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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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28

MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

MANATT, PHELPS & PHILLIPS, LLP
BARRY W. LEE (Bar No. CA 088685)

VLADISLAV V. LUSKIN (Bar No. CA 139759) ELECTRONICALLY
MICHELLE GILLETTE (Bar No. CA 178734)
One Embarcadero Center, 30th Floor F . ILE D
San Francisco, CA 94111 Superior Court of California,
Telephone: (415) 291-7400 County of San Francisco
Facsimile: (415) 291-7474 DEC 17 2008
GORDON PARK-LI, Clerk
Attorneys for Defendant BY: JUDITH NUNEZ
WESTBURNE SUPPLY, INC. Deputy Clerk

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

RODRICK BRECKLER and JOANN Case No. CGC 08 274566
BRECKLER,
ANSWER OF WESTBURNE SUPPLY INC.
Plaintiffs, TO PLAINTIFFS’ UNVERIFIED
COMPLAINT

vs.
Complaint Filed: March 12, 2008
ASBESTOS DEFENDANTS,

Defendants.

Defendant Westburne Supply Inc. (“Westburne”) answers the unverified
Complaint (“Complaint”) filed by Plaintiffs RODRICK BRECKLER and JOANN BRECKLER,
(‘Plaintiffs’), as follows:

GENERAL DENIAL

Pursuant to Code of Civil Procedure § 431.30, defendant Westburne generally
denies each and every material charging allegation contained in the Complaint as to it and further
denies that Plaintiffs have been or will be damaged in any sum, or at all, by reason of any act or
omission of defendant Westburne.

AFFIRMATIVE DEFENSES
As separate affirmative defenses to the Complaint, defendant Westburne further

alleges as follows:

ANSWER OF WESTBURNE SUPPLY INC. TO PLAINTIFFS’ UNVERIFIED COMPLAINTo

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MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)

1 The Complaint, and each purported cause of action therein, fails to state
facts sufficient to allege a claim against defendant Westburne.

SECOND AFFIRMATIVE DEFENSE
(Failure to State Market Share Claim)

2. Defendant Westburne is informed and believes and on that basis alleges
that, to the extent the Complaint asserts “market share” or “enterprise” liability, the Complaint
fails to state facts sufficient to allege a claim against defendant Westburne.

THIRD AFFIRMATIVE DEFENSE
(Punitive Damages)

3. Defendant Westburne is informed and believes and on that basis alleges
that neither the Complaint nor any purported cause of action alleged therein states facts sufficient
to entitle Plaintiffs to an award of punitive damages against Westburne.

FOURTH AFFIRMATIVE DEFENSE
(Due Process Violation)

4. Defendant Westburne is informed and believes and on that basis alleges
that the imposition of any punitive damages against Westburne in this action would deprive
Westburne of its property without due process of law under the California and United States
Constitutions.

FIFTH AFFIRMATIVE DEFENSE
(Obligation of Contracts)

5. Defendant Westburne is informed and believes and on that basis alleges
that the imposition of any punitive damages against Westbume in this action would violate the
prohibition against laws impairing the obligations of contracts contained in the United States

Constitution.

SIXTH AFFIRMATIVE DEFENSE
(Criminal Fine or Penalty)

6. Defendant Westbourne is informed and believes and on that basis alleges
that the imposition of any punitive damages against Westburne in this action would constitute a

criminal fine or penalty and should, therefore, be remitted on the ground that the award violates
2

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MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

the United States Constitution.

SEVENTH AFFIRMATIVE DEFENSE
(Statute of Limitations)

7. Defendant Westburne is informed and believes and on that basis alleges
that Plaintiffs’ claims against defendant Westburne are barred by applicable statutes of limitation,
including but not limited to the limitation periods set forth in Code of Civil Procedure §§ 338,
339, 340.2 and Commercial Code § 2725.

EIGHTH AFFIRMATIVE DEFENSE
(Waiver, Laches, Unclean Hands, and Estoppel)

8. Defendant Westbourne is informed and believes and on that basis alleges
that Plaintiffs, by reason of their own acts and omissions, are barred from recovering from
defendant Westburne by the doctrines of waiver, laches, unclean hands and/or estoppel.

NINTH AFFIRMATIVE DEFENSE
(Fault of Plaintiff)

9. Defendant Westbourne is informed and believes and on that basis alleges
that the damages, if any, alleged in the Complaint were directly and proximately caused, in whole
or in part, by the negligence, carelessness, fault, recklessness, lack of due care, breach of contract,
deceit, fraud and/or other conduct of Plaintiff(s) and/or his/their agents, employees, servants and
contractors. Accordingly, Plaintiffs are barred from recovering against defendant Westburne for
any such damages or such damages are subject to a proportionate reduction on a comparative
fault basis for damages so caused.

TENTH AFFIRMATIVE DEFENSE
(Fault of Plaintiff(s))

10. Defendant Westburne is informed and believes and on that basis alleges
that the acts and omissions of Plaintiffs and/or their agents, employees, servants and contractors
with respect to the incidents, injuries and damages complained of in the Complaint, constitute
active and primary negligence. Said active and primary negligence directly and proximately
contributed to or caused the happening of the incidents, injuries and damages alleged in the

Complaint and, therefore, bars recovery by Plaintiffs against defendant Westburne.

3

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MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

ELEVENTH AFFIRMATIVE DEFENSE
(Assumption of Risk)

11. Defendant Westburne is informed and believes and on that basis alleges
that Plaintiff knowingly, voluntarily and unreasonably undertook. 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 damage incurred by Plaintiffs.

TWELFTH AFFIRMATIVE DEFENSE
(Fault of Third Parties)

12. Defendant Westburne is informed and believes and on that basis alleges
that the damages alleged in the Complaint were directly and proximately caused, in whole or in
part, by the negligence, carelessness, fault, recklessness, lack of due care, breach of contract,
deceit, fraud and/or other conduct of third parties and/or their agents, employees, servants and
contractors. Accordingly, if Plaintiffs are found to have sustained or to be entitled to any
damages whatsoever, defendant Westburne is not liable for those damages at all or is entitled to

indemnification. or contribution from third parties therefore.

THIRTEENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)

13. Defendant Westbourne is informed and believes and on that basis alleges
that Plaintiffs have failed to mitigate their alleged damages (if any there were) and, therefore, is
not entitled to recover any damages that Plaintiffs deliberately elected to incur or could have
avoided or reduced through reasonable efforts.

FOURTEENTH AFFIRMATIVE DEFENSE
(Misuse of Product)

i4. Defendant Westburne is informed and believes and on that basis alleges
that Plaintiff is barred from recovering damages alleged in the Complaint because Plaintiff and/or
third parties were not using defendant Westburne’s alleged product(s) for the purpose or in the
manner intended, if indeed any product(s) of defendant Westburne were used at all. If such use of
Westburne’s product(s) occurred, said conduct of Plaintiff and/or third parties constituted an

unforeseeable misuse of Westburne’s product(s),

4

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MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

FIFTEENTH AFFIRMATIVE DEFENSE
(Modification of Product)

15. Defendant Westburne is informed and believes and on that basis alleges
that Plaintiffs are barred from recovering damages alleged in the Complaint because Plaintiff
and/or third parties were not using defendant Westburne’s alleged products for the purpose or in
the manner intended, if indeed any products of defendant Westburne were used at all. If such use
of Westburne’s products occurred, said conduct of Plaintiff and/or third parties constituted an
unforeseeable and/or unauthorized modification, alteration or change of the products alleged in
the Complaint.

SIXTEENTH AFFIRMATIVE DEFENSE
(Conformance with Governmental Specification)

16. Defendant Westburne is informed and believes and on that basis alleges
that its products were manufactured, produced, supplied, sold or distributed in mandatory
conformity with specifications promulgated by the United States Government under its war
powers, as set forth in the United States Constitution; any recovery by Plaintiffs based on the
claims in the Complaint is barred by consequence of the exercise of those sovereign powers.

SEVENTEENTH AFFIRMATIVE DEFENSE
(Workers’ Compensation Set Off)

17. Defendant Westburne is informed and believes and on that basis 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 employers; that each of his employers was
negligent in and about the matters referred to in said Complaint; and that such negligence on the
part of said employers proximately contributed to the happening of the accident and to the loss
and damage complained of by Plaintiffs, if any there were; by reason thereof, defendant
Westburne is entitled to set off any such benefits received or to be received by Plaintiffs against
any judgment that may be rendered in favor of Plaintiff.

EIGHTEENTH AFFIRMATIVE DEFENSE
(Non-economic Damages)

18. Defendant Westburne is informed and believes and on that basis alleges

that, at the time of the injuries alleged in the Complaint, Plaintiff's employers were negligent in
5

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MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

and about the matters referred to in the Complaint; that such negligence on the part of said
employers proximately contributed to any loss or damage. including non-economic damages,
complained of by Plaintiffs, if any there were; and that defendant Westburne is not liable for said
employers’ proportionate share of non-economic damages.

NINETEENTH AFFIRMATIVE DEFENSE
(Fair Responsibility Act of 1986)

19. Defendant Westburne denies any liability to Plaintiffs. If any liability
should be found against defendant Westburne, however, said liability shall not exceed that

provided for in the Fair Responsibility Act of 1986, Civil Code §§ 1431 et seq.

TWENTIETH AFFIRMATIVE DEFENSE
(Superseding and Intervening Cause)

20. Defendant Westburne is informed and believes and on that basis alleges
that at all times relevant hereto, all of plaintiff's employers 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 and intervening cause of

Plaintiff’s injuries, if any there were.

TWENTY-FIRST AFFIRMATIVE DEFENSE
(Limitations of Liability)

21. Defendant Westburne is informed and believes and on that basis alleges
that the written documentation comprising the contract of sale for the asbestos materials made the
subject of the Complaint contains certain exclusions and limitations of liability that exclude,

restrict or otherwise impair Plaintiffs’ ability to recover the damages alleged in the Complaint.

TWENTY-SECOND AFFIRMATIVE DEFENSE
(Lack of Timely Notices)

22. Defendant Westburne is informed and believes and on that basis alleges
that to the degree Plaintiffs’ claims are predicated on breach of warranty, such claims are barred
by Plaintiffs’ failure to give timely or proper notice thereof.

TWENTY-THIRD AFFIRMATIVE DEFENSE
(Lack of Privity)

23, Defendant Westburne is informed and believes and on that basis alleges

6

ANSWER OF WESTBURNE SUPPLY INC. TO PLAINTIFFS’ UNVERIFIED COMPLAINT1 | that to the degree Plaintiffs’ claims are predicated on breaches of warranty, such claims are barred

2 |} in that Plaintiffs do not have contractual privity with Westburne.
3 TWENTY-FOURTH AFFIRMATIVE DEFENSE
4 (State-of-the-Art Product)
24. Defendant Westburne is informed and believes and on that basis alleges
5
that Plaintiffs are barred from recovery from Westburne because the products allegedly sold by
6
defendant Westburne, if any, were state-of-the-art and therefore not defective in any manner.
7
TWENTY-FIFTH AFFIRMATIVE DEFENSE
8 (Percentage Market Share)
9 25. Defendant Westbourne is informed and believes and on that basis alleges
0 | that it did not and does not have a substantial percentage of the asbestos market and cannot
1 | therefore be held liable to Plaintiffs based on its alleged percentage share of the applicable
2 | market.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
3 (No Recovery for Economic Loss)
4 26. Defendant Westburne is informed and believes and on that basis alleges
5 | that, as a matter of law, Plaintiffs are not entitled to recover from defendant Westburne those
16 | economic losses alleged in the Complaint.
7 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
8 (No Liability for Failure to Warn)
27. Defendant Westburne is informed and believes and on that basis alleges
19
that it may not be held strictly liable to Plaintiff for any failure to warn Plaintiff of the risks
20
associated with the alleged injury-producing product by reason of defendant Westburne’s
21
unawareness of those risks through the reasonable application of scientific knowledge at the time
22
of alleged distribution.
23
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
24 (Action Barred by Labor Code)
25 28. Defendant Westburne is informed and believes and on that basis alleges

26 || that the Complaint is barred by the provisions of sections 3601 et seq. of the Labor Code of the
27 || State of California.

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MANAST, PHBLES & 7
PHILLIPS, LLP

Atronstys AY Law ANSWER OF WESTBURNE SUPPLY INC. TO PLAINTIFFS’ UNVERIFIED COMPLAINT

San Praneisceso

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MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

TWENTY-NINTH AFFIRMATIVE DEFENSE
(Statute Void for Vagueness)

29. Defendant Westburne is informed and believes and on that basis alleges
that the California punitive damages statute is unconstitutional in that, among other things, it is
void for vagueness, violative of the equal protection, due process and excess fines clauses and is

an undue burden on interstate commerce.

THIRTIETH AFFIRMATIVE DEFENSE
(Failure to State Fraud Claim)

30. The causes of action sounding in misrepresentation, fraud, and/or deceit
fail to state specific facts sufficient to allege a claim against defendant Westburne.

WHEREFORE, defendant Westburne prays for judgment as follows:

1. That Plaintiffs take nothing from defendant Westburne by way of their
complaint;

2. That judgment on the Complaint be entered in favor of defendant

Westburne and against Plaintiffs;

3. For Westburne’s costs incurred herein; and
4. For such other and further relief as the Court may deem just and proper.
Dated: December 17, 2008 MANATT, PHELPS & PHILLIPS, LLP

By:_/s/ Vladislay V. Luskin

Vladislav V. Luskin
Attorneys for Defendant
WESTBURNE SUPPLY, INC.

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ANSWER OF WESTBURNE SUPPLY INC. TO PLAINTIFFS’ UNVERIFIED COMPLAINTo

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MANATT, PHELPS &
Pures, LLP
Avtoxseys AT Law
San Praneisces

Rodrick and Joann Breckler y. Asbestos Defendants et, al.. Case Number: 274566

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, Faye M. Stephenson, declare:

That I am, and was at the time of service of the documents herein referred to, over
the age of 18 years, and not a party to the action; and I am employed in the County of San
Francisco, California. My business address is MANATT, PHELPS & PHILLIPS, One
Embarcadero Center, 30th Floor, San Francisco, California 94111-3719.

On the date executed below, I electronically served the document via LexisNexis
File & Serve described as follows:

ANSWER OF WESTBURNE SUPPLY INC. TO PLAINTIFFS’ UNVERIFIED
COMPLAINT

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. | 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 December 17, 2008, at San Francisco,
California.

/s/__Faye M. Stephenson
Faye M. Stephenson

90044 138.1

ANSWER OF WESTBURNE SUPPLY INC. TO PLAINTIFFS’ UNVERIFIED COMPLAINT