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

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Douglas G. Wah, Esq. SBN 64692

Thomas J. Tarkoff, Esq. SBN 160994 ELECTRONICALLY
Foley & Mansfield P.L.L.P. FILED
300 Lakeside Drive, Suite 1900 Se
Oakland, California 94612 Se Geen reac
Telephone No: (510) 590-9500

Facsimile No: (510) 590-9595 JUN 20 2012
Email: ttarkoff@foleymansfield.com Clerk of the Court

BY: WILLIAM TRUPEK
Deputy Clerk

Attorneys for Defendant
RAYMOND INTERIOR SYSTEMS-NORTH

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731

“Asbestos-Related Case”
Plaintiffs,

DEFENDANT RAYMOND INTERIOR
SYSTEMS - NORTH’S ANSWER TO
PLAINTIFFS’ THIRD AMENDED
COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM AND
REQUEST FOR JURY TRIAL — ASBESTOS

VS.

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

Defendants.

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Defendant RAYMOND INTERIOR SYSTEMS - NORTH (hereafter referred to as
"Defendant"), in answer to the third amended complaint of ROBERT ROSS and JEAN ROSS (hereafter
referred to as “Plaintiffs”) admits, denies and alleges as follows:

Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant denies
each and every, all and singular, both generally and specifically, the allegations of Plaintiffs’ unverified
third amended complaint, and further denies that Plaintiffs have been damaged as alleged, or at all, by
reason of any act or omission on the part of Defendant or its agents, servants or employees.

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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ third amended complaint fails to state facts sufficient to constitute a
cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claim is barred by laches, waiver, res judicata and/or collateral
estoppel.
THIRD AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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 lacks jurisdiction due to insufficiency of process, or the service thereof,
and/or improper venue.

FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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, including but not limited to California Code of Civil Procedure
sections 337.1, 337.15, 338(a), 338(d), 340.2, 343 and 361.

FIFTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs were careless and negligent in and about the matters alleged in the third
amended complaint and said carelessness and negligence of Plaintiffs proximately contributed to the
happening of the accident, incident and occurrence alleged in the third amended 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.

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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs failed to mitigate their alleged damages, if any there were.
SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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.
EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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.

NINTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any asbestos-containing product or products alleged to have caused Plaintiffs’
injuries were manufactured, used, installed and/or distributed in mandatory compliance with
specifications promulgated by the United States government under its war powers, as set forth in the
U. S. Constitution, and that any recovery by Plaintiffs is barred as a consequence of the exercise of those
sovereign powers.

TENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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 and/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.
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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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ELEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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
industry custom and practice and the state of scientific knowledge available to manufacturers, installers
and/or users of asbestos-containing products.
TWELFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claim against Defendant is barred by the holding of Privette v.
Superior Court (1993) 5 Cal.4" 689 and Hooker v. Dept. of Transportation (2002) 24 Cal.4th 198, in
that Defendant, a general contractor, did not retain control over any independent contractor sufficient to
affirmatively contribute to Plaintiffs’ alleged injuries.
THIRTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ exposure to any asbestos-containing product or products was not a
substantial factor and/or legal cause of Plaintiffs’ alleged injuries.

FOURTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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.

FIFTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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’ third
amended complaint and that Plaintiffs’ acts proximately caused and contributed to the alleged damages,
if any there were.

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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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SIXTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ third amended complaint,
various employers of Plaintiffs were sophisticated users of asbestos-containing products and said
employers’ negligence in providing said products to its employees was a superseding and/or intervening
cause of Plaintiffs’ injuries, if any there were.
SEVENTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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’ third amended 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, ifany, and a separate judgment in conformance therewith.

EIGHTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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.

NINETEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that neither the third amended complaint nor any purported causes of action alleged
therein states facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant.
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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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TWENTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any products were manufactured, produced, supplied, sold and distributed
pursuant to contract with the United States government, and that any recovery by Plaintiffs are barred by
consequence of the judicially recognized doctrine of immunity conferred upon that contractual
relationship and any occurrences arising therefrom.
TWENTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the third amended complaint should be dismissed pursuant to
California Code of Civil Procedure sections 583.210 through 583.250, 583.410 through 583.430, and
other applicable code sections.
TWENTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it does not have and never has had a successor, successor-in-business, successor-
in-product line or portion thereof, successor-in-interest, assignee, predecessor, predecessor-in-business,
predecessor-in-product line or portion thereof, predecessor-in-interest, partner, subsidiary, whole or
partial or ownership or membership relationship with the entity upon which Plaintiffs base allegations of
liability.
TWENTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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 claims caused the alleged injuries and damages. Defendant may not be held liable to
Plaintiffs for any alleged share of said market or upon any theory premised upon market-share liability.
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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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TWENTY-FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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 Defendant, 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 others.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

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

TWENTY-SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant alleges that Plaintiffs lacks standing to sue Defendant.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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.
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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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TWENTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it warned applicable employers of all dangers on the premises known to
Defendant.
THIRTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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.
THIRTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ third amended complaint,
Mr. Robert Ross knew or should have known the hazards of asbestos containing products, and,
therefore, was a sophisticated user of asbestos-containing products within the meaning of Johnson v.
American Standard, Inc. (2008) 43 Cal. 4th 56.
THIRTY-SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges it did not manufacture, sell or distribute the product(s) at issue in Plaintiffs’ third
amended complaint. Strict liability is precluded against Defendant, a contractor/service provider, as it is
well-settled that “strict product liability theories apply only to sales or other commercial transfers of
goods and not to services.” Hyland Therapeutics v. Superior Court (1985) 175 Cal.App.3d 509, 513
(emphasis in original); see also Ferrari v. Grand Canyon Dories (1995) 32 Cal. App.4th 248, 258; Pena v.
Sita World Travel, Inc. (1978) 88 Cal.App.3d 642, 644; Barton v. Owen (1977) 71 Cal.App.3d 484, 498;
Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1027; Monte Vista Development Corp. v.
Superior Court (1991) 226 Cal, App. 3d 1681,

DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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THIRTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times and places in the matters alleged in the third amended complaint neither
Plaintiffs nor their employers were in privity of contract with Defendant, and said lack of privity bars
Plaintiffs’ recovery herein upon any theory of warranty, in particular breach of warranty.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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 express or implied.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times and places in the matters alleged in the third amended complaint
Defendant neither communicated with or misled Plaintiffs in any fashion nor suppressed any critical or
relevant information from Plaintiffs. Therefore, Plaintiffs lack the standing or right to sue for fraud,
conspiracy, deceit, or any cause of action under California Civil Code sections 1708 through 1710, and the
third amended complaint, as it concerns these causes of action therein, fails to state facts sufficient to
constitute a cause of action against this answering Defendant.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it is not liable in strict liability or negligence for harm caused by another
manufacturer’s product. (O'Neil v. Crane Co., (2012) 53 Cal. 4th 335; Taylor v. Elliott Turbomachinery
Co. Inc. (2009) 171 Cal. App.4th 564.)

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant alleges that any product or material that it may have brought to the job site was incidental to

the work or service that Defendant was hired to perform and therefore denies that it was a supplier.

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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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THIRTY-EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE 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, rebranded, 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 in existence at all times
mentioned in the third amended complaint.

WHEREFORE, Defendant prays for judgment as follows:

1. That Plaintiffs take nothing by reason of their third amended complaint herein;

2. That judgment is entered in favor of Defendant:

3. For costs of suit incurred herein;

4. For appropriate credits and set-offs arismg out of any payment of Workers’

Compensation benefits as alleged above;
3. For a judicial determination of the amount of non-economic damages, if any, allocated to
Defendant in direct proportion of the Defendant’s percentage of fault, if any, and a

separate judgment in conformance therewith; and

6. For such other and further relief as the Court may deem just and proper.

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DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSI
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NOTICE OF REQUEST FOR JURY TRIAL
Pursuant to California Code of Civil Procedure section 631, RAYMOND INTERIOR SYSTEMS

— NORTH hereby gives Notice of Its Request for Trial by Jury.

5 || Dated: June 20, 2012 FOLEY & MANSFIELD, p.L.L.P.

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Attorneys for Defenda:
RAYMOND INTERIOR SYSTEMS — NORTH

DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO PLAINTIFFS” THIRD AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOSce Ww OD A RB oe ON

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Robert Ross, et al. vs. C.C. Moore & Co. Engineers, et al.
San Francisco County Superior Court Case No. CGC-10-275731

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, the undersigned, declare as follows:
fam employed in the County of Alameda, California, and 1 am over the age of 18 years and not a
party to the within action. My business address is 300 Lakeside Drive, Suite 1900, Oakland, CA 94612.
On the date executed below, I electronically served the documents(s) via LexisNexis File &
Serve described as:
g DEFENDANT RAYMOND INTERIOR SYSTEMS ~ NORTH’S ANSWER TO
PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL -
ASBESTOS
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website.
I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct and that this declaration was executed on June 20, 2012 at Oakland, California.

Katherj

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION