Answer: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                1 | Mark S. Kannett (S3N104572}
Angus M. MacLeod (SBN 99888)
2 Shahrad Milanfar (SBN 201126} ELECTRONICALLY
3 | BECHERER, KANNETT & SCHWEITZER FILED |
HI Street Superior Court of California,
4 1255 Powe County of San Francisco
Emeryville, CA 94608 JUN 24 2009
5 Telephone: (510) 658-3600 GORDON PARK-LI, Clerk
Facsimile: (510) 658-1151 BY: JUDITH NUNEZ
6 Deputy Clerk
Attorneys for Defendant
7 | SK Auto, Inc.
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 JOYCE JUELCH and NORMAN JUELCH, SR., CASE NO, CGC-09-275212
11 : :
Plaintiffs, ANSWER OF DEFENDANT CSK AUTO, INC.
12 TO COMPLAINT FOR PERSONAL INJURY
13 vs. AND LOSS OF CONSORTIUM ~ ASBESTOS
14 ASBESTOS DEFENDANTS (BP) As Reflected
on Exhibits B, B-1, C; and DOES 1-8500;
15 :
16 Defendants.
{
17 Defendant CSK Auto, inc. answers the Complaint for Personal Injury and Loss of
18 Consortium {“complaint”} as follows:
19 The use of a neuter pronoun in this answer includes feminine, masculine and plural
20 pronouns and any singular in this answer, referring to “plaintiff or "defendant," shall include
al the plural reference.
a2 1 Answering complaint, defendant denies every allegation contained therein and
23 denies that by reason of any act or omission by it, its agents, or independent contractors,
Becherer 24
Kannett & Plaintiff was injured or damaged in any sum, or at all.
Schweitzer
in 25 AFFIRMATIVE DEFENSES
Emayvile,ch 20 As affirmative defenses to each cause of action:
94608
SO OT 2 Plaintiff voluntarily assumed the risk of any injury or damage alleged in the

28 | complaint.

ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINTBecherer
Kannett &
Schweitzer

1255
Powell $1
Emeryville, CA
94608

510-658-3600

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on A a fF WN F&F OO OC eRe NHN DH FB WN KK OD

3. Plaintiff was careless and negligent in the matters alleged thereby causing and
contributing to any injury, damage or toss to plaintiff.

4, The complaint does not state facts sufficient to constitute a cause of action
against this defendant.

5. The incident complained of in the complaint was proximately caused by the
misuse and abuse which was made of the product referred to in the complaint.

6. Other parties and third persons not parties to this action were negligent or legally
responsible or otherwise at fault for the damages alleged in plaintiff's complaint. Defendant
therefore requests that in the event of a finding of any liability in favor of plaintiff or settlement
or judgment against this defendant, an apportionment of fault be made among all parties as

permitted by Liv. Yellow Cab Company and American Motorcycle Association v. Superior Court

by the court or jury. Defendant further requests a judgment and declaration of partial
indemnification and contribution against all other parties or persons in accordance with the
apportionment of fault.

7. Plaintiff failed to file the complaint during the applicable period of limitations so
that the complaint is barred by the provisions of Code of Civil Procedure sections 335.1, 337,
338 (a)(b)icHa)(h}{k}, 339(1}, 340.2(a}, 340.2{(c), 340.8(a)(b), 343, former section 340, 361 and
Commercial Code section 2725.

8. The alleged damage of plaintiff was solely attributable to the unreasonable,
unforeseeable, inappropriate and unintended use to which the product was subjected.

9. The provisions of Civil Code section 1431.2 are applicable to the complaint and
each cause of action therein.

10. Plaintiff his waived and are estopped and barred from alleging the matters set
forth in the complaint.

11. As a result of the matters alleged, plaintiff received workers’ compensation
benefits from an employer or its insurance carrier, or both, in an amount not yet definitely
ascertained and determined; that the total amount of these payments is not yet known to this

defendant and ieave of court will be sought to amend this answer when the amount is
2

ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINTBecherer
Kannett &
Schweitzer

940-658-3600

B

on aanst wow NY

determined; that by virtue of Labor Code Sections 3850 and 3852, and related sections, the
employer and its insurance carrier are subrogated to the rights of plaintiff for any and all monies}
may receive from this defendant up to the amount paid to plaintiff; that the plaintiff's injuries
arose as a direct and proximate result of the negligence and carelessness of plaintiff's employer,
and plaintiff's employer and its insurance carrier are not entitled to reimbursement for monies
paid or to be paid to plaintiff; and in the event of any judgment in favor of plaintiff against this
defendant, it should be reduced by the amounts paid or to be paid to plaintiff by the employer
or its insurance carrier.

12. Plaintiff consented to the acts and events set forth therein.

13. ‘The injuries of plaintiff were solely the responsibility of an intervening cause or
causes and/or the superseding acts of others and that this defendant's conduct, if any, was not
the proximate or legal cause of the alleged injuries.

14. ‘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 and an
undue burden upon interstate commerce, as well as an impermissible effort to regulate in an
area that has previously been preempted by the federal government.

15. Any claim for punitive or exemplary damages is barred by the United States|
Constitution, including the First, Fifth, Eighth and Fourteenth Amendments, and by the California
Constitution, including Article |, and California Civil Code section 3294 is invalid on its face or as
applied in this action.

16. The products were as safe as could be designed under the state of technology]
and medical and scientific knowledge existing at the time the products were manufactured.

17. The complaint is barred by the exclusivity provisions of the California Workers’
Compensation laws, including, but not limited to, California Labor Code sections 3600, et seq.

18. The complaint and each and every cause of action therein arose in another state
and by the laws thereof an action thereon cannot be maintained against this answering

defendant within said state by reason of the lapse of time, and therefore an action thereon
3

ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINTBecherer
Kannett &
Schweitzer

1285
Powell 1,
Emeryville, CA
94608

510-658-3600

B

aon anaust wn

cannot be maintained against this answering defendant in the State of California pursuant to}
California Code of Civil Procedure section 361.

19. Plaintiff has unreasonably delayed in the commencement of this action to the
prejudice of defendant, whereby the complaint and each cause of action therein are barred by
the doctrine of laches.

20. Defendant alleges that CSK Auto was under no legal duty to warn plaintiff of the}
hazard associated with the use of products containing asbestos. The purchasers of said
products, plaintiffs employers, unions or certain third parties yet to be identified, were
knowledgeable and sophisticated users and were in a better position to warn plaintiff of the risk
associated with using products containing asbestos and, assuming a warning was required, it
was the failure of such persons or entities to give such a warning that was the proximate and
superseding cause of plaintiff's damages, if any. In addition, plaintiff was and is a sophisticated
user who knew or should have known of the risk associated with using products containing
asbestos, if any. As such, CSK Auto cases did not have an obligation to warn a sophisticated user,
if any such warning was warranted.

WHEREFORE, this answering defendant prays as follows:

1 That plaintiff take nothing by reasen of the compiaint on file herein;

2. That CSK Auto, inc., be dismissed with an award of its costs of suit incurred
herein; and

3. For such other and further relief as the Court deems just and proper.
Dated: June_#472009 BECHERER, KANNETT & SCHWEITZER

ow Worth tl cay

Mark S. Kannett
Attorneys for Defendant CSK Auto, Inc.

4

ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINTBecherer
Kannett &
Schweitzer

1235
Powell St.
Emeryville, CA.
94608
‘510-658-3600

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YN NNN SF Be Be ee ee ee
Bonvf® COCO eBANA HB WN

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

L [MeoA LW oectare that } am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and | am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.

On Jun , 2009, | electronically served the document(s) via LexisNexis File & Serve
described as:

ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINT FOR PERSONAL
INJURY AND LOSS OF CONSORTIUM — ASBESTOS

on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve
website.

1 declare under penalty of perjury pursuant to the laws of the State wef California that the
foregoing is true and correct and that this declaration was executed on Jun Lif 2009, at
Emeryville, California.

$

ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINT