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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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                                Becherer
Kannett &
Schweitzer

125s
Powell St.

910-658-3600

Mark S. Kannett (SBN104572)

Shahrad Milanfar (SBN 201126)

Bridget McKinstry (SBN 200219) ELECTRONICALLY

Lysle J. Kapp (SBN 223907) FILED

BECHERER KANNETT & SCHWEITZER Superior Court of Califomia,

Ps Powell Street 608 County of San Francisco
eryville,

Telephone: (510) 658-3600 APR 08 2011

Facsimile: (510) 658-1151 Clerk of the Court

BY: JUANITA D. MURPHY

Attorneys for Defendant Depully Clerk
CSK Auto, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS ) CASE NO. CGC 10-275731
)
Plaintiffs, ) ANSWER OF DEFENDANT CSK.
) AUTO, INC. TO FIRST AMENDED
vs. ) COMPLAINT FOR PERSONAL
) INJURY AND LOSS OF CONSORTIUM
C.C. MOORE & CO. ENGINEERS; ) - ASBESTOS
Defendants as Reflected on Exhibit 1 attached )
to the Summary Complaint herein; and DOES)
1-8500. )
)
Defendants. )
)

Defendant CSK Auto, Inc. answers the First Amended Complaint for Personal Injury and
Loss of Consortium - Asbestos (“complaint”) as follows:

The use of a neuter pronoun in this answer includes feminine, masculine and plural|
pronouns and any singular in this answer, referring to "plaintiff" or "defendant," shall include the|
plural reference.

1. Answering complaint, defendant denies every allegation contained therein and

denies that by reason of any act or omission by it, its agents, or independent contractors, Plaintiff]

was injured or damaged in any sum, or at all.
AFFIRMATIVE DEFENSES
As affirmative defenses to each cause of action:

2. Plaintiff voluntarily assumed the risk of any injury or damage alleged in the’

ANSWER OF DEFENDANT CSK AUTO, INC. TO FIRST AMENDED COMPLAINT1 | complaint.
/ 2 3. Plaintiff was careless and negligent in the matters alleged thereby causing and
3 | contributing to any injury, damage or loss to plaintiff.
4 4, The complaint does not state facts sufficient to constitute a cause of action against
5 | this defendant.
6 5. The incident complained of in the complaint was proximately caused by the
7 | misuse and abuse which was made of the product referred to in the complaint.
: 8 6. Other parties and third persons not parties to this action were negligent or legally
9 | responsible or otherwise at fault for the damages alleged in plaintiff's complaint. Defendant
10 | therefore requests that in the event of a finding of any liability in favor of plaintiff or settlement
11 } or judgment against this defendant, an apportionment of fault be made among all parties as
12 | permitted by Li v. Yellow Cab Company and American Motorcycle Association vy. Superior!
13 } Court by the court or jury. Defendant further requests a judgment and declaration of partial
14 | indemnification and contribution against all other parties or persons in accordance with the
15 | apportionment of fault.
| 16 7. Plaintiff failed to file the complaint during the applicable period of limitations so
17 | that the complaint is barred by the provisions of Code of Civil Procedure sections 335.1, 337, 338
18 | (ab)(c)(@)h)), 339(1), 340.2(a), 340.2(c), 340.8(a)(b), 343, former section 340 and
19 | Commercial Code section 2725.
20 8. The alleged damage of plaintiff was solely attributable to the unreasonable,
21 | unforeseeable, inappropriate and unintended use to which the product was subjected.
22 9. The provisions of Civil Code section 1431.2 are applicable to the complaint and

23 | each cause of action therein.

ener 24 10. Plaintiff has waived and are estopped and barred from alleging the matiers set
Schweitzer
25 | forth in the complaint.
1285
Paepite.ca 26 11. As a result of the matters alleged, plaintiff received workers' compensation

wee 27 | benefits from an employer or its insurance carrier, or both, in an amount not yet definitely

28 | ascertained and determined; that the total amount of these payments is not yet known to this|
2
ANSWER OF DEFENDANT CSK AUTO, INC. TO FIRST AMENDED COMPLAINTBecherer
Kannett &
Schweitzer

510-658-3600

o ON DA OH fF Oo NY

NB eee Be eB ee ee
oO ON OH Ff WOW N FF CO

21

27
28

defendant and leave of court will be sought to amend this answer when the amount is determined;
that by virtue of Labor Code Sections 3850 and 3852, and related sections, the employer and its
insurance carrier are subrogated to the rights of plaintiff for any and al! monies may receive from
this defendant up to the amount paid to plaintiff; that the plaintiff's injuries arose as a direct and
proximate result of the negligence and carelessness of plaintiff's employer, and plaintiff's
employer and its insurance carrier are not entitled to reimbursement for monies paid or to be paid
to plaintiff; and in the event of any judgment in favor of plaintiff against this defendant, it should|
be reduced by the amounts paid or to be paid to plaintiff by the employer or its insurance carrier.

12. Plaintiff consented to the acts and events set forth therein.

13. The injuries of plaintiff were solely the responsibility of an intervening cause or
causes and/or the superseding acts of others and that this defendant's conduct, if any, was not the
proximate or legal cause of the alleged injuries.

14. The State of California's judicially created definitions of manufacturing defect and
design defect and standards for determining whether there has been an actionable failure to warn
are unconstitutional in that, among other things, they are void for vagueness and an undue burden|
upon interstate commerce, as well as an impermissible effort to regulate in an area that has
previously been preempted by the federal government.

15. 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 California Civil Code section 3294 is invalid on its face or|
as applied in this action.

16. | 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.

_ The complaint is barred by the exclusivity provisions of the California Workers’
Compensation laws, including, but not limited to, California Labor Code sections 3600, et seq.

18. | The complaint and each and every cause of action therein arose in another state

and by the laws thereof an action thereon cannot be maintained against this answering defendant

within said state by reason of the lapse of time, and therefore an action thereon cannot be
3

ANSWER OF DEFENDANT CSK AUTO, INC. TO FIRST AMENDED COMPLAINTee

maintained against this answering defendant in the State of California pursuant to California Code
of Civil Procedure section 361.

19. Plaintiff has unreasonably delayed in the commencement of this action to the
prejudice of defendant, whereby the complaint and each cause of action therein are barred by the
doctrine of laches.

20. Defendant alleges that CSK Auto 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's employers, 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

op ON Oo HA fF WwW N

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|

to

plaintiff's damages, if any. In addition, plaintiff was and is a sophisticated user who knew or

w

should have known of the risk associated with using products containing asbestos, if any. As
14 | such, CSK Auto cases did not have an obligation to warn a sophisticated user, if any such

5 || warning was warranted.

6 WHEREFORE, this answering defendant prays as follows:
7 1. That plaintiff take nothing by reason of the complaint on file herein;
8 2. That CSK Auto, Inc., be dismissed with an award of its costs of suit incurred

9-|| herein; and

20 3. For such other and further relief as the Court deems just and proper.
21 | Dated: Aprit {_, 2011 BECHERER KANNETT & SCHWEITZER
22
23 By: We q i L— @
Bech Mark S. Kannett
Kannett& 2% Attorneys for Defendant
Schweitzer CSK Auto, Inc.
25
ss
Ene ca 26
3608
27
28°
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ANSWER OF DEFENDANT CSK AUTO, INC. TO FIRST AMENDED COMPLAINTBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryville, CA

94608
510-658-3600

Coco MW N DH FW HD

13
14

27
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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, Melissa Keeler, declare that I am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and I am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.

On April & 2011, I electronically served the document(s) via LexisNexis File & Serve
described as:

« ANSWER OF DEFENDANT CSK AUTO, INC. TO FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM -
ASBESTOS

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

I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on April §, 2011, at
Emeryville, California.

Meliss?Kee!

5

ANSWER OF DEFENDANT CSK AUTO, INC. TO FIRST AMENDED COMPLAINT