Preview
1 WILLIAM M. HAKE (SBN 110956)
Bill.Hake@wilsonelser.com
2 B. GARDINER MCKLEROY (SBN 239367)
Gardiner.Mckleroy@wilsonelser.com ELECTRONICALLY
3 WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
FILED
Superior Court of California,
4 525 Market Street, 17th Floor County of San Francisco
San Francisco, CA 94105-2725 03/03/2020
5 Telephone: (415) 433-0990 Clerk of the Court
Facsimile: (415) 434-1370 BY: KALENE APOLONIO
6 Deputy Clerk
Attorneys for Defendant
7 GOLDEN GATE DRYWALL
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
10
11 VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813
Interest to and as Wrongful Death Heir of
12 BILLY JOE MCCLARY, Deceased; and DEFENDANT GOLDEN GATE
VICTORIA BLAKE, TAMLYN ORTEGON, DRYWALL’S ANSWER TO
13 SUSAN FRENCH, and STEVEN PLAINTIFF’S COMPLAINT
MCCLARTY, as Wrongful Death Heirs of
14 BILLY JOE MCCLARY, Deceased,
15 Plaintiffs, Complaint: December 11, 2019
16 v.
17
KELLY-MOORE PAINT COMPANY, et al.,
18
Defendants.
19
20 COMES NOW, Defendant, GOLDEN GATE DRYWALL (hereinafter referred to as “this
21 answering defendant”), and for itself alone, and in answer to the unverified COMPLAINT
22 (hereinafter “Complaint”) of Plaintiffs Valeri Niskanen et al (hereinafter collectively “Plaintiff”),
23 alleges as follows:
24 Whenever the masculine pronoun is used in this answer, its reference also embraces a
25 female pronoun, company, partnership, entity, or corporation, respectively, to the same effect as if
26 the corresponding female or neuter pronoun were substituted. Wherever the singular “Plaintiff” is
27 used, it also embraces the plural.
28 ///
1
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 GENERAL DENIAL
2 Pursuant to the provisions of California Code of Civil Procedure section 431.30, this
3 answering defendant denies each, every and all of the allegations of the unverified Complaint and
4 each and every cause of action contained therein, and the whole thereof, and denies that Plaintiff
5 has sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at all.
6 1. This answering defendant alleges that it exercised due care and diligence in all the
7 matters alleged in the Complaint, and no act or omission by answering defendant was the proximate
8 cause of any damage, injury or loss to Decedent.
9 2. This answering defendant alleges that Plaintiff cannot prove any facts showing that
10 the conduct of this answering defendant was the cause in fact of any injuries or damages suffered by
11 Decedent as alleged in the Complaint.
12 3. This answering defendant alleges that Plaintiff cannot prove any facts showing that
13 the conduct of this answering defendant was the proximate cause of any injuries or damages
14 suffered by Decedent as alleged in the Complaint.
15 4. This answering defendant alleges there is no concert of action between answering
16 defendant and any other named defendants. Defendants are not joint tortfeasors and, accordingly,
17 answering defendant may not be held jointly and severally liable with any other named defendants.
18 5. This answering defendant alleges that any exposure of Decedent to answering
19 defendant’s activities, or exposure to asbestos or asbestos-containing products, was so minimal as to
20 be insufficient to establish by a reasonable degree of probability that any such activity or product
21 caused any alleged injury, damages, or loss to Plaintiff.
22 6. This answering defendant alleges that even if Decedent was exposed to any asbestos-
23 containing products manufactured or distributed by this answering defendant, which supposition is
24 expressly denied, Decedent’s exposure to said products would have been so minimal as to be
25 insufficient to constitute a “substantial contributing factor” in the causation of Decedent’s alleged
26 injuries or disease, if any.
27 7. To the entire Complaint, and each cause of action thereof, this answering defendant
28 alleges that any defect or danger in or about the premises was trivial.
2
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
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1 FIRST AFFIRMATIVE DEFENSE
2 Failure To State A Cause Of Action
3 AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
4 answering defendant alleges that the Complaint and each and every cause of action alleged therein,
5 fails to state facts sufficient to constitute a cause of action against this answering defendant, and
6 fails to state a claim upon which relief may granted.
7 SECOND AFFIRMATIVE DEFENSE
8 Uncertainty
9 AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
10 this answering defendant alleges that Plaintiff’s Complaint, now and as amended in the future, and
11 each cause of action therein, is vague, ambiguous, unintelligible and uncertain.
12 THIRD AFFIRMATIVE DEFENSE
13 Statutes Of Limitation
14 AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
15 answering defendant alleges the Complaint, and every cause of action alleged therein, is barred by
16 all applicable statutes of limitation, including, but not limited to, Code of Civil Procedure sections
17 335, 335.1, 337, 338, 339, 340.2, 343, 350, and 366.1, Commercial Code section 2725, and sister
18 state statutes of limitation and statutes of repose borrowed by Code of Civil Procedure section 361;
19 therefore Plaintiffs are precluded from recovering the damages and other relief sought in the
20 Complaint.
21 FOURTH AFFIRMATIVE DEFENSE
22 Laches
23 AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
24 this answering defendant alleges that Plaintiff unreasonably delayed in bringing this action, without
25 good cause, and has thereby prejudiced the rights of this answering defendant. The
26 Complaint and all claims alleged therein are therefore barred by the doctrine of laches.
27 ///
28 ///
3
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 FIFTH AFFIRMATIVE DEFENSE
2 Comparative Fault/Negligence
3 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
4 answering defendant alleges that the damages, if any, complained of by Plaintiff, were actually and
5 proximately caused by the negligence, fault, breach of contract and/or strict liability of Plaintiff or
6 other defendants, firms, persons, corporations, unions, employers and entities other than answering
7 defendant, and that said negligence, fault, breach of contract and/or strict liability comparatively
8 reduces the percentage of any negligence, fault, breach of contract and/or strict liability for which
9 answering defendant is legally responsible, which liability answering defendant expressly denies.
10 SIXTH AFFIRMATIVE DEFENSE
11 Third Party Causation
12 AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
13 answering defendant alleges that if there was any negligence or any other form of liability on the
14 part of any of the parties named herein, it was the sole and exclusive negligence and liability of the
15 other persons or entities and not of answering defendant.
16 SEVENTH AFFIRMATIVE DEFENSE
17 Superseding / Intervening Cause
18 AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
19 this answering defendant alleges that if Plaintiff suffered any injuries attributable to the use by
20 Plaintiff of any product containing asbestos which was used, disturbed or sold by this answering
21 defendant, which allegations are expressly denied herein, the injuries were solely caused by an
22 unforeseeable, independent, intervening and/or superseding event beyond the control and unrelated
23 to any conduct of this answering defendant. This answering defendant’s actions, if any, were
24 superseded by the negligence and wrongful conduct of others.
25 EIGHTH AFFIRMATIVE DEFENSE
26 Comparative Negligence
27 AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
28 this answering defendant alleges that at all times and places mentioned in the Complaint, now and
4
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 as amended in the future, Plaintiff was negligent and careless and failed to exercise that degree of
2 care and caution for their own safety which a reasonably prudent person would have used under the
3 same or similar circumstances, in that, among other things, said Plaintiff so negligently and
4 carelessly stationed, conducted and maintained themselves, failed to utilize safety devices and other
5 equipment or facilities supplied to them and/or existing as part of their environment, and failed to
6 observe open and obvious conditions, so as to directly and proximately cause and contribute to their
7 injuries and damages, if any. Plaintiff is therefore precluded from obtaining any recovery against
8 this answering defendant. Alternatively, any negligence or other legal fault attributable to Plaintiff
9 thereby comparatively reduces the percentage of negligence or fault, if any, attributable to this
10 answering defendant, which this answering defendant expressly denies.
11 NINTH AFFIRMATIVE DEFENSE
12 Failure To Mitigate
13 AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
14 answering defendant alleges that at all times and places relevant to this action, Plaintiff failed to
15 make reasonable efforts to mitigate her injuries, loss and/or damages, if any.
16 TENTH AFFIRMATIVE DEFENSE
17 Assumption Of The Risk
18 AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
19 answering defendant alleges that at all times and places referred to in the Complaint, as amended,
20 now or in the future, Plaintiff and her employers, 1) were, or in the exercise of reasonable care
21 should have been, aware, or 2) were, or in the exercise of reasonable care should have been, made
22 aware by the persons whom Plaintiff claim brought asbestos into the presence of Plaintiff, of all
23 circumstances and conditions then and there existing and prevailing, but nonetheless knowingly,
24 voluntarily, and in full appreciation of the potential consequences thereof, exposed himself to
25 whatever risks and dangers may have been attendant to such circumstances and conditions, thereby
26 freely and voluntarily assuming any and all risks incident thereto, and thereby barring Plaintiff from
27 recovery herein.
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GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 ELEVENTH AFFIRMATIVE DEFENSE
2 Unforeseeable Misuse Of Product
3 AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
4 DEFENSE, this answering defendant alleges that at all times material to this action, Plaintiff failed
5 to use the products alleged in the Complaint in the foreseeable, proper and safe manner which
6 would have otherwise been anticipated and expected of an ordinary user. Such misuse of the
7 products described in the Complaint by Plaintiff were the sole, proximate and legal cause of
8 Plaintiff’s injuries and damages, if any, thereby barring Plaintiff from recovery herein.
9 TWELFTH AFFIRMATIVE DEFENSE
10 Compliance With Specifications
11 AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
12 this answering defendant alleges that Plaintiff is barred from recovery herein in that any all
13 products, products used, or products in place at the premises at issue herein were manufactured,
14 packaged, distributed, sold, installed and/or maintained in accordance with contract specifications
15 imposed by its co-defendants, the U.S. Government, the State of California, Plaintiff’s employers,
16 the employers of the persons whom Plaintiff alleges brought workplace asbestos to the home and
17 household of Plaintiff, or other third parties yet to be identified, and that any defect in said products,
18 or alleged acts or omissions in the installation and/or maintenance of said products, was caused by
19 deficiencies in said specifications, and not by any action or conduct on the part of this answering
20 defendant.
21 THIRTEENTH AFFIRMATIVE DEFENSE
22 Compliance With Statutes
23 AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
24 DEFENSE, this answering defendant alleges that all of its conduct and activities as alleged in the
25 Complaint conformed to statutes, government regulations, and industry standards based upon the
26 state of knowledge existing at all relevant times.
27 ///
28 ///
6
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 State Of The Art
3 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
4 DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that all
5 products allegedly manufactured or distributed by this answering defendant were in conformity
6 with the existing state of the medical, scientific, and industrial knowledge, art, and practices,
7 including in accordance with the legal requirements established by the United States Occupational,
8 Safety & Health Administration (“OSHA”) and/or other applicable legal requirements in place at
9 the time of the alleged exposure, and as a result, said products were not defective in any manner.
10 FIFTEENTH AFFIRMATIVE DEFENSE
11 Adequate Warnings Given
12 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
13 this answering defendant alleges that Plaintiff and his employers, were advised, informed, and
14 warned of any potential hazards and/or dangers, if there were any, associated with the normal or
15 foreseeable use, handling, and storage of the products, substances, equipment and at premises in
16 which exposure is claimed, and/or to asbestos “in-place”, in a manner which was adequate notice to
17 an industrial user of such products to enable it to inform its employees to take appropriate work
18 precautions to prevent injurious exposure.
19 SIXTEENTH AFFIRMATIVE DEFENSE
20 Third Party Had Duty To Warn
21 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
22 DEFENSE, this answering defendant is not liable for any alleged failure to warn of any risks,
23 dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly
24 distributed, sold, supplied or delivered to Plaintiff’s employers, because said employers had as
25 great, if not greater, knowledge about the nature of any risks, dangers or hazards than did this
26 answering defendant, and unlike this answering defendant, said employers were in a position to
27 warn person exposed to such products any such risks, dangers or hazards.
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GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 Sophisticated User – Plaintiff
3 AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
4 DEFENSE, this answering defendant alleges that at all times relevant to the matters alleged in the
5 Complaint, as amended now or in the future, Plaintiff knew or should have known of the inherent
6 hazards, risks or potential dangers of the products alleged to be at issue, and was therefore a
7 sophisticated and knowledgeable user of each such product. As such, this answering defendant is
8 not liable to Plaintiff for any alleged failure to warn of such hazards, risks or dangers.
9 EIGHTEENTH AFFIRMATIVE DEFENSE
10 Apportionment
11 AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
12 DEFENSE, this answering defendant alleges that no act, omission, conduct or product attributable
13 to it caused or contributed to any injuries or damages sustained by Plaintiff, if any, and that if such
14 injuries and damages, if any, were not solely caused by Plaintiff’s act, omissions, and other
15 conduct, then said injuries and damages were proximately caused and contributed to by the
16 negligence and/or other tortious acts, omissions, conduct and products of persons or entities other
17 than this answering defendant, and that said negligence and/or other legal fault was an intervening
18 and superseding cause of Plaintiff’s injuries and damages, if any. Any damages recoverable by
19 Plaintiff must therefore be diminished in proportion to the amount of fault attributable to these other
20 persons and entities, and there should be an apportionment of the harm and damage claimed by
21 Plaintiff, if any.
22 NINETEENTH AFFIRMATIVE DEFENSE
23 Proposition 51
24 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
25 DEFENSE, this answering defendant alleges that the liability of this answering defendant, if any,
26 shall be apportioned in accordance with the provisions of California Civil Code section 1431, et
27 seq., (commonly known as “Proposition 51” or the “Fair Responsibility Act of 1986”).
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8
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 TWENTIETH AFFIRMATIVE DEFENSE
2 Workers’ Compensation Offset
3 AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
4 DEFENSE, this answering defendant alleges on information and belief that at all times and places
5 relevant to this action, Plaintiff was an employee of any employer or employers whose names are
6 presently unknown, and that any injuries or damages alleged in the Complaint, as amended now or
7 in the future, occurred while Plaintiff were acting within the course of scope of such employment.
8 This answering defendant further alleges on information and belief that Plaintiff’s employers
9 provided Plaintiff with certain benefits in compliance with the terms and provisions of the Workers’
10 Compensation Laws of the State of California. The nature and extent of such Workers’
11 Compensation benefits that may have been provided is unknown. Therefore, this answering
12 defendant is entitled to an offset of any such benefits received or to be received by Plaintiff against
13 any judgment which may be rendered in favor of Plaintiff, pursuant to the doctrine of Witt v.
14 Jackson (1961) 57 Cal.2d 57.
15 TWENTY-FIRST AFFIRMATIVE DEFENSE
16 Benefit Outweighs Risk
17 AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
18 DEFENSE, this answering defendant alleges that the benefit of the design of any product associated
19 with said defendant outweighs any risk associated with said product, if any risk there
20 actually was, which this answering defendant denies.
21 TWENTY-SECOND AFFIRMATIVE DEFENSE
22 Not A “Seller” Of A Product Per Section 402B
23 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
24 DEFENSE, this answering defendant alleges that to the extent the Complaint, or any cause of action
25 alleged therein, is based upon an allegation of strict products liability as against this answering
26 defendant, said cause of action cannot be maintained as this answering defendant was not a “seller”
27 within the meaning of section 402B of the Restatement (Second) of Torts, and consequently any
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9
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 claim of strict liability against this answering defendant is barred pursuant to Monte Vista
2 Development Corporation vs. Superior Court (1991) 226 Cal.App.3d 1681.
3 TWENTY-THIRD AFFIRMATIVE DEFENSE
4 Not A Manufacturer Of A Product
5 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
6 DEFENSE, this answering defendant alleges to the extent the Complaint, or any cause of action
7 alleged therein, is based upon an allegation of strict products liability as against this answering
8 defendant, as amended now or in the future, said cause of action cannot be maintained as this
9 answering defendant did not manufacture a product within the meaning of any applicable case law
10 or statute that supports any cause of action brought by Plaintiff against this answering defendant.
11 TWENTY-FOURTH AFFIRMATIVE DEFENSE
12 No Safer Alternative Design Possible
13 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
14 DEFENSE, this answering defendant alleges that any product(s) allegedly associated with this
15 answering defendant and subject to the instant Complaint were as safe as could be designed under
16 the state of technology and medical and scientific knowledge existing at the time the products were
17 manufactured.
18 TWENTY-FIFTH AFFIRMATIVE DEFENSE
19 Did Not Engage In An Ultra-Hazardous Activity
20 AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
21 DEFENSE, this answering defendant alleges that the activity alleged in the Complaint, as amended
22 now or in the future, and any and all claims and causes of action alleged therein, to the extent it was
23 engaged in by this answering defendant, if at all, was not ultra-hazardous under California Law.
24 TWENTY-SIXTH AFFIRMATIVE DEFENSE
25 Failure To State A Cause Of Action
26 AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
27 DEFENSE, this answering defendant alleges that the Complaint, now and as amended in the future,
28 and each and every cause of action contained therein, fails to state facts sufficient to constitute
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GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 “fraud,” “oppression,” or “malice,” as these terms are used in California Civil Code section 3294,
2 and therefore fails to state a cause of action for punitive damages.
3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
4 Res Judicata / Collateral Estoppel
5 AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
6 DEFENSE, this answering defendant alleges that the Complaint, as amended now or in the future,
7 and any and all claims and causes of action alleged therein, is/are barred pursuant to the doctrines of
8 res judicata and/or collateral estoppel.
9 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
10 Improper Splitting
11 AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
12 DEFENSE, this answering defendant alleges that Plaintiff has improperly split their causes of
13 action and seek to maintain a duplicative lawsuit based on the same facts and circumstances as a
14 lawsuit previously filed.
15 TWENTY-NINTH AFFIRMATIVE DEFENSE
16 Lack Of Jurisdiction: Personal
17 AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
18 DEFENSE, this answering defendant alleges, with respect to some or all of Plaintiff’s alleged
19 claims and causes of action, this Court lacks personal jurisdiction over this answering defendant.
20 THIRTIETH AFFIRMATIVE DEFENSE
21 Lack Of Jurisdiction: Subject Matter
22 AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
23 this answering defendant alleges, with respect to some or all of Plaintiff’s alleged claims and causes
24 of action, this Court lacks subject-matter jurisdiction over the subject of Plaintiff’s claim.
25 THIRTY-FIRST AFFIRMATIVE DEFENSE
26 Forum Non Conveniens
27 AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
28 DEFENSE, this answering defendant alleges, with respect to some or all of Plaintiff’s alleged
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GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 claims and causes of action, in the interest of substantial justice, the action should be heard in a
2 forum outside this state.
3 THIRTY-SECOND AFFIRMATIVE DEFENSE
4 Improper Venue
5 AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
6 DEFENSE, this answering defendant alleges that Plaintiff’s Complaint has been filed in an
7 improper venue.
8 THIRTY-THIRD AFFIRMATIVE DEFENSE
9 Choice Of Law
10 AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
11 DEFENSE, this answering defendant alleges that some or all of Plaintiff’s alleged claims, causes of
12 action and/or legal issues raised in the Complaint are governed by the substantive laws of a state
13 other than California.
14 THIRTY-FOURTH AFFIRMATIVE DEFENSE
15 Doe Defendant
16 AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
17 DEFENSE to the Complaint, now and as amended in the future, and each cause of action therein,
18 this answering defendant alleges that if it has purportedly been named or served in this action as a
19 Doe Defendant, Plaintiff’s attempt to do so is invalid in that Plaintiff knew or should have known of
20 the identity of this answering defendant and of Plaintiff’s alleged causes of action against it at the
21 time of the filing of the Complaint.
22 THIRTY-FIFTH AFFIRMATIVE DEFENSE
23 Plaintiff’s Lack Of Capacity To Sue
24 AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
25 DEFENSE, this answering defendant alleged that Plaintiff lacks legal capacity to sue and are not
26 real parties in interest and are thereby precluded from any recovery whatsoever as prayed.
27 ///
28 ///
12
GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 THIRTY-SIXTH AFFIRMATIVE DEFENSE
2 Independent Contractor Liability
3 AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
4 DEFENSE, this answering defendant alleged that it cannot be liable for the negligence or
5 misconduct, if any, of independent contractors at Defendant’s premises, based on the doctrine of
6 peculiar risk or any other theory of liability, pursuant to Privette v. Superior Court (1993) 5 Cal.4th
7 689, Smith v. AcandS, Inc. (1994) 31 Cal.App.4th 77, Toland v. Sunland Housing Group, Inc.
8 (1998) 18 Cal.4th 253, Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, Hooker v. Department
9 of Transportation (2002) 27 Cal.4th 198, Kinsman v. Unocal Corp., (2005) 37 Cal.4th 659 and
10 Michael v. Danbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082.
11
12 RESERVATION OF RIGHTS
13 This answering defendant presently has insufficient knowledge or information on which to
14 form a belief as to whether it may have additional, as yet unstated, defenses available. This
15 answering defendant hereby reserves the right to amend its answer to assert additional defenses as
16 appropriate.
17 PRAYER
18 WHEREFORE, Defendant, GOLDEN GATE DRYWALL, prays for judgment as follows:
19 1. That Plaintiff takes nothing by way of their Complaint or any cause of action thereof
20 against this answering defendant;
21 2. That the court award judgment in favor of this answering defendant;
22 3. For reasonable attorneys’ fees;
23 4. For costs of suit and disbursements; and
24 5. That if this answering defendant is found liable, that the degree of responsibility and
25 liability for the resulting damages be determined and apportioned in accordance with California
26 Civil Code section 1431, et seq.; and
27 ///
28 ///
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GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
2278665v.1
1 6. For such other and further relief as this Court may deem proper.
2
Dated: March 3, 2020 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER
3 LLP
4
5 By: /s/ Gardiner McKleroy
WILLIAM M. HAKE
6 B. GARDINER MCKLEROY
Attorneys for Defendant
7 GOLDEN GATE DRYWALL
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GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT
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Preview
1 WILLIAM M. HAKE (SBN 110956) Bill.Hake@wilsonelser.com 2 B. GARDINER MCKLEROY (SBN 239367) Gardiner.Mckleroy@wilsonelser.com ELECTRONICALLY 3 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP FILED Superior Court of California, 4 525 Market Street, 17th Floor County of San Francisco San Francisco, CA 94105-2725 03/03/2020 5 Telephone: (415) 433-0990 Clerk of the Court Facsimile: (415) 434-1370 BY: KALENE APOLONIO 6 Deputy Clerk Attorneys for Defendant 7 GOLDEN GATE DRYWALL 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCO 10 11 VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813 Interest to and as Wrongful Death Heir of 12 BILLY JOE MCCLARY, Deceased; and DEFENDANT GOLDEN GATE VICTORIA BLAKE, TAMLYN ORTEGON, DRYWALL’S ANSWER TO 13 SUSAN FRENCH, and STEVEN PLAINTIFF’S COMPLAINT MCCLARTY, as Wrongful Death Heirs of 14 BILLY JOE MCCLARY, Deceased, 15 Plaintiffs, Complaint: December 11, 2019 16 v. 17 KELLY-MOORE PAINT COMPANY, et al., 18 Defendants. 19 20 COMES NOW, Defendant, GOLDEN GATE DRYWALL (hereinafter referred to as “this 21 answering defendant”), and for itself alone, and in answer to the unverified COMPLAINT 22 (hereinafter “Complaint”) of Plaintiffs Valeri Niskanen et al (hereinafter collectively “Plaintiff”), 23 alleges as follows: 24 Whenever the masculine pronoun is used in this answer, its reference also embraces a 25 female pronoun, company, partnership, entity, or corporation, respectively, to the same effect as if 26 the corresponding female or neuter pronoun were substituted. Wherever the singular “Plaintiff” is 27 used, it also embraces the plural. 28 /// 1 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 GENERAL DENIAL 2 Pursuant to the provisions of California Code of Civil Procedure section 431.30, this 3 answering defendant denies each, every and all of the allegations of the unverified Complaint and 4 each and every cause of action contained therein, and the whole thereof, and denies that Plaintiff 5 has sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at all. 6 1. This answering defendant alleges that it exercised due care and diligence in all the 7 matters alleged in the Complaint, and no act or omission by answering defendant was the proximate 8 cause of any damage, injury or loss to Decedent. 9 2. This answering defendant alleges that Plaintiff cannot prove any facts showing that 10 the conduct of this answering defendant was the cause in fact of any injuries or damages suffered by 11 Decedent as alleged in the Complaint. 12 3. This answering defendant alleges that Plaintiff cannot prove any facts showing that 13 the conduct of this answering defendant was the proximate cause of any injuries or damages 14 suffered by Decedent as alleged in the Complaint. 15 4. This answering defendant alleges there is no concert of action between answering 16 defendant and any other named defendants. Defendants are not joint tortfeasors and, accordingly, 17 answering defendant may not be held jointly and severally liable with any other named defendants. 18 5. This answering defendant alleges that any exposure of Decedent to answering 19 defendant’s activities, or exposure to asbestos or asbestos-containing products, was so minimal as to 20 be insufficient to establish by a reasonable degree of probability that any such activity or product 21 caused any alleged injury, damages, or loss to Plaintiff. 22 6. This answering defendant alleges that even if Decedent was exposed to any asbestos- 23 containing products manufactured or distributed by this answering defendant, which supposition is 24 expressly denied, Decedent’s exposure to said products would have been so minimal as to be 25 insufficient to constitute a “substantial contributing factor” in the causation of Decedent’s alleged 26 injuries or disease, if any. 27 7. To the entire Complaint, and each cause of action thereof, this answering defendant 28 alleges that any defect or danger in or about the premises was trivial. 2 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 FIRST AFFIRMATIVE DEFENSE 2 Failure To State A Cause Of Action 3 AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 4 answering defendant alleges that the Complaint and each and every cause of action alleged therein, 5 fails to state facts sufficient to constitute a cause of action against this answering defendant, and 6 fails to state a claim upon which relief may granted. 7 SECOND AFFIRMATIVE DEFENSE 8 Uncertainty 9 AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 10 this answering defendant alleges that Plaintiff’s Complaint, now and as amended in the future, and 11 each cause of action therein, is vague, ambiguous, unintelligible and uncertain. 12 THIRD AFFIRMATIVE DEFENSE 13 Statutes Of Limitation 14 AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 15 answering defendant alleges the Complaint, and every cause of action alleged therein, is barred by 16 all applicable statutes of limitation, including, but not limited to, Code of Civil Procedure sections 17 335, 335.1, 337, 338, 339, 340.2, 343, 350, and 366.1, Commercial Code section 2725, and sister 18 state statutes of limitation and statutes of repose borrowed by Code of Civil Procedure section 361; 19 therefore Plaintiffs are precluded from recovering the damages and other relief sought in the 20 Complaint. 21 FOURTH AFFIRMATIVE DEFENSE 22 Laches 23 AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 24 this answering defendant alleges that Plaintiff unreasonably delayed in bringing this action, without 25 good cause, and has thereby prejudiced the rights of this answering defendant. The 26 Complaint and all claims alleged therein are therefore barred by the doctrine of laches. 27 /// 28 /// 3 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 FIFTH AFFIRMATIVE DEFENSE 2 Comparative Fault/Negligence 3 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 4 answering defendant alleges that the damages, if any, complained of by Plaintiff, were actually and 5 proximately caused by the negligence, fault, breach of contract and/or strict liability of Plaintiff or 6 other defendants, firms, persons, corporations, unions, employers and entities other than answering 7 defendant, and that said negligence, fault, breach of contract and/or strict liability comparatively 8 reduces the percentage of any negligence, fault, breach of contract and/or strict liability for which 9 answering defendant is legally responsible, which liability answering defendant expressly denies. 10 SIXTH AFFIRMATIVE DEFENSE 11 Third Party Causation 12 AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 13 answering defendant alleges that if there was any negligence or any other form of liability on the 14 part of any of the parties named herein, it was the sole and exclusive negligence and liability of the 15 other persons or entities and not of answering defendant. 16 SEVENTH AFFIRMATIVE DEFENSE 17 Superseding / Intervening Cause 18 AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 19 this answering defendant alleges that if Plaintiff suffered any injuries attributable to the use by 20 Plaintiff of any product containing asbestos which was used, disturbed or sold by this answering 21 defendant, which allegations are expressly denied herein, the injuries were solely caused by an 22 unforeseeable, independent, intervening and/or superseding event beyond the control and unrelated 23 to any conduct of this answering defendant. This answering defendant’s actions, if any, were 24 superseded by the negligence and wrongful conduct of others. 25 EIGHTH AFFIRMATIVE DEFENSE 26 Comparative Negligence 27 AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 28 this answering defendant alleges that at all times and places mentioned in the Complaint, now and 4 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 as amended in the future, Plaintiff was negligent and careless and failed to exercise that degree of 2 care and caution for their own safety which a reasonably prudent person would have used under the 3 same or similar circumstances, in that, among other things, said Plaintiff so negligently and 4 carelessly stationed, conducted and maintained themselves, failed to utilize safety devices and other 5 equipment or facilities supplied to them and/or existing as part of their environment, and failed to 6 observe open and obvious conditions, so as to directly and proximately cause and contribute to their 7 injuries and damages, if any. Plaintiff is therefore precluded from obtaining any recovery against 8 this answering defendant. Alternatively, any negligence or other legal fault attributable to Plaintiff 9 thereby comparatively reduces the percentage of negligence or fault, if any, attributable to this 10 answering defendant, which this answering defendant expressly denies. 11 NINTH AFFIRMATIVE DEFENSE 12 Failure To Mitigate 13 AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 14 answering defendant alleges that at all times and places relevant to this action, Plaintiff failed to 15 make reasonable efforts to mitigate her injuries, loss and/or damages, if any. 16 TENTH AFFIRMATIVE DEFENSE 17 Assumption Of The Risk 18 AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 19 answering defendant alleges that at all times and places referred to in the Complaint, as amended, 20 now or in the future, Plaintiff and her employers, 1) were, or in the exercise of reasonable care 21 should have been, aware, or 2) were, or in the exercise of reasonable care should have been, made 22 aware by the persons whom Plaintiff claim brought asbestos into the presence of Plaintiff, of all 23 circumstances and conditions then and there existing and prevailing, but nonetheless knowingly, 24 voluntarily, and in full appreciation of the potential consequences thereof, exposed himself to 25 whatever risks and dangers may have been attendant to such circumstances and conditions, thereby 26 freely and voluntarily assuming any and all risks incident thereto, and thereby barring Plaintiff from 27 recovery herein. 28 5 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 ELEVENTH AFFIRMATIVE DEFENSE 2 Unforeseeable Misuse Of Product 3 AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE 4 DEFENSE, this answering defendant alleges that at all times material to this action, Plaintiff failed 5 to use the products alleged in the Complaint in the foreseeable, proper and safe manner which 6 would have otherwise been anticipated and expected of an ordinary user. Such misuse of the 7 products described in the Complaint by Plaintiff were the sole, proximate and legal cause of 8 Plaintiff’s injuries and damages, if any, thereby barring Plaintiff from recovery herein. 9 TWELFTH AFFIRMATIVE DEFENSE 10 Compliance With Specifications 11 AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 12 this answering defendant alleges that Plaintiff is barred from recovery herein in that any all 13 products, products used, or products in place at the premises at issue herein were manufactured, 14 packaged, distributed, sold, installed and/or maintained in accordance with contract specifications 15 imposed by its co-defendants, the U.S. Government, the State of California, Plaintiff’s employers, 16 the employers of the persons whom Plaintiff alleges brought workplace asbestos to the home and 17 household of Plaintiff, or other third parties yet to be identified, and that any defect in said products, 18 or alleged acts or omissions in the installation and/or maintenance of said products, was caused by 19 deficiencies in said specifications, and not by any action or conduct on the part of this answering 20 defendant. 21 THIRTEENTH AFFIRMATIVE DEFENSE 22 Compliance With Statutes 23 AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 24 DEFENSE, this answering defendant alleges that all of its conduct and activities as alleged in the 25 Complaint conformed to statutes, government regulations, and industry standards based upon the 26 state of knowledge existing at all relevant times. 27 /// 28 /// 6 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 State Of The Art 3 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 4 DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that all 5 products allegedly manufactured or distributed by this answering defendant were in conformity 6 with the existing state of the medical, scientific, and industrial knowledge, art, and practices, 7 including in accordance with the legal requirements established by the United States Occupational, 8 Safety & Health Administration (“OSHA”) and/or other applicable legal requirements in place at 9 the time of the alleged exposure, and as a result, said products were not defective in any manner. 10 FIFTEENTH AFFIRMATIVE DEFENSE 11 Adequate Warnings Given 12 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 13 this answering defendant alleges that Plaintiff and his employers, were advised, informed, and 14 warned of any potential hazards and/or dangers, if there were any, associated with the normal or 15 foreseeable use, handling, and storage of the products, substances, equipment and at premises in 16 which exposure is claimed, and/or to asbestos “in-place”, in a manner which was adequate notice to 17 an industrial user of such products to enable it to inform its employees to take appropriate work 18 precautions to prevent injurious exposure. 19 SIXTEENTH AFFIRMATIVE DEFENSE 20 Third Party Had Duty To Warn 21 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 22 DEFENSE, this answering defendant is not liable for any alleged failure to warn of any risks, 23 dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly 24 distributed, sold, supplied or delivered to Plaintiff’s employers, because said employers had as 25 great, if not greater, knowledge about the nature of any risks, dangers or hazards than did this 26 answering defendant, and unlike this answering defendant, said employers were in a position to 27 warn person exposed to such products any such risks, dangers or hazards. 28 7 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 Sophisticated User – Plaintiff 3 AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 4 DEFENSE, this answering defendant alleges that at all times relevant to the matters alleged in the 5 Complaint, as amended now or in the future, Plaintiff knew or should have known of the inherent 6 hazards, risks or potential dangers of the products alleged to be at issue, and was therefore a 7 sophisticated and knowledgeable user of each such product. As such, this answering defendant is 8 not liable to Plaintiff for any alleged failure to warn of such hazards, risks or dangers. 9 EIGHTEENTH AFFIRMATIVE DEFENSE 10 Apportionment 11 AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 12 DEFENSE, this answering defendant alleges that no act, omission, conduct or product attributable 13 to it caused or contributed to any injuries or damages sustained by Plaintiff, if any, and that if such 14 injuries and damages, if any, were not solely caused by Plaintiff’s act, omissions, and other 15 conduct, then said injuries and damages were proximately caused and contributed to by the 16 negligence and/or other tortious acts, omissions, conduct and products of persons or entities other 17 than this answering defendant, and that said negligence and/or other legal fault was an intervening 18 and superseding cause of Plaintiff’s injuries and damages, if any. Any damages recoverable by 19 Plaintiff must therefore be diminished in proportion to the amount of fault attributable to these other 20 persons and entities, and there should be an apportionment of the harm and damage claimed by 21 Plaintiff, if any. 22 NINETEENTH AFFIRMATIVE DEFENSE 23 Proposition 51 24 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 25 DEFENSE, this answering defendant alleges that the liability of this answering defendant, if any, 26 shall be apportioned in accordance with the provisions of California Civil Code section 1431, et 27 seq., (commonly known as “Proposition 51” or the “Fair Responsibility Act of 1986”). 28 8 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 TWENTIETH AFFIRMATIVE DEFENSE 2 Workers’ Compensation Offset 3 AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE 4 DEFENSE, this answering defendant alleges on information and belief that at all times and places 5 relevant to this action, Plaintiff was an employee of any employer or employers whose names are 6 presently unknown, and that any injuries or damages alleged in the Complaint, as amended now or 7 in the future, occurred while Plaintiff were acting within the course of scope of such employment. 8 This answering defendant further alleges on information and belief that Plaintiff’s employers 9 provided Plaintiff with certain benefits in compliance with the terms and provisions of the Workers’ 10 Compensation Laws of the State of California. The nature and extent of such Workers’ 11 Compensation benefits that may have been provided is unknown. Therefore, this answering 12 defendant is entitled to an offset of any such benefits received or to be received by Plaintiff against 13 any judgment which may be rendered in favor of Plaintiff, pursuant to the doctrine of Witt v. 14 Jackson (1961) 57 Cal.2d 57. 15 TWENTY-FIRST AFFIRMATIVE DEFENSE 16 Benefit Outweighs Risk 17 AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE 18 DEFENSE, this answering defendant alleges that the benefit of the design of any product associated 19 with said defendant outweighs any risk associated with said product, if any risk there 20 actually was, which this answering defendant denies. 21 TWENTY-SECOND AFFIRMATIVE DEFENSE 22 Not A “Seller” Of A Product Per Section 402B 23 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE 24 DEFENSE, this answering defendant alleges that to the extent the Complaint, or any cause of action 25 alleged therein, is based upon an allegation of strict products liability as against this answering 26 defendant, said cause of action cannot be maintained as this answering defendant was not a “seller” 27 within the meaning of section 402B of the Restatement (Second) of Torts, and consequently any 28 9 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 claim of strict liability against this answering defendant is barred pursuant to Monte Vista 2 Development Corporation vs. Superior Court (1991) 226 Cal.App.3d 1681. 3 TWENTY-THIRD AFFIRMATIVE DEFENSE 4 Not A Manufacturer Of A Product 5 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE 6 DEFENSE, this answering defendant alleges to the extent the Complaint, or any cause of action 7 alleged therein, is based upon an allegation of strict products liability as against this answering 8 defendant, as amended now or in the future, said cause of action cannot be maintained as this 9 answering defendant did not manufacture a product within the meaning of any applicable case law 10 or statute that supports any cause of action brought by Plaintiff against this answering defendant. 11 TWENTY-FOURTH AFFIRMATIVE DEFENSE 12 No Safer Alternative Design Possible 13 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE 14 DEFENSE, this answering defendant alleges that any product(s) allegedly associated with this 15 answering defendant and subject to the instant Complaint were as safe as could be designed under 16 the state of technology and medical and scientific knowledge existing at the time the products were 17 manufactured. 18 TWENTY-FIFTH AFFIRMATIVE DEFENSE 19 Did Not Engage In An Ultra-Hazardous Activity 20 AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE 21 DEFENSE, this answering defendant alleges that the activity alleged in the Complaint, as amended 22 now or in the future, and any and all claims and causes of action alleged therein, to the extent it was 23 engaged in by this answering defendant, if at all, was not ultra-hazardous under California Law. 24 TWENTY-SIXTH AFFIRMATIVE DEFENSE 25 Failure To State A Cause Of Action 26 AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE 27 DEFENSE, this answering defendant alleges that the Complaint, now and as amended in the future, 28 and each and every cause of action contained therein, fails to state facts sufficient to constitute 10 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 “fraud,” “oppression,” or “malice,” as these terms are used in California Civil Code section 3294, 2 and therefore fails to state a cause of action for punitive damages. 3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 4 Res Judicata / Collateral Estoppel 5 AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE 6 DEFENSE, this answering defendant alleges that the Complaint, as amended now or in the future, 7 and any and all claims and causes of action alleged therein, is/are barred pursuant to the doctrines of 8 res judicata and/or collateral estoppel. 9 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 10 Improper Splitting 11 AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE 12 DEFENSE, this answering defendant alleges that Plaintiff has improperly split their causes of 13 action and seek to maintain a duplicative lawsuit based on the same facts and circumstances as a 14 lawsuit previously filed. 15 TWENTY-NINTH AFFIRMATIVE DEFENSE 16 Lack Of Jurisdiction: Personal 17 AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE 18 DEFENSE, this answering defendant alleges, with respect to some or all of Plaintiff’s alleged 19 claims and causes of action, this Court lacks personal jurisdiction over this answering defendant. 20 THIRTIETH AFFIRMATIVE DEFENSE 21 Lack Of Jurisdiction: Subject Matter 22 AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 23 this answering defendant alleges, with respect to some or all of Plaintiff’s alleged claims and causes 24 of action, this Court lacks subject-matter jurisdiction over the subject of Plaintiff’s claim. 25 THIRTY-FIRST AFFIRMATIVE DEFENSE 26 Forum Non Conveniens 27 AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE 28 DEFENSE, this answering defendant alleges, with respect to some or all of Plaintiff’s alleged 11 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 claims and causes of action, in the interest of substantial justice, the action should be heard in a 2 forum outside this state. 3 THIRTY-SECOND AFFIRMATIVE DEFENSE 4 Improper Venue 5 AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE 6 DEFENSE, this answering defendant alleges that Plaintiff’s Complaint has been filed in an 7 improper venue. 8 THIRTY-THIRD AFFIRMATIVE DEFENSE 9 Choice Of Law 10 AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE 11 DEFENSE, this answering defendant alleges that some or all of Plaintiff’s alleged claims, causes of 12 action and/or legal issues raised in the Complaint are governed by the substantive laws of a state 13 other than California. 14 THIRTY-FOURTH AFFIRMATIVE DEFENSE 15 Doe Defendant 16 AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE 17 DEFENSE to the Complaint, now and as amended in the future, and each cause of action therein, 18 this answering defendant alleges that if it has purportedly been named or served in this action as a 19 Doe Defendant, Plaintiff’s attempt to do so is invalid in that Plaintiff knew or should have known of 20 the identity of this answering defendant and of Plaintiff’s alleged causes of action against it at the 21 time of the filing of the Complaint. 22 THIRTY-FIFTH AFFIRMATIVE DEFENSE 23 Plaintiff’s Lack Of Capacity To Sue 24 AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE 25 DEFENSE, this answering defendant alleged that Plaintiff lacks legal capacity to sue and are not 26 real parties in interest and are thereby precluded from any recovery whatsoever as prayed. 27 /// 28 /// 12 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 THIRTY-SIXTH AFFIRMATIVE DEFENSE 2 Independent Contractor Liability 3 AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE 4 DEFENSE, this answering defendant alleged that it cannot be liable for the negligence or 5 misconduct, if any, of independent contractors at Defendant’s premises, based on the doctrine of 6 peculiar risk or any other theory of liability, pursuant to Privette v. Superior Court (1993) 5 Cal.4th 7 689, Smith v. AcandS, Inc. (1994) 31 Cal.App.4th 77, Toland v. Sunland Housing Group, Inc. 8 (1998) 18 Cal.4th 253, Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, Hooker v. Department 9 of Transportation (2002) 27 Cal.4th 198, Kinsman v. Unocal Corp., (2005) 37 Cal.4th 659 and 10 Michael v. Danbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082. 11 12 RESERVATION OF RIGHTS 13 This answering defendant presently has insufficient knowledge or information on which to 14 form a belief as to whether it may have additional, as yet unstated, defenses available. This 15 answering defendant hereby reserves the right to amend its answer to assert additional defenses as 16 appropriate. 17 PRAYER 18 WHEREFORE, Defendant, GOLDEN GATE DRYWALL, prays for judgment as follows: 19 1. That Plaintiff takes nothing by way of their Complaint or any cause of action thereof 20 against this answering defendant; 21 2. That the court award judgment in favor of this answering defendant; 22 3. For reasonable attorneys’ fees; 23 4. For costs of suit and disbursements; and 24 5. That if this answering defendant is found liable, that the degree of responsibility and 25 liability for the resulting damages be determined and apportioned in accordance with California 26 Civil Code section 1431, et seq.; and 27 /// 28 /// 13 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1 1 6. For such other and further relief as this Court may deem proper. 2 Dated: March 3, 2020 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER 3 LLP 4 5 By: /s/ Gardiner McKleroy WILLIAM M. HAKE 6 B. GARDINER MCKLEROY Attorneys for Defendant 7 GOLDEN GATE DRYWALL 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 GOLDEN GATE DRYWALL’S ANSWER TO PLAINTIFF’S COMPLAINT 2278665v.1