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

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                                JEREMY D. HUIE, ESQ. (SBN 191145)
jhuie@behblaw.com

BASSI, EDLIN, HUIE & BLUM LLP
500 Washington Street, Suite 700

San Francisco, CA 94111

Telephone: — (415) 397-9006
Facsimile: (415) 397-1339

Attorneys for Defendant
MALM METAL PRODUCTS, INC.

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

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs.
C.C. MOORE & CO. ENGINEERS,
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint herein;
and DOES 1-8500,

Defendants.

ee eee

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ELECTRONICALLY

FILED

Superior Court of Calif

nia,

County of San Francisco

Clerk of the Co
BY: WILLIAM TRUPE!
Deput)

JUL 03 scour
rt

Case No. CGC-10-275731

DEFENDANT MALM METAL
PRODUCTS, INC.’S ANSWER TO THIRD
AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS

Complaint Filed: May 11, 2012

DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINT

ClerkDefendant MALM METAL PRODUCTS, INC. (“MALM”), a dissolved corporation,
hereby answers the unverified Third Amended Complaint for Personal Injury and Loss of
Consortium ~ Asbestos (hereinafter “Complaint”) filed by Plaintiffs ROBERT ROSS and JEAN
ROSS. Pursuant to Code of Civil Procedure section 431.30, MALM denies each and every, all
and singular, generally and specifically, the allegations and causes of action contained in the
Complaint, and further denies that Plaintiffs have been damaged in any sum, or at all, and
specifically alleges as follows:

SPECIFIC DENIALS

That MALM was present at any work site at which the alleged asbestos exposure of
Plaintiff ROBERT ROSS occurred;

That Plaintiff ever came into contact with any employee of MALM;

That any product used or supplied by MALM caused or contributed to any injury
purportedly suffered by Plaintiff;

That any MALM employee supervised Plaintiff at any work site; or

That MALM ever supplied Plaintiff with any materials or tools at any work site:
GENERAL DENIAL

[ALM generally denies each and every allegation of Plaintiffs’ Complaint.
AFFIRMATIVE DEFENSES

MALM herewith pleads and sets forth separately and distinctly the following affirmative
defenses to each and every cause of action of Plaintiffs’ Complaint as though pleaded separately
to each and every said cause of action:

FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of action against
Defendant.
SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs have failed to join all persons and parties needed for a just adjudication of this action.

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTTHIRD AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs’ claims are barred by laches, waiver and/or estoppel.
FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
this Court does not have subject matter jurisdiction over this action or alternatively that the Court|
jacks jurisdiction due to insufficiency of process or the service thereof and/or improper venue.
FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs have failed to commence this action within the time required by the applicable statute
of limitations,
SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs were careless and negligent in and about the matters alleged in the Complaint and said
carelessness and negligence of Plaintiffs proximately contributed to the happening of the
accident, incident and occurrence alleged in the Complaint, and to the injuries, losses and
damages complained of therein, if any there were, and said contributory negligence bars a
recovery or proportionately reduces any potential verdict.
SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs have failed to mitigate his alleged damages, if there were any.
EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
if Plaintiffs were injured by products used or installed at any Defendant’s premises, which is
denied, such injury occurred after the expiration of the useful safe life of such products.
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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTNINTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
if Plaintiffs suffered any damages, which is denied, such damages were the sole and proximate
result of an unavoidable accident.

TENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
if Plaintiffs suffered any damages, which is denied, such damages were caused and/or
contributed to by Plaintiffs’ misuse of the product or products and Plaintiffs’ recovery should be
barred or reduced accordingly.

ELEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
if Plaintiffs suffered any damages, which is denied, such damages were solely and proximately
caused by material modifications or alterations of the product or products involved in this action
after it or they left the custody and control of Defendant.

TWELFTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs have improperly split his causes of action and seek to maintain a duplicative lawsuit
based on the same facts and circumstances as a lawsuit previously filed.

THIRTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
any product or products alleged by Plaintiffs to have caused Plaintiffs’ injuries were
manufactured, installed, used or distributed in compliance with specifications provided by third
parties to Defendant and/or in compliance with all applicable health and safety statutes and
regulations.

FOURTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

if Plaintiffs suffered any damages, which is denied, the risk of any such damages was not

foreseeable to Defendant. Defendant at all times material hereto acted in accordance with the

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTindustry custom and practice and the state of scientific knowledge available to manufacturers,
installers and/or users of asbestos-containing products.

FIFTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
it received no notice of any dangerous, hazardous or defective condition or any breach of
warranty, either expressed or implied.

SIXTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs’ claim against Defendant is barred by the holding of Privette v. Superior Court , 5 Cal.
4th 689 (1993), and its progeny.
SEVENTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs’ exposure to any asbestos-containing product or products allegedly used or installed at
Defendant's job site(s) was minimal and insufficient to establish the probability that said product
or products were a legal cause of Plaintiffs’ alleged injuries.

EIGHTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
this action is barred by the applicable state and/or federal industrial insurance and/or Workers!
Compensation laws, including, but not limited to, California Labor Code sections 3601 and
3602, and 33 U.S.C. section 905. Plaintiffs were an employee of Defendant.

NINETEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
at the time of the injuries alleged in Plaintiffs’ Complaint, Plaintiffs were employed by persons
other than Defendant; were entitled to receive and did receive Workers' Compensation benefits
from said employer(s) of their insurers; and that said employer(s) were negligent and careless in
and about the matters referred to in Plaintiffs’ Complaint. Defendant is, therefore, entitled to set-

off any such benefits received by Plaintiff against any judgment rendered in Plaintiffs’ favor and

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTsaid employer(s) are barred from any recovery by lien or otherwise against Defendant in
connection with this matter.

TWENTIETH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs voluntarily and knowingly assumed the alleged risks and hazards incident to the
alleged operations, acts and conduct at the times and places alleged in Plaintiffs’ Complaint and
that Plaintiffs’ said acts proximately caused and contributed to the alleged damages, if any there
were.

TWENTY-FIRST AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
at all times relevant to the matters alleged in Plaintiffs’ Complaint, Plaintiff, his employers
and/or the persons or entities who owned or managed Plaintiffs job sites were sophisticated
users of asbestos-containing products and negligence by said persons in providing said products
to its employees was a superseding and/or intervening cause of Plaintiffs’ injuries, if any there
were.

TWENTY-SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
there was no concert of action among Defendant and other defendants to this action and that any
alleged liability or responsibility of Defendant, which is denied, is minimal in proportion to the
alleged liability and responsibility of this person and entities including the other defendants
herein. Plaintiffs should therefore be limited to seeking recovery from Defendant for a
proportion of the alleged injuries and damages for which Defendant is allegedly liable or
responsible, all such alleged liability and responsibility being denied.

TWENTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent the
Complaint alleges that Defendant has "market share" liability or "enterprise liability", the

Complaint fails to state facts sufficient to constitute a cause of action against Defendant.

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTTWENTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
it is entitled to set-off any settlement, judgments, or similar amounts received by Plaintiffs,
against any judgment rendered against it in Plaintiffs’ favor.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges, in
accordance with section 1431.2 of the Civil Code, known as the Fair Responsibility Act of 1986,
that if Plaintiffs’ Complaint states a cause of action, each defendant is liable, if at all, only for
those non-economic damages allocated to each defendant in direct proportion to each defendant's
percentage of fault, if any. Defendant requests a judicial determination of the amount of non-
economic damages, if any, Defendant also requests a judicial determination of the amount of
non-economic damages, if any, allocated to Defendant in direct proportion to Defendant's
percentage of fault, if any, and a separate judgment in conformance therewith.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
the damages and injuries, if any, were proximately caused or contributed to, in whole or in part,
by the negligence or fault or other acts and/or omissions of persons or entities other than
Defendant, for which Defendant is not responsible.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
neither the Complaint nor any purported causes of action alleged therein state facts sufficient to
entitle Plaintiff to an award of punitive damages against Defendant.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs’ instant action is barred or, alternatively, merged into a prior cause of action for which

Plaintiffs have previously sued upon, recovered, and dismissed with prejudice, thereby requiring
a complete extinguishment of the instant action due to the doctrines of res judicata and collateral

estoppel.

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTTWENTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
it warned Plaintiffs’ employers and/or the owners of Plaintiffs’ job sites of all dangers on the
premises known or reasonably knowable to Defendant.

THIRTIETH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
any danger or defect on the premises was obvious or could have been observed by Plaintiffs’
exercise of reasonable care.

THIRTY-FIRST AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

the allegations of the Complaint are uncertain, vague and ambiguous,

THIRTY-SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
the allegations of the Complaint should be dismissed pursuant to sections $83.210 throug!
583.250, and 583.410 through 583.430 of the California Code of Civil Procedure, and othe:
applicable code sections,

THIRTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
it did not have a sufficient market share with respect to products and materials which Plaintiffs
allege caused the alleged injuries and damages. Defendant may not be held lable to Plaintiffs
for any alleged share of said market or upon any theory premised upon market-share liability.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
if Plaintiffs sustained injuries or damages attributable to the use of any product researched,
tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested,
labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced,
installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded,

manufactured for others, packaged, advertised and/or which contained or lacked warnings by

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTDefendant, which allegations are expressly denied, the injuries or damages were proximately
caused by the unreasonable and unforeseeable misuse, abuse, alteration, or improper
maintenance of the product by Plaintiff, Plaintiff or others,
THIRTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that]
at all times mentioned, Plaintiffs consented to the alleged acts of Defendant.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that]
all claims asserted by Plaintiffs were proximately caused by a superseding, intervening cause.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

the entire Complaint and each cause of action thereof, is barred on the grounds that the products
or materials referred to in the Complaint, if any, were not a substantial factor in bringing about
the injuries and damages alleged by Plaintiffs.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs are not entitled to an award of punitive or exemplary damages in this action. Such an
award would be unconstitutional unless Defendant is accorded the safeguards provided under the
Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.

THIRTY-NINTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
to the extent Plaintiffs’ claims arise out of contract; such claims do not state facts sufficient to
entitle Plaintiffs to an award of punitive or exemplary damages against Defendant.

FORTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs, at all times mentioned, were not in privity of contract with Defendant, and that said

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTlack of privity bars any recovery by Plaintiffs against Defendant under any theory of breach of
warranty.

FORTY-FIRST AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs failed to give adequate and timely notice of any alleged breach of warranty.

FORTY-SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs’ entire Complaint is barred by the Statute of Frauds to the extent that any such causes
of action are based on alleged oral agreements.

FORTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
all products and materials researched, tested, studied, manufactured, fabricated, inadequately
researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought,
offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired,
marketed, warranted, arranged, re-branded, manufactured for others, packaged, advertised and/or
which contained or lacked warnings by Defendant which allegations are expressly denied, were
not defective in any manner, as said products and materials conformed with the state-of-the-art i
existence at all times mentioned in the Complaint.

FORTY-FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
its alleged actions, which are the subject of the Complaint, were lawful.
FORTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
its alleged actions, which are the subject of the Complaint, were justified.

FORTY-SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that

Plaintiffs lack standing to sue Defendant.

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTFORTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
it presently has insufficient knowledge or information on which to form a belief as to whether it
may have additional, as yet unstated, defenses available. Defendant reserves the right to assert
additional defenses in the event discovery indicates that they would be appropriate.
PRAYER FOR RELIEF
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;
3. For costs of suit; and

4 For such other and further relief as this Court may deem just and proper.

Date: July 2, 2012 BASSI, EDLIN, HUIE & BLUM LLP

By:_/s/ JEREMY D. HUIE
JEREMY D. HUIE

Attorneys for Defendant

MALM METAL PRODUCTS, INC.

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DEFENDANT MALM METAL PRODUCTS, INC."S ANSWER TO THIRD AMENDED COMPLAINTRe: Robert Ross and Jean Ross v. Asbestos Defendants, et al.
San Francisco County Superior Court Case No. CGC 10-275731

PROOF OF SERVICE — ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA/COUNTY OF San Francisco

Tam a citizen of the United States and an employee in the County of San Francisco. I
am over the age of eighteen (18) years and not a party to the within action. My business
address is BASSI, EDLIN, HUIE & BLUM LLP, 500 Washington Street, Suite 700, San
Francisco, California 94111.

On the date executed below, I electronically served the document(s) via LexisNexis
File & Serve, described below, on the recipients designated on the Transaction Receipt located
on the LexisNexis File & Serve website.

DEFENDANT MALM METAL PRODUCTS, INC.’S ANSWER TO THIRD
AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM
- ASBESTOS

On the following parties:
PLEASE SEE SERVICE LIST PROVIDED BY LEXISNEXIS

I declare under penalty of perjury that the foregoing is true and correct and that this
document is executed on July 3, 2012, at San Francisco, California.

/s/ BRIDGETTE C. BURDICK.

BRIDGETTE C. BURDICK

12

PROOF OF SERVICE,