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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
Preview

                                PLD-050

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bs ber, aad address): COURT
__ Bernard T. Cotter, Esq., SBN: 30653 oneness ee ror Ose outy
McDOWALL COTTER, A.P.C.

2070 Pioneer Ct, San Mateo, CA 94403 ELECTRONICALLY
TELEPHONE NO: 650-572-7933 saxo, copsaray 650-572-0834 FILED
EMALADDRESS (Ontonah: Ocotter@medlawyers.net_ Superior Court of California]
ATTORNEY FOR (tame Defendant, Beta Mechanical Contractors, L.P. County of San Francisco
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO JUL 17 2012
street aporess. 400 McAllister St. Clerk of the Court
MAILING ADDRESS: / BY: ANNIE PA! AI
cry ano zip cove: San Francisco, CA 94102 Sony Cletk
BRANCH NAME:

PLAINTIFFIPETITIONER: ROBERT ROSS and JEAN ROSS
DEFENDANT/RESPONDENT: C.C. MOORE & CO. ENGINEERS et al.

CASE NUMBER:

GENERAL DENIAL ASBESTOS: CGC-10-275731

If you want to file a genera] denial, you MUST use this form if the amount asked for in the complaint or the value of the property
involved is $1,006 or less.
You MAY use this form for a general denia! if

1. The complaint is not verified; or

2. The complaint is verified and the case is a limited civil case (the amount in controversy is $25,000 or less),
BUT NOT if the complaint involves a claim for more than $1,000 that has been assigned to a third party for collection.

(See Code of Civil Procedure sections 85-86, 90-100, 431.30, and 431.40.)

1, DEFENDANT (name): BETA MECHANICAL CONTRACTORS, L-P., defunct since 1969,
generally denies each and every allegation of plaintiffs complaint.
2. Lv} DEFENDANT states the following FACTS as separate affirmative defenses to plaintiff's complaint (attach additional
pages if necessary):
Note this is a Gencral Denial with affirmative defenses to plaintiffs' Third Amended Complaint.

Please see attached for affirmative defenses and prayer.

Date: July 12, 2012.
Bernard T. Cotter, Esq.

(TYPE OR PRINT NAME]
If you have a claim for damages or other relief against the plaintiff, the law may require yau to state your claim in a special pleading
called a cross-complaint or you may lose your right to bring the claim. (See Code of Civil Procedure sections 426.10-426.40.)
The original of this General Denial must be filed with the clerk of this court with proof that a copy was served on each plaintiffs
attorney and on each plainti#f not represented by an attorney. There are two main ways to serve this General Deniaf: by personal
delivery or by mail. It may be served by anyone at least 18 years of age EXCEPT you or any other party to this legal action. Be sure
that whoever serves the Genera! Denia! fills out and signs a proof of service. You may use the applicable Judicial Council form (such
as form POS-020, POS-030, or POS-040) for the proof of service.

(SIGNATURE OF DEFENDANT OR ATTORNEY)

Page 1 of f

Ferm Adapted for Mandatery Use Code of Gril Procadure, §§ 431.80, 431.40
Judicial Counc af Catfemia . GENERAL DENIAL wh courtnie.ce.gce
PLD-060 [Rev January 1, 2008]om NY DR NW BF WwW YN He

Boe ee
SB WN FP OS

15

SEPARATE AFFIRMATIVE DEFENSES TO PLAINTIFFS’ THIRD AMENDED
COMPLAINT:

1. Neither the complaint, nor any alleged cause of action therein, states facts sufficient to
constitute a cause of action against this answering defendant.

2. Plaintiff's, Robert Ross’s, exclusive remedy is pursuant to the State of California Workers’
Compensation system and laws.

3. Neither the complaint, nor any alleged cause of action therein, meets the applicable statute
of limitations for the particular harm alleged.

4. Plaintiffs’ claims are barred by the equitable doctrine of laches in that this answering
defendant's last contact, if any, with plaintiff, Robert Ross, was over 43 years ago.

§. Plaintiffs, and each of them, actually and impliedly, were careless and negligent in and
about the matters set forth in their complaint, which said carelessness and negligence bars or
diminishes the relief sought.

6. Plaintiffs, and each of them, actually and impliedly, assumed the risk of the activity which
they claim caused their injuries and damages, which said assumption of risk bars or diminishes the
relief sought.

7. This defendant's conduct was not a substantial factor in causing injury to plaintiffs or
either of them.

8. Plaintiff, Robert Ross, knew as much or more about the product or process which allegedly
caused his injury than this answering defendant and, consequently, said plaintiff cannot deflect
blame from himself for any injury that may have been caused by the use of said product or process.

9. Plaintiff, Robert Ross, was a sophisticated user of the product which allegedly caused
plaintiffs’ injuries and damages, which use immunizes this answering defendant from responsibility

for plaintiffs’ injuries and damages. Johnson v, American Standard (2008) 43 C. (4) 56.

Page 1, General Denial to Third Amended Complaint

Case No: ASBESTOS: CGC-10-275731, Ross v. C.C. Moore et al.CO DAW Rw NY

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10. Plaintifis, and each of them, intentionally misused or abused or altered the product or
process which allegedly caused them to be harmed, which said action or actions immunizes this
answering defendant from responsibility for plaintiffs’ injuries and damages.

11. That plaintiffs, and each of them, were unusually sensitive to the product or process which
allegedly caused them to be harmed and, therefore, this answering defendant has non-existent
liability herein.

12. That the product or process allegedly causing injury to plaintiffs, at the time or times
alleged in the complaint, was commonly used in the construction industry and deemed to be a safe
product or process in conformity with all governmental rules and regulations and, therefore,
this answering defendant has non-existent liability herein.

13. Defendant’s market share liability, if any, is de minimus in that plaintiff, Robert Ross’s,
only contact with this answering defendant, if at all, for a time measured in hours or days in the
period 1964 to 1969.

14, Pursuant to Witt v. Jackson (1961) 57 C. (2) 57, plaintiff's, Robert Ross’s, employers,
were careless and negligent in and about the matters alfegedly causing said plaintiff to be harmed;
such carelessness and negligence is imputed to Robert Ross’s employers’ workers’ compensation
carriers so that any compensation award to any workers’ compensation carrier must be reduced by
the percentage negligence of plaintiff or plaintiffs aforesaid employers

15. That the provisions of Civil Code sec. 1431.2 (Prop 51) are applicable to plaintiffs’ claims
for non-economic relief sought herein.

16. Plaintiffs have failed to mitigate their alleged damages and, as a consequence, plaintiffs’
damages, if any, must be diminished by the extent of their failure to mitigate.

17. Plaintiffs cannot state a cause of action for punitive damages because there is no

underlying fraud, malice or oppression on the part of this answering defendant sufficient to support

Page 2, General Denial to Third Amended Complaint

Case No: ASBESTOS: CGC-10-275731, Ross v. C.C. Moore et al.such a claim.

18. Plaintiffs’ claim for punitive damages is violative of the Constitutions of the United States
and the State of California.

19, Plaintiff, Jean Ross, cannot state a cause of action for loss of consortium because she was
employed by others during and after the time her husband’s alleged harm occurred and, pursuant to
Robbins y. Roques (1932) 128 C.A. 1, any recovery herein would amount to a double recovery.

20. Defendant, Beta Mechanical Contractors, L.P., was in business from 1964 to 1969 and
stopped doing business in 1969 and has had no legal standing since that date.

21, For consistency and economy in pleading, defendant refers to and incorporates herein the
affirmative defenses pled by other defendants herein to the extent such defenses are not inconsistent
with this answering defendant's above-stated affirmative defenses.

WHEREFORE, defendant, Beta Mechanical Contractors, L.P., prays plaintiffs take
nothing by way of their complaint herein, for said defendant’s costs of suit and for such other and

further relief as the court deems proper.

See face page for date and signature.

Page 3, General Denial to Third Amended Complaint

Case No: ASBESTOS: CGC-10-275731, Ross v. C.C. Moore et al.San Francisco Superior Court, ASBESTOS CGC-10-275731
Ross y. C.C. Moore and Additional Asbestos Defendants

PROOF OF ELECTRONIC SERVICE
lam a citizen of the United States. I am employed in the County of San Mateo where this
electronic service originates. My business address is 2070 Pioneer Court, San Mateo, CA 94403.
Tam over the age of eighteen years and not a party to the within cause.
On the date written below I served the following described document via Lexis Nexis:

GENERAL DENIAL with affirmative defenses to plaintiffs’ Third Amended Complaint

on all parties in the above-referenced cause of action.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.

Executed this 17th day of July, 2012, at San Mateo, CA 94403,

C..

Andrew Arag

PROOF OF ELECTRONIC SERVICE