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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Stephen J. Foley, Esq. SBN 220752
Dennis M. Young, Esq. SBN 121178 ELECTRONICALLY
Foley & Mansfield P.L.L.P.
300 Lakeside Drive, 19" Floor sopekr IL ED.
Oakland, CA 94612 County of San Francisco
Telephone: (510) 590-9500 APR 14 2011
Facsimile: (510) 590-9595 Clerk of the Court
BY: ANNIE PASCUAL
Attorneys for Defendant Deputy Clerk
LONE STAR INDUSTRIES, INC.
Erroneously Sued and Served Herein as DOE #11
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 Case”
ANSWER OF DEFENDANT LONE STAR
INDUSTRIES, INC., Erroneously Sued and
Served Herein as DOE #11 TO PLAINTIFFS’
COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM AND
REQUEST FOR JURY TRIAL ~ ASBESTOS
vs.
C.C. MOORE & CO. ENGINEERS, et al.
Defendants.
ee Se
Defendant LONE STAR INDUSTRIES, INC. erroneously sued and served herein as DOE #11
("Defendant"), in answer to the 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
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,
FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ complaint fails to state facts sufficient to constitute a cause of action
against Defendant.
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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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’ claim is 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.
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
complaint and said carelessness and negligence of Plaintiffs proximately contributed to the happening of
the accident, incident and occurrence alleged in the 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 his alleged damages, if any there were.
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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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 Plaintiffs misuse of the product or products and Plaintiffs’ recovery should be
barred or reduced accordingly.
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,
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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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.
SIXTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claim against Defendant is barred by the holding of Privette y.
Superior Court (1993) 5 Cal.4th 689.
SEVENTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs' exposure to any asbestos-containing product or products allegedly used
or installed 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
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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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’ 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' 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.
TWENTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant 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 Plaintiff's 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 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
Plaintiff's 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
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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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 complaint alleges that Defendant has "market share" liability or "enterprise liability", the
complaint fails to state facts sufficient to constitute a cause of action against Defendant.
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’ 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.
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that neither the complaint nor any purported causes of action alleged therein state
facts sufficient to entitle Plaintiff to an award of punitive damages against Defendant.
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-KIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the 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 complaint should be dismissed pursuant to sections 583.210
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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through 583.250, and 583.410 through 583.430 of the California Code of Civil Procedure, and other
applicable code sections.
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 bases 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 Plaintiffs allegedly 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 Plaintiffs 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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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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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 was 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 complaint and each cause of action thereof, is barred on the grounds
that the products or materials referred to in the complaint, if any, were not a substantial factor in
bringing about the injuries and damages alleged by Plaintiff,
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, was 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.
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.
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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FORTY-THIRD AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs' entire 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 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 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 complaint, were justified.
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 Plaintiffs' exercise of reasonable care.
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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FORTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it warned Plaintiffs' 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’ complaint, Plaintiffs knew
or should have known the hazards of asbestos containing products, and therefore Plaintiffs were a
sophisticated user of asbestos-containing products within the meaning of William Johnson v. American
Standard, Inc. (2008) 43 Cal. 4" 56.
FIFTY-THIRD 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’ complaint, Plaintiff's
employers, and each of them, knew or should have known the hazards of asbestos containing products,
and therefore Plaintiff's employers, and each of them, was a sophisticated user of asbestos-containing
products within the meaning of William Johnson v. American Standard, Inc. (2008) 43 Cal. 4'" 56,
FIFTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOScee DOD A ee BH
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Defendant alleges that the equipment it sold was manufactured in strict compliance with detailed
government specifications and that LONE STAR INDUSTRIES, INC. is immune to suit under the
government contract or doctrine set forth in Boyle v. United tech. Corp.(1988) 487 U.S. and Sundsirum
v. McDonnell Douglas Corp. (N.D, Cal. 1993) 816 F. Supp. 587.
WHEREFORE, Defendant prays for judgment as follows:
1.
2,
That Plaintiffs' take nothing by reason of their complaint herein;
That judgment be entered in favor of LONE STAR INDUSTRIES, INC., erroneously
sued and served herein as DOE #11;
For costs of suit incurred herein;
For appropriate credits and set-offs arising out of any payment of Workers!
Compensation benefits as alleged above;
For a judicial determination of the amount of non-economic damages, if any, allocated to
Defendant in direct proportion to LONE STAR INDUSTRIES, INC.’S percentage of
fault, ifany, and a separate judgment in conformance therewith; and
For appropriate credits and set-offs arising from allocation of liability to other named and
unnamed tortfeasors; and
For such other and further relief as the Court may deem just and proper.
NOTICE OF REQUEST FOR JURY TRIAL
Pursuant to California Code of Civil Procedure §631, LONE STAR INDUSTRIES, INC.
erroneously sued and served herein as DOE #11, hereby gives Notice Of Its Request For Trial By Jury.
Dated: April 14, 2010
SFIELD, P.L.L.P.
BY
Stephen f-
Dennis M. Yung
Attorneys fér Defendant
LONE STAR INDUSTRIES, INC.
Erroneously Sued and Served herein as DOE #11
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ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC, sued fiercin as DOE (1 £ TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSbb woh
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Rabert Ross and Jean Ross vs. C.C. Moore & Co. Engineers, et al.
San Francisco County Superior Case No. CGC-10-275731
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, the undersigned, declare as follows:
Tam 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, 19" Floor, Oakland, CA 94612.
On the date executed below, I electronically served the documents(s) via LexisNexis File &
Serve described as:
ANSWER OF DEFENDANT LONE STAR INDUSTRIES, INC., Erroneously Sued and Served
Herein as DOE #11 TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM AND REQUEST FOR JURY TRIAL — ASBESTOS
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration
was executed on April 14, 2011, at Oakland, California.
Arlene Villamieva
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PROOF OF SERVICE