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

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DAVID T. BIDERMAN (State Bar No. 101577)
dbiderman@perkinscoie.com

RICHARD S. CHON (State Bar No. 197541) ELECTRONICALLY
rchon@perkinscoie.com FILED
PERKINS COTE LLP Superior Court of California,
: County of San Francisco
Four Embarcadero Center, Suite 2400
San Francisco, California 94111 MAR 23 2011
. erk of the Cou
Telephone: {415) 344-7000 BY: JUDITH NUNEZ
Facsimile: (415) 344-7288 Deputy Clerk

Attorneys for Defendant
GENERAL MILLS, INC,

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No.: CGC-10-275731

Plaintiffss, ANSWER OF DEFENDANT GENERAL
MILLS, INC. TO FIRST AMENDED
v. COMPLAINT

C.C. MOORE & COMPANY ENGINEERS, et
al,
Defendants.

Defendant General Mills, Inc. (hereinafter “General Mills”), hereby answers the unverified
First Amended Complaint filed on or about March [4, 2011 (the “Complaint”) of Plaintiffs
ROBERT ROSS and JEAN ROSS (hereinafter “Plaintiffs”), as follows:

GENERAL DENIAL
Pursuant to California Code of Civil Procedure section 431.30(d), General Mills denies
generally and specifically each and every allegation of each cause of action contained in the
Complaint, and further denies that Plaintiffs sustained injury or damage in the sums alleged, or in
any other sum or sums, or at all, and that Plaintiffs are entitled to any relief as a result of any act,

conduct, or omission of General Mills.

ANSWER OF DEFENDANT GENERAL MILLS, INC. TO FIRST AMENDED COMPLAINT
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AS AND FOR ITS AFFIRMATIVE DEFENSES HEREIN, GENERAL MILLS
ALLEGES AS FOLLOWS:
FIRST AFFIRMATIVE DEFENSE

1. The Complaint, and each purported cause of action therein, fails to state facts
sufficient to constitute a cause of action against General Mills.
SECOND AFFIRMATIVE DEFENSE
2. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by the applicable statutes of limitation and/or repose, including, but not limited to, California
Code of Civil Procedure sections 340 and 340.2.
THIRD AFFIRMATIVE DEFENSE
3. Venue is improper in this Court.
FOURTH AFFIRMATIVE DEFENSE
4, The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by the doctrine of estoppel by virtue of Plaintiffs’ conduct.
FIFTH AFFIRMATIVE DEFENSE
5, The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by the doctrine of laches by virtue of Plaintiffs’ conduct.
SIXTH AFFIRMATIVE DEFENSE
6. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by the doctrine of waiver by virtue of Plaintiffs’ conduct.

SEVENTH AFFIRMATIVE DEFENSE

7. The Complaint, and each purported cause of action therein, is barred, in whole or in

part, by Plaintiffs’ express assumption of the risks and dangers, if any, associated with the alleged

conditions, conduct, or injuries, with knowledge of such risks and dangers.

EIGHTH AFFIRMATIVE DEFENSE

8. Some or all of the damages claimed by Plaintiffs are not recoverable under applicable

law. In the event that there is a finding of damages for Plaintiffs, any award or judgment entered in

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favor of Plaintiffs must be reduced or offset by the amount of any benefits Plaintiffs receives, or are
entitled to receive, from any source, under applicable law.

NINTH AFFIRMATIVE DEFENSE

9. Plaintiffs’ damages, if any, were directly and proximately caused, or contributed to, in
whole or in part, by the acts and/or omissions and/or fault of other individuals, firms, corporations,
or other entities over whom General Mills has or had no control or right of control, and for whom it
is/was not responsible. Said acts and/or omissions and/or fault intervened between, and/or
superseded, the acts and/or omissions and/or fault of General Mills, if any, Plaintiffs’ recovery
against General Mills, if any, should therefore be barred or diminished in accordance with applicable
law.

TENTH AFFIRMATIVE DEFENSE

10. Plaintiffs’ damages, if any, were directly and proximately caused, or contributed to,
by Plaintiffs’ own negligence or fault at the times and in the places set forth in the Complaint, or the
negligence or other fault of individuals, firms, corporations, or other entities, over whom General
Mills has or had no control or right of control, and for whom it is/was not responsible which were in
privity with Plaintiffs. Plaintiffs’ recovery against General Mills, if any, should therefore be barred
or diminished in accordance with applicable law.

ELEVENTH AFFIRMATIVE DEFENSE

11. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by Plaintiffs’ failure to mitigate damages, if any.

TWELFTH AFFIRMATIVE DEFENSE

12. Third parties over whom General Mills has or had no control or right of control, and
for whom it is/was not responsible, altered or modified the General Mills product or products in
question, if any, and such alteration or modification was the sole, direct, and proximate cause of
Plaintiffs’ damages, if any, thereby barring any and all claims against General Mills.

THIRTEENTH AFFIRMATIVE DEFENSE

13. At the times and in the places set forth in the Complaint, any General Mills product in

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question, if any, was not being used in the normal and ordinary way, nor was it being used in a
manner recommended by General Mills, nor for the purposes for which it was designed,
manufactured, and/or sold. To the contrary, any such General Mills product was being put to an
abnormal use or misuse, and to a use that was not reasonably foreseeable to General Mills. Such
abnormal use or misuse was the sole, direct and proximate cause of Plaintiffs’ injuries and damages,
ifany. Plaintiffs’ recovery against General Mills, if any, is therefore barred.
FOURTEENTH AFFIRMATIVE DEFENSE

14. At the times and in the places set forth in the Complaint, any General Mills premise
in question was not being used in the normal and ordinary way, nor was it being used in a manner
recommended by General Mills, nor for the purposes for which it was designed. To the contrary,
any such General Mills premise was being put to an abnormal use or misuse, and to a use that was
not reasonably foreseeable to General Mills. Such abnormal use or misuse was the sole, direct and
proximate cause of Plaintiffs’ injuries and damages, if any. Plaintiffs’ recovery against General
Mills, if any, is therefore barred.

FIFTEENTH AFFIRMATIVE DEFENSE

15. At all times and in all places relevant to the alleged conditions, conduct, or injuries,
Plaintiffs had or should have had notice and knowledge of the risks and dangers, if any, associated
with such conditions, conduct, and injuries, because any such risk or danger was open, obvious, and
apparent to Plaintiffs, and/or, Plaintiffs appreciated the danger or risk, and voluntarily assumed any
such danger or risk.

SIXTEENTH AFFIRMATIVE DEFENSE

16. —-If Plaintiffs sustained any injury or damage as alleged in the Complaint, said injury or
damage was solely, directly, and proximately caused by conditions, circumstances, and/or conduct of
others, beyond the control of General Mills.

SEVENTEENTH AFFIRMATIVE DEFENSE

17. The plans or designs, method or technique of manufacturing, assembling, testing,

labeling, and sale of any General Mills product, if any, alleged in the Complaint to have caused all or

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part of Plaintiffs’ alleged damages conformed with the state of the art at the time any such General
Mills product was designed, manufactured, assembled, tested, labeled and/or sold by Genera! Mills,
pursuant to generally recognized and prevailing standards and in conformance with the statutes,
regulations, and requirements that governed the product or products at the time of design,
manufacture, assembly, testing, labeling, and sale.
EIGHTEENTH AFFIRMATIVE DEFENSE
18. The benefits of the design of any General Mills product in question, if any, outweigh
any risk associated with said products, if any risk there actually was, which General Mills denies,
NINETEENTH AFFIRMATIVE DEFENSE
19. The actions of General Mills were in conformity with the state of the medical,
industrial, and scientific arts, so that there was no duty to warn Plaintiffs under the circumstances, or
to the extent such a duty arose, General Mills provided adequate warnings, labels, and/or instructions
concerning any General Mills product in question. If those warnings, labels, and/or instructions
were not made available or heeded, it is the fault of others and not of General Mills.
TWENTIETH AFFIRMATIVE DEFENSE
20. The actions of General Mills were in conformity with the state of the medical,
industrial, and scientific arts, so that there was no duty to warn Plaintiffs under the circumstances, or
to the extent such a duty arose, General Mills provided adequate warnings, labels, and/or instructions
concerning any of General Mills’s premises in question. If those warnings, labels, and/or
instructions were not made available or heeded, it is the fault of others and not of General Mills.
TWENTY-FIRST AFFIRMATIVE DEFENSE
21. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, because Plaintiffs has failed to join all necessary and indispensable parties.

TWENTY-SECOND AFFIRMATIVE DEFENSE

22. General Mills made no express or implied representations or warranties of any kind
to Plaintiffs. To the extent that the alleged representations or warranties were made, they were made

by persons or entities other than General Mills, and over whom General Mills has or had no control

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or right of control.

TWENTY-THIRD AFFIRMATIVE DEFENSE

23. Plaintiffs did not rely upon any representations or warranties made by General Mills.
To the extent Plaintiffs relied upon any alleged representations or warranties, such reliance was
unjustified.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

24. Plaintiffs’ claim for punitive damages, if granted, would be excessive and would
violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
General Mills has not received fair notice that it could be subject to punitive damages in this state for
the conduct alleged. General Mills’s conduct was not deliberate, and the damages, if any, to
Plaintiffs, were economic. The punitive damages sought by Plaintiffs would be greatly
disproportionate to any actual damages.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

25. Plaintiffs’ claim for punitive damages would violate the Eighth Amendment to the
United States Constitution and Article I, Sections | and 17, of the California Constitution because it
seeks to impose an excessive fine upon General Mills, is penal in nature, and seeks to punish
General Mills upon vague standards.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

26. Plaintiffs’ claim for punitive damages would violate the Equal Protection Clause to
the Fourteenth Amendment to the United States Constitution and Article I, Section 7 of the
California Constitution because it discriminates against General Mills on the basis of wealth and
because different amounts can be awarded against two or more defendants for the same act when
those defendants differ only in material wealth.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

27. Plaintiffs’ claim for punitive damages violates the Due Process Clause of the Fifth
and Fourteenth Amendments to the United States Constitution because it seeks to punish General

Mills based upon unconstitutionally vague standards.

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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
28. Plaintiffs’ claim for punitive damages would violate the Fifth Amendment to the
United States Constitution and Article L, Section 15 of the California Constitution because it would
expose General Mills to multiple punishments and fines for the same act or conduct.

TWENTY-NINTH AFFIRMATIVE DEFENSE

29. Plaintiffs’ claim for punitive damages violates the Due Process Clause of the Fifth
and Fourteenth Amendments to the United States Constitution in the absence of an order bifurcating
that claim from the issue of liability.

THIRTIETH AFFIRMATIVE DEFENSE

30. Any award of punitive damages in this case would violate the Separation of Powers
Doctrine since this Court and/or the jury would be usurping the exclusive power of the legislature to
define crimes and establish punishment.

THIRTY-FIRST AFFIRMATIVE DEFENSE

31, Any award of punitive damages in this case would be constitutionally defective as an
ex post facto law prohibited by the California and United States Constitutions. The jury, in making
any such punitive award, would effectively be criminalizing conduct after it has occurred and
without appropriate advance notice to a defendant that such conduct may subject it to criminal
punishment.

THIRTY-SECOND AFFIRMATIVE DEFENSE

32. The punitive damages sought by Plaintiffs would violate the Due Process Clause of
the Fifth and Fourteenth Amendments to the United States Constitution to the degree that Plaintiffs
seek to punish General Mills in California for alleged conduct that occurred elsewhere.

THIRTY-THIRD AFFIRMATIVE DEFENSE

33. At no time relevant hereto were Plaintiffs exposed to any asbestos from products
designed, manufactured, or sold by General Mills.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

34. At no time relevant hereto were Plaintiffs exposed to any asbestos at premises owned

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or controlled by General Mills.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

35. Any exposure by Plaintiffs to any of General Mills’s products, if any, was so minimal
as to be insufficient, as a matter of law, to have constituted a substantial factor in causing any
asbestos-related disease.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

36. Any exposure by Plaintiffs at any of General Mills’s premises was so minimal as to
be insufficient, as a matter of law, to have constituted a substantial factor in causing any asbestos-
related disease.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

37. General Mills neither designed, nor manufactured, nor sold any of the products
alleged in the Complaint.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

38. Any products manufactured by General Mills that incorporated asbestos-containing
materials, if any, alleged to have been a cause of, or to have contributed to, any disease contracted by
Plaintiffs, were manufactured in, under, and in conformity with the direction and control of the
United States Government, which at all times material hereto had knowledge superior to that of
General Mills with respect to the potential hazards of asbestos products; accordingly, no liability can
imposed upon General Mills.

THIRTY-NINTH AFFIRMATIVE DEFENSE

ee,

39. Any and all “market share.” “enterprise.” and/or “concert of action” theories of

jability are inapplicable to General Mills and/or any of General Mills’ products in question, if any.
FORTIETH AFFIRMATIVE DEFENSE
40. Plaintiffs’ employers were negligent and careless, which negligence and carelessness
were legal and actual causes of, and contributed to, the damages, if any, that Plaintiffs sustained, and
which negligence and carelessness bar the recovery by Plaintiffs, from General Mills. Furthermore,

General Mills is entitled to set off any workers’ compensation benefits and/or veterans” benefits

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and/or military benefits received or that are to be received by Plaintiffs, against any judgment that
may be rendered in favor of Plaintiffs, against General Mills, or against General Mills and any other
defendant or defendants.
FORTY-FIRST AFFIRMATIVE DEFENSE

41. Any General Mills product in question, if any, was approved in accordance with
federal law, and state law cannot impose a different standard of design, performance, testing, or
labeling because doing so would impair the federal standards for the product or products and thereby
transgress the Supremacy Clause of the United States Constitution.

FORTY-SECOND AFFIRMATIVE DEFENSE

42. The Fair Responsibility Act of 1986, codified at California Civil Code section 1431.1
et. seq., limits any damages governed thereby, which are awarded to Plaintiffs against General Mills,
to that portion of Plaintiffs’ non-economic damages, if any, that are attributable to General Mills’s
percentage of fault or liability, if any.

FORTY-THIRD AFFIRMATIVE DEFENSE

43. To the degree, if any, that Plaintiffs claim any occupational exposure to asbestos, the
Complaint, and each purported cause of action therein, is barred, in whole or in part, by the
exclusivity of remedy under the California Workers Compensation Act, California Labor Code
section 3200 e7. seg.

FORTY-FOURTH AFFIRMATIVE DEFENSE

44. To the degree, if any, that Plaintiffs claim any occupational exposure to asbestos on
General Mills’s premises, General Mills was an innocent hirer of Plaintiffs as a contractor or
Plaintiffs’ employer as a contractor, who caused the risk, if any, to Plaintiffs, without independent
negligence or any improper act on the part of General Mills, and therefore, the Complaint, and each
purported cause of action therein, is barred, in whole or in part, as against General Mills by the
exclusivity of remedy under the California Workers Compensation Act, California Labor Code

section 3200 ez. seg.

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ANSWER OF DEFENDANT GENERAL MILLS, INC. TO FIRST AMENDED COMPLAINT
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FORTY-FIFTH AFFIRMATIVE DEFENSE

45, Plaintiffs’ claims are barred or preempted, in whole or in part, by federal law,
statutes, and regulations.

FORTY-SIXTH AFFIRMATIVE DEFENSE

46. General Mills is not liable for Plaintiffs’ injury, if any, because it did not exercise the
requisite degree of control over the details of Plaintiffs’ work.

General Mills reserves the right, upon completion of its investigation and discovery, to assert
such additional defenses as may be appropriate.

WHEREFORE, General Mills prays for judgment against Plaintiffs dismissing the
Complaint and each and every purported cause of action alleged against General Mills therein, and
awarding General Mills costs, interest, disbursements, and such other and/or further relief as the
Court may deem appropriate.

DATED: March 23, 2011 PERKINS COTE LLP
By:/S/ Richard §. Chon

Richard S. Chon
Attorneys for Defendant General Mills, Inc.

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ANSWER OF DEFENDANT GENERAL MILLS, INC. TO FIRST AMENDED COMPLAINT
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PROOF OF SERVICE
1, Susan E. Daniels, am employed in the County of San Francisco, State of California. am
over the age of 18 years and am not a party to the within action. My business address is Perkins
Coie LLP, Four Embarcadero Center, Suite 2400, San Francisco, California 94111. 1 am familiar
with the business practice of Perkins Coie LLP. On March 23, 2011, I caused to be served the
following document(s) on the interested parties in this action through the use of the website

maintained by Lexis Nexis.

ANSWER OF DEFENDANT GENERAL MILLS, INC. TO FIRST AMENDED
COMPLAINT

XX = BY ELECTRONIC MAIL: I provided the document(s) listed above to the Lexis Nexis
website pursuant to their instructions on that website. If the document(s) is/are provided te
Verilaw electronically by 5:00 p.m., then the document will be deemed served on the date
that it was provided to Lexis Nexis.

I declare under penalty of perjury under the laws of the State of California and the United
States of America that the foregoing is true and correct and was executed in San Francisco,
California.

DATED: March 23, 2011

ul

ANSWER OF DEFENDANT GENERAL MILLS, INC. TO FIRST AMENDED COMPLAINT
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