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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Ce DDH HN BR BR Dm

R PP Pw BR RR Re eB ee oe ee oe Re ee
BRRRRBBRR BSCR BARRE TRE S

Stephen J. Foley, Esq., SBN 220752

Lori A. Cataldo, Esq. SBN 218533 ELECTRONICALLY
Foley & Mansfield P.L.L.P. FILED
1111 Broadway, 10° Floor Superior Court of California,
Oakland, CA 94607 County of San Francisco
Telephone: (510) 590-9500 JAN 15 2008
Facsimile: (510) 590-9595 GORDON PARK-LI, Clerk
BY: EDNALEEN JAVIER-LACSON
Attorneys for Defendant Deputy Clerk
STA-RITE INDUSTRIES, LLC, sued herein as
DOE #4
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, ) Case No. CGC-07-274230

)

Plaintiff, ) “Asbestos-Related Case”

)
vs. ) ANSWER OF STA-RITE INDUSTRIES, LLC

) TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOS DEFENDANTS (Bé¢P), etal, —} ASBESTOS

)

Defendants. )
)

DEFENDANT STA-RITE INDUSTRIES, LLC, sued herein as DOE #4 (hereinafter
“Defendant”) answers the Complaint herein on its own behalf and on behalf of no other defendant or
entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies generally
each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by the Plaintiff therein states
facts sufficient to constitute a cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

To the extent the Complaint asserts Defendant’s alleged “market share” liability, or “enterprise”
liability, the Complaint fails to state facts sufficient to constitute a cause of action against Defendant.
Mt
il

1
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSoC fF TKR Oh RR OMe

Dit
m= oS 0 ee AQ A Hw FF DB DW eS FS

THIRD AFFIRMATIVE DEFENSE
Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations, including but not limited to California Code of Civil Procedure, sections 338, 339, 340,
340.2, 361 and 343 and California Commercial Code, section 2725.
FOURTH AFFIRMATIVE DEFENSE

Plaintiff unreasonably delayed in bringing this action, without good cause therefore, and thereby
has prejudiced Defendant as a direct and proximate result of such delay; accordingly, his action is barred
by laches and by sections 583.210, 583.310 and 583.410 of the Code of Civil Procedure.

FIFTH AFFIRMATIVE DEFENSE

Plaintiff was negligent in and about the matters alleged in the Complaint and in each alleged
cause of action; this negligence proximately caused, in whole or in part, the damages alleged in the
Complaint. In the event Plaintiff is entitled to any damages, the amount of these damages should be
reduced by the comparative fault of Plaintiff and any person whose negligent acts or omissions are
imputed to Plaintiff.

SIXTH AFFIRMATIVE DEFENSE

Plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the risks and
hazards, if any, referred to in the Complaint and each alleged cause of action, and this undertaking
proximately caused and contributed to any loss, injury or damages incurred by Plaintiff.

SEVENTH AFFIRMATIVE DEFENSE

Defendant alleges that as a result of the acts, conduct, and omissions of Plaintiff and his agents,
each cause of action presented in the Complaint has been waived.

EIGHTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiffs tobacco use is an assumption of a known tisk, and that said
conduct of Plaintiff proximately caused and contributed to their injuries and damages, if any, and
therefore the recovery of Plaintiff, if any, is barred or proportionately reduced.
iit
iif
iit

2
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSCe eM DR Rh BD DM

NINTH AFFIRMATIVE DEFENSE

Defendant alleges that consumption of tobacco products is negligent per se because it is
“inherently unsafe and consumed with the ordinary community knowledge of its danger,” as expressed
in Richards v. Owens-Illinois, Inc, (1997) 14 Cal.4th 985, California Civil Code § 1714.45(a)(1). Thus,
the said negligence of Plaintiff proximately caused and contributed to his injuries and damages, if any,
and therefore, the recovery of Plaintiff, if any, is barred or proportionately reduced.

TENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by Plaintiff was proximately caused by the negligent or
willful acts or omissions of parties whom Defendant neither controlled nor had the right to control, and
was not proximately caused by any acts, omissions or other conduct of Defendant.

ELEVENTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by Plaintiff or by
others; the misuse, abuse or alteration was not reasonably foresecable to Defendant, and proximately
caused any loss, injury or damages incurred by Plaintiff.

TWELFTH AFFIRMATIVE DEFENSE

Defendant alleges that its products were manufactured, produced, supplied, sold and distributed
in mandatory conformity with specifications promulgated by the United States Government under its
war powers, as set forth in the United States Constitution, and that any recovery by Plaintiff on the
Complaint on file herein is barred in consequence of the exercise of those sovereign powers.

THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages; accordingly, the
amount of damages to which Plaintiff is entitled, if any, should be reduced by the amount of damages
which would have otherwise been mitigated.

FOURTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the Complaint because the
Complaint and each alleged cause of action against Defendant are barred by the provisions of California
Labor Code, section 3600, et seq.

Mt

3
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSon

_
o

it
12
13
14
15
16
17
18
19
20
aw
22
23
24
25
26
27
28

co RP YN DR HA RB BW DN

PIFTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff was
employed and was entitled to receive Workers’ Compensation benefits from his employer’s workers’

compensation insurance carrier; that all of Plaintiff's employers, other than Defendant, were negligent in

and about the matters referred to in said Complaint, and that such negligence on the part of said
employers proximately and concurrently contributed to the happening of the accident and to the loss or
damage complained of by Plaintiff, if any there were; and that by reason thereof Defendant is entitled to
set off and/or reduce any such workers’ compensation benefits received or to be received by Plaintiff
against any judgment which may be rendered in favor of Plaintiff. (Witt v. Jackson, 57 Cal.2d 57, 366
P.2d 641)

SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff's employers
were negligent in and about the matters referred to in said Complaint, and that such negligence on the
part of said employers proximately and concurrently contributed to any loss or damage, including non-
economic damages, complained of by Plaintiff, if any there were; and that Defendant is not liable for
said employers’ proportionate share of non-economic damages.

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, parties other than this
Defendant were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said parties proximately and concurrently contributed to any loss or damage,
including non-economic damages, complained of by Plaintiff, if any there were; and that Defendant

herein shall not be liable for said parties’ proportionate share of non-economic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint, all of Plaintiff's
employers, other than Defendant, were sophisticated users of asbestos-containing products and said
employers’ negligence in providing the product to its employees in a negligent, careless and reckless
manner was a superseding cause of Plaintiff's injuries, if any.

fil

4
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSCe ya DAH F WN

BN mete
2 3A Hm FF O&O MY Bw SF 6 He AR mH RB OHO DP mm S

NINETEENTH AFFIRMATIVE DEFENSE

If Plaintiff has received, or in the future may receive, Worker’s Compensation benefits from
Defendant under the Labor Code of the State of California as a consequence of the alleged industrial
injury referred to in the Complaint, and in the event Plaintiff is awarded damages against Defendant,
Defendant claims a credit against this award to the extent that Defendant is barred from enforcing his
tights to reimbursement for Worker’s Compensation benefits that Plaintiff has received or may in the
future receive.

TWENTIETH AFFIRMATIVE DEFENSE

If Plaintiff has received, or in the future may receive Worker’s Compensation benefits from
Defendant under the Labor Code of the State of California as a consequence of the alleged industrial
injury referred to in the Complaint, Defendant demands repayment of any such Worker’s Compensation
benefits in the event that Plaintiff recover tort damages as a result of the industrial injury allegedly
involved here. Although Defendant denies the validity of Plaintiff’s claims, in the event those claims
are held valid and not barred by the statute of limitations or otherwise, Defendant asserts that cross-
demands for money have existed between Plaintiff and Defendant and the demands are compensated, so
far as they equal each other, pursuant to California Code of Civil Procedure section 431.70.

TWENTY-FIRST AFFIRMATIVE DEFENSE

At all times and places in the Complaint, Plaintiff was not in privity of contract with Defendant
and said lack of privity bars Plaintiffs recovery herein upon any theory of warranty.

TWENTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff is barred from recovery in that all products produced by Defendant were in conformity
with the existing state-of-the-art, and as a result, these products were not defective in any manner.

TWENTY-THIRD AFFIRMATIVE DEFENSE

The Defendant did not and does not have a substantial percentage of the market for the asbestos-
containing products which allegedly caused Plaintiff's injuries. Therefore, Defendant may not be held
liable to Plaintiff based on this Defendant’s alleged percentage share of the applicable market.
iif
Vif

5
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSTWENTY-FOURTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that Plaintiff asserts Defendant’s alleged

iability as a successor, successor in business, successor in product line or a portion thereof, assign,

| predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, alter ego,

subsidiary, wholly or partially owned by, or the whole or partial owner of or member in an entity
researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing,
buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing,
marketing, warranting, re-branding, manufacturing for others, packaging and advertising a certain
substance, the generic name of which is asbestos.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged therein states facts sufficient to
entitle Plaintiff to an award of punitive damages against Defendant.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would deprive Defendant of its property
without due process of law under the California Constitution and the United States Constitution.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would violate the United States’
Constitution prohibition against laws impairing the obligation of contracts.

TWENTY-FIGHTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would constitute a criminal fine or penalty
and should, therefore, be remitted on the ground that the award violates the United States Constitution.
TWENTY-NINTH AFFIRMATIVE DEFENSE

The Complaint fails to state facts sufficient to constitute a cause of action to invoke the
maritime/admiralty laws of the United States.

THIRTIETH AFFIRMATIVE DEFENSE

Plaintiff herein has failed to join indispensable parties (California Code of Civil Procedure,
Section 389) and the Complaint is thereby defective, and is thereby precluded from any recovery

whatsoever as prayed for herein.

6
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSCc em tN DR Rh eR BH YD

MM YM ND MN meme
ot FD HW k OO YP SF SF oO WA HA mW FB BHR SB

THIRTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff has no standing nor right to sue for fraud and conspiracy, breach of warranty, deceit, or
any cause of action under California Civil Code, Sections 1708-1710, and therefore the Complaint and
each cause of action thereof fails to state facts sufficient to constitute a cause of action against this
answering Defendant.

THIRTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff herein lacks legal capacity to sue and is not a real party in interest and is thereby
precluded from any recovery whatsoever as prayed for herein.

THIRTY-THIRD AFFIRMATIVE DEFENSE

Fraud and conspiracy do not constitute a separate and distinct form of damages from general
damages, and therefore, the prayer for fraud and conspiracy in addition to general damages does not
sufficiently support or constitute a separate claim for damages against this answering Defendant, but is
simply cumulative and included in general damages.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Defendant alleges that, on information and belief, Plaintiff named Defendant in this litigation
without reasonable product identification and without a reasonable investigation; accordingly,
Defendant, pursuant to Code of Civil Procedure Section 128.5, requests reasonable expenses, including
attorney’s fees, incurred by this Defendant as a result of the maintenance by Plaintiff of this bad faith
action.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff was injured by products used or installed at Defendant’s
premises, such injury occurred after the expiration of the useful sage life of such products.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Defendant alleges that if Plaintiff suffered any damages, such damages were solely and
proximately caused by material modifications or alterations of the product or products involved in this
action after it or they left the custody and control of Defendant.
tif
‘ii

5
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSOo 6S DH Hm BW NH me

RP NR RP BP BP RRR mea
ea Dt DAH F&F BW YN = FS BS BSB YA DA HR Fk WY YH eH

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

Defendant alleges that any product or products alleged by Plaintiff to have caused Plaintiff's
injuries were manufactured, installed, used or distributed in compliance with specifications provided by
third parties to Defendant and/or in compliance with all applicable health and safety statutes and
regulations,

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiffs exposure to any asbestos-containing product or products
allegedly used or installed at Defendant’s premises was minimal and insufficient to establish the
probability that said products or products were a legal cause of Plaintiff's alleged injuries.

THIRTY-NINTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff was advised, informed, and warned of any potential hazards
and/or dangers associated with the normal or foreseeable use, handling, and storage of the products,
substances, and equipment described in the complaint.

FORTIETH AFFIRMATIVE DEFENSE

Defendant alleges that the allegations of the complaint 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.

FORTY-FIRST AFFIRMATIVE DEFENSE

Defendant alleges that any danger or defect on the premises was obvious or could have been
observed by Plaintiffs exercise of reasonable care.
WHEREFORE, Defendant prays:
(1) That Plaintiff take nothing by this Complaint;
(2) That Judgment be entered in favor of Defendant;
(3) For recovery of Defendant's costs of suit;
fii
itl
fit
fit

8
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSco ey DA HN hk Ww NY

y NR BP My RP NN NB Be Be Re Be ee Re oe
eo 2 A hm ££ OB NY SF SF Se A DH wR YW RP = S

(4) For appropriate credits and set-offs arising out of any payment of Worker’s
Compensation benefits as alleged above; and

(5) For such other and further relief as the Court deems just and proper.

Dated: January 14 , 2008 FOLEY & MANSFIELD, P.L.L.P.

SAA OF
Stephen J. Foley
Lori A. Cataldo
Attorneys for Defendant
STA-RITE INDUSTRIES, LLC

BY:

9
ANSWER OF STA-RITE INDUSTRIES, LLC TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSCe YD mH RB BW NY me

DM mt
Fe W’~A ww FH N fF SF Se A AH RF DO RM SB S

Louis Castagna, vs. Asbestos Defendants (B4P), et al.,
San Francisco County Superior Case No. CGC-07-274230

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, the undersigned, declare as follows:

Tam employed in the County of Alameda, California, and I am over the age of 18 years and not a
patty to the within action. My business address is 1111 Broadway, 10th Floor, Oakland, CA 94607.

On the date executed below, I electronically served the documents(s) via LexisNexis File &
Serve described as:

ANSWER OF STA-RITE INDUSTRIES, LLC TO
COMPLAINT FOR PERSONAL INJURY - ASBESTOS

on the recipients designated on the Transaction Receipt located on the LexisNexis File& Serve website.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration

was executed on January 15, 2008, at Oakland, California.
bos
Fey @. Saechao