Answer: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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JACKSON & WaLLace
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SAN FRANCISCO:

GABRIEL A. JACKSON, State Bar No. 98119
DANIEL D. O’SHEA, State Bar No. 238534

JACKSON & WALLACE Lip

55 Francisco Street, 6th Floor ELECTRONICALLY

San Francisco, CA 94133 FILED

Tel: 415.982.6300 Superior Court of California,

Fax: 415.982.6700 County of San Francisco

Attorneys for Defendant coAkR 94.2008.

GENERAL DYNAMICS CORPORATION BY: EDNALEEN JAVIER-LAC:!
Deputy Clerk

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

CHARLES TOBEY, Case No. 274226
Plaintiff, ANSWER OF DEFENDANT GENERAL
DYNAMICS CORPORATION TO
vy. UNVERIFIED COMPLAINT FOR
PERSONAL INJURY

ASBESTOS DEFENDANTS (BP), et al.
Defendants.

DEFENDANT GENERAL DYNAMICS CORPORATION, (hereinafier "Defendant"),
answers the unverified 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

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.

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ANSWER OF GENERAL DYNAMICS CORPORATION TO UNVERIFIED COMPLAINT FOR PERSONAL
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THIRD 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 United States
Constitution.

FOURTH AFFIRMATIVE DEFENSE

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

FIFTH 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.

SIXTH 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(1),
338¢4), 339(1), 340(1), 340(3), 340.2, 343, 353, 583.110, 583.210, 583.310 and 583.410 and
California Commercial Code, section 2725,

SEVENTH 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 section 583 et seg. of the Code of Civil Procedure.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff was negligent in and about the matters alleged in the Complaint and in eac!
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.
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NINTH 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.

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 foreseeable to Defendant, and
proximately caused any loss, injury or damages incurred by plaintiff.

TWELFTH 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.

THIRTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matier 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.

FOURTEENTH 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 empleyers, 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
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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)

FIFTEENTH 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.

SIXTEENTH 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 pursuant to California Civil Code Sections 1431.1 through 1431.5.

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at al! 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 their employees in a
negligent, careless and reckless manner was a superseding cause of plaintiff's injuries, if any.

EIGHTEENTH 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 its rights to reimbursement for Worker's Compensation benefits that

plaintiff has received or may in the future receive.
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San TRANCISCO

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, Defendant demands repayment of any such
Worker's Compensation benefits in the event that plaintiff recovers 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.

TWENTIETH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that plaintiff asserts Defendant's
alleged liability as a successor, successor in business, assign, predecessor, predecessor in
business, 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-FIRST AFFIRMATIVE DEFENSE

The Complaint fails to state facts sufficient to constitute a cause of action for “Premises
Owner/Contractor Liability" against this Defendant pursuant to the ruling of the California
Supreme Court in Privette v. Superior Court (1993) 5 Cal 4th 689, the ruling of the California
Court of Appeal in Smith v. ACandS, inc. (1994) 31 Cal App. 4th 77, the California Court of
Appeal in Grahn v. Tosco Corporation (1997) 58 Cal.App.4th, 1373, and the ruling of the
California Supreme Court in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal Ath 253.

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ANSWER OF GENERAL DYNAMICS CORPORATION TO UNVERIFIED COMPLAINT FOR PERSONAL
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TWENTY-SECOND AFFIRMATIVE DEFENSE

Defendant had no property interest, ownership or control of any premises at any time

during which plaintiff alleges exposure, injury or damages due to asbestos dust inhalation.
TWENTY-THIRD AFFIRMATIVE DEFENSE

Defendant alleges that its products, if any, 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 plaintiffs) on the Complaint on file herein is barred in consequence of the exercise
of those sovereign powers.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

Plaintiff's action, and each alleged cause of action, is barred by the terms and provisions
of California Code of Civil Procedure section 361.

WHEREFORE, Defendant prays:

(1) That plaintiff takes nothing by his Complaint;

(2) That Judgment be entered in favor of Defendant;

(3) For recovery of Defendant's costs of suit;

(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: March \ » 2008 JACKSON & WALLACE LLP

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DANIEL D. O'SHEA
Attorneys for Defendant
GENERAL DYNAMICS CORPORATION

By:

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Charles Tobey, v. Asbestos Defendants (BP) S.F.S.C #274226

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, the undersigned, declare that am a citizen of the United States and employed in San

Francisco County, California. I am over the age of eighteen years and not a party to the within-
entitled action. My business address is $$ Francisco Street, 6th Floor, San Francisco, California
94133. On March F{ 2008, I electronically served pursuant to General Order No, 158, the
following document(s):

ANSWER OF DEFENDANT GENERAL DYNAMICS

CORPORATION TO UNVERIFIED COMPLAINT FOR

PERSONAL INJURY

on interested parties in this action by causing Lexis Nexis E-Service program pursuant to General

Order No. 158, to transmit a true copy thereof to the email address(es) of the following party(ies):

Brayton ¢ Purcell and
222 Rush Landing Road . . : :
Novato, CA 94948-6169 ***Please See Lexis Nexis Service List***

The above document(s) were transmitted by Lexis Nexis E-Service and the transmission
was reported as complete without error.

I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and was executed on March 3, 2008, at San Francisco,

California.

Nic Lawson

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