Order: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                1    CHRISTOPHER D. STRUNK (SBN: 214110)
                           cstrunk@grsm.com
                      2    JAMES H. MOKHTARZADEH (SBN: 319860)
                                                                                                                 ELECTRONICALLY
                           jmokhtarzadeh@grsm.com
                      3    GORDON REES SCULLY MANSUKHANI, LLP                                                       F  I  L   E  D
                                                                                                                 Superior Court of California,
                           1111 Broadway, Suite 1700                                                              County of San Francisco
                      4    Oakland, CA 94607
                           Telephone:     (510) 463-8685                                                             07/20/2022
                      5    Facsimile:    (510) 984-1721                                                          Clerk of the Court
                                                                                                                   BY: SANDRA SCHIRO
                                                                                                                              Deputy Clerk
                      6    Attorneys for Intervenor TRAVELERS INDEMNITY CO., intervening on behalf of defunct
                           corporation SFL, INC.
                      7

                      8                                      SUPERIOR COURT OF CALIFORNIA

                      9                                          COUNTY OF SAN FRANCISCO

                    10     ROBERT ROSS and JEAN ROSS                                  )  CASE NO.       CGC-10-275731
                                                                                      )
                    11                                         Plaintiffs,            )  DECLARATION OF CHRISTOPHER
         Gordon Rees Scully Mansukhani, LLP




                                                                                      )  D. STRUNK IN SUPPORT OF
                    12              vs.                                                  TRAVELERS INDEMINITY
               1111 Broadway, Suite 1700




                                                                                      )
                                                                                      )  COMPANY’S MOTION TO SET
                   Oakland, CA 94607




                    13     C.C. MORE & CO. ENGINEERS et al,                              ASIDE DEFAULT AND DEFAULT
                                                                                      )  JUDGEMENT ENTRED AGAINST
                    14                                         Defendants.            )  SFL, INC.
                                                                                      )
                    15                                                                )
                                                                                      )  Accompanying Documents:
                    16                                                                )  1.  Memorandum of Points and
                                                                                      )  Authorities
                    17                                                                )  2.  Declaration of Christopher D. Strunk
                                                                                      )  3.  Declaration of Scott Homersham
                    18                                                                )  3.  [Proposed] Order
                                                                                      )
                    19                                                                )
                                                                                         Date:    August 15, 2022
                    20                                                                )  Time:    9:30 a.m.
                                                                                      )  Dept:    514
                    21                                                                )  Judge:   Hon. Cynthia Ming-Mei Lee
                                                                                      )
                    22

                    23              I, Christopher D. Strunk, declare:
                    24              1.       I am    an  attorney    at  law,  a  member      in  good    standing    of  the  State   Bar   of
                    25     California     and   duly   admitted    to  practice    before    this  and   other   courts.    I  practice   with
                    26     Gordon      Rees    Scully   Mansukhani,        LLP,    attorneys     of  record    for   Intervenor     Travelers
                    27     Indemnity      Company       (“Travelers”),     intervening      on  behalf    of  defunct    corporation      SFL,
                    28     Inc.  (“SFL”)      in  this  action,   and   am    one   of  the   attorneys    chiefly    responsible     for  this
                                                                                    -1-
                                DECLARATION OF CHRISTOPHER D. STRUNK IN SUPPORT OF INTERVENOR'S
                                           MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
                      1    representation.       In   that  capacity    I  have    personal    knowledge       regarding     filings   in  and
                      2    matters    related  to  this  case  and   all the  matters    contained     in this  declaration.     I make    this
                      3    declaration     in  support     of  the   Traveler’s     motion     to  set  aside   the   default    and   default
                      4    judgment entered against SFL.
                      5             2.       The   California     Secretary     of  State  identifies    multiple    corporate     entities   in
                      6    existence    over   the  years,   which    use  some    iteration   of  the  tradename      “SFL.”1     However,
                      7    the  most   recent   SFL    entity –   SFL,   Inc.  –  was   registered    with   the  California    Secretary of
                      8    State   on  January     7, 1987    after  what    appeared     to  be  multiple    mergers     with   predecessor
                      9    entities and was assigned entity number C1396102.
                    10              3.       Six   years   later,  in  May     10,   1993,   SFL     elected   to  dissolve,    stating    “the
                    11     corporation’s known debts have been actually paid” and “the corporation’s known assets
         Gordon Rees Scully Mansukhani, LLP




                    12     have    been   distributed.”     A  true   and   correct   copy    of  the   Certification    of  Dissolution      is
               1111 Broadway, Suite 1700
                   Oakland, CA 94607




                    13     attached hereto as Exhibit A.
                    14              4.       Importantly, the Secretary of State’s website identifies SFL, Inc.’s agent for
                    15     service   of  process    as Blair   Sweet,    Jr., with   an  address   of  4030    Birch   St., #103,    Newport
                    16     Beach, CA 92660.
                    17              5.       Plaintiffs   filed  their  second    amended      complaint     on   May    16,  2011    alleging
                    18     Plaintiff    Robert    Ross    contracted      colon    cancer,    asbestosis     and    pleural   disease     from
                    19     exposure to asbestos during his career as an insulator.                 A year later, a default was entered
                    20     against   SFL    on  April    5, 2012.     The   Proof   of  Service    on  the   summons      and   default   (and
                    21     later  attached    to the  default   judgment)      did  not  serve   SFL’s    agent   for  service    of process.
                    22     Instead,    Plaintiffs’   proof   of  service    of  the  summons       showed     service    of  process    on,  as
                    23     typed    by   Plaintiffs’    counsel,    “Kim     Massey,      Office    Manager,      Authorized      to   Accept
                    24     Service    of  Process”       at 12115     Lakeside     Ave.,    Lakeside,     CA    92040-1712.        Plaintiffs’
                    25
                           11) S.F.L. Inc. which was registered on February 25, 1981 and is now suspended by the
                    26     Franchise Tax Board; 2) SFL Inc., which was incorporated on June 23, 1952 and was merged out
                           (“SFL I”); 3) SFL, Inc. which was registered on March 7, 1967 and is now suspended by the
                    27     Franchise Tax Board (“SFL II”); and 4) SFL, Inc. which was registered on January 7, 1987 and
                           is now dissolved.     True and correct copies of excerpts from the records of the Secretary of State
                    28     are attached hereto as Exhibit D.
                                                                                    -2-
                                DECLARATION OF CHRISTOPHER D. STRUNK IN SUPPORT OF INTERVENOR'S
                                           MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
                      1    proof   of  service    of process    of  the   entry  of  default,   however,      lists “Thomas      M.   Towne,
                      2    Authorized Agent for Service” at the same address.                  Five years later, on May 2, 2017, this
                      3    Court entered a default judgment in the amount of $1,395,967.72, against SFL. Plaintiffs
                      4    filed a dismissal of their entire complaint on March 15, 2019.                    A true and correct copy of
                      5    the Proofs of Service are attached to the Strunk Decl. as Exhibit B
                      6             6.       When     this  case   was    tendered    to  Travelers     by   Plaintiffs’   counsel,     so  too
                      7    were    three  other   cases   implicating     SFL.2    Further    complicating      these   issues,   one   of  the
                      8    complaints, Jerry Verworn v. Soco West, Inc. et al., lists a company named “Daniels Dry
                      9    Wall, Inc” as an alternate entity for SFL.
                    10              7.       After    assignment,      my    team    began     to  research     the   extensive     corporate
                    11     histories   of  “SFL,    Inc.”   and   “Daniels    Dry   Wall,    Inc.”  to  determine     whether     the  correct
         Gordon Rees Scully Mansukhani, LLP




                    12     entity had been sued, and whether any connection between “Daniels Dry Wall, Inc.” and
               1111 Broadway, Suite 1700
                   Oakland, CA 94607




                    13     “SFL, Inc.” could be identified.
                    14              8.       Extensive     research     into  these   entities,   including     investigations      involving
                    15     multiple    percipient    witnesses,    reveled    there  were    are  multiple   companies      registered    with
                    16     the California Secretary of State that involve some iteration of the trade name“S F L,” all
                    17     of which are defunct. SFL is a named insured on a liability policy issued by Travelers.
                    18              9.       Moreover, after extensive research it was determined there is no discernable
                    19     connection     between      Travelers    insured,    SFL,   and   its  alleged   alternative    entity,   “Daniels
                    20     Dry Wall.”
                    21              10.       My firm was assigned this case in October of 2020, from the beginning of
                    22     their  involvement,      we   extensively     met   and  conferred     with   Plaintiffs’   counsel    to globally
                    23     resolve the group of cases concerning SFL.                 In fact, in two of the cases3 in May of 2021
                    24     Plaintiffs’   counsel    and   myself    negotiated    stipulations    that  (1)  the  respective     defaults   are
                    25

                    26     2Joan McLain, et al. v. Crane Co. et al., SFSC Case. No. CGC-13-276208; Patricia Casey et al.,
                           v. Kaiser Gypsum Company, Inc. et al., SFSC Case No. CGC-11-275879; and Jerry Verworn v.
                    27     Soco West, Inc., et al., SFSC Case No.: CGC-17-276582.
                           3 Patricia Casey et al., v. Kaiser Gypsum Company, Inc. et al., SFSC Case No. CGC-11-275879;
                    28     and Jerry Verworn v. Soco West, Inc., et al., SFSC Case No.: CGC-17-276582
                                                                                    -3-
                                DECLARATION OF CHRISTOPHER D. STRUNK IN SUPPORT OF INTERVENOR'S
                                           MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
                      1    not  enforceable     against    Travelers    and   (2)  allowing    for  unopposed      intervention     on  behalf
                      2    of  the  SFL    to defend    its  and   Travelers’    interest.    It further   bears   mentioning      that  when
                      3    this case was assigned and being handled, my firm’s Northern California offices was still
                      4    implementing and         evaluating procedures         designed to protect the health and safety of              our
                      5    many    attorneys    and   staff  in  light  of  the  on-going    COVID-19        pandemic      and   its variants.
                      6    This   included     employing      work-from-home          and   hybrid    schedules.      Implementing       these
                      7    procedures      inevitably,    as   with   many     companies       in  this  county,    led   to  reductions     in
                      8    efficiency.
                      9             11.       At the same time that the parties entered into that those stipulations, it was
                    10     understood      that  similar   course   of  conduct     should   be   pursued    in  this case   and   the  fourth
                    11     case.4   Thereafter, Travelers intervened on behalf of its insured in the Verworn and Casey
         Gordon Rees Scully Mansukhani, LLP




                    12     matters.    The parties, however, agreed that this case and Joan McLain, et al. v. Crane Co.
               1111 Broadway, Suite 1700
                   Oakland, CA 94607




                    13     et al. should be left alone while the other two cases resolved.
                    14              12.      To    reach    these    settlements,      my    office    served     discovery     to   evaluate
                    15     plaintiffs’   claims.    Moreover,      after  extensive    settlement     negotiations     and   discussions     of
                    16     lack any product identification, Plaintiffs’ counsel produced declaration in February 2022
                    17     from the plaintiff in Verworn matter providing an identification of the insured.
                    18              13.      After    the   declaration     was    produced,      my    team    and    Plaintiffs’    counsel
                    19     reached    terms    of  settlement    in  both   the  Verworn      and   Casey    and   officially   resolved    the
                    20     cases   in  May    of  2022.     Thereafter,    and   pursuant     to the   aforementioned       agreement,      my
                    21     team then turned to resolving the default judgments entered against its insured in this case
                    22     and   the  Ross   case.    An   endeavor     that  is, as  recognized      by  Plaintiffs’   counsel,    made    far
                    23     more complex by nature of the respective judgments and procedural statuses of the cases.
                    24              14.      While     litigating   and    resolving     the   Casey     and   Verworn       cases,   counsel
                    25     exercised     appropriate     diligence     in  investigating     these   claims,    and   continued     to  spend
                    26     significant    amounts     of  time  researching      its insured   and   the  multiple    SFL    entities.  Given
                    27     the  stale  nature    of  these   claims,   and   the   decades    that  have    elapsed    since   these   entities
                    28     4 Joan McLain, et al. v. Crane Co. et al., SFSC Case. No. CGC-13-276208
                                                                                    -4-
                                DECLARATION OF CHRISTOPHER D. STRUNK IN SUPPORT OF INTERVENOR'S
                                           MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
                      1    have been in business, the task was difficult, complex, and time consuming, taking many
                      2    months     to make    even    a small   amount     of  progress.     My    team’s   efforts   included    multiple
                      3    searches of governmental and other entities in an effort to identify documents, and made
                      4    additional efforts which are subject to work product privilege and will not be specifically
                      5    identified    in these   papers.    However,      my    team   concluded      from   its extensive    efforts   that
                      6    Travelers     had   had    been   denied     an   opportunity     to   litigate  the   cases   filed   against    its
                      7    insured,   and   to  contest   the  facts  that  comprise     the  default   and   default   judgment     obtained
                      8    against SFL.
                      9             15.      Finally,   Travelers     is  prepared,    upon    setting   aside   the  default    and   default
                    10     judgment,      to   intervene     on   behalf    of   SFL    and    defend     the   case   via   an   answer-in-
                    11     intervention.     In fact, Travelers has already identified its affirmative defenses and drafted
         Gordon Rees Scully Mansukhani, LLP




                    12     its answer-in-intervention.          A   true  and   correct    copy   of  Travelers’     proposed     answer-in-
               1111 Broadway, Suite 1700
                   Oakland, CA 94607




                    13     intervention is attached hereto as exhibit C.
                    14               Executed on July 20, 2022 in Oakland, California.
                    15

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                    17
                                                                                 Christopher D. Strunk
                    18

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                    28
       1224477/68882264v.1
                                                                                    -5-
                                DECLARATION OF CHRISTOPHER D. STRUNK IN SUPPORT OF INTERVENOR'S
                                           MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
                                                          EXHIBIT                         A
                                                          EXHIBIT                         B
                                                          EXHIBIT                         C
                      1    CHRISTOPHER D. STRUNK (SBN: 214110)
                           cstrunk@grsm.com
                      2    JAMES H. MOKHTARZADEH (SBN: 319860)
                           jmokhtarzadeh@grsm.com
                      3    GORDON REES SCULLY MANSUKHANI, LLP
                           1111 Broadway Street, Suite 1700
                      4    Oakland, CA 94607
                           Telephone: (510) 463-8600
                      5    Facsimile:    (510) 984-1721

                      6    Attorneys for Intervenor TRAVELERS INDEMNITY CO., intervening on behalf of defunct
                           corporation SFL, Inc.
                      7

                      8
                                                           SUPERIOR COURT OF CALIFORNIA
                      9
                                                                COUNTY OF SAN FRANCISCO
                    10

                    11     ROBERT ROSS and JEAN ROSS                                  )   CASE NO. CGC-10-275731
                                                                                      )
                    12                              Plaintiff,                        )   INTERVENOR TRAVELERS
          Gordon Rees Scully Mansukhani, LLP




                                                                                      )   INDEMNITY COMPANY,
                    13                       v.                                       )   INTERVENING ON BEHALF OF SFL,
                                                                                      )   INC.’S ANSWER IN INTERVENTION
                 1111 Broadway, Suite 1700




                    14     C.C. MORE & CO. ENGINEERS ET AL,                           )
                                   94607




                                                                                      )
                    15                             Defendants.                        )
                    Oakland, CA




                                                                                      )
                    16                                                                )
                                                                                      )
                    17                                                                )

                    18              Intervenor    TRAVELERS          INDEMNITY          COMPANY          (hereinafter   “INTERVENOR”),

                    19     intervening on behalf of       SFL,   INC.  (“SFL”), pursuant to Code of Civil Procedure              Section 387,

                    20     and by leave of Court, alleges.

                    21              1.       On   ______,    2022,   the  Court   granted   INTERVENOR           leave   to intervene    in the

                    22     above-entitled action to file this Complaint in Intervention

                    23              2.       INTERVENOR           is, and  at  all times   herein   mentioned     was,   a  corporation    duly

                    24     authorized to transact insurance business in California.

                    25              3.       INTERVENOR issued a liability policy to insured SFL.

                    26              4.       Plaintiffs  filed  the  present  action   on  May    16,  2011    against   several  defendants,

                    27      including SFL. Default was entered against SFL on April 5, 2012.                    A default judgment was
                    28


                                                                                   -1-
                              INTERVENOR TRAVELERS INDEMNITY COMPANY, INTERVENING ON BEHALF OF SFL, INC.’S ANSWER IN
                                                                             INTERVENTION
                      1     entered against SFL on May 2, 2017.               The default and default judgment were vacated on
                      2     _____, 2022.
                      3             5.         Under    current   law,  Revenue     and   Taxation    Code    §  19719    and  the  California

                      4    Court   of  Appeals    case  Kaufman     &   Broad   communities      v. Performance      Plastering   (2006)    136

                      5    Cal.App.4th 212, INTERVENOR may defend their insured, SFL, but they have no means other

                      6    than  intervention    to litigate  liability or  damages     issues  as  to SFL.    Therefore,    INTERVENOR

                      7    files this Complaint in Intervention to protect their interests and those of SFL.

                      8             6.       INTERVENOR participates in the defense of SFL under an express reservation of

                      9    rights, and reserves all rights available to it under its policy of insurance and California law and
                    10     does not waive     any rights or concede any coverage defense(s)             as a  result  of its defense of SFL

                    11     herein.   INTERVENOR          is  not  conceding     any   coverage    defense    it may    have   in  this  matter.

                    12     INTERVENOR moves to intervene subject to the terms and conditions of its policies and subject
          Gordon Rees Scully Mansukhani, LLP




                    13     to any   applicable   limit  of liability.   None   of  the  coverage   issues   shall expand    the  scope   of the
                 1111 Broadway, Suite 1700




                    14     underlying case.
                                   94607




                    15              7.       At  trial, INTERVENOR          seeks   to appear    under  the  name    of  their insured,   SFL,
                    Oakland, CA




                    16      Inc., in order to comply with California Evidence Code § 1155.

                    17              8.       INTERVENOR hereby answers plaintiffs’ Complaint as alleged against SFL, Inc.

                    18      (hereinafter    also   referred   to  as   "DEFENDANT")           on   its  own    behalf,   and   on   behalf    of

                    19      DEFENDANT, each and every cause of action set forth therein as follows:

                    20              10.      DEFENDANT denies each and every, all and singular, generally and specifically,

                    21     the allegations contained in the complaint, and each and every cause of action allegedly set forth

                    22     therein, as they may apply to this answering defendant.

                    23              11.      Further answering said unverified complaint, and each and every cause of action

                    24     allegedly   set  forth  therein,   DEFENDANT          and   INTERVENOR          deny   that  DEFENDANT          was

                    25     legally responsible in some manner for the circumstances and happenings, as alleged therein, or

                    26     at all, and   denies   that  plaintiff  has  been   damaged     in  the  manner    set  forth  in  said  unverified

                    27     complaint and each and every cause of action allegedly set forth therein.

                    28              12.      Further answering said unverified complaint, and each and every cause of action


                                                                                   -2-
                              INTERVENOR TRAVELERS INDEMNITY COMPANY, INTERVENING ON BEHALF OF SFL, INC.’S ANSWER IN
                                                                             INTERVENTION
                      1    allegedly   set  forth  therein,  DEFENDANT          denies   that  it was   negligent   and/or   careless   in  any

                      2    respect whatsoever, as alleged therein, or at all, and denies that plaintiff has been damaged in the

                      3    manner    set forth  in  said  unverified   complaint    and  each   and  every   cause   of action   allegedly set

                      4    forth therein.

                      5                                         FIRST AFFIRMATIVE DEFENSE

                      6             AS   AND     FOR     A  FIRST,     SEPARATE        AND     AFFIRMATIVE           DEFENSE       TO    SAID

                      7    COMPLAINT, this answering DEFENDANT and INTERVENOR allege that the complaint and

                      8    causes   of  action  therein  fail to  state  facts sufficient   to constitute   a cause   of  action  against   this

                      9    answering defendant.
                    10                                        SECOND AFFIRMATIVE DEFENSE

                    11              AS   AND     FOR   A   SECOND,       SEPARATE        AND    AFFIRMATIVE           DEFENSE       TO   SAID

                    12     COMPLAINT, this answering DEFENDANT and INTERVENOR allege that the plaintiffs were
          Gordon Rees Scully Mansukhani, LLP




                    13     careless   and   negligent   in  and   about   the  matters    referred   to in  the  complaint     and   that  such
                 1111 Broadway, Suite 1700




                    14     negligence    and  carelessness    on  the  part  of the  plaintiffs  proximately caused       and  contributed    to
                                   94607




                    15     the damages complained of, if any there were.
                    Oakland, CA




                    16                                         THIRD AFFIRMATIVE DEFENSE

                    17              AS   AND     FOR    A   THIRD,     SEPARATE         AND     AFFIRMATIVE          DEFENSE        TO   SAID

                    18     COMPLAINT,          this  answering     DEFENDANT          and   INTERVENOR           allege   that  the  plaintiffs

                    19     knew, or in the exercise of ordinary care, should have known of the risks and hazards involved in

                    20     the  undertaking    in  which   plaintiff  engaged,    but  nevertheless    and  with   full knowledge     of  these

                    21     things,   did  fully  and   voluntarily    consent    to  assume    the  risks   and   hazards   involved    in  the

                    22     undertaking.

                    23                                        FOURTH AFFIRMATIVE DEFENSE

                    24              AS   AND     FOR   A   FOURTH,       SEPARATE        AND    AFFIRMATIVE           DEFENSE       TO   SAID

                    25     COMPLAINT, this answering DEFENDANT and INTERVENOR allege that the plaintiffs were

                    26     solely and    totally negligent    in and  about   the  matters   referred  to in  the  complaint    and  that  such

                    27     negligence and carelessness on the part of the plaintiffs proximately amounted to One Hundred

                    28     Percent (100%) of the negligence involved in this case and was the sole cause of the injuries and


                                                                                   -3-
                              INTERVENOR TRAVELERS INDEMNITY COMPANY, INTERVENING ON BEHALF OF SFL, INC.’S ANSWER IN
                                                                             INTERVENTION
                      1    damages complained of, if any there were.

                      2                                         FIFTH AFFIRMATIVE DEFENSE

                      3             AS   AND     FOR     A  FIFTH,     SEPARATE        AND     AFFIRMATIVE           DEFENSE        TO   SAID

                      4    COMPLAINT,         this  answering    DEFENDANT           and  INTERVENOR          allege   that at  all times   and

                      5    places   mentioned     in   the  complaint,    plaintiff   and/or   other   persons    without   this   defendant's

                      6    knowledge      and   approval    redesigned,    modified,     altered,  and   used   this  defendant's     products

                      7    contrary to instructions and contrary to the          custom and practice of the industry.          This redesign,

                      8    modification, alteration, and use so substantially changed the product's character that if there was

                      9    a  defect  in  the product    -- which   is  specifically   denied   -- such   defect  resulted   solely  from   the
                    10     redesign,   modification,    alteration,   or other   such   treatment   or  change    and  not  from   any   act or

                    11     omission by this defendant. Therefore,          said defect, if any,    was   created  by plaintiff and/or     other

                    12     persons, as the case may be, and was the direct and proximate cause of the injuries and damages,
          Gordon Rees Scully Mansukhani, LLP




                    13     if any, that plaintiff and plaintiffs’ allegedly suffered.
                 1111 Broadway, Suite 1700




                    14                                          SIXTH AFFIRMATIVE DEFENSE
                                   94607




                    15              AS   AND     FOR    A   SIXTH,     SEPARATE         AND    AFFIRMATIVE           DEFENSE        TO   SAID
                    Oakland, CA




                    16     COMPLAINT, this answering DEFENDANT and INTERVENOR allege that any harm plaintiffs

                    17     incurred is due to the acts of parties other than this answering DEFENDANT, including but not

                    18     limited to other defendants named herein.

                    19                                       SEVENTH AFFIRMATIVE DEFENSE

                    20              AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

                    21     COMPLAINT,         DEFENDANT          and   INTERVENOR          allege  that  DEFENDANT’S           products   were

                    22     manufactured,       produced,     supplied,    sold   and    distributed    in   mandatory      conformity      with

                    23     specifications promulgated by the United States government under its war powers, as set forth in

                    24     the United States Constitution, and that any recovery by plaintiffs on the complaint on file herein

                    25     is barred in consequence of the exercise of those sovereign powers.

                    26                                        EIGHTH AFFIRMATIVE DEFENSE

                    27              AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

                    28     COMPLAINT, DEFENDANT and INTERVENOR allege that the asbestos-containing products,


                                                                                   -4-
                              INTERVENOR TRAVELERS INDEMNITY COMPANY, INTERVENING ON BEHALF OF SFL, INC.’S ANSWER IN
                                                                             INTERVENTION
                      1    if any,  for  which   it may   have   legal  responsibility   were   installed,  labeled,   assembled,    serviced,

                      2    supplied,   manufactured,      designed,   packaged,     distributed,   marketed,    and/or   sold  in  accordance

                      3    with contract specifications imposed by its co-defendants, by the U.S. government, by employers

                      4    of those who alleged exposed plaintiffs and by third parties yet to be identified.

                      5                                        NINTH AFFIRMATIVE DEFENSE

                      6             AS   AND     FOR    A   NINTH,     SEPARATE         AND     AFFIRMATIVE          DEFENSE        TO   SAID

                      7    COMPLAINT, this answering DEFENDANT and                       INTERVENOR allege that at the time of the

                      8    injuries  alleged   in  the  complaint    plaintiff  was   employed     and   was   entitled  to  and  did  receive

                      9    workers'   compensation      benefits   from  said  employer.      This  defendant    is informed    and  believes,
                    10     and  on  the  basis  of  said  information    and   belief  alleges  that, if the  conditions    as alleged   in the

                    11     plaintiffs’ complaint are found to exist, the plaintiff’s employer was negligent and careless in and

                    12     about   the  matters   referred   to  in  said  complaint     and  that  said  negligence     on  the  part  of  the
          Gordon Rees Scully Mansukhani, LLP




                    13     employer proximately caused or contributed to the injuries and damages, if any, complained of
                 1111 Broadway, Suite 1700




                    14     by  the  plaintiff,  and   further,  that  the  plaintiff’s   employer    assumed     the  risk  of  injury   to the
                                   94607




                    15     plaintiff, if any there    was,  in  that at the  time  and   place  of  the incident   such   conditions,   if any,
                    Oakland, CA




                    16     were   open   and  apparent    and  were   fully  known    to  the  plaintiff’s  employer;    and  that  by  reason

                    17     thereof, this defendant is entitled to set off any compensation benefits received or to be received

                    18     by the plaintiffs against any judgment which may be rendered in favor of the plaintiff herein.

                    19                                         TENTH AFFIRMATIVE DEFENSE

                    20              AS   AND     FOR    A   TENTH,     SEPARATE         AND     AFFIRMATIVE          DEFENSE        TO   SAID

                    21     COMPLAINT, this answering DEFENDANT and INTERVENOR allege that the complaint and

                    22     the causes of action therein are barred by the statutes of limitation and repose of California and

                    23     any other relevant state, including but not limited to the limitations set forth under sections 340.2

                    24     and 361 of the Code of Civil Procedure of the State of California.

                    25                                      ELEVENTH AFFIRMATIVE DEFENSE

                    26              AS   AND     FOR    AN    ELEVENTH,         SEPARATE        AND     AFFIRMATIVE          DEFENSE        TO

                    27     SAID     COMPLAINT,          this   answering     DEFENDANT           and   INTERVENOR            allege   that  the

                    28     plaintiffs    unreasonably       delayed     in   bringing     this   action    against     DEFENDANT            and


                                                                                   -5-
                              INTERVENOR TRAVELERS INDEMNITY COMPANY, INTERVENING ON BEHALF OF SFL, INC.’S ANSWER IN
                                                                             INTERVENTION
                      1    INTERVENOR          and  that  such   delay substantially prejudiced       this answering DEFENDANT              and

                      2    INTERVENOR.          Therefore, this action is barred by the doctrine of laches.

                      3                                      TWELFTH AFFIRMATIVE DEFENSE

                      4             AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

                      5    COMPLAINT, this answering DEFENDANT and INTERVENOR allege that the complaint and

                      6    the causes of action therein fail to state facts sufficient to constitute a cause of action against this

                      7    answering defendant pursuant to sections 3600, et seq., of the California Labor Code.

                      8                                    THIRTEENTH AFFIRMATIVE DEFENSE

                      9             AS   AND     FOR    A  THIRTEENTH,          SEPARATE        AND     AFFIRMATIVE           DEFENSE       TO
                    10     SAID    COMPLAINT,          this answering     DEFENDANT          and  INTERVENOR           allege  that  plaintiff's

                    11     employer     was   contributorily    negligent    and  careless   in  and   about   the  matters   alleged    in the

                    12     complaint, and that such negligence and carelessness was a proximate cause of any injuries and
          Gordon Rees Scully Mansukhani, LLP




                    13     damages suffered by plaintiffs, if any there were.
                 1111 Broadway, Suite 1700




                    14                                    FOURTEENTH AFFIRMATIVE DEFENSE
                                   94607




                    15              AS   AND     FOR    A  FOURTEENTH,          SEPARATE         AND    AFFIRMATIVE           DEFENSE       TO
                    Oakland, CA




                    16     SAID    COMPLAINT,          this answering     DEFENDANT          and  INTERVENOR           allege  that  plaintiff's

                    17     employer voluntarily and knowingly entered into and engaged in the operations, acts and conduct

                    18     alleged in said complaint, and voluntarily and knowingly assumed all of the risks incident to said

                    19     operation, acts and conduct alleged in said complaint, and voluntarily and knowingly assumed all

                    20     of the risks incident to said operations, acts and conduct at the time and place mentioned in the

                    21     complaint.

                    22                                      FIFTEENTH AFFIRMATIVE DEFENSE

                    23              AS   AND     FOR     A   FIFTEENTH,        SEPARATE         AND     AFFIRMATIVE          DEFENSE        TO

                    24     SAID     COMPLAINT,          this   answering     DEFENDANT           and   INTERVENOR            allege   that  the

                    25     plaintiffs acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if

                    26     any, of this answering defendant, thus barring plaintiff from any relief as prayed for herein.

                    27                                      SIXTEENTH AFFIRMATIVE DEFENSE

                    28              AS   AND     FOR     A  SIXTEENTH,         SEPARATE         AND     AFFIRMATIVE          DEFENSE        TO


                                                                                   -6-
                              INTERVENOR TRAVELERS INDEMNITY COMPANY, INTERVENING ON BEHALF OF SFL, INC.’S ANSWER IN
                                                                             INTERVENTION
                      1    SAID     COMPLAINT,         this  answering     DEFENDANT           and   INTERVENOR           are  informed     and

                      2    believe   and   therefore    allege  that  plaintiff   is unable    to  identify   the  actual   manufacturer     or

                      3    manufacturers of the asbestos products which allegedly caused the injury which forms the basis

                      4    of the complaint herein, and that said manufacturers were entities other than this DEFENDANT.

                      5    Therefore, this defendant may not be held liable for the injury of the plaintiff and plaintiffs.

                      6                                  SEVENTEENTH AFFIRMATIVE DEFENSE

                      7             AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO

                      8    SAID    COMPLAINT,          this answering     DEFENDANT          and   INTERVENOR          alleges   that plaintiff

                      9    and plaintiff's employer were and are sophisticated users and knew independently or reasonably
                    10     should   have   known     of any   danger   or  hazard   associated    with  the  use   of a  product   containing

                    11     asbestos and of exposure to high levels of dust of any sort.

                    12                                     EIGHTEENTH AFFIRMATIVE DEFENSE
          Gordon Rees Scully Mansukhani, LLP




                    13              AS   AND FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE                                      DEFENSE TO
                 1111 Broadway, Suite 1700




                    14     SAID COMPLAINT, this answering DEFENDANT and INTERVENOR allege that at all times
                                   94607




                    15     alleged   in the  complaint    the products    alleged   to have   caused   plaintiffs’  injuries  were   designed,
                    Oakland, CA




                    16     manufactured, sold, distributed, labeled and advertised in compliance with the then existing state

                    17     of the art in the industry to which this defendant belonged and furthermore, that the benefits of

                    18     any such product design outweighed any risk of danger in the design and that any such product

                    19     met the safety expectations of plaintiffs and the general public.

                    20                                     NINETEENTH AFFIRMATIVE DEFENSE

                    21              AS   AND FOR AN NINETEENTH, SEPARATE                         AND AFFIRMATIVE              DEFENSE TO

                    22     SAID    COMPLAINT,          this  answering    DEFENDANT           and  INTERVENOR           allege  the  plaintiffs

                    23     have   released,   settled,  entered   into  an  accord   and   satisfaction   or  otherwise    compromised       his

                    24     claims   herein,   and   accordingly,     said  claims    are  barred    by  operation    of  law;   alternatively,

                    25     plaintiffs  have    accepted    compensation      as  partial  settlement    of  those   claims    for  which    this

                    26     DEFENDANT and INTERVENOR are entitled to a set-off.

                    27                                     TWENTIETH AFFIRMATIVE DEFENSE

                    28              AS   AND     FOR    A   TWENTIETH,         SEPARATE         AND     AFFIRMATIVE          DEFENSE        TO


                                                                                   -7-
                              INTERVENOR TRAVELERS INDEMNITY COMPANY, INTERVENING ON BEHALF OF SFL, INC.’S ANSWER IN
                                                                             INTERVENTION
                      1    SAID    COMPLAINT,         there  was   no  negligence,    gross  negligence,    willful,  wanton,    or malicious

                      2    misconduct,     reckless  indifference    or  reckless   disregard   of  the rights  of  the  plaintiff, or  malice

                      3    (actual,  legal,  or  otherwise)    on   the  part  of  this  DEFENDANT          or  INTERVENOR           as  to the

                      4    plaintiffs herein.

                      5                                  TWENTY-FIRST AFFIRMATIVE DEFENSE

                      6             AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO

                      7    SAID COMPLAINT, at all times and places mentioned in the complaint, plaintiffs have failed to

                      8    make reasonable efforts to mitigate injuries and damages, if any.

                      9                                TWENTY-SECOND AFFIRMATIVE DEFENSE
                    10              AS   AND    FOR    A  TWENTY-SECOND,              SEPARATE        AND     AFFIRMATIVE          DEFENSE

                    11     TO SAID COMPLAINT, the plaintiffs, prior to the filing of this complaint, never informed this

                    12     DEFENDANT or INTERVENOR, by notification or otherwise, of any breach of express and/or
          Gordon Rees Scully Mansukhani, LLP




                    13     implied   warranties;    consequently,     their claims   of  breach   of  express   and/or   implied    warranties
                 1111 Broadway, Suite 1700




                    14     against this defendant are barred.
                                   94607




                    15                                   TWENTY-THIRD AFFIRMATIVE DEFENSE
                    Oakland, CA




                    16              AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO

                    17     SAID COMPLAINT, the injuries to, and damages of plaintiff and plaintiffs, if any, were directly

                    18     caused   by the   conduct   of  JOHNS-MANVILLE             SALES     CORPORATION,           its predecessors     and

                    19     successors    in  interest, its  parent  company      or companies,     its affiliates,  subsidiaries,   or  related

                    20     companies and enterprises.

                    21                                 TWENTY-FOURTH AFFIRMATIVE DEFENSE

                    22              AS   AND    FOR    A  TWENTY-FOURTH,              SEPARATE        AN