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

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                                LEWIS
BRISBOIS
BISGAARD
&SMIHUP

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LEWIS BRISBOIS BISGAARD & SMITH LLP
JUDD A. GILEFSKY, SBi# 198694
E-Mail: gilefsky@ibbsiaw.com
BRETTON MORRIS, SB# 245702
E-Mail: morrisb@ibbslaw.com
221 North Figueroa Street, Suite 1200
Los Angeles, California 90012
Telephone: 213.250.1800
Facsimile: 213.250.7900

Attorneys for Defendant
BRAGG INVESTMENT COMPANY, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 21 2011

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
v.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit 1 attached
to the Summary Complaint herein; and DOES
1-8500.

Defendants.

CASE NO. CGC-10-275731

DEFENDANT BRAGG INVESTMENT
COMPANY, INC’S ANSWER TO
PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM -
ASBESTOS

ACTION FILED:
TRIAL DATE:

12/17/2010
None Set

Defendant BRAGG INVESTMENT COMPANY, INC. (hereinafter “Defendant”), for itself

and itself alone, hereby answers Plaintiffs’ First Amended Complaint (“FAC”) and each and every

cause of action set forth therein as follows:

1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies

generally the allegations of the FAC and the whole

thereof, and denies that Plaintiffs have sustained

damages in any sum or sums alleged or any sum at all.

2. Further answering Plaintiffs’ FAC,

this answering Defendant denies that Plaintiffs

sustained any injury, damage or loss, if any, by reason of any act, omission or negligence on the part

of this answering Defendant, or any agent, servant

4832-2255-6425.1

or employee of this answering Defendant.

DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSCc ON DH BR HY NY

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FIRST AEFIRMATIVE DEFENSE

(ailure to State a Cause of Action)
3. The FAC fails to state facts sufficient to constitute a cause of action against this
answering Defendant.

SECOND AFFIRMATIVE DEFENSE

(Statute of Limitations)

4. The FAC, and every claim and cause of action alleged therein, is barred by each
applicable statute of limitations, including, but not limited to, California Code of Civil Procedure
sections 340.2 and 361.

THIRD AFFIRMATIVE DEFENSE

(Fault of Third Parties)

5. This answering Defendant is informed and believes and thereon alleges that the injuries
and damages of which Plaintiffs complain were proximately caused by or contributed to by the acts of
other persons, and/or other entities, over whom this answering Defendant had neither control nor right
of control, and said acts were an intervening and superseding cause of the injuries and damages, if
any, of which Plaintiffs complain, thus barring Plaintiffs from any recovery against this answering
Defendant.

FOURTH AFFIRMATIVE DEFENSE

(Comparative Negligence)

6. This answering Defendant alleges that if this Defendant is held to be negligent, which
negligence contributed as a proximate cause to Plaintifis’ injuries or damages, if any, that Plaintiffs
were also negligent, which negligence also contributed to Plaintiffs’ damages such that any damages
otherwise awarded to the Plaintiffs must be diminished in proportion to the degree of fault attributable
to Plaintiffs.

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4832-2255-6425.1 2

DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSLEWIS
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FIFTH AFFIRMATIVE DEFENSE

(Contribution and Indemnification)

7. This answering Defendant is informed and believes and therefore alleges that it is
entitled to a right of indemnification by apportionment and to a right of contribution from any person
or entity whose negligence proximately contributed to the happening of the alleged injuries of
Plaintiffs if Plaintiffs should receive a verdict against this answering Defendant.

SIXTH AFFIRMATIVE DEFENSE

(Intervening Cause)

8. This answering Defendant is informed and believes and thereon alleges that if, in fact,
Plaintiffs were damaged in any manner whatsoever, that said damage was a direct and proximate
result of intervening and superseding actions and causes on the part of other persons or entities, or acts
of God, and not of this answering Defendant, and that such intervening and superseding actions and
causes. bar recovery herein by Plaintiffs.

SEVENTH AFFIRMATIVE DEFENSE

(Failure to Mitigate Damages)
9. This answering Defendant alleges that Plaintiffs’ damages, if any, should be reduced or
eliminated as a result of Plaintiffs’ failure to properly mitigate their damages.
EIGHTH AFFIRMATIVE DEFENSE

(Failure to Join Proper Parties)
10. Plaintiffs have failed to join a party or parties necessary for a just adjudication of this
matter and have further omitted to state any reasons for such failure.

NINTH AFFIRMATIVE DEFENSE

(Laches)
11. The delay of Plaintiffs in commencing suit is inexcusable and has resulted in prejudice
to this answering Defendant so substantial that the defense of laches bars Plaintiffs’ claims.
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4832-2255-6425.1

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DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS=

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TENTH AFFIRMATIVE DEFENSE

(Assumption of the Risk)
12. Plaintiffs willingly, knowingly and voluntarily assumed the risk of the alleged illnesses
and injuries for which relief is sought in this matter.

ELEVENTH AFFIRMATIVE DEFENSE

(Release of Claims/Set-Off)

13. Plaintiffs have released, settled, entered into an accord and satisfaction or otherwise
compromised their claims herein, and accordingly, said claims are barred by operation of law;
alternatively, Plaintiffs have accepted compensation as partial settlement of those claims for which
this answering Defendant is entitled to a set-off.

TWELFTH AFFIRMATIVE DEFENSE

(Waiver)
14. Plaintiffs have waived any and all claims which they seek to assert in this action.
THIRTEENTH AFFIRMATIVE DEFENSE

(Estoppel)
15. Plaintiffs are estopped from asserting the claims for which relief is sought by way of

Plaintiffs’ FAC.
FOURTEENTH AFFIRMATIVE DEFENSE

(Violation of Due Process)

16. — The causes of action asserted by Plaintiffs, who admit their inability to identify the
manufacturer or manufacturers of the products which allegedly caused injury, fail to state a claim
upon which relief can be granted, or, if relief is granted, this answering Defendant's Constitutional
tight to substantive and procedural due process of law would be contravened.

FIFTEENTH AFFIRMATIVE DEFENSE

(Unjust Taking)

17. The causes of action asserted by Plaintiffs, who admit their inability to identify the
manufacturer or manufacturers of the products which allegedly caused injury, fail to state a claim

upon which relief can be granted, or, if relief is granted, such relief’ would constitute a taking of this

A832-2255-6425.1 4

DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSCc Se DT DR HH we WwW NH

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answering Defendant's property for public use without just compensation, and would constitute a
violation of this Defendant's Constitutional rights.
SIXTEENTH AFFIRMATIVE DEFENSE

(Breach of Warranty)

18. Plaintiffs, who admit their inability to identify the manufacturer or manufacturers of the
products which allegedly caused injury, never informed this answering Defendant, by notification or
otherwise, of any breach of express and/or implied warranties; consequently, their claims of breach of
express/or implied warranties against this Defendant are barred.

SEVENTEENTH AFFIRMATIVE DEFENSE

(Misuse of Product)

19. Atall times and places mentioned in Plaintiffs’ FAC, Plaintiffs and/or other persons
used this answering Defendant's products, if indeed any were used, in an unreasonable manner, not
reasonably foreseeable to this Defendant, and for a purpose for which the products were not intended,
manufactured or designed.

EIGHTEENTH AFFIRMATIVE DEFENSE

(Modification of Product)

20.  Atall times and places mentioned in Plaintiffs’ FAC, Plaintiffs and/or other persons,
without this answering Defendant's knowledge and approval, re-designed, modified, altered and used
this Defendant's products, indeed if any were used, contrary to instructions and contrary to the custom
and practice of the industry. This re-design, modification, alteration and use so substantially changed
the product's character that if there was a defect in the product -- which is specifically denied -- such
defect resulted solely from the re-design, modification, alteration, or other such treatment or change
and not from any act or omission by this Defendant. Therefore, said defect, if any, was the direct and
proximate cause of the injuries and damages, if any, that Plaintiffs allegedly suffered.

NINETEENTH AFFIRMATIVE DEFENSE

(Adequate Warnings)
21. This answering Defendant alleges that the product was not defective in that the product
was supplied with adequate warnings pertaining to dangerous propensities, if any, of the product.
4832-2255-6425.1 5

DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSLEWIS
BRISBOIS
BISGAARD
& SMITH LLP

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TWENTIETH AFFIRMATIVE DEFENSE

(No Breach of Duty)

22. This answering Defendant alleges that it did not breach any duty owed to Plaintiffs
because the product, when manufactured, distributed, and/or supplied, conformed to the state of art,
and because the then-current medical, scientific, and industrial knowledge, art, and practice was such
that this Defendant did not know and could not have known that the product might pose a risk of
harm, if any, in normal and foreseeable use.

TWENTY-FIRST AFFIRMATIVE DEFENSE

(No Causation)
23. This answering Defendant alleges that there is no causal relationship between any
injuries or damages allegedly sustained by Plaintiffs, and any alleged wrongful act by this Defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE

(No Express/Implied Warranty)

24. This answering Defendant alleges that it made no warranties of any kind, express or
implied, to Plaintiffs and that there is no relationship upon which a claim of implied warranty may be
based.

TWENTY-THIRD AFFIRMATIVE DEFENSE
(No Privity)

25. This answering Defendant alleges that the cause of action for breach of warranty, if

any, against this Defendant is barred because (a) there is no privity of contract between Plaintiffs and
this Defendant, (b) Plaintiffs did not reasonably rely on the claimed warranty, if any, (c) the claims are
based on an alleged warranty not expressed on the labeling or other material accompanied by the
product, (d) Plaintiffs failed to give the requisite timely notice to this Defendant as to any purported
breach of warranty, and (e) any warranty, if any, to Plaintiffs was expressly disclaimed by this
Defendant.

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DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS_

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TTWENTY-FOURTH AFFIRMATIVE DEFENSE

(Worker’s Compensation)

26. This answering Defendant alleges that at all times material herein, Plaintiffs were in the
course and scope of their employment and Plaintiffs and their employer were subject to the provisions
of the Worker’s Compensation Act of the State of California; that certain sums have been paid to, or
on behalf of, Plaintiffs herein under the applicable provisions of the Labor Code; that Plaintiffs’
employer and Plaintiffs’ co-employees were negligent and careless and that such negligence and
carelessness proximately contributed to and caused the alleged injuries to Plaintiffs, if any; and that
under the doctrine of Witt v. Jackson such negligence and carelessness should reduce or eliminate any
lien claim or complaint-intervention which may be made for reimbursement of Worker’s
Compensation benefits paid to or on behalf of Plaintiffs; and that the full, or at least a proportionate,
amount of Worker’s Compensation benefits paid to, or on behalf of, Plaintiffs should be deducted
from any special damages award against this answering Defendant.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Labor Code § 3600 et seq.)
27. — The court lacks subject matter jurisdiction over the matters alleged in the FAC because the
FAC and each alleged cause of action against this answering Defendant are barred by the provisions
of California Labor Code, Sections 3600, etseq.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

(49 U.S.C.A. § 2071 et seq.)
28. Plaintiffs” claims are preempted by the Federal Boiler Inspection Act, 49 U.S.C.A.
Sections 20701, et seq.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

(Federal Preemption)
29. This answering Defendant asserts that all causes of action’ alleged against this
Defendant in the FAC are preempted by and under federal law.
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DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSLEWIS
BRISBOIS
BISGAARD
&SMIH LLP

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TWENTY-EIGHTH AFFIRMATIVE DEFENSE

(Government Specifications)

30. This answering Defendant alleges that any and all products allegedly manufactured or
distributed by this Defendant were designed, manufactured, distributed and formulated in accordance
with United States Government specification, guidelines, and directives, and that all causes of action
in Plaintiffs’ FAC are therefore barred by the federal government contractor defense and the law of
sovereign immunity.

TWENTY-NINTH AFFIRMATIVE DEFENSE

(Sophisticated User)
31. If Plaintiffs were injured by any product manufactured or distributed by this Defendant,
which is denied, such product was intended for, and sold to, a knowledgeable and sophisticated user

over whom this Defendant had no control and who was fully informed or should have been fully

informed as to the risks and dangers pursuant to Johnson v. American Standard, Inc. (2008) 43 Cal.4th
56. By reason thereof, this Defendant had no duty to warn Plaintiff or to further warn the
knowledgeable user of the risks and dangers, if any, associated with the product; and whatever injury,
if any, Plaintiffs sustained were proximately caused by the failure of the knowledgeable user of the
product to use it for the purpose for which, and in the manner in which, it was intended to be used, and
to adequately warn and instruct Plaintiffs concerning the product and the dangers and risks, if any,
associated with it.

THIRTIETH AFFIRMATIVE DEFENSE

(Reservation of Additional Affirmative Defenses)

32. This answering Defendant presently has insufficient knowledge or information upon
which to form a belief as to whether it may have additional, as yet unknown, affirmative defenses.
This answering Defendant reserves the right to assert additional affirmative defenses in the event
discovery indicates it would be appropriate.

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4832-2255-6425.1

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DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS1 WHEREFORE, having fully answered Plaintiffs’ FAC herein, this answering Defendant prays
2 || for judgment as follows:
3 1, That Plaintiffs take nothing by said FAC;
4 2. That this answering Defendant recover its costs of suit herein; and
5 3. For such other and further relief as this Court may deem just and proper.
6
7|| DATED: March 2 , 2011 Respectfully submitted,
8 JUDD A. GILEFSKY
BRETTON MORRIS
9 LEWIS BRISBOIS BISGAARD & SMITH LLP
10
W By:
JuddA. Gilefsky
12 Brgtton Morris
Attorneys for Bragg Investment Company, Inc.
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BRISBOIS 4832-2255-6425.1 9

&SMIHUP. DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
ATTORNENS AAW COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSer em NY DAH BF WH Nm

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CALIFORNIA STATE COURT PROOF OF SERVICE
Ross v. Asbestos - File No. 50013-1143

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

At the time of service, I was over 18 years of age and not a party to the action. My
business address is 221 North Figueroa Street, Suite 1200, Los Angeles, California 90012.

On March? /, 2011, I served the following document(s): DEFENDANT BRAGG
INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS

I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):

The documents were served by the following means:

(BY ELECTRONIC SERVICE VIA LEXISNEXIS FILE & SERVE) Based on a court
order I caused the above-entitled document(s) to be served through LexisNexis File &
Serve at www.fileandserve.lexisnexis.com addressed to all parties appearing on the
electronic service list for the above-entitled case. The service transmission was reported as
complete and a copy of the LexisNexis file & Serve Filing Receipt Page/Confirmation will
be filed, deposited, or maintained with the original document(s) in this office.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on March 2011, at Los Angeles,

4832-2255-6425.1 10.

DEFENDANT BRAGG INVESTMENT COMPANY, INC’S ANSWER TO PLAINTIFFS’ FIRST AMENDED.
OMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS