Preview
“I
Michaei T. Stone (SB#58408)
Trung V. Guach (SB# 227078) ELECTRONICALLY
McOUATD BEDFORD & VAN ZANDT LLP FILED
221 Main Street, 16" Floor eo
San Francisco. CA 94105 Superior Court of California,
Telephone: 415/905-0200 County oF San Francisco
Facsimile: 415/348-1836 FEB 27 2007
GORDON PARK-LI, Cler
BY: ANNIE PASCUAL
Attorneys for THE PEP BOYS MANNY, Deputy Clerk
MOE & JACK OF CALIFORNIA
IN THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHARLES BOUDREALX, et ux., Case No, 274029
Plaintiffs, ANSWER OF THE PEP BOYS MANNY,
MOE & JACK OF CALIFORNIA TO
v. PLAINTIFFS’ UNVERIFIED
COMPLAINT
ADVOCATE MINES LYD,, et al.,
Defendanis.
/
AND RELATED CROSS-ACTIONS
/
DEFENDANT THE PEP BOYS MANNY, MOR & JACK OF CALIFORNIA (hereinafter
“defendant” or "Pep Boys") hereby answers Plaintiffs’ Unverifted Complaint on file herein
pursuant to California Code of Civil Procedure Section 431.30, by generally denying each and
every, all and singular, generally and specifically, all the allegations containeca therein, and each
cause of action thereof, and further denies that any of the Plaintiffs, individually or collectively, has
been damaged in any sum, sums, cr at ail.
AFFIRMATIVE DEFENSES
This answering defendant further pleads the following affirmative defenses to each and
every cause of action of plaintiff's Complaint as though pleaded separately to each and every said
cause of action:
1
L
ANSWER TQ PLAINTIFFS’ UNVERI IED COMPLAIN LFIRST AFFIRMATIVE DEFENSE
As and for a first, separate and allirmative defense to the Complaint of plaintiffs on file
herein and to each and every cause of action thereof, this answering defendant alleges (hat the
plaintiffs were careless and negligent in and about the matters alleged in the Complaint, and that
said carelessness and negligence on the part of the Plaintiff’, and each of them, proximately
contributed to the events alleged therein, and to the injuries, loss and damages complained of, if any.
sustained by any plaintiff and that Plaintiffs’ recovery should therefor be reduced to the extent of
|| such negligence.
SECOND AFFIRMATIVE DEFENSE
As and for a second, separate and affirmative defense to the Complaint of plaintiffs on file
herein and to each and every cause of action thereof, this answering defendant alleges that cach and
every plaintiif knew, or in the exercise of ordinary care should have known ef the risks and havards
involved in the undertaking in which he was engaged but nevertheless, and knowing these things,
did freely and voluntarily consent to assume the risks and hazards incident to said operations, acts,
and conduct af the time and place mentioned in said Complaint.
TOIRD AFFIRMATIVE DEFENSE
As and for a further separate and distinct answer and affirmative defense 10 the Complaint
and each and every cause of action thereof and by way of alleging the doctrine of With
(1961) 57 Cal.2d 57, this answering defendant alleges that at the time and place of the happening of
the occurrences alleged in the Complaint, and at all times material herein, some or all of the
plaintiffs herein were employed by various employers, the names of which are unknown (o this
defendant at this time, and were working within the course and scope of his or her employment
and/or employments at ail times pertinent hereto, that said employer and/or employers and each
plaintiff were subject to the provisions of the Workman's Compensation Act of the State of
California or some other jurisdiction; that certain sums have been paid to or on bebalf of plaintiff
herein under the applicable provisions of the Labor Code of the State of California or such other
jurisdictions statutes that may be applicable; that said employer and/or employers, and cach of them.
were negligent and careless and that such negligence and carelessness proximately contributed and
2
ANSWER TO PLAINTIFFS’ UNVERIMLD COMPLAINTcaused the injuries of such plaintiffs; that by these premises any award made to any of the plaintiffs
if' any award is made at all, must be reduced by any payment to him or her by the employer or
employers’ compensation carrier under the authority of Witt vs. Jackson, (1961) 57 Cal.2d 57, or
such other non-California authority as may be applicable.
FOURTH AFFIRMATIVE DEFENSE
As and for a fourth, separate and affirmative defense to the Complaint of plaintifié on file
herein and to each and every cause of action thereof, this answering defendant alleges that plaintiffs"
employers were contributorily negligent and careless in and about the matters alleged in the
Complaint, and that such negligence and carelessness was a proximate cause of any injuries and
damages suffered by any of the plaintifis herein, if any such damage there were.
FIFTH AFFIRMATIVE DEFENSE
As and for a fifth, separate and affirmative defense to the Complaint of plaintiffs on file
horcin and to cach and every cause of action thereof, this answering defendant alleges that plaintifis’
employers voluntarily and knowingly entered into and engaged in the operations, acts and conduct
alleged in said Complaint, and voluntarily and knowingly assumed all of the risks incident to said
operation, acts and conduct alleged in said Complaint, and voluntarily and knowingly assumed all of
the tisks incident to said operations, acts and conduct at the time and place mentioned in the
Complaint
SIXTH AFFIRMATIVE DEFENSE
As and for a sixth, separate and affirmative defense to the Complaint of plaintiff on file
herein and to each and every cause of action thereof, this answering defendant alleges that the
product in question was properly designed and manufactured, and was fit for the purpose intended:
that said product was improperly maintained and used in an unauthorized and unforeseeable manner
| following the alleged sale or distribution by this defendant of said product.
SEVENTH AFFIRMATIVE DEFENSE
As and for a seventh, separate and affirmative defense to the Complaint of plaintifiés on file
herein and to each and every cause of action thereof, this answering defendant alleges that said
Complaint, aud cach of said alleged causes of action thercof, is barred by the provisions of the
ANSWER TO PLAINTIFFS” UNVERIFIED COMPLAINTCalifornia Code of Civil Procedure, Section 335.1.
EIGHTH AFFIRMATIVE DEFENSE
As and for an eighth, separate and affirmative defense to the Complaint of plaintiffs on file
herein and to each and every cause of action thereof, this answering defendant alleges that said
Complaint, and each of said alleged causes of action thereof, is barred by the provisions of the Code
of Civil Procedure, Section 340.2.
NINTH AFFIRMATIVE DEFENSE
As and for a ninth, separate and affirmative defense to the Complaint of plaintiff’ on file
herein and to each and every cause of action thereof, this answering defendant alleges that said
Complaint, and each of said alleged causes of action thereof, is barred by the provisions of the Code
of Civil Procedure, Section 340.8
TENT AFFIRMATIVE DEFENSE.
As and for a tenth, separate and affirmative defense to the Complaiat of plaintiffs on file
herein and te cach and every cause of action thereof, this answering defendant alleges that plaintifis
unroasonably delayed in the bringing of this action without good cause therefor, and thereby has
prejudiced defendant, and as a proximate result thereof, the entire action is barred by laches.
ELEVENTH AFFIRMATIVE DEFENSE
As and for an eleventh, separate and affirmative defense (o the Complaint of plaintiffs on file
herein and each and every cause of action thereof. this answering defendant alleges that the
Complaint fails to state a cause of action against this answering defendant for exemplary damages.
TWELFTH AFFIRMATIVE DEFENSE
As and for a twelfth, separate and affirmative defense to the Complaint of plaintiff on file
herein and each and every cause of action thereof, this answering defendant alleges that while at all
times denying any liability whatsoever to plaintifis herein, or any of them, any alleged liability or
responsibility of this defendant, and such alleged liability and responsibility being denied, is small
in proportion to the alleged liability and responsibility of other persons and entities, including other
persons and entities who are defendants herein, and that plainti(fs should be limited to seeking
recovery from this defendant for the proportion of alleged injuries and damages for which this
ANSWER TO PLAINTIFFS? UNVERUMED COMPLAINT.a we ww HK
defendant is allegedly liabic or responsible, all such alleged liability and alleged responsibility being,
expressly denied.
‘THIRTEENTH AFFIRMATIVE DEFENSE
As and for a thirteenth, separate and affirmative defense to the Complaint of plaintiffs on file
herein and each and every cause of action thereof, this answering defendant is informed and believes
and based upon said information and belief alleges that said plaintiffs are barred from recovery
herein, because of modification, alteration or change in some other manner, of the products alleged
in plaintiffs’ Complaint.
FOURTEENTH AFFIRMATIVE DEFENSE
As and for a fourteenth, separate and affirmative defense to the Complaint of plaintiffs on
file hercin and each and every cause of aclion thereof, this answering defendant alleges that
plaintiffs’ Complaint does not state facts sufficient to constitute a cause of action against this
answering defendant on any theory whatsoever.
FIFTEENTH AFFIRMATIVE DEFENSE
As and for a fifteenth, separate and affirmative defense to the Complaint of plaintiff on file
herein and cach and every cause of action therein, this answering defendant alleges that plaintiff
acknowledged, ratified, consented 10 and acquiesced in the alleged acts or omissions, if aay, of this
answering defendant, thus barring plaintiff from aay relief as prayed for heecia.
SIXTEENTH AFFIRMATIVE DEFENSE
As and for a sixteenth, separate and affirmative defense to the Complaint of plaintiffs on file
herein and each and every cause of action herein. this answering defendant is informed and believes
and therefore alleges that plaintiffs, and each of them, are unable to identify the actual
manufacturer(s) or supplier(s) of the asbestos products which allegedly caused the injury which
forms the basis of the Complaint herein, and that said manufacturer(s) or supplier(s) were/are
entities other than this defendant, ‘Therefore, this defendant may not be held liable for the injury of
the plaintiff.
SEVENTEENTH AFFIRMATIVE DEFENSE
‘As and for a seventeenth, separate and affirmative defense to the Complaint of plaintiff on
ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINTfile herein amd each and every cause of action herein, this answering defendant alleges that plaintifs
and plaintifis’ employers were and are sophisticated users and knew independently or should have
known of any danger or hazard associated with the use of a product containing asbestos and of
exposure to high levels of dust of any sort. Defendant further alleges that plaintiff's and plaintiffs”
employers failed to rely upon any warning that may have been provided to them by any source,
whether associated with this answering defendant or not, in the course of sustaining the alleged
damages to plaintiffs, if any there were.
EIGHTEENTH AFFIRMATIVE DEFENSE
As and for an eighteenth, separate and affirmative defense to the Complaint of plaintiffs on
file herein and to each and every cause of action thereof, this answering defendant alleges that said
Complaint and each of said alleged causes of action thereof is subject to the provisions of the Fair
Responsibility Act of 1986, Civil Code Sections 1431.1 through 1431.5. Liability of this answering
defendant to plaintiff, if any, for non-cconomic damages, if any, as defined in Civil Code Section
1431.2(b)(2) shall be several only and shall not be joint with each or any co-defendant named in said
Complaint. This answering defendant shall be liable only for the ammount of said non-economic
damages, if any, allocated to this answering defendant in direct proportion to this answering
defendant's percentage of fault, if any.
NINETEENTH AFFIRMATIVE DEFENSE
As and for a nineteenth, separate, and affirmative defense to plaintifis” Complaint and each
cause of action thereof, this answering defendant is informed and believes and based thereupon
alleges that a previous action was commenced by one or more of the plaintiffs herein, or parties with
whom some or all of the plaintiffs are in privity: a final judgment in said action was duly rendered
on the merits, the court having jurisdiction over the parties and subject matter therein, said judgment
became final prior to the filing of this action herein; the causes of action asserted in this action
involve the same causes of action, transactions, or series of transactions as those transactions, or
series of transactions, decided and involved in said former action: by reason of the aforesaid, the
causes of action asserted by plaintiffS, or any of them, herein have been merged in the prior
Judgment and therefore said causes of action are barred,
6
ANSWER 10 PLAINTIFFS’ UNVERIFIED COMPLATNTwe
aw
TWENTIETH AFFIRMATIVE DEFENS
E
As and for a twentieth, separate, and affirmative defense to plaintiffs" Complaint, and each
cause of action thereof, this answering defendant is informed and believes and based thereupon
alleges that a previous action was commenced by one or more of plaintiffs or parties with whom
plaintiffs are in privity; a final judgment in favor of the defendants therein was duly rendered on the
merits, the court having jurisdiction over the parties and subject matter therein; said judgment
became final prior to the filing of this action herein; the causes of action, transactions, or series of
transactions asserted in this action involve the same causes of action, transactions, or series of
transactions as those decided and involved in said former action: by reason of the aforesaid, the
causes of action asserted by plaintifi’ herein are barred.
TWENTY-FIRST AFFIRMATIVE DEFENSE
‘As and for a twenty-first, separate, and aftirmative defense to plaintiffs’ Complaint, and each
cause of action thereof, this answering defendant és informed and believes, and based thereupon
alleges, that one or more of the plaintiffs filed a previous lawsuil in which the purported causes of”
action, (ransactions, or series of transactions, were, and are, identical to the causes of action,
transactions, or series of transactions asserted by plaintiffs in the Complaint on file herein, that
plaintiffs could and should have pleaded said causes of action, transactions. or series of transactions
in said previous lawsuit: that judgment rendered in the previous lawsuit has, prior to the filing of the
present action, become final; that by reason of the aforesaid, one or more of the plaintiff's is
estopped from seeking the relief he or she now seeks in this present action.
TWENTY-SECOND AFFIRMATIVE DEFENSE
As and for a twenty-second, separate, and affirmative defense to plaintiffs’ Complaint, and
each cause of action thereof, this answering defendant is informed and believes, and based
thereupon alleges that plaintiffs” alleged injuries, if any, resulted from an independent contractor's
performance of inherently dangerous work; that plaintiffs were employed by said independent
contractor at the time of said injuries; that this answering defendant was not negligent and did not
cause plaintill’s alleged injuries: and that plaintii® sustained said injuries while performing duties
id employment. Plaintiffs’ Complaint, and cach cause of action
7
within the course and scope of
ANSWER 10 PLAINTIFFS’ UNVERIFIFD COMPLAINT1} thereo!, is therefore barred by the exclusive remedy provisions of the Workers’ Compensation laws
2 | of the State of California pursuant to the holding in Privette v. The Superior Court of Santa Clara
3 J County (1993) 5 Cal.4th 689, 21 Cal.Rptr. 2d 72
4 TWENTY-THIRD AFFIRMATIVE DEFENSE
5|| As and for a twenty-third, separate, and affirmative defense to plaintiffs’ Complaint, and
6 |) each cause of action thereof, this answering defendant is informed and believes, and based
7 || thereupon alleges that if any of the plaintiffs was exposed to any asbestos-containing friction
8 || materials packaged, distributed or sold by this answering defendant, such asbestos-containing
9 || friction materials were manufactured, packaged, distributed or sold in accordance and compliance
10 || with contract specifications and/or procurement requirements, established, imposed or enforced by
i1 |) the United §
es Government, agents, representatives or contractors, acting on its behalf, plaintiff's
12 || employers, or by third parties yet to be identified.
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE.
4 As and for a twenty-fourth, separate, and affirmative defense to the Complaint of plaintifi’s
15 } on file herein and to each and every cause of action thereof, this answering defendant alleges that
16 ff such causes of action arose in another stale and by the laws of thai siale, an action cannot be
17 }| maintained by reason of the lapse of time, and, as @ consequence, cannot be maintained in this state,
18 TWENTY-FIFTH AFFIRMATIVE DEFENSE
19 As and for a twenty-fifth, separate, and affirmative defense to plaintiffs’ Complaint, and
20 | each cause of action thereof, this answering defendant is informed and believes, and based
21 } thereupon alleges, that there has been a defect or misjoinder of parties as to any survival and/or
22 || wrongful death claims that may be asserted.
23 ‘TWENTY-SIXTH AFFIRMATIVE DEFENSE
4 As and for a twenty-sixth, separate, and affirmative defense to plaintifi’s’ Complaint, and
25 |] each cause of action thereof, this answering defendant is informed and believes, and based
26 || thereupon alleges, that plaintiffs lack standing to pursue any survival and/or wrongful death claims.
27 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
28 As and for a twenty-soventh, scparate, and affirmative defense to plaintiffs’ Complaint, and
8
ANSWER. TO PLAINTIFFS” UNVERIFIED COMPLAINTcacli cause of action thercof, this answering defendant is informed and believes, and hased
thereupon alleges, that plaintiffs failed to file the affidavit required by C.C.P. §377.32, and that they
may not, therefore, pursue any survival claims.
‘TWENTY-EIGHTH AFFIRMATIVE DEFENSE
As and for a twenty-eighth, separate, and affirmative defense to plaintiffs’ Complaint, and
each cause of action thereof, this answering defendant is informed and believes, and based
thereupon alleges, that plaintiff’ have failed to join all necessary parties, including omitted heirs, as
to any survival or wrongful death claims asserted.
TWENTY-NINTH AFFIRMATIVE DEFENSE
As and for a twenty-ninth, separate, and affirmative defense to plaintiffs’ Complaint, and
cach cause of action thercof, this answering defendant is informed and believes, and based
thereupon alleges, that plaintiffs lack capacity to sue, as to any survival and/or wrongful death
claims asserted.
THIRTIETH AFFIRMATIVE DEFENSE
As and for a thirtieth, separate, and affirmative defense to plaintifii’ Complaint, and each
cause of action thercof, this answering defendant is informed aud believes, and based thereupon
alleges, that plaintiffs failed to mitigate their damages.
THIRTY-FIRST AFFIRMATIVE DEFENSE
‘As and for a thirty-first, separate, and affirmative defense to plaintiffs’ Complaint, and each
cause of action thereof, this answering defendant is informed and believes, and based thereupon
alleges, that a federal statute bans plaintiffs’ state court claims and that each cause of action therein
is preempted, thereby precluding plaintiffs from proceeding before this Court.
THIRTY-SECOND AFFIRMATIVE DEFENSE
As and for a thirty-second, separate and aftirmative defense to plaintiffs’ Complaint, and
each cause of action thereof, this answering defendant is informed and believes, and based thereon
alleges, that the causes of action asserted by plaintiffS, who admit their inability to identify the
manufacturer or manufacturers of the products which allegedly caused injury. never informed this
defendant, by notification or otherwis
. of any breach of express and/or implied warranties:
9
ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT,consequently, their claims of breach of express or implied warrenties against this defendant are
barred.
THIRTY-THIRD AFFIRMATIVE DEFENSE
third, separate and affirmative defense to plaintifis” Complaint, and each
cause of action thereof, this answering defendant is informed and believes, and based thereon
alleges, that the products to which plaintiffs claim to have been exposed were not, individually or
collectively, defective in that such products were supplied with adequate warnings pertaining to
dangerous propensities, if any, of such product.
THIRTY-FOURTH AFFIRMATIVE DEFENSE,
As and for a thirty-fourth, separate and affirmative defense to plaintifis’ Complaint, and each
cause of action thereof, this answering defendant is informed and believes, and based thereon
alleges, that it made no warranties of any kind, express or implied, to plainfiils, or any af them, and
that there is no relationship upon which 1 claim of implied warranty may legitimately be based.
‘THIRTY-FIFTH AFFIRMATIVE DEFENSE
As and for a thirty-fifth, separate and affirmative defense to plaintiffs’ Complaint, and each
cause of action thereof, this answering defendant is informed and believes, and based thereon
alleges, that the cause of action for broach of warranty, if any, against this defendant is barred
because (a) there is no privity of contract between plaintiffs, or any of them, and this defendant, (b)
plaintiff’ did not reasonably reply on any such claimed warranty, if any, (¢) the claims of plaintiff's
are based on an alleged warranty not expressed on the labeling or other material accompanied by
any product, (d) plaintiffs failed to give the requisite timely notice to this defendant as to any
puxported breach of warranty, and (e) the alleged warranty, if any, to plaintiffs, or any of them, was
expressly disclaimed by the defendant,
“a
10
ANSWER TO PLAINTIFFS” UNVERIFIED COMPLAINTeoN
WIIEREFORE. this answering defendant prays as follows:
1, That plaintiff take nothing by reason of the Complaint on file herein,
2, That this defendant be hence dismissed with its costs of suit incurred herein; and
3. For such other and further relief as the Court deems just and proper.
DATED: February 26, 2007
& JACK OF CALIFORNIA.
1L
ANSWER TO PLAINTIFFS’ UNVERIFIED COMPI.AINT,oes}
PROOF OF SERVICE
Charles Boudreaux, et ux. v. Advocate Mines Ltd., ct al.
SAN FRANCISCO SUPERIOR COURT CASE NO. 274029
Iam employed in the City and County of San Francisco, California, lam over the age of
eighteen years and not a party to the within action; my business address is 221 Main Sireet, 16th
Floor, San Francisco, California, 94105, On February 26, 2007, I served the following
documents: ANSWER OF THE PEP BOYS MANNY, MOE & JACK OF CALIFORNIA
TO PLAINTIFFS?’ UNVERIFIED COMPLAINT on the parties, through their attorneys of
record, by placing true copies thereof in sealed envelopes addressed as shown below for Service
as designated below:
(A) __ By First Class Mail - I caused each such envelope, with first-class postage thereon fully
prepaid, to be deposited in a recognized place of deposit of the U.S. mail in San Francisco,
California, for collection and mailing to the office of the addressee on the date shown herein
following ordinary business practices.
(B) By Personal Service - I caused each such envelope to be personally delivered to the office
of the addressee by a member of the staff of this law firm on the date last written below.
(©) _ By Personal Service - I caused each such envelope to be delivered to a courier employed
by Red Hoi, with whom we have a direct billing account, who personally delivered each such
envelope to the office of the addressee on the date last written below.
(D) By Licderal Express - I caused each such envelope to be delivered to Federal Lixpress
Corporation al San Francisco, California, with whom we have a direct billing account to be
delivered to the office of the addressce on the next business day.
(E) By Facsimile - I caused such document to be served via facsimile electronic equipment
transmission (lax) on the patties in this action by transmitting a true copy to the following [ax
numbers:
(©) _By ii-Mail - | caused such decument to be served via e-mail on the recipients designated
on the Transaction Receipt located on the LexisNexis File & Service website.
TYPE OF SERVICE ADDRESSEE PARTY
F) As stated above
I declare under penalty of perjury that the foregoing is true and correct. Executed this
February 26, 2007, at San Francisco, California.
Mei Gy tayud
Maria M. Scarpino
PD: |
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“I Michaei T. Stone (SB#58408) Trung V. Guach (SB# 227078) ELECTRONICALLY McOUATD BEDFORD & VAN ZANDT LLP FILED 221 Main Street, 16" Floor eo San Francisco. CA 94105 Superior Court of California, Telephone: 415/905-0200 County oF San Francisco Facsimile: 415/348-1836 FEB 27 2007 GORDON PARK-LI, Cler BY: ANNIE PASCUAL Attorneys for THE PEP BOYS MANNY, Deputy Clerk MOE & JACK OF CALIFORNIA IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO CHARLES BOUDREALX, et ux., Case No, 274029 Plaintiffs, ANSWER OF THE PEP BOYS MANNY, MOE & JACK OF CALIFORNIA TO v. PLAINTIFFS’ UNVERIFIED COMPLAINT ADVOCATE MINES LYD,, et al., Defendanis. / AND RELATED CROSS-ACTIONS / DEFENDANT THE PEP BOYS MANNY, MOR & JACK OF CALIFORNIA (hereinafter “defendant” or "Pep Boys") hereby answers Plaintiffs’ Unverifted Complaint on file herein pursuant to California Code of Civil Procedure Section 431.30, by generally denying each and every, all and singular, generally and specifically, all the allegations containeca therein, and each cause of action thereof, and further denies that any of the Plaintiffs, individually or collectively, has been damaged in any sum, sums, cr at ail. AFFIRMATIVE DEFENSES This answering defendant further pleads the following affirmative defenses to each and every cause of action of plaintiff's Complaint as though pleaded separately to each and every said cause of action: 1 L ANSWER TQ PLAINTIFFS’ UNVERI IED COMPLAIN LFIRST AFFIRMATIVE DEFENSE As and for a first, separate and allirmative defense to the Complaint of plaintiffs on file herein and to each and every cause of action thereof, this answering defendant alleges (hat the plaintiffs were careless and negligent in and about the matters alleged in the Complaint, and that said carelessness and negligence on the part of the Plaintiff’, and each of them, proximately contributed to the events alleged therein, and to the injuries, loss and damages complained of, if any. sustained by any plaintiff and that Plaintiffs’ recovery should therefor be reduced to the extent of || such negligence. SECOND AFFIRMATIVE DEFENSE As and for a second, separate and affirmative defense to the Complaint of plaintiffs on file herein and to each and every cause of action thereof, this answering defendant alleges that cach and every plaintiif knew, or in the exercise of ordinary care should have known ef the risks and havards involved in the undertaking in which he was engaged but nevertheless, and knowing these things, did freely and voluntarily consent to assume the risks and hazards incident to said operations, acts, and conduct af the time and place mentioned in said Complaint. TOIRD AFFIRMATIVE DEFENSE As and for a further separate and distinct answer and affirmative defense 10 the Complaint and each and every cause of action thereof and by way of alleging the doctrine of With (1961) 57 Cal.2d 57, this answering defendant alleges that at the time and place of the happening of the occurrences alleged in the Complaint, and at all times material herein, some or all of the plaintiffs herein were employed by various employers, the names of which are unknown (o this defendant at this time, and were working within the course and scope of his or her employment and/or employments at ail times pertinent hereto, that said employer and/or employers and each plaintiff were subject to the provisions of the Workman's Compensation Act of the State of California or some other jurisdiction; that certain sums have been paid to or on bebalf of plaintiff herein under the applicable provisions of the Labor Code of the State of California or such other jurisdictions statutes that may be applicable; that said employer and/or employers, and cach of them. were negligent and careless and that such negligence and carelessness proximately contributed and 2 ANSWER TO PLAINTIFFS’ UNVERIMLD COMPLAINTcaused the injuries of such plaintiffs; that by these premises any award made to any of the plaintiffs if' any award is made at all, must be reduced by any payment to him or her by the employer or employers’ compensation carrier under the authority of Witt vs. Jackson, (1961) 57 Cal.2d 57, or such other non-California authority as may be applicable. FOURTH AFFIRMATIVE DEFENSE As and for a fourth, separate and affirmative defense to the Complaint of plaintifié on file herein and to each and every cause of action thereof, this answering defendant alleges that plaintiffs" employers were contributorily negligent and careless in and about the matters alleged in the Complaint, and that such negligence and carelessness was a proximate cause of any injuries and damages suffered by any of the plaintifis herein, if any such damage there were. FIFTH AFFIRMATIVE DEFENSE As and for a fifth, separate and affirmative defense to the Complaint of plaintiffs on file horcin and to cach and every cause of action thereof, this answering defendant alleges that plaintifis’ employers voluntarily and knowingly entered into and engaged in the operations, acts and conduct alleged in said Complaint, and voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct alleged in said Complaint, and voluntarily and knowingly assumed all of the tisks incident to said operations, acts and conduct at the time and place mentioned in the Complaint SIXTH AFFIRMATIVE DEFENSE As and for a sixth, separate and affirmative defense to the Complaint of plaintiff on file herein and to each and every cause of action thereof, this answering defendant alleges that the product in question was properly designed and manufactured, and was fit for the purpose intended: that said product was improperly maintained and used in an unauthorized and unforeseeable manner | following the alleged sale or distribution by this defendant of said product. SEVENTH AFFIRMATIVE DEFENSE As and for a seventh, separate and affirmative defense to the Complaint of plaintifiés on file herein and to each and every cause of action thereof, this answering defendant alleges that said Complaint, aud cach of said alleged causes of action thercof, is barred by the provisions of the ANSWER TO PLAINTIFFS” UNVERIFIED COMPLAINTCalifornia Code of Civil Procedure, Section 335.1. EIGHTH AFFIRMATIVE DEFENSE As and for an eighth, separate and affirmative defense to the Complaint of plaintiffs on file herein and to each and every cause of action thereof, this answering defendant alleges that said Complaint, and each of said alleged causes of action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340.2. NINTH AFFIRMATIVE DEFENSE As and for a ninth, separate and affirmative defense to the Complaint of plaintiff’ on file herein and to each and every cause of action thereof, this answering defendant alleges that said Complaint, and each of said alleged causes of action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340.8 TENT AFFIRMATIVE DEFENSE. As and for a tenth, separate and affirmative defense to the Complaiat of plaintiffs on file herein and te cach and every cause of action thereof, this answering defendant alleges that plaintifis unroasonably delayed in the bringing of this action without good cause therefor, and thereby has prejudiced defendant, and as a proximate result thereof, the entire action is barred by laches. ELEVENTH AFFIRMATIVE DEFENSE As and for an eleventh, separate and affirmative defense (o the Complaint of plaintiffs on file herein and each and every cause of action thereof. this answering defendant alleges that the Complaint fails to state a cause of action against this answering defendant for exemplary damages. TWELFTH AFFIRMATIVE DEFENSE As and for a twelfth, separate and affirmative defense to the Complaint of plaintiff on file herein and each and every cause of action thereof, this answering defendant alleges that while at all times denying any liability whatsoever to plaintifis herein, or any of them, any alleged liability or responsibility of this defendant, and such alleged liability and responsibility being denied, is small in proportion to the alleged liability and responsibility of other persons and entities, including other persons and entities who are defendants herein, and that plainti(fs should be limited to seeking recovery from this defendant for the proportion of alleged injuries and damages for which this ANSWER TO PLAINTIFFS? UNVERUMED COMPLAINT.a we ww HK defendant is allegedly liabic or responsible, all such alleged liability and alleged responsibility being, expressly denied. ‘THIRTEENTH AFFIRMATIVE DEFENSE As and for a thirteenth, separate and affirmative defense to the Complaint of plaintiffs on file herein and each and every cause of action thereof, this answering defendant is informed and believes and based upon said information and belief alleges that said plaintiffs are barred from recovery herein, because of modification, alteration or change in some other manner, of the products alleged in plaintiffs’ Complaint. FOURTEENTH AFFIRMATIVE DEFENSE As and for a fourteenth, separate and affirmative defense to the Complaint of plaintiffs on file hercin and each and every cause of aclion thereof, this answering defendant alleges that plaintiffs’ Complaint does not state facts sufficient to constitute a cause of action against this answering defendant on any theory whatsoever. FIFTEENTH AFFIRMATIVE DEFENSE As and for a fifteenth, separate and affirmative defense to the Complaint of plaintiff on file herein and cach and every cause of action therein, this answering defendant alleges that plaintiff acknowledged, ratified, consented 10 and acquiesced in the alleged acts or omissions, if aay, of this answering defendant, thus barring plaintiff from aay relief as prayed for heecia. SIXTEENTH AFFIRMATIVE DEFENSE As and for a sixteenth, separate and affirmative defense to the Complaint of plaintiffs on file herein and each and every cause of action herein. this answering defendant is informed and believes and therefore alleges that plaintiffs, and each of them, are unable to identify the actual manufacturer(s) or supplier(s) of the asbestos products which allegedly caused the injury which forms the basis of the Complaint herein, and that said manufacturer(s) or supplier(s) were/are entities other than this defendant, ‘Therefore, this defendant may not be held liable for the injury of the plaintiff. SEVENTEENTH AFFIRMATIVE DEFENSE ‘As and for a seventeenth, separate and affirmative defense to the Complaint of plaintiff on ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINTfile herein amd each and every cause of action herein, this answering defendant alleges that plaintifs and plaintifis’ employers were and are sophisticated users and knew independently or should have known of any danger or hazard associated with the use of a product containing asbestos and of exposure to high levels of dust of any sort. Defendant further alleges that plaintiff's and plaintiffs” employers failed to rely upon any warning that may have been provided to them by any source, whether associated with this answering defendant or not, in the course of sustaining the alleged damages to plaintiffs, if any there were. EIGHTEENTH AFFIRMATIVE DEFENSE As and for an eighteenth, separate and affirmative defense to the Complaint of plaintiffs on file herein and to each and every cause of action thereof, this answering defendant alleges that said Complaint and each of said alleged causes of action thereof is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if any, for non-cconomic damages, if any, as defined in Civil Code Section 1431.2(b)(2) shall be several only and shall not be joint with each or any co-defendant named in said Complaint. This answering defendant shall be liable only for the ammount of said non-economic damages, if any, allocated to this answering defendant in direct proportion to this answering defendant's percentage of fault, if any. NINETEENTH AFFIRMATIVE DEFENSE As and for a nineteenth, separate, and affirmative defense to plaintifis” Complaint and each cause of action thereof, this answering defendant is informed and believes and based thereupon alleges that a previous action was commenced by one or more of the plaintiffs herein, or parties with whom some or all of the plaintiffs are in privity: a final judgment in said action was duly rendered on the merits, the court having jurisdiction over the parties and subject matter therein, said judgment became final prior to the filing of this action herein; the causes of action asserted in this action involve the same causes of action, transactions, or series of transactions as those transactions, or series of transactions, decided and involved in said former action: by reason of the aforesaid, the causes of action asserted by plaintiffS, or any of them, herein have been merged in the prior Judgment and therefore said causes of action are barred, 6 ANSWER 10 PLAINTIFFS’ UNVERIFIED COMPLATNTwe aw TWENTIETH AFFIRMATIVE DEFENS E As and for a twentieth, separate, and affirmative defense to plaintiffs" Complaint, and each cause of action thereof, this answering defendant is informed and believes and based thereupon alleges that a previous action was commenced by one or more of plaintiffs or parties with whom plaintiffs are in privity; a final judgment in favor of the defendants therein was duly rendered on the merits, the court having jurisdiction over the parties and subject matter therein; said judgment became final prior to the filing of this action herein; the causes of action, transactions, or series of transactions asserted in this action involve the same causes of action, transactions, or series of transactions as those decided and involved in said former action: by reason of the aforesaid, the causes of action asserted by plaintifi’ herein are barred. TWENTY-FIRST AFFIRMATIVE DEFENSE ‘As and for a twenty-first, separate, and aftirmative defense to plaintiffs’ Complaint, and each cause of action thereof, this answering defendant és informed and believes, and based thereupon alleges, that one or more of the plaintiffs filed a previous lawsuil in which the purported causes of” action, (ransactions, or series of transactions, were, and are, identical to the causes of action, transactions, or series of transactions asserted by plaintiffs in the Complaint on file herein, that plaintiffs could and should have pleaded said causes of action, transactions. or series of transactions in said previous lawsuit: that judgment rendered in the previous lawsuit has, prior to the filing of the present action, become final; that by reason of the aforesaid, one or more of the plaintiff's is estopped from seeking the relief he or she now seeks in this present action. TWENTY-SECOND AFFIRMATIVE DEFENSE As and for a twenty-second, separate, and affirmative defense to plaintiffs’ Complaint, and each cause of action thereof, this answering defendant is informed and believes, and based thereupon alleges that plaintiffs” alleged injuries, if any, resulted from an independent contractor's performance of inherently dangerous work; that plaintiffs were employed by said independent contractor at the time of said injuries; that this answering defendant was not negligent and did not cause plaintill’s alleged injuries: and that plaintii® sustained said injuries while performing duties id employment. Plaintiffs’ Complaint, and cach cause of action 7 within the course and scope of ANSWER 10 PLAINTIFFS’ UNVERIFIFD COMPLAINT1} thereo!, is therefore barred by the exclusive remedy provisions of the Workers’ Compensation laws 2 | of the State of California pursuant to the holding in Privette v. The Superior Court of Santa Clara 3 J County (1993) 5 Cal.4th 689, 21 Cal.Rptr. 2d 72 4 TWENTY-THIRD AFFIRMATIVE DEFENSE 5|| As and for a twenty-third, separate, and affirmative defense to plaintiffs’ Complaint, and 6 |) each cause of action thereof, this answering defendant is informed and believes, and based 7 || thereupon alleges that if any of the plaintiffs was exposed to any asbestos-containing friction 8 || materials packaged, distributed or sold by this answering defendant, such asbestos-containing 9 || friction materials were manufactured, packaged, distributed or sold in accordance and compliance 10 || with contract specifications and/or procurement requirements, established, imposed or enforced by i1 |) the United § es Government, agents, representatives or contractors, acting on its behalf, plaintiff's 12 || employers, or by third parties yet to be identified. 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE. 4 As and for a twenty-fourth, separate, and affirmative defense to the Complaint of plaintifi’s 15 } on file herein and to each and every cause of action thereof, this answering defendant alleges that 16 ff such causes of action arose in another stale and by the laws of thai siale, an action cannot be 17 }| maintained by reason of the lapse of time, and, as @ consequence, cannot be maintained in this state, 18 TWENTY-FIFTH AFFIRMATIVE DEFENSE 19 As and for a twenty-fifth, separate, and affirmative defense to plaintiffs’ Complaint, and 20 | each cause of action thereof, this answering defendant is informed and believes, and based 21 } thereupon alleges, that there has been a defect or misjoinder of parties as to any survival and/or 22 || wrongful death claims that may be asserted. 23 ‘TWENTY-SIXTH AFFIRMATIVE DEFENSE 4 As and for a twenty-sixth, separate, and affirmative defense to plaintifi’s’ Complaint, and 25 |] each cause of action thereof, this answering defendant is informed and believes, and based 26 || thereupon alleges, that plaintiffs lack standing to pursue any survival and/or wrongful death claims. 27 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 28 As and for a twenty-soventh, scparate, and affirmative defense to plaintiffs’ Complaint, and 8 ANSWER. TO PLAINTIFFS” UNVERIFIED COMPLAINTcacli cause of action thercof, this answering defendant is informed and believes, and hased thereupon alleges, that plaintiffs failed to file the affidavit required by C.C.P. §377.32, and that they may not, therefore, pursue any survival claims. ‘TWENTY-EIGHTH AFFIRMATIVE DEFENSE As and for a twenty-eighth, separate, and affirmative defense to plaintiffs’ Complaint, and each cause of action thereof, this answering defendant is informed and believes, and based thereupon alleges, that plaintiff’ have failed to join all necessary parties, including omitted heirs, as to any survival or wrongful death claims asserted. TWENTY-NINTH AFFIRMATIVE DEFENSE As and for a twenty-ninth, separate, and affirmative defense to plaintiffs’ Complaint, and cach cause of action thercof, this answering defendant is informed and believes, and based thereupon alleges, that plaintiffs lack capacity to sue, as to any survival and/or wrongful death claims asserted. THIRTIETH AFFIRMATIVE DEFENSE As and for a thirtieth, separate, and affirmative defense to plaintifii’ Complaint, and each cause of action thercof, this answering defendant is informed aud believes, and based thereupon alleges, that plaintiffs failed to mitigate their damages. THIRTY-FIRST AFFIRMATIVE DEFENSE ‘As and for a thirty-first, separate, and affirmative defense to plaintiffs’ Complaint, and each cause of action thereof, this answering defendant is informed and believes, and based thereupon alleges, that a federal statute bans plaintiffs’ state court claims and that each cause of action therein is preempted, thereby precluding plaintiffs from proceeding before this Court. THIRTY-SECOND AFFIRMATIVE DEFENSE As and for a thirty-second, separate and aftirmative defense to plaintiffs’ Complaint, and each cause of action thereof, this answering defendant is informed and believes, and based thereon alleges, that the causes of action asserted by plaintiffS, who admit their inability to identify the manufacturer or manufacturers of the products which allegedly caused injury. never informed this defendant, by notification or otherwis . of any breach of express and/or implied warranties: 9 ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT,consequently, their claims of breach of express or implied warrenties against this defendant are barred. THIRTY-THIRD AFFIRMATIVE DEFENSE third, separate and affirmative defense to plaintifis” Complaint, and each cause of action thereof, this answering defendant is informed and believes, and based thereon alleges, that the products to which plaintiffs claim to have been exposed were not, individually or collectively, defective in that such products were supplied with adequate warnings pertaining to dangerous propensities, if any, of such product. THIRTY-FOURTH AFFIRMATIVE DEFENSE, As and for a thirty-fourth, separate and affirmative defense to plaintifis’ Complaint, and each cause of action thereof, this answering defendant is informed and believes, and based thereon alleges, that it made no warranties of any kind, express or implied, to plainfiils, or any af them, and that there is no relationship upon which 1 claim of implied warranty may legitimately be based. ‘THIRTY-FIFTH AFFIRMATIVE DEFENSE As and for a thirty-fifth, separate and affirmative defense to plaintiffs’ Complaint, and each cause of action thereof, this answering defendant is informed and believes, and based thereon alleges, that the cause of action for broach of warranty, if any, against this defendant is barred because (a) there is no privity of contract between plaintiffs, or any of them, and this defendant, (b) plaintiff’ did not reasonably reply on any such claimed warranty, if any, (¢) the claims of plaintiff's are based on an alleged warranty not expressed on the labeling or other material accompanied by any product, (d) plaintiffs failed to give the requisite timely notice to this defendant as to any puxported breach of warranty, and (e) the alleged warranty, if any, to plaintiffs, or any of them, was expressly disclaimed by the defendant, “a 10 ANSWER TO PLAINTIFFS” UNVERIFIED COMPLAINTeoN WIIEREFORE. this answering defendant prays as follows: 1, That plaintiff take nothing by reason of the Complaint on file herein, 2, That this defendant be hence dismissed with its costs of suit incurred herein; and 3. For such other and further relief as the Court deems just and proper. DATED: February 26, 2007 & JACK OF CALIFORNIA. 1L ANSWER TO PLAINTIFFS’ UNVERIFIED COMPI.AINT,oes} PROOF OF SERVICE Charles Boudreaux, et ux. v. Advocate Mines Ltd., ct al. SAN FRANCISCO SUPERIOR COURT CASE NO. 274029 Iam employed in the City and County of San Francisco, California, lam over the age of eighteen years and not a party to the within action; my business address is 221 Main Sireet, 16th Floor, San Francisco, California, 94105, On February 26, 2007, I served the following documents: ANSWER OF THE PEP BOYS MANNY, MOE & JACK OF CALIFORNIA TO PLAINTIFFS?’ UNVERIFIED COMPLAINT on the parties, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shown below for Service as designated below: (A) __ By First Class Mail - I caused each such envelope, with first-class postage thereon fully prepaid, to be deposited in a recognized place of deposit of the U.S. mail in San Francisco, California, for collection and mailing to the office of the addressee on the date shown herein following ordinary business practices. (B) By Personal Service - I caused each such envelope to be personally delivered to the office of the addressee by a member of the staff of this law firm on the date last written below. (©) _ By Personal Service - I caused each such envelope to be delivered to a courier employed by Red Hoi, with whom we have a direct billing account, who personally delivered each such envelope to the office of the addressee on the date last written below. (D) By Licderal Express - I caused each such envelope to be delivered to Federal Lixpress Corporation al San Francisco, California, with whom we have a direct billing account to be delivered to the office of the addressce on the next business day. (E) By Facsimile - I caused such document to be served via facsimile electronic equipment transmission (lax) on the patties in this action by transmitting a true copy to the following [ax numbers: (©) _By ii-Mail - | caused such decument to be served via e-mail on the recipients designated on the Transaction Receipt located on the LexisNexis File & Service website. TYPE OF SERVICE ADDRESSEE PARTY F) As stated above I declare under penalty of perjury that the foregoing is true and correct. Executed this February 26, 2007, at San Francisco, California. Mei Gy tayud Maria M. Scarpino PD: |