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

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                                Brybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

Edward R. Hugo [Bar No. 124839]
Shelley K. Tinkoff [Bar No. 187498]
BRYDON HUGO & PARKER

135 Main Street, 20" Floor ELECTRONICALLY
San Francisco, CA 94105 FILED
Telephone: (415) 808-0300 Superior Court of California,
Facsimile: (415) 808-0333 County of San Francisco
Email: tinkoff@bhplaw.com JAN 19 2011
Clerk of the Court
Attorneys for Defendant :
DOMCO PRODUCTS TEXAS INC. cena eee pepuly Clerk

Erroneously sued herein as DOMCO PRODUCTS
TEXAS, L.P. fka AZROCK INDUSTRIES, INC.

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, (ASBESTOS)
Case No, CGC-10-275731
Plaintiffs,
vs. ANSWER OF DOMCO PRODUCTS TEXAS

INC. erroneously sued herein as DOMCO
C.C. MOORE & CO. ENGINEERS; et al., PRODUCTS TEXAS, L.P. fla AZROCK
INDUSTRIES, INC. TO COMPLAINT FOR
Defendants. PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS

COMES NOW Defendant DOMCO PRODUCTS TEXAS INC. erroneously sued
herein as Domco Products Texas, L.P. fka Azrock Industries, Inc. (hereinafter “Defendant”
or “DOMCO”), and answers plaintiffs’ Complaint for Personal Injury and Loss of|
Consortium — Asbestos (hereinafter the “Complaint”) on file as follows:

GENERAL DENIAL

Under the provisions of Section 431.30(d), California Code of Civil Procedure, this
answering defendant denies each and every allegation of plaintiffs’ Complaint and the
whole thereof, and denies that plaintiffs have been damaged in any sum or amount
whatsoever, or at all, and denies that plaintiffs is entitled to recover damages of any kind

in any amount whatsoever from DOMCO.

1

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS1 RESERVATION OF RIGHT TO TRIAL BY JURY

2 DOMCO reserves the right to a trial by jury.

3 AFFIRMATIVE DEFENSES

4 Failure to State a Cause of Action

5 This answering defendant alleges that plaintiffs’ Complaint and each of the causes of|

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

7 || defendant.

8 FIRST AFFIRMATIVE DEFENSE
9 Contravention of Defendant's Constitutional Rights to Due Process of Law
10 The Complaint and each cause of action thereof, which is admittedly based upon a

11 ||lack of identification of the manufacturer of, and contractor using or distributing the alleged
12 |/injury-causing product, fails to state facts sufficient to constitute a cause of action in that
13 || plaintiffs have asserted a claim for relief which, if granted, would contravene defendant's}
14 ||constitutional rights to substantive and procedural due process of law as preserved for
15 |/defendant by the Fourteenth Amendment of the United States Constitution and by Article I,

16 ||Section 7, of the Constitution of the State of California.

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

20 ||constitute a cause of action in that plaintiffs have asserted claims for relief which, if granted,
21 ||would constitute a denial by this Court of defendant's constitutional right to equal
22 ||protection of the laws as preserved by the Fourteenth Amendment of the United States
23 ||Constitution and by Article |, Section 7, of the Constitution of the State of California.

24 THIRD 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 a

27 |\lack of identification of the manufacturer, and contractor using or distributing the alleged

28 2
B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF

139 MAIN STREET CONSORTIUM - ASBESTOS
20" FLOcR
Sun Franisea, CA 94105Brybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

injury-causing product, fails to state facts sufficient to constitute a cause of action in that|

plaintiffs have asserted claims for relief which, if granted, would constitute the taking of|

private property for public use without just compensation in contravention of the Fifth and|

Fourteenth Amendments to the United States Constitution and by Article [, Section 7 and|

19, of the Constitution of the State of California, and the applicable California statutes.
FOURTH AFFIRMATIVE DEFENSE

Comparative Fault

This answering defendant alleges that the damages, if any, complained of by
plaintiffs, was proximately caused by the negligence, fault, breach of contract and/or strict
liability of plaintiffs or other defendants, firms, persons, corporations, unions, employers|
and entities other than DOMCO, and that said negligence, fault, breach of contract and/or|
strict liability comparatively reduces the percentage of any negligence, fault, breach of
contract or strict liability for which DOMCO is legally responsible, if any be found, which|
liability this defendant expressly denies. Further, this answering defendant alleges that
plaintiffs did not exercise ordinary care, caution or prudence to avoid the incidents
complained of herein, and said incidents and the injuries and damages, if any, sustained by|
plaintiffs, was directly and proximately caused and contributed to by the carelessness and
negligence of said plaintiffs.

FIFTH AFFIRMATIVE DEFENSE

Contributory Negligence

This answering defendant alleges that plaintiffs did not exercise ordinary care,
caution or prudence to avoid the incidents complained of herein, and said incidents and the}
injuries and damages, if any, sustained by plaintiffs, was directly and proximately caused
and contributed to by the carelessness and negligence of said plaintiffs.

SIXTH AFFIRMATIVE DEFENSE

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

3

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSBrybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on|
any theory.
SEVENTH 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.

EIGHTH 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), 340, 340(3) 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.

NINTH AFFIRMATIVE DEFENSE

Failure to Mitigate

This answering defendant alleges that plaintiffs failed to mitigate damages which
plaintiffs 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.

TENTH AFFIRMATIVE DEFENSE

Estoppel

This answering defendant alleges that as a result of the acts, conduct and/or
omissions of plaintiffs and their agents, or any of them, and each cause of action presented|

therein, is barred under the Doctrine of Estoppel.

4

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS1 ELEVENTH AFFIRMATIVE DEFENSE

2 Waiver
This answering defendant alleges that plaintiffs, by their acts, conduct and
4 |Jomissions, have waived the claims alleged in their Complaint and in each purported cause

5 |/of action alleged therein.

6 TWELFTH AFFIRMATIVE DEFENSE
7 Acquiescence
8 Plaintiffs acknowledged, ratified, consented to, and acquiesced in the alleged acts or|

9 |lomissions, if any, of this answering defendant, thus barring plaintiffs from any relief as|

10 || prayed for herein.

i THIRTEENTH AFFIRMATIVE DEFENSE
12 Notice of Dangers
13 Plaintiffs was advised, informed, and warned of any potential hazards and/or

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

17 || prayed for.

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

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

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

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

26 ||place at any premises, if any, for which DOMCO had any legal responsibility, were

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

28 5
B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF

139 MAIN STREET CONSORTIUM - ASBESTOS
20" FLOcR
Sun Franisea, CA 941051 ||imposed by its co-defendants, by the U.S. Government, by the State of California, by
2 |/plaintiffs’ employers, or by third parties yet to be identified.

3 SIXTEENTH AFFIRMATIVE DEFENSE
4 No Conspiracy
5 This answering defendant alleges that DOMCO has no liability for the acts,

6 ||omissions or otherwise of any other defendant or entity because DOMCO did not become|
7 ||legally responsible for the acts of any such defendant, nor entity, by any communication,|
8 |lalleged, implied, or actual, nor act, action, or activity, and never was, nor is, a conspirator]

9 ||nor co-conspirator with any other defendant or entity.

10 SEVENTEENTH AFFIRMATIVE DEFENSE
i State-of-the-Art
12 This answering defendant alleges that all of its activities, products, materials and its

13 || premises at issue here at all times were conducted, used, produced, marketed, and operated]
14 |lin conformity with the existing scientific, medical industrial hygiene and consumer]

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

16 EIGHTEENTH AFFIRMATIVE DEFENSE
17 No Foreseeable Risk to Plaintiffs
18 The state of the medical, scientific, and industrial knowledge and practice was at all

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

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

23 NINETEENTH 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 DOMCO neither controlled, nor had the right to control, and was not

28 6
B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF

139 MAIN STREET CONSORTIUM - ASBESTOS
20" FLOcR
Sun Franisea, CA 94105Brybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

proximately caused by any acts, omissions, or other conduct of DOMCO.

TWENTIETH AFFIRMATIVE DEFENSE

Action for Relief
This answering defendant alleges the causes of action, if any, attempted to be stated
and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure}
of the State of California and/or other statutes of the State of California, including without|
limitation C.C.P. § 338(d).
TWENTY-FIRST AFFIRMATIVE DEFENSE

Misuse and Improper Use of Products

This answering defendant alleges that if the plaintiffs allegedly suffered injuries
attributable to the disturbance or use of any product for which DOMCO had any legal
responsibility, which allegations are expressly herein denied, the injuries were solely caused
by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose and|
improper use and abuse which was made of said product by persons or entities other than|
DOMCO.

TWENTY-SECOND AFFIRMATIVE DEFENSE

Due Care and Diligence

This answering defendant alleges that DOMCO exercised due care and diligence in
all of the matters alleged in the Complaint, and no act or omission by DOMCO was the}
proximate cause of any damage, injury or loss to plaintiffs.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Alteration and Misuse of Product

This answering defendant alleges that an insubstantial amount, if any at all, of the
products containing asbestos distributed, used, supplied by defendant or used or in place at|
any premises owned or controlled by defendant, were not disturbed or used in the presence}
of plaintiffs and not supplied to the plaintiffs, and if so, were substantially altered by others|
and/or used in a manner inconsistent with the labeled directions.

7

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSBrybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

TWENTY-FOURTH AFFIRMATIVE DEFENSE

Equal or Greater Knowledge of Hazards

This answering defendant alleges that any and all products containing asbestos used,
distributed or supplied by defendant were distributed or supplied to, or for, persons or|
entities who had knowledge with respect to the hazards, if any, resulting from exposure to}
products containing asbestos, which knowledge is equal to or greater than the knowledge
of DOMCO.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Other Parties’ Liability and Negligence
This answering defendant alleges that if there was any negligence or any other form
of liability on the part of any of the parties named herein, it was the sole and exclusive}
negligence and liability of the other persons or entities and not of DOMCO.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

Apportionment and Offset

This answering defendant is informed and believes and thereon alleges that
plaintiffs’ acts and omissions, including plaintiffs’ agents, servants, and employees acting
within the course and scope of their employment, and others, contributed to the alleged
damages, injury, or loss, if any, sustained by plaintiffs. Defendant requests that the Court|
apply the principles of apportionment and offset so as to permit the Court or jury to|
apportion liability according to fault and to grant defendant a corresponding offset against}
any damages awarded to plaintiffs.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Contribution/Equitable Indemnity

This answering defendant alleges, in the event it is held liable to Plaintiffs, any such
liability is expressly herein denied, and any other co-defendants are likewise held liable,
DOMCO is entitled to a percentage contribution of the total liability from said co-
defendants in accordance with the principles of equitable indemnity and comparative}

8

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOSBrybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

contribution.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Assumption of Risk by Plaintiffs’ Employer(s)

This answering defendant alleges that the Complaint and each cause of action
alleged therein are barred on the grounds that plaintiffs’ employer or employers knowingly|
entered into and engaged in the operations, acts and conduct alleged in the Complaint, and|
voluntarily and knowingly assumed all of the risks incident to said operations, acts and|
conduct at the time and place mentioned in the Complaint.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Assumption of Risk

This answering defendant alleges plaintiffs assumed the risk of the matters referred
to in their Complaint and that plaintiffs knew and appreciated the nature of the risk and
that the plaintiffs voluntarily accepted this risk.

THIRTIETH AFFIRMATIVE DEFENSE

No Market Share

This answering defendant alleges that DOMCO did not have an appreciable share of|

the market for the asbestos-containing products which allegedly caused plaintiffs’ injuries,
which occurrence DOMCO expressly denies. Accordingly, DOMCO may not be held liable|
to plaintiffs based on its alleged share of the applicable product market.

THIRTY-FIRST AFFIRMATIVE DEFENSE

Plaintiffs Fails to Join a Substantial Market Share

The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action against this answering defendant, in that defendant has failed to}
join a substantial market share of the producers or products to which plaintiffs was

allegedly exposed.

9

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS1 THIRTY-SECOND AFFIRMATIVE DEFENSE

2 Insufficient Facts to Show Substantial Market Share of this Defendant

wou

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 al

5 |/cause of action against this defendant.

6 THIRTY-THIRD AFFIRMATIVE DEFENSE
7 Independent, Intervening or Superseding Cause
8 This answering defendant alleges that if plaintiffs suffered any injuries attributable to

9 |/the use of any product containing asbestos which was used, distributed or sold by
10 ||defendant, which allegations are expressly denied herein, the injuries were solely caused by|
11 |jan unforeseeable, independent intervening and/or superseding event beyond the control
12 |jand unrelated to any conduct of defendant. Defendant's actions, if any, were superseded]

13 ||by the negligence and wrongful conduct of others.

14 THIRTY-FOURTH AFFIRMATIVE DEFENSE
15 Not a Substantial Factor
16 This answering defendant alleges that the Complaint and each cause of action

17 ||therein presented are barred on the grounds that the products, conduct, materials or|
18 || premises of defendant as referred to in plaintiffs’ Complaint, if any, were not a substantial]
19 ||factor in bringing about the injuries and damages complained of by plaintiffs and did not}

20 |/increase the risk that plaintiffs would suffer the injuries and damages complained of.

21 THIRTY-FIFTH AFFIRMATIVE DEFENSE
22 Insufficient Exposure
23 Any exposure of plaintiffs to defendant's activities, products or exposure to asbestos

24 |/or asbestos-containing products at DOMCO’s premises was so minimal as to be insufficient
25 ||to establish by a reasonable degree of probability that any such product caused any alleged

26 |linjury, damage, or loss to plaintiffs.

27
28 10
B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF

139 MAIN STREET CONSORTIUM - ASBESTOS
20" FLOcR
Sun Franisea, CA 941051 THIRTY-SIXTH AFFIRMATIVE DEFENSE

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

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

8 |/distributor or premises holder relating to asbestos or asbestos-containing products.

9 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
10 Lack of Privity
I This answering defendant alleges that plaintiffs have failed to state a cause of action

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

14 ||defendant on the one hand, and plaintiffs on the other.

15 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
16 Secondary Assumption of Risk
17 This answering defendant alleges that any and all products containing asbestos used,

18 ||distributed or supplied by defendant were used, distributed or supplied to, or for, persons|
19 ||or entities who had knowledge with respect to the hazards, if any, resulting from exposure}
20 ||to products containing asbestos, which is equal to or greater than, the knowledge of
21 ||DOMCO, i.e. DOMCO’s liability should be reduced in proportion to the knowledge of|

22 ||plaintiffs.

23 THIRTY-NINTH AFFIRMATIVE DEFENSE
24 Civil Code Section 1431.2
25 This answering defendant alleges that the provisions of California Civil Code §

26 ||1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiffs’ Complaint

27 |\|and to each cause of action therein.

28 u
B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF

139 MAIN STREET CONSORTIUM - ASBESTOS
20" FLOcR
Sun Franisea, CA 94105Brybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

FORTIETH AFFIRMATIVE DEFENSE

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.

FORTY-FIRST AFFIRMATIVE DEFENSE

Offset for Workers’ Compensation Benefits

This answering defendant alleges that to the extent plaintiffs 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-SECOND AFFIRMATIVE DEFENSE

Express Contractual Indemnity

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

FORTY-THIRD AFFIRMATIVE DEFENSE

Consent
This answering defendant alleges that at all times mentioned, plaintiffs consented to

the alleged acts or omissions of DOMCO.

12

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS1 FORTY-FOURTH AFFIRMATIVE DEFENSE

2 Unusual Susceptibility

This answering defendant alleges that each of plaintiffs’ injuries and damages, if any,
4 ||were proximately caused or contributed to by plaintiffs’ unforeseeable idiosyncratic

5 ||condition, unusual susceptibility, or hypersensitivity reactions for which DOMCO is not

6 |/liable.

7 FORTY-FIFTH AFFIRMATIVE DEFENSE

8 Good Faith

9 This answering defendant alleges that plaintiffs’ claim for punitive damages is

10 ||barred because DOMCO at all times and places mentioned in the Complaint acted]

11 ||reasonably and in good faith, and without malice or oppression towards the plaintiffs.

12 FORTY-SIXTH AFFIRMATIVE DEFENSE
13 Sophisticated User
14 This answering defendant alleges that DOMCO was under no legal duty to warn

15 ||plaintiffs of the hazard associated with the use of products containing asbestos or their|
16 ||existence at any premises owned, operated, controlled or otherwise by DOMCO. The
17 || purchasers of said products, the plaintiffs, plaintiffs’ employers, their unions or certain third
18 |/parties yet to be identified, were knowledgeable and sophisticated users and were in a
19 ||better position to warn plaintiffs of the risk associated with using products containing}
20 ||asbestos and, assuming a warning was required, it was the failure of such persons or
21 |\entities to give such a warning that was the proximate and superseding cause of plaintiffs’

22 ||damages, if any.

23 FORTY-SEVENTH AFFIRMATIVE DEFENSE
24 Work Hazard Precautions
25 This answering defendant alleges that plaintiffs’ employer(s) was/were advised and

26 ||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

28 13
B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF

139 MAIN STREET CONSORTIUM - ASBESTOS
20" FLOcR
Sun Franisea, CA 941051 |]Complaint, in a manner which was adequate notice to an industrial user of such product to

2 |/enable it to inform its employees to take appropriate work precautions to prevent injurious

3 |/exposure.

4 FORTY-EIGHTH AFFIRMATIVE DEFENSE

5 Failure to Join Indispensable Parties

6 Plaintiffs herein have failed to join indispensable parties (California Code of Civil

7 ||Procedure, § 389) and the Complaint is thereby defective, and plaintiffs are thereby

8 || precluded from any recovery whatsoever as prayed for herein.

9 FORTY-NINTH AFFIRMATIVE DEFENSE
10 No Standing Under California Civil Cade §§ 1708-1710
i Plaintiffs have no standing nor right to sue for fraud and conspiracy, breach of|

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

14 ||constitute a cause of action against this answering defendant.

15 FIFTIETH AFFIRMATIVE DEFENSE
16 Plaintiffs are not a Real Party in Interest
17 Plaintiffs, and each of them, herein lack legal capacity to sue and are not real parties

18 ||in interest and are thereby precluded from any recovery whatsoever as prayed for herein.

19 FIFTY-FIRST AFFIRMATIVE DEFENSE
20 Fraud and Conspiracy are Not Separate Forms of Damages
21 Fraud and conspiracy do not constitute a separate and distinct form of damages

22 ||from general damages, and, therefore, the prayer for fraud and conspiracy in addition to
23 ||general damages does not sufficiently support or constitute a separate claim for damages
24 |lagainst this answering defendant, but is simply cumulative and included in general

25 ||damages.

26
27
28 14
B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF

139 MAIN STREET CONSORTIUM - ASBESTOS
20" FLOcR
Sun Franisea, CA 94105Brybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

FIFTY-SECOND AFFIRMATIVE DEFENSE

Failure to Allege with Particularity

This answering defendant alleges that plaintiffs’ Complaint fails to set out its claims
with sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
defendant reserves the right to add additional defenses as the factual basis for these claims|
becomes known.

FIFTY-THIRD AFFIRMATIVE DEFENSE

Negligent Hiring Claim Invalid

An employee of an independent contractor may not pursue a claim for negligent
hiring against a hirer of the independent contractor. (See Camargo v. Tjaarda Dairy (2001) 25}
Cal. 4th 1235.)

FIFTY-FOURTH AFFIRMATIVE DEFENSE

Right to Amend

This defendant will assert any and all additional defenses that arise during the course
of this litigation and reserves the right to amend its answer to assert such defenses.

FIFTY-FIFTH AFFIRMATIVE DEFENSE

Alternate Unknown Cause
The alleged injuries and damages, if any, may be in whole or in part due to injury,
disease or cause other than as alleged.

FIFTY-SIXTH AFFIRMATIVE DEFENSE

No Concert of Action
There is no concert of action between defendant and any of the other named
defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be|
held jointly and severally liable with the other named defendants.
PRAYER
WHEREFORE, this answering defendant prays for judgment as follows:
1. That Plaintiffs take nothing by reason of their Complaint or any claims stated|

15

ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS1 || therein;

2 2. That Plaintiffs’ Complaint and each cause of action contained therein be|
dismissed with prejudice against DOMCO;

4 3. For costs of suit; and

5 4. For such other and further relief as the Court deems just and appropriate in

6 ||the circumstances.

8 || Dated: January 18, 2011 BRYDON HUGO & PARKER

By: /s/ Edward R. Hugo
Edward R. Hugo
2 Shelley K. Tinkoff
Attorneys for Defendant
DOMCO PRODUCTS TEXAS INC.
erroneously sued herein as DOMCO
14 PRODUCTS TEXAS, L.P. fka AZROCK
INDUSTRIES, INC.

28 16

B . ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as DOMCO PRODUCTS TEXAS,
Hoco& Paakbe L.P. fka AZROCK INDUSTRIES, INC. TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
135 MAIN STREET CONSORTIUM - ASBESTOS

20°" FLOGR
Sun Franwiseo. CA 94105Ross, Robert & Jean
San Francisco County Superior Court Case No. CGC-10-275731
LexisNexis Transaction No. 35434854

PROOF OF SERVICE

lam a resident of the State of California, over the age of 18 years, and not a
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, ¢ alifornia 94105. On the date below, I served the following:
ANSWER OF DOMCO PRODUCTS TEXAS INC. erroneously sued herein as
DOMCO PRODUCTS TEXAS, L.P. fka AZROCK INDUSTRIES, INC. TO

COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM -
ASBESTOS

on the following:

BRAYTON PURCELL LLP AND SEE 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. I 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. I am aware that on motion of party served,
service is presumed invalid if postal cancellation date or postage meter
date is more than one day after date of deposit for mailing in affidavit.

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 maintained by Federal Express,
addressed as set forth above.

I declare under penalty of perjury that the above is tryéand correct.

Executed on January 18, 2011, at San Francisco, California.

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PROOF OF SERVICE