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KATHERINE P. GARDINER, State Bar No. 215542
kgardiner@wfbm.com
KENDRA E. BRAY, State Bar No. 285743 ELECTRONICALLY
kbray@wfbm.com
MELISSA ROSE BADGETT, State Bar No. 246238
FILED
Superior Court of California,
rbadgett@wfbm.com County of San Francisco
WFBM, LLP 01/08/2020
601 Montgomery Street, Ninth Floor Clerk of the Court
San Francisco, California 94111-2612 BY: MADONNA CARANTO
Deputy Clerk
Telephone: (415) 781-7072
Facsimile: (415) 391-6258
Attorneys for Defendant
FDCC CALIFORNIA, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813
Interest to and as Wrongful Death Heir of
BILLLY JOE McCLARY, Deceased; and DEFENDANT FDCC CALIFORNIA,
VICTORIA BLAKE, TAMLYN ORTEGON, INC.'S ANSWER TO PLAINTIFF'S
SUSAN FRENCH and STEVEN McCLARY, COMPLAINT FOR SURVIVAL,
as Wrongful Death Heirs of BILLY JOE WRONGFUL DEATH - ASBESTOS
McCLARY, Deceased,
Action Filed: December 11, 2019
Plaintiffs,
V.
KELLY-MOORE PAINT COMPANY, INC.,
et al.,
Defendants.
Defendant FDCC CALIFORNIA, INC., (hereinafter "FDCC" or "Defendant") hereby answers
the unverified Complaint for Wrongful Death and Survival of Valeri Niskanen, et al. , as follows:
DEFINITIONS
1. Whenever "Plaintiff' " is used in this answer, its reference embraces each plaintiff
named in any Complaint in response to which some or all of this Answer has been adopted,
individually and collectively, plus the words, "and each of them," as well as Plaintiff, Decedent, and
all other family members upon whose alleged exposure to asbestos Decedent bases his claim of
exposure.
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5088932,1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
1 2. Whenever "Decedent" is used in this answer, it refers to the deceased, BILLY JOE
McCLARY.
3. When the context so requires, references to the masculine gender includes the feminine
and neuter, the feminine gender includes the masculine and neuter, the singular includes the pleural,
and the pleural includes the singular.
GENERAL DENIALS
1. Pursuant to California Code of Civil Procedure section 431.30(d), FDCC generally and
specifically denies each and every allegation of the Complaint, and denies that decedent was damaged
in any sum, manner, or at all. FDCC further denies that the injuries or damages complained of, if any,
were caused by any carelessness or negligence or any act or omission on the part of said answering
defendant.
SANFRANCISCO, CALIFORNIA 94111-26 1211
601MONTGOMERYSTREET, NINTH FLOOR
TEL (415)781-7072 •FAX(415)39 1-6258
AFFIRMATIVE DEFENSES
DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY CAUSE
OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH PLEADED SEPARATELY
TO EACH AND EVERY SUCH CAUSE OF ACTION.
FIRST AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged by Plaintiffs therein states
facts sufficient to constitute a cause of action against FDCC.
SECOND AFFIRMATIVE DEFENSE
To the extent the Complaint asserts Defendant's alleged "market share" liability, or "enterprise
liability," the Complaint fails to state facts sufficient to constitute a cause of action against FDCC.
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged by Plaintiffs therein states
facts sufficient to entitle Plaintiffs to an award of punitive damages against FDCC.
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
1 FOURTH AFFIRMATIVE DEFENSE
2 Plaintiffs' action, and each alleged cause of action, is barred by the applicable statute of
3 limitations, including but not limited to California Code of Civil Procedure sections 335.1, 338.1, 339,
4 340.2, 340.8, 343, 583.310 and 583.410 and California Commercial Code section 2725.
5 FIFTH AFFIRMATIVE DEFENSE
6 Plaintiffs unreasonably delayed in bringing this action, without good cause, and thereby has
7 prejudiced FDCC as a direct and proximate result of such delay; accordingly, Plaintiffs' action is
8 barred by laches and by Code of Civil Procedure section 583.310, et seq.
9 SIXTH AFFIRMATIVE DEFENSE
10 Plaintiffs and Decedent were negligent in and about the matters alleged in the Complaint and
11 in each alleged cause of action, and this negligence proximately caused, in whole or in part, the
12 damages alleged in the Complaint. In the event Plaintiffs are entitled to any damages, the amount of
13 these damages should be reduced by the comparative fault of Plaintiffs and Decedent and any person
:14 whose negligent acts or omissions are imputed to Plaintiffs.
15 SEVENTH AFFIRMATIVE DEFENSE
601MON"
16 Decedent knowingly, voluntarily and unreasonably undertook to encounter each of the risks
17 and hazards, if any, referred to in the Complaint and each alleged cause of action, and this undertaking
18 proximately caused and contributed to any loss, injury or damages incurred by Plaintiffs.
19 EIGHTH AFFIRMATIVE DEFENSE
20 Any loss, injury or damage incurred by Plaintiffs and/or Decedent was proximately caused by
21 the negligent or willful acts or omissions of parties whom FDCC neither controlled nor had the right
22 to control and was not proximately caused by any acts, omissions or other conduct of FDCC.
23 NINTH AFFIRMATIVE DEFENSE
24 The products referred to in the Complaint were misused, abused or altered by Decedent or by
25 others in a manner not reasonably foreseeable to FDCC, and such misuse, abuse or altercation
26 proximately caused any loss, injury or damages incurred by Plaintiffs.
27 / / /
28 / / /
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
TENTH AFFIRMATIVE DEFENSE
Plaintiffs and Decedent failed to exercise due diligence to mitigate their loss, injury or
damages, and, accordingly, the amount of damages to which Plaintiffs are entitled, if any, should be
reduced by the amount of damages which would have otherwise been mitigated.
ELEVENTH AFFIRMATIVE DEFENSE
The court lacks subject matter jurisdiction over the matters alleged in the Complaint because
the Complaint and each alleged cause of action against FDCC are barred by the provisions of
California Labor Code section 3600, et seq.
TWELFTH AFFIRMATIVE DEFENSE
FDCC alleges that at the time of Decedent's injuries alleged in the Complaint, Decedent was
employed and was entitled to receive Workers' Compensation benefits from his employers' workers'
SAN FRANCISCO, CALIFORNIA 94111-261211
601MONTGOMERY STREET, NINTHFLOOR
TEL (415)78 1-7072 •FAX(415)39 1-6258
compensation insurance carriers; that all of his employers, and not FDCC, were negligent in and about
the matters referred to in said Complaint, and that such negligence on the part of said employers
proximately and concurrently contributed to the happening of the loss or damages complained of by
Plaintiff, if any there was; and that by reason thereof FDCC is entitled to set off and/or reduce any
such Workers' Compensation benefits received by Decedent or to be received by Plaintiff against any
judgment which may be rendered in favor of Plaintiff. (Witt v. Jackson (1961) 57 Ca1.2d 57, 366 P.2d
641.)
THIRTEENTH AFFIRMATIVE DEFENSE
FDCC alleges that at all times of the injuries alleged in the Complaint, Decedent's employers,
and not FDCC, were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said employers proximately and concurrently contributed to any loss or
damage, including non-economic damages, complained of by Plaintiffs, if any there were; and that
consequently FDCC is not liable for said employers' proportionate share of non-economic damages.
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 FDCC alleges that at the time of the injuries alleged in the Complaint, parties other than FDCC
3 were negligent in and about the matters referred to in said Complaint, and that such negligence on the
4 part of said parties proximately and concurrently contributed to any loss or damage, including non-
5 economic damages, complained of by Plaintiffs, if any there were; and that FDCC shall not be liable
6 for said parties' proportionate share of non-economic damages.
7 FIFTEENTH AFFIRMATIVE DEFENSE
8 FDCC alleges that at all times relative to matters alleged in the Complaint, Decedent's
9 employers were sophisticated users of asbestos-containing products and said employers' negligence in
10 providing said products to its employees, and/or encouraging the use of said products by its
11 employees, in a negligent, careless and • reckless manner was a superseding cause of Decedent's
SANFRANCISCO, CALIFORNIA 94111-261211
601MONTGOMERYSTREET, NINTHFLOOR
TEL(415)781-7072•FAX(415) 391-6258
12 injuries, if any, meaning FDCC can have no liability pursuant to Johnson v. American Standard, Inc.
13 (2008) 43 Cal.4th 56 and Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167.
14 SIXTEENTH AFFIRMATIVE DEFENSE
15 FDCC alleges that at all times relative to matters alleged in the Complaint, Decedent was a
16 sophisticated user of asbestos-containing products, and Decedent's negligent, careless and reckless use
17 of such products was a superseding cause of Decedent's injuries, if any.
18 SEVENTEENTH AFFIRMATIVE DEFENSE
19 At all times and places in the Complaint, Plaintiffs and Decedent were not in privity of
20 contract with FDCC and said lack of privity bars Plaintiffs recovery herein upon any theory of
21 warranty.
22 EIGHTEENTH AFFIRMATIVE DEFENSE
23 Plaintiffs are barred from recovery in that all products installed, removed, disturbed, produced,
24 sold or distributed by FD CC or at FDCC's direction, if any, were in conformity with the existing state-
25 of-the-art, and as a result, these products were not defective in any manner.
26 / / /
27 / / /
28 / / /
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
NINETEENTH AFFIRMATIVE DEFENSE
FDCC denies any and all liability to the extent that Plaintiffs assert FDCC's alleged liability as
a successor, successor in business, successor in product line or a portion thereof, assign, predecessor,
predecessor in business, predecessor in product line or portion thereof, parent, alter-ego, subsidiary,
wholly or partial owner of or member in an entity researching, studying, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising products that contained a certain substance, the
generic name of which is asbestos.
TWENTIETH AFFIRMATIVE DEFENSE
FDCC alleges that Plaintiffs' claims are or may be barred in whole or in part by res judicata,
SANFRANCISCO, CAL IFORNIA94 11 1-26121
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TEL (415)781-7072•FAX (415)39 1-6258
collateral estoppel, issue preclusion and/or release.
TWENTY-FIRST AFFIRMATIVE DEFENSE
a
O
FDCC alleges that it is immune from liability for any alleged failure to warn Decedent of
material risks associated with FDCC's products or services, if any, because such risks were or should
have been obvious to a reasonably prudent product user in Decedent's position, or were otherwise a
matter of common knowledge to persons in the same or similar position to that of decedent.
TWENTY-SECOND AFFIRMATIVE DEFENSE
This court lacks subject matter jurisdiction over the causes of action alleged in the Complaint.
TWENTY-THIRD AFFIRMATIVE DEFENSE
As a result of Plaintiffs' unreasonable delay in bringing this action, without good cause
therefore, in addition to their other unreasonable acts and omissions, Plaintiffs waived each or some of
the claims stated or purportedly stated in the Complaint.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
The activity alleged in the Complaint, to the extent that it was engaged in by FDCC, if at all,
which FDCC expressly denies, was not ultra-hazardous under California law.
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
TWENTY-FIFTH AFFIRMATIVE DEFENSE
California Civil Code sections 143.1 through 1431.5, known as the Fair Responsibility Act of
1986, is applicable at least in part to the present action and to certain claims therein, and based upon
the principle of comparative fault, the liability, of FDCC, if liable at all, which FDCC expressly
denies, shall be several only and shall not be joint to FDCC, and FDCC, if liable at all, which FDCC
expressly denies, shall be liable as to certain claims only for the amount of non-economic damages
allocated to FDCC in direct proportion to FDCC's percentage of fault, if any, and a separate and
several judgment shall be rendered against FDCC for non-economic damages, if any.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs cannot prove any facts showing that the conduct of FDCC was a cause in fact of any
alleged injuries or damages suffered by Decedent as alleged in the Complaint.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs cannot prove any facts showing that the conduct of FDCC was the proximate cause
of any alleged injuries or damages suffered by Decedent as alleged in the Complaint.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
At all times relevant, FDCC's acts and omissions were in conformity with all government
statutes and regulations and all industry standards based upon the state of knowledge existing at the
time of the acts or omissions.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Plaintiffs have failed to join all parties necessary for full and just adjudication of the purported
causes of action asserted in the Complaint.
THIRTIETH AFFIRMATIVE DEFENSE
FDCC alleges that Decedent's employers directed, ordered, approved and/or ratified FDCC's
conduct and Plaintiffs are therefore estopped from asserting the claims alleged in the Complaint as a
result of these acts, conduct or omissions.
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
THIRTY-FIRST AFFIRMATIVE DEFENSE
FDCC alleges that at the time of the injuries alleged in the Complaint, Decedent was employed
and was entitled to receive Workers' Compensation benefits from his employers' workers
compensation insurance carriers, that FDCC did not control Decedent's work activities at his
worksites; that all of Decedent's employers were negligent in and about the matters referred to in said
Complaint, that other parties over whom FDCC had no control were negligent in and about the matters
referred to in said Complaint, and that such negligence on the part of said employers and other parties
proximately and concurrently contributed to the happening of the loss or damage complained of by
Plaintiffs, if any there was, and, as a result thereof, FDCC bears no liability for Plaintiffs alleged
damages.
THIRTY-SECOND AFFIRMATIVE DEFENSE
601 MONTGOMERYSTREET, NINTH FLOOR
FDCC had no property interest, ownership or control of any premises at any time during which
Decedent was allegedly exposed to, injured or damaged due to asbestos dust inhalation.
THIRTY-THIRD AFFIRMATIVE DEFENSE
FDCC alleges that Plaintiffs' claims, or some of them, are barred by the provisions of
California Code of Civil Procedure section 361.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
FDCC refers to and incorporates herein each and every affirmative defense pleading by the
other parties herein to the extent that such defenses are not inconsistent with the matters stated herein.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
FDCC alleges that it presently has sufficient knowledge or information on which to form a
belief as to whether it may have additional, as yet unasserted defense available, and, therefore, FDCC
reserves the right to assert additional defenses in the event discovery indicates that they would be
appropriate.
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
THIRTY-SIXTH AFFIRMATIVE DEFENSE
The complaint fails to state facts sufficient to constitute a cause of action for Premises
Owner/Contractor Liability against FDCC, pursuant to Privette v. Superior Court (1993) 5 Ca1.4th
689; Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77; Grahn v. Tosco Corporation (1997) 58
Cal.App.4th 1373; Toland v. Sunland Housing Groups, Inc. (1998) 18 Ca1.4th 253; and Kinsman vs.
Unocal Corporation (2006) 37 Ca1.4th 659, et al.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
If Plaintiffs and/or Decedent received Workers' Compensation benefits from FDCC under the
Labor Code of the State of California as a consequence of the alleged industrial injury referred to in
the Complaint, and in the event Plaintiffs are awarded damages against FDCC, FDCC claims a credit
against this award to the extent that FDCC is barred from enforcing its rights to reimbursement for
SANFRANCISCO, CALIFORNIA94111-261211
TEL(415)781-7072 •FAX (415)39 1-6258
60 1 MONTGOMERY STREET, NINTH FLOOR
Workers' Compensation benefits that Plaintiffs have received or may in the future receive.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
O
FDCC did not engage in the business of placing asbestos-containing products into the stream o
commerce by mining, milling, refining, manufacturing, fabricating, designing, modifying, labeling
5
assembling, distributing, offering for sale, supplying, selling, leasing, marketing, warranting, re
branding, manufacturing for others, packaging, or advertising.
THIRTY-NINTH AFFIRMATIVE DEFENSE
FDCC alleges that to the extent any claim for relief in the Complaint, or in any amended
complaint, seeks to recover damages against FDCC for alleged acts or omissions of predecessors or
successors-in-interest to this defendant of any kind or description, FDCC asserts that it is not legally
responsible and cannot legally be held liable for any such acts or omissions. FDCC further asserts that
it cannot be held liable for punitive damages and/or exemplary damages which are or may be
attributable to the conduct of any predecessor or successor-in-interest. Further, FDCC asserts that the
conduct of any predecessor or successor-in-interest cannot, as a matter of law, provide a legal basis for
liability or the imposition of damages against FDCC.
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
WHEREFORE, defendant FDCC prays as follows:
(1) That Plaintiffs take nothing by this Complaint;
(2) That judgment be entered in favor of FDCC;
(3) For recovery of FDCC's cost of suit;
(4) For appropriate credits and set-offs arising out of any payment of Workers'
Compensation benefits, or otherwise, as alleged above; and
(5) For such other and further relief as the Court deems just and proper.
Dated: January 8, 2020 WFBM, LLP
By:
SAN FRANCISCO, CALIFORNIA 9411 1-26 1211
TEL(41 5)781-7072 • FAX (41 5)391-6258
601 MONTGOMERYSTREET, NINTH FLOOR
KATHERINE P. GARDINER
KENDRA E. BRAY
MELISSA ROSE BADGETT
Attorneys for Defendant,
0
FDCC CALIFORNIA, INC.
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFFS COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE
At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Orange, State of California. My business address is One City
Boulevard West, Fifth Floor, Orange, CA 92868-3677.
On January 8, 2020, I served true copies of the following document(s) described as
DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT
FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS on the interested parties in this action
as follows:
BY ELECTRONIC SERVICE: I electronically served the document(s) described above
via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the
File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
establishing the case website and authorizing service of documents.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on January 8, 2020, at Orange, California.
inda Breeding
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5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL,
3860-38.136 WRONGFUL DEATH - ASBESTOS
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KATHERINE P. GARDINER, State Bar No. 215542 kgardiner@wfbm.com KENDRA E. BRAY, State Bar No. 285743 ELECTRONICALLY kbray@wfbm.com MELISSA ROSE BADGETT, State Bar No. 246238 FILED Superior Court of California, rbadgett@wfbm.com County of San Francisco WFBM, LLP 01/08/2020 601 Montgomery Street, Ninth Floor Clerk of the Court San Francisco, California 94111-2612 BY: MADONNA CARANTO Deputy Clerk Telephone: (415) 781-7072 Facsimile: (415) 391-6258 Attorneys for Defendant FDCC CALIFORNIA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813 Interest to and as Wrongful Death Heir of BILLLY JOE McCLARY, Deceased; and DEFENDANT FDCC CALIFORNIA, VICTORIA BLAKE, TAMLYN ORTEGON, INC.'S ANSWER TO PLAINTIFF'S SUSAN FRENCH and STEVEN McCLARY, COMPLAINT FOR SURVIVAL, as Wrongful Death Heirs of BILLY JOE WRONGFUL DEATH - ASBESTOS McCLARY, Deceased, Action Filed: December 11, 2019 Plaintiffs, V. KELLY-MOORE PAINT COMPANY, INC., et al., Defendants. Defendant FDCC CALIFORNIA, INC., (hereinafter "FDCC" or "Defendant") hereby answers the unverified Complaint for Wrongful Death and Survival of Valeri Niskanen, et al. , as follows: DEFINITIONS 1. Whenever "Plaintiff' " is used in this answer, its reference embraces each plaintiff named in any Complaint in response to which some or all of this Answer has been adopted, individually and collectively, plus the words, "and each of them," as well as Plaintiff, Decedent, and all other family members upon whose alleged exposure to asbestos Decedent bases his claim of exposure. -1- 5088932,1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS 1 2. Whenever "Decedent" is used in this answer, it refers to the deceased, BILLY JOE McCLARY. 3. When the context so requires, references to the masculine gender includes the feminine and neuter, the feminine gender includes the masculine and neuter, the singular includes the pleural, and the pleural includes the singular. GENERAL DENIALS 1. Pursuant to California Code of Civil Procedure section 431.30(d), FDCC generally and specifically denies each and every allegation of the Complaint, and denies that decedent was damaged in any sum, manner, or at all. FDCC further denies that the injuries or damages complained of, if any, were caused by any carelessness or negligence or any act or omission on the part of said answering defendant. SANFRANCISCO, CALIFORNIA 94111-26 1211 601MONTGOMERYSTREET, NINTH FLOOR TEL (415)781-7072 •FAX(415)39 1-6258 AFFIRMATIVE DEFENSES DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY CAUSE OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH PLEADED SEPARATELY TO EACH AND EVERY SUCH CAUSE OF ACTION. FIRST AFFIRMATIVE DEFENSE Neither the Complaint nor any purported cause of action alleged by Plaintiffs therein states facts sufficient to constitute a cause of action against FDCC. SECOND AFFIRMATIVE DEFENSE To the extent the Complaint asserts Defendant's alleged "market share" liability, or "enterprise liability," the Complaint fails to state facts sufficient to constitute a cause of action against FDCC. THIRD AFFIRMATIVE DEFENSE Neither the Complaint nor any purported cause of action alleged by Plaintiffs therein states facts sufficient to entitle Plaintiffs to an award of punitive damages against FDCC. H/ /// /// -2- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS 1 FOURTH AFFIRMATIVE DEFENSE 2 Plaintiffs' action, and each alleged cause of action, is barred by the applicable statute of 3 limitations, including but not limited to California Code of Civil Procedure sections 335.1, 338.1, 339, 4 340.2, 340.8, 343, 583.310 and 583.410 and California Commercial Code section 2725. 5 FIFTH AFFIRMATIVE DEFENSE 6 Plaintiffs unreasonably delayed in bringing this action, without good cause, and thereby has 7 prejudiced FDCC as a direct and proximate result of such delay; accordingly, Plaintiffs' action is 8 barred by laches and by Code of Civil Procedure section 583.310, et seq. 9 SIXTH AFFIRMATIVE DEFENSE 10 Plaintiffs and Decedent were negligent in and about the matters alleged in the Complaint and 11 in each alleged cause of action, and this negligence proximately caused, in whole or in part, the 12 damages alleged in the Complaint. In the event Plaintiffs are entitled to any damages, the amount of 13 these damages should be reduced by the comparative fault of Plaintiffs and Decedent and any person :14 whose negligent acts or omissions are imputed to Plaintiffs. 15 SEVENTH AFFIRMATIVE DEFENSE 601MON" 16 Decedent knowingly, voluntarily and unreasonably undertook to encounter each of the risks 17 and hazards, if any, referred to in the Complaint and each alleged cause of action, and this undertaking 18 proximately caused and contributed to any loss, injury or damages incurred by Plaintiffs. 19 EIGHTH AFFIRMATIVE DEFENSE 20 Any loss, injury or damage incurred by Plaintiffs and/or Decedent was proximately caused by 21 the negligent or willful acts or omissions of parties whom FDCC neither controlled nor had the right 22 to control and was not proximately caused by any acts, omissions or other conduct of FDCC. 23 NINTH AFFIRMATIVE DEFENSE 24 The products referred to in the Complaint were misused, abused or altered by Decedent or by 25 others in a manner not reasonably foreseeable to FDCC, and such misuse, abuse or altercation 26 proximately caused any loss, injury or damages incurred by Plaintiffs. 27 / / / 28 / / / -3- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS TENTH AFFIRMATIVE DEFENSE Plaintiffs and Decedent failed to exercise due diligence to mitigate their loss, injury or damages, and, accordingly, the amount of damages to which Plaintiffs are entitled, if any, should be reduced by the amount of damages which would have otherwise been mitigated. ELEVENTH AFFIRMATIVE DEFENSE The court lacks subject matter jurisdiction over the matters alleged in the Complaint because the Complaint and each alleged cause of action against FDCC are barred by the provisions of California Labor Code section 3600, et seq. TWELFTH AFFIRMATIVE DEFENSE FDCC alleges that at the time of Decedent's injuries alleged in the Complaint, Decedent was employed and was entitled to receive Workers' Compensation benefits from his employers' workers' SAN FRANCISCO, CALIFORNIA 94111-261211 601MONTGOMERY STREET, NINTHFLOOR TEL (415)78 1-7072 •FAX(415)39 1-6258 compensation insurance carriers; that all of his employers, and not FDCC, were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said employers proximately and concurrently contributed to the happening of the loss or damages complained of by Plaintiff, if any there was; and that by reason thereof FDCC is entitled to set off and/or reduce any such Workers' Compensation benefits received by Decedent or to be received by Plaintiff against any judgment which may be rendered in favor of Plaintiff. (Witt v. Jackson (1961) 57 Ca1.2d 57, 366 P.2d 641.) THIRTEENTH AFFIRMATIVE DEFENSE FDCC alleges that at all times of the injuries alleged in the Complaint, Decedent's employers, and not FDCC, were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said employers proximately and concurrently contributed to any loss or damage, including non-economic damages, complained of by Plaintiffs, if any there were; and that consequently FDCC is not liable for said employers' proportionate share of non-economic damages. /// /// /// /// -4- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 FDCC alleges that at the time of the injuries alleged in the Complaint, parties other than FDCC 3 were negligent in and about the matters referred to in said Complaint, and that such negligence on the 4 part of said parties proximately and concurrently contributed to any loss or damage, including non- 5 economic damages, complained of by Plaintiffs, if any there were; and that FDCC shall not be liable 6 for said parties' proportionate share of non-economic damages. 7 FIFTEENTH AFFIRMATIVE DEFENSE 8 FDCC alleges that at all times relative to matters alleged in the Complaint, Decedent's 9 employers were sophisticated users of asbestos-containing products and said employers' negligence in 10 providing said products to its employees, and/or encouraging the use of said products by its 11 employees, in a negligent, careless and • reckless manner was a superseding cause of Decedent's SANFRANCISCO, CALIFORNIA 94111-261211 601MONTGOMERYSTREET, NINTHFLOOR TEL(415)781-7072•FAX(415) 391-6258 12 injuries, if any, meaning FDCC can have no liability pursuant to Johnson v. American Standard, Inc. 13 (2008) 43 Cal.4th 56 and Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167. 14 SIXTEENTH AFFIRMATIVE DEFENSE 15 FDCC alleges that at all times relative to matters alleged in the Complaint, Decedent was a 16 sophisticated user of asbestos-containing products, and Decedent's negligent, careless and reckless use 17 of such products was a superseding cause of Decedent's injuries, if any. 18 SEVENTEENTH AFFIRMATIVE DEFENSE 19 At all times and places in the Complaint, Plaintiffs and Decedent were not in privity of 20 contract with FDCC and said lack of privity bars Plaintiffs recovery herein upon any theory of 21 warranty. 22 EIGHTEENTH AFFIRMATIVE DEFENSE 23 Plaintiffs are barred from recovery in that all products installed, removed, disturbed, produced, 24 sold or distributed by FD CC or at FDCC's direction, if any, were in conformity with the existing state- 25 of-the-art, and as a result, these products were not defective in any manner. 26 / / / 27 / / / 28 / / / -5- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS NINETEENTH AFFIRMATIVE DEFENSE FDCC denies any and all liability to the extent that Plaintiffs assert FDCC's alleged liability as a successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or portion thereof, parent, alter-ego, subsidiary, wholly or partial owner of or member in an entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding, manufacturing for others, packaging and advertising products that contained a certain substance, the generic name of which is asbestos. TWENTIETH AFFIRMATIVE DEFENSE FDCC alleges that Plaintiffs' claims are or may be barred in whole or in part by res judicata, SANFRANCISCO, CAL IFORNIA94 11 1-26121 601 MONTGOMERYSTREET, NINTHFLOOR TEL (415)781-7072•FAX (415)39 1-6258 collateral estoppel, issue preclusion and/or release. TWENTY-FIRST AFFIRMATIVE DEFENSE a O FDCC alleges that it is immune from liability for any alleged failure to warn Decedent of material risks associated with FDCC's products or services, if any, because such risks were or should have been obvious to a reasonably prudent product user in Decedent's position, or were otherwise a matter of common knowledge to persons in the same or similar position to that of decedent. TWENTY-SECOND AFFIRMATIVE DEFENSE This court lacks subject matter jurisdiction over the causes of action alleged in the Complaint. TWENTY-THIRD AFFIRMATIVE DEFENSE As a result of Plaintiffs' unreasonable delay in bringing this action, without good cause therefore, in addition to their other unreasonable acts and omissions, Plaintiffs waived each or some of the claims stated or purportedly stated in the Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE The activity alleged in the Complaint, to the extent that it was engaged in by FDCC, if at all, which FDCC expressly denies, was not ultra-hazardous under California law. /// /// -6- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS TWENTY-FIFTH AFFIRMATIVE DEFENSE California Civil Code sections 143.1 through 1431.5, known as the Fair Responsibility Act of 1986, is applicable at least in part to the present action and to certain claims therein, and based upon the principle of comparative fault, the liability, of FDCC, if liable at all, which FDCC expressly denies, shall be several only and shall not be joint to FDCC, and FDCC, if liable at all, which FDCC expressly denies, shall be liable as to certain claims only for the amount of non-economic damages allocated to FDCC in direct proportion to FDCC's percentage of fault, if any, and a separate and several judgment shall be rendered against FDCC for non-economic damages, if any. TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs cannot prove any facts showing that the conduct of FDCC was a cause in fact of any alleged injuries or damages suffered by Decedent as alleged in the Complaint. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs cannot prove any facts showing that the conduct of FDCC was the proximate cause of any alleged injuries or damages suffered by Decedent as alleged in the Complaint. TWENTY-EIGHTH AFFIRMATIVE DEFENSE At all times relevant, FDCC's acts and omissions were in conformity with all government statutes and regulations and all industry standards based upon the state of knowledge existing at the time of the acts or omissions. TWENTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs have failed to join all parties necessary for full and just adjudication of the purported causes of action asserted in the Complaint. THIRTIETH AFFIRMATIVE DEFENSE FDCC alleges that Decedent's employers directed, ordered, approved and/or ratified FDCC's conduct and Plaintiffs are therefore estopped from asserting the claims alleged in the Complaint as a result of these acts, conduct or omissions. /// /// /// -7- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS THIRTY-FIRST AFFIRMATIVE DEFENSE FDCC alleges that at the time of the injuries alleged in the Complaint, Decedent was employed and was entitled to receive Workers' Compensation benefits from his employers' workers compensation insurance carriers, that FDCC did not control Decedent's work activities at his worksites; that all of Decedent's employers were negligent in and about the matters referred to in said Complaint, that other parties over whom FDCC had no control were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said employers and other parties proximately and concurrently contributed to the happening of the loss or damage complained of by Plaintiffs, if any there was, and, as a result thereof, FDCC bears no liability for Plaintiffs alleged damages. THIRTY-SECOND AFFIRMATIVE DEFENSE 601 MONTGOMERYSTREET, NINTH FLOOR FDCC had no property interest, ownership or control of any premises at any time during which Decedent was allegedly exposed to, injured or damaged due to asbestos dust inhalation. THIRTY-THIRD AFFIRMATIVE DEFENSE FDCC alleges that Plaintiffs' claims, or some of them, are barred by the provisions of California Code of Civil Procedure section 361. THIRTY-FOURTH AFFIRMATIVE DEFENSE FDCC refers to and incorporates herein each and every affirmative defense pleading by the other parties herein to the extent that such defenses are not inconsistent with the matters stated herein. THIRTY-FIFTH AFFIRMATIVE DEFENSE FDCC alleges that it presently has sufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unasserted defense available, and, therefore, FDCC reserves the right to assert additional defenses in the event discovery indicates that they would be appropriate. /// /// /// /// -8- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS THIRTY-SIXTH AFFIRMATIVE DEFENSE The complaint fails to state facts sufficient to constitute a cause of action for Premises Owner/Contractor Liability against FDCC, pursuant to Privette v. Superior Court (1993) 5 Ca1.4th 689; Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77; Grahn v. Tosco Corporation (1997) 58 Cal.App.4th 1373; Toland v. Sunland Housing Groups, Inc. (1998) 18 Ca1.4th 253; and Kinsman vs. Unocal Corporation (2006) 37 Ca1.4th 659, et al. THIRTY-SEVENTH AFFIRMATIVE DEFENSE If Plaintiffs and/or Decedent received Workers' Compensation benefits from FDCC under the Labor Code of the State of California as a consequence of the alleged industrial injury referred to in the Complaint, and in the event Plaintiffs are awarded damages against FDCC, FDCC claims a credit against this award to the extent that FDCC is barred from enforcing its rights to reimbursement for SANFRANCISCO, CALIFORNIA94111-261211 TEL(415)781-7072 •FAX (415)39 1-6258 60 1 MONTGOMERY STREET, NINTH FLOOR Workers' Compensation benefits that Plaintiffs have received or may in the future receive. THIRTY-EIGHTH AFFIRMATIVE DEFENSE O FDCC did not engage in the business of placing asbestos-containing products into the stream o commerce by mining, milling, refining, manufacturing, fabricating, designing, modifying, labeling 5 assembling, distributing, offering for sale, supplying, selling, leasing, marketing, warranting, re branding, manufacturing for others, packaging, or advertising. THIRTY-NINTH AFFIRMATIVE DEFENSE FDCC alleges that to the extent any claim for relief in the Complaint, or in any amended complaint, seeks to recover damages against FDCC for alleged acts or omissions of predecessors or successors-in-interest to this defendant of any kind or description, FDCC asserts that it is not legally responsible and cannot legally be held liable for any such acts or omissions. FDCC further asserts that it cannot be held liable for punitive damages and/or exemplary damages which are or may be attributable to the conduct of any predecessor or successor-in-interest. Further, FDCC asserts that the conduct of any predecessor or successor-in-interest cannot, as a matter of law, provide a legal basis for liability or the imposition of damages against FDCC. /// /// -9- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS WHEREFORE, defendant FDCC prays as follows: (1) That Plaintiffs take nothing by this Complaint; (2) That judgment be entered in favor of FDCC; (3) For recovery of FDCC's cost of suit; (4) For appropriate credits and set-offs arising out of any payment of Workers' Compensation benefits, or otherwise, as alleged above; and (5) For such other and further relief as the Court deems just and proper. Dated: January 8, 2020 WFBM, LLP By: SAN FRANCISCO, CALIFORNIA 9411 1-26 1211 TEL(41 5)781-7072 • FAX (41 5)391-6258 601 MONTGOMERYSTREET, NINTH FLOOR KATHERINE P. GARDINER KENDRA E. BRAY MELISSA ROSE BADGETT Attorneys for Defendant, 0 FDCC CALIFORNIA, INC. -10- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFFS COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Orange, State of California. My business address is One City Boulevard West, Fifth Floor, Orange, CA 92868-3677. On January 8, 2020, I served true copies of the following document(s) described as DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS on the interested parties in this action as follows: BY ELECTRONIC SERVICE: I electronically served the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 8, 2020, at Orange, California. inda Breeding -11- 5088932.1 DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR SURVIVAL, 3860-38.136 WRONGFUL DEATH - ASBESTOS