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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 
						
                                
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                                ]

Eugene C. Blackard Jr. (Bar No. 142090)

ARCHER NORRIS
A Professional Law Corporation
2033 North Main Street, Suite 800 ELECTRONICALLY
Walnut Creek, California 94596-3759 FILED
Telephone: 925.930.6600 Superior Court of California,
Facsimile: — 925.930,6620 County of San Francisco

JUN 26 20
Attomeys for Defendant Clerk of the 012
ANDERSON ROWE & BUCKLEY INC. BY: JUDITH NUNEZ

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, Case No. CGC 10-275731
Plaintiffs, ANSWER TO THIRD AMENDED
COMPLAINT

v.
C.C. MOORE & CO, ENGINEERS, et al.,

Defendants.

COMES NOW defendant ANDERSON, ROWE & BUCKLEY, INC, in answer to
plaintiffs’ unverified third amended complaint on file herein and by virtue of the provisions of
Code of Civil Procedure Section 431.30, now files its general denial to said complaint, and denies
each and every, all and singular, generally and specifically, all the allegations and causes of
action contained therein, and further denies that plaintiffs have been damaged in any sum, sums,
or at all, and specifically denies:

1 That any asbestos-containing product for which ANDERSON, ROWE &
BUCKLEY, INC. was responsible was present at the work site at which the alleged asbestos
exposure of plaintiff occurred;

2. That plaintiff came into contact with any asbestos-containing product for which.
ANDERSON, ROWE & BUCKLEY, INC. was responsible;

3, That any act or omission of ANDERSON, ROWE & BUCKLEY, INC. caused or
ABLAT3/I373414-1

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| contributed to any injury purportedly suffered by plaintiff} and

4, That any act or omission of ANDERSON, ROWE & BUCKLEY, INC.,
contributed to any asbestos health hazard.

This defendant herewith pleads and sets forth separately and distinctly the following
}_ affirmative defenses to each and every cause of action of plaintiff's complaint as though pleaded
| separately to each and every said cause of action, and this answering defendant alleges the
following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE
(Comparative Negligence)
i That plaintiff was careless and negligent in and about the matters alleged in the complaint,
and that said carelessness and negligence on the part of said plaintiff proximately contributed to
the happening of the incident and to the injuries, loss and damages complained of, if any,
sustained by plaintiff and that plaintiff's recovery should therefore be reduced to the extent of
plaintiff negligence.
SECOND AFFIRMATIVE DEFENSE
(Assamption of Risk)

1 That plaintiff knew, or in the exercise of ordinary care should have known, of the risks
and hazards involved in the undertaking in which he was engaged, but nevertheless, and knowing
these things, did freely and voluntarily consent to and assume the risks and hazards incident to

said operations, acts and conduct at the time and place mentioned in said complaint.

| THIRD AFFIRMATIVE DEFENSE
(Employer Negligence/Witt v. Jackson)

By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering
defendant alleges that at the time and place of the happening of the occurrences alleged in the
complaint, and at all times material herein, plaintiff was employed by various employers, the
names of which are unknown to this defendant at this time, and working within the course and
scope of his employment and/or employments, that said employer and/or employers and plaintiff

were subject to the provisions of the Workman's Compensation Act of the State of California; that
AELA73/1973414-1 2

ANSWER TO THIRD AMENDED COMPLAINT1]

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certain sums have been paid to or on behalf of plaintiff herein under the applicable provisions of
the Labor Code of the State of California; that said employer and/or employers and each of them
were negligent and careless and that such negligence and carelessness proximately contributed
and caused the injuries of plaintiff; that by these premises any award made to the plaintiff, if any
award is made at all, must be reduced by any payment to by his employer or employers’
compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal,2d 57.

FOURTH AFFIRMATIVE DEFENSE

(Employer's Negligence)

This answering defendant alleges that plaintiff's employers were contributorily negligent
and careless in and about the matters alleged in the complaint, and that such negligence and
carelessness was a proximate cause of any injuries and damages suffered by plaintiff, if any there
were,

FIFTH AFFIRMATIVE DEFENSE

(Employer's Assumption of the Risk)

This answering defendant alleges that plaintiff's employers voluntarily and knowingly
entered. into and engaged in the operations, acts and conduct alleged in said complaint, and
voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct
alleged in said 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.

SIXTH AFFIRMATIVE DEFENSE

(Alteration or Misuse)

This answering defendant alleges that the product in question was properly designed and
manufactured, and was fit for the purpose intended; that said product was improperly maintained
and used and was abused, resulting in plaintiff's damages, if any there were.

SEVENTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
This answering defendant alleges that said complaint, and each of said alleged causes of

action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340, subsection
AEL473/1373414-1 3

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|

EIGHTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
This answering defendant alleges that said complaint, and each of said alleged causes of
action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340.2(a) and
(b).

NINTH AFFIRMATIVE DEFENSE
(Statute of Limitations)

This answering defendant alleges that said complaint, and each of said alleged causes of

action thereof, is barred by the provisions of the Code of Civil Procedure, Section 338(4).
TENTH AFFIRMATIVE DEFENSE
(Laches)

This answering defendant alleges that plaintiff unreasonably delayed in the bringing of
this action without good cause therefore, and thereby have prejudiced this defendant; and as a
proximate result thereof, this entire action is barred by laches.

ELEVENTH AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action - Exemplary Damages)

‘This answering defendant alleges that the complaint fails to state a cause of action against
this answering defendant for exemplary damages.

TWELFTH AFFIRMATIVE DEFENSE
(Proportionate Fault)

This answering defendant alleges that while at all times denying any liability whatsoever
to plaintiff herein, this defendant alleges that any alleged liability or responsibility of this
defendant, and such alleged liability and responsibility being denied, is small in proportion to the
alleged liability and responsibility of other persons and entities, including other persons and
entities who are defendants herein, and that plaintiff should be limited to seeking recovery from

this defendant for the proportion of alleged injuries and damages for which this defendant is

allegedly liable or responsible, all such alleged liability and alleged responsil bility being expressly
AB1473/1373414-1 4

ANSWER TO THIRD AMENDED COMPLAINTy

denied.
THIRTEENTH AFFIRMATIVE DEFENSE
(Modification of Product)

This answering defendant is informed and believes, and based upon said information and
belief alleges, that the plaintiff is barred from recovery herein because of modification, alteration
or change in some other manner, of the products alleged in plaintiff's complaint.

FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to State Cause of Action)

This answering defendant alleges that plaintiff's complaint does not state facts sufficient to

constitute a cause of action against this answering defendant.
FIFTEENTH AFFIRMATIVE DEKENSE
(Waiver)

This answering defendant alleges that 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.

SIXTEENTH AFFIRMATIVE DEFENSE
(No Identification of Product)

This answering defendant is informed and believes, and thereon alleges, that plaintiff is
unable to identify the actual manufacturer or manufacturers of the asbestos products which
allegedly caused the injury which forms the basis of the complaint herein, and that said
manufacturers were entities other than this defendant. Therefore, this defendant may not be held
liable for the injury of the plaintiff.

SEVENTEENTH AFFIRMATIVE DEFENSE
(Fair Responsibility Act)

‘This answering defendant alleges that said complaint, and each of said alleged causes of
action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code
Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if any, for

non-economic damages, if any, as defined in Civil Code Section 1431 .2(b)(2) shall be several
ABIA73/1373414-1 5

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only and shall not be joint with each or any co-defendant named in said complaint. This
| answering defendant shall be liable only for the only of said non-economic damages, if any,
| allocated to this answering defendant in direct proportion to this answering defendant's
percentage of fault, if any.

EIGHTEENTH. AFFIRMATIVE DEFENSE

} (No Peculiar Risk)
Defendant alleges that plaintiffs are barred from seeking to hold defendant vicariously
liable for inherent risk of injury in the work place and premises under the now discredited

doctrine of peculiar risk according to the California Supreme Court decision of Privette v.

Superior Court, 5 Cal.4th 689, 21 Cal. Rptr.2d 72 (1993).
{ ‘WHEREFORE, this answering defendant prays as follows:
\ 1. That plaintiffs take nothing by reason of the complaint on file here.
2. That this defendant be hence dismissed with its costs of suit incurred herein; and
3. For such other and further relief as the court deems just and proper.
—
|| Dated: June 7S , 2012 ARCHER NORRIS
E figone C. Blackett
Attorneys forDefefidant
ANDERSON ROWE & BUCKLEY INC.
1
|
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AEIA73/13734 14-1 6
ANSWER TO THIRD AMENDED COMPLAINTPROOF OF SERVICE

Name of Action: Robert Ross and Jean Ross v. C.C, Moore & Co. Engineers et al
Court and Action No: San Francisco Superior Court Action No. CGC 10-275731

I, Rakia V, Grant-Smith, declare that I am over the age of eighteen years and not a party to
| this action or proceeding. My business address is 2033 North Main Street, Suite 800, Walnut
Creek, California 94596-3759. On June 25, 2012, I caused the following document(s) to be

served:
ANSWER TO THIRD AMENDED COMPLAINT

ol by placing a true copy of the document(s) listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices, | am readily familiar
with this business’ practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fully prepaid.

j oO by having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission

| was reported as complete without error by a report issued by the transmitting facsimile
machine,
o by having personally delivered a true copy of the document(s} listed above, enclosed in
a sealed envelope, to the person(s) and at the address(es) set forth below.
\ oO by having personal delivery by of a true copy of the document(s)

listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set
} forth below.

o by placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by , an express service carrier, or delivered to a
courier or driver authorized by the express service carrier to receive documents, in an
envelope designated by the express service carrier, with delivery fees paid or provided
for, addressed as set forth below.

| [x] L electronically served the above referenced document(s) through LEXIS NEXIS. E-
servicé in this action was completed on all parties listed on the service list with LEXIS
NEXIS. This service complies with the court’s order in this case.
| 1 declare under penalty of perjury that the foregoing is true and correct. Executed on June
25, 2012, at Walnut Creek, California,
Rakia V. Grant-Smith

| AEI473/13734 14-1

ANSWER TO THIRD AMENDED COMPLAINT