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HASSARD BONNINGTON LLP
ROBERT M. HAMBLETT, ESQ., State Bar No. 111685
JON C. JAMES, ESQ., State Bar No. 184853
Two Embarcadero Center, Suite 1800 ELECTRONICALLY
San Francisco, California 94111-3941 FILED
Telephone: (415) 288-9800 Superior Court of California,
Fax: (44 5) 288-9802 County of San Francisco
Attorneys for Defendant JUN 26 2009
SEQUOIA VENTURES INC. GORDON PARK-LI, Clerk
BY: ANNIE PASCUAL
Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
JOYCE JUELCH and NORMAN JUELCH,) No. 275212
. DEFENDANT SEQUOIA VENTURES
Plaintiffs, INC.'S ANSWER TO COMPLAINT
FOR PERSONAL INJURY -
vs. ASBESTOS
ASBESTOS DEFENDANTS, ET AL.,
Defendants.
Defendant, Sequoia Ventures Inc. (hereinafter referred to as “SVI"),
hereby answers the unverified Complaint for Personal Injury - Asbestos (the
“Complaint’) on file herein as set forth below. The word “Plaintiff,” as used herein,
shall include the plural (..e., plaintiffs) as well as the singular (i.e., plaintiff) and the
feminine as well as the masculine, and shall also include Plaintiff's decedent as may
be appropriate to the particular context in which the word appears.
GENERAL DENIAL
Pursuant to California Code of Civil Procedure §431.30, SVI hereby
denies, generally and specifically, each and every allegation of the Complaint. In
addition, SVI denies that Plaintiff has been injured in any manner by the acts or
omissions of SVI or any person or entity for whose act it is liable, and further denies
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that SVI is legally responsible in any manner whatsoever for any damages that
Plaintiff may have suffered.
FIRST AFFIRMATIVE DEFENSE
As a first separate and distinct affirmative defense to the entire
Compiaint, and to each cause of action thereof, SVI alleges that Plaintiff has failed to
state facts sufficient to constitute a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
As a second separate and distinct affirmative defense, SVI alleges that
the entire Complaint, and each cause of action thereof, is barred by the limitations
and repose periods set forth in Sections 337(1)-(3); 337.1(a)-(f); 337.15(a)-(g);
338(a)-(K); 338.1; 339(1)}{3); 340(a}-{e); 340.2(a)-(c}; 343; 353.1; 355; and 361 of the
California Code of Civil Procedure, and all other applicable limitations periods,
including any limitations and/or repose periods of foreign jurisdictions that may be
determined during the course of discovery to be applicable.
THIRD AFFIRMATIVE DEFENSE
As a third separate and distinct affirmative defense, SVI alleges that the
entire Complaint, and each cause of action thereof, is barred because Plaintiff has
failed to comply with the provisions of California Code of Civil Procedure §411.35.
FOURTH AFFIRMATIVE DEFENSE
As a fourth separate and distinct affirmative defense to the entire
Compiaint, and each cause of action thereof, SVI alleges that Plaintiff has failed to
join all proper parties necessary for a full and just adjudication of the purported
causes of action in the Complaint, or alternatively, has misjoined the parties to this
action.
FIFTH AFFIRMATIVE DEFENSE
As a fifth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff lacks standing
to sue SVI.
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SIXTH AFFIRMATIVE DEFENSE
As a sixth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff was negligent
and acted unreasonably in or about the things alleged in the Complaint, which
conduct actually and proximately caused all or part of Plaintiff's claimed injuries and
damages, if any. Any damages which Plaintiff seeks to recover from SVI must be
reduced in proportion to the extent that Plaintiff's own negligence contributed to the
claimed injuries or damages.
SEVENTH AFFIRMATIVE DEFENSE
As a seventh separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that all or part of Plaintiff's
injuries or damages, if any, were actually and proximately caused by the conduct of
third parties, and not SVI. :
EIGHTH AFFIRMATIVE DEFENSE
As an eighth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SV! alleges that to the extent the
Complaint alleges "market share" liability, or "enterprise liability,” the Complaint fails
to state facts sufficient to constitute a cause of action against SVI.
NINTH AFFIRMATIVE DEFENSE
As a ninth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that at all times mentioned,
Plaintiff had knowledge of the risks of the matters set forth in the Complaint, as well
as the magnitude of the risks, and thereafter, knowingly, willingly and voluntarily
assumed those risks.
TENTH AFFIRMATIVE DEFENSE
As a tenth separate and distinct affirmative defense to the entire
Compiaint, and each cause of action thereof, SVI alleges that the entire Complaint,
and each cause of action thereof, is barred as against SVI by the provisions of
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DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
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Section 3600, et seg., of the California Labor Code.
ELEVENTH AFFIRMATIVE DEFENSE
As an eleventh separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that the entire Complaint,
and each cause of action thereof, is barred because the products and materials,
which Plaintiff alleges caused the alleged injuries and damages, conformed to
specifications and plans promulgated and approved by the United States government.
TWELFTH AFFIRMATIVE DEFENSE
As a twelfth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that the entire Complaint,
and each cause of action thereof, fails to state a cause of action against SVI because
the federal government has preempted the field of law applicable to the products
alleged to have caused Plaintiff's injuries, or the claims forming the basis for relief.
The granting of the relief prayed for in the Complaint would impede, impair, frustrate
and/or burden the effectiveness of federal law regulating the field and would violate
the Supremacy Clause contained in Article VI, Clause 2 of the United States
Constitution.
THIRTEENTH AFFIRMATIVE DEFENSE
As a thirteenth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SV! alleges that any danger or defect in
or about the premises was obvious or could have been observed by Plaintiff in the
exercise of reasonable care.
FOURTEENTH AFFIRMATIVE DEFENSE
As a fourteenth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that if Plaintiff sustained
injuries or damages attributable to the use of any product researched, tested, studied,
manufactured, fabricated, inadequately researched, designed, inadequately tested,
labeled, assembied, distributed, leased, bought, offered for sale, sold, inspected,
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serviced, installed, contracted for installation, repaired, marketed, warranted,
arranged, rebranded, manufactured for others, packaged, advertised and/or which
contained or lacked warnings by SVI, which allegations are expressly denied, the
injuries or damages were proximately caused by the unreasonable and unforeseeable
misuse, abuse, alteration, or improper maintenance of the product by Plaintiff or by
others.
FIFTEENTH AFFIRMATIVE DEFENSE
As a fifteenth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that all products and
materials researched, tested, studied, manufactured, fabricated, inadequately
researched, designed, inadequately tested, labeled, assembled, distributed, leased,
bought, offered for sale, sold, inspected, serviced, installed, contracted for installation,
repaired, marketed, warranted, arranged, rebranded, manufactured for others,
packaged, advertised, and/or which contained or lacked warnings by SVI were not
defective in any manner, as said products and materials conformed with the state-of-
the-art in existence at all times mentioned in the Complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
As a sixteenth separate and distinct affirmative defense to the entire
Compiaint, and each cause of action thereof, SVI alleges that the state of medical
and scientific knowledge and published literature and materials reflecting such state
of medical and scientific knowledge, at all times pertinent hereto, was such that SVI
neither knew, nor could have known, that the products in issue presented a
foreseeable risk of harm to Plaintiff in the course of normal and expected use of said
products.
SEVENTEENTH AFFIRMATIVE DEFENSE
As an seventeenth separate and distinct affirmative defense to the
entire Complaint, and each cause of action thereof, SVI alleges that the entire
Complaint, and each cause of action thereof, is barred on the grounds the products or
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materials referred to in the Complaint, if any, were not a substantial factor in bringing
about the injuries and damages alleged by Plaintiff.
EIGHTEENTH AFFIRMATIVE DEFENSE
As an eighteenth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVi alleges that the entire Complaint,
and each cause of action thereof, is barred as against SVI by the doctrine of waiver.
NINETEENTH AFFIRMATIVE DEFENSE
As a nineteenth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that any defect or danger in
or about the premises was trivial.
TWENTIETH AFFIRMATIVE DEFENSE
As a twentieth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff has improperly
split the causes of action and seeks fo maintain a duplicative lawsuit based on the
same facts and circumstances as a lawsuit previously filed.
TWENTY-FIRST AFFIRMATIVE DEFENSE
As a twenty-first separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff's Complaint
fails to state facts sufficient to entitle Plaintiff to an award of punitive or exemplary
damages against SVI.
TWENTY-SECOND AFFIRMATIVE DEFENSE
As a twenty-second separate and distinct affirmative defense to the
entire Complaint, and each cause of action thereof, SVi alleges that Plaintiff is not
entitled to an award of punitive or exemplary damages in this action. Such an award
would be unconstitutional unless SVI is accorded the safeguards provided under the
Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
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DEFENDANT SEQUOIA VENTURES INC.‘S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
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TWENTY-THIRD AFFIRMATIVE DEFENSE
As a twenty-third separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff unreasonably
delayed in bringing this action, without good cause, and thereby has prejudiced SVI
as a direct and proximate result of such delay; accordingly, Plaintiff's action is barred
by laches.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
As a twenty-fourth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that any loss, injury or
damage suffered or incurred by Plaintiff was proximately caused by the negligent or
willful acts or omissions of parties whom SV! neither controlled nor had the right to
control, and was not proximately caused by any acts, omissions or other conduct of
SVI.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
As a twenty-fifth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff failed to
exercise due diligence to mitigate his loss, injury or damages; accordingly, the
amount of damages to which Plaintiff is entitled, if any, should be reduced by the
amount of damages which would have otherwise been mitigated.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
As a twenty-sixth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that at the time of the
injuries alleged in the Complaint, Plaintiff was employed and was entitled to receive
workers’ compensation benefits from his employers; that all of Plaintiff's employers,
other than SVI, 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 Plaintiff, if any there were; and that by reason thereof SVI is entitled to set off any
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DEFENDANT SEQUOIA VENTURES INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
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such benefits received or to be received by Plaintiff against any judgment which may
be rendered in faver of Plaintiff.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
As a twenty-seventh separate and distinct affirmative defense to the
entire Complaint, and each cause of action thereof, SVI alleges that at the time of the
injuries alleged in the Complaint, all of Plaintiffs employers, other than SVI, 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 non-economic damages, complained of by Plaintiff, if
any there were; and that SVJ is not liable for said employers’ proportionate share of
Plaintiffs’ non-economic damages.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
As a twenty-eighth separate and distinct affirmative defense to the
entire Complaint, and each cause of action thereof, SVI alleges that at the time of the
injuries alleged in the Complaint, parties other than this SVI 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, compiained of by Plaintiff, if any there were; and
that SVI is not liable for said parties' proportionate share of Plaintiff's non-economic
damages.
TWENTY- NINTH AFFIRMATIVE DEFENSE
As a twenty-ninth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that at all times relative to
matters alleged in the Complaint, all of Plaintiff's employers, other than SVI, 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 Plaintiff's injuries, if any.
THIRTIETH AFFIRMATIVE DEFENSE
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As a thirtieth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that if Plaintiff has received,
or in the future may receive, workers’ compensation benefits from SVI 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 SVI is held Jiable to Plaintiff, any award
against SVI must be reduced by the amount of all such benefits received by Plaintiff.
THIRTY-FIRST AFFIRMATIVE DEFENSE
As a thirty-first separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff has received,
or in the future may receive, workers’ compensation benefits from SVI 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 Plaintiff is awarded damages against
SVI, SVI claims a credit against such award to the extent SVI is barred from enforcing
its rights to reimbursement against workers’ compensation benefits that Plaintiff has
received or may in the future receive.
THIRTY-SECOND AFFIRMATIVE DEFENSE
As a thirty-second separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that if Plaintiff has received,
or in the future may receive workers’ compensation benefits from SV under the Labor
Code of the State of California as a consequence of the alleged industrial injury
referred to in the Complaint, SVI demands repayment of any such workers’
compensation benefits in the event that Plaintiff recovers tort damages as a result of
the industrial injury allegedly involved here. Although SVI denies the validity of
Plaintiff's claims, in the event those claims are held valid and not barred by the statute
of limitations or otherwise, SVi asserts that cross-demands for money have existed
between Plaintiff and SVI and the demands are compensated, so far as they equal
each other, pursuant to California Code of Civil Procedure §431.70.
THIRTY-THIRD AFFIRMATIVE DEFENSE
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As a thirty-third separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SV1 alleges that at all times and places
mentioned in the Complaint, Plaintiff was not in privity of contract with SVI and said
lack of privity bars Plaintiffs recovery herein on any theory of warranty.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
As a thirty-fourth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that this court lacks subject
matter jurisdiction over the causes of action alleged in the Complaint.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
As a thirty-fifth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that as a result of Plaintiff's
unreasonable delay in bringing this action, without good cause therefor, in addition to
his other unreasonable acis and omissions, Plaintiff has waived some or all of the
claims stated or purportedly stated in the Complaint.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
As a thirty-sith separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that the activity alleged in
the Complaint, to the extent it was engaged in by SVI, if at all, was not ultrahazardous
under California law.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
As a thirty-seventh separate and distinct affirmative defense to the
entire Complaint, and each cause of action thereof, SV alleges that California Civil
Code §§1431.1— 1431.5, known as the Fair Responsibility Act of 1986, are applicable
to the present action and to certain claims therein, and based upon the principle of
comparative fault, the liability, if any, of SVI, shall be several only and shall not be
joint. SVI, if liable at all, shall be liable as to certain claims only for the amount of
non-economic damages allocated to SVI in direct proportion to SVI's percentage of
fault, if any, and a separate and several judgment shall be rendered against SVI for
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DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
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non-economic damages, if any.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
As a thirty-eighth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff cannot prove
any facts showing that the conduct of SVI was the cause in fact of any injuries or
damages suffered by Plaintiff as alleged in the Complaint.
THIRTY-NINTH AFFIRMATIVE DEFENSE
As a thirty-ninth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff cannot prove
any facts showing that the conduct of SVI was the proximate cause of any alleged
injuries or damages suffered by Plaintiff as alleged in the Complaint.
FORTIETH AFFIRMATIVE DEFENSE
As a fortieth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that if Plaintiff was injured
as alleged in the Complaint, those injuries were proximately caused by allergies,
sensitivities and idiosyncrasies particular to Plaintiff, not found in the general public
and unknown and unknowable to SVI. Such injuries, if any, were not reasonably
foreseeable to SVI.
FORTY-FIRST AFFIRMATIVE DEFENSE
As a forty-first separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that at all times relevant,
SVI's acts and omissions were in conformity with all government statutes and
regulations and all industry standards based upon the state of knowledge existing at
the time of the acts or omissions.
FORTY-SECOND AFFIRMATIVE DEFENSE
As a forty-second separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff directed,
ordered, approved and/or ratified SVI's conduct; therefore, Plaintiff is estopped from
At
DEFENDANT SEQUOIA VENTURES INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
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asserting the claims alleged in the Complaint which resuit from his own acts, conduct
or omissions.
FORTY-THIRD AFFIRMATIVE DEFENSE
As a forty-third separate and distinct affirmative defense to the entire
Compiaint, and each cause of action thereof, SVI refers to and incorporates herein by
reference each and every affirmative defense pleaded by the other parties to this
action the extent that such defenses are not inconsistent with the matters stated
herein.
FORTY-FOURTH AFFIRMATIVE DEFENSE
As a forty-fourth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that it presently has
insufficient knowledge or information on which to form a belief as to whether it may
have additional, as yet unasserted, defenses available. SV! reserves the right to
assert additional defenses in the event discovery indicates they would be appropriate.
FORTY-FIFTH AFFIRMATIVE DEFENSE
As a forty-fifth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff's Complaint
and each and every cause of action therein based upon warranty or breach thereof, is
barred as a result of failure of Plaintiffs to give notice required under Commercial
Code §2607(3)(a).
FORTY-SIXTH AFFIRMATIVE DEFENSE
Asa forty-sixth separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that Plaintiff was not in
privity with SVI and, therefore, may not rely upon the theory of any alleged breach of
express or implied warranty.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
As a forty-seventh separate and distinct affirmative defense to the entire
Complaint, and each cause of action thereof, SVI alleges that if SVI has purportedly
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been named or served in this action as a Doe Defendant, Plaintiff's attempt to do so
is invalid in that Plaintiff knew or should have known of the identity of SVI and of
Plaintiff's alleged causes of action against SVI at the time of the filing of the
Complaint.
WHEREFORE, SViI prays:
(1) _ That Plaintiff take nothing by his Complaint;
{2} That Judgment be entered in favor of SV;
(3) For recovery of SVI's costs 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: Junesd 6 , 2009
HASSARD BONNINGTON LLP
By: Das. Laggan b
Attorneys for Defendant
SEQUOIA VENTURES INC.
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DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
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: PROOF OF SERVICE
CASE NAME: JOYCE JUELCH, et al., v. ASBESTOS DEFENDANTS, et al.,
COURT: San Francisco County Superior Court
CASE NUMBER: 275212
1, the undersigned, hereby certify that | am a citizen of the United States, over
the age of eighteen years, and am not a party to the within action. | am employed in
the City and County of San Francisco, California, and my business address is Two
Embarcadero Center, Suite 1800, San Francisco, California 94111-3993. On the
date last written below, following ordinary business practice, | electronically served
the following document(s):
DEFENDANT SEQUOIA VENTURES INC.’S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
via LexisNexis File & Serve on the recipients designated on the Transaction Receipt
located on the LexisNexis File & Serve website.
1
| declare under penalty of perjury that the foregoing is true and correct and that
this Proof of Service was executed on June 26, 2009, at San Francisco, California.
4 C Daniel Black
Ae
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oo OO NN OO HO FF WO NH = = HASSARD BONNINGTON LLP ROBERT M. HAMBLETT, ESQ., State Bar No. 111685 JON C. JAMES, ESQ., State Bar No. 184853 Two Embarcadero Center, Suite 1800 ELECTRONICALLY San Francisco, California 94111-3941 FILED Telephone: (415) 288-9800 Superior Court of California, Fax: (44 5) 288-9802 County of San Francisco Attorneys for Defendant JUN 26 2009 SEQUOIA VENTURES INC. GORDON PARK-LI, Clerk BY: ANNIE PASCUAL Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION JOYCE JUELCH and NORMAN JUELCH,) No. 275212 . DEFENDANT SEQUOIA VENTURES Plaintiffs, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - vs. ASBESTOS ASBESTOS DEFENDANTS, ET AL., Defendants. Defendant, Sequoia Ventures Inc. (hereinafter referred to as “SVI"), hereby answers the unverified Complaint for Personal Injury - Asbestos (the “Complaint’) on file herein as set forth below. The word “Plaintiff,” as used herein, shall include the plural (..e., plaintiffs) as well as the singular (i.e., plaintiff) and the feminine as well as the masculine, and shall also include Plaintiff's decedent as may be appropriate to the particular context in which the word appears. GENERAL DENIAL Pursuant to California Code of Civil Procedure §431.30, SVI hereby denies, generally and specifically, each and every allegation of the Complaint. In addition, SVI denies that Plaintiff has been injured in any manner by the acts or omissions of SVI or any person or entity for whose act it is liable, and further denies Ae DEFENDANT SEQUOIA VENTURES INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:\Wdocs\HBMAIN\GG055\00958100385689,.DOC-62609= 50 Oo oa NN ODO OHO RF WwW NY that SVI is legally responsible in any manner whatsoever for any damages that Plaintiff may have suffered. FIRST AFFIRMATIVE DEFENSE As a first separate and distinct affirmative defense to the entire Compiaint, and to each cause of action thereof, SVI alleges that Plaintiff has failed to state facts sufficient to constitute a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE As a second separate and distinct affirmative defense, SVI alleges that the entire Complaint, and each cause of action thereof, is barred by the limitations and repose periods set forth in Sections 337(1)-(3); 337.1(a)-(f); 337.15(a)-(g); 338(a)-(K); 338.1; 339(1)}{3); 340(a}-{e); 340.2(a)-(c}; 343; 353.1; 355; and 361 of the California Code of Civil Procedure, and all other applicable limitations periods, including any limitations and/or repose periods of foreign jurisdictions that may be determined during the course of discovery to be applicable. THIRD AFFIRMATIVE DEFENSE As a third separate and distinct affirmative defense, SVI alleges that the entire Complaint, and each cause of action thereof, is barred because Plaintiff has failed to comply with the provisions of California Code of Civil Procedure §411.35. FOURTH AFFIRMATIVE DEFENSE As a fourth separate and distinct affirmative defense to the entire Compiaint, and each cause of action thereof, SVI alleges that Plaintiff has failed to join all proper parties necessary for a full and just adjudication of the purported causes of action in the Complaint, or alternatively, has misjoined the parties to this action. FIFTH AFFIRMATIVE DEFENSE As a fifth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff lacks standing to sue SVI. ~2- DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS: P:\Wedocs\HBMAIN\O0055\0G958:G0395889.DOC-62609= oo ON DO TH FF WO NH SIXTH AFFIRMATIVE DEFENSE As a sixth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff was negligent and acted unreasonably in or about the things alleged in the Complaint, which conduct actually and proximately caused all or part of Plaintiff's claimed injuries and damages, if any. Any damages which Plaintiff seeks to recover from SVI must be reduced in proportion to the extent that Plaintiff's own negligence contributed to the claimed injuries or damages. SEVENTH AFFIRMATIVE DEFENSE As a seventh separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that all or part of Plaintiff's injuries or damages, if any, were actually and proximately caused by the conduct of third parties, and not SVI. : EIGHTH AFFIRMATIVE DEFENSE As an eighth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SV! alleges that to the extent the Complaint alleges "market share" liability, or "enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action against SVI. NINTH AFFIRMATIVE DEFENSE As a ninth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that at all times mentioned, Plaintiff had knowledge of the risks of the matters set forth in the Complaint, as well as the magnitude of the risks, and thereafter, knowingly, willingly and voluntarily assumed those risks. TENTH AFFIRMATIVE DEFENSE As a tenth separate and distinct affirmative defense to the entire Compiaint, and each cause of action thereof, SVI alleges that the entire Complaint, and each cause of action thereof, is barred as against SVI by the provisions of 3. DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:\Wdocs\HBMAIN\00055\00958\00398688.DOC-62608= oo ON OD oO RB WwW DN Section 3600, et seg., of the California Labor Code. ELEVENTH AFFIRMATIVE DEFENSE As an eleventh separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that the entire Complaint, and each cause of action thereof, is barred because the products and materials, which Plaintiff alleges caused the alleged injuries and damages, conformed to specifications and plans promulgated and approved by the United States government. TWELFTH AFFIRMATIVE DEFENSE As a twelfth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that the entire Complaint, and each cause of action thereof, fails to state a cause of action against SVI because the federal government has preempted the field of law applicable to the products alleged to have caused Plaintiff's injuries, or the claims forming the basis for relief. The granting of the relief prayed for in the Complaint would impede, impair, frustrate and/or burden the effectiveness of federal law regulating the field and would violate the Supremacy Clause contained in Article VI, Clause 2 of the United States Constitution. THIRTEENTH AFFIRMATIVE DEFENSE As a thirteenth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SV! alleges that any danger or defect in or about the premises was obvious or could have been observed by Plaintiff in the exercise of reasonable care. FOURTEENTH AFFIRMATIVE DEFENSE As a fourteenth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that if Plaintiff sustained injuries or damages attributable to the use of any product researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembied, distributed, leased, bought, offered for sale, sold, inspected, -4- DEFENDANT SEQUOIA VENTURES INC.‘S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:\Wdocs\HBMAIN\00058\00858\0038568S.DOC-62608= oOo ON DW TH & WO NY serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or lacked warnings by SVI, which allegations are expressly denied, the injuries or damages were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or improper maintenance of the product by Plaintiff or by others. FIFTEENTH AFFIRMATIVE DEFENSE As a fifteenth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that all products and materials researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised, and/or which contained or lacked warnings by SVI were not defective in any manner, as said products and materials conformed with the state-of- the-art in existence at all times mentioned in the Complaint. SIXTEENTH AFFIRMATIVE DEFENSE As a sixteenth separate and distinct affirmative defense to the entire Compiaint, and each cause of action thereof, SVI alleges that the state of medical and scientific knowledge and published literature and materials reflecting such state of medical and scientific knowledge, at all times pertinent hereto, was such that SVI neither knew, nor could have known, that the products in issue presented a foreseeable risk of harm to Plaintiff in the course of normal and expected use of said products. SEVENTEENTH AFFIRMATIVE DEFENSE As an seventeenth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that the entire Complaint, and each cause of action thereof, is barred on the grounds the products or 5 DEFENDANT SEQUOIA VENTURES INC'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:\Wdocs\HBMAIN\OGOSS\00958\00385689.D0C-62609= 0D O09 ON ODO HO FF YO NY materials referred to in the Complaint, if any, were not a substantial factor in bringing about the injuries and damages alleged by Plaintiff. EIGHTEENTH AFFIRMATIVE DEFENSE As an eighteenth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVi alleges that the entire Complaint, and each cause of action thereof, is barred as against SVI by the doctrine of waiver. NINETEENTH AFFIRMATIVE DEFENSE As a nineteenth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that any defect or danger in or about the premises was trivial. TWENTIETH AFFIRMATIVE DEFENSE As a twentieth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff has improperly split the causes of action and seeks fo maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. TWENTY-FIRST AFFIRMATIVE DEFENSE As a twenty-first separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff's Complaint fails to state facts sufficient to entitle Plaintiff to an award of punitive or exemplary damages against SVI. TWENTY-SECOND AFFIRMATIVE DEFENSE As a twenty-second separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVi alleges that Plaintiff is not entitled to an award of punitive or exemplary damages in this action. Such an award would be unconstitutional unless SVI is accorded the safeguards provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. tit § DEFENDANT SEQUOIA VENTURES INC.‘S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS PAWdoes\HBMAIN\00088100958\00395689.DOC-62608= Co Oo ODN DO HO F WY DY TWENTY-THIRD AFFIRMATIVE DEFENSE As a twenty-third separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff unreasonably delayed in bringing this action, without good cause, and thereby has prejudiced SVI as a direct and proximate result of such delay; accordingly, Plaintiff's action is barred by laches. TWENTY-FOURTH AFFIRMATIVE DEFENSE As a twenty-fourth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that any loss, injury or damage suffered or incurred by Plaintiff was proximately caused by the negligent or willful acts or omissions of parties whom SV! neither controlled nor had the right to control, and was not proximately caused by any acts, omissions or other conduct of SVI. TWENTY-FIFTH AFFIRMATIVE DEFENSE As a twenty-fifth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages; accordingly, the amount of damages to which Plaintiff is entitled, if any, should be reduced by the amount of damages which would have otherwise been mitigated. TWENTY-SIXTH AFFIRMATIVE DEFENSE As a twenty-sixth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that at the time of the injuries alleged in the Complaint, Plaintiff was employed and was entitled to receive workers’ compensation benefits from his employers; that all of Plaintiff's employers, other than SVI, 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 Plaintiff, if any there were; and that by reason thereof SVI is entitled to set off any Te DEFENDANT SEQUOIA VENTURES INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:\Wdoes\HBMAIN\G0055'00958\00335688.DOC-62609= oo ON Oo oO F&F WY DN such benefits received or to be received by Plaintiff against any judgment which may be rendered in faver of Plaintiff. TWENTY-SEVENTH AFFIRMATIVE DEFENSE As a twenty-seventh separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that at the time of the injuries alleged in the Complaint, all of Plaintiffs employers, other than SVI, 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 non-economic damages, complained of by Plaintiff, if any there were; and that SVJ is not liable for said employers’ proportionate share of Plaintiffs’ non-economic damages. TWENTY-EIGHTH AFFIRMATIVE DEFENSE As a twenty-eighth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that at the time of the injuries alleged in the Complaint, parties other than this SVI 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, compiained of by Plaintiff, if any there were; and that SVI is not liable for said parties' proportionate share of Plaintiff's non-economic damages. TWENTY- NINTH AFFIRMATIVE DEFENSE As a twenty-ninth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that at all times relative to matters alleged in the Complaint, all of Plaintiff's employers, other than SVI, 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 Plaintiff's injuries, if any. THIRTIETH AFFIRMATIVE DEFENSE 8. DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:AWdocs\HBMAINI00055100958\00396689.DOC-62608a oOo aoa ND OHO BR WwW NY As a thirtieth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that if Plaintiff has received, or in the future may receive, workers’ compensation benefits from SVI 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 SVI is held Jiable to Plaintiff, any award against SVI must be reduced by the amount of all such benefits received by Plaintiff. THIRTY-FIRST AFFIRMATIVE DEFENSE As a thirty-first separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff has received, or in the future may receive, workers’ compensation benefits from SVI 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 Plaintiff is awarded damages against SVI, SVI claims a credit against such award to the extent SVI is barred from enforcing its rights to reimbursement against workers’ compensation benefits that Plaintiff has received or may in the future receive. THIRTY-SECOND AFFIRMATIVE DEFENSE As a thirty-second separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that if Plaintiff has received, or in the future may receive workers’ compensation benefits from SV under the Labor Code of the State of California as a consequence of the alleged industrial injury referred to in the Complaint, SVI demands repayment of any such workers’ compensation benefits in the event that Plaintiff recovers tort damages as a result of the industrial injury allegedly involved here. Although SVI denies the validity of Plaintiff's claims, in the event those claims are held valid and not barred by the statute of limitations or otherwise, SVi asserts that cross-demands for money have existed between Plaintiff and SVI and the demands are compensated, so far as they equal each other, pursuant to California Code of Civil Procedure §431.70. THIRTY-THIRD AFFIRMATIVE DEFENSE 9. DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P.\Wdocs\HBMAIN\00055\00958100395688, DOT-62609os oo OWN ODO oO B&H ND As a thirty-third separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SV1 alleges that at all times and places mentioned in the Complaint, Plaintiff was not in privity of contract with SVI and said lack of privity bars Plaintiffs recovery herein on any theory of warranty. THIRTY-FOURTH AFFIRMATIVE DEFENSE As a thirty-fourth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that this court lacks subject matter jurisdiction over the causes of action alleged in the Complaint. THIRTY-FIFTH AFFIRMATIVE DEFENSE As a thirty-fifth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that as a result of Plaintiff's unreasonable delay in bringing this action, without good cause therefor, in addition to his other unreasonable acis and omissions, Plaintiff has waived some or all of the claims stated or purportedly stated in the Complaint. THIRTY-SIXTH AFFIRMATIVE DEFENSE As a thirty-sith separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that the activity alleged in the Complaint, to the extent it was engaged in by SVI, if at all, was not ultrahazardous under California law. THIRTY-SEVENTH AFFIRMATIVE DEFENSE As a thirty-seventh separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SV alleges that California Civil Code §§1431.1— 1431.5, known as the Fair Responsibility Act of 1986, are applicable to the present action and to certain claims therein, and based upon the principle of comparative fault, the liability, if any, of SVI, shall be several only and shall not be joint. SVI, if liable at all, shall be liable as to certain claims only for the amount of non-economic damages allocated to SVI in direct proportion to SVI's percentage of fault, if any, and a separate and several judgment shall be rendered against SVI for ~10- DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS . , P:\Widocs\HBMAINI00055100958\00395689.DOC-62608oo ON DO TO Ff WO NY = we NM NH HY WH HM HB NMP KH B@ S&=& = 2 oa a= = me &® Uo o FOS S SBS RASBESBHR AS non-economic damages, if any. THIRTY-EIGHTH AFFIRMATIVE DEFENSE As a thirty-eighth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff cannot prove any facts showing that the conduct of SVI was the cause in fact of any injuries or damages suffered by Plaintiff as alleged in the Complaint. THIRTY-NINTH AFFIRMATIVE DEFENSE As a thirty-ninth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff cannot prove any facts showing that the conduct of SVI was the proximate cause of any alleged injuries or damages suffered by Plaintiff as alleged in the Complaint. FORTIETH AFFIRMATIVE DEFENSE As a fortieth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that if Plaintiff was injured as alleged in the Complaint, those injuries were proximately caused by allergies, sensitivities and idiosyncrasies particular to Plaintiff, not found in the general public and unknown and unknowable to SVI. Such injuries, if any, were not reasonably foreseeable to SVI. FORTY-FIRST AFFIRMATIVE DEFENSE As a forty-first separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that at all times relevant, SVI's acts and omissions were in conformity with all government statutes and regulations and all industry standards based upon the state of knowledge existing at the time of the acts or omissions. FORTY-SECOND AFFIRMATIVE DEFENSE As a forty-second separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff directed, ordered, approved and/or ratified SVI's conduct; therefore, Plaintiff is estopped from At DEFENDANT SEQUOIA VENTURES INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:\Wdocs\HBMAIN\00055\0085810039568. DOC-62608~~ oO © ON OO oT RB WwW DN asserting the claims alleged in the Complaint which resuit from his own acts, conduct or omissions. FORTY-THIRD AFFIRMATIVE DEFENSE As a forty-third separate and distinct affirmative defense to the entire Compiaint, and each cause of action thereof, SVI refers to and incorporates herein by reference each and every affirmative defense pleaded by the other parties to this action the extent that such defenses are not inconsistent with the matters stated herein. FORTY-FOURTH AFFIRMATIVE DEFENSE As a forty-fourth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that it presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unasserted, defenses available. SV! reserves the right to assert additional defenses in the event discovery indicates they would be appropriate. FORTY-FIFTH AFFIRMATIVE DEFENSE As a forty-fifth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff's Complaint and each and every cause of action therein based upon warranty or breach thereof, is barred as a result of failure of Plaintiffs to give notice required under Commercial Code §2607(3)(a). FORTY-SIXTH AFFIRMATIVE DEFENSE Asa forty-sixth separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that Plaintiff was not in privity with SVI and, therefore, may not rely upon the theory of any alleged breach of express or implied warranty. FORTY-SEVENTH AFFIRMATIVE DEFENSE As a forty-seventh separate and distinct affirmative defense to the entire Complaint, and each cause of action thereof, SVI alleges that if SVI has purportedly -42- DEFENDANT SEQUOIA VENTURES ING.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS P:\Wdocs\HBMAIN\G0055\00958\00395689.D0C-92609ono PN OP oO RF BO NHN = Ny NMHN NH NY NY NYDN @ B= BAB Bo ew Ba Ba Bn an 3 on @ om BO NH 8B Oo aN OO Oo Bw hw A DD been named or served in this action as a Doe Defendant, Plaintiff's attempt to do so is invalid in that Plaintiff knew or should have known of the identity of SVI and of Plaintiff's alleged causes of action against SVI at the time of the filing of the Complaint. WHEREFORE, SViI prays: (1) _ That Plaintiff take nothing by his Complaint; {2} That Judgment be entered in favor of SV; (3) For recovery of SVI's costs 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: Junesd 6 , 2009 HASSARD BONNINGTON LLP By: Das. Laggan b Attorneys for Defendant SEQUOIA VENTURES INC. ~13- DEFENDANT SEQUOIA VENTURES INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS PAWdoes\HBMAINI00055\00858100385889. DOC-62603Co oN DOD oO FF Ww DY = yh hw NY WO HY HY NY HB |= B& wo Bo mw ow oa 2 on aon Oo TF F WO NY = CO HO ON DB oO F&F WO BY = CO : PROOF OF SERVICE CASE NAME: JOYCE JUELCH, et al., v. ASBESTOS DEFENDANTS, et al., COURT: San Francisco County Superior Court CASE NUMBER: 275212 1, the undersigned, hereby certify that | am a citizen of the United States, over the age of eighteen years, and am not a party to the within action. | am employed in the City and County of San Francisco, California, and my business address is Two Embarcadero Center, Suite 1800, San Francisco, California 94111-3993. On the date last written below, following ordinary business practice, | electronically served the following document(s): DEFENDANT SEQUOIA VENTURES INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS via LexisNexis File & Serve on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. 1 | declare under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed on June 26, 2009, at San Francisco, California. 4 C Daniel Black Ae PAN dans\HRMAININONRSINNORAINADAAIS DOC