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  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
  • CHARLES H. LARSON ET AL VS. ASBESTOS COMPANIES ET AL ASBESTOS document preview
						
                                

Preview

1 Gary D. Sharp, Esq. SBN 116216 T. Eric Sun, Esq. SBN 187486 2 Andrew L. Sharp, Esq. SBN 292541 ELECTRONICALLY 3 Jocelyn M. Soriano, Esq. FOLEY & MANSFIELD, PLLP SBN 201169 F I L E D Superior Court of California, 2185 N. California Blvd., Suite 575 County of San Francisco 4 Walnut Creek, CA 94596 09/15/2020 Telephone (510) 590-9500 Clerk of the Court 5 Facsimile (510) 590-9595 BY: JUDITH NUNEZ Email: jsoriano@foleymansfield.com Deputy Clerk 6 Attorneys for Defendant 7 CROSBY VALVE, LLC as Doe 5 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN FRANCISCO 11 12 DOROTHY A. LARSON, Individually and as Case No. CGC-17-276562 Successor-in-Interest to CHARLES H. 13 LARSON, Decedent, PAUL LARSON, “Asbestos-Related Case” DAVID LARSON, BARBARA CHARLENE 14 MELTON, ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ 15 Plaintiffs, FIRST AMENDED COMPLAINT FOR 16 vs. DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF 17 ASBESTOS COMPANIES, et al., CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 18 Defendants. 19 First Amended Complaint Filed: August 29, 2017 20 PI Complaint Filed: February 17, 2017 Trial Date: Not Set 21 22 COMES NOW defendant CROSBY VALVE, LLC as Doe 5 (hereinafter “Defendant”) 23 herein on its own behalf and on behalf of no other defendant or entity and answering Plaintiffs’ First 24 Amended Complaint on file herein, admits, denies, and alleges as follows: 25 GENERAL DENIAL 26 Under the provisions of Section 431.30(d), California Code of Civil Procedure, this 27 answering Defendant denies each and every allegation of Plaintiffs’ Complaint and the whole 28 thereof, and denies that Plaintiffs have been damaged in any sum or amount whatsoever, or at all. 1 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 FIRST AFFIRMATIVE DEFENSE 2 1. That any and all events and happenings in connection with the allegations contained 3 in Plaintiffs’ Complaint and the resulting injuries and damages, if any, referred to therein, were 4 proximately caused and contributed to by the negligence of the Plaintiffs thereby barring or reducing 5 Plaintiffs’ recovery herein. 6 SECOND AFFIRMATIVE DEFENSE 7 2. CHARLES H. LARSON (hereinafter “Plaintiffs’ Decedent”) voluntarily assumed the 8 risk of any then-existing conditions alleged in the Complaint with full knowledge thereof, thereby 9 proximately causing the injuries and damages, if any, complained of by Plaintiffs and Plaintiffs are 10 thereby barred from recovery herein. 11 THIRD AFFIRMATIVE DEFENSE 12 3. Plaintiffs’ Decedent acknowledged, ratified, consented to, and acquiesced in the 13 alleged acts or omissions, if any, of this answering Defendant, thus barring Plaintiffs from any relief 14 as prayed for herein. 15 FOURTH AFFIRMATIVE DEFENSE 16 4. Plaintiffs’ action, and each alleged cause of action, is barred by the applicable statute 17 of limitations, including but not limited to California Code of Civil Procedure, Sections 338, 339, 18 340, 340.2, 343, 361, 583.210, 583.310 and 583.410, and California Commercial Code, Section 19 2725. 20 FIFTH AFFIRMATIVE DEFENSE 21 5. Any loss, injury or damage to Plaintiffs were proximately caused or contributed to by 22 the negligent or other tortious acts, omissions, conduct or products of persons, entities or parties 23 other than this answering Defendant, and that each, any, and all damages recoverable by Plaintiffs 24 must be diminished in proportion to the amount of fault attributable to said other persons, entities or 25 parties, and there must be apportioned among all such persons, entities and parties the amount of 26 damages attributed to them as an offset against damages, if any, awarded against this answering 27 Defendant. 28 /// 2 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 SIXTH AFFIRMATIVE DEFENSE 2 6. Plaintiffs are barred from recovery herein by virtue of the application of the Doctrine 3 of Laches (inexcusable delay and prejudice to Defendant). 4 SEVENTH AFFIRMATIVE DEFENSE 5 7. The court lacks subject matter jurisdiction over the matters alleged in the Complaint 6 because the Complaint and each alleged cause of action against Defendant is barred by the 7 provisions of California Labor Code, Sections 3600, et seq. 8 EIGHTH AFFIRMATIVE DEFENSE 9 8. Any loss, injury, or damage, if any, incurred by Plaintiffs were the result of 10 superseding or intervening causes arising from the negligent or willful acts or omissions of other 11 parties which Defendant neither controlled nor had the right to control, and that said loss, injury or 12 damage was not proximately or legally caused by any act, omission, or other conduct of Defendant. 13 NINTH AFFIRMATIVE DEFENSE 14 9. Plaintiffs are barred from recovery herein by virtue of the fact that all products sold 15 by this Defendant were produced in conformity with specifications provided to this answering 16 Defendant by the government of the United States of America pursuant to its war powers. Any 17 defect in said products was caused by deficiencies in the specifications supplied to Defendant, which 18 deficiencies were neither known to Defendant nor discoverable by Defendant with the exercise of 19 reasonable care. 20 TENTH AFFIRMATIVE DEFENSE 21 10. The Complaint fails to state facts sufficient to constitute a cause of action against this 22 answering Defendant. 23 ELEVENTH AFFIRMATIVE DEFENSE 24 11. The Complaint, and each cause of action thereof, which is admittedly based upon a 25 lack of identification of the manufacturer of the alleged injury-causing product, fails to state facts 26 sufficient to constitute a cause of action in that Plaintiffs have asserted a claim for relief which, if 27 granted, would contravene Defendant's constitutional rights to substantive and procedural due 28 process of law as preserved for Defendant by the Fourteenth Amendment to the United States 3 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 Constitution and by Article I, Section 7, of the Constitution of the State of California. 2 TWELFTH AFFIRMATIVE DEFENSE 3 12. The Complaint, and each cause of action thereof, fails to state facts sufficient to 4 constitute a cause of action in that Plaintiffs have asserted claims for relief which, if granted, would 5 constitute a denial by this Court of Defendant's constitutional right to equal protection of the laws as 6 preserved by the Fourteenth Amendment to the United States Constitution, and by Article I, Section 7 7, of the Constitution of the State of California. 8 THIRTEENTH AFFIRMATIVE DEFENSE 9 13. The Complaint, and each cause of action thereof, which is admittedly based upon a 10 lack of identification of the manufacturer of the alleged injury-causing product, fails to state facts 11 sufficient to constitute a cause of action in that Plaintiffs have asserted claims for relief which, if 12 granted, would constitute the taking of private property for public use without just compensation in 13 contravention of the Fifth and Fourteenth Amendments to the United States Constitution and 14 Article I, Sections 7 and 19, of the Constitution of the State of California, and the applicable 15 California statutes. 16 FOURTEENTH AFFIRMATIVE DEFENSE 17 14. If Defendant has purportedly been named or served in this action as a Doe Defendant, 18 such effort by Plaintiffs is invalid on the grounds that Plaintiffs knew, or should have known, of the 19 identity of Defendant and of his alleged causes of action against Defendant at the time of the filing 20 of the Complaint. 21 FIFTEENTH AFFIRMATIVE DEFENSE 22 15. If Plaintiffs’ Decedent sustained any injury or illness attributable to the use of any 23 product manufactured by Defendant, which allegations are expressly denied, the injuries were solely 24 caused by and attributable to the unreasonable and improper use which was made of said products, 25 and each of them. 26 SIXTEENTH AFFIRMATIVE DEFENSE 27 16. Plaintiffs’ Decedent was advised, informed, and warned of any potential hazards 28 and/or dangers, if any there were, associated with the normal or foreseeable use, handling, and 4 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 storage of the products, substances, and equipment described in the Complaint. 2 SEVENTEENTH AFFIRMATIVE DEFENSE 3 17. The product involved was materially altered or changed by a party or parties other 4 than, and without the permission of, this answering Defendant, its employees, servants, or other 5 agents, and such alteration or change created the alleged defect, if any, which was the proximate or 6 legal cause of Plaintiffs’ Decedent and thereby Plaintiffs’ injuries, or damages, if any. 7 EIGHTEENTH AFFIRMATIVE DEFENSE 8 18. The products, substances, and equipment referred to in the Complaint were properly 9 designed and manufactured, and safe for the purpose intended. Said products, substances, and 10 equipment were modified, altered, misused, abused and/or improperly maintained by Plaintiffs’ 11 Decedent or others, and said conduct was not reasonably foreseeable to Defendant and proximately 12 caused or contributed to the injuries, losses, and damages complained of, if any there were, thus 13 barring Plaintiffs’ recovery herein. 14 NINETEENTH AFFIRMATIVE DEFENSE 15 19. Plaintiffs failed to give Defendant reasonably prompt notice of the breaches of 16 warranty, if any, alleged in the Complaint. 17 TWENTIETH AFFIRMATIVE DEFENSE 18 20. Plaintiffs were not in privity of contract with Defendant and said lack of privity bars 19 Plaintiffs’ recovery herein upon any theory of warranty. 20 TWENTY-FIRST AFFIRMATIVE DEFENSE 21 21. Plaintiffs’ Decedent failed to mitigate his damages, if any, in that he failed to use 22 reasonable diligence in caring for his injuries and reasonable means to prevent their aggravation or 23 to accomplish their healing. 24 TWENTY-SECOND AFFIRMATIVE DEFENSE 25 22. Any exposure of Plaintiffs’ Decedent to products sold or distributed by this 26 Defendant was so minimal as to be insufficient to establish by a reasonable degree of probability that 27 any such product caused any alleged injury, damage, or loss to Plaintiffs or Plaintiffs’ Decedent. 28 /// 5 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 TWENTY-THIRD AFFIRMATIVE DEFENSE 2 23. Products sold or distributed by this Defendant were not a substantial factor in 3 bringing about the injuries and damages complained of by Plaintiffs, and, therefore, this Defendant 4 may not be held liable to Plaintiffs as alleged. 5 TWENTY-FOURTH AFFIRMATIVE DEFENSE 6 24. The state of the medical, scientific, and industrial knowledge and practice was at all 7 material times such that Defendant neither breached any alleged duty owed Plaintiffs’ Decedent or 8 thereby Plaintiffs, nor knew, nor could have known, that its product(s) presented a foreseeable risk 9 of harm to Plaintiffs’ Decedent in the normal and expected use of such product(s). 10 TWENTY-FIFTH AFFIRMATIVE DEFENSE 11 25. Any products, substances, or equipment manufactured, formulated, sold or distributed 12 by this answering Defendant were made consistent with the state of the art applicable to said 13 products, substances, or equipment at the time of their manufacture, sale, formulation, or 14 distribution. 15 TWENTY-SIXTH AFFIRMATIVE DEFENSE 16 26. If this Defendant is responsible to Plaintiffs, which responsibility is expressly denied, 17 this Defendant shall be liable to Plaintiffs only for the amount of non-economic damages allocated to 18 this Defendant in direct proportion to this Defendant's percentage of fault, if any. (California Civil 19 Code, Sections 1431, et seq.) 20 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 21 27. At the time and place of the happening of the occurrences and injuries alleged in the 22 Complaint, and all times material thereto, Plaintiffs’ Decedent was employed by various employers, 23 the names of which are unknown to this Defendant, and working within the course and scope of 24 Plaintiffs’ Decedent’s employment and/or employments. Said employer and/or employers and 25 Plaintiffs’ Decedent were subject to the provisions of the Workers' Compensation Act of the State of 26 California and Plaintiff was entitled to receive Workers' Compensation benefits from his employers. 27 Certain sums have been paid to or on behalf of Plaintiffs’ Decedent herein under the applicable 28 provisions of the Labor Code of the State of California. Said employer and/or employers and each 6 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 of them were negligent, careless, and at fault in and about the matters referred to in the Complaint 2 and such negligence, carelessness, and fault proximately and concurrently contributed to and caused 3 the happening of the incidents complained of by Plaintiffs, if any there were. By these premises, any 4 judgment rendered in favor of Plaintiffs herein must be reduced by any benefits or payments made or 5 to be made to Plaintiffs by Plaintiffs’ Decedent employer's or employers' compensation carrier under 6 the authority of Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal. App. 4th 187. 7 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 8 28. Plaintiffs have received, or in the future may receive, Workers' Compensation 9 benefits from Defendant under the Labor Code of the State of California as a consequence of the 10 alleged industrial injury referred to in the Complaint, and, in the event Plaintiffs are awarded 11 damages against Defendant, Defendant claims a credit against this award to the extent that 12 Defendant is barred from enforcing its rights to reimbursement for Workers’ Compensation benefits 13 that Plaintiffs have received or may in the future receive. 14 TWENTY-NINTH AFFIRMATIVE DEFENSE 15 29. The Plaintiffs’ Decedent’s employer or employers, by reason of the advise, 16 information, warnings and use, handling, and storage information given to them, and by reason of 17 their own long standing and continuous experience with the products, substances, and equipment 18 referred to in the Complaint, are and were sophisticated users, handlers, and storers of any and all 19 such products, substances, and equipment, and thereby acquired a separate and affirmative duty to 20 warn, advise, and inform Plaintiff of any potential harmful effects from the mishandling, misstorage, 21 and/or misuse of the subject property, if any. Said employer failed to so warn Plaintiffs’ Decedent 22 and thereby breached said duty, and said failure and breach did directly and proximately cause all 23 damages, injuries, and losses complained of, if any there were. 24 THIRTIETH AFFIRMATIVE DEFENSE 25 30. At all times relative to matters in the Complaint, all of Plaintiffs’ Decedent’s 26 employers were sophisticated users of asbestos-containing products, and said employers' negligence 27 in providing the product to their employees in a negligent, careless, and reckless manner was a 28 superseding and intervening cause of Plaintiffs’ Decedent’s injuries, if any there were. 7 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 THIRTY-FIRST AFFIRMATIVE DEFENSE 2 31. As between Plaintiffs and Defendant, the law applicable to this action is the law as it 3 existed during the period this Defendant engaged, if at all, in the manufacture, sale, or distribution of 4 asbestos-containing products to which the Plaintiffs claim exposure. It is unlawful, inequitable, and 5 in violation of Defendant's contractual, statutory, and constitutional rights to apply principles of law 6 other than or in a manner different from those which existed for the period in which Defendant 7 manufactured, sold, or distributed products to which Plaintiffs claim exposure. 8 THIRTY-SECOND AFFIRMATIVE DEFENSE 9 32. Defendant denies any and all liability to the extent that Plaintiffs assert Defendant's 10 alleged liability as a successor in business, successor in product line, or a portion thereof; assign, 11 predecessor, predecessor in business, predecessor in product line, or a portion thereof; parent, alter 12 ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in an 13 entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, 14 distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting, 15 or installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging 16 and advertising a certain substance, the generic name of which is asbestos. 17 THIRTY-THIRD AFFIRMATIVE DEFENSE 18 33. To the extent the Complaint asserts Defendant's alleged "alternative," "market share," 19 or "enterprise" liability, the Complaint fails to state facts sufficient to constitute a cause of action 20 against this Defendant. 21 THIRTY-FOURTH AFFIRMATIVE DEFENSE 22 34. The Complaint, and each cause of action thereof, fails to state facts sufficient to 23 constitute a cause of action against this answering Defendant, in that Plaintiffs have failed to join a 24 substantial market share of the producers of the product or products to which Plaintiffs’ Decedent 25 was allegedly exposed. 26 THIRTY-FIFTH AFFIRMATIVE DEFENSE 27 35. The Defendant did not and does not have a substantial percentage of the market for 28 the asbestos-containing products which allegedly caused Plaintiffs’ Decedent injuries. Therefore, 8 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 Defendant may not be held liable to Plaintiffs based on this Defendant's alleged percentage share of 2 the applicable market. 3 THIRTY-SIXTH AFFIRMATIVE DEFENSE 4 36. Plaintiffs’ alleged cause of action seeking punitive damages against this Defendant 5 does not state facts sufficient to constitute a cause of action against this answering Defendant. 6 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 7 37. The causes of action asserted herein by Plaintiffs fail to state facts sufficient to 8 constitute a cause of action in that Plaintiffs have asserted claims for punitive damages which, if 9 granted, would violate the prohibition against laws impairing the obligation of contracts set forth in 10 Article I, Section 10, of the United States Constitution. 11 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 12 38. Plaintiffs’ claim for punitive or exemplary damages, if any, alleged by Plaintiffs is 13 barred by the due process clause of the Fourteenth Amendment to the United States Constitution. 14 THIRTY-NINTH AFFIRMATIVE DEFENSE 15 39. Plaintiffs’ claim for punitive or exemplary damages, if any, alleged by Plaintiffs are 16 barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to 17 the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines. 18 FORTIETH AFFIRMATIVE DEFENSE 19 40. Plaintiffs’ claim for punitive or exemplary damages, if any, alleged by Plaintiffs is 20 barred by the "double jeopardy" clause of the Fifth Amendment to the United States Constitution, as 21 applied to the States through the Fourteenth Amendment. 22 FORTY-FIRST AFFIRMATIVE DEFENSE 23 41. This Court does not have subject matter jurisdiction over this action or alternatively 24 this Court lacks jurisdiction over Defendant by reason of improper service of process and/or 25 improper venue. 26 FORTY-SECOND AFFIRMATIVE DEFENSE 27 42. Plaintiffs herein have failed to join indispensable parties (California Code of Civil 28 Procedure, Section 389) and the Complaint is thereby defective, and Plaintiffs are thereby precluded 9 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 from any recovery whatsoever as prayed for herein. 2 FORTY-THIRD AFFIRMATIVE DEFENSE 3 43. Plaintiffs have no standing or right to sue for fraud and conspiracy, breach of 4 warranty, deceit, or any cause of action under California Civil Code, Sections 1708-1710, and 5 therefore the Complaint and each cause of action thereof fail to state facts sufficient to constitute a 6 cause of action against this answering Defendant. 7 FORTY-FOURTH AFFIRMATIVE DEFENSE 8 44. Plaintiffs herein lack legal capacity to sue and are not a real party in interest and are 9 thereby precluded from any recovery whatsoever as prayed for herein. 10 FORTY-FIFTH AFFIRMATIVE DEFENSE 11 45. Fraud and conspiracy do not constitute a separate and distinct form of damages from 12 general damages, and, therefore, the prayer for fraud and conspiracy in addition to general damages 13 does not sufficiently support or constitute a separate claim for damages against this answering 14 Defendant, but is simply cumulative and included in general damages. 15 FORTY-SIXTH AFFIRMATIVE DEFENSE 16 46. Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ 17 Complaint, Plaintiffs’ Decedent knew or should have known the hazards of asbestos-containing 18 products, and therefore Plaintiffs were a sophisticated user of asbestos-containing products within 19 the meaning of William Johnson v. American Standard, Inc. (2008) 74 Cal.Rptr.3d 108. 20 FORTY-SEVENTH AFFIRMATIVE DEFENSE 21 47. Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ 22 Complaint, the manufacturers of the end user products allegedly used by Plaintiffs’ Decedent were 23 sophisticated users of asbestos-containing products and said manufacturers’ conduct within the 24 meaning of William Johnson v. American Standard, Inc. (2008) 74 Cal.Rptr.3d 108 was a 25 superseding and/or intervening cause of Plaintiff’s injuries, if any there were. 26 FORTY-EIGHTH AFFIRMATIVE DEFENSE 27 48. Defendant alleges that all times relevant to the matters alleged in Plaintiffs’ 28 Complaint, Defendant had no duty to warn of the hazards of asbestos-containing products 10 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 manufactured or supplied by third parties within the meaning of Taylor v. Elliott Turbomachinery 2 Co. Inc. (2009) 171 Cal.App.4th 564 and is not liable for any injury caused by a design defect in 3 asbestos-containing products manufactured or supplied by third parties. Merrill v. Leslie Controls, 4 Inc. 2009 WL 3824383 (Cal.App. 2 Dist.) 5 FORTY-NINTH AFFIRMATIVE DEFENSE 6 49. This answering Defendant alleges that Plaintiffs’ claims against Defendant is barred 7 because Defendant owed Plaintiff no duty of care under the holding of Campbell v. Ford Motor Co., 8 (2012) 206 Cal.App.4th 15. Defendant further alleges it had no duty to warn of the hazards of 9 asbestos-containing products manufactured or supplied by third parties within the meaning of O’Neil 10 v. Crane Co. (2012) 53 Cal. 4th 335 and is not liable for any injury caused by a design defect in 11 asbestos-containing products manufactured or supplied by third parties. 12 FIFTIETH AFFIRMATIVE DEFENSE 13 50. This answering Defendant reserves the right to allege further affirmative defenses as 14 they become known through the course of discovery. 15 FIFTY-FIRST AFFIRMATIVE DEFENSE 16 51. Defendant is immune from liability for injuries allegedly caused by Plaintiffs’ 17 exposure to the products that Plaintiff alleges were defective and attributable to Defendant because 18 Defendant was a government contractor that manufactured the products according to and in 19 conformance with detailed specifications provided by the United States Government. 20 FIFTY-SECOND AFFIRMATIVE DEFENSE 21 52. This Court does not have subject matter jurisdiction over this action or alternatively 22 this Court lacks jurisdiction over Defendant by reason of improper service of process and/or 23 improper venue. 24 PRAYER 25 WHEREFORE, Defendant prays: 26 1. That Plaintiffs take nothing by reason of the Complaint herein; 27 2. That judgment be entered in favor of Defendant; 28 3. For costs of suit incurred herein; 11 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 4. For appropriate credits and set-offs arising out of any payment of Workers’ 2 Compensation benefits as alleged above; 3 5. For a judicial determination of the amount of non-economic damages, if any, 4 allocated to Defendant in direct proportion to Defendant’s percentage of fault, if any, 5 and a separate judgment in conformance therewith; 6 6. For appropriate credits and set-offs arising from allocation of liability to other named 7 and unnamed tortfeasors; and 8 7. For such other and further relief as this court may deem just and proper. 9 NOTICE OF REQUEST FOR JURY TRIAL 10 Pursuant to California Code of Civil Procedure section 631, Defendant CROSBY VALVE, 11 LLC hereby asserts its Demand for Trial by Jury. 12 13 DATED: September 15, 2020 FOLEY & MANSFIELD, PLLP 14 15 By: Gary D. Sharp, Esq. 16 T. Eric Sun, Esq. 17 Andrew L. Sharp, Esq. Jocelyn M. Soriano, Esq. 18 Attorneys for Defendant CROSBY VALVE, LLC as Doe 5 19 20 21 22 23 24 25 26 27 28 12 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 4487113 v2 1 Dorothy A. Larson, et al. vs. Asbestos Companies, et al. San Francisco County Superior Court Case No. CGC-17-276562 2 3 PROOF OF SERVICE 4 BY ELECTRONIC TRANSMISSION 5 6 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA: 7 I am employed in the County of Contra Costa, State of California. I am over the age of 18 and not a party to the within action; my business address is 2185 N. California Blvd., Suite 575, 8 Walnut Creek, CA 94596. 9 On the date executed below, I served the foregoing document(s) on the interested parties in 10 this action described as follows: 11 ANSWER OF DEFENDANT CROSBY VALVE, LLC AS DOE 5 TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES – ASBESTOS (NEGLIGENCE, STRICT LIABILITY, 12 LOSS OF CONSORTIUM, SURVIVAL); REQUEST FOR JURY TRIAL 13 ☒ BY ELECTRONIC TRANSMISSION: Pursuant to San Francisco Court General 14 Order No. 158, CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing Electronic Service, or by an agreement of the parties, I electronically 15 eserved through File & ServeXpress and caused the document(s) to be sent to the 16 person(s) at the email addresses designated on the Transaction Receipt located on the File & ServeXpress website. To the best of my knowledge, at the time of the 17 transmission, the transmission was reported as complete and without error. 18 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 19 20 Executed on September 15, 2020, Walnut Creek, California. 21 22 23 24 Norma R. Villanueva 25 26 27 28 PROOF OF SERVICE