On December 17, 2010 a
Answer
was filed
involving a dispute between
Ross, Jean,
Ross, Robert,
and
Acco Engineered Systems, Inc.,
Advanced Mechanical,
Advance Mechanical Contractors, Inc.,
Air Systems Mechanical Contractor,
A & K Heating Company, Inc.,
Albay Construction Company,
Allen-Simmons Heating & Sheet Metal Company Inc.,
Allied Fire Protection,
Allied Sprinkler Company, Inc.,
Allsberry Mechanical Corporation,
Anderson, Rowe & Buckley, Inc.,
Associated Insulation Of California,
A. Teichert & Son, Inc.,
Balliet Bros. Construction Corporation,
Banner Drywall & Painting Co. Inc.,
Barnes Construction Co.,
Bayer Cropscience Inc.,
Bayer Cropscience, Inc., Successor To Amchem,
Bell Products Inc.,
Beta Mechanical Contractors, L.P.,
Bragg Investment Company, Inc.,
Cahill Construction Co., Inc.,
Cahill Construction Services, Inc.,
Cahill Contractors, Inc.,
California Drywall Co.,
Castro Construction, Inc.,
C.C. Moore & Co. Engineers,
Cincinnati Valve Company,
Cjr Plastering,
Clausen-Patten, Inc.,
Clausen-Patten, Inc., A Dissolved Corporation,
Climate Air, Inc.,
Climate Control Co., Inc.,
Collins Electrical Company, Inc.,
Commair Mechanical Services,
Consolidated Insulation, Inc.,
Cosco Fire Protection, Inc.,
Cosco Sprinkler,
Critchfield Mechanical, Inc.,
C & R Plastering, Inc.,
Csk Auto, Inc.,
Cupertino Electric, Inc.,
Delucchi Sheet Metal Works,
Dilland Sederberg Plumbing,
Does 1-8500,
Domco Products Texas Inc.,
Domco Products Texas, L.P.,
Donovan Construction,
Dorn Refrigeration,
Dorn Refrigeration And Air Conditioning,
Dpr Construction,
Duro Dyne Corporation,
D.W. Nicholson Corporation,
D. Zelinsky & Sons, Inc.,
Emil J. Weber Electric Co.,
Erwin Mechanical Inc.,
Ex- Fme, Inc. (Fka Fischbach And Moore Electric,,
Fairmont Hotel Company,
Fluor Corporation,
Foley Electric Co.,
Foley Electric, Inc.,
Fuller Floors,
General Mills, Inc.,
Giampolini & Co.,
Graybar Electric Company, Inc.,
Hanson Permanente Cement, Inc. Formerly Known As,
Harold Beasley Plumbing And Heating, Inc.,
Harry Lee Plumbing & Heating,
H & C Investment Associates, Inc.,
Henry C. Beck Company,
Imperial Plastering & Drywall,
Insulation Specialties, Inc.,
James A. Nelson Co., Inc.,
Johnson Controls, Inc.,
Jones Plastering Company,
Joseph Bruno Sheet Metal Co., Inc.,
J.T. Thorpe & Son, Inc.,
J.W. Mcclenahan Company,
J.W. Mcclenahan Company, Inc.,
Kentile Floors, Inc.,
Laub Sheet Metal Works,
Lone Star Industries, Inc.,
Mack Construction Co.,
Magee, Robert,
Malm Metal Products, Inc.,
Marine Engineering And Supply Company,
Marshco Auto Parts, Inc.,
Mattock Construction Company,
Mcclure Electric, Inc.,
Metropolitan Life Insurance Company,
Michael Brothers,
Midstate Mechanical, Inc.,
Mitchell Bros. Truck Lines, Inc.,
Monsanto Company, Sued As "Pharmacia Corporation",
Oakfabco, Inc.,
Ortho-Craft,
Pacific Fireproofing,
Pacific Mechanical Corporation,
Parker Insulation Contracting & Supply Co. Inc.,
Perini Corporation,
Pharmacia Corporation, Which Will Do Business In,
Pribuss Engineering,
Pribuss Engineering, Inc.,
Raymond Interior Systems-North,
Red Top Electric Co. Emeryville, Inc.,
Robert Magee,
Rollie R. French, Inc.,
Rollins Construction,
Rountree Plumbing & Heating Inc.,
Scott Co. Of California,
S F L, Inc.,
S.J. Amoroso Construction Co., Inc.,
Slakey Brothers, Inc.,
Sugden Engineering Co.,
Swinerton Builders,
Temper Insulation,
Temporary Plant Cleaners, Inc.,
Texaco, Inc.,
The Goodyear Tire & Rubber Company,
The W.W. Henry Company,
Tuttle And Bailey Corp,
Van Mulder Sheetmetal,
Van-Mulder Sheet Metal, Inc.,
Walnut Creek Sheet Metal, Furnace & Air,
W.C. Thomason,
W.C. Thompson,
Webcor Builders, Inc.,
Westburne Supply, Inc.,
Willard Electric,
Wright Schuchart Harbor,
Wright Schuchart Harbor Company,
Ross, Jean,
Ross, Robert,
for civil
in the District Court of San Francisco County.
Preview
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Dennis M. Young, Esq. SBN 121178
Foley & Mansfield, PLLP
300 Lakeside Drive, Suite 1900 ELECTRONICALLY
Oakland, California 94612 FILED
Telephone No: (510) 590-9500 Superior Court of Califol
Facsimile No: (510) 590-9595 County of San Francis
Email: dyoung@foleymansfield.com JUN 18 201
Clerk of the Cou
Attorneys for Defendant BY: VANESSA ‘peputy
ACCO ENGINEERED SYSTEMS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, Case No: CGC-10-275731
Plaintiffs, “Asbestos-Related Matter”
vs. ANSWER OF DEFENDANT ACCO
ENGINEERED SYSTEMS, INC. TO
C.C. MOORE & CO. ENGINEERS, et al., PLAINTIFFS’ THIRD AMENDED
COMPLAINT FOR PERSONAL INJURY;
Defendants, LOSS OF CONSORTIUM AND REQUEST
FOR JURY TRIAL — ASBESTOS
Defendant ACCO ENGINEERED SYSTEMS, INC. ("Defendant"), in answer to the third
amended complaint of Plaintiffs, ROBERT ROSS and JEAN ROSS ("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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ANSWER OF DEFENDANT ACCO ENGINEERED SYSTEMS, {NC. TO PLAINTIFFS’ THIRD AMENDED
COMPLAINT FOR PERSONAL INJURY - ASBESTOS
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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 have failed to join all persons and parties needed for a just
adjudication of this action.
THIRD AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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 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.
FIFTH 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.
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ANSWER OF DEFENDANT ACCO ENGINEERED SYSTEMS, {NC. TO PLAINTIFFS’ THIRD AMENDED
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SIXTH. 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.
SEVENTH 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.
EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs were injured by products used or installed at Defendant's
premises, which is denied, such injury occurred after the expiration of the useful safe life of such
products.
NINTH 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
the sole and proximate result of an unavoidable accident.
TENTH 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 Plaintiff's misuse of the product or products and Plaintiffs’
recovery should be barred or reduced accordingly.
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ANSWER OF DEFENDANT ACCO ENGINEERED SYSTEMS, {NC. TO PLAINTIFFS’ THIRD AMENDED
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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, 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 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.
THIRTEENTH 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 their 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 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.
FIFTEENTH 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 expressed or implied.
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SIXTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claims against Defendant are barred by the holding of Privette
v. Superior Court (1993) 5 Cal 4th 689.
SEVENTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's exposure to any asbestos-containing product or products
allegedly used or instalied at Defendant's premises 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 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.
NINETEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at the time of the injuries alleged in Plaintiffs’ third amended complaint,
Robert Ross was employed by persons other than Defendant, was entitled to receive and did
receive Workers' Compensation benefits from said employer(s) or their insurers; and that said
employer(s) were negligent and careless in and about the matters referred to in Plaintiffs’ third
amended complaint. Defendant is, therefore, entitled to set-off any such benefits received by
Plaintiffs against any judgment rendered in Plaintiffs’ favor and said employer(s) are barred from
any recovery by lien or otherwise against Defendant in connection with this matter,
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TWENTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff 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 said acts proximately caused and contributed to the
alleged damages, if any there were.
TWENTY-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, Robert Ross’ employers 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 his injuries, if any there were.
TWENTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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 AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
to the extent the third amended complaint alleges that Defendant has "market share" liability or
“enterprise liability", the third amended complaint fails to state facts sufficient to constitute a
cause of action against Defendant.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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 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, if any, and a separate judgment
in conformance therewith.
TWENTY-SIXTH 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.
TWENTY-SEVENTH 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 state facts sufficient to entitle Plaintiffs to an award of punitive damages against
Defendant.
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ANSWER OF DEFENDANT ACCO ENGINEERED SYSTEMS, {NC. TO PLAINTIFFS’ THIRD AMENDED
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ instant action is barred and discharged, pursuant to Title 11
U.S.C. section 1141(d), and that Plaintiffs' action violates the pending injunction against such
claims that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2).
THIRTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its 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.
THIRTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the third amended complaint are uncertain, vague and
ambiguous.
THIRTY-SECOND 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 sections 583.210 through 583.250, and 583.410 through 583.430 of the California
Code of Civil Procedure, and other applicable code sections.
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THIRTY-THIRD 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 their allegations of liability.
THIRTY-FOURTH 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 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.
THIRTY-FIFTH 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 Plaintiff or by others,
THIRTY-SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times mentioned, Plaintiffs consented to the alleged acts of
Defendant.
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THIRTY-SEVENTH 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.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the entire third amended complaint and each cause of action thereof, is
barred on the grounds that the products or materials referred to in the third amended complaint, if
any, were not a substantial factor in bringing about the injuries and damages alleged by
Plaintiffs.
THIRTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the 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.
FORTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that to the extent Plaintiffs’ claims arise out of contract, Plaintiffs' claims do
not state facts sufficient to entitle Plaintiffs to an award of punitive or exemplary damages
against Defendant.
FORTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE 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 lack of privity bars any recovery by Plaintiffs against Defendant under
any theory of breach of warranty.
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FORTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs failed to give adequate and timely notice of any alleged breach
of warranty.
FORTY-THIRD AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ entire third amended complaint, is barred by the Statute of
Frauds to the extent that any such causes of action are based on alleged oral agreements.
FORTY-FOURTH 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.
FORTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the third amended complaint,
were lawful.
FORTY-SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the third amended complaint,
were justified.
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FORTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs lack standing to sue Defendant.
FORTY-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 Plaintiff's exercise of reasonable care.
FORTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it warned Plaintiff's employers of all dangers on the premises known to
Defendant.
FIFTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have improperly split their causes of action and seeks to
maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously
filed.
FIFTY-FIRST 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.
FIFTY-SECOND 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, Plaintiff knew or should have knewn about the hazards of asbestos-containing
products, and, therefore, Plaintiff was a sophisticated user of asbestos-containing products within
the meaning of William Johnson vy. American Standard, Inc. (2008) 74 Cal.Rptr.3d 108.
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FIFTY-THIRD AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claims against Defendant are barred by the holding of Hooker
v. Dept. of Transportation (2002) 24 Cal.4th 198, in that Defendant did not retain control over
any independent contractor sufficient to affirmatively contribute to Plaintiffs’ alleged injuries.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it did not manufacture, sell, or distribute the product(s) at issue in
Plaintiffs’ third amended complaint. Strict liability is precluded against Defendant, 4
contractor/service provider, because “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, 592. 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.
WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiffs take nothing by reason of their third amended complaint herein;
2. That judgment be entered in favor of Defendant;
3. For costs of suit incurred herein;
4, For appropriate credits and set-offs arising out of any payment of Workers’
Compensation benefits as alleged above;
5. For a judicial determination of the amount of non-economic damages, if any,
allocated to Defendant in direct proportion to ACCO ENGINEERED SYSTEMS,
INC.’S percentage of fault, if any, and a separate judgment in conformance
therewith; and
6, For appropriate credits and set-offs arising from allocation of liability to other
named and unnamed tort feasors; and
7. For such other and further relief as the Court may deem just and proper.
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NOTICE OF REQUEST FOR JURY TRIAL
Pursuant to California Code of Civil Procedure section 631, ACCO ENGINEERED
SYSTEMS, INC. hereby gives Notice Of Its Request For Trial By Jury.
Dated: June 18, 2012 FOLEY & MANSFIELD, P.L.LP.
ACCO ENGINEERED SYSTEMS,
INC.
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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
ROBERT ROSS and JEAN ROSS vs. C.C, MOORE & CO, ENGINEERS, et al.,
San Francisco Superior Court No.: CGC-10-275731
Our File No.: 12006-000023
I, the undersigned, declare as follows: 1am employed in the County of Alameda,
California, and I 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, California, 94612.
On the date executed below, | electronically served the following document(s) via
LexisNexis website described as:
ANSWER OF DEFENDANT ACCO ENGINEERED SYSTEMS, INC. TO PLAINTIFFS’
THIRD AMENDED COMPLAINT FOR PERSONAL INJURY; LOSS OF
CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOS
T 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 18, 2012
(Aine debe
Rondi L. Preston
at Oakland, California.
i
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION