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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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                                JEREMY D. HUIE, ESQ. (SBN 191145)
ihuie@behblaw.com

BASSI, EDLIN, HUIE & BLUM LLP
500 Washington Street, Suite 700

San Francisco, CA 9411} 1

Telephone: (415) 397-9006
Facsimile: (415) 397-1339

Attorneys for Defendant
WRIGHT SCHUCHART HARBOR

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit 1

Attached to Summary Complaint herein; and

DOES 1-8500,

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353050

ELECTRONICALLY

FILED

Superior Court of Califprnia,
County of San Francisco

JUL 18 2017

Clerk of the Court

BY: JUDITH NUNEZ
Deput)

Case No. CGC 10 275731

DEFENDANT WRIGHT SCHUCHART
HARBOR’S ANSWER TO PLAINTIFFS’
SECOND AMENDED COMPLAINT

DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

ClerkDefendant WRIGHT SCHUCHART HARBOR sued in this case as WRIGHT

SCHUCHART HARBOR COMPANY (“WSH”) hereby answers the unverified Second

Amended Complaint for Personal Injury and Loss of Consortium — Asbestos (“Complaint”) of

Plaintiffs ROBERT ROSS and JEAN ROSS (“Plaintiffs”) as follows:

Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, WSH
denies each and every, all and singular, both generally and specifically, the allegations of
Plaintiffs’ unverified 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 WSH or its agents, servants or
employees.

FIRST DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs’ unverified Complaint fails to state facts sufficient to constitute a cause of action
against WSH.

SECOND DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiffs have failed to join all persons and parties needed for a just adjudication of this action.
THIRD DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiffs’ claims are barred by laches, waiver and/or estoppel.
FOURTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that this

Court does not have subject matter jurisdiction over this action or alternatively that the Court
Jacks jurisdiction due to insufficiency of process or the service thereof and/or improper venue.
FIFTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs have failed to commence this action within the time required by the applicable statutes
of limitation, including but not limited to California Code of Civil Procedure sections 340(3),

340.2, and 343.

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2
DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINTSIXTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiffs’ damages,

if any, were proximately caused, in whole or in part, by Plaintiffs’ own fault

and negligence in failing to exercise reasonable care for his own safety. Plaintiffs’ recovery

from WSH, if any, sl

ould therefore be reduced proportionate to Plaintiffs’ comparative fault.

SEVENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiffs have faile

AS A SEPARATE DEFE

Plaintiff was injured

which is denied, suc!

as a result of

AS A SEPARATE DEFE

Plaintiffs suffered any damages, w

result of an unavoidable accident.

AS A SEPARATE DEFE

Plaintiffs suffered any damages, w

to mitigate their alleged damages, if any there were.

EIGHTH DEFENSE
SE TO EACH CAUSE OF ACTION, WSH alleges that if

is exposure to products used or installed at WSH’s premises,

injury occurred after the expiration of the useful safe life of such products.

NINTH DEFENSE
SE TO EACH CAUSE OF ACTION, WSH alleges that if

ich is denied, such damages were the sole and proximate

TENTH DEFENSE
SE TO EACH CAUSE OF ACTION, WSH alleges that if

ich is denied, such damages were caused and/or contributed

to by Plaintiffs’ misuse of the product or products and Plaintiffs’ recovery should be barred or

reduced accordingly.

AS A SEPARATE DEFE

Plaintiffs suffered any damages, w

ELEVENTH DEFENSE
SE TO EACH CAUSE OF ACTION, WSH alleges that if

ich is denied, such damages were solely and proximately

caused and/or contributed to by the negligence or other liability of third persons or entities over

whom or which Defendant WSH had no control or supervision.

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DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINTTWELFTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH 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 DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that if
Plaintiffs suffered any injuries or damages, which is denied, the risk of any such injuries or
damages was not foreseeable to WSH. WSH at all times material hereto acted in accordance
with the state of scientific knowledge available to installers and/or users of asbestos-containing
products.

FOURTEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that it
received no notice of any dangerous, hazardous or defective condition or any breach of warranty,
either expressed or implied.

FIFTEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiffs’ claims against WSH are barred by the holdings of Privette v. Superior Court, 5 Cal.

4th 689 (1993) and Toland v. Sunland Housing Group, Inc., 18 Cal. 4th 253 (1998).
SIXTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs’ purported exposure to any asbestos-containing product or products allegedly used or
installed at WSH’s premises was minimal and insufficient to establish the probability that said

product or products were a legal cause of Plaintiffs’ alleged injuries.

353250
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DEPENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINTSEVENTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH 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 section 905 of Title 33 of the United States Code.
EIGHTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that at the
time of the injuries alleged in Plaintiffs’ complaint, Plaintiff was employed by persons other than
WSH, was entitled to receive and did receive Workers Compensation benefits from said
employer(s) or their insurers, and that said employers(s) were negligent and careless in and about
the matters referred to in Plaintiffs’ complaint. WSH is, therefore, entitled to set-off any such
benefits received by Plaintiffs against any judgment rendered in Plaintiffs’ favor herein and said
employer(s) are barred from any recovery by lien or otherwise against WSH in connection with
this matter.
NINETEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs voluntarily and knowingly assumed the alleged risks and hazards incident to the
alleged operations, acts and conduct at the times and places alleged in Plaintiffs’ complaint and
that Plaintiffs’ said acts proximately caused and contributed to the alleged damages, if any there
were.
TWENTIETH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that at all
times relevant to the matters alleged in Plaintiffs’ complaint, Plaintiffs’ 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 Plaintiffs’ injuries

or damages, if any there were.

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DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINTTWENTY-FIRST DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant WSH alleges
that there was no concert of action among WSH and other defendants to his action and that any
alleged liability or responsibility of WSH, which is denied, is minimal in proportion to the
alleged liability and responsibility of other persons and entities including the other defendants
herein. Plaintiffs should therefore be limited to seeking recovery from WSH for the proportion
of alleged injuries and damages for which WSH is allegedly liable or responsible, all such
alleged liability and responsibility being denied.
TWENTY-SECOND DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent the

Complaint alleges that WSH has “market share” liability or “enterprise liability,” the complaint
fails to state facts sufficient to constitute a cause of action against WSH.
TWENTY-THIRD DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that it is
entitled to set-off any settlements, judgments, or similar amounts received by Plaintiffs, against
any judgment rendered against it in Plaintiffs’ favor herein.

TWENTY-FOURTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges in
accordance with section 1431.2 of the Civil Code, known as the Fair Responsibility Act of 1986,
that if Plaintiffs’ 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. WSH also requests a judicial determination of the
amount of non-economic damages, if any. WSH also requests a judicial determination of the
amount of non-economic damages, if any, allocated to WSH in direct proportion to WSH’s
percentage of fault, if any, and a separate judgment in conformance therewith.

TWENTY-FIFTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiffs’ damages and injuries, if any, were proximately caused or contributed to, in whole or in|

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DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINTpart, by the negligence or fault or other acts and/or omissions of persons or entities other than
WSH, for which WSH is not responsible.
TWENTY-SIXTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
neither the complaint nor any purported cause of action alleged therein states facts sufficient to
entitle Plaintiffs to an award of punitive damages against WSH.

TWENTY-SEVENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs is not entitled to recover punitive or exemplary damages from WSH and that such
damages violate of the Constitutions of the United States and of the State of California.

TWENTY-EIGHTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH 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, herby requiring a
complete extinguishment of the instant action due to the doctrine of Res Judicata and Collateral
Estoppel.

TWENTY-NINTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs did not reasonably rely upon any representation, disclaimer, warranty or other act or
omission of WSH.

THIRTIETH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiffs have failed to sufficiently allege successor liability against WSH.
PRAYER

WHEREFORE, WSH prays for judgment as follows:

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

2, That judgment be entered in favor of WSH;

3, For costs of suit incurred herein; and

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DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINTDate:

353050

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

July 15, 2011 BASSI, EDLIN, HUIE & BLUM LLP

By: /s/ JEREMY D. HUIE
JEREMY D. HUTE, ESQ. (SBN 191145)

Attorneys for Defendant

WRIGHT SCHUCHART HARBOR

&

DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINTRe: Robert Ross and Jean Ross vy. Asbestos Defendants, et al.
San Francisco County Superior Court Case No. CGC 10-275731

PROOE OF SERVICE — ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA/COUNTY OF San Francisco

fam a citizen of the United States and an employee in the County of San Francisco. [am
over the age of eighteen (18) years and not a party to the within action. My business address is
BASSI, EDLIN, HUIE & BLUM LLP, 500 Washington Street, Suite 700, San Francisco,
California 94111,

On the date executed below, I electronically served the document(s) via LexisNexis File
& Serve, described below, on the recipients designated on the Transaction Receipt located on the
LexisNexis File & Serve website.

DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’
SECOND AMENDED COMPLAINT

On the following parties:
SEE SERVICE LIST PROVIDED BY LEXIS-NEXIS

I declare under penalty of perjury that the foregoing is true and correct and that this

document is executed on July 18, 2011, at San Francisco, California.

/sf ADELA AREVALO
ADELA AREVALO

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DEFENDANT WRIGHT SCHUCHART HARBOR’S ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT