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

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NOEL EDLIN, ESQ. (SBN 107796)
JOSEPH B. ADAMS, ESQ. (SBN 194964)

BASSI, EDLIN, HUIE & BLUM LLP ELECTRONICALLY

351 California Street, Suite 200

San Francisco, CA 94104 cope nol ED |

Telephone: (413) STs County of San Francisco
aesimile: (415) 397- JAN 31 2014/1

Attorneys for Defendant Clerk of the Court

BALLIET BROS. CONSTRUCTION CORPORATION BY: CHRISTLE Bop ae ak

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731
Plaintiffs, DEFENDANT BALLIET BROS.
CONSTRUCTION CORPORATION’S
vs. ANSWER TO UNVERIFIED

COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM -
ASBESTOS

C.C. MOORE & CO. ENGINEERS;

Defendants as Reflected on Exhibit | attached
to the Summary Complaint herein; and DOES
1-8500,

Defendants.

eee

Defendant BALLIET BROS. CONSTRUCTION CORPORATION (“BALLIET

BROS.”) hereby answers the unverified complaint for damages of Plaintiffs ROBERT ROSS and|
JEAN ROSS (“PLAINTIFFS”) as follows:

Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, BALLIET|
BROS. denies each and every, all and singular, both generally and specifically, the allegations of
PLAINTIFFS’ unverified complaint, and further denies that PLAINTIFFS have been damaged as}
alleged, or at all, by reason of any act or omission on the part of BALLIET BROS. or its agents,
servants or employees.
dif
fit

282770

DEFENDANT BALLIBT BROS. CONSTRUCTION CORPORATION

WER TO UNVERIFIED COMPLAINTeo ODD mH RB WwW Ne

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FIRST DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFFS’ unverified complaint fails to state facts sufficient to constitute a cause!
of action against BALLIET BROS.
SECOND DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFFS have failed to join all persons and parties needed for a just
adjudication of this action.
THIRD DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFFS’ claims are barred by laches, waiver and/or estoppel.
FOURTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that this Court does not have subject matter jurisdiction over this action or alternatively
that the Court lacks jurisdiction due to insufficiency of process or the service thereof and/or
improper venue.
FIFTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS,
alleges that PLAINTIFFS have failed to commence this action within the time required by the
applicable statutes of limitation, including but not limited to California Code of Civil Procedure
sections 340(3), 340.2, and 343.
SIXTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFFS’ damages, if any, were proximately caused, in whole or in part, by
PLAINTIFF ROBERT ROSS’ (“PLAINTIFF ROSS”) own fault and negligence in failing to
exercise reasonable care for his own safety. PLAINTIFF ROSS’ recovery from BALLIET
BROS., if any, should therefore be reduced proportionate to PLAINTIFF ROSS’ comparative

fault.

282770

DEFENDANT BALLIBT BROS. CONSTRUCTION CORPORATION

WER TO UNVERIFIED COMPLAINTeo ODD mH RB WwW Ne

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SEVENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFFS have failed to mitigate their alleged damages, if any there were.
EIGHTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that if PLAINTIFF ROSS was injured as a result of his exposure to products used or
installed at BALLIET BROS.’ premises, which is denied, such injury occurred after the
expiration of the useful safe life of such products.
NINTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that if PLAINTIFF ROSS suffered any damages, which is denied, such damages were the|
sole and proximate result of an unavoidable accident.
TENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that if PLAINTIFF ROSS suffered any damages, which is denied, such damages were
caused and/or contributed to by PLAINTIFF ROSS’ misuse of the product or products and
PLAINTIFF ROSS’ recovery should be barred or reduced accordingly.
ELEVENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that if PLAINTIFF ROSS suffered any damages, which is denied, such damages were
solely and proximately caused and/or contributed to by the negligence of third persons or entities
over whom or which Defendant BALLIET BROS. had no control or supervision.
TWELFTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that any asbestos-containing product or products alleged to have caused PLAINTIFF
ROSS’ injuries were manufactured, used, installed and/or distributed in mandatory compliance
with specifications promulgated by the United States government under its war powers, as set

forth in the U.S. Constitution, and that any recovery by PLAINTIFF ROSS is barred as a

282770

DEFENDANT BALLIBT BROS. CONSTRUCTION CORPORATION

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consequence of the exercise of those sovereign powers.
THIRTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that if PLAINTIFF ROSS suffered any injuries or damages, which is denied, the risk of
any such injuries or damages was not foreseeable to BALLIET BROS. BALLIET BROS. at all
times material hereto acted in accordance with the state of scientific knowledge available to
installers and/or users of asbestos-containing products.
FOURTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that it received no notice of any dangerous, hazardous or defective condition or any
breach of warranty, either expressed or implied.
FIFTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFF ROSS’ claims against BALLIET BROS. are barred by the holdings of
Privette v. Superior Court, 5 Cal. 4" 689 (1993) and Toland v. Sunland Housing Group, Inc., 18

Cal, 4" 253 (1998).
SIXTEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFF ROSS’ purported exposure to any asbestos-containing product or
products allegedly used or installed at BALLIET BROS.’ premises was minimal and insufficient
to establish the probability that said product or products were a legal cause of PLAINTIFF
ROSS’ alleged injuries.

SEVENTEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that their action is barred by the applicable state ad/or federal industrial insurance and/or
Workers’ Compensation laws, including, but not limited to, California Labor Code sections 3601

and 3602, and section 905 of Title 33 of the United States Code.

282770

DEFENDANT BALLIBT BROS. CONSTRUCTION CORPORATION

WER TO UNVERIFIED COMPLAINTeo ODD mH RB WwW Ne

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EIGHTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that at the time of the injuries alleged in PLAINTIFFS’ complaint, PLAINTIFF ROSS
was employed by persons other than BALLIET BROS., was entitled to receive and did receive
Workers Compensation benefits from said employer(s) or their insurers, and that said
employers(s) were negligent and careless in and about the matters referred to in PLAINTIFFS’
complaint. BALLIET BROS. is, therefore, entitled to set-off any such benefits received by
PLAINTIFFS against any judgment rendered in PLAINTIFF ROSS?’ favor herein and said
employer(s) are barred from any recovery by lien or otherwise against BALLIET BROS. in
connection with this matter.
NINETEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFF ROSS voluntarily and knowingly assumed the alleged risks and hazards
incident to the alleged operations, acts and conduct at the times and places alleged in
PLAINTIFFS’ complaint and that PLAINTIFF ROSS’ said acts proximately caused and
contributed to the alleged damages, if any there were.
TWENTIETH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that at all times relevant to the matters alleged in PLAINTIFFS’ complaint, PLAINTIFF
ROSS’ employers and others were sophisticated users of asbestos-contaiming products and said
employers and others’ negligence and other fault/liability in exposing PLAINTIFF ROSS was a
superseding and/or intervening cause of PLAINTIFF ROSS? injuries or damages, if any there
were, as articulated under California law including Johnson v. American Standard, Inc., 43 Cal.

4® 56 (2008).

TWENTY-FIRST DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that there was no concert of action among BALLIET BROS. and other defendants to thet
action and that any alleged liability or responsibility of BALLIET BROS., which is denied, is

282770

DEFENDANT BALLIBT BROS. CONSTRUCTION CORPORATION

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minimal in proportion to the alleged liability and responsibility of other persons and entities
including the other defendants herein. PLAINTIFFS should therefore be limited to seeking
recovery from BALLIET BROS. for the proportion of alleged injuries and damages for which
BALLIET BROS. is allegedly liable or responsible, all such alleged liability and responsibility
being denied.

TWENTY-SECOND DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent the
Complaint alleges that BALLIET BROS. have “market share” liability or “enterprise liability,”
the complaint fails to state facts sufficient to constitute a cause of action against BALLIET
BROS.

TWENTY-THIRD DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that it is entitled to set-off any settlements, judgments, or similar amounts received by
PLAINTIFFS, against any judgment rendered against it in PLAINTIFFS’ favor herein.

TWENTY-FOURTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges in accordance with section 1431.2 of the Civil Code, known as the Fair Responsibility
Act of 1986, that if PLAINTIFFS’ complaint states a cause of action, each defendant is liable, if
at all, only for those non-economic damages allocated to each defendant in direct proportion to
each defendant’s percentage of fault, if any. BALLIET BROS. also requests a judicial
determination of the amount of non-economic damages, if any. BALLIET BROS. also requests
a judicial determination of the amount of non-economic damages, if any, allocated to BALLIET
BROS. in direct proportion to BALLIET BROS.” percentage of fault, if any, and a separate
judgment in conformance therewith.

TWENTY-FIFTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFF ROSS’ damages and injuries, if any, were proximately caused or
contributed to, in whole or in part, by the negligence or fault or other acts and/or omissions of

282770

DEFENDANT BALLIET BROS. CONSTRUCTION CORPORATION'S ANSWER TO UNVE]

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persons or entities other than BALLIET BROS., for which BALLIET BROS. is not responsible.
TWENTY-SIXTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.

alleges that neither the complaint nor any purported cause of action alleged therein states facts
sufficient to entitle PLAINTIFFS to an award of punitive damages against BALLIET BROS.
TWENTY-SEVENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.

alleges that PLAINTIFFS are not entitled to recover punitive or exemplary damages from
BALLIET BROS. and that such damages are violative of the Constitutions of the United States
and of the State of California.
TWENTY-EIGHTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.

alleges that PLAINTIFFS’ instant action is barred or, alternatively, merged into a prior cause of
action for which PLAINTIFFS have previously sued upon, recovered, and dismissed with
prejudice, herby requiring a complete extinguishment of the instant action due to the doctrine of
Res Judicata and Collateral Estoppel.
TWENTY-NINTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFFS’ instant action is barred and discharged, pursuant to Title 11 of the
United States Code, section 1141(d) and that PLAINTIFFS’ action violates the pending
injunction against such claims that exists, by operation of law, pursuant to Title 11 of the United
States Code, section 524(a)(2).

THIRTIETH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that PLAINTIFF ROSS did not reasonably rely upon any representation, disclaimer,
warranty or other act or omission of BALLIET BROS.

THIRTY-FIRST DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.

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DEFENDANT BALLIBT BROS. CONSTRUCTION CORPORATION

WER TO UNVERIFIED COMPLAINTeo ODD mH RB WwW Ne

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alleges that PLAINTIFFS have failed to sufficiently allege successor liability against BALLIET
BROS.
THIRTY-SECOND DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, BALLIET BROS.
alleges that pursuant to California Code of Civil Procedure, section 430.1 0(c), there is another

action pending between the same parties on the same causes of action.

PRAYER
WHEREFORE, BALLIET BROS. prays for judgment as follows:
1. That PLAINTIFFS take nothing by reason of their complaint herein;
2, That judgment be entered in favor of BALLIET BROS.;

3. For costs of suit incurred herein; and
4, For such other and further relief as the Court may deem just and proper.
Date: January 28, 2011 BASSL EDLIN, HUIE & BLUM LLP
By: ‘si JOSEPH B. ADAMS

JOSEPH B. ADAMS, ESQ. (SBN 194964)
Attorneys for Defendant

BALLIET BROS. CONSTRUCTION CORP.
BASSI, EDLIN, HUIE & BLUM LLP

351 California Street, Suite 200

San Francisco, CA 94104

Telephone:(415) 397-9006

282770

DEFENDANT BALLIBT BROS. CONSTRUCTION CORPORATION

WER TO UNVERIFIED COMPLAINTRe: Robert Ross and Jean Ross y. Asbestos Defendants
San Francisco County Superior Court Case No. CGC-10-275731

PROOF OF SERVICE — ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA/COUNTY OF San Francisco

Tam a citizen of the United States and an employee in the County of San Francisco. I
am over the age of eighteen (18) years and not a party to the within action. My business
address is BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San.
Francisco, California 94104.

On the date executed below, I electronically served the document(s) via LexisNexis
File & Serve, described below, on the recipients designated on the Transaction Receipt located
on the LexisNexis File & Serve website.

DEFENDANT BALLIET BROS, CONSTRUCTION CORPORATION’S ANSWER TO.
UNVERIFIED COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS

On the following parties:
SEE SERVICE LIST PROVIDED BY LEXIS-NEXIS

I declare under penalty of perjury that the foregoing is true and correct and that this
document is executed on January 31, 2011, at San Francisco, California.

/s/ ADELA AREVALO

ADELA AREVALO

283587

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PROOF OF SERVICE,