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

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PARKWAY, SUITE 300
ALAMEDA, CA 94501-1084
(510) 444-7688

RICHARD L. REYNOLDS, CSB# 77881

JOHN G. COWPERTHWAITE, CSB# 96375

BENNETT, SAMUELSEN, REYNOLDS & ALLARD ELECTRONICALLY

A Professional Corporation FILED

Attorneys at Law Superior Court of California,

or Marina Milage Pariwa : Sulte 300 County of San Francisco
ameda, California ~108:

Tel: (510) 444-7688 / Fax: (510) 444-5849 JAN 05 2011

Attorneys for Defendant BY: RAYMOND bapuly Clerk

SLAKEY BROTHERS, INC.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, NO. CGC-10-275731
Plaintiffs,

vs.
ANSWER TO COMPLAINT FOR
C.C, MOORE & CO. ENGINEERS; et al., PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS
Defendants.

COMES NOW defendant SLAKEY BROTHERS, INC., and answers plaintiffs’
unverified complaint herein as follows:

I.

This defendant denies each and every, all and singular, generally and specifically,
the allegations contained in the complaint, and in this connection, this defendant denies
that plaintiffs have been or were injured or damaged in the unspecified sum or sums
alleged in the complaint, or in any other sum or sums, or otherwise, or at all.

AFFIRMATIVE DEFENSES

AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES TO EACH
AND EVERY CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT, AS THOUGH PLEAD
SEPARATELY TO EACH AND EVERY OF SAID CAUSES OF ACTION, THIS

1.

ANSWER TO COMPLAINT0

27

‘AV, SUITE 300
ALAMEDA, ‘CA 94501-1084
(510) 44-7888

ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
FIRST AFFIRMATIVE DEFENSE

Each and every of said causes of action fails to state a cause of action against this
answering defendant.

SECOND AFFIRMATIVE DEFENSE

Each and every cause of action of plaintiffs’ complaint seeks recovery for damages,
which is barred by the statute of limitations, including but not limited to, California Code of
Civil Procedure, Sections 340(3), 340.2, 338(1), 338(4), 343, 337.1 and 337.15.

THIRD AFFIRMATIVE DEFENSE
IL

This answering defendant is informed and believes, and based upon said
information and belief alleges, that at the times and places mentioned in plaintiffs’
complaint, the plaintiffs were careless and negligent in and about the matters alleged in
the complaint, and that said carelessness and negligence caused and contributed, to the
extent of one hundred percent, to any injuries and damages allegedly sustained by
plaintiffs if any such injuries or damages there were, or are.

I.

At all times denying any liability whatsoever to plaintiffs herein and at all times
denying that plaintiffs are entitled to any recovery herein, this answering defendant alleges
that in the event of any judgment or verdict in favor of plaintiffs herein, that said judgment
or verdict must be reduced to the extent that said carelessness and negligence of plaintiffs
caused or contributed to the alleged injuries and damages allegedly sustained by
plaintiffs, if any such injuries or damages there were, or are.

FOURTH AFFIRMATIVE DEFENSE
I

This answering defendant is informed and believes, and based upon said

information and belief alleges, that plaintiffs have received or receive disability and

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ANSWER TO COMPLAINTBENNETT, SAMUELSEN,
"1 ALLARD

VILLAGE,
ARRAY, SUITE 300
ALAMEDA, CA 94561-1084

(510) 444-7688

medical benefits under a worker's compensation law, or similar laws, from plaintiff's
employers or former employers or their worker's compensation or similar insurers, on
account of the injuries and damages allegedly sustained by plaintiffs which give rise to this
lawsuit, if any such injuries or damages there were or are.
Il.

At all times denying any liability or obligation to plaintiffs or any other person or
entity whatsoever, this answering defendant alleges that each and every of plaintiff's

employers and former employers was careless and negligent in and about the matters

alleged in plaintiffs’ complaint and that said carelessness and negligence of each and
every of said employers contributed directly and proximately to any alleged injuries or
damages sustained by plaintiffs and/or any or all of said employers.

Ul.

By reason of the premises, and at all times denying that plaintiffs are entitled to any
judgment or verdict whatsoever herein, any judgment or verdict that might be rendered in
favor of plaintiffs herein should be reduced by the amount of all such payments by said
employers or insurers, and that each of said employers or insurers should be barred from
any recovery by lien or otherwise in connection with this matter.

FIFTH AFFIRMATIVE DEFENSE

At all times denying the allegations of plaintiffs’ complaint, this answering defendant
is informed and believes, and based upon said information and belief alleges, that
plaintiffs voluntarily and knowingly assumed the alleged risks and alleged hazards incident
to the alleged operations, acts and conduct at the times and places alleged in the
complaint, and that plaintiffs’ said acts proximately caused and contributed to the alleged
injuries and damages, if any such injuries or damages there were, or are.

SIXTH AFFIRMATIVE DEFENSE
L

This answering defendant is informed and believes, and based upon said

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ANSWER TO COMPLAINTALAMEDA, CA 94501-1084
[s10) 44g.76uH

information and belief alleges, that any injuries and damages allegedly sustained by
plaintiffs was directly and proximately caused by the misuse of the product or products
allegedly involved, by plaintiff and plaintiff's employers.
SEVENTH AFFIRMATIVE DEFENSE
I

This answering defendant incorporates herein by reference, as though set forth in
full at this point, each and every allegation contained in Paragraph 1 of its Fourth
Affirmative Defense.

Th.

At all times denying all allegations of plaintiffs’ complaint, this defendant is informed
and believes, and based on said information and belief alleges, that plaintiff's employers
voluntarily and knowingly assumed the alleged risks and alleged hazards of the alleged
operations, acts and conduct at the times and places alleged in plaintiffs’ complaint, and
that said acts of plaintiff's employers directly and proximately caused and contributed to
any alleged injuries or damages allegedly sustained by the plaintiffs, and/or by any or all
of plaintiff's employers, if any such injuries or damages to either plaintiffs or any employer
of plaintiff there were, or are.

“lL

By reason of the premises, at all times denying that plaintiffs are entitled to any
judgment or verdict whatsoever herein, any judgment or verdict that might be entered in
favor of plaintiffs herein should be reduced by the amount of ali such payments by said
employers or insurers, and that each of said insurers or employers should be barred from
any recovery herein.

EIGHTH AFFIRMATIVE DEFENSE

At all times denying any liability whatsoever for plaintiffs herein, this defendant

alleges that any alleged liability or responsibility of this defendant, any such alleged liability

and responsibility being denied, is small in proportion to the alleged liability and

4.

ANSWER TO COMPLAINT26

27

BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
B AY, SUITE 400
ALAMEDA, Ca 94500-1084
(S10) dat 688

responsibility of other persons and entities, including other persons and entities who are
defendants herein, and that plaintiffs should be limited to seeking recovery from this
defendant for the proportion of alleged injuries and damages for which this defendant is
allegedly liable or responsible, all such alleged liability and alleged responsibility being
expressly denied.

NINTH AFFIRMATIVE DEFENSE

This answering defendant is informed and believes, and based upon said
information and belief alleges, that plaintiffs have unreasonably delayed in bringing of this
action without good cause therefor. Said delay has directly and proximately resulted in
prejudice to this defendant and, therefore, this action is barred by laches.

TENTH AFFIRMATIVE DEFENSE

At all times denying all allegations of plaintiffs’ complaint, this answering defendant
is informed and believes, and based upon said information and belief alleges, that
plaintiffs are barred from recovery herein because of modification, alteration or change in
some other manner of the products alleged in plaintiffs’ complaint on file herein.

ELEVENTH AFFIRMATIVE DEFENSE

At all times mentioned herein, this answering defendant is informed and believes,
and based upon said information and belief alleges, that plaintiffs acknowledged, ratified,
consented to and acquiesced in the alleged acts or omissions, if any there were, of this
answering defendant, thus barring plaintiffs from any relief as prayed for herein.

TWELFTH AFFIRMATIVE DEFENSE

At all times denying any liability or obligation whatsoever to plaintiffs herein, and/or
to any other person or entity of any nature or capacity whatsoever, and at all times
denying that plaintiffs are entitled to any recovery herein, this answering defendant alleges
that at all times and places mentioned in plaintiffs’ complaint, its products were
manufactured, produced, supplied, sold and distributed in conformity with specifications

promulgated by the United States Government under its war powers as set forth in the

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ANSWER TO COMPLAINTWD em WD

PARKWAY, SUF
ALANEDA, Ca S4501-084
1510} 45-7688

United States Constitution, and that any recovery by plaintiffs herein is thus further barred

by said sovereign acts and powers.
THIRTEENTH AFFIRMATIVE DEFENSE

The complaint fails to state a cause of action against this answering defendant for

exemplary/punitive damages.
FOURTEENTH AFFIRMATIVE DEFENSE

There is a defect and misjoinder of parties defendant.
FIFTEENTH AFFIRMATIVE DEFENSE

The complaint and each cause of action thereof is barred by the provisions of
Commercial Code Sections 2725(1) and 2725(2).
SIXTEENTH AFFIRMATIVE DEFENSE

Plaintiffs failed to mitigate their alleged damages, if any there were.

SEVENTEENTH AFFIRMATIVE DEFENSE

This answering defendant received no notice of any dangerous, hazardous or
defective condition or any breach of warranty, either express or implied.
EIGHTEENTH AFFIRMATIVE DEFENSE

The claim of plaintiffs for personal injury was previously litigated on the merits, and
a judgment in said prior action having been rendered, plaintiffs’ complaint, and each
cause of action therein, is barred.

NINETEENTH AFFIRMATIVE DEFENSE

Plaintiffs presently have another action pending arising out of the same wrongs and
injuries alleged in this matter, and on that basis plaintiffs have split their cause of action
and the present action is therefore barred.

TWENTIETH AFFIRMATIVE DEFENSE

Defendant alleges that plaintiffs’ action is barred as to this defendant by reason of

the operations of the provisions contained in California Labor Code Sections 3600, 3601

and 3602, et seq., and that plaintiffs’ right to recovery against this defendant, if any there

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ANSWER TO COMPLAINT27

(S10) 44.7688

be, is limited to the exclusive remedy provided in the aforementioned sections.
TWENTY-FIRST AFFIRMATIVE DEFENSE

Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint are barred in whole or in party by the equitable doctrines of waiver
and estoppel.

TWENTY-SECOND AFFIRMATIVE DEFENSE

Defendant alleges that plaintiffs were solely negligent in and about the matters
alleged in said complaint and that such negligence on the part of plaintiffs was the sole
proximate cause of the injuries and damages complained of, if any there were.
TWENTY-THIRD AFFIRMATIVE DEFENSE

Defendant alleges that there is no privity between plaintiffs and this answering

defendant.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

Defendant alleges that it gave no warranties, either express or implied, to plaintiffs
and that neither plaintiffs nor others ever notified defendant of any claims of breach of
warranty, if any there were.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Defendant alleges that, if there was any negligence proximately causing the injuries
or damages complained of, such negligence, if any, is collateral negligence, as that term
is used and defined in Restatement 2d Torts, Section 426, and derivative authority.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant alleges that plaintiffs’ claims, and each of them, in this action are pre-
empted by federal statutes and regulations governing workplace exposure to asbestos.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Defendant alleges that said complaint, to the extent that it seeks exemplary or
punitive damages pursuant to California Civil Code Section 3294 against this answering,

defendant, violates defendant's right to procedural due process under the Fourteenth

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ANSWER TO COMPLAINTBENNETT, SAMUELSEN,
REYNOLDS & ALLARE

Bag ee, SLUTE
ALAMEDA, CA SH5G1-[084
(510) 441.7658

Amendment of the United States Constitution, and Article |, Section 7 of the Constitution
of the State of California, and therefore fails to state a cause of action upon which either
punitive or exemplary damages can be awarded.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Defendant alleges that said complaint, to the extent that it seeks exemplary or
punitive damages pursuant to California Civil Code Section 3294 against this answering
defendant, violates defendant'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 defendant's right to substantive due
process as provided in the Fifth and Fourteenth Amendments of the United States
Constitution and Constitution of the State of California, and therefore fails to state a cause
of action upon which either punitive or exemplary damages can be awarded.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint on the theory of alternate entity and/or successor liability, fail to
state facts sufficient to constitute a cause of action against this answering defendant.

THIRTIETH AFFIRMATIVE DEFENSE

Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint for negligence per se, are barred by California Labor Code Section
6304.5, and derivative authority.

THIRTY-FIRST AFFIRMATIVE DEFENSE

Defendant alleges that, at all times relevant to the matters alleged in the complaint,

some of plaintiff's employers were sophisticated users of allegedly asbestos-containing
products, and said employers’ negligence in exposing their employees to such products in
a negligent, careless and reckless manner was a superceding intervening cause of
plaintiff's injuries, if any.

Hl

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ANSWER TO COMPLAINTa Dw Bw WV

BENNETT, SAMUELSEN,
REYS

(510) 444-7688

THIRTY-SECOND AFFIRMATIVE DEFENSE

Defendant alleges that plaintiff's and other persons’ use of any product or products
manufactured and/or distributed by this defendant, if any, which is denied, was
insignificant and that such use was net a legal cause of the alleged injuries and damages.

THIRTY-THIRD AFFIRMATIVE DEFENSE

Defendant alleges that, to the extent plaintiffs’ complaint purports to state a cause
of action or basis for recovery under Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588,
it is barred by plaintiffs’ failure to join as defendants the manufacturers of a substantial
share of the asbestos products market, which asbestos products plaintiffs alleged caused
the alleged injuries complained of, and, should it prove impossible to identify the
manufacturers of the products that allegedly injured plaintiff, plaintiffs’ purported claim or
cause of action is barred by the fault of plaintiffs in making identification of the
manufacturer impossible. In addition, such claim would be barred by General Order of
this Court.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Defendant alleges that, to the extent plaintiffs’ complaint purports to state a cause
of action or basis for recovery upon lack of identification of the manufacturer of the alleged
injury-causing product, it fails to state facts sufficient to constitute a cause of action in that
plaintiffs have asserted claims for relief which, if allowed, would contravene this
defendant's constitutional rights to substantive and procedural due process of law, as
preserved by the Fourteenth Amendment to the Constitution of the United States and by
Article |, Section 7, of the Constitution of the State of California.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

Defendant alleges that plaintiffs’ alleged exposure to any product manufactured

and/or distributed by this defendant, which is denied, was so minimal and insignificant so
as to not constitute a substantial factor in causing the injuries and damages alleged in

plaintiffs’ complaint.

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ANSWER TO COMPLAINTBw NY BF SD GD wo NIN DA

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27

BENNETT, SAMUELSEN.

LAGE

1 SUITE 200
ALAMEDA, Ca Su501-1084
(510) 4645-7688

WHEREFORE, this answering defendant prays as follows:

4. That plaintiffs take nothing by reason of their complaint on file herein.
2. For costs of suit incurred herein; and
3. For such other and further relief as the court deems proper.

DATED: January 5, 2011 BENNETT, SAMUELSEN, REYNOLDS & ALLARD

Z

ICHARD L. REYNOLDS
JOHN G. COWPERTHWAITE
Attorneys for Defendant
SLAKEY BROTHERS, INC.

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ANSWER TO COMPLAINTBw wv

~

BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
‘A PROFESSIONAL CORP.
1201 MARINA VILLAGE
PARKWAY, SUITE 300
ALAMEDA, CA 94501-1084
1510) 4a. 7688

PROOF OF SERVICE

Case Name: Robert Ross, et al. vs. C.C. Moore & Co. Engineers, et al.
Court: San Francisco Superior Court No, GCG-10-275731

lam a citizen of the United States, over the age of 18 years and not a party to the
cause herein. | am an employee of BENNETT, SAMUELSEN, REYNOLDS & ALLARD, A
Professional Corporation, 1301 Marina Village Parkway, Suite 300, Alameda, California
94501-1084. | am readily familiar with the standard business practices of this office in
connection with the mailing, delivering (via messenger and overnight), facsimiling and e-
file/serve via LexisNexis of documents from this office.

On January 5 , 2011, | served the following listed documents(s), by method
indicated below, on the parties in this action:

ANSWER TO COMPLAINT

(¥) ELECTRONIC SERVICE: By electronically transmitting the document(s) listed above
to LexisNexis File and Serve, an electronic filing service provider, at

www fileandserve.lexisnexis,com pursuant to the Court's Order mandating electronic
service. The transmission was reported as complete and without error.

| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on January 5,
2011 in Alameda, California.

RD. Wee
B. Meier

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ANSWER TO COMPLAINT