Answer: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                BOWMAN AND BROOKE LLP
Anthony S. Thomas, SBN 149284

879 West 190" Street ELECTRONICALLY
Suite 700
Gardena, California 90248-4227 cutee Poona
re NO) S119 County of San Francisco
ax -

GORDON PRE Clerk

Attorneys for Defendant “LI, Clerl
BY: CHRISTLE ARRIOLA

FORD MOTOR COMPANY Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

CASE NO.: CGC-07-274230
DEFENDANT FORD MOTOR
COMPANY'S ANSWER TO COMPLAINT
FOR DAMAGES

Complaint Filed: 06/06/2007

LOUIS CASTAGNA,
Plaintiff,
VS.
ASBESTOS DEFENDANTS (BOP),

Defendants.

Defendant Ford Motor Company (hereinafter referred to as Ford"), sued herein
as DOE 3, hereby answers plaintiffs’ unverified complaint for personal injury
(‘complaint") as follows:

GENERAL DENIAL
1. Ford generally denies each and every allegation of plaintiffs' complaint.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE

2. As a first separate and distinct affirmative defense to the entire complaint,
and each cause of action thereof, Ford alleges that this Court lacks jurisdiction over
this action.
fit
iff

442220 1

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESSECOND AFFIRMATIVE DEFENSE

3. As a second separate and distinct affirmative defense, Ford 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

4. As a third separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the allegations of the
complaint, and each cause of action thereof, are uncertain, vague and ambiguous.

FOURTH AFFIRMATIVE DEFENSE

5. As a fourth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs have failed to
join all proper parties, or alternatively, has misjoined the parties to this action

FIFTH AFFIRMATIVE DEFENSE

6. As a fifth separate and distinct affirmative defense to the entire complaint,
and each cause of action thereof, Ford 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

7. As a sixth separate and distinct affirmative defense, Ford 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(a)-(f), 337.15(a)-(g), 338(a)-
(k), 339(1)-(3), 340(1)-(5), 340.2(a)-(¢), 343, 353(a)-(d), 361 and 366.1 of the California
Code of Civil Procedure, and other applicable statutes of limitations.

SEVENTH AFFIRMATIVE DEFENSE

8. As a seventh separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs’ amendment

naming Ford as a "Doe" defendant is improper pursuant to section 474 of the California

442220 2

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESCode of Civil Procedure because plaintiffs were not truly ignorant of Ford's identity
and/or claims against Ford at the time of filing the initial complaint. All claims against
Ford are thus barred under the applicable limitations period set forth above.
EIGHTH AFFIRMATIVE DEFENSE
9. As an eighth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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.
NINTH AFFIRMATIVE DEFENSE
10. As a ninth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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 Ford.
TENTH AFFIRMATIVE DEFENSE
11. As a tenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that it did not have a
sufficient market share with respect to the products and materials which plaintiffs allege
caused the alleged injuries and damages. Ford may not be held liable to plaintiffs for
any alleged share of said market, or upon any theory premised upon market-share
liability.
ELEVENTH AFFIRMATIVE DEFENSE
12. As an eleventh separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the damages alleged by
plaintiffs, if any, were caused, either in whole or in part, by persons, firms or entities

other than Ford.

442220 3

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESTWELFTH AFFIRMATIVE DEFENSE

13. As a twelfth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs were negligent
and unreasonable in or about the things alleged in the complaint. Any damages which
plaintiffs seek to recover from Ford must be reduced in proportion to the extent that
plaintiffs’ own negligence contributed to plaintiffs’ injuries or damages.

THIRTEENTH AFFIRMATIVE DEFENSE

14. As a thirteenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs failed to
exercise reasonabie diligence in mitigating damages allegedly sustained as a result of
the alleged acts of Ford.

FOURTEENTH AFFIRMATIVE DEFENSE

15. As a fourteenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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, assembied, 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 Ford 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.

FIFTEENTH AFFIRMATIVE DEFENSE

16. As a fifteenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that at all times mentioned,
plaintiffs consented to the alleged acts of Ford.
itt
fit

442220 4
DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESSIXTEENTH AFFIRMATIVE DEFENSE
17. As a sixteenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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.
SEVENTEENTH AFFIRMATIVE DEFENSE
18. As a seventeenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs were negligent,
legally responsible, or otherwise at fault for the injuries or damages allegedly sustained
by plaintiffs and that Ford is not liable for plaintiffs' proportionate share of fault. Ford
requests that in the event of a finding of any liability in favor of plaintiffs, or in the event
of a setthement or judgment against Ford, 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.
EIGHTEENTH AFFIRMATIVE DEFENSE

19. As an eighteenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that any injuries or damages
suffered by plaintiffs, if any, were proximately caused by the acts or omissions of others
not within the control of Ford.

NINETEENTH AFFIRMATIVE DEFENSE

20. As a nineteenth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that claims asserted by
plaintiffs were proximately caused by a superseding, intervening cause.

TWENTIETH AFFIRMATIVE DEFENSE

21. As a twentieth separate and distinct affirmative defense to the entire
complaint and each cause of action thereof, Ford alleges that the entire complaint, and

each cause of action thereof, is barred on the grounds that the products or materials

442220 5

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESreferred 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

22. As a twenty-first separate and distinct affirmative defense, Ford 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. Ford is, therefore, entitled to total, equitable indemnity from
such other defendants.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. As a twenty-second separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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 Ford 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-THIRD AFFIRMATIVE DEFENSE

24. ‘As a twenty-third separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that one or more of plaintiffs’
employers, none of which was Ford knowingly, willingly, and voluntarily entered into
and engaged in or about the matters alleged in the complaint, and knowingly, willingly,
and voluntarily assumed ail risks incident to these matters.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. As a twenty-fourth separate and distinct affirmative defense to the entire
Complaint and each cause of action thereof, Ford 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.

442220 6

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESTWENTY-FIFTH AFFIRMATIVE DEFENSE
26. As a twenty-fifth separate and distinct affirmative defense to the entire,
Complaint, and each cause of action thereof, Ford alleges that the entire Complaint,
and each cause of action thereof, is barred against Ford by the doctrine of waiver.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. As a twenty-sixth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs' complaint fails
to state facts sufficient to entitle plaintiffs to an award of punitive or exemplary damages
against Ford.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. As a twenty-seventh separate and distinct affirmative defense to the
entire complaint, and each cause of action thereof, Ford alleges that plaintiffs are not
entitled to an award of punitive or exemplary damages in this action. Such an award
would be unconstitutional unless Ford 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.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. As a twenty-eighth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that to the extent plaintiffs’
claims arise out of contract, plaintiffs’ claims do not state facts sufficient to entitle
plaintiffs to an award of punitive or exemplary damages against Ford.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. As a twenty-ninth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs, at all times
mentioned, were not in privity of contract with Ford and that said lack of privity bars any
recovery by plaintiffs against Ford under any theory of breach of warranty.

Vit
iit

442220 7

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESTHIRTIETH AFFIRMATIVE DEFENSE

31. As a thirtieth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs failed to give
adequate and timely notice of any alleged breach of warranty.

THIRTY-FIRST AFFIRMATIVE DEFENSE

32. As a thirty-first separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, Ford alleges that at all times material
herein, the premises upon which plaintiffs allege they were injured were under the sole
contro! of plaintiffs’ employers.

THIRTY-SECOND AFFIRMATIVE DEFENSE

33. As a thirty-second separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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 Ford were nat
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.

THIRTY-THIRD AFFIRMATIVE DEFENSE

34. As a thirty-third separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the entire complaint, and
each cause of action thereof, is barred because the products and materials, which
plaintiffs allege caused the alleged injuries and damages, conformed to specifications
and plans premuigated and approved by the United States Government.
THIRTY-FOURTH AFFIRMATIVE DEFENSE

35. As a thirty-fourth separate and distinct affirmative defense to the

complaint and each cause of action thereof, Ford alleges that the entire complaint, and

442220 8

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESeach cause of action thereof, fails to state a cause of action against Ford because the
federal government has preempted the field of law applicable to the products alleged to
have caused plaintiffs’ 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.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
36. As a thirty-fifth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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 Ford
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.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
37. Asa thirty-sixth separate and distinct affirmative defense to the complaint,
and each cause of action thereof, Ford alleges that its alleged actions, which are the
subject of the complaint, were lawful.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

38. As a thirty-seventh separate and distinct affirmative defense to the
complaint, and each cause of action thereof, Ford alleges that its alleged actions,
which are the subject of the complaint, were justified.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

39. As a thirty-eighth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the entire complaint, and
each cause of action thereof, is barred against Ford by the doctrine of res judicata.
iff
Vit
iit

442220 9

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESTHIRTY-NINTH AFFIRMATIVE DEFENSE

40. As a thirty-ninth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the entire complaint, and
each cause of action thereof, is barred against Ford by the doctrine of waiver.

FORTIETH AFFIRMATIVE DEFENSE

44 As a fortieth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the entire complaint, and
each cause of action thereof, is barred against Ford by the doctrine of estoppel.

FORTY-FIRST AFFIRMATIVE DEFENSE

42. As a forty-first separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the entire complaint, and
each cause of action thereof, is barred against Ford by the doctrine of laches.

FORTY-SECOND AFFIRMATIVE DEFENSE

43. As a forty-second separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the entire complaint, and
each cause of action thereof, is barred against Ford by the doctrine of unclean hands.

FORTY-THIRD AFFIRMATIVE DEFENSE

44. As a forty-third separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that the entire complaint, and
each cause of action thereof, is barred against Ford by the doctrine of bad faith.

FORTY-FOURTH AFFIRMATIVE DEFENSE

45. As a forty-fourth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs lack standing to
sue Ford.

‘fl
iff
itt
fit

442220 10

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESFORTY-FIFTH AFFIRMATIVE DEFENSE
46. As a forty-fifth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that any danger or defect on
any premises owned or controlled by Ford was obvious or could have been observed
by plaintiffs’ exercise of reasonable care.
FORTY-SIXTH AFFIRMATIVE DEFENSE
47. As a forty-sixth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that any defect or danger on
any premises owned or controlled by Ford was trivial.

FORTY-SEVENTH AFFIRMATIVE DEFENSE

48. As a forty-seventh separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that as to any injury alleged
to have occurred on premises owned or otherwise controlled by Ford it warned
plaintiffs’ employers of all dangers on the premises known to Ford.

FORTY-EIGHTH AFFIRMATIVE DEFENSE

49. As a forty-eighth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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.

FORTY-NINTH AFFIRMATIVE DEFENSE

50. As a forty-ninth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that California Civil Code
sections 1431.1 through 1431.5, 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 Ford for non-economic
damages shail be several only and shall not be joint. Ford, if liable at all, shall be liable
only for the amount of non-economic damages allocated to Ford in direct proportion to

fit

442220 11

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESFord's percentage of fault, and a separate and several judgment shall be rendered
against Ford for non-economic damages, if any.
FIFTIETH AFFIRMATIVE DEFENSE

51. As a fiftieth separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that based on information
and belief, Ford alleges that during all times relevant hereto, plaintiffs were in the
course and scope of piaintiffs' employment; that at said time and place said employer
had in force and effect a policy; plaintiffs had received benefits under the terms of said
policy; that any injuries and/or damages sustained by the plaintiffs, if any, were
proximately caused by the negligence of said employer; that any recovery in this case
should be reduced by the total amount of all payments made pursuant to plaintiffs’
claim for workers’ compensation; and that the doctrine as set forth in Witt v. Jackson
should apply."

FIETY-FIRST AFFIRMATIVE DEFENSE

52. As a fifty- first separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford alleges that plaintiffs' claim is barred
against answering defendant pursuant to the workers compensation exclusivity
provisions in the Labor Code (Labor Code section 3600, et seq.)."

FIFTY-SECOND AFFIRMATIVE DEFENSE

53. As a fifty-second separate and distinct affirmative defense to the entire
complaint, and each cause of action thereof, Ford 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. Ford reserves the right to assert
additional defenses in the event that they would be appropriate.

WHEREFORE, Ford prays for judgment as follows:

1. That plaintiffs take nothing by way of the complaint;

2. That the present action be dismissed with prejudice;

fit

442220 12

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGES3. That the court enter judgment in favor of Ford and against plaintiffs on

each claim for relief;

and declaration of partial indemnification and contribution be made against all other

4, That an apportionment of fault be made among all parties, and a judgment

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.
Dated: February 15, 2008 BOWMAN AND BROOKE LLP

1442220

By: —/s/ Anthony S. Thomas

Anthony S. Thomas

Attorneys for Defendant

FORD MOTOR COMPANY
Bowman and Brooke LLP

879 West 190" Street, Suite 700
Gardena, CA 90248

(310) 768-3068

State Bar No. 149284

13

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGESPROOF OF SERVICE
STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

| am employed in the County of Los Angeles, State of California. | am over the
age of 18 and not a party to the within action; my business address is 879 West 190"
Street, Suite 700, Gardena, California 90248-4227; my Email address is
lynn.evanovich@bowmanandbrooke.com.

On February 16, 2008, | served the foregoing document described as DEFENDANT
FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGES on all
interested parties in this action:

(X) by placing ( } the original 00) a true copy thereof to be distributed as follows.

David R. Donadio, Esq. BERRY & BERRY
BRAYTON PURCELL P.O. Box 16070

222 Rush Landing Road 2930 Lakeshore Avenue
P.O. Box 6169 Oakland, CA 94610-3614
Novato, CA 94948-6169

(X) BY ELECTRONIC SERVICE:

(X) | caused a true and correct copy of such document to be electronically served on
counsel of record as shown above by transmission to Lexis-Nexis File and Serve

Executed on February 16, 2008, at Gardena, California.

(X) (State) | deciare under penalty of perjury under the laws of the State of California
that the above is true and correct.

() (Federal) | declare that | am employed in the office of a member of the bar of this
court at whose direction the service was made.

/s/ Lynn Evanovich
Lynn Evanovich
lynn.evanovich@bowmanandbrooke.com

442220 14

DEFENDANT FORD MOTOR COMPANY'S ANSWER TO COMPLAINT FOR DAMAGES