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28
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
MICHAEL T. MCCALL, State Bar No. 109580
WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP
601 Montgomery Street, Ninth Floor ELECTRONICALLY
San Francisco, California 94111-2612
Telephone: (415) 781-7072 s F ILED
mile: i superior Court of California,
Facsimile: (415) 391-6258 County of San Francisco
Attorneys for Defendant JUN 12 2008
QUINTEC INDUSTRIES, INC. GORDON PARK-LI, Clerk
BY: EDNALEEN JAVIER-LACSON
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
GODOFREDO PIQUE, ) Case No. CGC-08-274659
)
Plaintiff, ) ANSWER OF DEFENDANT QUINTEC
) INDUSTRIES, INC. TO PLAINTIFF'S
vs. ) COMPLAINT FOR PERSONAL INJURY
) - ASBESTOS
ASBESTOS DEFENDANT (B*P), etc.; et al., )
)
Defendant. )
)
Defendant QUINTEC INDUSTRIES, INC. (hereafter "Defendant"), in answering the
Plaintiff's unverified complaint for itself alone, and severing itself from all others, admits, denies
and alleges as follows:
1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies,
both generally and specifically, each, every and all allegations of each and every purported cause of
action or count of Plaintiffs complaint, denying specifically that Plaintiff has been, is, or will be
injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and further
denying that Defendant was negligent in any manner, that the alleged product or products were
defective in any way, or that the alleged defect or defects were the proximate cause of the Plaintiff's
claimed damages or injuries,
DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY
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QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
CAUSE OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH EACH
DEFENSE WERE PLEADED SEPARATELY TO EACH SUCH CAUSE OF ACTION:
FIRST AFFIRMATIVE DEFENSE
2, The complaint and each and every purported cause of action or count thereof fails to
state facts sufficient to constitute a cause or causes of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
3, Defendant is informed and believes and thereon alleges that the acts, injuries and
damages alleged in the complaint occurred and were proximately caused by either the sole
negligence or fault of Plaintiff, which sole negligence or fault bars Plaintiff's recovery, or was
contributed to by Plaintiff's negligence or fault. Plaintiff's recovery, if any, should be reduced by
an amount proportionate to the amount by which Plaintiff's negligence or fault contributed to the
happening of the alleged incident and/or alleged injury.
THIRD AFFIRMATIVE DEFENSE
4. Defendant is informed and believes and thereon alleges that the negligence,
carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other
persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintiff's
injuries and damages, if any. The negligence, carelessness and other acts or omissions of the other
Defendants in this lawsuit and other persons and entities not parties to this lawsuit account for one
hundred percent (100%) of the causal or contributing factors relating to Plaintiff's injuries and
damages, if any, and/or constitute superseding and/or intervening causes of such injuries and
amages, if any.
FOURTH AFFIRMATIVE DEFENSE
5. Defendant is informed and believes and thereon alleges that the accident, injury and
amages alleged in Plaintiff's complaint occurred and were proximately caused by either the sole
negligence of Plaintiff's employers other than Defendant, or co-employees, which sole negligence
bars Plaintiff's recovery, or were contributed to by the negligence of Plaintiff's employers other
than Defendant, or Plaintiff's co-employees. Plaintiff's recovery, if any, must be reduced by an
amount proportionate to the amount by which the negligence of Plaintiffs employers other than
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QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
Defendant, and/or the negligence of Plaintiff's co-employees contributed to the happening of the
alleged accident and the alleged injuries.
FIFTH AFFIRMATIVE DEFENSE
6. Defendant is informed and believes and thereon alleges that while at all times
denying any liability whatsoever to Plaintiff, any alleged liability or responsibility of | Defendant
is small in proportion to the alleged liability and responsibility of other persons or entities,
including other persons and entities who are parties herein, and Plaintiff should be limited to
seeking recovery from Defendant for the proportion in which Defendant is allegedly liable or
responsible, all such alleged liability and responsibility being expressly denied.
SIXTH AFFIRMATIVE DEFENSE
7. Defendant is informed and believes and thereon alleges that at the time the alleged
operations, acts and conduct occurred, Plaintiff was acting within the course and scope of
employment, and was entitled to receive, did receive and will continue to receive workers’
compensation benefits. Plaintiff's employers other than Defendant failed to provide the Plaintiff
with a safe place in which to work, and such employers’ negligence, carelessness and other acts and
omissions proximately caused the injuries and damages claimed. Therefore, these employers and
their workers' compensation carriers are barred from any recovery by lien or otherwise herein, and
Defendant is entitled to set off any such benefits Plaintiff has received against any judgment
rendered in favor of Plaintiff.
SEVENTH AFFIRMATIVE DEFENSE
8. Defendant is informed and believes and thereon alleges that Plaintiff knew of the
risk and dangers inherent to Plaintiff's conduct, and with full knowledge of those risks and dangers
and with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the risk
and injuries and damages, if any, sustained thereby. Plaintiffs assumption of risk bars, or
proportionately reduces, any recovery by Plaintiff.
EIGHTH AFFIRMATIVE DEFENSE
9, Defendant is informed and believes and thereon alleges that Plaintiff has failed to
make reasonable efforts to mitigate Plaintiff's injuries and/or damages, if any.
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QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
NINTH AFFIRMATIVE DEFENSE
10. The complaint and each and every cause of action are barred by the applicable
statute of limitations including, but not limited to, Code of Civil Procedure Sections 335.1, 338,
339, 340.2 and 343.
TENTH AFFIRMATIVE DEFENSE
il. Plaintiff's action is barred by the provisions of Labor Code Section 3600, et seq.
ELEVENTH AFFIRMATIVE DEFENSE
12. Defendant alleges that Plaintiff has waived and is estopped from asserting any claim
against Defendant by reason of Plaintiff's approval and consent to the risk of the matters causing
the damages, if any, and Plaintiff's acknowledgment of, acquiescence in and consent to the alleged
acts or omissions, if any, of Defendant.
TWELFTH AFFIRMATIVE DEFENSE
13. This action is barred by laches as Plaintiff unreasonably delayed in the bringing of
this action and thereby prejudiced the rights of Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
14. Defendant alleges that Defendant distributed and/or marketed product(s) in full
compliance with regulations and/or specifications promulgated by the United States Government
and any recovery by Plaintiff is barred as a consequence.
FOURTEENTH AFFIRMATIVE DEFENSE
15. Defendant alleges that Plaintiff is barred from asserting any claim based on breach
of warranty against Defendant by reason of failure to fulfill the conditions of warranties alleged in
the complaint in the event such alleged warranties are proven at trial.
FIFTEENTH AFFIRMATIVE DEFENSE
16. Defendant alleges that Plaintiff has waived whatever rights Plaintiff might otherwise
have had for breach of warranty in that Plaintiff failed to notify Defendant of any alleged breach of
warranty, express or implied, and/or of any alleged defects in any products distributed or marketed
by Defendant within a reasonable time after Plaintiff discovered and/or should have discovered any
defect or nonconformity, if any existed, thereby prejudicing Defendant from being able to fully
4.
QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
investigate and defend the allegations contained in Plaintiff's complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
17. Defendant alleges that Plaintiff is now estopped from claiming that any products
distributed or marketed by Defendant were in any way defective or failed to conform to any alleged
warranties in that Plaintiff failed to notify Defendant of any defect or any nonconformity in those
products within a reasonable time after Plaintiff discovered, or should have discovered, any defect
or nonconformity, if any existed.
SEVENTEENTH AFFIRMATIVE DEFENSE
18. Defendant alleges that Plaintiff was not in privity of contract with Defendant, and
that such lack of privity bars recovery herein upon any theory of warranty.
EIGHTEENTH AFFIRMATIVE DEFENSE
19. Defendant is informed and believes and thereon alleges that any injuries or damages
suffered by Plaintiff, the existence thereof being expressly denied, are the direct and proximate
result of Plaintiff's particular, idiosyncratic, peculiar or unforeseeable susceptibility to the alleged
product or products distributed or marketed by Defendant, which reaction was not the result of any
conduct or omission of Defendant, nor the result of any defect in any product or products
distributed or marketed by Defendant.
NINETEENTH AFFIRMATIVE DEFENSE
20. Defendant is informed and believes and thereon alleges that if Plaintiff was injured
by any product distributed or marketed by Defendant, Defendant, irrespective, did not breach any
duty to Plaintiff and is not liable for those injuries or for Plaintiff's claimed damages as the product
or products when distributed and/or marketed conformed to the then current state-of-the-art
specifications, and because the then current state-of-the-art medical, scientific and industrial
knowledge, art and practice were such that Defendant did not and could not know that the product
or products might pose a risk of harm in normal and foreseeable use.
TWENTIETH AFFIRMATIVE DEFENSE
21. Defendant alleges that Plaintiff did not reasonably rely on any act, omission or
tepresentation of Defendant.
5.
QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
TWENTY-FIRST AFFIRMATIVE DEFENSE
22. In the event Plaintiff is entitled to non-economic damages including, but not limited
to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium, injury to reputation and/or humiliation, Defendant shall be
liable only for the amount of non-economic damages allocated to Defendant's percentage of fault,
and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil
Code §1431,2.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23. Defendant denies any and all liability to the extent that Plaintiff may assert
Defendant's alleged liability 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 or member in an entity in which there has been research, study, 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 of a certain substance, the generic name of
which is asbestos.
TWENTY-THIRD AFFIRMATIVE DEFENSE
24. Defendant alleges that plaintiff herein lack legal capacity and standing to sue; are
not real parties in interest or persons with superior right to make the claims contained in this
complaint and are thereby precluded from any recovery whatsoever. Additionally, to the extent
they lack standing or proper appointment to bring the claims they are asserting, any action taken in
this matter with regard to their claim(s) is voidable. Defendant further contends that any
declaration filed by any person. asserting a survival claim contains expert opinions and conclusions
that are not supported and that the declarant is not qualified to make.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
25. Defendant alleges that Plaintiff's complaint and each and every cause of action fail
to state facts sufficient to constitute a cause or causes of action for punitive damages against
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QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
Defendant.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. Defendant is informed and believes and thereon alleges that Plaintiff and/or other
persons, without this Defendant's knowledge and/or approval, redesigned, modified, altered and
used products distributed or marketed by Defendant contrary to instructions and warnings and the
customs and practice of the industry so as to substantially change the character of the products.
Defendant further alleges that if the products distributed or marketed by Defendant were defective
in any way, which defectiveness is specifically denied, such defectiveness resulted solely from the
redesign, modification, alteration, use, or other changes therein and not from any act or omission of
Defendant, Therefore, the defect, if any, so created by Plaintiff and/or other persons or parties was
the sole and proximate cause of the injuries and/or damages, if any, allegedly sustained.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged in Plaintiff's complaint were solely and proximately caused by Plaintiff's misuse
of the product or products. Defendant could not have reasonably foreseen this misuse, and
Plaintiff's misuse thereof bars recovery against Defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
28. Defendant alleges that if Plaintiff was injured by any product or products distributed
or marketed by Defendant, such product or products were intended and sold in bulk to a
knowledgeable and sophisticated user over whom Defendant had no control, who was fully
informed as to risks and dangers, if any, associated with those products and the precautions, if any,
required to avoid those risks and dangers, if any.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
29. Defendant is informed and believes and thereon alleges that if Plaintiff was injured
by any product or products distributed or marketed by Defendant, such product or products were
accompanied by good and sufficient labeling when they left the custody, possession and control of
Defendant which gave conspectus, reasonable and adequate warnings and directions to the users of
such product or products concerning the purpose for which, and manner in which, such product or
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QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
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Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
products were to be used and concerning the risks and dangers, if any, attendant to said use.
Defendant alleges that as a result of these warnings and directions, Defendant fulfilled whatever
duty, if any, that is owed to Plaintiff. If Plaintiff was injured by any such product, the injuries were
proximately caused by the use of the product or products in disregard of the warnings and
directions which was not reasonably foreseeable to Defendant.
TWENTY-NINTH AFFIRMATIVE DEFENSE
30. Defendant alleges that insofar as the instant complaint is an attempt to recover
punitive or exemplary damages from Defendant, it violates the following United States
Constitutional and California State Constitutional principles:
a, Excessive fines clause of the United States Constitution, Eighth Amendment
and Fourteenth Amendment;
b. The contract clause, Article I, Section 10, clause 1, and the Fourteenth
Amendment of the United States Constitution;
c The due process clause of the United States Constitution, Fourteenth
Amendment:
d. The equal protection clause of the United States Constitution;
e. The California Constitution due process and equal protection clauses, Article
1, Section 7(a);
f. The California Constitution excessive fines clause, Article |,
Section 17.
WHEREFORE, Defendant QUINTEC INDUSTRIES, INC. prays for judgment as follows:
1. That Plaintiff take nothing from Defendant by virtue of the complaint herein;
2. That Defendant be awarded costs of suit and attorneys’ fees herein; and
3. That Defendant be granted such other and further relief as the Court may deem just
and proper.
Dated: June 12, 2008 WALSWORTH, FRANKLIN, BEVINS & MeCALL, LLP
By: S/MICHAEL T. MCCALL
MICHAEL T. MCCALL
Attorneys for Defendant
QUINTEC INDUSTRIES, INC.
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QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.677328
Walsworth,
Frankia,
Bevins &
MeCall, LLP
AnrowSES 57 L40
PROOF OF SERVICE
fam employed in the County of Orange, State of California. | am over the age of 18 and
not a party to the within action. My business address is 1 City Boulevard West, Fifth Floor,
Orange, California 92868-3677.
On June 12, 2008, I served the within document(s) described as:
ANSWER OF DEFENDANT QUINTEC INDUSTRIES, INC. TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOS
on the interested parties in this action as stated below:
BRAYTON PURCELL
222 Rush Landing Road.
P. O. Box 6169
Novato, CA 94948-6169
X] (BY ELECTRONIC MAIL) ! provided the documentfs) listed above electronically to the
Lexis Nexis website pursuant to their instructions on that website. If the document is
provided to Lexis Nexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to Lexis Nexis,
Executed on June 12, 2008, at Orange, California.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Laura El-Ali /Si LAURA EL-ALT
(Type or print name) (Signature)
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QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
421696.1
1$24-9.6773
Preview
28 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 MICHAEL T. MCCALL, State Bar No. 109580 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP 601 Montgomery Street, Ninth Floor ELECTRONICALLY San Francisco, California 94111-2612 Telephone: (415) 781-7072 s F ILED mile: i superior Court of California, Facsimile: (415) 391-6258 County of San Francisco Attorneys for Defendant JUN 12 2008 QUINTEC INDUSTRIES, INC. GORDON PARK-LI, Clerk BY: EDNALEEN JAVIER-LACSON Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO GODOFREDO PIQUE, ) Case No. CGC-08-274659 ) Plaintiff, ) ANSWER OF DEFENDANT QUINTEC ) INDUSTRIES, INC. TO PLAINTIFF'S vs. ) COMPLAINT FOR PERSONAL INJURY ) - ASBESTOS ASBESTOS DEFENDANT (B*P), etc.; et al., ) ) Defendant. ) ) Defendant QUINTEC INDUSTRIES, INC. (hereafter "Defendant"), in answering the Plaintiff's unverified complaint for itself alone, and severing itself from all others, admits, denies and alleges as follows: 1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies, both generally and specifically, each, every and all allegations of each and every purported cause of action or count of Plaintiffs complaint, denying specifically that Plaintiff has been, is, or will be injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and further denying that Defendant was negligent in any manner, that the alleged product or products were defective in any way, or that the alleged defect or defects were the proximate cause of the Plaintiff's claimed damages or injuries, DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY -l- QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 CAUSE OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH EACH DEFENSE WERE PLEADED SEPARATELY TO EACH SUCH CAUSE OF ACTION: FIRST AFFIRMATIVE DEFENSE 2, The complaint and each and every purported cause of action or count thereof fails to state facts sufficient to constitute a cause or causes of action against Defendant. SECOND AFFIRMATIVE DEFENSE 3, Defendant is informed and believes and thereon alleges that the acts, injuries and damages alleged in the complaint occurred and were proximately caused by either the sole negligence or fault of Plaintiff, which sole negligence or fault bars Plaintiff's recovery, or was contributed to by Plaintiff's negligence or fault. Plaintiff's recovery, if any, should be reduced by an amount proportionate to the amount by which Plaintiff's negligence or fault contributed to the happening of the alleged incident and/or alleged injury. THIRD AFFIRMATIVE DEFENSE 4. Defendant is informed and believes and thereon alleges that the negligence, carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintiff's injuries and damages, if any. The negligence, carelessness and other acts or omissions of the other Defendants in this lawsuit and other persons and entities not parties to this lawsuit account for one hundred percent (100%) of the causal or contributing factors relating to Plaintiff's injuries and damages, if any, and/or constitute superseding and/or intervening causes of such injuries and amages, if any. FOURTH AFFIRMATIVE DEFENSE 5. Defendant is informed and believes and thereon alleges that the accident, injury and amages alleged in Plaintiff's complaint occurred and were proximately caused by either the sole negligence of Plaintiff's employers other than Defendant, or co-employees, which sole negligence bars Plaintiff's recovery, or were contributed to by the negligence of Plaintiff's employers other than Defendant, or Plaintiff's co-employees. Plaintiff's recovery, if any, must be reduced by an amount proportionate to the amount by which the negligence of Plaintiffs employers other than -2- QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 Defendant, and/or the negligence of Plaintiff's co-employees contributed to the happening of the alleged accident and the alleged injuries. FIFTH AFFIRMATIVE DEFENSE 6. Defendant is informed and believes and thereon alleges that while at all times denying any liability whatsoever to Plaintiff, any alleged liability or responsibility of | Defendant is small in proportion to the alleged liability and responsibility of other persons or entities, including other persons and entities who are parties herein, and Plaintiff should be limited to seeking recovery from Defendant for the proportion in which Defendant is allegedly liable or responsible, all such alleged liability and responsibility being expressly denied. SIXTH AFFIRMATIVE DEFENSE 7. Defendant is informed and believes and thereon alleges that at the time the alleged operations, acts and conduct occurred, Plaintiff was acting within the course and scope of employment, and was entitled to receive, did receive and will continue to receive workers’ compensation benefits. Plaintiff's employers other than Defendant failed to provide the Plaintiff with a safe place in which to work, and such employers’ negligence, carelessness and other acts and omissions proximately caused the injuries and damages claimed. Therefore, these employers and their workers' compensation carriers are barred from any recovery by lien or otherwise herein, and Defendant is entitled to set off any such benefits Plaintiff has received against any judgment rendered in favor of Plaintiff. SEVENTH AFFIRMATIVE DEFENSE 8. Defendant is informed and believes and thereon alleges that Plaintiff knew of the risk and dangers inherent to Plaintiff's conduct, and with full knowledge of those risks and dangers and with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the risk and injuries and damages, if any, sustained thereby. Plaintiffs assumption of risk bars, or proportionately reduces, any recovery by Plaintiff. EIGHTH AFFIRMATIVE DEFENSE 9, Defendant is informed and believes and thereon alleges that Plaintiff has failed to make reasonable efforts to mitigate Plaintiff's injuries and/or damages, if any. -3- QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 NINTH AFFIRMATIVE DEFENSE 10. The complaint and each and every cause of action are barred by the applicable statute of limitations including, but not limited to, Code of Civil Procedure Sections 335.1, 338, 339, 340.2 and 343. TENTH AFFIRMATIVE DEFENSE il. Plaintiff's action is barred by the provisions of Labor Code Section 3600, et seq. ELEVENTH AFFIRMATIVE DEFENSE 12. Defendant alleges that Plaintiff has waived and is estopped from asserting any claim against Defendant by reason of Plaintiff's approval and consent to the risk of the matters causing the damages, if any, and Plaintiff's acknowledgment of, acquiescence in and consent to the alleged acts or omissions, if any, of Defendant. TWELFTH AFFIRMATIVE DEFENSE 13. This action is barred by laches as Plaintiff unreasonably delayed in the bringing of this action and thereby prejudiced the rights of Defendant. THIRTEENTH AFFIRMATIVE DEFENSE 14. Defendant alleges that Defendant distributed and/or marketed product(s) in full compliance with regulations and/or specifications promulgated by the United States Government and any recovery by Plaintiff is barred as a consequence. FOURTEENTH AFFIRMATIVE DEFENSE 15. Defendant alleges that Plaintiff is barred from asserting any claim based on breach of warranty against Defendant by reason of failure to fulfill the conditions of warranties alleged in the complaint in the event such alleged warranties are proven at trial. FIFTEENTH AFFIRMATIVE DEFENSE 16. Defendant alleges that Plaintiff has waived whatever rights Plaintiff might otherwise have had for breach of warranty in that Plaintiff failed to notify Defendant of any alleged breach of warranty, express or implied, and/or of any alleged defects in any products distributed or marketed by Defendant within a reasonable time after Plaintiff discovered and/or should have discovered any defect or nonconformity, if any existed, thereby prejudicing Defendant from being able to fully 4. QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 investigate and defend the allegations contained in Plaintiff's complaint. SIXTEENTH AFFIRMATIVE DEFENSE 17. Defendant alleges that Plaintiff is now estopped from claiming that any products distributed or marketed by Defendant were in any way defective or failed to conform to any alleged warranties in that Plaintiff failed to notify Defendant of any defect or any nonconformity in those products within a reasonable time after Plaintiff discovered, or should have discovered, any defect or nonconformity, if any existed. SEVENTEENTH AFFIRMATIVE DEFENSE 18. Defendant alleges that Plaintiff was not in privity of contract with Defendant, and that such lack of privity bars recovery herein upon any theory of warranty. EIGHTEENTH AFFIRMATIVE DEFENSE 19. Defendant is informed and believes and thereon alleges that any injuries or damages suffered by Plaintiff, the existence thereof being expressly denied, are the direct and proximate result of Plaintiff's particular, idiosyncratic, peculiar or unforeseeable susceptibility to the alleged product or products distributed or marketed by Defendant, which reaction was not the result of any conduct or omission of Defendant, nor the result of any defect in any product or products distributed or marketed by Defendant. NINETEENTH AFFIRMATIVE DEFENSE 20. Defendant is informed and believes and thereon alleges that if Plaintiff was injured by any product distributed or marketed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiff and is not liable for those injuries or for Plaintiff's claimed damages as the product or products when distributed and/or marketed conformed to the then current state-of-the-art specifications, and because the then current state-of-the-art medical, scientific and industrial knowledge, art and practice were such that Defendant did not and could not know that the product or products might pose a risk of harm in normal and foreseeable use. TWENTIETH AFFIRMATIVE DEFENSE 21. Defendant alleges that Plaintiff did not reasonably rely on any act, omission or tepresentation of Defendant. 5. QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 TWENTY-FIRST AFFIRMATIVE DEFENSE 22. In the event Plaintiff is entitled to non-economic damages including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and/or humiliation, Defendant shall be liable only for the amount of non-economic damages allocated to Defendant's percentage of fault, and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil Code §1431,2. TWENTY-SECOND AFFIRMATIVE DEFENSE 23. Defendant denies any and all liability to the extent that Plaintiff may assert Defendant's alleged liability 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 or member in an entity in which there has been research, study, 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 of a certain substance, the generic name of which is asbestos. TWENTY-THIRD AFFIRMATIVE DEFENSE 24. Defendant alleges that plaintiff herein lack legal capacity and standing to sue; are not real parties in interest or persons with superior right to make the claims contained in this complaint and are thereby precluded from any recovery whatsoever. Additionally, to the extent they lack standing or proper appointment to bring the claims they are asserting, any action taken in this matter with regard to their claim(s) is voidable. Defendant further contends that any declaration filed by any person. asserting a survival claim contains expert opinions and conclusions that are not supported and that the declarant is not qualified to make. TWENTY-FOURTH AFFIRMATIVE DEFENSE 25. Defendant alleges that Plaintiff's complaint and each and every cause of action fail to state facts sufficient to constitute a cause or causes of action for punitive damages against -6- QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 Defendant. TWENTY-FIFTH AFFIRMATIVE DEFENSE 26. Defendant is informed and believes and thereon alleges that Plaintiff and/or other persons, without this Defendant's knowledge and/or approval, redesigned, modified, altered and used products distributed or marketed by Defendant contrary to instructions and warnings and the customs and practice of the industry so as to substantially change the character of the products. Defendant further alleges that if the products distributed or marketed by Defendant were defective in any way, which defectiveness is specifically denied, such defectiveness resulted solely from the redesign, modification, alteration, use, or other changes therein and not from any act or omission of Defendant, Therefore, the defect, if any, so created by Plaintiff and/or other persons or parties was the sole and proximate cause of the injuries and/or damages, if any, allegedly sustained. TWENTY-SIXTH AFFIRMATIVE DEFENSE 27. Defendant is informed and believes and thereon alleges that the accident, injury and damages alleged in Plaintiff's complaint were solely and proximately caused by Plaintiff's misuse of the product or products. Defendant could not have reasonably foreseen this misuse, and Plaintiff's misuse thereof bars recovery against Defendant. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 28. Defendant alleges that if Plaintiff was injured by any product or products distributed or marketed by Defendant, such product or products were intended and sold in bulk to a knowledgeable and sophisticated user over whom Defendant had no control, who was fully informed as to risks and dangers, if any, associated with those products and the precautions, if any, required to avoid those risks and dangers, if any. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 29. Defendant is informed and believes and thereon alleges that if Plaintiff was injured by any product or products distributed or marketed by Defendant, such product or products were accompanied by good and sufficient labeling when they left the custody, possession and control of Defendant which gave conspectus, reasonable and adequate warnings and directions to the users of such product or products concerning the purpose for which, and manner in which, such product or -7- QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 products were to be used and concerning the risks and dangers, if any, attendant to said use. Defendant alleges that as a result of these warnings and directions, Defendant fulfilled whatever duty, if any, that is owed to Plaintiff. If Plaintiff was injured by any such product, the injuries were proximately caused by the use of the product or products in disregard of the warnings and directions which was not reasonably foreseeable to Defendant. TWENTY-NINTH AFFIRMATIVE DEFENSE 30. Defendant alleges that insofar as the instant complaint is an attempt to recover punitive or exemplary damages from Defendant, it violates the following United States Constitutional and California State Constitutional principles: a, Excessive fines clause of the United States Constitution, Eighth Amendment and Fourteenth Amendment; b. The contract clause, Article I, Section 10, clause 1, and the Fourteenth Amendment of the United States Constitution; c The due process clause of the United States Constitution, Fourteenth Amendment: d. The equal protection clause of the United States Constitution; e. The California Constitution due process and equal protection clauses, Article 1, Section 7(a); f. The California Constitution excessive fines clause, Article |, Section 17. WHEREFORE, Defendant QUINTEC INDUSTRIES, INC. prays for judgment as follows: 1. That Plaintiff take nothing from Defendant by virtue of the complaint herein; 2. That Defendant be awarded costs of suit and attorneys’ fees herein; and 3. That Defendant be granted such other and further relief as the Court may deem just and proper. Dated: June 12, 2008 WALSWORTH, FRANKLIN, BEVINS & MeCALL, LLP By: S/MICHAEL T. MCCALL MICHAEL T. MCCALL Attorneys for Defendant QUINTEC INDUSTRIES, INC. -8- QUINTEC INDUSTRIES, INC'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.677328 Walsworth, Frankia, Bevins & MeCall, LLP AnrowSES 57 L40 PROOF OF SERVICE fam employed in the County of Orange, State of California. | am over the age of 18 and not a party to the within action. My business address is 1 City Boulevard West, Fifth Floor, Orange, California 92868-3677. On June 12, 2008, I served the within document(s) described as: ANSWER OF DEFENDANT QUINTEC INDUSTRIES, INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS on the interested parties in this action as stated below: BRAYTON PURCELL 222 Rush Landing Road. P. O. Box 6169 Novato, CA 94948-6169 X] (BY ELECTRONIC MAIL) ! provided the documentfs) listed above electronically to the Lexis Nexis website pursuant to their instructions on that website. If the document is provided to Lexis Nexis electronically by 5:00 p.m., then the document will be deemed served on the date that it was provided to Lexis Nexis, Executed on June 12, 2008, at Orange, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Laura El-Ali /Si LAURA EL-ALT (Type or print name) (Signature) -9- QUINTEC INDUSTRIES, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT 421696.1 1$24-9.6773