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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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Jeffrey S. Gillespie, State Bar No. 192495
Walter C. Rundin, State Bar No. 072475

BURNHAM BROWN . ELECTRONICALLY
A Professional Law Corporation
P.O. Box 119 me FILED

and, California 94604 Superior Court of California,
And, CAltOrma A008

sore ennecnneeennwenneOOUEHY-OF- S80 -FFANGISCO———
1901 Harrison Street, 14th Floor JUL 08 2011
Oakland, California 94612 Clerk of the Court
Telephone: (510) 444-6800 BY: JUANITA D. MURPHY
Deputy Clerk

Facsimile: (510) 835-6666

Attorneys for Defendant
CALIFORNIA DRYWALL CO.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
ROBERT ROSS and JEAN ROSS, No. CGC-10-275731
Plaintiffs, DEFENDANT CALIFORNIA

DRYWALL CO.’S ANSWER TO

v. PLAINTIFFS’ SECOND AMENDED
COMPLAINT FOR PERSONAL

C.C. MOORE & CO. ENGINEERS; ~ INJURY AND LOSS OF

Defendants As Reflected on Exhibit 1 CONSORTIUM—ASBESTOS

attached to the Summary Complaint herein; :

and DOES 1-8500, 2nd Amend, Complaint Filed: May 12,
2611

Defendants.

Defendant CALIFORNIA DRYWALL CO. (“Defendant”), in answer to Plaintiffs’ second
amended complaint (“complaint”), denies generally and specifically, each and every, all and
singular, the allegations of said complaint, and each cause of action thereof, and further denies that
Plaintiffs ROBERT ROSS and JEAN ROSS (‘Piaintiffs”) have been damaged in any sum or sums
or at all.

WHEREFORE, this answering Defendant asserts the following affirmative defenses:

AFFIRMATIVE DEFENSES

1. As a first affirmative defense to each cause of action, the complaint does not state

facts sufficient to constitute a cause of action against this Defendant.

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DEFENDANT CALIFORNIA DRYWALL CO.’S ANSWER TO PLAINTIFFS’ SECOND CGC-10-275731
AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM—
ASBESTOS2. As a second affirmative defense, each cause of action is barred by the applicable statute
of limitations, including but not limited to, California Code of Civil Procedure sections 340.2 and 361.
3. Asa third affirmative defense to cach cause of action, Plaintiffs failed to mitigate or

“make reasonable efforts to mitigate their damages, if any, as required by law.

4, Asa fourth affirmative defense to each cause of action, the damages sustained by
Plaintiffs, if any, were caused, in whole or in part, by the negligence, strict liability or fault of others for
which this Defendant is not liable or responsible.

5. Asa fifth affirmative defense to each cause of action, Plaintiff ROBERT ROSS
(“Plaintiff”) by his actions, knew of and appreciated the risks involved, and voluntarily and reasonably
assumed the risk of said injuries, proximately causing or contributing to the damages alleged.

6. Asa sixth affirmative defense to each cause of action, if Plaintiffs sustained injuries
attributable to the use of any product, which allegations are expressly denied, the injuries were caused
in whole or in part by the unreasonable, unforeseeable and inappropriate purpose and/or improper use
which was made of the product.

7. As aseventh affirmative defense to each cause of action, Plaintiff was partially, if not
wholly, negligent or othérwise at fault on his own part pursuant to the doctrine of comparative fault,
and Plaintiffs are barred from recovery of that portion of the damages directly attributable to his
proportionate share of fault.

8. As an eighth affirmative defense to each cause of action, Defendant alleges that the
products 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.

9. As a ninth affirmative defense to each cause of action, Defendant alleges that any claim
for punitive or exemplary damages is barred by the United States Constitution, including the First,
Fifth, Eighth and Fourteenth Amendments, and by the California Constitution, including Article I, and
that Civil Code section 3294 is invalid on its face or as applied in this action.

10. As atenth affirmative defense to each cause of action, at the time and place of the
happening of the incident alleged in the complaint, Plaintiff was employed by various employers, and

was working within the course and scope of employment and certain sums have been or will be paid
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DEFENDANT CALIFORNIA DRYWALL CO,’S ANSWER TO PLAINTIFFS’ SECOND CGC-10-275731
AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM—
ASBESTOSCe IN KD Hh

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under the applicable provisions of the Labor Code and any award made must be reduced by the

payments.
ll. As an eleventh affirmative defense to each cause of action, Defendant alleges that the

! “action is barred under the “primary right” Goctfitie On The basis that Catises Of action may Hot be split by |

the doctrines of res judicata and collateral estoppel and by virtue of Plaintiffs’ prosecution and/or
settlement of their claims in prior actions.

12. Asa twelfth affirmative defense to each cause of action, Defendant alleges that if
Plaintiff worked for this answering Defendant then Plaintiffs’ claim is barred by the exclusive remedy
provisions of the appropriate state or federal law.

13. Asa thirteenth affirmative defense to each cause of action, Defendant alleges that
Plaintiff was provided and/or was covered by workers’ compensation insurance by each of his
employers, and Plaintiff, his employer and/or employers were subject to the provisions of the Workers’
Compensation Act of the State of California. Accordingly, Plaintiff's actions were barred by the
doctrine articulated in Privette v. Superior Court, 5 Cal. 4th 689 (1993).

14. As a fourteenth affirmative defense to each cause of action, this Defendant alleges that
Plaintiff assumed whatever risk or hazard, if any, that existed at the time and place of the alleged
accident set forth in Plaintiffs’ complaint, and said assumption of risk or hazard is imputed to said
Plaintiffs.

15. As a fifteenth affirmative defense to each cause of action, the damages sustained by
Plaintiffs or damages that will be sustained by Plaintiffs, if any, have been and will be proximately
caused, in whole or in part, by unforeseen superseding and intervening causes over which Defendant
had no control, thereby barring or diminishing recovery on the complaint against Defendant.

16. As a sixteenth affirmative defense to cach cause of action, Plaintiffs acknowledged,
ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this Defendant, thus
barring Plaintiffs’ recovery.

17. As a seventeenth affirmative defense to cach cause of action, Plaintiff and/or his
employer(s) were sophisticated users, purchasers and/or learned intermediaries of the products and

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DEFENDANT CALIFORNIA DRYWALL CO.’S ANSWER TO PLAINTIFFS’ SECOND CGC-10-275731
AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM—
ASBESTOS2 Se WD nH Bw NM

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equipment referred to by Plaintiffs in their complaint. Accordingly, Defendant owed no duty to
Plaintiff with respect to any warning relating to Defendant’s products.
18. Asan eighteenth affirmative defense to each cause of action, the injuries and damages

“sustained by Plaintifts, if any, were solely arid legally caused by the modification, alteration or change"

of the product referred to in the complaint and said modification, alteration or change was performed
by persons or entities other than this answering Defendant and without its knowledge or consent.

19.  Asanineteenth affirmative defense to each cause of action, 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. Defendant reserves herein the right to assert additional defenses in
the event discovery indicates that they would be appropriate.

20, As atwentieth affirmative defense to each cause of action, the provisions of the “Fair
Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections 1430, 1431,
1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the extent that
Plaintiffs’ injuries and damages, if any, were legally caused or contributed to by the negligence or fault
of persons or entities other than this answering Defendant.

21. As a twenty-first affirmative defense to each cause of action, the asbestos products, if
any, for which Defendant may have any legal responsibility were manufactured, packaged, distributed,
and/or sold in accordance with contract specifications imposed by Co-Defendant, by the U.S.
Government, by Plaintiff's employers, and/or by third parties yet to be identified.

22. As a twenty-second affirmative defense to each cause of action, Plaintiffs’ complaint,
and each cause of action therein, is barred by the doctrine of laches.

23. Asatwenty-third affirmative defense to each cause of action, Plaintiff's employers
were partially, if not wholly, negligent, or otherwise at fault on his own part pursuant to the doctrine of
comparative negligence, and Plaintiffs should be barred from recovery of that portion of the damages
directly attributable to PlaintifP's employers’ proportionate share of the negligence or fault. Witt v.
Jackson, 57 Cal. 2d 57 (1961).

24. As a twenty-fourth affirmative defense to each cause of action, Plaintiffs’ complaint,

and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.
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DEFENDANT CALIFORNIA DRYWALL CO.’S ANSWER TO PLAINTIFFS’ SECOND CGC-10-275731
AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM—
ASBESTOSCea An

we oN

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25.  Asatwenty-fifth affirmative defense to each cause of action, Plaintiffs have failed to
join all persons and parties needed for a just adjudication of this action.
26.  Asatwenty-sixth affirmative defense, with respect to some or all of Plaintiffs’ alleged
~Glaimis and ‘causes of action, this Cott ds jirsdicion
27. As atwenty-seventh affirmative defense, with respect to some or all of Plaintiffs’
alleged claims and causes of action, in the interest of substantial justice, the action should be heard in a
forum outside this state.

WHEREFORE, this answering Defendant prays for judgment as follows:

1. That Plaintiffs take nothing by reason of their complaint on file herein;

2. For costs of suit incurred herein; and

3. For such other and further relief as the Court deems just and proper.
DATED: July 8, 2011 BURNHAM BROWN

Hill. fA.

WALTER C. RUNDIN

Attomeys for Defendant
CALIFORNIA DRYWALL CO.

1087910

§

DEFENDANT CALIFORNIA DRYWALL CO.’S ANSWER TO PLAINTIFFS’ SECOND CGC-10-275731
AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM—
ASBESTOSRe: Robert Ross, et al. v. C.C. Moore & Co. Engineers, et al.
Court: San Francisco Superior
Action No: CGC-10-275731

PROOF OF SERVICE OF ELECTRONIC SERVICE

I declare that J am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnham Brown whose business address is 1901 Harrison Street,
11" Floor, Oakland, Alameda County, California 94612 (mailing address: Post Office
Box 119, Oakland, California 94604).

On the date executed below, I electronically served the document(s) via
LexisNexis File & Serve described as:

DEFENDANT CALIFORNIA DRYWALL CO.’S ANSWER TO PLAINTIFFS’
SECOND AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM—ASBESTOS

on recipients designated on the Transaction Receipt located on the LexisNexis File &
Serve website.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and was executed on July 8, 2011 at Oakland, California.

PROOF OF SERVICE CASE NO. CGC-10-275731