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BRYDON
HuGo & PARKER
1S Maw SrmaeT
20" FLOOR
‘San Freecisen, CA $4105,
Edward R. Hugo [Bar No. 124839]
Donna L. Ma u [Bar No. 191119]
BRYDON HU & PARKER
135 Main Street, 20th Floor ELECTRONICALLY
San Francisco, CA 94105 FILED
‘Telephone: (415) 808-030 Superior Court of California,
Fax: (415) 808-0333 County of San Francisco
AUG 07 2008
Aitorneys for Defendant GORDON PARK-
PNEUMO ABEX LLC Byuuoneunee | ok
successor in interest to Abex Corporation erroneously sued herein as PNEUMO @sBEXCenC
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
RUFUS ALEXANDER, ASBESTOS
Case No. CGC-08-274719
Plaintiff,
vs. ANSWER OF PNEUMO ABEX LLC
successor in interest to Abex Corporation
ASBESTOS DEFENDANTS (B#P), et al., erroneously sued herein as PNEUMO ABEX
LLC TO COMPLAINT FOR PERSONAL
Defendants. INJURIES — ASBESTOS
COMES NOW Defendant PNEUMO ABEX LLC successor in interest to Abex
Corporation erroneously sued herein as PNEUMO ABEX LLC (hereinafter “Defendant” or
“ABEX”), and answers plaintiffs’ Complaint for Personal Injuries - Asbestos (hereinafter
the “Complaint”) on file. Plaintiffs and Defendant have stipulated to dismiss ABEX from 3-4
cause of action (False Representation) and punitive damages; therefore, defendant answers
the remainder of the complaint as follows:
GENERAL DENIAL
Under the provisions of Section 431.30(d), California Code of Civil Procedure, this
answering defendant denies each and every allegation of plaintiff's Complaint and the
whole thereof, and denies that plaintiff has been damaged in any sum or amount
whatsoever, or at all, and denies that plaintiff is entitled to recover damages of any kind
1
PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSSon Franelsce, CA 94105,
in any amount whatsoever from ABEX.
RESERVATION OF RIGHT TO TRIAL BY JURY
ABEX reserves the right to a trial by jury.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Failure to State a Cause of Action
This answering defendant alleges that plaintiff's Complaint and each of the causes of
action for relief alleged therein, fails to state a cause of action against this answering
defendant.
SECOND AFFIRMATIVE DEFENSE
Contravention of Defendant's Constitutional Rights to Due Process of Law
The Complaint and each cause of action thereof, which is admittedly based upon a
Jack of identification of the manufacturer of, and contractor using or distributing the
alleged injury-causing product, fails to state facts sufficient to constitute a cause of action in
that plaintiff has asserted a claim for relief which, if granted, would contravene defendant's
constitutional rights to substantive and procedural due process of law as preserved for’
defendant by the Fourteenth Amendment of the United States Constitution and by Article
1, Section 7, of the Constitution of the State of California.
THIRD AFFIRMATIVE DEFENSE
Denial of Defendant's Constitutional Rights to Equal Protection of the Laws
The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action in that plaintiff has asserted claims for relief which, if granted,
would constitute a denial by this Court of defendant's constitutional right to equal
protection of the laws as preserved by the Fourteenth Amendment of the United States
Constitution and by Article I, Section 7, of the Constitution of the State of California.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSoC oe NSN DH WN SF Ww
BRYDON
Son Prancisea, CA 98105
FOURTH AFFIRMATIVE DEFENSE
Unconstitutional Taking of Private Property for Public Use Without Just Compensation
The Complaint, and each cause of action thereof, which is admittedly based upon a
lack of identification of the manufacturer, and contractor using or distributing the alleged
injury-causing product, fails to state facts sufficient to constitute a cause of action in that
plaintiff has asserted claims for relief which, if granted, would constitute the taking of
private property for public use without just compensation in contravention of the Fifth and
Fourteenth Amendments to the United States Constitution and by Article I, Section 7 and
19, of the Constitution of the State of California, and the applicable California statutes.
FIFTH AFFIRMATIVE DEFENSE
Comparative Fault
This answering defendant alleges that the damages, if any, complained of by
plaintiff, were proximately caused by the negligence, fault, breach of contract and/or strict
liability of plaintiff or other defendants, firms, persons, corporations, unions, employers
and entities other than ABEX, and that said negligence, fault, breach of contract and/or
strict liability comparatively reduces the percentage of any negligence, fault, breach of
coniract or strict liability for which ABEX is legally responsible, if any be found, which
liability this defendant expressly denies. Further, this answering defendant alleges that
plaintiff did not exercise ordinary care, caution or prudence to avoid the incidents
complained of herein, and said incidents and the injuries and damages, if any, sustained by
plaintiff, were directly and proximately caused and contributed to by the carelessness and
negligence of said plaintiff.
SIXTH AFFIRMATIVE DEFENSE
Contributory Negligence
This answering defendant alleges that plaintiff did not exercise ordinary care,
caution or prudence to avoid the incidents complained of herein, and said incidents and the
injuries and damages, if any, sustained by plaintiff, were directly and proximately caused
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSwdoiwie
Oo 6 SB DH
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BRYDON
HUGO & PARKER
155 Maw Seer
20" FLOOR
Stn Francisea, CA D405
and contributed to by the carelessness and negligence of said plaintiff.
SEVENTH AFFIRMATIVE DEFENSE
Uncertainty
This answering defendant alleges that plaintiffs Complaint and all purported causes
of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on
any theory.
EIGHTH AFFIRMATIVE DEFENSE
Laches
This answering defendant alleges that plaintiff unreasonably delayed in bringing
this action and that such delay substantially prejudiced defendant, and that this action is
therefore barred by the Doctrine of Laches.
, NINTH AFFIRMATIVE DEFENSE
Statute of Limitations
This answering defendant alleges that plaintiff's Complaint and the purported
causes of action therein are barred by all statutes of limitation, including, but not limited to,
the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3) and
340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiff's claims are
further barred by the statute of limitations of states other than California pursuant to
California Code of Civil Procedure § 361.
TENTH AFFIRMATIVE DEFENSE
Failure to Mitigate
This answering defendant alleges that plaintiff failed to mitigate damages which
plaintiff contends he suffered, and plaintiff is therefore barred from any recovery
whatsoever, or alternatively, any damages found must be reduced in proportion to such
failure to mitigate.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS.Oo CO St RH Ww BB Re
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BRyYDON
Huco & PARKER
138 Mae Sacer
20" Foor
Son Fransisco, CA 94108
ELEVENTH AFFIRMATIVE DEFENSE
Estoppel
This answering defendant alleges that as a result of the acts, conduct and/or
omissions of plaintiff and his agents, or any of them, and each cause of action presented
therein, is barred under the Doctrine of Estoppel.
TWELFTH AFFIRMATIVE DEFENSE
Waiver
This answering defendant alleges that plaintiff, by his acts, conduct and omissions,
has waived the claims alleged in his Complaint and in each purported cause of action
alleged therein.
THIRTEENTH AFFIRMATIVE DEFENSE
Acquiescence
Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or
omissions, if any, of this answering defendant, thus barring plaintiff from any relief as
prayed for herein.
FOURTEENTH AFFIRMATIVE DEFENSE
Notice of Dangers
Plaintiff was advised, informed, and warned of any potential hazards and/or
dangers, if there were any, associated with the normal or foreseeable use, handling, storage
and in place asbestos of the products, substances, equipment and at premises in which
exposure is claimed as is described in the Complaint and is therefore barred from any relief
prayed for.
FIFTEENTH AFFIRMATIVE DEFENSE
Compliance with Statutes
This answering defendant alleges that all of its conduct and activities as alleged in
the plaintiff’s Complaint conformed to statutes, government regulations, and industry
standards based upon the state of knowledge existing at all relevant times.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSBRYDON
Huo & PARKER
135 Mane STREET
20" Foor
‘Ban Francisco, CA 94158
SIXTEENTH AFFIRMATIVE DEFENSE
Compliance with Specifications
This answering defendant alleges that the asbestos products or asbestos used or in
place at any premises, if any, for which ABEX had any legal responsibility, were
manufactured, packaged, distributed or sold in accordance with contract specifications
imposed by its co-defendants, by the U.S. Government, by the State of California, by
plaintiff's employers, or by third parties yet to be identified.
SEVENTEENTH AFFIRMATIVE DEFENSE
No Conspiracy
This answering defendant alleges that ABEX has no liability for the acts, omissions
or otherwise of any other defendant or entity because ABEX did not become legally
responsible for the acts of any such defendant, nor entity, by any communication, alleged,
implied, or actual, nor act, action, or activity, and never was, nor is, a conspirator nor co-
conspirator with any other defendant or entity.
EIGHTEENTH AFFIRMATIVE DEFENSE
State-of-the-Art
This answering defendant alleges that all of its activities, products, materials and its
premises at issue here at all times were conducted, used, produced, marketed, and
operated in conformity with the existing scientific, medical industrial hygiene and
consumer knowledge, art and practice and state-of-the-art.
NINETEENTH AFFIRMATIVE DEFENSE
No Foreseeable Risk to Plaintiff
The state of the medical, scientific, and industrial knowledge and practice was at all
material times such that defendant neither breached any alleged duty owed plaintiff, nor
knew, nor could have known, that its activities, materials, products, activities or premises
presented a foreseeable risk of harm to plaintiff in the normal and expected course of such
activities and use of such materials and products.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS20" Ficon
San Francisca, CA 94305
TWENTIETH AFFIRMATIVE DEFENSE
No Right to Control
This answering defendant alleges that any loss, injury, or damage incurred by
Plaintiff was proximately and legally caused by the negligent or willful acts or omissions of
parties which ABEX neither controlled, nor had the right to control, and was not
proximately caused by any acts, omissions, or other conduct of ABEX.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Action for Relief
This answering defendant alleges the causes of action, if any, attempted to be stated
and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure
of the State of California and/or other statutes of the State of California, including without
limitation C.C.P. § 338(d).
TWENTY-SECOND AFFIRMATIVE DEFENSE
Misuse and Improper Use of Products
This answering defendant alleges that if the plaintiff allegedly suffered injuries
attributable to the disturbance or use of any product for which ABEX had any legal
responsibility, which allegations are expressly herein denied, the injuries were solely
caused by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose
and improper use and abuse which was made of said product by persons or entities other
than ABEX.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Due Care and Diligence
This answering defendant alleges that ABEX exercised due care and diligence in all
of the matters alleged in the Complaint, and no act or omission by ABEX was the proximate
cause of any damage, injury or loss to plaintiff.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSwa
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BRYDON
Huao & PARKER
135 Mam SraeEr
20" FLGOR
‘San Francisco, CA 94108
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Alteration and Misuse of Product
This answering defendant alleges that an insubstantial amount, if any at all, of the
products containing asbestos distributed, used, supplied by defendant or used or in place
at any premises owned or controlled by defendant, were not disturbed or used in the
presence of plaintiff and not supplied to the plaintiff, and if so, were substantially altered
‘by others and/or used in a manner inconsistent with the labeled directions.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Equal or Greater Knowledge of Hazards
This answering defendant alleges that any and all products containing asbestos
used, distributed or supplied by defendant were distributed or supplied to, or for, persons
or entities who had knowledge with respect to the hazards, if any, resulting from exposure
to products containing asbestos, which knowledge is equal to or greater than the
knowledge of ABEX.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Other Parties’ Liability and Negligence
This answering defendant alleges that if there was any negligence or any other form
of liability on the part of any of the parties named herein, it was the sole and exclusive
negligence and liability of the other persons or entities and not of ABEX.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Apportionment and Offset
This answering defendant is informed and believes and thereon alleges that
plaintiff's acts and omissions, including plaintiff’s agents, servants, and employees acting
within the course and scope of their employment, and others, contributed to the alleged
damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court
apply the principles of apportionment and offset so as to permit the Court or jury to
apportion liability according to fault and to grant defendant a corresponding offset against
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBRYDON
Huao & PARKER
13S Man Stace
Sun Francisse, CA 94108
any damages awarded to plaintiff.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Contribution/Equitable Indemnity
This answering defendant alleges, in the event it is held liable to Plaintiff, any such
liability is expressly herein denied, and any other co-defendants are likewise held liable,
ABEX is entitled to a percentage contribution of the total liability from said co-defendants
in accordance with the principles of equitable indemnity and comparative contribution.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Assumption of Risk by Plaintiff's Employer(s)
This answering defendant alleges that the Complaint and each cause of action
alleged therein are barred on the grounds that plaintiff's employer or employers knowingly|
entered into and engaged in the operations, acts and conduct alleged in the Complaint, and
voluntarily and knowingly assumed all of the risks incident to said operations, acts and
conduct at the time and place mentioned in the Complaint.
THIRTIETH AFFIRMATIVE DEFENSE
Assumption of Risk
This answering defendant alleges plaintiff assumed the risk of the matters referred
to in his Complaint and that plaintiff knew and appreciated the nature of the risk and that
the plaintiff voluntarily accepted this risk.
THIRTY-FIRST AFFIRMATIVE DEFENSE
No Market Share
This answering defendant alleges that ABEX did not have an appreciable share of
the market for the asbestos-containing products which allegedly caused plaintiff's injuries,
which occurrence ABEX expressly denies. Accordingly, ABEX may not be held liable to
plaintiff based on its alleged share of the applicable product market.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBRYDON
Huco & PARKER
133 Main SrRaer
20" FoR,
San Francisve, CA 94195,
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff Fails to Join a Substantial Market Share
The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action against this answering defendant, in that defendant has failed to’
join a substantial market share of the producers or products to which plaintiff was
allegedly exposed.
THIRTY-THIRD AFFIRMATIVE DEFENSE
insufficient Facts to Show Substantial Market Share of this Defendant
ua.
To the extent the Complaint asserts defendant’s alleged “alternative,” “market
share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a
cause of action against this defendant.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Independent, Intervening or Superseding Cause
This answering defendant alleges that if plaintiff suffered any injuries attributable to
the use of any product containing asbestos which was used, distributed or sold by
defendant, which allegations are expressly denied herein, the injuries were solely caused by
an unforeseeable, independent intervening and/or superseding event beyond the control
and unrelated to any conduct of defendant. Defendant's actions, if any, were superseded.
by the negligence and wrongful conduct of others.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Nota Substantial Factor
This answering defendant alleges that the Complaint and each cause of action
therein presented are barred on the grounds that the products, conduct, materials or
premises of defendant as referred to in plaintiff's Complaint, if any, were not a substantial
factor in bringing about the injuries and damages complained of by plaintiff and did not
increase the risk that plaintiff would suffer the injuries and damages complained of.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSTHIRTY-SIXTH AFFIRMATIVE DEFENSE
Insufficient Exposure
Any exposure of plaintiff to defendant’s activities, products or exposure to asbestos
or asbestos-containing products at ABEX’s premises was so minimal as to be insufficient to
establish by a reasonable degree of probability that any such product caused any alleged
injury, damage, or loss to plaintiff.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
No Successor Liability
This answering defendant alleges that ABEX has no liability for the acts, omissions
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or otherwise of any other defendant or any other entity because ABEX did not become
11 |)legally responsible for the acts of any such defendant or entity given the facts and
12 ||circumstances of the pertinent transactions and never was, nor is, a successor-in-interest, a
13 ||successor-in-liability or an alternate entity for any other user, manufacturer, supplier,
14 |!seller, distributor or premises holder relating to asbestos or asbestos-containing products.
15 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
16 Lack of Privity
17 This answering defendant alleges that plaintiff has failed to state a cause of action in
18 || that the Complaint fails to allege that there was privity between defendant on the one
19 |\hand, and plaintiff on the other, and furthermore, such privity did not exist between
20 | defendant on the one hand, and plaintiff on the other.
21 THIRTY-NINTH AFFIRMATIVE DEFENSE
22 Secondary Assumption of Risk
23 This answering defendant alleges that any and all products containing asbestos
24 ||used, distributed or supplied by defendant were used, distributed or supplied to, or for,
25 ||persons or entities who had knowledge with respect to the hazards, if any, resulting from
26 ||exposure to products containing asbestos, which is equal to or greater than, the knowledge
27 lof ABEX, i.e. ABEX’s liability should be reduced in proportion to the knowledge of plaintiff.
BRYDON
Huco & PARKER
435 Many StReer
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11ns
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BRYDON
Huco & PARKER
18Main Sewer
28" FLOOR
‘San Prancisco, CA 94105
FORTIETH AFFIRMATIVE DEFENSE
Civil Code Section 1431.2
This answering defendant alleges that the provisions of California Civil Code §
1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiff's Complaint
and to each cause of action therein.
FORTY-FIRST AFFIRMATIVE DEFENSE
Workers’ Compensation Exclusive Remedy
This answering defendant alleges that the Complaint is barred by the exclusivity
provisions of the California Workers’ Compensation laws, including, but not limited to,
California Labor Code §§ 3600, et seq.
FORTY-SECOND AFFIRMATIVE DEFENSE
Offset for Workers’ Compensation Benefits
This answering defendant alleges that to the extent plaintiff herein recovered, or in
the future may recover, any monies in connection with any claim for workers’
compensation benefits, any amounts recovered in this action are subject to a claim by
defendant for a credit or offset.
FORTY-THIRD AFFIRMATIVE DEFENSE
Express Contractual Indemnity
This answering defendant alleges that if plaintiff claims exposure to asbestos or
asbestos-containing products at a ABEX premises, ABEX contracted with plaintiff and/or
plaintiffs employer(s) for them to fully assume all responsibility for insuring plaintiff's
safety, to guarantee that no hazardous condition existed, and/or to warn and protect
against any such conditions, during the performance of plaintiff's work, and, further, to
fully indemnify ABEX, and to hold ABEX harmless, for all responsibility and liability
arising out of said work, and/or any injuries allegedly incurred by plaintiff as a result of
any of said work. ABEX reserves all rights to assert these provisions of contractual
indemnity.
DR
PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSBRYDON
HUGO & PARKER
(135 MAIN STREET
20" FLOOR,
‘Stn Proncisna, CA 94165
FORTY-FOURTH AFFIRMATIVE DEFENSE
- Consent
This answering defendant alleges that at all times mentioned, plaintiff consented to
the alleged acts or omissions of ABEX.
FORTY-FIFTH AFFIRMATIVE DEFENSE
Unusual Susceptibility
This answering defendant alleges that each of plaintiff's injuries and damages, if
any, were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic
condition, unusual susceptibility, or hypersensitivity reactions for which ABEX is not liable.
FORTY-SIXTH AFFIRMATIVE DEFENSE
Good Faith
This answering defendant alleges that plaintiff's claim for punitive damages is
barred because ABEX at all times and places mentioned in the Complaint acted reasonably
and in good faith, and without malice or oppression towards the plaintiff,
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Sophisticated User
This answering defendant alleges that ABEX was under no legal duty to warn
plaintiff of the hazard associated with the use of products containing asbestos or their
existence at any premises owned, operated, controlled or otherwise by ABEX. The
purchasers of said products, the plaintiff, plaintiffs employers, his unions or certain third
parties yet to be identified, were knowledgeable and sophisticated users and were ina
better position to warn plaintiff of the risk associated with using products containing
asbestos and, assuming a warning was required, it was the failure of such persons or
entities to give such a warning that was the proximate and superseding cause of plaintiff's
damages, if any.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSOo Co SM OD UH BR LD Mm
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BRYDON
Huco & PARKER
‘135 Maks STREET
20" Fico
‘San Francisco, CA 94105
FORTY-FIGHTH AFFIRMATIVE DEFENSE
Work Hazard Precautions
This answering defendant alleges that plaintiff's employer(s) was/were advised and
warned of any potential hazards and/or dangers associated with the normal and
foreseeable conduct with, or storage and disposal of the products referred to in the
Complaint, in a manner which was adequate notice to an industrial user of such product to
enable it to inform its employees to take appropriate work precautions to prevent injurious
exposure.
FORTY-NINTH AFFIRMATIVE DEFENSE
Failure to Join Indispensable Parties
Plaintiff herein has failed to join indispensable parties (California Code of Civil
Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby precluded
from any recovery whatsoever as prayed for herein.
FIFTIETH AFFIRMATIVE DEFENSE
No Standing Under California Civil Code §§ 1708-1710
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, §§ 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.
FIFTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff is not a Real Party in Interest
Plaintiff, and each of them, 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.
FIFTY-SECOND AFFIRMATIVE DEFENSE
Fraud and Conspiracy are Not Separate Forms of Damages
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
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSw
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Brypox
Huco & PARKER
135 Mann Sacer
20" FLOOR
‘San Pranvisen, CA 84108
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.
FIFTY-THIRD AFFIRMATIVE DEFENSE
Failure to Allege with Particularity
This answering defendant alleges that plaintiff's Complaint fails to set out its claims
with sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
defendant reserves the right to add additional defenses as the factual basis for these claims
becomes known.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
Negligent Hiring Claim Invalid
An employee of an independent contractor may not pursue a claim for negligent
hiring against a hirer of the independent contractor. (See Camargo v. Tjaarda Dairy (2001) 25
Cal. 4th 1235.)
FIFTY-FIFTH AFFIRMATIVE DEFENSE
Right to Amend
This defendant will assert any and all additional defenses that arise during the
course of this litigation and reserves the right to amend its answer to assert such defenses.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
Alternate Unknown Cause
The alleged injuries and damages, if any, may be in whole or in part due to injury,
disease or cause other than as alleged.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
No Concert of Action
There is no concert of action between defendant and any of the other named
defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be
held jointly and severally liable with the other named defendants.
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PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSOo wm SW DA WA
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Brydon
HuGo & PARKER
135 ManeSrecer
Son Franeisen, CA 94105
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Misnomer of Party and Insufficient Service of Process
The answering Defendant alleges that plaintiffs Complaint and all purported causes
of action were improperly pleaded and served on PNEUMO ABEX LLC, who is misnamed
and erroneously sued. The correct entity for imposition of liability, if any, is Pneumo Abex
LLC successor in interest to Abex Corporation. As such, the service of the Summons and.
Complaint is insufficient service of process, under California Code of Civil Procedure
section 416.10 to subject this Defendant to the jurisdiction of the Court.
PRAYER |
WHEREFORE, this answering defendant prays for judgment as follows:
1. That Plaintiff takes nothing by reason of her Complaint or any claims stated
therein;
2. That Plaintiff's Complaint and each cause of action contained therein be
dismissed with prejudice against ABEX;
3. For costs of suit; and
4, For such other and further relief as the Court deems just and appropriate in
the circumstances.
Dated: august 2 2008 BRYDON HUGO & PARKER
By:
Edwatd R. Hugo
Bau L. Maw
Attorneys for Defendant
PNEUMO ABEX LLC
successor in interest to Abex Corporation
erroneously sued herein as PNEUMO
ABEX LLC
16
PNEUMO ABEX’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSOo Oo WN DA A He WwW
Alexander, Rufus
San Francisco County Superior Court Case No, CGC-08-274719
LexisNexis Transaction No. 20983198
PROOF OF SERVICE
Tam a resident of the State of California, over the age of 18 years, and not a
arty to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20" Floor, San
Francisco, California 94105, On the date below, I served the following:
ANSWER OF PNEUMO ABEX LLC successor in interest to Abex Corporation
erroneously sued herein as PNEUMO ABEX LLC TO COMPLAINT FOR
PERSONAL INJURIES - ASBESTOS
on the following:
BRAYTON PURCELL LLP (Novato) See LexisNexis Service List
22? Rush Landing Road
Novato, CA 9494
Fax: (415) 898-1247
o By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.
I declare under penalty of perjury that the above is true and correct.
Executed on August 7, 2008, at San ‘rancisco, California.
PROOF OF SERVICE