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

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                                1 || Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
2 || BRYDON HUGO & PARKER
135 Main Street, 20 Floor ELECTRONICALLY
3 || San Francisco, CA 94105 FILED
Telephone: (415) 808-0300 Superior Court of California,
4 || Facsimile: (415) 808-0333 County of San Francisco
5 || Attorneys for Defendant JAN 26 20 12
SWINERTON BUILDERS BY WILLIAM TRUCE.
6 Deputy Clerk
7
8
SUPERIOR COURT - STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
10
11 || ROBERT ROSS and JEAN ROSS, (ASBESTOS)
Case No. CGC-10-275731
12 Plaintiffs,
vs. ANSWER OF SWINERTON BUILDERS TO
13 SECOND AMENDED COMPLAINT FOR
C.C. MOORE & CO. ENGINEERS, et al., | PERSONAL INJURY AND LOSS OF
14 CONSORTIUM - ASBESTOS
Defendants.
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COMES NOW Defendant SWINERTON BUILDERS (“SWINERTON” or
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“Defendant”) denying liability for itself and any alternate entities named in the
18
complaint, and answers plaintiffs’ Complaint for Personal Injury and Loss of Consortium
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— Asbestos (hereinafter the “Complaint”) on file herein, admits, denies, and alleges as
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follows:
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GENERAL DENIAL
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Under the provisions of Section 431.30(d), California Code of Civil Procedure,
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"1 this answering defendant denies each and every allegation of plaintiffs’ Complaint and
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the whole thereof, and denies that plaintiffs have been damaged in any sum or amount
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whatsoever, or at all, and denies that plaintiffs are entitled to recover damages of any
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kind in any amount whatsoever from SWINERTON.
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BRYDON
HuGo & PARKER. 1
“ero ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
San Francises, CA 94105 CONSORTIUM - ASBESTOS1 RESERVATION OF RIGHT TO TRIAL BY JURY

2 SWINERTON reserves the right to a trial by jury.
3 AFFIRMATIVE DEFENSES
4 FIRST AFFIRMATIVE DEFENSE
5 Failure to State a Cause of Action
6 This answering defendant alleges that plaintiffs’ Complaint and each of the causes
7 || of action for relief alleged therein, fails to state a cause of action against this answering
g |) defendant.
9 SECOND AFFIRMATIVE DEFENSE
10 Contravention of Defendant's Constitutional Rights to Due Process of Law
11 The Complaint and each cause of action thereof, which is admittedly based upon a

12 |) lack of identification of the manufacturer of, and contractor using or distributing the

13 || alleged injury-causing product, fails to state facts sufficient to constitute a cause of action
14 || in that plaintiff has asserted a claim for relief which, if granted, would contravene

15 || defendant's constitutional rights to substantive and procedural due process of law as

16} preserved for defendant by the Fourteenth Amendment of the United States Constitution

17] and by Article I, Section 7, of the Constitution of the State of California.

18 THIRD AFFIRMATIVE DEFENSE
19 Denial of Defendant's Constitutional Rights to Equal Protection of the Laws
20 The Complaint, and each cause of action thereof, fails to state facts sufficient to

21 |) constitute a cause of action in that plaintiff has asserted claims for relief which, if granted,
22 || would constitute a denial by this Court of defendant's constitutional right to equal
23 || protection of the laws as preserved by the Fourteenth Amendment of the United States

24 || Constitution and by Article I, Section 7, of the Constitution of the State of California.

25 FOURTH AFFIRMATIVE DEFENSE

26 || Unconstitutional Taking of Private Property for Public Use Without Just Compensation

27 The Complaint, and each cause of action thereof, which is admittedly based upon
2g || a lack of identification of the manufacturer, and contractor using or distributing the

BRYDON

Huso & PARKER 2
133 Maun Stee:
2" Ficon ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL iNJURY AND LOSS OF

San Franwiseo, CA 94105

CONSORTIUM - ASBESTOS1 || alleged injury-causing product, fails to state facts sufficient to constitute a cause of action
2 || in that plaintiff has asserted claims for relief which, if granted, would constitute the

3 || taking of private property for public use without just compensation in contravention of
4 |) the Fifth and Fourteenth Amendments to the United States Constitution and by Article I,
5 || Section 7 and 19, of the Constitution of the State of California, and the applicable

6 || California statutes,

7 FIFTH AFFIRMATIVE DEFENSE

8 Comparative Fault

9 This answering defendant alleges that the damages, if any, complained of by

10 }; plaintiff, were proximately caused by the negligence, fault, breach of contract and/or
11 J) strict liability of plaintiff or other defendants, firms, persons, corporations, unions,
12 || employers and entities other than SWINERTON, and that said negligence, fault, breach

13 | of contract and/or strict liability comparatively reduces the percentage of any negligence,

14 || fault, breach of contract or strict liability for which SWINERTON is legally responsible, if
15 || any be found, which liability this defendant expressly denies. Further, this answering
16 || defendant alleges that plaintiff did not exercise ordinary care, caution or prudence to

17 || avoid the incidents complained of herein, and said incidents and the injuries and

18 || damages, if any, sustained by plaintiff, were directly and proximately caused and

19 || contributed to by the carelessness and negligence of said plaintiff.

20 SIXTH AFFIRMATIVE DEFENSE
21 Contributory Negligence
22 This answering defendant alleges that plaintiff did not exercise ordinary care,

23 || caution or prudence to avoid the incidents complained of herein, and said incidents and

24 || the injuries and damages, if any, sustained by plaintiff, were directly and proximately

25 || caused and contributed to by the carelessness and negligence of said plaintiff.

26 SEVENTH AFFIRMATIVE DEFENSE
27 Uncertainty
28 This answering defendant alleges that plaintiffs’ Complaint and all purported
BryDON
HuGo & PARKER 3
SnnoO ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF

San Francisen, CA $4105

CONSORTIUM « ASBESTOS1 || causes of action therein are vague, ambiguous and uncertain, and fail to state a cause of

action on any theory.

2
3 EIGHTH AFFIRMATIVE DEFENSE
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Laches

This answering defendant alleges that plaintiffs unreasonably delayed in bringing

this action and that such delay substantially prejudiced defendant, and that this action is

NINTH AFFIRMATIVE DEFENSE

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7 |j therefore barred by the Doctrine of Laches.
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Statute of Limitations

10 This answering defendant alleges that plaintiffs’ Complaint and the purported

11 |) causes of action therein are barred by all statutes of limitation, including, but not limited
12 |} to, the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3)
13 || and 340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiffs’ claims
14 || are further barred by the statute of limitations of states other than California pursuant to

15 || California Code of Civil Procedure § 361.

16 TENTH AFFIRMATIVE DEFENSE
17 Failure to Mitigate
18 This answering defendant alleges that plaintiffs failed to mitigate damages which

19 || plaintiffs contend they suffered, and plaintiffs are therefore barred from any recovery
20 |) whatsoever, or alternatively, any damages found must be reduced in proportion to such

21 || failure to mitigate.

22 ELEVENTH AFFIRMATIVE DERENSE
23 Estoppel
24 This answering defendant alleges that as a result of the acts, conduct and/or

25 || omissions of plaintiffs and their agents, or any of them, and each cause of action

26 || presented therein, is barred under the Doctrine of Estoppel.

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BRYDON
Huco & PARKER 4
135 MaIN STREET
20" FLOOR ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF

San Francisco, CA 94105

CONSORTIUM - ASBESTOSBRYDON
Huco & PARKER,
135 MAIN STRAT
247" FLOOR
Sen Frencisco, CA 94105

TWELFTH AFFIRMATIVE DEFENSE

Waiver
This answering defendant alleges that plaintiffs, by their acts, conduct and
omissions, have waived the claims alleged in their Complaint and in each purported

cause of action alleged therein.

THIRTEENTH AFFIRMATIVE DEFENSE

Acquiescence
Plaintiffs acknowledged, ratified, consented to, and acquiesced in the alleged acts

or omissions, if any, of this answering defendant, thus barring plaintiffs from any relief as
prayed for herein.

FOURTEENTH AFFIRMATIVE DEFENSE

Notice of Dangers
Plaintiffs were advised, informed, and warned of any potential hazards and/or

dangers, if there were any, associated with the normal or foreseeable use, handling,
storage and in place asbestos of the products, substances, equipment and at premises in
which exposure is claimed as is described in the Complaint and is therefore barred from

any relief prayed for.

FIFTEENTH AFFIRMATIVE DEFENSE

Compliance with Statutes
This answering defendant alleges that all of its conduct and activities as alleged in

the plaintiffs’ Complaint conformed to statutes, government regulations, and industry

standards based upon the state of knowledge existing at all relevant times.

SIXTEENTH AFFIRMATIVE DEFENSE

Compliance with Specifications
This answering defendant alleges that the asbestos products or asbestos used or in

place at any premises, if any, for which SWINERTON had any legal responsibility, were
manufactured, packaged, distributed or sold in accordance with contract specifications

imposed by its co-defendants, by the U.S. Government, by the State of California, by

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ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSoOo De DDH HW

BRYDON
Huco & PARKER:
135 Maly steer
20" FLOOR
Sen Francisco, CA 94108

plaintiff’s employers, or by third parties yet to be identified.
SEVENTEENTH AFFIRMATIVE DEFENSE

No Conspiracy
This answering defendant alleges that SWINERTON has no liability for the acts,

omissions or otherwise of any other defendant or entity because SWINERTON did not
become legally responsible for the acts of any such defendant, nor entity, by any
communication, alleged, implied, or actual, nor act, action, or activity, and never was, nor

is, a conspirator nor co-conspirator with any other defendant or entity.

EIGHTEENTH AFFIRMATIVE DEFENSE

State-of-the-Art

This answering defendant alleges that all of its activities, products, materials and
its premises at issue here at all times were conducted, used, produced, marketed, and
operated in conformity with the existing scientific, medical industrial hygiene and
consumer knowledge, art and practice and state-of-the-art.

NINTEENTH AFFIRMATIVE DEFENSE

No Foreseeable Risk to Plaintiff

The state of the medical, scientific, and industrial knowledge and practice was at
all material times such that defendant neither breached any alleged duty owed plaintiff,
nor knew, nor could have known, that its activities, materials, products, activities or
premises presented a foreseeable risk of harm to plaintiff in the normal and expected

course of such activities and use of such materials and products.

TWENTIETH AFFIRMATIVE DEFENSE

No Right to Control
This answering defendant alleges that any loss, injury, or damage incurred by

Plaintiff was proximately and legally caused by the negligent or willful acts or omissions
of parties which SWINERTON neither controlled, nor had the right to control, and was

not proximately caused by any acts, omissions, or other conduct of SWINERTON.

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ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS1 TWENTY-FIRST AFFIRMATIVE DEFENSE

2 Action for Relief
3 This answering defendant alleges the causes of action, if any, attempted to be
4 || stated and set forth in the Complaint, are barred by the provisions of the Code of Civil
5 |} Procedure of the State of California and/or other statutes of the State of California,
6 |} including without limitation C.C.P. § 338(d).
7 TWENTY-SECOND AFFIRMATIVE DEFENSE
Misuse and Improper Use of Products
9 This answering defendant alleges that if the plaintiff allegedly suffered injuries

19 || attributable to the disturbance or use of any product for which SWINERTON had any

11 || legal responsibility, which allegations are expressly herein denied, the injuries were

12 || solely caused by, and attributable to the unreasonable, unforeseeable, and inappropriate
13 |} purpose and improper use and abuse which was made of said product by persons or

14 || entities other than SWINERTON.

15 TWENTY-THIRD AFFIRMATIVE DEFENSE
16 Due Care and Diligence
17 This answering defendant alleges that SWINERTON exercised due care and

18 | diligence in all of the matters alleged in the Complaint, and no act or omission by

19 || SWINERTON was the proximate cause of any damage, injury or loss to plaintiff.

20 TWENTY-FOURTH AFFIRMATIVE DEFENSE
21 Alteration and Misuse of Product
22 This answering defendant alleges that an insubstantial amount, if any at all, of the

23 || products containing asbestos distributed, used, supplied by defendant or used or in place
24 || at any premises owned or controlled by defendant, were not disturbed or used in the
25 || presence of plaintiff and not supplied to the plaintiff, and if so, were substantially altered

26 || by others and/or used in a manner inconsistent with the labeled directions.

27 TWENTY-FIFTH AFFIATIVE DEFENSE
28 Equal or Greater Knowledge of Hazards
BRYDON
HUuGo & PARKER 7
Soro ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF

San Francisco, CA 94105

CONSORTIUM - ASBESTOSBrypon
Huco & PARKER,
135 MANN STREET
20 ELC
San Franciseo, CA 94105

This answering defendant alleges that any and all products containing asbestos
used, distributed or supplied by defendant were distributed or supplied to, or for,
persons or entities who had knowledge with respect to the hazards, if any, resulting from
exposure to products containing asbestos, which knowledge is equal to or greater than

the knowledge of SWINERTON.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Other Parties’ Liability and Negligence

This answering defendant alleges that if there was any negligence or any other
form of liability on 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

SWINERTON.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Apportionment and Offset
This answering defendant is informed and believes and thereon alleges that

plaintiffs acts and omissions, including plaintiff’s agents, servants, and employees acting
within the course and scope of their employment, and others, contributed to the alleged
damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court
apply the principles of apportionment and offset so as to permit the Court or jury to
apportion liability according to fault and to grant defendant a corresponding offset
against any damages awarded to plaintiff.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Contribution/Equitable Indemnity

This answering defendant alleges, in the event it is held liable to Plaintiff, any such
liability is expressly herein denied, and any other co-defendants are likewise held liable,
SWINERTON 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.

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ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS1 TWENTY-NINTH AFFIRMATIVE DEFENSE

2 Assumption of Risk by Plaintiff’s Employer(s)
3 This answering defendant alleges that the Complaint and each cause of action
4 || alleged therein are barred on the grounds that plaintiffs employer or employers

5 || knowingly entered into and engaged in the operations, acts and conduct alleged in the

6 || Complaint, and voluntarily and knowingly assumed all of the risks incident to said
7 || operations, acts and conduct at the time and place mentioned in the Complaint.
8 THIRTIETH AFFIRMATIVE DEFENSE
9 Assumption of Risk
10 This answering defendant alleges plaintiff assumed the risk of the matters referred

11 }} to in his Complaint and that plaintiff knew and appreciated the nature of the risk and

2 |; that the plaintiff voluntarily accepted this risk.

3 THIRTY-FIRST AFFIRMATIVE DEFENSE

No Market Share

This answering defendant alleges that SWINERTON did not have an appreciable

share of the market for the asbestos-containing products which allegedly caused

SWINERTON may not be held liable to plaintiff based on its alleged share of the

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7 || plaintiff's injuries, which occurrence SWINERTON expressly denies. Accordingly,
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applicable product market.

20 THIRTY-SECOND AFFIRMATIVE DEFENSE
21 Plaintiff Fails to Join a Substantial Market Share
22 The Complaint, and each cause of action thereof, fails to state facts sufficient to

23 || constitute a cause of action against this answering defendant, in that defendant has failed
24 || to join a substantial market share of the producers or products to which plaintiff was

25 || allegedly exposed.

26 THIRTY-THIRD AFFIRMATIVE DEFENSE
27 Insufficient Facts to Show Substantial Market Share of this Defendant
28 To the extent the Complaint asserts defendant's alleged “alternative,” “market
BRYDON
Huco & PARKER 9
ne ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF

Sen Francisco, CA 94105

CONSORTIUM - ASBESTOSN

Con a

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Brybon
Huco & PARKER
135 MAb StABET
20" FLOOR
San Franisco, CA $4105

share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a

cause of action against this defendant.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Independent, Intervening or Superseding Cause

This answering defendant alleges that if plaintiff suffered any injuries attributable
to the use of any product containing asbestos which was used, distributed or sold by
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 defendant. Defendant's actions, if any, were

superseded by the negligence and wrongful conduct of others.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

Not a Substantial Factor

This answering defendant alleges that the Complaint and each cause of action
therein presented are barred on the grounds that the products, conduct, materials or
premises of defendant as referred to in plaintiff's Complaint, if any, were not a
substantial factor in bringing about the injuries and damages complained of by plaintiff
and did not increase the risk that plaintiff would suffer the injuries and damages
complained of.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Insufficient Exposure
Any exposure of plaintiff to defendant's activities, products or exposure to

asbestos or asbestos-containing products at SWINERTON’s premises was so minimal as,
to be insufficient to establish by a reasonable degree of probability that any such product
caused any alleged injury, damage, or loss to plaintiff.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

No Successor Liability
This answering defendant alleges that SWINERTON has no liability for the acts,

omissions or otherwise of any other defendant or any other entity because SWINERTON

10

ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSBRYDON
HUGO & PARKER
138 Mans STREET
207" FLOo8
San Francisen, CA 94105

did not become legally responsible for the acts of any such defendant or entity given the
facts and circumstances of the pertinent transactions and never was, nor is, a successor-

in-interest, a successor-in-liability or an alternate entity for any other user, manufacturer,
supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing

products.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

Lack of Privity
This answering defendant alleges that plaintiffs have failed to state a cause of

action in that the Complaint fails to allege that there was privity between defendant on
the one hand, and plaintiffs on the other, and furthermore, such privity did not exist
between defendant on the one hand, and plaintiffs on the other.

THRITY-NINTH AFFIRMATIVE DEFENSE

Secondary Assumption of Risk

This answering defendant alleges that any and all products containing asbestos
used, distributed or supplied by defendant were used, distributed or supplied to, or for,
persons or entities who had knowledge with respect to the hazards, if any, resulting from
exposure to products containing asbestos, which is equal to or greater than, the
knowledge of SWINERTON, i.e. SWINERTON’s liability should be reduced in
proportion to the knowledge of plaintiff.

FORTIETH AFFIRMATIVE DEFENSE

Civil Code Section 1431.2
This answering defendant alleges that the provisions of California Civil Code §
1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiffs’ Complaint

and to each cause of action therein.

FORTY-FIRST AFFIRMATIVE DEFENSE

Workers’ Compensation Exclusive Remedy

This answering defendant alleges that the Complaint is barred by the exclusivity

provisions of the California Workers’ Compensation laws, including, but not limited to,

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ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSwn

BRYDON
HuGO & PARKER
135 MAN STRSET
2 FLOCR
Sea Francisco, CA 941015

California Labor Code §§ 3600, et seq.

FORTH-SECOND AFFIRMATIVE DEFENSE

Offset for Workers’ Compensation Benefits

This answering defendant alleges that to the extent plaintiff herein recovered, or in
the future may recover, any monies in connection with any claim for workers’
compensation benefits, any amounts recovered in this action are subject to a claim by

defendant for a credit or offset.

FORTY-THIRD AFFIRMATIVE DEFENSE

Express Contractual Indemnity

This answering defendant alleges that if plaintiff claims exposure to asbestos or
asbestos-containing products at a SWINERTON premises, SWINERTON contracted with
plaintiff and/or plaintiff’s employer(s) 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 plaintiffs work,
and, further, to fully indemnify SWINERTON, and to hold SWINERTON harmless, for
all responsibility and liability arising out of said work, and/or any injuries allegedly
incurred by plaintiff as a result of any of said work. SWINERTON reserves all rights to

assert these provisions of contractual indemnity.

FORTY-FOURTH AFFIRMATIVE DEFENSE

Consent

This answering defendant alleges that at all times mentioned, plaintiff consented
to the alleged acts or omissions of SWINERTON.
FORTY-FIFTH AFFIMATIVE DEFENSE
Unusual Susceptibility

This answering defendant alleges that each of plaintiff's injuries and damages, if

any, were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic
condition, unusual susceptibility, or hypersensitivity reactions for which SWINERTON is

not liable.

12

ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSND wu

BRYDON
HUGO & PARKER
138 Macy Sree
20" Foor
San Franciszo, CA 94108

FORTY-SIXTH AFFIRMATIVE DEFENSE
Good Faith

This answering defendant alleges that plaintiffs’ claim for punitive damages is
barred because SWINERTON at all times and places mentioned in the Complaint acted

reasonably and in good faith, and without malice or oppression towards the plaintiffs.

FORTY-SEVENTH AFFIRMATIVE DEFENSE

Sophisticated User
This answering defendant alleges that SWINERTON was under no legal duty to

warn plaintiff of the hazard associated with the use of products containing asbestos or .
their existence at any premises owned, operated, controlled or otherwise by
SWINERTON. The purchasers of said products, the plaintiff, plaintiff’s employers, his
unions or certain 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 damages, if any.

FORTY-EIGHTH AFFIRMATIVE DEFENSE

Work Hazard Precautions
This answering defendant alleges that plaintiff's employer(s) was/were advised
and warned of any potential hazards and/or dangers associated with the normal and
foreseeable conduct with, or storage and disposal of the products referred to in the
Complaint, in a manner which was adequate notice to an industrial user of such product
to enable it to inform its employees to take appropriate work precautions to prevent

injurious exposure.

FORTY-NINTH AFFIRMATIVE DEFENSE

Failure to Join Indispensable Parties

Plaintiffs herein has failed to join indispensable parties (California Code of Civil

Procedure, § 389) and the Complaint is thereby defective, and plaintiffs are thereby

13

ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM ~ ASBESTOS:BRYDON
Huco & PARKER
135 Mail STREET
20" FLOOR
San Feaneisen, CA 94305

precluded from any recovery whatsoever as prayed for herein.

FIFTIETH AFFIRMATIVE DEFENSE

No Standing Under California Civil Code §§ 1708-1710

Plaintiffs have no standing nor right to sue for fraud and conspiracy, breach of
warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and
therefore the Complaint and each cause of action thereof fails to state facts sufficient to

constitute a cause of action against this answering defendant.

FIFTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff is not a Real Party in Interest

Plaintiffs, and each of them, herein lacks legal capacity to sue and is not a real
party in interest and is thereby precluded from any recovery whatsoever as prayed for

herein.

FIFTY-SECOND AFFIRMATIVE DEFENSE

Fraud and Conspiracy are Not Separate Forms of Damages

Fraud and conspiracy do not constitute a separate and distinct form of damages
from general damages, and, therefore, the prayer for fraud and conspiracy in addition to
general damages does not sufficiently support or constitute a separate claim for damages
against this answering defendant, but is simply cumulative and included in general

damages.

FIFTY-THIRD AFFIRMATIVE DEFENSE

Failure to Allege with Particularity

This answering defendant alleges that plaintiffs’ Complaint fails to set out its
claims with sufficient particularity to permit defendant to raise all appropriate defenses
and, thus, defendant reserves the right to add additional defenses as the factual basis for

these claims becomes known.

FIFTY-FOURTH AFFIRMATIVE DEFENSE

Punitive Damage Prohibited
This answering defendant alleges that plaintiffs’ Complaint fails to state facts

14

ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM ~ ASBESTOSBRYDON
HuGo & PARKER
135 Macy STREET
20" Fock
San Frsncisso, CA 24108

sufficient to support an award of punitive or exemplary damages against SWINERTON.
The Complaint, to the extent that it seeks exemplary or punitive damages, violates
SWINERTON’s right to procedural due process under the Fourteenth Amendment of the
United States Constitution, and the Constitution of the State of California, and fails to
state a cause of action upon which either punitive or exemplary damages can be

awarded.

FIFTY-FIFTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

This answering defendant alleges that the Complaint, to the extent that it seeks
punitive or exemplary damages, violates SWINERTON’s right to protection from
excessive fines as provided in the Eighth Amendment of the United States Constitution
and Article I, Section 17 of the Constitution of the State of California, and violates
SWINERTON’s right to substantive due process as provided in the Fifth and Fourteenth
Amendments of the United States and California Constitutions, and thus fails to state a
cause of action supporting an award of punitive or exemplary damages.

FIFTY-SIXTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

The causes of action asserted herein by plaintiffs fail to state facts sufficient to
constitute a cause of action in that plaintiffs have asserted claims for punitive damages
which, if granted, would violate the prohibition against laws impairing the obligation of

contracts set forth in Article I, Section 10, of the United States Constitution.

FIFTY-SEVENTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited

Plaintiffs’ claim for punitive or exemplary damages, if any, alleged by Plaintiffs is
barred by the “double jeopardy” clause of the Fifth Amendment to the United States

Constitution, as applied to the States through the Fourteenth Amendment.

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ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSec DR tH

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BRYDON
HuGo & PARKER,
135 MAIN STREET
20" FLOOR
San Froncisao, CA 94105

FIFTY-EIGHTH AFFIRMATIVE DEFENSE

Negligent Hiring Claim Invalid
An employee of an independent contractor may not pursue a claim for negligent
hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal.

4th 1235 (2001).

FIFTY-NINTH AFFIRMATIVE DEFENSE

Right to Amend ,
This defendant will assert any and all additional defenses that arise during the

course of this litigation and reserves the right to amend its answer to assert such

defenses.

SIXTIETH AFFIRMATIVE DEFENSE

Alternate Unknown Cause
The alleged injuries and damages, if any, may be in whole or in part due to injury,

disease or cause other than as alleged.

SIXTY-FIRST AFFIRMATIVE DEFENSE

No Concert of Action
There is no concert of action between defendant and any of the other named
defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be

held jointly and severally liable with the other named defendants.

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ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSRow oN

BRYDON
Tuco & PARKER
9S Matn STRBET
20" FLOOR
Sat Francisco, CA. 24105,

PRAYER
WHEREFORE, this answering defendant prays for judgment as follows:

1. That Plaintiffs take nothing by reason of their Complaint or any claims
stated therein;

2. That Plaintiffs’ Complaint and each cause of action contained therein be
dismissed with prejudice against SWINERTON;

3. For costs of suit; and

4, For such other and further relief as the Court deems just and appropriate in

the circumstances.

DATED: January 26, 2012 BRYDON HUGO & PARKER

By: /s/ Edward R. Hugo
Edward R. Hugo

P.M. Bessette
Attorneys for Defendant

SWINERTON BUILDERS

17

ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSCO 2 YN Dw Fw N

Ross, Robert & Jean
San Francisco County Superior Court Case No. CGC-10-275731
LexisNexis Transaction No. 42153702

PROOF OF SERVICE

lam a resident of the State of California, over the age of 18 years, and nota
party to the within action. My electronic notification address is
serviceebhplaw.com and my business address is 135 Main Street, 20% Floor, San
Francisco, California 94105. On the date below, I served the following:

ANSWER OF SWINERTON BUILDERS TO SECOND AMENDED COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS

on the following:

BRAYTON PURCELL LLP Lexis Nexis Service List
222 Rush Landing Road

Novato, CA 9494,

Fax: (415) 898-1247

X By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

o By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

o By placing the document(s) listed above in a sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm’s ordinary business practices. I am readily familiar with the firm’s
practice of collection and processing correspondence for mailing. Under
that practice it would be deposited with U.S. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. 1am aware that on motion of party
served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in
affidavit.

o By placing the document(s) listed above in a sealed envelope designated
for Federal Express overnight delivery and depositing same with fees
thereupon prepaid, in a facility regularly maintained by Federal Express,
addressed as set forth above.

I declare under penalty of eerjury that the above is true and correct.
Executed on January 26, 2012, at San Francisco, California.

osh Tabisaura

PROOF OF SERVICE