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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                L || Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
24) BRYDON HUGO & PARKER.
135 Main Street, 20° Floor ELECTRONICALLY
3 || San Francisco, CA 94105 FILED
Telephone: (415) 808-0300 suport mk
4|| Facsimile: (415) 808-0333 County of San Francisco
5 |) Attorneys for Defendant FEB 22 2011
6 SWINERTON BUILDERS BY JUDITH NUNEZ
Deputy Clerk
7
8
SUPERIOR COURT - STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
10
11 |] ROBERT ROSS and JEAN ROSS, (ASBESTOS)
Case No. CGC-10-275731
12 Plaintiffs,
v8.
13 ANSWER OF SWINERTON BULDERS TO
C.C. MOORE & CO, ENGINEERS, etal, | COMPLAINT FOR PERSONAL INJURY -
i4 ASBESTOS
Defendants.
18
16
, COMES NOW Defendant SWINERTON BUILDERS (“SWINERTON” or
17
“Defendant”) denying liability for itself and any alternate entities named in the
18
complaint, and answers Plaintiffs’ Complaint for Personal Injury — Asbestos (hereinafter
19
the “Complaint”) on file herein, admits, denies, and alleges as follows:
20
GENERAL DENIAL
ai
Under the provisions of Section 431.30(d), California Code of Civil Procedure,
22
this answering defendant denies each and every allegation of plaintiffs’ Complaint and
23
the whole thereof, and denies that plaintiffs have been damaged in any suum or amount
24
whatsoever, or at all, and denies that plaintiffs are entitled to recover damages of any
25
kind in any amount whatsoever from SWINERTON.
26
RESERVATION OF RIGHT TO TRIAL BY JURY
27
SWINERTON reserves the right to a trial by jury.
28
BRYDON
Hao & PARKER i
155 Main STRRET
Sen Francis, CAS 18S ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSi AFFIRMATIVE DEFENSES

2 FIRST AFFIRMATIVE DEFENSE
3 Failure fo State a Cause of Action
4 This answering defendant alleges that plaintiffs’ Complaint and each of the causes

5 |) of action for relief alleged therein, fails to state a cause of action against this answering

defendant.

7 SECOND AFFIRMATIVE DEFENSE

Contravention of Defendant's Constitutional Rights to Due Process of Law

The Complaint and each cause of action thereof, which is admittedly based upon a

a 0 «

lack of identification of the manufacturer of, and contractor using or distributing the

1 |, alleged injury-causing product, fails to state facts sufficient to constitute a cause of action
2 || in that plaintiffs have asserted a claim for relief which, if granted, would contravene

3 | defendant's constitutional rights to substantive and procedural due process of law as

14 || preserved for defendant by the Fourteenth Amendment of the United States Constitution

15 || and by Article |, Section 7, of the Constitution of the State of California.

6 THIRD AFFIRMATIVE DEFENSE
17 Denial of Defendant's Constitutional Rights to Equal Protection of the Laws
8 The Complaint, and each cause of action thereof, fails to state facts sufficient to

9 |) constitute a cause of action in that plaintifis have asserted claims for relief which, if

20 || granted, would constitute a denial by this Court of defendant's constitutional right to
21 || equal protection of the laws as preserved by the Fourteenth Amendment of the United
22 |} States Constitution and by Article I, Section 7, of the Constitution of the State of

23 || California.

24 FQURTH AFFIRMATIVE DEFENSE

25 Unconstitutional Taking of Private Property for Public Use Without Just Compensation

26 ‘The Complaint, and each cause of action thereof, which is admittedly based upon
97 || a lack of identification of the manufacturer, and contractor using or distributing the
2g || alleged injury-causing product, fails to state facts sufficient to constitute a cause of action
BRYDON
HuGo & PARKER 2

TE Mam seurt
25 BR

Sen Francisce, CASH ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 |) in that plaintiffs have asserted claims for relief which, if. granted, would constitute the

21] taking of private property for public use without just compensation in.contravention of
3 || the Fifth and Fourteenth Aniendments to the United States Constitution and by Article 1,
41) Section 7 and 19, of the Constitution of the State of California, and the applicable

5 || California statutes.

6 FIFTH AFFIRMATIVE DEFENSE

7 Comparative Fault

8 This answering defendant alleges that the damages, if any, complained of by

9 |) plaintiffs, were proximately caused by the negligence, fault, breach of contract and/or
10 |) strict Hiability.of plaintiff or other defendants, firrns, persons, corporations, unions,

i} employers and entities other than SWINERTON, and that said negligence, fault, breach
21) of contract and/or strict Liability comparatively reduces the percentage of any negligence,
3 || fault, breach of contract or strict liability for which SWINERTON is legally responsible, if
14 || any be found, which liability this defendant expressly denies. Further, this answering
15 || defendant alleges that plaintiff did not exercise ordinary care, caution or prudence to

6 |} avoid the incidents complained of herein, and said incidents and the injuries and

7 || damages, if any, sustained by plaintiff, were directly and proximately caused and

18 || contributed to by the carelessness and negligence of said plaintiff.

9 SIXTH AFFIRMATIVE DEFENSE
20 rib egligence
21 This answering defendant alleges that plaintiff did not exercise ordinary care,

22 |) caution or prudence to avoid the incidents complained of herein, and said incidents and
23 || the injuries and damages, if any, sustained by plaintiff, were directly and proximately

24 || caused and contributed to-by the carelessness and negligence of said plaintiff.

25 HL
26) IH
27 df
28
BRYDON
Huco & PARKER 3
FS MaaN StRERY
2A LR.

Sen Frise, CA 98108 ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBryon
Hugo & PARKER
IS Maine Semi
26" Puno
Ban France, CA 94998

|

SEVENTH AFFIRMATIVE DEFENSE

Uncertainty
This answering defendant alleges that plaintiffs’ Complaint and all purported

causes of action therein are vague, ambiguous and uncertain, and fail to state a cause of
action on any theory.
EIGHTH AFFIRMATIVE DEFENSE
Laches

This answering defendant alleges that plaintiffs unreasonably delayed in bringing

this action and that such delay substantially prejudiced defendant, and that this action is
therefore barred by the Doctrine of Laches.
NINTH AFFIRMATIVE DEFENSE
Statute of Limitations
This answering defendant alleges that plaintiffs’ Complaint and the purported
causes of action therein are barred by all statutes of limitation, including, but not limited
to, the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 240, 3403)
and 340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiffs’ claims
are further barred by the statute of limitations of states other than California pursuant to

California Code of Civil Procedure § 361.

TENTH AFFIRMATIVE DEFENSE

Failure to Mitigate
This answering defendant alleges that plaintiff failed to mitigate damages which

plaintiff contends he suffered, and plaintiffs are therefore barred from any recovery
whatsoever, or alternatively, any damages found must be reduced in proportion to such
failure to mitigate.

ELEVENTH AFFIRMATIVE DEFENSE

Estoppel
This answering defendant alleges that as a result of the acts, conduct and/or

omissions of plaintiff and his agents, or any of them, and each cause of action presented

4

ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 |} therein, is barred under the Doctrine of Estoppel.

2 WELFTH AFFIR E DEFENSE
3 Waiver
4 This answering defendant alleges that plaintiffs, by their acts, conduct and

5 || omissions, have waived the-claims alleged in their Complaint and in each purported

6 || cause of action alleged therein.

THIRTEENTH AFFIRMATIVE DEFENSE

7

8 Acguiescence

9 Plaintiffs acknowledged, ratified, consented to, and acquiesced in the alleged acts
10 || or omissions, if any, of this answering defendant, thus barring plaintiffs from any relief as

11 || prayed for herein.

12 FOURTEENTH AFFIRMATIVE DEFENSE

Notice of Dangers
14 Plaintiff was advised, informed, and warned of any potential hazards and/or

15 || dangers, if there:were any, associated with the normal or foreseeable use, handling,
16 || storage and in place asbestos of the products, substances, equipment and at premises in
17 || which exposure is claimed as is described in the Complaint and is therefore barred from

{8 || any relief prayed for.

19 FIFTEENTH AFFIRMATIVE DEFENSE
20 Compliance with Statutes
21 This answering defendant alleges that all of its. conduct and activities as alleged in

22 | the plaintiffs’ Complaint conformed to statutes, government regulations, and industry

23 || standards based upon the state of knowledge existing at all relevant times.

24 SIXTEENTH AFFIRMATIVE DEFENSE
25 Compliance with Specifications
26 This answering defendant alleges that the asbestos products or asbestos used or in

27 || place at any premises, if any, for which SWINERTON had any legal responsibility, were

28 || manufactured, packaged, distributed or sold in accordance with contract specifications

BRYDON
Huco & PARKER 5
13S Mane stent
2" BCR,

Son Pansico. 68 96105 ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOS1 |) imposed by its co-defendants, by the U.S. Government, by the State of California, by
2 || plaintiff's employers, or by third parties yet to be identified.

3 SEVENTEENTH APEIRMATIVE DEFENSE

o Conspiracy
5 This answering defendant alleges that SWINERTON has no liability for the acts,
6

omissions or otherwise of any other defendant or entity because SWINERTON did not
become legally responsible for the acts of any such defendant, nor entity, by any

communication, alleged, implied, or actual, nor act, action, or activity, and never was, nor

7
8
9 || is, a conspirator nor co-conspirator with any other defendant or entity.
0

EIGHTEENTH AFFIRMATIVE DEFENSE
1 State-of-the-Art

2 This answering defendant alleges that all of its activities, products, materials and
3 |) its premises at issue here at all times were conducted, used, produced, marketed, and
4 || operated in conformity with the existing scientific, medical industrial hygiene and

15 |) consumer knowledge, art and practice and state-of-the-art.

6 NINTEENTH AFFIRMATIVE DEFENSE
7 No Foreseeable Risk to Plaintiff
8 The state of the medical, scientific, and industrial knowledge and practice was at

9 |) all material times such that defendant neither breached any alleged duty owed plaintiff,
20 || nor knew, nor could have known, that its activities, materials, products, activities or
21 || premises presented a foreseeable risk of harm to plaintiff in the normal and expected

22 || course of such activities and use of such materials and products.

23 TWENTIETH AFFIRMATIVE DEFENSE
24 No Right to Control
25 ‘This answering defendant alleges that any loss, injury, or damage incurred by

26 || Plaintiffs was proximately and legally caused by the negligent or willful acts or omissions
27 || of parties which SWINERTON neither controlled, nor had the right to control, and was

28 |) not proximately caused by any acts, omissions, or other conduct of SWINERTON.

BRYDON

HuGo & PARKER 6
325 MARK SREY
20° FLOOR,

Ser Proeizn, GA asios ANSWHR OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS:i TWENTY-FIRST AFFIRMATIVE DEFENSE,

Action for Relief

2

3 This answering defendant alleges the causes of action, if any, attempted to be

4 || stated and set forth in the Complaint, are barred by the provisions of the Code of Civil
5 || Procedure of the State of California and/or other statutes of the State of California,

6 || including without limitation CCP. § 338(d).

7 TWENTY-SECOND AFFIRMATIVE DEFENSE

8g Misuse and Improper Use of Products
9

0

This answering defendant alleges that if the plaintiff allegedly suffered injuries
attributable to the disturbance or use of any product for which SWINERTON had any
1 || legal responsibility, which allegations are expressly herein denied, the injuries were
solely caused by, and attributable to the unreasonable, unforeseeable, and inappropriate

2
3 || purpose and improper use and abuse which was made of said product by persons or
4

entities other than SWINERTON.
15 TWENTY-THIRD AFFIRMATIVE DEFENSE
6 Due Care and Diligence
17 This answering defendant alleges that SWINERTON exercised due care and

g | diligence in all of the matters alleged in the Complaint, and no act or omission by

9 || SWINERTON was the proximate cause of any damage, injury or loss to plaintiff.

20 TWENTY-FOURTH AFFIRMATIVE DEFENSE
214 Jterati isuse of Product
22 This answering defendant alleges that an insubstantial amount, if any at all, of the

23 || products containing asbestos distributed, used, supplied by defendant or used or in place

24 {| at any premises owned or controlled by defendant, were not disturbed or used in the
25 || presence of plaintiff and not supplied to the plaintiff, and if so, were substantially altered

26 || by others and/or used in a manner inconsistent with the labeled directions.

BRYDON
Hugo & PARKER 7

138 Many Sraeer
woo EP

Sanranete,cassios |) SWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSTWENTY-FIFTH AFFIATIVE DEFENSE

2 Equal or Greater Knowledge of Hazards
3 This answering defendant alleges that any and all products containing asbestos

4 || used, distributed or supplied by defendant were distributed or supplied to, or for,

5 || persons or entities who had knowledge with respect to the hazards, ifany, resulting from
exposure to products containing asbestos, which knowledge is equal to or greater than
the knowledge of SWINERTON.

TWENTY-SIXTH AFFIRMATIVE DEFENSE,
Other Parties’ Liability and Negligence

So we oe 4D

‘This answering defendant alleges that. if there was any negligence or any other
1 || form of liability ‘on the part of any of the parties named herein, it was the sole and

2 || exclusive negligence and liability of the other persons or entities and not of

3 || SWINERTON.

4 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
5 Apportionment and Offset
6 This answering defendant is informed and believes and thereon alleges that

17 || plaintiff's acts and. omissions, including plaintiff's. agents, servants, and employees acting

18 || within the course and scope of their employment, and others, contributed fo the alleged

19 || damages, injury; or loss, if any, sustained by plaintiff. Defendant requests that the Court
20-1) apply the principles of apportionment and offset so as to permit the Court or jury to
21 || apportion liability according to fault and to grant defendant a corresponding offset

27.1) against any damages awarded to plaintiffs.

23 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
24 Contribution/Equitable Indemnity
25 This answering defendant alleges, in the event itis held liable to Plaintiffs, any

26 || such liability is expressly herein denied, and any other co-defendants are likewise held
27 || liable, SWINERTON is entitled to a percentage contribution of the.total liability from said
ag || co-defendants in accordance with the principles of equitable indemnity and comparative

BRyYDON

Hugo & Parker 8
TS Mam Smacet
26" Foon.

Sen Faceca, CA 908 ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS11) contribution.
WENTY-NINTH AFFIRMATIVE DEFENSE

2
3 Assumption of Risk by Plaintiffs Employer(s)
4 This answering defendant alleges that the Complaint and each cause of action

3 |) alleged therein are barred_on the grounds that plaintiff's employer or employers
6 |) knowingly entered into and engaged in the operations, acts and conduct alleged in the
7

Complaint, and voluntarily and knowingly assumed all of the risks incident to said

8 || operations, acts and conduct at the time and place mentioned in the Complaint.

9 THIRTIETH AEPIRMATIVE DEFENSE

9 Assuniption of Risk

1 This answering defendant alleges plaintiff assumed the risk of the matters referred

12 |) to in his Complaint and that plaintiff knew and appreciated the nature.of the risk and

3 |, that the plaintiff voluntarily accepted this risk.

14 THIRTY-FIRST AFFIRMATIVE DEFENSE

No Market Share
‘This answering defendant alleges.that SWINERTON did not have an appreciable

plaintiff's injuries, which occurrence SWINERTON expressly denies. Accordingly,

3
6
7 || share of the market for the asbestos-containing products which allegedly. caused
8
9

SWINERTON may not be held liable to plaintiffs based on its alleged share of the
20 || applicable product market.

21 THIRTY-SECOND AFFIRMATIVE DEFENSE
22, Plaintiff Fails to Join. a Substantial Market Share
23 The Complaint, and each cause.of action thereof, fails to state facts sufficient to

24 || constitute a cause of action against this answering defendant,.in that defendant has failed
24 |) to join a substantial market share of the producers or products to which plaintiff was

26 |) allegedly exposed.

Brypow

Hugo & PaRKer 9
ss Mancsmaer

LO sent intneetinnan nt somasennntonrannrnnaneurntonimnenmoesmoanmpussarunaensennnnininenaarnnnnnnaanmsnirannnt

Sax Franciien, CA DSS ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOS1 THIRTY: A Tr ENSE
Insufficient Facts to Show Substantial Market Share of this Defendant

2
3 To the extent the Complaint asserts defendant's alleged “alternative,” “market
4 || share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a

5 || cause of action against this defendant.

THIRTY-FOURTH AFEIRMATIVE DEFENSE

Independent, Intervening or Superseding Cause

6
4
8 This answering defendant alleges that if plaintiff suffered any injuries attributable
9 || to the use of any product containing asbestos which was used, distributed or sold by

0

defendant, which allegations are expressly denied herein, the injuries were solely caused
11 || by an unforeseeable, independent intervening and/or superseding event beyond the
2 || control and unrelated to any conduct of defendant. Defendant's actions, if any, were

3], superseded by the negligence and wrongful conduct of others.

14 THIRTY-FIFTH AFFIRMATIVE DEFENSE
15 Nota Substantial Factor
6 This answering defendant alleges that the Complaint and each cause of action

7 || therein presented are barred on the grounds that the products, conduct, materials or

8 || premises of defendant as referred to in plaintiffs’ Complaint, if any, were not a

9 || substantial factor in bringing about the injuries and damages complained of by plaintiff
29 || and did not increase the risk that plaintiff would suffer the injuries.and damages

24 |, complained of.

22 THIRTY-SIXTH AFFIRMATIVE DEFENSE
23 Insufficient Exposure
24 Any exposure of plaintiff to defendant's activities, products or exposure to

25.|| asbestos or asbestos-containing products at SWINERTON’s premises was so minimal as
26 || to-be insufficient to establish by a reasonable degree of probability that any such product

a7 || caused any alleged injury, damage, or loss to plaintiff.

Beypon

Hoo & PARKER 10
1S gan SED
2a" Tux seinen erence

San Famescn, CANIS ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 THIRTY-SEVENTH AFFIRMATIVE DEFENSE

2 No Successor Liability
3 This answering defendant alleges that SWINERTON has no liability for the acts,
4

omissions or otherwise of any other defendant or any other entity because SWINERTON
5 || did not become legally responsible for the acts of any such defendant or entity given the
facts and circumstances of the pertinent transactions and never was, nor is, a successor-
in-interest, a successor-in-liability or an alternate entity for any other user, manufacturer,

6
7
8 || supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing
9 |) products.

9

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

1 Lack of Privity
2 This answering defendant alleges that plaintiffs have failed to state a cause of

3 || action in that the Complaint fails to allege that there was privity between defendant on
4 || the one hand, and plaintiffs on the other, and furthermore, such privity did not exist

5 || between defendant on the one hand, and plaintiffs on the other.

16 THRITY-NINTH AFFIRMATIVE DEFENSE
17 Secondary Assumption of Risk
8 This answering defendant alleges that any and all products containing asbestos

19 || used, distributed or supplied by defendant were used, distributed or supplied to, or for,
20 || persons or entities who had knowledge with respect to the hazards, if any, resulting from
21 || exposure to products containing asbestos, which is equal to or greater than, the

22 || knowledge of SWINERTON, i.e. SWINERTON’s liability should be reduced in

23 || proportion to the knowledge of plaintiff.

24 FORTIETH AFFIRMATIVE DEFENSE
25 Civil Code Section 1431.2
26 This answering defendant alleges that the provisions of California Civil Code §

27 || 1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiffs Complaint
28 |} and to each cause of action therein.

BRYDON
Huco & PARKER it
13S Maan STAEET
2"
San Praoigcn, CA 84108

ANSWER OF SWINERTON BUILDERS TO COMPLAINT POR PERSONAL INJURY - ASBESTOSBrynok
Hyco & PARKER
eS aaa Steer
20" Pow

PORTY-PIRST APFIRMATIVE DEPENSE
Workers’ Compensation Exclusive Remedy

This answering defendant alleges that the Complaint is barred by the exclusivity

provisions of the California Workers’ Compensation laws, including, but not limited.to,
California Labor Code §§ 3600, et. seq.
FORTH-SECOND AFFIRMATIVE DEFENSE
Offset for Workers’ Compensation Benefits

‘This answering defendant alleges that to the extent plaintiff herein recovered, or in

the future may recover, any monies in connection with any claim for workers’
compensation benefits, any amounts recovered in this action are subject to a claim by

defendant for a credit or offset.

FORTY-THIRD AFFIRMATIVE DEFENSE

Expr nt J Indemmil

This answering defendant alleges that if plaintiff claims exposure to asbestos or
asbestos-containing products.at a SWINERTON premises, SWINERTON contracted with
plaintiff and/or plaintiff's employer(s) for them to fully assume all responsibility for
insuring plaintiff's safety, to guarantee that no hazardous condition existed, and/or to
warn and protect against any such conditions, during the performance of plaintiff's work,
and, further, to fully indemnify SWINERTON, and to: hold SWINERTON harmiess, for
all responsibility and liability arising out of said work, and/or any injuries allegedly
incurred by plaintiff as a result of any of said work. SWINERTON reserves all rights to
assert these provisions of contractual indemnity.

FORTY-FOURTH AFEIRMATIVE DEFENSE
Consent
This answering defendant alleges that at all times mentioned, plaintiff consented

to the alleged acts or omissions of SWINERTON.

ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 FORTY-FIFTH AFFIMATIVE DEFENSE
2 Unusual Susceptibility

3 This answering defendant alleges that each of plaintiff's injuries and damages, if

any, were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic
condition, unusual susceptibility, or hypersensitivity reactions for which SWINERTON is

not liable.

4

5

6

7 FORTY-SIXTH AFPIRMATIVE DEFENSE

8 Good Faith

9 This answering defendant alleges that plaintiff's claim for punitive damages is
10 || barred because SWINERTON at all times.and places mentioned in the Complaint acted

If |) reasonably and in good faith, and without malice or oppression towards the plaintiff.

122 FORTY-SEVENTH AFFIRMATIVE DEFENSE
13 Sophisticated User
14 This answering defendant alleges that SWINERTON was under no legal duty to

15. || warn plaintiff. of the hazard associated with the use of products containing asbestos or

16 || their existence at any premises owned, operated, controlled or otherwise by

17 |) SWENERTON. The purchasers of said products, the plaintiff, plaintiffs employers, his

18 || unions or certain third parties yet to be identified, were knowledgeable and sophisticated
19 || users and were in.a better position to warn, plaintiff of the risk associated with using

20 || products containing asbestos and, assuming a warning. was required, it was the failure of '
21 || such persons or entities to give such a warning that was the proximate and superseding

22 || cause of plaintiff's damages, if any.

23 ORTY-EIGHT. IRM. E DEFE.
24 Work Hazard Precautions
25 This answering defendant alleges that plaintiff's employer(s) was/were advised

26 || and warned of any potential hazards and/or dangers associated with the normal and
27 || foreseeable conduct with, or storage and disposal of the products referred to in the
2g || Complaint, ina manner which was adequate notice to an industrial user of such product

Brypoy

Hyco & PARKER 13

JAP MARY STREET
28 oor

Saw Frnaee, CA HOS ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBRYDON
Huco & PARKER,
HE Man Sraerr
20 Pa
San Fronciaen, CASHIOS

to enable it to. inform its employees.to take appropriate work precautions to prevent
injurious exposure.
FORTY-NINTH AFFIRMATIVE DEFENSE

Failure to loin Indispensable Parties

Plaintiff herein has failed to join indispensable parties (California Code of Civil
Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby
precluded from any recovery whatsoever as prayed for herein.

PIRTIETEL AFFIRMATIVE DEFENSE
No Standing Under California Civil Code 8§ 1708-1710

Plaintiff has no standing nor right to sue for fraud.and conspiracy, breach of

warranty, deceit, or any cause-of action under California Civil Code, §§ 1708-1710, and
therefore the Complaint and each cause of action thereof fails to state facts sufficient to

constitute a cause of action against this answering defendant.

FIFTY-FIRST APFIRMATIVE DEFENSE

laintiff is nota Real Party in.
Plaintiff, and each of them, herein lacks legal capacity to sue and is not a real party

in interest and.is thereby precluded from any recovery whatsoever as prayed for herein.

FIETY-SECOND AFFIRMATIVE DEFENSE

Fraud and Conspiracy are Not Separate Forms of Damages
Fraud and conspiracy do not constitute a separate ‘and distinct form of damages

from general damages, and, therefore, the prayer for fraud. and conspiracy in addition to
general damages does not sufficiently support or constitute a separate claim for damages
against this answering defendant, butis simply cumulative and included in general
damages.

FIFTY-THIRD AFFIRMATIVE DEFENSE

Failure to Alege with Particularity
‘This answering defendant alleges that plaintiff's Complaint fails to set out its

claims with sufficient particularity to permit defendant to raise all appropriate defenses

14

ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY ASBESTOSBRYDON
Huco & Parker
ABS Maite SeREeE
BP FLOOR.

San Femncisco, CA P4108

and, thus, defendant reserves the right to add additional defenses as the factual basis for

these claims becomes known.

FIFTY-POURTH APFIRMA TIVE DEFENSE

Punitive Damage Prohibited

This answering defendant alleges that plaintiff's Complaint fails to state facts

sufficient to.support an award of punitive or exemplary damages against SWINERTON.

The Complaint, to the extent that it seeks exemplary or punitive damages, violates
SWINERTON’s right to procedural due process under the Fourteenth Amendment of the
United States Constitution, and the Constitution of the State of California, and fails to
state a cause of action upon which either punitive or exemplary damages can be

awarded.

PLETY-PIFTH AFFIRMATIVE DEFENSE

This answering defendant alleges that the Complaint, to the extent that it seeks
punitive or exemplary damages, violates SWINERTON’s right to protection from
excessive fines as provided in the Eighth Amendment of the United States Constitution
and Article [, Section 17 of the Constitution of the State of California, and violates
SWINERTON’s right to substantive due process as provided in the Fifth and Fourteenth
Amendments of the United States and California Constitutions, and thus fails to state a
cause of action supporting an award of punitive or exemplary damages.

FIPTY-SIXTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

The causes of action asserted herein by plaintiff fail to state facts sufficient to
constitute.a cause of action in that plaintiff has asserted claims for punitive damages
which, if granted, would violate the prohibition against laws impairing the obligation of

contracts set forth in Article I, Section 10, of the United States Constitution.

18} FIFTY-SEVENTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibi

Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plaintiff is

2
3
4|| barred by the “double jeopardy” clause of the Fifth Amendment to the United States
5 || Constitution, as applied to the States through the Fourteenth Amendment.

6

FIFTY-EIGHTH AFFIRMATIVE DEFENSE

Negligent Hising Claim Invalid
Anemployee of an independent contractor may not pursue.a claim fornegligent

7
8
9 || hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal.
© |} 4th 1235 (2001).

i _ FIETY- NINTH AFFIRMATIVE DERENSE

Right to Amend

This defendant will assert ary and all additional defenses that arise during the

2
3
4 || course of this litigation and reserves the right to amend its answer to assert such
5

defenses.
16 SIXTIETH AFFIRMATIVE DEFENSE
lternate Us a
8 The alleged injuries and damages, if any, may be in whole or in part due to injury,

9 || disease or cause other than as alleged,

20 -FIRST AFFL E DEFENSE
24 No Concert of Action
22 There is-no concert of action between defendant and any of the other named

23 || defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be

24 || held jointly and severally liable with the other named defendants.

25 PRAYER
26 WHEREFORE, this answering defendant prays for judgment as follows:
27 1. That Plaintiffs take nothing by reason of their Complaint or any claims

28 || stated therein;

Brypon

Huo & Parker 16
135 Maw SraeeT
20" FoR

Si Reece CA HHH ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 2. That Plaintiffs’ Complaint and each cause of action contained therein be
2 || dismissed with prejudice against SWINERTON;
3 3. For costs of suit; and
4 4. For such other and further relief as the Court deems just and appropriate in
5 || the circumstances.
6
71) DATED: February 22, 2011 BRYDON HUGO & PARKER
8 .
9 By: /s/ Edward R. Hugo
Attorneys for Defendant

u SWINERTON BUILDERS

12
3

14
3
6

i?

18
9

20

21

22

23

24

25

26

27

28

BRYboN
Shana 7
swrciceichous || —~ ANSWER GF GWINERTON BUILDERS TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS— SC Ce QDR A BR BN om

Oo MD A BR YB HR

Robert & Jean Ross vs. C.C. Moore & Co. Engineers, et al.
San Francisco County Superior Court Case No. CGC-10-275731
LexisNexis Transaction No. 36083146

PROOF OF SERVICE

Lam a resident of the State of California, over the age of 18 years, and nota
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20% Floor, San
Francisco, California 94105. On the date below, I served the following:

ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

on the following:

BRAYTON PURCELL LLP Lexis Nexis Service List
222 Rush Landing Road

Novato, CA 94945

Fax: (415) 898-1247

X By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

o By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

°o By placing the document(s) listed above in a sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm's ordinary business practices. ] am readily familiar with the firm's
practice of collection and processing correspondence for mailing. Under
that practice it would be deposited with U.S. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. [am aware that on motion of party
served, service is presumed invalid if postal cancellation date or postage
mee date is more than one day after date of deposit for mailing in

idavit.

o By placing the document(s) listed above in a sealed envelope designated
for Federal Express overnight delivery and depositing same with fees
thereupon prepaid, in a facility regularly mairitained by Federal Express,
addressed ag set forth above,

I declare under penalty of perjury that the above is true and correct.
Executed on Pebruary 22, 2011, at San Francisco, California.

Josh Tabisaura

PROOF OF SERVICE