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

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                                Selman Breitman Lip
ATTORNEYS AT LAW

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870895.1 1037.27078

MARK A. LOVE (SBN 162028)
AARON D. COSTA (SBN 209621)

SELMAN BREITMAN LLP ELECTRONICALLY
33 New Montgomery, Sixth Floor
San Francisco, CA 94105-4537 FILED

Superior Court of California,
Telephone: (415) 979-0400 County of San Francisca

Facsimile: (415) 979-2099

colt 22.2099,
Attorneys for Defendant | “LI, Cleri
PEP BOYS MANNY MOE & JACK OF BY: VANESSA ‘Heputy clerk
CALIFORNIA

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION)

PAUL VAN DEGRIFT, CASE NO, 275076
Plaintiff, ANSWER TO PLAINTIFF'S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

Defendant PEP BOYS MANNY MOE & JACK OF CALIFORNIA ("defendant")
hereby answers the complaint on file herein, on its own behalf and on behalf of no other
entity, as follows :

1. Pursuant to the provisions of Code of Civil Procedure section 431.30(d),
defendant denies each and every allegation contained in the complaint, and the whole
thereof, and in particular, denies that plaintiffs were injured and damaged in the manner or
sum alleged, or in any other manner or sum whatsoever or at all.

FIRST AFFIRMATIVE DEFENSE
2. Neither the complaint nor any purported causes of action alleged therein

state facts sufficient to constitute a cause of action as against defendant.

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SECOND AFFIRMATIVE DEFENSE
3. The complaint and any purported causes of action alleged therein are
uncertain, vague and ambiguous.
THIRD AFFIRMATIVE DEFENSE
4. Any loss, injury or damage incurred by plaintiffs was proximately caused by
the negligent or willful acts or omissions of parties whom defendant neither controlled nor
had the right to control, and was not proximately caused by any acts, omissions or other
conduct of defendant.
FOURTH AFFIRMATIVE DEFENSE
5. The tortious conduct alleged in the complaint as to defendant, if any, was not
a substantial factor in bringing about the alleged injuries, and therefore was not a
contributing cause, but was superseded by tortious and/or intentional conduct by one or
more third parties whose misconduct was an independent, intervening, sole and proximate
cause of plaintiffs alleged injuries or damages, if any.
FIFTH AFFIRMATIVE DEFENSE
6. At all relevant times, plaintiffs knowingly, voluntarily and unreasonably
undertook to encounter each of the risks and hazards alleged in the complaint, and this
assumption of said risks bars any recovery herein, or diminishes plaintiff's recovery to the
extent that plaintiff's damages are attributable to their assumption of risk.
SIXTH AFFIRMATIVE DEFENSE
7. The alleged defect and/or dangerous condition, if any, was so trivial in nature
that it could not be considered a dangerous and/or a defective condition, thus barring any
action by the plaintiff against defendant.
SEVENTH AFFIRMATIVE DEFENSE
8. Plaintiff's right to recovery from defendant is limited pursuant to Civil Code
sections 1431.1, et seq. ("Proposition 51").
EIGHTH AFFIRMATIVE DEFENSE

9. Plaintiffs named defendant in the complaint without reasonable identification

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of what acts, if any, defendant participated in, and without a reasonable investigation.
Pursuant to Code of Civil Procedure section 128.7, defendant requests reasonable
expenses, including attorneys’ fees incurred by defendant as a result of the maintenance by
plaintiffs of this bad faith action.

NINTH AFFIRMATIVE DEFENSE

10. | The complaint, and each cause of action therein, is barred by the applicable
statute of limitations including but not limited to Code of Civil Procedure sections 335.1,
337.1, 337.15, 338, 339, 340, 340.2, 343, 353 and 361, and Commercial Code section
2725.

TENTH AFFIRMATIVE DEFENSE

ll. Plaintiff unreasonable delayed in bringing this action, without good cause
therefore, and thereby has prejudiced defendant as a direct and proximate result of such
delay, such that this action is barred by the Doctrine of Laches and by Code of Civil
Procedure sections 583.110 et seq.

ELEVENTH AFFIRMATIVE DEFENSE

12. Plaintiff was negligent in and about the matters alleged in the complaint and
this negligence proximately caused, in whole or in part, the damages alleges in the
complaint. In the event plaintiff is entitled to any damages, the amount of these damages
should be reduced by the comparative fault of plaintiff and any person whose negligent
acts Or omissions are imputed to plaintiff.

TWELFTH AFFIRMATIVE DEFENSE

13. Plaintiff is barred from recovery herein by reason of the fact that, at all
relevant times, plaintiff was not using defendant's products for the purpose intended or in
the manner intended, and said conduct on the part of plaintiff constituted an unforeseeable
misuse of said products.

THIRTEENTH AFFIRMATIVE DEFENSE
14. Plaintiff's injuries and damages, if any, were caused wholly or in part by

post-distribution modifications, alterations or other changes in some manner in defendant's

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products, and such modifications, alterations or changes were not performed by,
participated in, consented to, or approved by defendant, or any agent or employee of
defendant, thus barring plaintiff's recovery herein.
FOURTEENTH AFFIRMATIVE DEFENSE

15. Products distributed and/or sold by defendant were manufactured and/or
distributed in strict accordance with specifications supplied by persons or entities other
than defendant. Any defects in said products were caused by deficiencies in the
specifications supplied to the manufacturer of said products, which deficiencies were
neither known to defendant nor discoverable by defendant with the exercise of reasonable
care.

FIFTEENTH AFFIRMATIVE DEFENSE

16. The complaint, and each cause of action alleged therein, is barred by the
equitable doctrines of waiver and estoppel.

SIXTEENTH AFFIRMATIVE DEFENSE

17. Plaintiff's employers were sophisticated users of defendant's products and
said employers provided said products to their employees in a negligent, careless, and
reckless manner which constitutes an intervening and superseding cause of plaintiff's
injuries, if any.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. Defendant denies any and all liability to the extent that plaintiff asserts
defendant's alleged liability as a successor, successor in business, successor in product line,
or a portion thereof; assign, predecessor, predecessor in business, predecessor in product
line, or a portion thereof; parent, alter ego, subsidiary, wholly or partially owned by or the
whole or partial owner of or member in any entity that plaintiff alleges were the proximate
or legal cause and/or contributed to plaintiff's injuries or damages.

EIGHTEENTH AFFIRMATIVE DEFENSE
19. Any recovery against defendant is barred because products sold and/or

distributed by defendant were manufactured in compliance with the specifications

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established by the United States government and/or an agency, department or division
thereof, and that the United States government's knowledge of any and all health hazards
was equal to, if not greater than, that of defendant, who was a contractor to the United
States government.

NINETEENTH AFFIRMATIVE DEFENSE

20. Plaintiff is are barred from recovery in that all products distributed and/or
sold by defendant were in conformity with the existing "state of the art" of reasonably
acceptable medical, scientific, and industrial knowledge, art, and practice and, as a result,
these products were not defective in any manner, and as such, defendant is not liable for
plaintiff's injuries and damages, if any.

TWENTIETH AFFIRMATIVE DEFENSE

21. Plaintiff's recovery, if any, from defendant must be reduced by the amount of
any workers’ compensation benefits paid by or on behalf of plaintiff's employers, as the
negligence or other tortious conduct of said employers caused and contributed to plaintiff's
injuries and damages, if any.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22. Plaintiff is barred from any recovery herein as against defendant to the extent
that, pursuant to Labor Code section 3600, et seqg., plaintiff's exclusive remedy as against
defendant with respect to the incident and damages complained of would be and is
pursuant to the workers’ compensation laws of the State of California and subject to
resolution only in a workers’ compensation forum.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. Defendant is entitled to a set-off of all amounts paid to the plaintiff by other
defendants pursuant to pro tanto settlements.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. Defendant did not know and had no reasonable grounds for knowing, at the
time any of its products containing asbestos were distributed and/or sold, at the time the

plaintiff was allegedly exposed thereto, or at any other time, that any of said products

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could be hazardous, and further, defendant had no reason to know or believe that any of its
products could be hazardous, in that any asbestos fibers contained in its products are
locked in, encapsulated, and firmly bound and therefore do not release dangerous amounts
of asbestos fiber.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Plaintiff was a sophisticated user of defendant's products, and knew or
should have known of the risks, if any, associated with defendant's products, thereby
relieving defendant of any duty to warn plaintiff of any such risks.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. Neither the complaint nor any causes of action therein state facts sufficient to

entitle plaintiffs to an award of punitive damages against defendant.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. The imposition of punitive damages would deprive defendant of its property
without due process of law under the Constitutions of both the United States and
California, would violate the United States Constitution's prohibition against laws
impairing the obligation of contracts and would constitute a criminal fine or penalty.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. The complaint, and each cause of action alleged therein, is barred by the
doctrines of res judicata.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. Any loss, injury or damage incurred by plaintiff was proximately caused by
the negligent or willful acts or omissions of plaintiff's employers whom defendant neither
controlled nor had the right to control, and such tortuous conduct by plaintiff's employers
was a superceding and intervening cause of plaintiff's injuries and damages, if any.

TWENTY-NINTH AFFIRMATIVE DEFENSE
30. This Court lacks jurisdiction over this action pursuant to Code of Civil

Procedure section 410.30.

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THIRTIETH AFFIRMATIVE DEFENSE
31. Plaintiff has failed to join all proper parties, or alternatively, has misjoined
the parties to this action.
THIRTY-FIRST AFFIRMATIVE DEFENSE
32. The complaint alleges a "market share" or “enterprise" theory of liability, it
fails to state facts sufficient to constitute a cause of action against defendant.

THIRTY-SECOND AFFIRMATIVE DEFENSE

33. The Defendant did not and does not have a substantial percentage of the
market for the asbestos-containing products which allegedly caused plaintiffs injuries.
Therefore, Defendant may not be held liable to plaintiffs based on this Defendant's alleged
percentage share of the applicable market.

THIRTY-THIRD AFFIRMATIVE DEFENSE

34. Defendant alleges that if it is determined to be liable to plaintiff, such
liability is based on conduct which is passive and secondary to the active and primary
wrongful conduct of other defendants to this action. Defendant is, therefore, entitled to
total, equitable indemnity from such other defendants.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

35. Plaintiff, at all times mentioned, was not in privity of contract with defendant
and that said lack of privity bars any recovery by plaintiff against defendant under any
theory of breach of warranty.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

36. The complaint, and each cause of action thereof, fails to state a cause of
action against defendant because the federal government has preempted the field of law
applicable to the products alleged to have caused plaintiff's injuries. 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.

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THIRTY-SIXTH AFFIRMATIVE DEFENSE
37. Defendant presently has insufficient knowledge or information upon which
to form a belief as to whether it may have additional, as yet unknown, affirmative
defenses. Defendant reserves herein the right to assert additional affirmative defense in the
event discovery indicates it would be appropriate.

WHEREFORE, having fully responded to the subject complaint, this defendant

prays:
L. That plaintiffs take nothing by reason of their complaint on file herein;
2 That defendant has judgment of dismissal;
3. For reasonable attorneys’ fees and costs incurred herein; and
4 For such other and further relief as the court may deem just and proper.
DATED: May 22, 2009 SELMAN BREITMAN LLP

By:_/S/_ MARK A. LOVE
MARK A. LOVE
AARON D. COSTA
Attorneys for Defendant
PEP BOYS MANNY MOE & JACK OF CALIFORNIA

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