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

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Douglas G. Wah, Esq. SBN 64692
Thomas J. Tarkoff, Esq. SBN 160994

Foley & Mansfield, PLLP ELECTRONICALLY
300 Lakeside Drive, Suite 1900
Oakland, California 94612 copet lt ED nia,
Telephone No: (510) 590-9500 County of San Francispo
Facsimile No: (510) 590-9595
Email: ttarkoffi@foleymansfield.com MAR 21 20in
BY: CHRISTLE ARRIOUA
Ps Deputy |Clerk
Attorneys for Defendant
FLUOR CORPORATION
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 Matter”
vs. ANSWER OF DEFENDANT FLUOR
CORPORATION TO PLAINTIFFS’ FIRST
C.C. MOORE & CO. ENGINEERS, et al., AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF
Defendants. CONSORTIUM; AND REQUEST FOR
JURY TRIAL - ASBESTOS
Defendant FLUOR CORPORATION ("Defendant"), in answer to the first amended
complaint of Plaintiffs, ROBERT ROSS and JEAN ROSS 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 first amended 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’ first amended complaint fails to state facts sufficient to
constitute a cause of action against Defendant.

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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 first amended complaint and said carelessness and negligence of Plaintiffs proximately
contributed to the happening of the accident, incident and occurrence alleged in the first
amended 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 their alleged damages, if any there were.

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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 are barred as a
consequence of the exercise of those sovereign powers.

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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 Plaintiffs”
injuries were manufactured, installed, used and/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 express 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 v.
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’ claim against Defendant is barred by the holding of Hooker v.
Dept. of Transportation (2002) 24 Cal 4th 198, in that Defendant, a general contractor, did not
retain control over any independent contractor sufficient to affirmatively contribute to Plaintiffs
alleged injuries.

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EIGHTEENTH 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.

NINETEENTH 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 and/or Workers’ Compensation laws, including, but not limited to, California Labor
Code sections 3601 and 3602, and 33 U.S.C. section 905.

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’ first amended complaint and that Plaintiffs’ 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’ first amended
complaint, various employers of Plaintiffs 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, if any there were.

TWENTY-SECOND 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.

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TWENTY-THIRD 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’ first amended 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-FOURTH 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.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that neither the first amended complaint nor any purported causes of action
alleged therein states facts sufficient to entitle Plaintiffs to an award of punitive damages against
Defendant.
TWENTY-SIXTH 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.

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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any 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.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the first amended complaint are uncertain, vague and
ambiguous.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the first amended complaint should be dismissed
pursuant to California Code of Civil Procedure sections 583.210 through 583.250, 583.410
through 583.430, and other applicable code sections.

THIRTIETH 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 base allegations of liability.

THIRTY-FIRST 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 claim 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.

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THIRTY-SECOND 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-THIRD 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.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that all claims asserted by Plaintiffs were proximately caused by a
superseding, intervening cause.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the entire first amended complaint, and each cause of action thereof, is
barred on the grounds that the products or materials referred to in the first amended complaint, if
any, were not a substantial factor in bringing about the injuries and damages alleged by
Plaintiffs,
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THIRTY-SIXTH 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.
THIRTY-SEVENTH 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, 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 first amended complaint.
THIRTY-EIGHTH 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 first amended complaint,
were lawful.

THIRTY-NINTH 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 first amended complaint,
were justified.

FORTIETH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs lack standing to sue Defendant.

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FORTY-FIRST 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.

FORTY-SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it warned applicable employers of all dangers on the premises known to
Defendant.

FORTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have improperly split causes of action and seeks to maintain a
duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed.

FORTY-FOURTH 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,

FORTY-FIFTH 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’ first amended
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 Johnson v. American Standard, Inc. (2008) 43 Cal. 4th 56.

FORTY- SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant alleges it did not manufacture, sell or distribute the product(s) at issue in Plaintiffs’

first amended complaint. Strict liability is precluded against Defendant, a contractor/service

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provider, as it is well-settled that “strict product liability theories apply only to sales or other
commercial transfers of goods and not to services.” Hyland Therapeutics v. Superior Court (1985)
175 Cal. App.3d 509, 513 (emphasis in original); see also Ferrari v. Grand Canyon Dories (1995) 32
Cal. App.4th 248, 258; Pena v. Sita World Travel, Inc. (1978) 88 Cal.App.3d 642, 644; Barton vy.
Owen (1977) 71 Cal.App.3d 484, 498; Si/verhart v. Mount Zion Hospital (1971) 20 Cal.App.3d
1022, 1027,
FORTY-SEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times and places in the matters alleged in the first amended complaint
neither Plaintiffs nor their employers were in privity of contract with Defendant, and said lack of
privity bars Plaintiffs’ recovery herein upon any theory of warranty, in particular breach of warranty

FORTY- EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times and places in the matters alleged in the first amended complaint
Defendant neither communicated with or misled plaintiffs in any fashion nor suppressed any
critical or relevant information from Plaintiffs. Therefore, Plaintiffs lack the standing or right to
sue for fraud, conspiracy, deceit, or any cause of action under California Civil Code sections 1708
through 1710, and the first amended complaint, as it concerns these causes of action therein, fails to
state facts sufficient to constitute a cause of action against this answering Defendant.

FORTY-NINTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it did not manufacture, sell or distribute the product(s) at issue in
Plaintiffs’ first amended complaint. As such, false representation is precluded against Defendant,
as it applies to defendants “engaged in the business of sed//ing chattels.” See Restatement (Second)
of Torts section 402B (emphasis added).

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FIFTIETH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times and places in the matters alleged in the first amended complaint it
did not make and did not have the occasion to make a misrepresentation to Plaintiffs, which
would have otherwise induced Plaintiffs to rely and which would have otherwise caused
Plaintiffs’ injuries, if any there were. Therefore, Plaintiffs lack the standing or right to sue for false
representation, and the first amended complaint, as it concerns this cause of action therein, fails to
state facts sufficient to constitute a cause of action against this answering Defendant.

WHEREFORE, Defendant prays for judgment as follows:

1 That Plaintiffs take nothing by reason of their first amended complaint herein;
2 That judgment is entered in favor of Defendant;

3. For costs of suit incurred herein;

4. For appropriate credits and set-offs arising out of any payment of Workers’

Compensation benefits as alleged above;

5. For a judicial determination of the amount of non-economic damages, if any,
allocated to Defendant in direct proportion of the Defendant’s percentage of fault,
if any, and a separate judgment in conformance therewith; and

6. 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 section 631, FLUOR CORPORATION

hereby gives Notice of Its Request for Trial by Jury.

Dated: March 21, 2011 FOLEY & MANSFIELD, P.L.L.P.

BY:
‘DOUGLASIG. WAH
THOMAS J. TARKOFF
Attorneys for Defenddnt

FLUOR CORPORATION

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ANSWER OF DEFENDANT FLUOR CORPORATION TO PLAINTIDFS’ COMPLAINT TOR PERSONAL INJURY - ASBESTOSRobert 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 4
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 FLUOR CORPORATION TO PLAINTIFFS’ FIRST AMENDED
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 March 21, 2011, at Oakland, California.

Vincent Chee

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PROOF OF SERVICE