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

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                                HAKE LAW

A PROFESSIONAL CORPORATION

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William M. Hake, Esq. (State Bar No. 110956)
Melissa E. Macfarlane, Esq. (State Bar No. 239811)

ELECTRONICALLY

Rachael A. Buckman, Esq. (State Bar No. 263224) FILED
HAKE LAW, A PROFESSIONAL CORPORATION super ol
. superior Court of California,
343 Sansome Street, Suite 425 County of San Franciseo
San Francisco, CA 94104 JUN 14 201
Tel: (415) 364-0370
Fax: (415) 364-0371 oclerk of the Cou
bill@hakelaw.com :
melissa@hakelaw.com Deputy Clerk
rachael@hakelaw.com
Attorneys For Defendant
ADVANCE MECHANICAL CONTRACTORS, INC.
IN THE SUPERIOIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731
Plaintiff, ANSWER OF DEFENDANT ADVANCE
vs. MECHANICAL CONTRACTORS, INC,
TO PLAINTIFFS’ THIRD AMENDED
C.C. MOORE & CO., ENGINEERS, et al., COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM-
Defendant ASBESTOS
Complaint: October 17, 2010
Trial Date: TBD
COMES NOW, Defendant, ADVANCE MECHANICAL CONTRACTORS, INC.
(hereinafter referred to as “this answering defendant”), and for itself alone, and in answer to the
unverified Third Amended Complaint (hereinafter “Complaint”) of Plaintiffs herein and as
amended in the future, alleges as follows.
Whenever the masculine pronoun is used in this answer, its reference also embraces a
female pronoun, company, partnership, entity, or corporation, respectively, to the same effect as
if the corresponding female or neuter pronoun were substituted. Wherever the singular
“Plaintiff” is used, it also embraces the plural.
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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW
A PROFESSIONAL CORPORATION

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GENERAL DENIAL

Pursuant to the provisions of California Code of Civil Procedure section 431.30, this
answering defendant denies each, every and all of the allegations of the unverified Complaint
and each and every cause of action contained therein, and the whole thereof, and denies that
Plaintiff has sustained damages in the sum or sums alleged, in any other sum or sums
whatsoever, or at all.

This answering defendant alleges that it exercised due care and diligence in all the
matters alleged in the Complaint, and no act or omission by answering defendant was the
proximate cause of any damage, injury or loss to Plaintiffs, Decedent, and any/each of them.

This answering defendant alleges that Plaintiffs cannot prove any facts showing that the
conduct of this answering defendant was the cause in fact of any injuries or damages suffered by
Plaintiffs as alleged in the Complaint.

This answering defendant alleges that Plaintiffs cannot prove any facts showing that the
conduct of this answering defendant was the proximate cause of any injuries or damages suffered!
by Plaintiffs as alleged in the Complaint.

This answering defendant alleges there is no concert of action between answering
defendant and any other named defendants. Defendants are not joint tortfeasors and,
accordingly, answering defendant may not be held jointly and severally liable with any other
named defendants.

This answering defendant alleges that any exposure of Decedent to answering
defendant's activities, or exposure to asbestos or asbestos-containing products, was so minimal
as to be insufficient to establish by a reasonable degree of probability that any such activity or
product caused any alleged injury, damages, or loss to Decedent and/or Plaintiffs.

This answering defendant alleges that even if Plaintiffs, Decedent and/or each of them
were exposed to any asbestos-containing products manufactured or distributed by this answering
defendant, which supposition is expressly denied, Plaintiffs’ exposure to said products would
have been so minimal as to be insufficient to constitute a “substantial contributing factor” in the

causation of Plaintiffs’ alleged injuries or disease, if any.

ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT.

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FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE Law
A PROFESSIONAL CORPORATION

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FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Complaint and cach and every cause of action alleged
therein, fails to state facts sufficient to constitute a cause of action against this answering
defendant, and fails to state a claim upon which relief may granted.
SECOND AFFIRMATIVE DEFENSE
AS AND FOR AN SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's Complaint, now and as amended in
the future, and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.
THIRD AFFIRMATIVE DEFENSE
AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges the Complaint, and every cause of action alleged therein, is
barred by all applicable statutes of limitation, including, but not limited to, Code of Civil
Procedure sections 335, 335.1, 337, 338, 339, 340.2, 343, 350, and 366.1, Commercial Code
section 2725, and sister state statutes of limitation and statutes of repose borrowed by Code of
Civil Procedure section 361; therefore Plaintiff is precluded from recovering the damages and
other relief sought in the Complaint.
FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that Plaintiff unreasonably delayed in bringing this action,
without good cause, and has thereby prejudiced the rights of this answering defendant. The
Complaint and all claims alleged therein are therefore barred by the doctrine of laches.
FIFTH AFFIRMATIVE DEFENSE
AS AND FOR AN FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the damages, if any, complained of by Plaintiff, were
actually and proximately caused by the negligence, fault, breach of contract and/or strict liability
of Plaintiff or other defendants, firms, persons, corporations, unions, employers and entities oth

than answering defendant, and that said negligence, fault, breach of contract and/or strict liability
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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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comparatively reduces the percentage of any negligence, fault, breach of contract and/or strict
liability for which answering defendant is legally responsible, which liability answering
defendant expressly denies,
SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that if there was any negligence or any other form of liability o1
the part of any of the parties named herein, it was the sole and exclusive negligence and liability
of the other persons or entities and not of answering defendant.

SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that if Plaintiff suffered any injuries attributable to
the use by Plaintiff of any product containing asbestos which was used, disturbed or sold by this
answering defendant, which allegations are expressly denied herein, the injuries were solely
caused by an unforeseeable, independent, intervening and/or superseding event beyond the
control and unrelated to any conduct of this answering defendant. This answering defendant’s
actions, if any, were superseded by the negligence and wrongful conduct of others.

EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times and places mentioned in the
Complaint, now and as amended in the future, Plaintiff was negligent and careless and failed to
exercise that degree of care and caution for their own safety which a reasonably prudent person
would have used under the same or similar circumstances, in that, among other things, said
Plaintiff so negligently and carelessly stationed, conducted and maintained themselves, failed to
utilize safety devices and other equipment or facilities supplied to them and/or existing as part of |
their environment, and failed to observe open and obvious conditions, so as to directly and

proximately cause and contribute to their injuries and damages, if any. Plaintiff is therefore

precluded from obtaining any recovery against this answering defendant. Alternatively, any

negligence or other legal fault attributable to Plaintiff thereby comparatively reduces the

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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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percentage of negligence or fault, if any, attributable to this answering defendant, which this
answering defendant expressly denies.
NINTH AFFIRMATIVE DEFENSE

AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times and places relevant to this action, Plaintiff
failed to make reasonable efforts to mitigate their injuries, loss and/or damages, if any.

TENTH AFFIRMATIVE DEFENSE

AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times and places referred to in the Complaint, as
amended, now or in the future, Plaintiff and his employers, 1) were, or in the exercise of
reasonable care should have been, aware, or 2) were, or in the exercise of reasonable care should
have been, made aware by the persons whom Plaintiff claim brought asbestos into the presence
of Plaintiff, of all circumstances and conditions then and there existing and prevailing, but
nonetheless knowingly, voluntarily, and in full appreciation of the potential consequences
thereof, exposed himself to whatever risks and dangers may have been attendant to such
circumstances and conditions, thereby freely and voluntarily assuming any and all risks incident
thereto, and thereby barring Plaintiff from recovery herein.

ELEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times material to this action, Plaintiff
failed to use the products alleged in the Complaint in the foreseeable, proper and safe manner
which would have otherwise been anticipated and expected of an ordinary user. Such misuse of
the products described in the Complaint by Plaintiff were the sole, proximate and legal cause of
Plaintiff's injuries and damages, if any, thereby barring Plaintiff from recovery herein.

TWELFTH AFFIRMATIVE DEFENSE

AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that

any all products, products used, or products in place at the premises at issue herein were
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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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manufactured, packaged, distributed, sold, installed and/or maintained in accordance with
contract specifications imposed by its co-defendants, the U.S. Government, the State of
California, Plaintiff's employers, the employers of the persons whom Plaintiff alleges brought
workplace asbestos to the home and household of Plaintiff, or other third parties yet to be
identified, and that any defect in said products, or alleged acts or omissions in the installation
and/or maintenance of said products, was caused by deficiencies in said specifications, and not
‘by any action or conduct on the part of this answering defendant.
THIRTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that all of its conduct and activities as alleged in the
Complaint conformed to statutes, government regulations, and industry standards based upon the

state of knowledge existing at all relevant times.
FOURTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that
all products allegedly manufactured or distributed by this answering defendant were in
conformity with the existing state of the medical, scientific, and industrial knowledge, art, and
practices, including in accordance with the legal requirements established by the United States

Occupational, Safety & Health Administration (“OSHA”) and/or other applicable legal
requirements in place at the time of the alleged exposure, and as a result, said products were not
defective in any manner.
FIFTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff and his employers, were advised,
informed, and wamed of any potential hazards and/or dangers, if there were any, associated with
the normal or foreseeable use, handling, and storage of the products, substances, equipment and
at premises in which exposure is claimed, and/or to asbestos “in-place”, in a manner which was
adequate notice to an industrial user of such products to enable it to inform its employees to take
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r ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC, TO PLAINTIFFS’ THIRD AMENDED COMPLAINT.
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW
A PROFESSIONAL CORPORATION

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appropriate work precautions to prevent injurious exposure.
SIXTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant is not liable for any alleged failure to warn of any risks,
dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly
distributed, sold, supplied or delivered to Plaintiff's employers, because said employers had as
great, if not greater, knowledge about the nature of any risks, dangers or hazards than did this
answering defendant, and unlike this answering defendant, said employers were in a position to
wamn person exposed to such products any such risks, dangers or hazards.

SEVENTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times relevant to the matters alleged in
the Complaint, as amended now or in the future, Plaintiff knew or should have known of the
inherent hazards, risks or potential dangers of the products alleged to be at issue, and was
therefore a sophisticated and knowledgeable user of each such product. As such, this answering
defendant is not liable to Plaintiff for any alleged failure to warn of such hazards, risks or
dangers.

EIGHTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that no act, omission, conduct or product
attributable to it caused or contributed to any injuries or damages sustained by Plaintiff, if any,
and that if such injuries and damages, if any, were not solely caused by Plaintiff's act, omissions,
and other conduct, then said injuries and damages were proximately caused and contributed to b'
the negligence and/or other tortious acts, omissions, conduct and products of persons or entities
other than this answering defendant, and that said negligence and/or other legal fault was an
intervening and superseding cause of Plaintiff's injuries and damages, if any. Any damages
recoverable by Plaintiff must therefore be diminished in proportion to the amount of fault

attributable to these other persons and entities, and there should be an apportionment of the harm
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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW
A PROFESSIONAL CORPORATION

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and damage claimed by Plaintiff, if any.

NINETEENTH AFFIRMATIVE DEFENSE

AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that in the event it is held liable to Plaintiff, which
liability is expressly denied herein, and any other co-defendants are likewise held liable, this
answering defendant is entitled to a percentage contribution of the total liability from said co-
defendants in accordance with the principles of equitable indemnity and comparative
contribution.

TWENTIETH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the liability of this answering defendant, if any,
shall be apportioned in accordance with the provisions of California Civil Code section 1431, et
seg., (commonly known as “Proposition 51” or the “Fair Responsibility Act of 1986”).

TWENTY-FIRST AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges on information and belief that at all times and
places relevant to this action, Plaintiff was an employee of any employer or employers whose
names are presently unknown, and that any injuries or damages alleged in the Complaint, as
amended now or in the future, occurred while Plaintiff were acting within the course of scope of
such employment. This answering defendant further alleges on information and belief that
Plaintiff's employers provided Plaintiff with certain benefits in compliance with the terms and
provisions of the Workers’ Compensation Laws of the State of California. The nature and extent
of such Workers’ Compensation benefits that may have been provided is unknown. Therefore,
this answering defendant is entitled to an offset of any such benefits received or to be received
by Plaintiff against any judgment which may be rendered in favor of Plaintiff, pursuant to the
doctrine of Witt v. Jackson (1961) 57 Cal.2d 57.
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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS" THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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TWENTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the benefit of the design of any product
associated with said defendant outweighs any risk associated with said product, if any risk there
actually was, which this answering defendant denies.

TWENTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that to the extent the Complaint, or any cause of
action alleged therein, is based upon an allegation of strict products liability as against this
answering defendant, said cause of action cannot be maintained as this answering defendant was
not a “seller” within the meaning of section 402A of the Restatement (Second) of Torts, and
consequently any claim of strict liability against this answering defendant is barred pursuant to
Monte Vista Development Corporation vs. Superior Court (1991) 226 Cal.App.3d 1681.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges to the extent the Complaint, or any cause of action
alleged therein, is based upon an allegation of strict products liability as against this answering
defendant, as amended now or in the future, said cause of action cannot be maintained as this
answering defendant did not manufacture a product within the meaning of any applicable case
law or statute that supports any cause of action brought by Plaintiff against this answering
defendant.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any product(s) allegedly associated with this
answering defendant and subject to the instant Complaint were as safe as could be designed
under the state of technology and medical and scientific knowledge existing at the time the
products were manufactured.

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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOS.HAKE LAW
A PROFESSIONAL CORPORATION

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TWENTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the activity alleged in the Complaint, as
amended now or in the future, and any and all claims and causes of action alleged therein, to the
extent it was engaged in by this answering defendant, if at all, was not ultra-hazardous under

California Law.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIV!
DEFENSE, this answering defendant alleges to the extent the Complaint asserts this answering
defendant’s alleged “market share” liability, or “enterprise liability’, the Complaint fails to state
facts sufficient to constitute a cause of action against defendant.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant did not and does not have a substantial percentage of the
market for any asbestos-containing products which allegedly caused the injuries and damages
claimed by Plaintiff. Furthermore, the asbestos-containing products which allegedly caused the
injuries and damages claimed by Plaintiff are not “fungible” in nature. As such, this answering
defendant may not be held liable to Plaintiff based upon any “market-share” or “enterprise”
theories of liability.

TWENTY-NINTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the
future, and each purported cause of action set forth therein, to the extent it purports to state a
cause of action under Sindeli v. Abbot Laboratories (1980) 26 Cal.3d 588, is barred by Plaintiff's
failure to join as defendants the manufacturer of a substantial share of the alleged market of
which Plaintiff alleges this answering defendant is a member, and should it prove impossible to
identify the manufacturer of the product which comprises said alleged market, said purported
causes of action are barred by the fault of Plaintiff and his agents in making the identification of

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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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the manufacturer impossible.
THIRTIETH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that its liability, if any, to the extent Plaintiff's
action is pursued or found to be a market share action, is several only; that is, this answering
defendant would be liable only for that portion of Plaintiff's damages, if any be found, that
corresponds to the percentage of this answering defendant's share of relevant market for the
subject product.

THIRTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that at al] times material to this action, the products
described in the Complaint which allegedly injured Plaintiff was, without this answering
defendant’s knowledge, approval or consent, and contrary to instructions and/or the custom and
practice in the industry, altered, redesigned, modified, or subjected to other treatment which
substantially changed their character, such that they were not being used, functioning and/or
performing in a manner intended by their manufacturer, and/or were not in substantially the sam
or similar condition as when they left the manufacturer’s possession. If there was a defect in sai
products covered by this answering defendant, which supposition is specifically denied by this
answering defendant, such defect resulted solely from such alteration, re-design, modification,
treatment or other change therein and not from any act or omission by this answering defendant,
thereby barring Plaintiff from recovery herein as against this answering defendant.
THIRTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that it had no control over any work performed by
others, including Plaintiff and his employers and any entities other than this answering
defendant, and, therefore, has no responsibility for the claimed damages because Plaintiffs
injuries or illness, if any, were due to the acts or omissions of a person or persons over whom

this answering defendant had neither control nor the right of control.

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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS' THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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THIRTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that if Plaintiff claims exposure to asbestos or
asbestos-containing products at any premises for which he alleges that this answering defendant
is liable, which is expressly denied herein, this answering defendant contracted with Plaintiff
and/or Plaintiff's employers for them to fully assume all responsibility for insuring Plaintiff's
safety, to guarantee that no hazardous condition existed, and/or to warn and protect against any
such conditions during the performance of Plaintiff's work and, further, to fully indemnify this
answering defendant, and to hold this answering defendant harmless, for responsibility and
lability arising out of said work and/or for any injuries allegedly incurred by Plaintiff as a result
of said work. This answering defendant reserves all rights to assert these provisions of
contractual indemnity.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE to the entire Complaint, and each cause of action thereof, this answering defendant
alleges that it did not own, occupy, possess, lease, maintain, manage or control any premises
upon which Plaintiff was allegedly exposed to asbestos and, as a result, Plaintiff is barred from
maintaining any cause of action against this answering defendant under a theory of premises
liability.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times relevant to the matters alleged in
the Complaint, as amended now or in the future, Plaintiff and his employers, other than this
answering defendant, were sophisticated and knowledgeable users of asbestos products and said
employers’ negligence in providing said products to their employees in a negligent, careless and
reckless manner was a superseding cause of Plaintiff's injuries, if any.
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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE Law

A PROFESSIONAL CORPORATION

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THIRTY-SIXTH AFFIRMATIVE DEFENSE

AS AND FOR THE THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that it was under no legal duty to warn Plaintiff of
the hazard associated with the use of products containing asbestos. The purchasers of said
products, Plaintiff, Plaintiff's employers, his/her labor unions or other third-parties yet to be
identified, were knowledgeable and sophisticated users and were in a better position to warn
Plaintiff of the risk associated with using products containing asbestos and, assuming a warning
was required, it was the failure of such persons or entities to give such a warning that was the
proximate and superseding cause of Plaintiff's alleged damages herein. As such, this answering
defendant alleges that the Complaint, as amended now or in the future, and any and all claims
and causes of action alleged therein, is/are barred by the “sophisticated user” doctrine pursuant to|
Johnson v. American Standard (2008) 43 Cal.4th 56.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times mentioned, Plaintiff acknowledged,
ratified, consented to and acquiesced in the alleged acts or omissions of answering defendant,
thus barring recovery.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's injuries and damages, if any, were
proximately caused or contributed to by Plaintiff's unforeseeable idiosyncratic condition,
unusual susceptibility, or hypersensitive reactions for which this answering defendant is not
liable.

THIRTY-NINTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that any danger or defect in or about the premises

was obvious or could have been observed by Plaintiff in this exercise of reasonable care.

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ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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FORTIETH AFFIRMATIVE DEFENSE

AS AND FOR A FORTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times and places mentioned in the
Complaint, as amended, now or in the future, Plaintiff was not in privity of contract with this
answering defendant, and said lack of privity bars Plaintiff's recovery herein upon any theory of
warranty.

FORTY-FIRST AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that this answer defendant made no express
warranties to Plaintiff or his privies.

FORTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, if any express or implied warranties for
purpose or merchantability were provided, which this answering defendant expressly denies as to]
Plaintiff, said product met all such express or implied warranties for purpose or merchantability.

FORTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff failed to give this answering defendant
timely and reasonable notice of any alleged breach of contract or warranty, thereby barring
Plaintiff from recovery herein.

FORTY-FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges at all times and places relevant to this action,
Plaintiff waived whatever right he might otherwise have had to claim a breach of warranty, in

that Plaintiff failed to notify this answering defendant of any alleged breach of warranty, express

or implied, and if any alleged defects existed in any products manufactured or distributed by this
answering defendant, which this answering defendant expressly denies. Plaintiff discovered or

should have discovered said defect or non-conformity, if any existed, which this answering
214.

ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC, TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW

A PROFESSIONAL CORPORATION

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defendant denies and failure to do so within a reasonable period of time prejudices this
answering defendant from being able to fully investigate and defend the allegations made against
it in the Complaint, now and as amended in the future.
FORTY-FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's breach of warranty claims are barred|
by written disclaimers and/or exclusions contained on or in the labels or packaging of the
products at issue in this action.
FORTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the
future, and the purported cause of action alleging breach of express warranty, fraud, fraud by
concealment and/or claiming punitive damages, if based upon lack of identification of the
manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute a
cause of action against this answering defendant herein in that Plaintiff has asserted claims for
which may not be maintained in such an action pursuant to the laws of this State and the orders
of this Court.
FORTY-SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the
future, and each purported cause of action set forth therein, if based upon lack of identification off
the manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute

a cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would contravene this answering defendant’s constitutional rights to
substantive and procedural due process of law as preserved by the Fourteenth Amendment of the
Constitution of the United States and by Article I, Section 3 of the Constitution of the state of
California.

Ut

-15-
ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC, TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE LAW
A PROFESSIONAL CORPORATION

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ea a G&S OS 28 FS SeRTaRDEBSHE STS

FORTY-EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the
future, and each purported cause of action set forth therein, if based upon lack of identification o
the manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute
a cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would constitute a denial by this Court of this answering defendant's
right to equal protection of the law, as preserved by the Fourteenth Amendment of the
Constitution of the United States and by Article I, Section 3 of the Constitution of the state of
California.

FORTY-NINTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the
future, and each purported cause of action set forth therein, if based upon lack of identification off
the manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute
a cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would constitute a taking of private property for public use without just
compensation, and that such taking would contravene this answering defendant’s constitutional
rights as preserved by the Fourteenth Amendment of the Constitution of the United States and by|
Article I, Section 3 of the Constitution of the state of California,

FIFTIETH AFFIRMATIVE DEFENSE

AS AND FOR A FIFTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the
future, and each purported cause of action set forth therein, if based upon lack of identification off
the manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute
a cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would constitute an undue burden by the Court on interstate commerce

and a burden without resort to less burdensome alternatives, in violation of the Commerce
-16-

ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC, TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHaKE Law

A PROFESSIONAL CORPORATION

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Clause, Article I, Section 8 of the Constitution of the United States.
RESERVATION OF RIGHTS

This answering defendant presently has insufficient knowledge or information on which
to form a belief as to whether it may have additional, as yet unstated, defenses available. This
answering defendant hereby reserves the right to amend its answer to assert additional defenses
as appropriate.

PRAYER

WHEREFORE, Defendant, ADVANCE MECHANICAL CONTRACTORS, INC., prays
for judgment as follows:

1. That Plaintiffs take nothing by way of their Complaint or any cause of action thereof
against this answering defendant;

2. That the court award judgment in favor of this answering defendant;

3. For reasonable attorneys’ fees;

4. For costs of suit and disbursements; and

5. That if this answering defendant is found liable, that the degree of responsibility and
liability for the resulting damages be determined and apportioned in accordance with California
Civil Code section 1431, et seq.; and

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

Dated: June 14, 2012 HAKE LAW, A PROFESSIONAL CORPORATION

By MAA
Wilken M. Hake, Esq.

Melissa E. Macfarlane, Esq.

Rachael A. Buckman, Esq.

Attomeys for Defendant

ADVANCE MECHANICAL CONTRACTORS, INC.

ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOSHAKE Law
A PROFESSIONAL CORPORATION

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

PROOF OF SERVICE
I, Meagan Gordon, declare and state:

That I am employed in the County of San Francisco, State of California. I am over the
age of eighteen (18) and not a party to the within action; my business address in 343 Sansome
Street, Suite 425, San Francisco, CA 94104.

On June 14, 2012 I served the following documents described as:

ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC,
TO PLAINTIFFS’ THIRD AMENDED COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM- ASBESTOS

() BY MAIL: [am readily familiar with this office’s business practice for collection and
processing mail and placed a true copy thereof in a sealed envelope with postage thereon
fully prepaid for deposit of same in the United States mail in San Francisco, California,
addressed as indicated below:

Q) FEDERAL EXPRESS: | am readily familiar with this office’s business practice for
collection and processing Federal Express Packages and placed a true copy thereof in a
sealed envelope for deposit of same at the Federal Express Store in San Francisco,
California, addressed as indicated below:

() BY FACSIMILE MACHINE [FAX]; By personally transmitting a true copy thereof vial
an electronic facsimile machine to the following number and office listed below:

Q) BY PERSONAL SERVICE: I caused such envelope to be delivered by hand via
FLASH MESSENGER to the addressee(s):

(x) BY LEXIS NEXIS: By electronically serving the following document via LexisNexis
File and Serve on all parties listed on the transmission report.

I declare under penalty of perjury under the laws of the State of California that the
foregoing in true and correct.

Executed on June 14, 2012, in San Francisco, California

Meagan Gordon

-18-

ANSWER OF DEFENDANT ADVANCE MECHANICAL CONTRACTORS, INC. TO PLAINTIFFS’ THIRD. AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOS