiffs, if any, for non-economic damages, if any, as defined in Civil Code section 1431.2(b)(2)
11   shall be several only and shall not be joint with each or any co-defendant named in the complaint.
12   Defendant shall be liable only for the portion of non-economic damages, if any, allocated to
13   defendant in direct proportion to defendant’s percentage of fault, if any.
14                                 TWENTY-FOURTH AFFIRMATIVE DEFENSE
15              As a twenty-fourth separate and distinct affirmative defense to the entire complaint, and
16   each cause of action thereof, defendant alleges that the causes of action, if any, asserted and set
17   forth in the complaint on a theory of alternate entity and/or successor liability fail to state facts
18   sufficient to constitute a cause of action against this defendant.
19                                   TWENTY-FIFTH AFFIRMATIVE DEFENSE
20              As a twenty-fifth separate and distinct affirmative defense to the entire complaint, and each
21   cause of action thereof, defendant alleges that the causes of action, if any, asserted and set forth in
22   the complaint for negligence per se are barred by California Labor Code section 6304.5, other
23   applicable workers’ compensation provisions, whether domestic and/or foreign, and related
24   authority.
25                                   TWENTY-SIXTH AFFIRMATIVE DEFENSE
26              As a twenty-sixth separate and distinct affirmative defense to the entire complaint, and
27   each cause of action thereof, defendant alleges that it cannot be held liable for the negligence or
28   misconduct, if any, of independent contractors at defendant’s premises, based on the doctrine of
                                                    -6-
                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1   peculiar risk or any other theory of liability, pursuant to Privette v. Superior Court (1993) 5
 2   Cal.4th 689, Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, Toland v. Sunland Housing Group,
 3   Inc. (1998) 18 Cal.4th 253, Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, and Hooker v.
 4   Department of Transportation (2002) 27 Cal.4th 198.
 5                                TWENTY-SEVENTH AFFIRMATIVE DEFENSE
 6              As a twenty-seventh separate and distinct affirmative defense to the entire complaint, and
 7   each cause of action thereof, defendant alleges that the premises and products referred to in the
 8   complaint, if owned, controlled, manufactured, distributed or sold by defendant at all, were
 9   designed, fabricated, constructed, maintained, and repaired in compliance with United States
10   government specifications and/or under the direction, control and authority of federal officers, and
11   that the hazards associated with the use of asbestos-containing products and materials, if any, were
12   known equally to the government and defendants, and therefore the complaint and all causes of
13   action therein, if any, are barred by the government contractor defense (Boyle v. United
14   Technologies Corp. (1988) 487 U.S. 500, and related authority), and the Defense Production Act
15   of 1950, 50 U.S.C. Section 2061, et seq., its statutory predecessors, and related authority.
16                                  TWENTY-EIGHTH AFFIRMATIVE DEFENSE
17              As a twenty-eighth separate and distinct affirmative defense to the entire complaint, and
18   each cause of action thereof, defendant alleges that plaintiffs’ complaint fails to state facts
19   sufficient to entitle plaintiffs to an award of punitive or exemplary damages against defendant.
20                                      TWENTY-NINTH AFFIRMATIVE DEFENSE
21              As a twenty-ninth separate and distinct affirmative defense to the entire complaint, and
22   each cause of action thereof, defendant alleges that plaintiffs are not entitled to an award of
23   punitive or exemplary damages in this action. Such an award would be unconstitutional unless
24   defendant is accorded the safeguards provided under the Constitution of the State of California and
25   the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
26                                     THIRTIETH AFFIRMATIVE DEFENSE
27              As a thirtieth separate and distinct affirmative defense to the entire complaint, and each
28   cause of action thereof, defendant alleges that to the extent plaintiffs’ claims arise out of contract,
                                                      -7-
                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1   plaintiffs’ claims do not state facts sufficient to entitle plaintiffs to an award of punitive or
 2   exemplary damages against defendant.
 3              WHEREFORE, defendant prays judgment as follows:
 4              1.        That plaintiffs takes nothing by way of the complaint;
 5              2.        That the present action be dismissed with prejudice;
 6              3.        That the court enter judgment in favor of defendant Shell Oil Company and against
 7   plaintiffs on each claim for relief;
 8              4.        That an apportionment of fault be made among all parties, and a judgment, and
 9   declaration of partial indemnification and contribution be made against all other parties or persons
10   in accordance with the apportionment of fault;
11              5.        For costs of suit; and
12              6.        For such other and further relief as this Court may deem just and proper.
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     Date: October 2, 2020                         NIXON PEABODY LLP
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                                                   By: /s/ Ross M. Petty
16                                                    Ross M. Petty
                                                      Attorneys for Defendant
17                                                    SHELL OIL COMPANY
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                        DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
     4851-9367-9818.1
 1                       VALERI NISKANEN v. GOLDEN GATE DRYWALL, et.al.

 2             SAN FRANCISCO COUNTY SUPERIOR COURT CASE NO. CGC-19-276813

 3                      PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

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                I, Shelly K. Wetherington, declare that I am, and was at the time of service of the
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 6   documents herein referred to, over the age of eighteen and not a party to the within action. I am

 7   employed in the County of San Francisco, California. My business address is One Embarcadero

 8   Center, 32nd Floor, San Francisco, CA 94111. On the date indicated below, I electronically
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     served the document/s via File & ServeXpress website described as:
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              DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFFS’ FIRST
12           AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS

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       on the recipient/s designated on the Transaction Receipt located on the File & ServeXpress
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       website. I declare under the penalty of perjury pursuant to the law of the State of California that
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       the foregoing is true and correct and was executed on October 2, 2020 at Martinez, California.
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                                                        -1-
                                                 PROOF OF SERVICE
     4851-9367-9818.1