Answer: PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al

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                                BRUCE MCLEOD, Bar No. 071906

bmeleod icebrown.com

FILICE BROWN EASSA & MCLEOD LLP

1999 Harrison Street, Suite 1800 ELECTRONICALLY
Oakland, Callfornia 94612-3520 FILED
lelephone: ‘ 3 L 0) 444-3131 Superior Court of California,
Paesimile: (S10) 839-7940, County of San Francisco
Aftiomeys for Defendant G OBES 29.2009 er
UNION OL COMPANY OF CALIPORNIA BY: ANNIE PASCUAL
(erroneously sued as Unocal Corporation} Deputy Clerk

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

PAUL VAN DEGRIFT, | Case-No. 275076
Plaintiff, DEFENDANT UNION ODL COMPANY
OF CALIFORNIA’S (ERRONEOUSLY
v. SUED AS UNOCAL CORPORATION)
ANSWER TO PLAINTIFFS*
ASBESTOS DEPENDANTS, etal. COMPLAINT FOR PERSONAL

INFURY- ASBESTOS
Defendants,

COMES NOW Delendant UNION OLL COMPANY OF CALIPORNLA ferrancously
sued as Unocal Corporation and hereinafter “LINION OIL”) and by way of response to plaintiff's
Complaint for personal injury ~ asbestas:(“Complaint™), and pursuant to the terms of California
Code of Crvil Procedure, section.43 1.30, generally denies cach and every, all and singular of the
allegations of the Complaint. UNION OH. further specifically denies that plaintiff has been
damaged in any sum or sums, whatsoever, or at all. and specifically denies that. it is lable to
plaindiff in any sum or sums, whatsoever, or atall, for. special. compensatory, punitive or.any
other type of damage.

UNION OF also asseris the following affirmative defenses.

0 COMPLAINT FOR PERS

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relief may be eranted.

First Affirmative Defense a
OF: ails to State a Valid Claim)

The Complaint, and cach cause of action stated therein, fills to state a claim for which

Second Affirmative Defense
(lack of Facts Necessary to. State Claim)
“Plaintill's Complaint and-each cause of action fails to al lege any facts specific to UNION.

OIL or any ‘oiber facts which could give ‘tise to liability and, thus, is filed i in violation of Bockrath

ich Chemical Co 41999) 21. Cal. aay and Code of Civil Procedure section 128.7.
wT hird Affirmative Defense. oe
(Venue)

This Courtis an improper venue for the adjudication of the matters alleged in the
Complaint, as to UNION OL. :
~ ~ Fourth Affirmative Defense

(urisdietion)

‘This Court lacks subject matter jurisdiction over the elaims plaineitt asserts in his
C omplaint. This Court also lacks personal jurisdiction over UNION OL.

Fifth Afi irmative Defense
| (Statute of Limitations)

Plaintiff's Conrpl aint, and each cause of action stated therein, is barred by the app! Hable ps
statutes of Liniiations, including but not Limited ta, © alifomia Code of Cly iL Procedure. sections.
3H, 335.4, 337. 1 337. 15, 358, 338.1, 339, 340. 2, 340.8, Ba 364, 3665, 366.2 and California
Commercial Code 92725, :
my : Sixth Affirmative Defense

(Ambiguous and Uncertain)

‘The Complaint, and each cause of action stated therein, is ambignous and uncertain.Seventh Affirmative Defense
{Laches)
Plaintiff has unreasonably delayed the commencement of this action and prejudiced
' UNION OTL whereby the Complaint, and cach cause of action therein. is barred by-the doctrine
| of laches.
Eighth Affi rmative Defense
(Ripeness/ Failure to Exhaust Remedies)
Plaintiff's ‘5 Complaint, and the purported causes of action stated therein, are prematurely
| brought and are not “pe for adjudication, in that plaintiff has not exhausted all cognizable legal
| and administrative remedies and prerequisites prior to instituting the instant action.
Ninth Affirmative Defense -
: (Waiver)
Plaintiff, by. his acts, conduct and omissions, has waived the claims allegedly siated j in the
| ¢ omplaint and each cause of'action ther
. Tenth Afficmative Defense
oe (Estopped

Plaintiff, by bis act 8. conduct and omissions, 1s estopped from asserting t the claims alleged

in the Complaint. / :
Eleventh Affirmative. Defense
: (Written Disclaimers and/or Exclusions}

Any-breach of warranty claim is barred by written disclaimers and/or exclusions on the

labels of the eubject products.
‘Twelfth Affirmative Defense

(Warranties Not Expressly Pri inted),

Plaintiff's claim for breach of warranty.is barred to the extent that plaintiff seeks recovery.

forthe breach of awarranty that was not expressly printed on the label supplied with the product.1 : _ Uirteenth Affirmative Defense

2 . (Failure te Give Notice of, Breach of Warranty)
3 . Plainttt, within a reasonable time. failed to give notice to UNION OIL of the claimed

_ 4 | breach of warranty alleged in.the Complaint in the manner.and form prescribed by Commercial
Sb Code $2607,
Fourteenth Affirmative Defense

{Lack of Privity) —

we eR

Plaintiff has failed te state.a cause.of action against UNION OIL for breach.of warranty,

oo) and the Complaint fails to allege privity’ between plaintiff and UNION OIL...

10 ” Fifteenth Affirmative Defense
“Uy - / “(Failure to Mitigate)
12 Plaintiff's damages, if any, are completely or.in part the product of plaintiff's failure ta

13 | mitigate as required. by law.

14. me Sixteenth Affirmative Defense.

15 5 : (Product Misuse)
le ae plain suffered | injuries a altributable to the use of any product referred to in p laintif's

17) Complaint, which injuries are expressly denied, the injuries were solely caused and attributable to
18 |) the measonable, unforeseeable-and inappropriate purpose and improper use which was made of

19 |) the product and the failure by-plainuff, or others, to follow label instructions.

20 oS Seventeenth Affirmative Defense
24 . S (Product Alteration/Modification)
a2 Plaintiff or others modified, altered, and changed the products, chemicals and compoun

24°) referred to in plaintiff's Complaint, so that such changes in said products, chemicals and

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24-) compounds proximately caused the injuries, loss and damages complained off iLany there were. i
28 _.\. Bighteenth Affirmative Defense
26 =: . (Contributory Fault of Plaintiffs)
The acts, conduct and/or omissions of plaintiff legally caused any injuries alleged in the

Complaint, which i injuries are denied } perein, and LINTON OF, hes no llability.to plaintiD, of in

OR PERSONAL INJURY:

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\the alternative, UNION OIL is tiable only in an amount equal to its proportionate fault.
Nineteenth Affirmative Defense a
(Assumption of Risk)
Plaintiff knowingly assumed the risk of any injury or damage alleged in the Complaint.
: ‘Twentieth Affirmative Defense
(Obvieus Danger)

UNION OTL owes no ality to P Jaintlff because plaintil Ws sallege injuries, if Panty. were

caused by an alleged condition, hazard or danger, if any, whieh was or should have been ‘obvious

wo him.
Twenty-F irst Affirmative Defense
(Fault of Othors/Apportionment of Fault - Proposition Si}
- Individuals and/or entities other than UNION. OU. are Jegally responsible, or otherwise al.
fault for any damages all eged in the Complaint, which damages are herein denied, and therefore,

in the event of any fab ity, apportionment of fault should be made as to all-such individuals

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and/orentities, by the court or jury, and UNION OIL req uests.a judgment and declaration of
indemnification and contribution against all other individuals ansd/or-entilies in accordance with
the apportionment of fault between them.
Twenty-Second Affirmative Defense
(Other Causes)
The alleged injuries and/or damages of which plaintiff complains arose in whole Or in. pan |
from. one or more other causes or circumstances, and not as a result of any exposure to any |
products manudactured, sold, distributed or supplied by UNION OL. |
Tweaty-Third Affirmative Defense |
¢ Idiosy yer atic and/or. Allergic Reaction)
‘The injuries sand damages, ifany, all leged by plaintifl in his Conplaint, was and were
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proximately caused by the idiosyncrasy of plaintiff's bodily composition and consequential

unforeseeable allergic reaction to.the product and/or one or more-of its components.a

‘Twenty-Fourth Affirmative Defense
(Substantial Factor)

_ The alleged exposure for which plaintiff seeks to hold U NION OIL liable was so minimal
asto be insuflicient to constitute.a substantial factor toa Feasonabl e dey "areas of medical probability
in the development of plaintift"s alleged injuries.

Twenty-Fifth Affirmative Defense
(Compliance With Applicable Laws and Standards) —

AU activities of UNION OIL, alleged in the Complaint, conformed fo applicable statutes,
governmental regulations and industry standards based upon the state of knowledge existing at
the time alleged in the Complaint.

‘Twenty-Sixth Affirmative. Defense :
(Licensed and Permitted by State of California and United States) —

The manufacture, sale and labeling of the products and chemicals al alleged in the
oonplaint, and each claim stated therein, and.al Lother acts of UNION CHL, concemiog such
products and chemicals, if any there were, were licensed and permitted by the State of California
and the United States,

. ‘Twenty-Seventh Affirmative Defense

- (Government Contractor Defense)

The content and manufacture of the alleged products was required fo comply with
specifications promulgated and approved by the United States Government. As'a result,
plaints” claims are barred by the government contractor defense.

 pwenty-Highth Aifirmative Defense
(Benefits Outweigh Risks)

The benefits of the products, chemicals and compounds. referred.to in plaintit?’s

Complaint, outweigh the risks of danger, if any. inherent in such product:
Twenty-Ninth Affirmative Defense

(Not Consumer Expectation Test}

“Plainsitt may not proceed ona consumer expectation theory because an ordinary1 |) consumer could not and.did not have any expectations about the properties or performance
2°) characteristics about.the products, chemicals.and compounds alleged in the Complaint. -

3 ’ Thirtieth Affirmative Defense

4 3 . (Na Safer Alternative Design) . . “ :

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No safer, feasible alternative design existed for the procucts, chemicals and compounds

6 | referred to.in plaintiff's Complaint.

9 . Thirty-First Affirmative Defense
8 . : Sophisticated. User/Learned Intermediary)
9 The products alleged in the Complaint were purchased, sold and/or used by a-

10 | sophisticated uiser/intermediary, such userintermediary having adequate wamings of any known

1 | or knowable risks involved in the use of said products and, for that reason, UNION OIL has no

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12 | duty to independently warn plaintiffs and their claims against UNION OFL are barred. |
13 - : ‘Thirty-Second Affirmative Defense |
. 4 . . (Balk Supplier}
“4s ‘The products alleged in the Coniptaint were sold in bulk to an intermediary and such |

16 | intermediary thereafter repackaged and labeled such products. For this reason, UNION O}L-has i

7 hone duty to independently warn plaintiff and his claims against UNION OL are barred.» :

8 . ‘Thirty-Third Affirmative Defense
9 . . (State-of-the-Art) :
20 Any injuries resulting from the use of the alleged products, which injuries are hereby |

21 | expressly denied, were not foreseeable to UNION OIL. given the state of knowledge and state-of t

. 224 the-art-at the time of the alleged exposures purportedly giving rise to plaintifi's injuries.

23 a : : Thirty-Fourth Affirmative Defense
24 _ {Not Scientifically Knowable)
_ 28 Any injuries resulting from-the use of the alleged products, which injuries are hereby

26 | expressly denied, were not scientifically known or knowable al the time of the alleged exposures

purportedly giving rise.to plaintiff's injuries,

TO COMPLA!PBEM.

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Thirty-Fifth Affirmative Defense
(Employer Negligence)

At the thne of the injuries alleged in the Complaint, plaintiff was emploved and entitled to
receive Workers’ Compensation benefits from his employer; plaintiff's employer was negligent in
and about the matters referred to in said Complaint, and such negligence on the part of said
employer proximately and concurrently contributed to the injuries and.to the loss and damage
complained of by plaintiff, if any there were; and by reason thereof, UNION O1L is entitled to set
off any such benefits received or to be received by plaintiffs against any judgment which may be
rendered in favor of plaintiff herein, pursuant to Wis v. Jackson (1961) 57 Cal.2d 57.

Thirty-Sixth Affirmative Defense
(Lack of Ownership)

UNION OIL did not own, control or operate.any of the premises at which plaintiff

claims exposure,
Thirty-Seventh Affirmative Defense
(No Duty to Employee of Ladependent Contractor)

UNION OIL has no duty to plaintiff as a.matter of law because plaintiff was employed
by an independent contractor and UNION OIL did not control and supervise plaintiff’s work-or
otherwise cause or contribute to plaintiff's alleged exposure. Moreover, plaintiff's emplayer

expressly agreed to take responsibility for plaintifi’s safety while working on UNION OIL’s

property.
Thirty-Kighth Affirmative Defense
(Ne Vicarious Liability)

UNION OIL is not vicariously liable for any of the acts or omissions by any
independent contractors as alleged in plaintiffs’ Complaint pursuant to Privette v. Superior
Conrt (1993) $ Cab. ath 689,

Thirty-Ninth Affirmative Defense

{Actions of Other Contractors)

UNION OIL is not liable for any dangerous or hazardous condition allegedly created by
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independent contractors, other than plaintiff's employer, which may have been working on its
property. because such independent contractors actually knew-or reasonably should have known
about the alleged hazard or condition which plaintiff alleges they created.
Fortieth Affirmative Defense
(Plaintiff's and Plaintiff's Employer's Negligence Per Se)

Plaintiff and plaintiff's employer failed te follow statutes, ordinances and/or safety orders
applicable to their conduct. As ‘a result, plaintiff and plaintiff's employer are negligent per se and
plaintifl’s claims against UNION OIL are barred on this ground.

Forty-First Affirmative Defense
(Special Employer)

To the extent plaintiff was retained by UNION OIL as.an employee or special employee at

the time of the alleged exposure which is the subject of this action, Workers Compensation

affords him with his exclusive remedy, thereby barring plaintiffs’ claims against UNION OD.

pursuant lo Labor Code sections 3600, ef. seq.

Forty-Second Affirmative Defense
(Ulrahaxardous Activity}
UNION. OLL was not engaged in any ultrahazardous activity or in the mamulacture,
formulation. packaging, labeling, distribution or sale of any product.
Forty-Third Affirmative Defense

(Punitive Damages ~ Procedural Due Process)

Plaintiff's Complaint, to the extent that it seeks punitive or exemplary damages pursuant
to California Civil-Code § 3294, violates UNION OIL’s right to procedural due process under the
Fourteenth Amendment of the United States Constitution and under the Constitution of the State

of California and therefore fails to state a cause of action for which punitive or exemplary

damages may be awarded.

Forty-Fourth Affirmative Defense

(Punitive Damages — Substantive Due Process}

The Complaint, to the extent that it seeks punitive or exemplary damages pursuant to1 | California Civil Code § 3294, violates UNION OIL’s right to substantive due process as provided

be

in the Fifth.and Fourteenth Amendments of the United States Constitution and ihe Constitution of
3 || the State of California, and therefore fails to state a cause of action for which punitive or

4 | exemplary damages.may be awarded.

5 Forty-Fifth Affirmative Defense

6 (Primary Right Doctrine/Res Judicata/Collateral Estoppel) |
7 The Complaint and each cause of action stated therein fuils to state a-claim for which

8 | relief can be granted hecause ft is barred by the primary right doctrine as well as the doctrines of

9 | res judicata and collateral estoppel.

0 Forty-Sixth Affirmative Defense
1 (Comity/Laws of Other States)
2 Under the rulc-of comity, based upon the interests of all parties and the involved states,

13 | California's interest in having its laws applied is non-existent or does not predominate and the
4 | interests of UNION OLL-and other states will be impaired if their laws are not applied; therefore

5 | the laws of other states apply to the parties and issues of this case:

6 Forty-Seventh Affirmative Defense
17 (indispensable Parties)
18 Indispensable parties have not been joined and it is necessary for these absent parties to be

19 | joined in order to obtain a just and final adjudication of all matters alleged in the Complaint.

20 Forty-Eighth Affirmative Defense
a (Adoption/Reservation)
22 UNION QL adopts and incorporates herein by reference all defenses which have been or

23 | will be asserted by other defendants and/or any third-party defendants in this action. In addition,
24 | UNION OIL reserves it rights to rely upon any and all other future defenses which become

25 | available or appear during discovery proceedings inthis action and hereby specifically reserves

26 | the right to amend its answer for the purposes of asserting any such affirmative defenses.1 Forty-Ninth Affirmative Defense

2 (Workers’ Compensation Exclusive Remedy)
3 ‘This answering defendant alleges that the Complaint is barred by the exclusivity
4 || provisions of the California Workers’ Compensation laws, including, ‘but not limited to, i
5 | California Labor Code $§ 3600, er seg. |
6 HEBEFPORE, UNION OIL prays for judgment as follows: |
7 i. That plaintifftake nothing by reason of the Complaint filed herein: |
& 2. That UNION OIL be awarded costs of suit incurred herein:
9 3. That if UNION O1L is found liable, the degree of responsibility and liability for |
0 the resulting daniages be determined, and that UNION OIL be liable only for the |
il portion of total damages in proportion to its total responsibility for-same; and
ig 4, For such other and further relief as the Court deems proper.
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14-1 Dated: December 22, 2009 FELICE BROWN EASSA & MCLEOD LLP |
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7 BRUCE M \ :

Attormmeys for Defendant
8 UNION OfL. COMPANY OF CALUPORNIA
(erroneously sued as Unocal Corporation)

PRE M.

su ennaye 285

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PROOF OF SERVICE
Paul Van Degrift v. Asbestos Defendants (B*P), et al.
San Francisco County Superior Court, Case No. 275076

Lam a citizen of the United States, over 18 years of age and not party to the within action.
{am employed in the county of Alameda; my business address is 1999 Harrison Street,

Eighteenth Floor, Oakland, California 94612-3541.

On the date Listed below, | served the within documents:

DEFENDANT UNLON ODL COMPANY OF CALIFORNIA'S (ERRONEOUSLY
SUED AS UNOCAL CORPORATION) ANSWER TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY ~ ASBESTOS, ET AL.

On all parties in this action, as addressed below, by causing a true copy thereof to be distributed

as follows:

ALL COUNSEL VIA ELECTRONIC TRANSMISSION
(SEE PLAINTIFF'S SERVICE LIST PROVIDED TO LEXIS NEXIS)

Teaused a rue and correct copy of such decument(s} to be

VIA ELECTRONIC electronically

‘ved on counsel of record by transmission

SERVICE to Lexis-Nexis File and Serve.

{declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct,

Executed on December,

GN OL COMPANY GF CALIFORNIA:

"7.2009 in Oakland, California.

NGRLS 34900 BEE G2I58S.1