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

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SONJA E. BLOMQUIST, #099341, sblomquist@lowball.com
PAMELA Y. LOUTE, #259391, plouie@lowball.com

LOW, BALL & LYNCH ELECTRONICALLY
505 Montgomery Street, 7 Floor

San Francisco, California 94111-2584 sopehr IL ED.
Telephone (415) 981-6630 County of San Francisco
Facsimile (415) 399-1506 JAN 24 2011

Attorneys for Defendant pelenk of the | Court

PACIFIC MECHANICAL CORPORATION Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

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

Plaintiffs, PACIFIC MECHANICAL
CORPORATION’S ANSWER TO
COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

v.

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

Defendants.

ee ee eee

Defendant PACIFIC MECHANICAL CORPORATION (herein "Defendant") answers
Plaintiffs’ Complaint on its own behalf and on behalf of no other defendant or entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies
generally each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by the Plaintiffs therein
states facts sufficient to constitute a cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

To the extent the Complaint asserts Defendant's alleged "market share" liability, or
"enterprise liability," the Complaint fails to state facts sufficient to constitute a cause of action

against Defendant.

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THIRD AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged therein states facts
sufficient to entitle Plaintiffs to an award of punitive damages against Defendant.

FOURTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would deprive Defendant of its
property without due process of law under the California Constitution and United States
Constitution.

FIFTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would violate the United States
Constitution's prohibition against laws impairing the obligation of contracts.

SIXTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would constitute a criminal fine or
penalty and should, therefore, be remitted on the ground that the award violates the United States
Constitution.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs’ action, and each alleged cause of action, is barred by the applicable statute of
limitations including, but not limited to, California Code of Civil Procedure sections 338(1),
338(4), 339(1), 340(1), 340(3), 340.2, 343, 353, 583.110, 583.210, 583.310 and 583.410 and
California Commercial Code section 2725.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs unreasonably delayed in bringing this action, without good cause therefore, and
thereby have prejudiced Defendant as a direct and proximate result of such delay; accordingly,
this action is barred by laches, estoppel and waiver.

NINTH AFFIRMATIVE DEFENSE

Plaintiffs were negligent in and about the matters alleged in the Comphint and in each
alleged cause of action; this negligence proximately caused, in whole or in part, the damages
alleged in the Complaint. In the event Plaintiffs is entitled to any damages, the amount of these

damages should be reduced by the comparative fault of Plaintiffs and any person whose
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negligent acts or omissions are imputed to Plaintiffs.

TENTH AFFIRMATIVE DEFENSE

Plaintiffs knowingly, voluntarily and unreasonably undertook each of the risks and
hazards, if any, referred to in the Complaint and each alleged cause of action, and this
undertaking proximately caused and contributed to any loss, injury or damages incurred by
Plaintiffs.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by Plaintiffs were proximately caused by the
negligent or willful acts or omissions of parties whom Defendant neither controlled nor had the
right to control, and was not proximately caused by any acts, omissions or other conduct of
Defendant.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by Plaintiffs or
by others; the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and
proximately caused any loss, injury or damages incurred by Plaintiffs.

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleged that its products were manufactured, produced, supplied, sold and
distributed in mandatory conformity with specifications promulgated by the United States
Government under its war powers, as set forth in the United States Constitution, and that any
recovery by Plaintiffs on the Complaint on file herein is barred in consequence of the exercise of
those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiffs failed to exercise due diligence to mitigate his loss, injury or damages;
accordingly, the amount of damages to which Plaintiffs is entitled, if any, should be reduced by
the amount of damages which would have otherwise been mitigated.

FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the Complaint

because the Complaint and each alleged cause of action against Defendant is barred by the
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"exclusive remedy" provisions California Labor Code section 3601, et seq.

SUXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiffs were
employed and were entitled to receive workers’ compensation benefits from their employers; that
all of Plaintiffs’ employers, other than Defendant, were negligent in and about the matters
referred to in said Complaint, and that such negligence on the part of said employers proximately
and concurrently contributed to the happening of the accident and to the loss or damage
complained of by Plaintiffs, if any there were; and that by reason thereof Defendant is entitled to
set off any such benefits to be received by Plaintiffs against any judgment which may be
rendered in favor of Plaintiffs.

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiffs”
employers were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said employers proximately and concurrently contributed to any loss or
damage, including nomeconomic damages, complained of by Plaintiffs, if any there were; and
that Defendant is not liable for said employers’ proportionate share of noneconomic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, parties other
than this Defendant were negligent in and about the matters referred to in said Complaint, and
that such negligence on the part of said parties proximately and concurrently contributed to any
loss or damage, including non-economic damages, complained of by Plaintiffs, if any there were;
and that Defendant herein shall not be liable for said parties’ proportionate share of noneconomic
damages.

NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint, all of
Plaintiffs’ employers, other than Defendant, were sophisticated users of asbestos-containing
products and said employers' negligence in providing the product to its employees in a negligent,

careless and reckless manner was a superseding intervening cause of Plaintiffs’ injuries, if any

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there were,

TWENTIETH AFFIRMATIVE DEFENSE

If Plaintiffs has received, or in the future may receive, workers' compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, and in the event that Defendant is held liable to
Plaintiffs, any award against Defendant must be reduced in the amount of all such benefits
received by Plaintiffs.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If Plaintiffs has received, or in the future may receive, workers' compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, and in the event Plaintiffs is awarded damages
against Defendant, Defendant claims a credit against this award to the extent that Defendant is
barred from enforcing its rights to reimbursement for workers’ compensation benefits that
Plaintiffs has received or may in the future receive.

TWENTY-SECOND AFFIRMATIVE DEFENSE

If Plaintiffs has received, or in the future may receive, workers' compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, Defendant demands repayment of any such
workers’ compensation benefits in the event that Plaintiffs recovers tort damages as a result of
the industrial injury allegedly invelved here. Although Defendant denies the validity of
Plaintiffs’ claims, in the event those claims are held valid and not barred by the statute of
limitations or otherwise, Defendant asserts that cross-demands for money have existed between
Plaintiffs and Defendant and the demands are compensated, so far as they equal each other,
pursuant to California Code of Civil Procedure section 431.70.

TWENTY-THIRD AFFIRMATIVE DEFENSE

At all times and places in the Complaint, Plaintiffs were not in privity of contract with
Defendant and said lack of privity bars Plaintiffs’ recovery herein upon any theory of warranty.

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TWENTY-FOURTH AFFIRMATIVE DEFENSE

Plaintiffs is barred from recovery in that all products produced by Defendant were in
conformity with the existing state-ofthe-art, and as a result, these products were not defective in
any manner.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

The Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing products which allegedly caused Plaintiffs’ injuries. Therefore, Defendant
may not be held liable to Plaintiffs based on these Defendants’ alleged percentage share of the
applicable market.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that Plaintiffs asserts Defendant's
alleged liability as a successor, successor in business, successor in product line or a portion
thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion
thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or partial owner
of or member in an entity researching, studying, manufacturing, fabricating, designing, labeling,
assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing,
installing, contracting for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising a certain substance, the generic name of
which is asbestos.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims were already litigated and resolved in prior actions, specifically San
Francisco Superior Court Case No. CGC-07-274099, filed March 5, 2007. Plaintiffs’ claims
herein are barred due to the primary right and res judicata doctrines which prohibit splitting a
single cause of action into successive suits, and seeking new recovery for injuries for which the
Plaintiffs were previously compensated by alleged joint tortfeasors,

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs have fully or partially mitigated their damages by reasons of settlements and

judgments obtained in prior actions, specifically San Francisco Superior Court Case No. CGC-
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07-274099 filed March 5, 2007, for personal injury damages caused by asbestos exposure for
which this Defendant is entitled to a credit.

TWENTY-NINTH AFFIRMATIVE DEFENSE

This Defendant is entitled to an offset for any and all prior settlements in this case and in
prior actions, specifically San Francisco Superior Court Case No, CGC-07-274099 filed March
5, 2007.

THIRTIETH AFFIRMATIVE DEFENSE

Plaintiffs and/or purchaser or user of the product at issue was sufficiently knowledgeable
and or trained and knew or should have known of the potential danger associated with the risk of
exposure to asbestos from the course of their work, and the claims are therefore barred under the
sophisticated user doctrine, pursuant to the California Supreme Court's opinion in William

Johnson vy, American Standard, Inc. (2008) 43 Cal.4th 56.

THIRTY-FIRST AFFIRMATIVE DEFENSE

Under the contractor defense, as outlined by Privette v. Superior Court (1993) 5 Cal. 4th
689 and its progeny Toland v. Sunland Housing Corp. (1998) 18 Cal. 4th 253, Camargo v.

Tjaarda Dairy (2001) 25 Cal.4th 1235, Hooker v. Department of Transportation (2002) 27

Cal.4th 198 and McKown v. WalMart Stores, Inc. (2002) 27 Cal.4th 219, Defendant is not

liable for all injuries incurred by Plaintiffs -- if any -- incurred while Plaintiffs were employed by

an employer itself hired by Defendant.

RESERVATION OF RIGHTS

Defendant reserves the right, upon completion of its investigation and discovery, to
amend this answer to include such additional defenses as may be appropriate.
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WHEREFORE, Defendant prays:

qd) That Plaintiffs takes nothing by this Complaint;

(2) That Judgment be entered in favor of Defendant;

(3) For recovery of Defendant's cost of suit;

(4) For appropriate credits and set-offs arising out of any payment of workers’

compensation benefits as alleged above; and

(5) For such other and further relief as the Court deems just and proper.

Dated: January 24, 2011 LOW, BALL & LYNCH

By: ___/s/ Pamela Y. Louie
SONIA E. BLOMQUIST
PAMELA Y. LOUTE
Attorneys for Defendant
PACIFIC MECHANICAL
CORPORATION

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Ross
San

emp
94]

v. C.C. Moore & Co. Engineers, et al.
Francisco Case No. CGC-10-275731

PROOF OF SERVICE

Tam over the age of eighteen (18) years and not a party to the within action. Tam
loyed at Low, Ball & Lynch, 505 Montgomery Street, 7th Floor, San Francisco, California
L

On the date indicated below, I served the following document PACIFIC

MECHANICAL CORPORATION’S ANSWER TO COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

on the listed addresses:

Brayton Purcell [ ] And All Defense Counsel

222 Rush Landing Road [SEE ATTACHED LIST]

Novato, CA 94948-6169

Telephone: 415 898-1555 [ ] (Al counsel in this action (list attached)

415-898-1555 (voice) were faxed a letter advising of the documents

415-898-1247 (fax) provided Plaintiffs and an offer to provide
copies upon request. Letter enclosed.)

] (BY MAIL) I served the above-named document, with postage thereon fully prepaid, via the
United States mail at San Francisco, California. I am sufficiently familiar with my firm's
practice for collection and processing of mail with the United States Postal Service. It will be!
deposited with the United States Postal Service this same day in the ordinary course of
business.

] (BY PERSONAL SERVICE) I caused each such envelope to be delivered by hand to the
addressee(s) noted above or on the attachment herein.

] (BY FACSIMILE) I caused the said document to be transmitted by facsimile transmission to
the number indicated above or on the attachment herein.

X] (BY ELECTRONIC SERVICE) I electronically served the document(s) via LexisNexis
File & Serve on the recipients designated on the Transaction Receipt located on the
LexisNexis File & Serve website.

] (BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED) I placed a true copy, enclosed
in a sealed, postage-paid envelope, in the United States Mail, at San Francisco, California.

] (BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be

deposited in a box or other facility regularly maintained by the overnight courier or driver
authorized by the overnight courier to receive documents.

I declare under penalty of perjury under the laws of the State of California that the foregoing

is true and correct. Executed at San Francisco, California on January 24, 2011.

/s/ Scarlet Herrera
Scarlet Herrera

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