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JENNIFER A. KUENSTER, CA BAR NO. 104607 ELECTRONICALLY
KAREN A. HENRY, CA BAR NO. 157119
THELEN REID BROWN RAYSMAN & STEINER LLP FILED
101 Second Street, Suite 1800 Superior Court of California,
San Francisco, California 94105 County of San Francisco
Telephone: (415) 371-1200 FEB 09 2007
Facsimile: (415) 371-1211 GORDON PARK-LI, Clerk
BY: VANESSA WU
Attorneys for Defendant Deputy Clerk
DAIMLERCHRYSLER CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHARLES BOUDREAUX and DEBORAH _| Case No.: 07-274029
BOUDREAUX,
Complaint Filed: January 12, 2007
Plaintiffs,
DEFENDANT DAIMLERCHRYSLER
CORPORATION’S ANSWER TO
VS. COMPLAINT FOR DAMAGES
ADVOCATE MINES, LTD.,
Defendants.
Defendant DaimlerChrysler Corporation (hereinafter referred to as "Chrysler") hereby
answers plaintiffs' unverified complaint for personal injury ("complaint") as follows:
GENERAL DENIAL
Chrysler generally denies each and every allegation of plaintiffs’ complaint.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Asa first separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, Chrysler alleges that this Court lacks jurisdiction over this action.
Hy
iff
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER 10) COMPLAINT FOR DAMAGESSECOND AFFIRMATIVE DEFENSE
‘Asa second separate and distinct affirmative defense, Chrysler alleges that the complaint,
and each cause of action thereof, fails to state facts sufficient to constitute a claim upon which
relief be granted
THIRD AFFIRMATIVE DEFENSE
Asa third separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, Chrysler alleges that the allegations of the complaint, and each cause of action
thereof, are uncertain, vague and ambiguous.
FOURTH AFFIRMATIVE DEFENSE
Asa fourth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that plaintiffs have failed to join all proper parties, or
alternatively, has misjoined the parties to this action.
FIFTH AFFIRMATIVE DEFENSE
Asa fifth separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, Chrysler alleges that the entire complaint and each cause of action thereof should
be dismissed pursuant to sections 583.210 through 583.250, and 583.410 through 583.430 of the
California Code of Civil Procedure, and other applicable code sections.
SIXTH AFFIRMATIVE DEFENSE
Asa sixth separate and distinct affirmative defense, Chrysler alleges that the entire
complaint, and each cause of action thereof, is barred by the applicable limitations periods set
forth in sections 337(1}-(3), 337. 1(@)-(£), 337. 15(@)-(g), 338(a)-(k), 339(1)-(3), 340(1)(5),
340.2(a)-(c), 343, 353(a}-(d), 361 and 366.1 of the California Code of Civil Procedure, and other
applicable statutes of limitations.
SEVENTH AFFIRMATIVE DEFENSE,
‘Asa seventh separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that plaintiffs” amendment naming Chrysler as a “Doe”
clhcringiiDeshlop BOUDREAUX ATC-DCDOC 2
DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESdefendant is improper pursuant to section 474 of the California Code of Civil Procedure because
plaintiffs were not truly ignorant of Chrysler’s identity and/or claims against Chrysler at the time
of filing the initial complaint, Alll claims against Chrysler are thus barred under the applicable
limitations period set forth above.
EIGHTH AFFIRMATIVE DEFENSE
As an eighth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the entire complaint and each cause of action thereof,
is barred against defendant by the provisions of section 3601, et seq., of the California Labor Code
and Section 905(b), Title 33 of the United States Code, and related authority
NINTH AFFIRMATIVE DEFENSE,
Asa ninth separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, Chrysler alleges that the causes of action, if any, asserted and set forth in the
complaint for negligence per se are barred by California Labor Code Section 6304.5, and related
authority.
TENTH AFFIRMATIVE DEFENSE
Asan tenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that it does not have, and never has had, a successor,
successor-in-business, successor-in-product line or portion thereof, successor-in-interest, assignee,
predecessor, predecessor-in-business, predecessor-in-product line or portion thereof, predecessor
in-interest, parent, subsidiary or whole or partial ownership or membership relationship with the
entity upon which plaintiffs premises their allegations of liability.
ELEVENTH AFFIRMATIVE DEFENSE
As an eleventh separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that to the extent that the complaint alleges a "market
share" or “enterprise” theory of liability, it fails to state facts sufficient to constitute a cause of
action against Chrysler
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGES‘TWELFTH AFFIRMATIVE DEFENSE
Asa twelfth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that it did not have a sufficient market share with respect
to the products and materials which plaintifi’s allege caused the alleged injuries and damages.
Chrysler may not be held liable to plaintiff’ for any alleged share of said market, or upon any
theory premised upon market-share liability.
THIRTEENTH AFFIRMATIVE DEFENSE
Asa thirteenth separate and distinct affirmative defense to the entire complaint and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred on the grounds that plaintiffs and/or plaintiffs’ employers were sophisticated
users or buyers of the products or materials referred to in the complaint.
FOURTEENTH AFFIRMATIVE DEFENSE
Asa fourteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the damages alleged by plaintiffs, if any, were
proximately caused, either in whole or in part, by persons, firms, entities or others not within the
control of Chrysler.
FIFTEENTH AFFIRMATIVE DEFENSE
Asa fifteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that plaintiffs failed to exercise reasonable diligence in
mitigating damages allegedly sustained as a result of the alleged acts of Chrysler.
SIXTEENTH AFFIRMATIVE DEFENSE
Asa sixteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that if plaintiffs sustained injuries or damages attributable
to the use of any product researched, tested, studied, manufactured, fabricated, inadequately
researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered
for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed,
warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGEScontained or lacked warnings by Chrysler which allegations are expressly denied, the injuries or
damages were proximately caused by the unreasonable and unforeseeable misuse, abuse,
alteration, or improper maintenance of the product by plaintiffs or by others,
SEVENTEENTH AFFIRMATIVE DEFENSE
Asa seventeenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that at all times mentioned, plaintiffs consented to the
alleged acts of Chrysler.
EIGHTEENTH AFFIRMATIVE DEFENSE.
Asa eighteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that at all times mentioned, plaintiffs had knowledge of
the risks of the matters set forth in the complaint, as well as the magnitude of the risks, and
thereafter, knowingly, willingly, and voluntarily assumed those risks
NINETEENTH AFFIRMATIVE DEFENSE
Asan nineteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that claims asserted by plaintiffs were proximately caused
by a superseding, intervening cause.
TWENTIETH AFFIRMATIVE DEFENSE
As a twentieth separate and distinct affirmative defense to the entire complaint and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred on the grounds that the products or materials referred to in the complaint, if any,
were not a substantial factor in bringing about the injuries and damages alleged by plaintiffs.
TWENTY-FIRST AFFIRMATIVE DEFENSE
As an twenty-first separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that plaintiffs were negligent and unreasonable in or
about the things alleged in the complaint. Any damages which plaintiff’ seek to recover from
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESChrysler must be reduced in proportion to the extent that plaintifiis’ own negligence contributed to
plaintiffs’ injuries or damages
TWENTY-SECOND AFFIRMATIVE DEFENSE
Asa twenty-second separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that plaintiffs were negligent, legally responsible, or
otherwise at fault for the injuries or damages allegedly sustained by plaintiffs and that Chrysler is
not liable for plaintiffs’ proportionate share of fault, Chrysler requests that in the event of a
finding of any liability in favor of plaintiffs, or in the event of a settlement or judgment against
Chrysler, an apportionment of fault be made among all parties, and a judgment and declaration of
partial indemnification and contribution be made against all other parties or persons in accordance
with the apportionment of fault.
TWENTY-THIRD AFFIRMATIVE DEFENSE,
Asa twenty-third separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler is informed and believes, and based thereon alleges that
plaintiff claims workers’ compensation benefits for the injuries claimed herein from one or more
of plaintif?’s employers or the employers’ insurance carriers, and that any award of damages,
[judgment or settlement in favor of plaintiff against Chrysler should be reduced by the amount
paid, or to be paid in the future, by those employers or their workers’ compensation carrier(s)
TWENTY-FOURTH AFFIRMATIVE DEFENSE
As a twenty-fourth separate and distinct affirmative defense, Chrysler alleges that if it is
determined to be liable to plaintiffs, such liability is based on conduct which is passive and
secondary to the active and primary wrongful conduct of other defendants to this action. Chrysler
is, therefore, entitled to total, equitable indemnity from such other defendants
‘TWENTY-FIFTH AFFIRMATIVE DEFENSE
As a twenty-fifth separate and distinet affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that California Civil Code sections 1431.1 through
clhcringiDeshlop BOUDREAUX ATC-DCDOC__-6-
DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGES143.5, known as the Fair Responsibility Act of 1986, are applicable at least in part to the present
action and to certain claims therein, and based upon principles of comparative fault, the liability, if
any, of Chrysler for non-economic damages shall be several only and shall not be joint. Chrysler,
if liable at all, shall be liable only for the amount of non-economic damages allocated to Chrysler
in direct proportion to Chrysler's percentage of fault, and a separate and several judgment shall be
rendered against Chrysler for non-economic damages, if any.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Asa twenty-sixth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that plaintiffs’ injuries or damages, if any, occurred
in the course and scope of plaintiffs’ employment, and that one or more of plaintiffs’ employers,
none of which was Chrysler was negligent and careless in or about the matters alleged in the
complaint, and that such negligence and carelessness was a proximate cause of any injuries or
damages suffered by plaintiffs, if any were suffered
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
As a twenty-seventh separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that one or more of plaintiffs’ employers, none of
which was Chrysler knowingly, willingly, and voluntarily entered into and engaged in or about the
matters alleged in the complaint, and knowingly, willingly, and voluntarily assumed all risks
incident to these matters.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Asa twenty-eighth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that plaintiffs’ complaint fails to state facts sufficient
to entitle plaintiffs to an award of punitive or exemplary damages against Chrysler.
‘TWENTY-NINTH AFFIRMATIVE DEFENSE
Asa twenty-ninth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that plaintiffs are not entitled to an award of punitive
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESor exemplary damages in this action. Such an award would be unconstitutional unless Chrysler is
accorded the safeguards provided under the Constitution of the State of California and the Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution
THIRTIETH AFFIRMATIVE DEFENSE
Asa thirtieth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that to the extent plaintiff’ claims arise out of contract,
plaintiffs’ claims do not state facts sufficient to entitle plaintiff’ to an award of punitive or
exemplary damages against Chrysler.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Asa thirty-first separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that plaintiffs, at all times mentioned, were not in privity
of contract with Chrysler and that said lack of privity bars any recovery by plaintifi’s against
Chrysler under any theory of breach of warranty
THIRTY-SECOND AFFIRMATIVE DEFENSE
Asa thirty-second separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that plaintiffs failed to give adequate and timely
notice of any alleged breach of warranty.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Asa thirty-third separate and distinct affirmative defense to the entire Complaint, and each
cause of action thereof, Chrysler alleges that at all times material herein, the premises upon which
Plaintiff alleges he was injured were under the sole control of Plaintiff's employers.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Asa thirty-fourth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that any danger or defect on any premises owned or
controlled by Chrysler was obvious or could have been observed by plaintiffs’ exercise of
reasonable care.
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER 10 COMPLAINT FOR DAMAGESTHIRTY-FIFTH AFFIRMATIVE DEFENSE
Asa thirty-fifth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that any defect or danger on any premises owned or
controlled by Chrysler was trivial
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Asa thirty-sixth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that as to any injury alleged to have occurred on premises
owned or otherwise controlled by Chrysler it warned plaintifis* employers of all dangers on the
premises known to Chrysler
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Asa thirty-seventh separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that it cannot be held liable for the negligence or
misconduct, if any, of independent contractors at Chrysler's premises, based on the doctrine of
peculiar risk or another theory of liability, pursuant to Privette v. Superior Court (1983) 5
Cal.4"689, Smith v. ACandS, Inc. (1994) 31 Cal.App.4" 77, Toland v. Sunland Housing Group,
Inc. (1998) 18 Cal 4" 253, Camargo v. Ljaarda Dairy (2001) 25 Cal.4” 1235, and Hooker v,
Department of Transportation (2002) 27 Cal.4 198,
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Asa thirty-eighth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that all products and materials researched, tested,
studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled,
assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed,
contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for
others, packaged, advertised, and/or which contained or lacked warnings by Chrysler were not
defective in any manner, as said products and materials conformed with the state-of-the-art in
existence at all times mentioned in the complaint.
He
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESTHIRTY-NINTH AFFIRMATIVE DEFENSE
Asa thirty-ninth separate and distinet affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the state of medical and scientific knowledge and
published literature and materials reflecting such state of medical and scientific knowledge, at all
times pertinent hereto, was such that Chrysler neither knew, nor could have known, that the
products in issue presented a foreseeable risk of harm to plaintiffs in the normal and expected use
of said products
FORTIETH AFFIRMATIVE DEFENSE
Asa fortieth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred because the products and materials, which plaintiff’ allege caused the alleged
injuries and damages, conformed to specifications and plans promulgated and approved by the
United States Government,
FORTY-FIRST AFFIRMATIVE DEFENSE
Asa forty-first separate and distinct affirmative defense to the complaint and each cause of
action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, fails to
state a cause of action against Chrysler because the federal government has preempted the field of
law applicable to the products alleged to have caused plaintifis” injuries. The granting of the relief
prayed for in the complaint would impede, impair, frustrate and/or burden the effectiveness of
federal law regulating the field and would violate the Supremacy Clause contained in Article VI,
Clause 2 of the United States Constitution.
FORTY-SECOND AFFIRMATIVE DEFENSE
Asa forty-second separate and distinet affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that the premises and products referred to in the
complaint, if owned, controlled, manufactured, distributed or sold by Chrysler at all, were
designed, fabricated, constructed, maintained, and repaired in compliance with United States
government specifications and/or under the direction, control and authority of federal officers, and
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESthat the hazards associated with the use of asbestos-containing products and materials, if any, were
known equally to the government and therefore the complaint and all causes of action therein, if
any, are barred by the government contractor defense (Boyle v. United Technologies Corp. (1988)
487 U.S. 500, and related authority), and the Defense Production Act of 1950, 50 U.S.C. Section
2061, et seq,, its statutory predecessors, and related authority
FORTY-THIRD AFFIRMATIVE DEFENSE
Asa forty-third separate and distinct affirmative defense to the complaint, and each cause
of action thereof, Chrysler alleges that its alleged actions, which are the subject of the complaint,
were lawful
FORTY-FOURTH AFFIRMATIVE DEFENSE
Asa forty-fourth separate and distinct affirmative defense to the complaint, and each cause
of action thereof, Chrysler alleges that its alleged actions, which are the subject of the complaint,
were justified
FORTY-FIFTH AFFIRMATIVE DEFENSE.
Asa forty-fifth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred against Chrysler by the doctrine of res judicata.
FORTY-SIXTH AFFIRMATIVE DEFENSE
Asa forty-sixth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred against Chrysler by the doctrine of waiver.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Asa forty-seventh separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred against Chrysler by the doctrine of estoppel
He
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESFORTY-EIGHTH AFFIRMATIVE DEFENSE
Asa forty-eighth separate and distinet affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred against Chrysler by the doctrine of laches.
FORTY-NINTH AFFIRMATIVE DEFENSE
Asa forty-ninth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred against Chrysler by the doctrine of unclean hands.
FIFTIETH AFFIRMATIVE DEFENSE
Asa fiftieth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action
thereof, is barred against Chrysler by the doctrine of bad faith.
FIFTY-FIRST AFFIRMATIVE DEFENSE
Asa fifty-first separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that plaintiffs lack standing to sue Chrysler
FIFTY-SECOND AFFIRMATIVE DEFENSE,
Asa fifly-second separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that plaintiffS have improperly split their causes of action
and seek to maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit
previously filed.
FIRTY-THIRD AFFIRMATIVE DEFENSE
Asa fifly-third separate and distinet affirmative defense to the entire complaint, and each
cause of action thereof, Chrysler alleges that it presently has insufficient knowledge or information
on which to form a belief as to whether it may have additional, as yet unstated, defenses available
Chrysler reserves the right to assert additional defenses in the event that they would be
appropriate
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESWHEREFORE, Chrysler prays judgment as follows:
1, That plaintiffs take nothing by way of the complaint,
2. That the present action be dismissed with prejudice:
3. That the court enter judgment in favor of Chrysler and against plaintiff's on each
claim for relief,
4, That an apportionment of fault be made among all parties, and a judgment and
declaration of partial indemnification and contribution be made against all other parties or persons
in accordance with the apportionment of fault;
5. For attorneys’ fees;
6. For costs of suit; and
7. For such other and further relief as this Court may deem just and proper.
Date:: February__9, 2007 THELEN REID BROWN RAYSMAN &
STEINER LLP
By: /s/ Karen A, Henry
Karen A. Henry
Attomeys for Defendant
DAIMLERCHRYSLER CORPORATION
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DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESCHARLES BOUDREAUX and Case No. 07-274029
DEBORAH BOUDREAUX, PROOF OF SERVICE
Plaintiffs,
v.
ADVOCATE MINES, LTD.,
Defendants.
1, the undersigned, declare: that L am, and was at the time of service of the documents herein
referred to, over the age of 18 years, and not a party to the aetion; and Tam employed in the
County of San Francisco, California. My business address is 101 Second Street, San Francisco,
California, 94105
On the date executed below, | electronically served the document via LexisNexis File & Serve
described as:
DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
Website. | declare under the penalty of perjury pursuant to the law of the State of California that
the foregoing us true and correct and was executed on February 9, 2007 at San Francisco, CA
ist Shelly K. Wetheringto
Shelly K, Wetherington
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PROOF OF SERVICE
Preview
JENNIFER A. KUENSTER, CA BAR NO. 104607 ELECTRONICALLY KAREN A. HENRY, CA BAR NO. 157119 THELEN REID BROWN RAYSMAN & STEINER LLP FILED 101 Second Street, Suite 1800 Superior Court of California, San Francisco, California 94105 County of San Francisco Telephone: (415) 371-1200 FEB 09 2007 Facsimile: (415) 371-1211 GORDON PARK-LI, Clerk BY: VANESSA WU Attorneys for Defendant Deputy Clerk DAIMLERCHRYSLER CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO CHARLES BOUDREAUX and DEBORAH _| Case No.: 07-274029 BOUDREAUX, Complaint Filed: January 12, 2007 Plaintiffs, DEFENDANT DAIMLERCHRYSLER CORPORATION’S ANSWER TO VS. COMPLAINT FOR DAMAGES ADVOCATE MINES, LTD., Defendants. Defendant DaimlerChrysler Corporation (hereinafter referred to as "Chrysler") hereby answers plaintiffs' unverified complaint for personal injury ("complaint") as follows: GENERAL DENIAL Chrysler generally denies each and every allegation of plaintiffs’ complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Asa first separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that this Court lacks jurisdiction over this action. Hy iff C:\Documents and Settings\swetheringlo\Desktop,BOUDREAUX ATC-DC.DOC -l- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER 10) COMPLAINT FOR DAMAGESSECOND AFFIRMATIVE DEFENSE ‘Asa second separate and distinct affirmative defense, Chrysler alleges that the complaint, and each cause of action thereof, fails to state facts sufficient to constitute a claim upon which relief be granted THIRD AFFIRMATIVE DEFENSE Asa third separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the allegations of the complaint, and each cause of action thereof, are uncertain, vague and ambiguous. FOURTH AFFIRMATIVE DEFENSE Asa fourth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs have failed to join all proper parties, or alternatively, has misjoined the parties to this action. FIFTH AFFIRMATIVE DEFENSE Asa fifth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint and each cause of action thereof should be dismissed pursuant to sections 583.210 through 583.250, and 583.410 through 583.430 of the California Code of Civil Procedure, and other applicable code sections. SIXTH AFFIRMATIVE DEFENSE Asa sixth separate and distinct affirmative defense, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred by the applicable limitations periods set forth in sections 337(1}-(3), 337. 1(@)-(£), 337. 15(@)-(g), 338(a)-(k), 339(1)-(3), 340(1)(5), 340.2(a)-(c), 343, 353(a}-(d), 361 and 366.1 of the California Code of Civil Procedure, and other applicable statutes of limitations. SEVENTH AFFIRMATIVE DEFENSE, ‘Asa seventh separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs” amendment naming Chrysler as a “Doe” clhcringiiDeshlop BOUDREAUX ATC-DCDOC 2 DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESdefendant is improper pursuant to section 474 of the California Code of Civil Procedure because plaintiffs were not truly ignorant of Chrysler’s identity and/or claims against Chrysler at the time of filing the initial complaint, Alll claims against Chrysler are thus barred under the applicable limitations period set forth above. EIGHTH AFFIRMATIVE DEFENSE As an eighth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint and each cause of action thereof, is barred against defendant by the provisions of section 3601, et seq., of the California Labor Code and Section 905(b), Title 33 of the United States Code, and related authority NINTH AFFIRMATIVE DEFENSE, Asa ninth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the causes of action, if any, asserted and set forth in the complaint for negligence per se are barred by California Labor Code Section 6304.5, and related authority. TENTH AFFIRMATIVE DEFENSE Asan tenth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that it does not have, and never has had, a successor, successor-in-business, successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor, predecessor-in-business, predecessor-in-product line or portion thereof, predecessor in-interest, parent, subsidiary or whole or partial ownership or membership relationship with the entity upon which plaintiffs premises their allegations of liability. ELEVENTH AFFIRMATIVE DEFENSE As an eleventh separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that to the extent that the complaint alleges a "market share" or “enterprise” theory of liability, it fails to state facts sufficient to constitute a cause of action against Chrysler slhcringtiDeshlop BOUDREAUX ATC-DCDOC 3 DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGES‘TWELFTH AFFIRMATIVE DEFENSE Asa twelfth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that it did not have a sufficient market share with respect to the products and materials which plaintifi’s allege caused the alleged injuries and damages. Chrysler may not be held liable to plaintiff’ for any alleged share of said market, or upon any theory premised upon market-share liability. THIRTEENTH AFFIRMATIVE DEFENSE Asa thirteenth separate and distinct affirmative defense to the entire complaint and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred on the grounds that plaintiffs and/or plaintiffs’ employers were sophisticated users or buyers of the products or materials referred to in the complaint. FOURTEENTH AFFIRMATIVE DEFENSE Asa fourteenth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the damages alleged by plaintiffs, if any, were proximately caused, either in whole or in part, by persons, firms, entities or others not within the control of Chrysler. FIFTEENTH AFFIRMATIVE DEFENSE Asa fifteenth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs failed to exercise reasonable diligence in mitigating damages allegedly sustained as a result of the alleged acts of Chrysler. SIXTEENTH AFFIRMATIVE DEFENSE Asa sixteenth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that if plaintiffs sustained injuries or damages attributable to the use of any product researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which C:Documents snd Selling‘swetheringle)Desklop: BOUDREAUX ATC-DGDOC ~~ DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGEScontained or lacked warnings by Chrysler which allegations are expressly denied, the injuries or damages were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or improper maintenance of the product by plaintiffs or by others, SEVENTEENTH AFFIRMATIVE DEFENSE Asa seventeenth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that at all times mentioned, plaintiffs consented to the alleged acts of Chrysler. EIGHTEENTH AFFIRMATIVE DEFENSE. Asa eighteenth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that at all times mentioned, plaintiffs had knowledge of the risks of the matters set forth in the complaint, as well as the magnitude of the risks, and thereafter, knowingly, willingly, and voluntarily assumed those risks NINETEENTH AFFIRMATIVE DEFENSE Asan nineteenth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that claims asserted by plaintiffs were proximately caused by a superseding, intervening cause. TWENTIETH AFFIRMATIVE DEFENSE As a twentieth separate and distinct affirmative defense to the entire complaint and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred on the grounds that the products or materials referred to in the complaint, if any, were not a substantial factor in bringing about the injuries and damages alleged by plaintiffs. TWENTY-FIRST AFFIRMATIVE DEFENSE As an twenty-first separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs were negligent and unreasonable in or about the things alleged in the complaint. Any damages which plaintiff’ seek to recover from heringeiDeshop BOUDREAUX. ATC-DE.DOC DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESChrysler must be reduced in proportion to the extent that plaintifiis’ own negligence contributed to plaintiffs’ injuries or damages TWENTY-SECOND AFFIRMATIVE DEFENSE Asa twenty-second separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs were negligent, legally responsible, or otherwise at fault for the injuries or damages allegedly sustained by plaintiffs and that Chrysler is not liable for plaintiffs’ proportionate share of fault, Chrysler requests that in the event of a finding of any liability in favor of plaintiffs, or in the event of a settlement or judgment against Chrysler, an apportionment of fault be made among all parties, and a judgment and declaration of partial indemnification and contribution be made against all other parties or persons in accordance with the apportionment of fault. TWENTY-THIRD AFFIRMATIVE DEFENSE, Asa twenty-third separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler is informed and believes, and based thereon alleges that plaintiff claims workers’ compensation benefits for the injuries claimed herein from one or more of plaintif?’s employers or the employers’ insurance carriers, and that any award of damages, [judgment or settlement in favor of plaintiff against Chrysler should be reduced by the amount paid, or to be paid in the future, by those employers or their workers’ compensation carrier(s) TWENTY-FOURTH AFFIRMATIVE DEFENSE As a twenty-fourth separate and distinct affirmative defense, Chrysler alleges that if it is determined to be liable to plaintiffs, such liability is based on conduct which is passive and secondary to the active and primary wrongful conduct of other defendants to this action. Chrysler is, therefore, entitled to total, equitable indemnity from such other defendants ‘TWENTY-FIFTH AFFIRMATIVE DEFENSE As a twenty-fifth separate and distinet affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that California Civil Code sections 1431.1 through clhcringiDeshlop BOUDREAUX ATC-DCDOC__-6- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGES143.5, known as the Fair Responsibility Act of 1986, are applicable at least in part to the present action and to certain claims therein, and based upon principles of comparative fault, the liability, if any, of Chrysler for non-economic damages shall be several only and shall not be joint. Chrysler, if liable at all, shall be liable only for the amount of non-economic damages allocated to Chrysler in direct proportion to Chrysler's percentage of fault, and a separate and several judgment shall be rendered against Chrysler for non-economic damages, if any. TWENTY-SIXTH AFFIRMATIVE DEFENSE Asa twenty-sixth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs’ injuries or damages, if any, occurred in the course and scope of plaintiffs’ employment, and that one or more of plaintiffs’ employers, none of which was Chrysler was negligent and careless in or about the matters alleged in the complaint, and that such negligence and carelessness was a proximate cause of any injuries or damages suffered by plaintiffs, if any were suffered TWENTY-SEVENTH AFFIRMATIVE DEFENSE As a twenty-seventh separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that one or more of plaintiffs’ employers, none of which was Chrysler knowingly, willingly, and voluntarily entered into and engaged in or about the matters alleged in the complaint, and knowingly, willingly, and voluntarily assumed all risks incident to these matters. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Asa twenty-eighth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs’ complaint fails to state facts sufficient to entitle plaintiffs to an award of punitive or exemplary damages against Chrysler. ‘TWENTY-NINTH AFFIRMATIVE DEFENSE Asa twenty-ninth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs are not entitled to an award of punitive slhcringiiDeshlop BOUDREAUX ATC-DCDOC___-7- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESor exemplary damages in this action. Such an award would be unconstitutional unless Chrysler is accorded the safeguards provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution THIRTIETH AFFIRMATIVE DEFENSE Asa thirtieth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that to the extent plaintiff’ claims arise out of contract, plaintiffs’ claims do not state facts sufficient to entitle plaintiff’ to an award of punitive or exemplary damages against Chrysler. THIRTY-FIRST AFFIRMATIVE DEFENSE Asa thirty-first separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs, at all times mentioned, were not in privity of contract with Chrysler and that said lack of privity bars any recovery by plaintifi’s against Chrysler under any theory of breach of warranty THIRTY-SECOND AFFIRMATIVE DEFENSE Asa thirty-second separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs failed to give adequate and timely notice of any alleged breach of warranty. THIRTY-THIRD AFFIRMATIVE DEFENSE Asa thirty-third separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, Chrysler alleges that at all times material herein, the premises upon which Plaintiff alleges he was injured were under the sole control of Plaintiff's employers. THIRTY-FOURTH AFFIRMATIVE DEFENSE Asa thirty-fourth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that any danger or defect on any premises owned or controlled by Chrysler was obvious or could have been observed by plaintiffs’ exercise of reasonable care. C:Documents snd Selling‘swetheringle\Desklop BOUDREAUX ATC-DCDOC___-8- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER 10 COMPLAINT FOR DAMAGESTHIRTY-FIFTH AFFIRMATIVE DEFENSE Asa thirty-fifth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that any defect or danger on any premises owned or controlled by Chrysler was trivial THIRTY-SIXTH AFFIRMATIVE DEFENSE Asa thirty-sixth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that as to any injury alleged to have occurred on premises owned or otherwise controlled by Chrysler it warned plaintifis* employers of all dangers on the premises known to Chrysler THIRTY-SEVENTH AFFIRMATIVE DEFENSE Asa thirty-seventh separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that it cannot be held liable for the negligence or misconduct, if any, of independent contractors at Chrysler's premises, based on the doctrine of peculiar risk or another theory of liability, pursuant to Privette v. Superior Court (1983) 5 Cal.4"689, Smith v. ACandS, Inc. (1994) 31 Cal.App.4" 77, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal 4" 253, Camargo v. Ljaarda Dairy (2001) 25 Cal.4” 1235, and Hooker v, Department of Transportation (2002) 27 Cal.4 198, THIRTY-EIGHTH AFFIRMATIVE DEFENSE Asa thirty-eighth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that all products and materials researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised, and/or which contained or lacked warnings by Chrysler were not defective in any manner, as said products and materials conformed with the state-of-the-art in existence at all times mentioned in the complaint. He C:Documents snd Selling‘swetheringle)Desklop BOUDREAUX ATC-DCDOC___-9- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESTHIRTY-NINTH AFFIRMATIVE DEFENSE Asa thirty-ninth separate and distinet affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the state of medical and scientific knowledge and published literature and materials reflecting such state of medical and scientific knowledge, at all times pertinent hereto, was such that Chrysler neither knew, nor could have known, that the products in issue presented a foreseeable risk of harm to plaintiffs in the normal and expected use of said products FORTIETH AFFIRMATIVE DEFENSE Asa fortieth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred because the products and materials, which plaintiff’ allege caused the alleged injuries and damages, conformed to specifications and plans promulgated and approved by the United States Government, FORTY-FIRST AFFIRMATIVE DEFENSE Asa forty-first separate and distinct affirmative defense to the complaint and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, fails to state a cause of action against Chrysler because the federal government has preempted the field of law applicable to the products alleged to have caused plaintifis” injuries. The granting of the relief prayed for in the complaint would impede, impair, frustrate and/or burden the effectiveness of federal law regulating the field and would violate the Supremacy Clause contained in Article VI, Clause 2 of the United States Constitution. FORTY-SECOND AFFIRMATIVE DEFENSE Asa forty-second separate and distinet affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the premises and products referred to in the complaint, if owned, controlled, manufactured, distributed or sold by Chrysler at all, were designed, fabricated, constructed, maintained, and repaired in compliance with United States government specifications and/or under the direction, control and authority of federal officers, and lhcringliDeshlop BOUDREAUX ATC-DCDOC__-10- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESthat the hazards associated with the use of asbestos-containing products and materials, if any, were known equally to the government and therefore the complaint and all causes of action therein, if any, are barred by the government contractor defense (Boyle v. United Technologies Corp. (1988) 487 U.S. 500, and related authority), and the Defense Production Act of 1950, 50 U.S.C. Section 2061, et seq,, its statutory predecessors, and related authority FORTY-THIRD AFFIRMATIVE DEFENSE Asa forty-third separate and distinct affirmative defense to the complaint, and each cause of action thereof, Chrysler alleges that its alleged actions, which are the subject of the complaint, were lawful FORTY-FOURTH AFFIRMATIVE DEFENSE Asa forty-fourth separate and distinct affirmative defense to the complaint, and each cause of action thereof, Chrysler alleges that its alleged actions, which are the subject of the complaint, were justified FORTY-FIFTH AFFIRMATIVE DEFENSE. Asa forty-fifth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred against Chrysler by the doctrine of res judicata. FORTY-SIXTH AFFIRMATIVE DEFENSE Asa forty-sixth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred against Chrysler by the doctrine of waiver. FORTY-SEVENTH AFFIRMATIVE DEFENSE Asa forty-seventh separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred against Chrysler by the doctrine of estoppel He CsDocuments snd Selling‘swetheringle\Desklop: BOUDREAUX ATC-DCDOC ~~ DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESFORTY-EIGHTH AFFIRMATIVE DEFENSE Asa forty-eighth separate and distinet affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred against Chrysler by the doctrine of laches. FORTY-NINTH AFFIRMATIVE DEFENSE Asa forty-ninth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred against Chrysler by the doctrine of unclean hands. FIFTIETH AFFIRMATIVE DEFENSE Asa fiftieth separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that the entire complaint, and each cause of action thereof, is barred against Chrysler by the doctrine of bad faith. FIFTY-FIRST AFFIRMATIVE DEFENSE Asa fifty-first separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffs lack standing to sue Chrysler FIFTY-SECOND AFFIRMATIVE DEFENSE, Asa fifly-second separate and distinct affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that plaintiffS have improperly split their causes of action and seek to maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. FIRTY-THIRD AFFIRMATIVE DEFENSE Asa fifly-third separate and distinet affirmative defense to the entire complaint, and each cause of action thereof, Chrysler alleges that it presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unstated, defenses available Chrysler reserves the right to assert additional defenses in the event that they would be appropriate CsDocuments snd Selling‘swetheringle\Desklop BOUDREAUX ATC-DCDOC___-12- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESWHEREFORE, Chrysler prays judgment as follows: 1, That plaintiffs take nothing by way of the complaint, 2. That the present action be dismissed with prejudice: 3. That the court enter judgment in favor of Chrysler and against plaintiff's on each claim for relief, 4, That an apportionment of fault be made among all parties, and a judgment and declaration of partial indemnification and contribution be made against all other parties or persons in accordance with the apportionment of fault; 5. For attorneys’ fees; 6. For costs of suit; and 7. For such other and further relief as this Court may deem just and proper. Date:: February__9, 2007 THELEN REID BROWN RAYSMAN & STEINER LLP By: /s/ Karen A, Henry Karen A. Henry Attomeys for Defendant DAIMLERCHRYSLER CORPORATION lhcringtiDeshlop BOUDREAUX ATC-DCDOC_-13- DEFENDANT DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT FOR DAMAGESCHARLES BOUDREAUX and Case No. 07-274029 DEBORAH BOUDREAUX, PROOF OF SERVICE Plaintiffs, v. ADVOCATE MINES, LTD., Defendants. 1, the undersigned, declare: that L am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the aetion; and Tam employed in the County of San Francisco, California. My business address is 101 Second Street, San Francisco, California, 94105 On the date executed below, | electronically served the document via LexisNexis File & Serve described as: DAIMLERCHRYSLER CORPORATION'S ANSWER TO COMPLAINT on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve Website. | declare under the penalty of perjury pursuant to the law of the State of California that the foregoing us true and correct and was executed on February 9, 2007 at San Francisco, CA ist Shelly K. Wetheringto Shelly K, Wetherington CADocuments snd SellingewotheringlDeshlop: BOUDREAUX ATC-DCDOC_-L- PROOF OF SERVICE