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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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                                DAVID M. GLASPY, Esq. SBN 95332
LAW OFFICES OF GLASPY & GLASPY, INC,

100 Pringle Avenue, Suite 750 ELECTRONICALLY
Walnut Creek, CA 94596 FILED
Telephone: (925) 947-1300 Superior Court of California,
Facsimile: (925) 947-1594 County of San Francisc
JAN 27 2011
Attorney for Defendant Clerk of the Court
FAIRMONT HOTEL COMPANY See Oy clerk

IN THE 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
)
Plaintiff, ) Asbestos Litigation — Lexis Nexis File &
Serve
Vv. )
) Assigned to Honorable Judge Kahn.
C.C. MOORE & CO., etal, ; Dept. 220
Defendants. ) ANSWER TO PLAINTIFFS’ COMPLAINT
)
)
)

COMES NOW, Defendant, FAIRMONT HOTEL COMPANY, chereinate
"defendant"), and answers the Complaint filed by Plaintiffs, ROBERT & JEAN Ross
(hereinafter "Plaintiff"), as follows:

1. Answering the allegations contained in each and every paragraph of the
Complaint herein, this answering defendant hereby denies each and every, all and singular,
generally and specifically, the allegations therein contained, and further specifically denies
that said plaintiff has been damaged in any sum, sums or at all.
Ml
dit

if

-l-
Answer to Plaintiffs’ Complaint27

28

DEFENDANT HEREBY ASSERTS THE FOLLOWING SEPARATE AND
DISTINCT, AFFIRMATIVE DEFENSES:

2. The Complaint, and all causes of action, contentions, and/or allegations
contained therein, has failed to set forth facts and allegations sufficient to constitute a causq

of action against this answering defendant.

3. The action is barred by the appropriate Statutes of Limitation, including, but
not limited to, the following separate and distinct sections of the California Code of Civil
Procedure; 337, 337.1, 337.15, 338, 339, 340, 343, et seq.

4. Plaintiff was careless and negligent in and about the matters referred to in th
Complaint, and that said carelessness and negligence on the part of the plaintiff proximatel;
contributed to and/or was the sole proximate contributing cause of the incident referred
and any resulting damages or injuries, if any there be.

5. That at all times and places mentioned in the Complaint, plaintiff was full
aware of all of the facts, matters and circumstances surrounding said matters, and knowing!
and voluntarily assumed the risk of injury and/or damage, if any there was.

6. That any finding of negligence against this answering defendant should be
compared to the negligence of all other parties to this action, including all plaintiffs and
defendants, cross-complainants, and cross-defendants herein.

7. ‘That at all times since the cnactment of the Occupational Safety & Health ef
(OSHA) defendant has fully complied with the requirements of OSHA and rules and!
regulations thereunder.

8. That defendant did not know or believe and had no reason to know or believe
at the time the plaintiff was allegedly exposed to asbestos-containing products, or at an

time, that they posed a risk sufficient to give rise to a duty to warn.

2-
Answer to Plaintiffs’ Complaint27

28

9. That any alleged injuries to the plaintiff were due to and solely caused by the
negligence of his employers, their agents and employees, in failing to provide safe vl
suitable working conditions; in failing to train properly and supervise the plaintiff; in failing
to warn the plaintiff of any dangerous condition that such employer, their agents and|
employees knew or should have known were incident to the work being performed by the
plaintiff; and in failing to provide safety equipment to the plaintiff. The negligence of said
employer, their agents and employees, is an intervening and superseding cause of the alleged
injuries to the plaintiff and a bar to any recovery by the plaintiff against defendant.

10. That the employer of plaintiff was aware of the possible risk, if any, involved

in the utilization of materials containing asbestos, and fully appreciated all of the risks, i
any, and further voluntarily assumed the risks of injuries, loss and damages, if any, as set
forth in the Complaint. The assumption of this risk proximately contributed to and caused
the damages, if any, described in the Complaint.
11. That the Complaint herein, and each cause of action thereof, is barred ag
against this defendant by the provisions of California Labor Code Section 2601, et sec.
12. That defendant did not participate in any of the activities which plaintiff
asserts that punitive damages may be assessed.
13. That insofar as the Complaint is based on an allegation of misrepresentatio|
and fraud the Complaint fails to state with particularity the circumstances constituting th
alleged fraud. The Complaint, therefore, fails to state a claim against defendant upon whic!
relief may be granted. Defendant has never engaged in concealment, misrepresentation o1

fraud.

3.
Answer to Plaintiffs’ Complaint14. That insofar as the Complaint purports to assert a claim for punitive damages,
it is premised on an alleged course of conduct vis a vis the general public, and the plaintiff in|
this action is therefore not the real party in interest as to said purported punitive damagq
claim, and is barred and foreclosed from asserting such claim.

15. Defendant. did not participate in any of the activities for which plaintiff asserts
that punitive damages may be assessed.

16, Plaintiff and/or plaintiffs' decedent was a sophisticated user of the product
manufactured or provided by the defendant, and knew or should have known of any dangers
associated with the product.

PRAYER
WHEREFORE, defendant prays for judgment as follows:

1. That plaintiff take nothing by way of the Complaint on file herein;

2. That this answering defendant be hence dismissed with costs of suit incurred
herein; and
3. For such other and further relief as the Court may deem just and proper.

Dated: January? “2011

FAIRMONT HOTEL COMPANY

whe
Answer to Plaintiffs’ ComplaintPROOF OF SERVICE
I declare that:
lam employed in the County of Contra Costa, State of California. 1 am over the age
of 18 years and not a party to the within action. My business-address is One Walnut Creek.
Center, 100 Pringle Avenue, Suite 750, Walnut Creek, California 94596.
On the date listed below, I served the following document(s):

ANSWER TO PLAINTIFFS’ COMPLAINT

By transmitting a truc copy to: Those parties on the Lexis Nexis File & Serve electronic
service list

Via the following method:

x (By E-Mail): By personally transmitting a true copy thereof via electronic
mail to LexisNexis for e-mailing to all parties in this action per the electronic
service list.

(By Mail): This document, which is in an envelope addressed as stated
above, sealed with postage thereon fully prepaid and will be deposited with
the United States Postal Service this date in the ordinary course of business.

(By Fed-Ex): This document, which is in an envelope addressed as stated
above, sealed and all fees prepaid and deposited in the Federal Express
jocated on the first floor at 100 Pringle Avenue, Walnut Creek, California on
this date in the ordinary course of business.

(By Personal Service): By personally delivering a true copy thereof to the
office of the addresses attached by courier service.

I declare under penalty of perjury that the foregoing is true and correct, Executed on

this Jamnary ID 2011 at Walnut Creek, California.

“Se
Answer to Plaintiffs’ Complaint