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ELECTRONICALLY
LUCINDA L. STORM, ESQ. (State Bar No. 129541) FILED
KENNETH D. HOLLENBECK, ESQ. (State Bar No, 196131) Superior Court of California
LAW OFFICES OF LUCINDA L. STORM, ESQ. County of San Francisco
610 A Third Street
San Francisco, California 94107 con ki 88 2009 nk
Telephone: (415) 777-6990 BY: WILLIAM TRUPEK
Facsimile: (415) 777-6992 Deputy Clerk
Attorneys for Defendant,
PACIFIC GAS AND ELECTRIC COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
JOYCE JUELCH and NORMAN JUELCH, ) Case No.: CGC-09-275212
SR., )
) DEFENDANT PACIFIC GAS AND
Plaintiffs, } ELECTRIC COMPANY'S ANSWER TO
) COMPLAINT FOR PERSONAL INJURY
vs.
ASBESTOS DEFENDANTS (BP),
Defendants.
Ne
COMES NOW, defendant PACIFIC GAS AND ELECTRIC COMPANY (“PG&E”) and
answers the complaint of plaintiffs JOYCE JUELCH and NORMAN JUELCH (“plaintiffs”) on
file herein, as follows:
GENERAL DENIALS
Pursuant to the provisions of §431.30(d) of the California Code of Civil Procedure,
PG&E denies each and every, all and singular, generally and specifically, the allegations
contained in the complaint for damages, and further denies that by reason of any act or omission,
fault, carelessness or negligence upon its part or upon the part of its agents, servants, or
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employees, plaintiff sustained any injuries of any kind, or that PG&E is liable to the plaintiff in
any sum, sums or otherwise, or at all.
FIRST AFFIRMATIVE DEFENSE
1. PG&E alleges that said complaint and each cause of action therein fails to state
facts sufficient to constitute a cause of action against PG&E.
SECOND AFFIRMATIVE DEFENSE
2. PG&E alleges that the causes of action, if any, attempted to be stated and set forth!
in said complaint are barred by the provisions of § 340.2 of the Code of Civil Procedure of the
State of California.
THIRD AFFIRMATIVE DEFENSE
3. PG&E alleges that the causes of action, if any, attempted to be stated and set forth
in said complaint are barred by the provisions of § 338(d) of the Code of Civil Procedure of the
State of California.
FOURTH AFFIRMATIVE DEFENSE
4. PG&E alleges that the causes of action, if any, attempted to be stated and set forth!
in said complaint are barred by the doctrines of waiver, laches and/or estoppel.
FIFTH AFFIRMATIVE DEFENSE
5. PG&E alleges that plaintiff and others were negligent or otherwise at fault in and
about the matters referred to in said complaint, and that such negligence or other fault bars or
diminishes plaintiffs recovery, if any there be, against PG&E.
SIXTH AFFIRMATIVE DEFENSE
6. PG&E alleges that plaintiff was solely negligent in and about the matters alleged
in said complaint and that such negligence on the part of plaintiff was the sole proximate cause
of the injuries and damages complained of by plaintiff, if any there were.
SEVENTH AFFIRMATIVE DEFENSE
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7. PG&E alleges that plaintiff assumed the risk of the matters referred to in said
complaint, that plaintiff knew and appreciated the nature of the risk, and that plaintiff voluntarily
accepted the risk.
EIGHTH AFFIRMATIVE DEFENSE
8. PG&E alleges that if there was any negligence proximately causing the injuries or
damages sustained by plaintiff, such negligence, if any, was solely that of persons other than
PG&E.
NINTH AFFIRMATIVE DEFENSE
9. PG&E alleges that plaintiff was a sophisticated user of the products and processes
alleged and through instruction and training was aware of safety precautions to be taken but
ignored or failed to follow said instruction and training, thereby causing or contributing to the
injuries alleged, if any there were.
TENTH AFFIRMATIVE DEFENSE
10. PG&E alleges that if there was any negligence proximately causing the injuries or|
damages sustained by plaintiff, such negligence, if any, is collateral negligence, as that term is
used and defined in Restatement 2d Torts § 426 and derivative authority.
ELEVENTH AFFIRMATIVE DEFENSE
iL. PG&E alleges that said complaint, to the extent that it seeks exemplary or
punitive damages pursuant to California Civil Code § 3294, violates defendant’s right to
procedural due process under the Fourteenth Amendment of the United States Constitution, and
Article I, 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.
TWELFTH AFFIRMATIVE DEFENSE
12. PG&E alleges that said complaint, to the extent that it seeks punitive or
exemplary damages pursuant to California Civil Code § 3294, violates defendant’s right to
protection from “excessive fines” as provided in the Eighth Amendment of the United States
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Constitution and Article I, 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 the Constitution of the State of California, and therefore
fails to state a cause of action supporting the punitive or exemplary damages claimed.
THIRTEENTH AFFIRMATIVE DEFENSE
13. PG&E alleges that plaintiffs complaint and each cause of action therein fails to
state facts sufficient to support an award of punitive or exemplary damages against PG&E.
FOURTEENTH AFFIRMATIVE DEFENSE
14. PG&E alleges that the State of California’s judicially created definitions of
manufacturing defect and design defect and standards for determining whether there has been an.
actionable failure to warn are unconstitutional in that, among other things, they are void for
vagueness, an undue burden, and an impermissible effort to regulate in an area that has
previously been preempted by the federal government.
FIFTEENTH AFFIRMATIVE DEFENSE
15. PG&E alleges that certain other parties may be found negligent or legally
responsible or otherwise at fault for the damages alleged in plaintiff's Complaint. PG&E
therefore requests that in the event of a finding of any liability in favor of plaintiff or settlement
or judgment against PG&E, an apportionment of fault be made among all parties as permitted by
Liv. Yellow Cab Co. (1975) 13 Cal.3d 804 and American Motorcycle Assn. v. Sup. Ct. (1978)
20 Cal.3d 578, by the court or jury. PG&E further requests a judgment and declaration of partial
indemnification and contribution against all other parties or persons in accordance with the
apportionment of fault.
SIXTEENTH AFFIRMATIVE DEFENSE
16, PG&E alleges that the California punitive damages statute is unconstitutional in
that, among other things, it is void for vagueness, violative of equal protection, violative of due
process, an undue burden upon interstate commerce, and violative of freedom of contract.
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SEVENTEENTH AFFIRMATIVE DEFENSE
17. PG&E alleges that the provisions of California Civil Code §1431.2 are applicable
to the Complaint and each cause of action therein,
EIGHTEENTH AFFIRMATIVE DEFENSE
18. PG&E is not a successor, successor in business, successor in product line or a
portion thereof, assignee, predecessor, predecessor in business, predecessor in product line or a
portion thereof, parent 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 and other products containing said substance, and therefore is not liable as
such.
NINETEENTH AFFIRMATIVE DEFENSE
19. PG&E alleges that the injuries alleged in the complaint, if any, were proximately
caused by an. unforeseeable, superseding and intervening event or unavoidable accident beyond
the control of PG&E.
TWENTIETH AFFIRMATIVE DEFENSE
20. PG&E alleges that it was under no legal duty to warn plaintiff of the hazards
associated with the use of products containing asbestos. PG&E further alleges that the
manufacturers of said product, plaintiff and/or plaintiff's employer(s), union(s), or certain third
parties yet to be identified, were knowledgeable and sophisticated users and were in a better
position to warn and/or did warn plaintiff of the risks associated with using products containing
asbestos and, assuming a warning was required and none was given, it was the failure of such
persons or entities to give such a warning that was the proximate and/or superseding cause of
plaintiff's damages, if any.
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TWENTY-FIRST AFFIRMATIVE DEFENSE
21. PG&E alleges that the asbestos products, if any, for which it had any legal
responsibility were manufactured, patented, distributed or sold in accordance with contract
specifications imposed by its co-defendants, by the U.S. Government, by plaintiff's employers,
or by third parties yet to be identified.
TWENTY-SECOND AFFIRMATIVE DEFENSE
22. PG&E alleges that plaintiff has failed to join all persons and parties needed for a
just adjudication of this action.
TWENTY-THIRD AFFIRMATIVE DEFENSE
23. PG&E alleges that plaintiff misused and abused the products referred to in said
complaint, and failed to follow instructions or warnings, and that said misuse and abuse and
failure caused and contributed to the injuries and damages alleged if any there were.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
24, PG&E alleges that alleges that plaintiff's complaint, and each and every cause of
action thereof, is barred by the provisions of Labor Code § 3600 ef seq.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
25. PG&E alleges that plaintiff was employed by persons other than PG&E, and was
entitled to receive and did receive workers’ compensation benefits from said employer(s) or their
insurers, that said employer(s) were themselves negligent and careless in and about the matters
referred to in plaintiff's complaint, and that their negligence and carelessness proximately caused]
or contributed to the injuries and/or damages alleged in plaintiff's complaint. PG&E is therefore
entitled to set-off any such benefits received by plaintiff against any judgment rendered in
plaintiff's favor herein and said employer(s) are barred from any recovery by way of lien or
otherwise against PG&E in connection with this matter.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
26. PG&E alleges that plaintiff failed to mitigate his damages, if any there were, and
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that any recovery herein should be reduced accordingly.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
27, PG&E alleges that if plaintifi’s claims were already litigated and resolved in any
action, plaintiff’s claims in this action are barred by reason of primary right, res judicata, and
collateral estoppel doctrines, which prohibit splitting a single cause of action into successive
suits, in which additional recovery is sought for injuries for which plaintiff has already been
compensated,
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
28. PG&E alleges that if plaintiff was exposed to any product for which injury is
claimed at any PG&E facility, which PG&E denies, said exposure was so minimal and
insignificant so as to not constitute a substantial factor in causing the injuries and damages
alleged in plaintiff's complaint.
TWENTY-NINTH AFFIRMATIVE DEFENSE
29. PG&E alleges that it cannot be liable for the negligence or misconduct, if any, of
independent contractors at defendant’s premises, based on the doctrine of peculiar risk or any
other theory of liability, pursuant to Privette y. Superior Court (1993) 5 Cal.4® 6889, Smith v.
ACandS, Inc. (1994) 31 Cal.App.4" 77, Toland y. Sunland Housing Group, Inc. (1998) 18 Cal.
4° 253, Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, Hooker v. Department of
Transportation (2002) 27 Cal.4th 198, Kinsman y. Unocal Corp., 37 Cal.4" 659 (2005) and
Denbeste Transportation Inc., et al. v. Defendants and Respondents (2006), 032306 CAAPP2,
B173832.
THIRTIETH AFFIRMATIVE DEFENSE
30. PG&E alleges that any danger or defect on the premises was obvious or could
have been observed by plaintiff’s exercise of reasonable care.
THIRTY-FIRST AFFIRMATIVE DEFENSE
31. PG&E alleges that plaintiff's complaint has been filed in an improper forum
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and/or venue,
THIRTY-SECOND AFFIRMATIVE DEFENSE
32, PG&E alleges that plaintiff's claim is a claim that arose before the
commencement of defendant’s Chapter 11 bankruptcy case (In re Pacific Gas and Electric
Company, Case No. 01-30923 DM) and thus has been discharged pursuant to Section 1141(d) of |
the United States Bankruptcy Code (11 U.S.C. Sections 1101 et seq.) and by Order of the United
States Bankruptcy Court (see ¢.g., Grady y. A... Robins Co., Inc,. 839 F.2d 198 (4° Cir. 1988)
and that plaintiff is further enjoined from pursuing the instant litigation pursuant to such Order.
THIRTY-THIRD AFFIRMATIVE DEFENSE
33. PG&E alleges that plaintiff Norman Juelch explicitly waived any claim for loss of]
consortium against PG&E ina fully executed compromise and release and is therefore estopped
from maintaining such a cause of action against PG&E.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
34. PG&E will rely upon any and all further defenses that become available or appear
during discovery proceedings in this action, and specifically reserves the right to amend this
Answer for the purpose of asserting any such additional defenses.
WHEREFORE, this answering defendant prays that plaintiff take nothing by reason of
the complaint; that this answering defendant be award costs of suit herein, and such other and
further relief as the Court deems just; and, that if this answering defendant is found liable the
degree of its responsibility for the resulting damages be determined and that this answering
defendant be held liable only for that amount of the total damages proportionate to its
responsibility of the same.
‘DEFENDANT PACIFIC GAS AN RIC COMPANY’S ANSWER -8-DO OD ND WR woke
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Dated: July 9, 2009
LAW OFFICES OF LUCINDA L. STORM, ESQ.
By: /s/ Kenneth D. Hollenbeck
Lucinda L. Storm
Kenneth D. Hollenbeck
Attorneys for Defendant,
PACIFIC GAS AND ELECTRIC
COMPANY
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DECLARATION OF SERVICE
JOYCE JUELCH, et al.
y.
ASBESTOS DEFENDANTS. (BP), et al.
SFSC CASE NO. CGC 09 275212
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
I, the undersigned, hereby declare that I am a citizen of the United States, am over the age]
of 18 and not a party to the within action: my business address is 610A Third Street, San
Francisco, California 94107. On this date I served the following documents:
DEFENDANT PACIFIC GAS AND ELECTRIC COMPANY'S ANSWER TO.
COMPLAINT FOR PERSONAL INJURY
on the party(ies) identified below, through their attorneys of record, by placing true copies
thereof in sealed envelopes addressed as shown below by the following mean of service:
X__: Through Lexis-Nexis File and Serve ~ Through Lexis-Nexis File and Serve Pursuant t
San Francisco Superior Court General Order No, 158.
BRAYTON PURCELL
222 Rush Landing Road
P.O. Box 6169
Novato, CA 94948-6169
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct to the best of my knowledge.
EXECUTED on July 9, 2009 at San Francisco, California.
/s/ Eliza J. Thoresen
Eliza J. Thoresen
‘DEFENDANT PACIFIC GAS AN RIC COMPANY’S ANSWER -10-
Preview
DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF ELECTRONICALLY LUCINDA L. STORM, ESQ. (State Bar No. 129541) FILED KENNETH D. HOLLENBECK, ESQ. (State Bar No, 196131) Superior Court of California LAW OFFICES OF LUCINDA L. STORM, ESQ. County of San Francisco 610 A Third Street San Francisco, California 94107 con ki 88 2009 nk Telephone: (415) 777-6990 BY: WILLIAM TRUPEK Facsimile: (415) 777-6992 Deputy Clerk Attorneys for Defendant, PACIFIC GAS AND ELECTRIC COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION JOYCE JUELCH and NORMAN JUELCH, ) Case No.: CGC-09-275212 SR., ) ) DEFENDANT PACIFIC GAS AND Plaintiffs, } ELECTRIC COMPANY'S ANSWER TO ) COMPLAINT FOR PERSONAL INJURY vs. ASBESTOS DEFENDANTS (BP), Defendants. Ne COMES NOW, defendant PACIFIC GAS AND ELECTRIC COMPANY (“PG&E”) and answers the complaint of plaintiffs JOYCE JUELCH and NORMAN JUELCH (“plaintiffs”) on file herein, as follows: GENERAL DENIALS Pursuant to the provisions of §431.30(d) of the California Code of Civil Procedure, PG&E denies each and every, all and singular, generally and specifically, the allegations contained in the complaint for damages, and further denies that by reason of any act or omission, fault, carelessness or negligence upon its part or upon the part of its agents, servants, or DEFEN!DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF employees, plaintiff sustained any injuries of any kind, or that PG&E is liable to the plaintiff in any sum, sums or otherwise, or at all. FIRST AFFIRMATIVE DEFENSE 1. PG&E alleges that said complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against PG&E. SECOND AFFIRMATIVE DEFENSE 2. PG&E alleges that the causes of action, if any, attempted to be stated and set forth! in said complaint are barred by the provisions of § 340.2 of the Code of Civil Procedure of the State of California. THIRD AFFIRMATIVE DEFENSE 3. PG&E alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred by the provisions of § 338(d) of the Code of Civil Procedure of the State of California. FOURTH AFFIRMATIVE DEFENSE 4. PG&E alleges that the causes of action, if any, attempted to be stated and set forth! in said complaint are barred by the doctrines of waiver, laches and/or estoppel. FIFTH AFFIRMATIVE DEFENSE 5. PG&E alleges that plaintiff and others were negligent or otherwise at fault in and about the matters referred to in said complaint, and that such negligence or other fault bars or diminishes plaintiffs recovery, if any there be, against PG&E. SIXTH AFFIRMATIVE DEFENSE 6. PG&E alleges that plaintiff was solely negligent in and about the matters alleged in said complaint and that such negligence on the part of plaintiff was the sole proximate cause of the injuries and damages complained of by plaintiff, if any there were. SEVENTH AFFIRMATIVE DEFENSE MPANY’S ANSWER -2-DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF 7. PG&E alleges that plaintiff assumed the risk of the matters referred to in said complaint, that plaintiff knew and appreciated the nature of the risk, and that plaintiff voluntarily accepted the risk. EIGHTH AFFIRMATIVE DEFENSE 8. PG&E alleges that if there was any negligence proximately causing the injuries or damages sustained by plaintiff, such negligence, if any, was solely that of persons other than PG&E. NINTH AFFIRMATIVE DEFENSE 9. PG&E alleges that plaintiff was a sophisticated user of the products and processes alleged and through instruction and training was aware of safety precautions to be taken but ignored or failed to follow said instruction and training, thereby causing or contributing to the injuries alleged, if any there were. TENTH AFFIRMATIVE DEFENSE 10. PG&E alleges that if there was any negligence proximately causing the injuries or| damages sustained by plaintiff, such negligence, if any, is collateral negligence, as that term is used and defined in Restatement 2d Torts § 426 and derivative authority. ELEVENTH AFFIRMATIVE DEFENSE iL. PG&E alleges that said complaint, to the extent that it seeks exemplary or punitive damages pursuant to California Civil Code § 3294, violates defendant’s right to procedural due process under the Fourteenth Amendment of the United States Constitution, and Article I, 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. TWELFTH AFFIRMATIVE DEFENSE 12. PG&E alleges that said complaint, to the extent that it seeks punitive or exemplary damages pursuant to California Civil Code § 3294, violates defendant’s right to protection from “excessive fines” as provided in the Eighth Amendment of the United States MPANY’S ANSWER -3-DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF Constitution and Article I, 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 the Constitution of the State of California, and therefore fails to state a cause of action supporting the punitive or exemplary damages claimed. THIRTEENTH AFFIRMATIVE DEFENSE 13. PG&E alleges that plaintiffs complaint and each cause of action therein fails to state facts sufficient to support an award of punitive or exemplary damages against PG&E. FOURTEENTH AFFIRMATIVE DEFENSE 14. PG&E alleges that the State of California’s judicially created definitions of manufacturing defect and design defect and standards for determining whether there has been an. actionable failure to warn are unconstitutional in that, among other things, they are void for vagueness, an undue burden, and an impermissible effort to regulate in an area that has previously been preempted by the federal government. FIFTEENTH AFFIRMATIVE DEFENSE 15. PG&E alleges that certain other parties may be found negligent or legally responsible or otherwise at fault for the damages alleged in plaintiff's Complaint. PG&E therefore requests that in the event of a finding of any liability in favor of plaintiff or settlement or judgment against PG&E, an apportionment of fault be made among all parties as permitted by Liv. Yellow Cab Co. (1975) 13 Cal.3d 804 and American Motorcycle Assn. v. Sup. Ct. (1978) 20 Cal.3d 578, by the court or jury. PG&E further requests a judgment and declaration of partial indemnification and contribution against all other parties or persons in accordance with the apportionment of fault. SIXTEENTH AFFIRMATIVE DEFENSE 16, PG&E alleges that the California punitive damages statute is unconstitutional in that, among other things, it is void for vagueness, violative of equal protection, violative of due process, an undue burden upon interstate commerce, and violative of freedom of contract. IPANY'SANSWER SSS hnDO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF SEVENTEENTH AFFIRMATIVE DEFENSE 17. PG&E alleges that the provisions of California Civil Code §1431.2 are applicable to the Complaint and each cause of action therein, EIGHTEENTH AFFIRMATIVE DEFENSE 18. PG&E is not a successor, successor in business, successor in product line or a portion thereof, assignee, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent 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 and other products containing said substance, and therefore is not liable as such. NINETEENTH AFFIRMATIVE DEFENSE 19. PG&E alleges that the injuries alleged in the complaint, if any, were proximately caused by an. unforeseeable, superseding and intervening event or unavoidable accident beyond the control of PG&E. TWENTIETH AFFIRMATIVE DEFENSE 20. PG&E alleges that it was under no legal duty to warn plaintiff of the hazards associated with the use of products containing asbestos. PG&E further alleges that the manufacturers of said product, plaintiff and/or plaintiff's employer(s), union(s), or certain third parties yet to be identified, were knowledgeable and sophisticated users and were in a better position to warn and/or did warn plaintiff of the risks associated with using products containing asbestos and, assuming a warning was required and none was given, it was the failure of such persons or entities to give such a warning that was the proximate and/or superseding cause of plaintiff's damages, if any. MPANY’S ANSWER -3-DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF TWENTY-FIRST AFFIRMATIVE DEFENSE 21. PG&E alleges that the asbestos products, if any, for which it had any legal responsibility were manufactured, patented, distributed or sold in accordance with contract specifications imposed by its co-defendants, by the U.S. Government, by plaintiff's employers, or by third parties yet to be identified. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. PG&E alleges that plaintiff has failed to join all persons and parties needed for a just adjudication of this action. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. PG&E alleges that plaintiff misused and abused the products referred to in said complaint, and failed to follow instructions or warnings, and that said misuse and abuse and failure caused and contributed to the injuries and damages alleged if any there were. TWENTY-FOURTH AFFIRMATIVE DEFENSE 24, PG&E alleges that alleges that plaintiff's complaint, and each and every cause of action thereof, is barred by the provisions of Labor Code § 3600 ef seq. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. PG&E alleges that plaintiff was employed by persons other than PG&E, and was entitled to receive and did receive workers’ compensation benefits from said employer(s) or their insurers, that said employer(s) were themselves negligent and careless in and about the matters referred to in plaintiff's complaint, and that their negligence and carelessness proximately caused] or contributed to the injuries and/or damages alleged in plaintiff's complaint. PG&E is therefore entitled to set-off any such benefits received by plaintiff against any judgment rendered in plaintiff's favor herein and said employer(s) are barred from any recovery by way of lien or otherwise against PG&E in connection with this matter. TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. PG&E alleges that plaintiff failed to mitigate his damages, if any there were, and ‘DEFENDANT PACIFIC GAS AN RIC COMPANY’S ANSWER -6-DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF that any recovery herein should be reduced accordingly. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27, PG&E alleges that if plaintifi’s claims were already litigated and resolved in any action, plaintiff’s claims in this action are barred by reason of primary right, res judicata, and collateral estoppel doctrines, which prohibit splitting a single cause of action into successive suits, in which additional recovery is sought for injuries for which plaintiff has already been compensated, TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. PG&E alleges that if plaintiff was exposed to any product for which injury is claimed at any PG&E facility, which PG&E denies, said exposure was so minimal and insignificant so as to not constitute a substantial factor in causing the injuries and damages alleged in plaintiff's complaint. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. PG&E alleges that it cannot be liable for the negligence or misconduct, if any, of independent contractors at defendant’s premises, based on the doctrine of peculiar risk or any other theory of liability, pursuant to Privette y. Superior Court (1993) 5 Cal.4® 6889, Smith v. ACandS, Inc. (1994) 31 Cal.App.4" 77, Toland y. Sunland Housing Group, Inc. (1998) 18 Cal. 4° 253, Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, Hooker v. Department of Transportation (2002) 27 Cal.4th 198, Kinsman y. Unocal Corp., 37 Cal.4" 659 (2005) and Denbeste Transportation Inc., et al. v. Defendants and Respondents (2006), 032306 CAAPP2, B173832. THIRTIETH AFFIRMATIVE DEFENSE 30. PG&E alleges that any danger or defect on the premises was obvious or could have been observed by plaintiff’s exercise of reasonable care. THIRTY-FIRST AFFIRMATIVE DEFENSE 31. PG&E alleges that plaintiff's complaint has been filed in an improper forum ‘DEFENDANT PACIFIC GAS AN RIC COMPANY’S ANSWER -7-DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF and/or venue, THIRTY-SECOND AFFIRMATIVE DEFENSE 32, PG&E alleges that plaintiff's claim is a claim that arose before the commencement of defendant’s Chapter 11 bankruptcy case (In re Pacific Gas and Electric Company, Case No. 01-30923 DM) and thus has been discharged pursuant to Section 1141(d) of | the United States Bankruptcy Code (11 U.S.C. Sections 1101 et seq.) and by Order of the United States Bankruptcy Court (see ¢.g., Grady y. A... Robins Co., Inc,. 839 F.2d 198 (4° Cir. 1988) and that plaintiff is further enjoined from pursuing the instant litigation pursuant to such Order. THIRTY-THIRD AFFIRMATIVE DEFENSE 33. PG&E alleges that plaintiff Norman Juelch explicitly waived any claim for loss of] consortium against PG&E ina fully executed compromise and release and is therefore estopped from maintaining such a cause of action against PG&E. THIRTY-FOURTH AFFIRMATIVE DEFENSE 34. PG&E will rely upon any and all further defenses that become available or appear during discovery proceedings in this action, and specifically reserves the right to amend this Answer for the purpose of asserting any such additional defenses. WHEREFORE, this answering defendant prays that plaintiff take nothing by reason of the complaint; that this answering defendant be award costs of suit herein, and such other and further relief as the Court deems just; and, that if this answering defendant is found liable the degree of its responsibility for the resulting damages be determined and that this answering defendant be held liable only for that amount of the total damages proportionate to its responsibility of the same. ‘DEFENDANT PACIFIC GAS AN RIC COMPANY’S ANSWER -8-DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF Dated: July 9, 2009 LAW OFFICES OF LUCINDA L. STORM, ESQ. By: /s/ Kenneth D. Hollenbeck Lucinda L. Storm Kenneth D. Hollenbeck Attorneys for Defendant, PACIFIC GAS AND ELECTRIC COMPANY DEFEN!DO OD ND WR woke DR ae a Co aD DW ee RH NY K— SF COC HF DD YN Fe WB YF DECLARATION OF SERVICE JOYCE JUELCH, et al. y. ASBESTOS DEFENDANTS. (BP), et al. SFSC CASE NO. CGC 09 275212 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO I, the undersigned, hereby declare that I am a citizen of the United States, am over the age] of 18 and not a party to the within action: my business address is 610A Third Street, San Francisco, California 94107. On this date I served the following documents: DEFENDANT PACIFIC GAS AND ELECTRIC COMPANY'S ANSWER TO. COMPLAINT FOR PERSONAL INJURY on the party(ies) identified below, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shown below by the following mean of service: X__: Through Lexis-Nexis File and Serve ~ Through Lexis-Nexis File and Serve Pursuant t San Francisco Superior Court General Order No, 158. BRAYTON PURCELL 222 Rush Landing Road P.O. Box 6169 Novato, CA 94948-6169 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. EXECUTED on July 9, 2009 at San Francisco, California. /s/ Eliza J. Thoresen Eliza J. Thoresen ‘DEFENDANT PACIFIC GAS AN RIC COMPANY’S ANSWER -10-