Preview
Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92191
ROGER M. MANSUKHANI, ESQ. (SBN 164463)
SHARI 1. WEINTRAUB, ESQ. (SBN 195250) ELECTRONICALLY
TATIANA OSEROFF, ESQ. (SBN 246705) FILED
GORDON & REES LLP Superior Court of California,
101 W. Broadway, Suite 2000 County of San Francisco
San Diego, CA 92101
Telephone: (619) 696-6700 APR 20 2009
GORDON PARK-LI, Clerk]
BY: ALISON AGBAY
Deputy Clerk
Facsimile: (619) 696-7124
Attorneys for Defendant
VACA VALLEY AUTO PARTS
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PAUL VAN DEGRIFT CASE NO. CGC-09 275076
Plaintiff
DEFENDANT VACA VALLEY AUTO
PARTS’ ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
vs.
ASBESTOS DEFENDANTS (BP) As
Reflected on Exhibits B, B-1, C, and DOES 1-
8500; and SEE ATTACHED LIST.
Complaint filed: 02/18/09
Defendants.
COMES NOW defendant, VACA VALLEY AUTO PARTS, and in answer to Plaintiff
PAUL VAN DEGRIFT’s complaint on file herein, and each and every cause of action allegedly
set forth therein, answers, alleges and denies as follows:
IL
This answering defendant denies cach and every, all and singular, generally and
specifically, the allegations contained in the complaint, and each and every cause of action
allegedly set forth therein, as they may apply to this answering defendant.
fil
Tit
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DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASRE TAGGorden & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92105
Ih.
Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was legally responsible in some manner
for the circumstances and happenings as alleged therein, or at all, and denies that plaintiff has
been damaged in the manner set forth in said unverified complaint and each and every cause of
action allegedly set forth therein.
TH.
Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was negligent and/or careless in any
respect whatsoever, as alleged therein, or at all, and denies that plaintiff has been damaged in the
manner set forth in said unverified complaint and each and every cause of action allegedly set
forth therein.
FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and causes of action therein
fail to state facts sufficient to constitute a cause of action against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
AS AND FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that plaintiff was itself careless and negligent in
and about the matters referred to in the complaint and that such negligence and carelessness on
the part of the plaintiff's proximately caused and contributed to the damages complained of, if
any there were.
THIRD AFFIRMATIVE DEFENSE
AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff knew, or in the exercise of
ordinary care, should have known of the risks and hazards involved in the undertaking in which
plaintiff engaged, but nevertheless and with full knowledge of these things, did fully and
voluntarily consent to assume the risks and hazards involved in the undertaking.
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
AgRE TASGordon & Rees LLP
101 West Broadway, Suite 2090
San Diego, CA 92101
FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff was itself solely and totally
negligent in and about the matters referred to in the complaint and that such negligence and
carelessness on the part of the plaintiff proximately amounted to One Hundred Percent (100%) of
the negligence involved in this case and was the sole cause of the injuries and damages
complained of, if any there were.
FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons without this defendant's knowledge and approval
redesigned, modified, altered, and used this defendant's products contrary to instructions and
contrary to the custom and practice of the industry. This redesign, modification, alteration, and
use so substantially changed the product's character that if there was a defect in the product --
which is specifically denied -- such defect resulted solely from the redesign, modification,
alteration, or other such treatment or change and not from any act or omission by this defendant.
Therefore, said defect, if any, was created by plaintiff and/or other persons, as the case may be,
and was the direct and proximate cause of the injuries and damages, if any, that plaintiff
allegedly suffered.
SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that if there is any negligence or liability of any
of the parties named herein, it is the sole and exclusive negligence and. liability of the other
defendants, and not of this answering defendant.
SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant is not liable for any injuries alleged in the complaint
iti
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DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASRE TASGordon & Rees LLP
101 West Broadway, Suite 2000
San Diege, CA 92101
because defendant’s conduct falls within the purview and protection of the government
contractor defense.
EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at the time of the injuries alleged in the
complaint plaintiff was employed and were entitled to and did receive workers’ compensation
benefits from said employer. This defendant is informed and believes, and on the basis of said
information and belief alleges that. if the conditions as alleged in the plaintiffs complaint arc
found to exist, the plaintiff's employer was negligent and careless in and about the matters
referred to in said complaint and that said negligence on the part of the employer proximately
caused or contributed to the injuries and damages, if any, complained of by the plaintiff, and
further, that the plaintiff's employer assumed the risk of injury to the plaintiff, if any there were,
in that at the time and place of the incident such conditions, if any, were open and apparent and
were fully known to the plaintifi’s employer; and that by reason thereof, this defendant is entitled
to set off any compensation benefits received or to be received by the plaintiff against any
judgment which maybe rendered in favor of the plaintiff herein.
NINTH AFFIRMATIVE DEFENSE
AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and the causes of action
therein are barred by the statutes of limitation and repose of California and any other relevant
state, including but not limited to the limitations set forth under sections 340.2 and 361 of the
Code of Civil Procedure of the State of California.
TENTH AFFIRMATIVE DEFENSE
AS AND FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SATD
COMPLAINT, this answering defendant alleges that the plaintiff unreasonably delayed in
bringing this action against defendant and that such delay substantially prejudiced this answering
defendant. Therefore, this action is barred by the doctrine of laches.
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ACRE TAGGordon & Rees LLP
161 West Broadway, Suite 2006
San Diego, CA 92101
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ELEVENTH AFFIRMATIVE DEFENSE
AS AND FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the complaint and the causes of]
action therein fail to state facts sufficient to constitute a cause of action against this answering
defendant pursuant to sections 3600, et seq., of the California Labor Code.
TWELFTH AFFIRMATIVE DEFENSE
AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that plaintiffs employer was contributorily
negligent and careless in and about the matters alleged in the complaint, and that such negligence
and carelessness was a proximate cause of any injuries and damages suffered by plaintiff, if any
there were.
THIRTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff's employer voluntarily and
knowingly entered into and engaged in the operations, acts and conduct alleged in said
complaint, and voluntarily and knowingly assumed all of the risks incident to said operation, acts
and conduct alleged in said complaint, and voluntarily and knowingly assumed all of the risks
incident to said operations, acts and conduct at the time and place mentioned in the complaint.
FOURTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the plaintiff acknowledged, ratified,
consented to and acquiesced in the alleged acts or omissions, if any, of this answering defendant,
thus barring plaintiff from any relief as prayed for herein.
FIFTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant is informed and believes and therefore alleges
that plaintiff is unable to identify the actual manufacturer or manufacturers of the asbestos
products which allegedly caused the injury which forms the basis of the complaint herein, and
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
AgRE TAGGordan & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
that said manufacturers were entities other than this defendant. Therefore, this defendant may
not be held liable for the injury of the plaintiff.
SIXTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiffs employer was and is a
sophisticated user and knew independently or should have known of any danger or hazard
associated with the use of a product containing asbestos and of exposure to high levels of dust of
any sort. Defendant further alleges that it warned the plaintiff's employer of the danger or
hazard associated with the use of its product and that plaintiffs employer failed to rely upon
such warning resulting in alleged damages due to plaintiff and plaintiff's employer's act or
omission and failure to act as sophisticated users.
SEVENTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that at all times alleged in the complaint
the products alleged to have caused plaintiffs injuries were designed, manufactured, sold,
distributed, labeled and advertised in compliance with the then existing state of the art in the
industry to which this defendant belonged and furthermore, that the benefits of any such product
design outweighed any risk of danger in the design and that any such product met the safety
expectations of plaintiff and the general public.
EIGHTEENTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the plaintiff has released, settled, entered into an accord and satisfaction or
otherwise compromised his claims herein, and accordingly, said claims are barred by operation
of law; alternatively, plaintiff has accepted compensation as partial settlement of those claims for
which this defendant is entitled to a set-off.
NINETEENTH AFFIRMATIVE DEFENSE
AS AND FOR AN NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, there was no negligence, gross negligence, willful, wanton, or malicious
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASRE TASGordon & Rees LLP
101 West Broadway, Suite 2600
San Diego, CA 92161
misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice
(actual, legal, or otherwise) on the part of this defendant as to the plaintiff herein.
TWENTIETH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, at all times and places mentioned in the complaint, plaintiff has failed to
make reasonable efforts to mitigate injuries and damages, if any.
TWENTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the plaintiff, prior to the filing of this complaint, never informed this
defendant, by notification or otherwise, of any breach of express and/or implied warranties;
consequently, their claims of breach of express and/or implied warranties against this defendant
are barred.
TWENTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, the injuries to, and damages of plaintiff, if any, were directly caused
by the conduct of JOHNS-MANVILLE SALES CORPORATION, its predecessors and
successors in interest, its parent company or companies, its affiliates, subsidiaries, or related
companies and enterprises.
TWENTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that to the extent the amount of punitive
damages sought is unconstitutionally excessive under the United States Constitution, it violates
the Excessive Fines Clause of the Eighth Amendment, U.S. Const. amend. VIII, and the Due
Process Clause of the Fourteenth Amendment, U.S. Const. amend XIV, section 1,
TWENTY-FOURTH AFFIRMATIVE DEFENSE
AS FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the plaintiffs claim for punitive
damages impermissibly seeks a multiple award of punitive damages as against this defendant in
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
AgRE TAGGordon & Rees LLP
191 West Broadway, Suite 2000
San Diego, CA 92101
violation of the following clauses: the Contracts Clause of Article I, section 10 of the United
States Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States
Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and Due Process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of
the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article I, section 7 and 17, Article TV, section 16 of the California Constitution.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that punitive damages are barred by the
Constitutions of the United States and California by virtue of their violation of one or more of
the following clauses: the Contracts Clause of Article I, section 10 of the United States
Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States
Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and due process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of
the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article I, section 7 and 17, and Article IV, section 16 of the California
Constitution.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the subject premises was not used in the
manner in which it was intended to be used, and as a proximate result of such abuse and misuse,
the plaintiff sustained the injuries and damages complained of, if any there were.
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASRE TASGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff has failed to join a party or the parties
necessary for a just adjudication of this matter and has further omitted to state any reasons for
such failure.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's claims are a nullity for failure of
commencement of suit.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff fails to exercise ordinary care for their
own. safety and well-being, and that failure to exercise ordinary care proximately and directly
caused and/or contributed to the alleged illness and injury pled in the complaint. Consequently,
this defendant is entitled to the full protection afforded by law.
THIRTIETH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's injuries or illness, if any, were due to
the acts or omissions of a person or persons over whom this defendant had neither control nor the
right of control.
THIRTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that while specifically and vigorously denying the
allegations of the plaintiff concerning liability, injuries and damages, to the extent that plaintiff
may be able to prove those allegations, this defendant states that they were the result of
intervening acts of superseding negligence on the part of the person or persons over whom this
defendant had neither control nor the right of control.
itt
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
acSRR TNSGordon & Rees LLP
101 West Broadway, Suite 2008
San Diego, CA 92161
THIRTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons used this answering defendant's products, if indeed any
were used, in an unreasonable manner, not reasonably foreseeable to this defendant, and for a
purpose for which the products were not intended, manufactured or designed. Plaintiff's injuries
and damages, if any, were therefore directly and proximately caused by his misuse and abuse of
such products.
THIRTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that any exposure of plaintiff to this defendant's
product or products, which exposure is vigorously denied, was so minimal as to be insufficient to
establish a reasonable degree of probability that the product or products caused his claimed
injuries and illness.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that at the time of this filing, there was no good
ground to support the complaint as to this defendant. There is now no good ground to support
the complaint as to this defendant.
THIRTY-FIETH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff has waived any and all claims sought
in this action and is estopped both to assert and to recover upon such claims.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the doctrine of joint and several liability has
been abolished in a case such as this, and should plaintiff prevail against this defendant, this
dil
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
aSRE TAGGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
defendant's liability is several and is limited to its own actionable segment of fault, which fault is
vigorously denied.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which relief can be granted, or, if relief be granted, this defendant's
Constitutional right to substantive and procedural due process of law would be contravened.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of actions asserted by the plaintiff
fail to state a claim upon which relief can be granted, for if relief be granted, such relief would
constitute a taking of this defendant's property for a public use without just compensation, a
violation of this defendant's Constitutional rights.
THIRTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fails to
state a claim upon which relief can be granted because such relief would constitute a denial by
this court of defendant's Constitutional right to equal protection under the law.
FORTIETH AFFIRMATIVE DEFENSE
AS AND FOR A FORTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff
against this entity is improper as plaintiff incorrectly allege that this answering defendant is
responsible, in whole or in part, for the acts of one or more alternative entities. This answering
defendant denies those claims.
FORTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's claim of successor liability and
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DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY -
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association with other entities is not factually or legally supported, and, as such, plaintiff has no
claim against answering defendant as asserted.
WHEREFORE, this answering defendant prays that plaintiff takes nothing by his actions,
that this answering defendant be dismissed with costs of suit incurred herein, and for such other
and further relief as this court deems just and proper.
Dated: April €0_, 2009 GORDON & REES LLP
wy, Ae Cail
Roger M. Mansukhani
Shari I. Weintraub
Tatiana Oseroff
Attorneys For Defendant
VACA VALLEY AUTO PARTS
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DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASRE TOGGordon & Rees LLP
101 West Broadway, Suite 2600
San Diego, CA 92101
PROOF OF SERVICE BY ELECTRONIC SERVICE — LEXIS/NEXIS
Paul Van Degrift v. Asbestos Defendants (B #P)
County of San Francisco Superior Court Case No. CGC-09-275076
Iam a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: Gordon & Rees LLP 101 W. Broadway, Suite
2000, San Diego, CA 92101. On April 20, 2009, I served the within documents:
DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR)
PERSONAL INJURY - ASBESTOS
(X) BY ELECTRONIC SERVICE VIA LEXIS NEXIS FILE & SERVE. By sending
electronically a true and correct copy thereof to Lexis Nexis File & Serve
(www. lexisnexis.com/fileandserve) for service on all counsel of record by electronic
service pursuant to the Order Mandating Electronic Filing and Service of Asbestos
Pleadings and pursuant to CCP § 1013(a) and CRC 2060(c). The transmission was
reported as complete and without error.
1 arn readily familiar with the firm’s practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business, I am aware that on.
motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after the date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
Executed on April 20, 2009 at San Diego, California.
fburag é : fo
Shirley Rita
Preview
Gordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92191 ROGER M. MANSUKHANI, ESQ. (SBN 164463) SHARI 1. WEINTRAUB, ESQ. (SBN 195250) ELECTRONICALLY TATIANA OSEROFF, ESQ. (SBN 246705) FILED GORDON & REES LLP Superior Court of California, 101 W. Broadway, Suite 2000 County of San Francisco San Diego, CA 92101 Telephone: (619) 696-6700 APR 20 2009 GORDON PARK-LI, Clerk] BY: ALISON AGBAY Deputy Clerk Facsimile: (619) 696-7124 Attorneys for Defendant VACA VALLEY AUTO PARTS SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO PAUL VAN DEGRIFT CASE NO. CGC-09 275076 Plaintiff DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS vs. ASBESTOS DEFENDANTS (BP) As Reflected on Exhibits B, B-1, C, and DOES 1- 8500; and SEE ATTACHED LIST. Complaint filed: 02/18/09 Defendants. COMES NOW defendant, VACA VALLEY AUTO PARTS, and in answer to Plaintiff PAUL VAN DEGRIFT’s complaint on file herein, and each and every cause of action allegedly set forth therein, answers, alleges and denies as follows: IL This answering defendant denies cach and every, all and singular, generally and specifically, the allegations contained in the complaint, and each and every cause of action allegedly set forth therein, as they may apply to this answering defendant. fil Tit -1- DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASRE TAGGorden & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92105 Ih. Further answering said unverified complaint, and each and every cause of action allegedly set forth therein, this defendant denies that it was legally responsible in some manner for the circumstances and happenings as alleged therein, or at all, and denies that plaintiff has been damaged in the manner set forth in said unverified complaint and each and every cause of action allegedly set forth therein. TH. Further answering said unverified complaint, and each and every cause of action allegedly set forth therein, this defendant denies that it was negligent and/or careless in any respect whatsoever, as alleged therein, or at all, and denies that plaintiff has been damaged in the manner set forth in said unverified complaint and each and every cause of action allegedly set forth therein. FIRST AFFIRMATIVE DEFENSE AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the complaint and causes of action therein fail to state facts sufficient to constitute a cause of action against this answering defendant. SECOND AFFIRMATIVE DEFENSE AS AND FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that plaintiff was itself careless and negligent in and about the matters referred to in the complaint and that such negligence and carelessness on the part of the plaintiff's proximately caused and contributed to the damages complained of, if any there were. THIRD AFFIRMATIVE DEFENSE AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff knew, or in the exercise of ordinary care, should have known of the risks and hazards involved in the undertaking in which plaintiff engaged, but nevertheless and with full knowledge of these things, did fully and voluntarily consent to assume the risks and hazards involved in the undertaking. -2- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - AgRE TASGordon & Rees LLP 101 West Broadway, Suite 2090 San Diego, CA 92101 FOURTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff was itself solely and totally negligent in and about the matters referred to in the complaint and that such negligence and carelessness on the part of the plaintiff proximately amounted to One Hundred Percent (100%) of the negligence involved in this case and was the sole cause of the injuries and damages complained of, if any there were. FIFTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that at all times and places mentioned in the complaint, plaintiff and/or other persons without this defendant's knowledge and approval redesigned, modified, altered, and used this defendant's products contrary to instructions and contrary to the custom and practice of the industry. This redesign, modification, alteration, and use so substantially changed the product's character that if there was a defect in the product -- which is specifically denied -- such defect resulted solely from the redesign, modification, alteration, or other such treatment or change and not from any act or omission by this defendant. Therefore, said defect, if any, was created by plaintiff and/or other persons, as the case may be, and was the direct and proximate cause of the injuries and damages, if any, that plaintiff allegedly suffered. SIXTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that if there is any negligence or liability of any of the parties named herein, it is the sole and exclusive negligence and. liability of the other defendants, and not of this answering defendant. SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant is not liable for any injuries alleged in the complaint iti -3- DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASRE TASGordon & Rees LLP 101 West Broadway, Suite 2000 San Diege, CA 92101 because defendant’s conduct falls within the purview and protection of the government contractor defense. EIGHTH AFFIRMATIVE DEFENSE AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that at the time of the injuries alleged in the complaint plaintiff was employed and were entitled to and did receive workers’ compensation benefits from said employer. This defendant is informed and believes, and on the basis of said information and belief alleges that. if the conditions as alleged in the plaintiffs complaint arc found to exist, the plaintiff's employer was negligent and careless in and about the matters referred to in said complaint and that said negligence on the part of the employer proximately caused or contributed to the injuries and damages, if any, complained of by the plaintiff, and further, that the plaintiff's employer assumed the risk of injury to the plaintiff, if any there were, in that at the time and place of the incident such conditions, if any, were open and apparent and were fully known to the plaintifi’s employer; and that by reason thereof, this defendant is entitled to set off any compensation benefits received or to be received by the plaintiff against any judgment which maybe rendered in favor of the plaintiff herein. NINTH AFFIRMATIVE DEFENSE AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the complaint and the causes of action therein are barred by the statutes of limitation and repose of California and any other relevant state, including but not limited to the limitations set forth under sections 340.2 and 361 of the Code of Civil Procedure of the State of California. TENTH AFFIRMATIVE DEFENSE AS AND FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SATD COMPLAINT, this answering defendant alleges that the plaintiff unreasonably delayed in bringing this action against defendant and that such delay substantially prejudiced this answering defendant. Therefore, this action is barred by the doctrine of laches. ‘tt -4- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - ACRE TAGGordon & Rees LLP 161 West Broadway, Suite 2006 San Diego, CA 92101 Do wm UW A ELEVENTH AFFIRMATIVE DEFENSE AS AND FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the complaint and the causes of] action therein fail to state facts sufficient to constitute a cause of action against this answering defendant pursuant to sections 3600, et seq., of the California Labor Code. TWELFTH AFFIRMATIVE DEFENSE AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that plaintiffs employer was contributorily negligent and careless in and about the matters alleged in the complaint, and that such negligence and carelessness was a proximate cause of any injuries and damages suffered by plaintiff, if any there were. THIRTEENTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that plaintiff's employer voluntarily and knowingly entered into and engaged in the operations, acts and conduct alleged in said complaint, and voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct alleged in said complaint, and voluntarily and knowingly assumed all of the risks incident to said operations, acts and conduct at the time and place mentioned in the complaint. FOURTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this answering defendant, thus barring plaintiff from any relief as prayed for herein. FIFTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant is informed and believes and therefore alleges that plaintiff is unable to identify the actual manufacturer or manufacturers of the asbestos products which allegedly caused the injury which forms the basis of the complaint herein, and -5- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - AgRE TAGGordan & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 that said manufacturers were entities other than this defendant. Therefore, this defendant may not be held liable for the injury of the plaintiff. SIXTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that plaintiffs employer was and is a sophisticated user and knew independently or should have known of any danger or hazard associated with the use of a product containing asbestos and of exposure to high levels of dust of any sort. Defendant further alleges that it warned the plaintiff's employer of the danger or hazard associated with the use of its product and that plaintiffs employer failed to rely upon such warning resulting in alleged damages due to plaintiff and plaintiff's employer's act or omission and failure to act as sophisticated users. SEVENTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that at all times alleged in the complaint the products alleged to have caused plaintiffs injuries were designed, manufactured, sold, distributed, labeled and advertised in compliance with the then existing state of the art in the industry to which this defendant belonged and furthermore, that the benefits of any such product design outweighed any risk of danger in the design and that any such product met the safety expectations of plaintiff and the general public. EIGHTEENTH AFFIRMATIVE DEFENSE AS AND FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, the plaintiff has released, settled, entered into an accord and satisfaction or otherwise compromised his claims herein, and accordingly, said claims are barred by operation of law; alternatively, plaintiff has accepted compensation as partial settlement of those claims for which this defendant is entitled to a set-off. NINETEENTH AFFIRMATIVE DEFENSE AS AND FOR AN NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, there was no negligence, gross negligence, willful, wanton, or malicious -6- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASRE TASGordon & Rees LLP 101 West Broadway, Suite 2600 San Diego, CA 92161 misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice (actual, legal, or otherwise) on the part of this defendant as to the plaintiff herein. TWENTIETH AFFIRMATIVE DEFENSE AS AND FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, at all times and places mentioned in the complaint, plaintiff has failed to make reasonable efforts to mitigate injuries and damages, if any. TWENTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, the plaintiff, prior to the filing of this complaint, never informed this defendant, by notification or otherwise, of any breach of express and/or implied warranties; consequently, their claims of breach of express and/or implied warranties against this defendant are barred. TWENTY-SECOND AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, the injuries to, and damages of plaintiff, if any, were directly caused by the conduct of JOHNS-MANVILLE SALES CORPORATION, its predecessors and successors in interest, its parent company or companies, its affiliates, subsidiaries, or related companies and enterprises. TWENTY-THIRD AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that to the extent the amount of punitive damages sought is unconstitutionally excessive under the United States Constitution, it violates the Excessive Fines Clause of the Eighth Amendment, U.S. Const. amend. VIII, and the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend XIV, section 1, TWENTY-FOURTH AFFIRMATIVE DEFENSE AS FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiffs claim for punitive damages impermissibly seeks a multiple award of punitive damages as against this defendant in -7- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - AgRE TAGGordon & Rees LLP 191 West Broadway, Suite 2000 San Diego, CA 92101 violation of the following clauses: the Contracts Clause of Article I, section 10 of the United States Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; the Due Process Clause of the Fourteenth Amendment of the United States Constitution and its counterpart under the California Constitution; the Equal Protection of the laws and Due Process provision of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, section 7 and 17, Article TV, section 16 of the California Constitution. TWENTY-FIFTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that punitive damages are barred by the Constitutions of the United States and California by virtue of their violation of one or more of the following clauses: the Contracts Clause of Article I, section 10 of the United States Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; the Due Process Clause of the Fourteenth Amendment of the United States Constitution and its counterpart under the California Constitution; the Equal Protection of the laws and due process provision of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, section 7 and 17, and Article IV, section 16 of the California Constitution. TWENTY-SIXTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the subject premises was not used in the manner in which it was intended to be used, and as a proximate result of such abuse and misuse, the plaintiff sustained the injuries and damages complained of, if any there were. -8- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASRE TASGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 Co ~ nN A WwW BRB WwW KH BON NM NR BY RR NR DR Be eo aA A BR Oo 8B = SF OBO BH DH BB BHR YF SD TWENTY-SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff has failed to join a party or the parties necessary for a just adjudication of this matter and has further omitted to state any reasons for such failure. TWENTY-EIGHTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff's claims are a nullity for failure of commencement of suit. TWENTY-NINTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff fails to exercise ordinary care for their own. safety and well-being, and that failure to exercise ordinary care proximately and directly caused and/or contributed to the alleged illness and injury pled in the complaint. Consequently, this defendant is entitled to the full protection afforded by law. THIRTIETH AFFIRMATIVE DEFENSE AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff's injuries or illness, if any, were due to the acts or omissions of a person or persons over whom this defendant had neither control nor the right of control. THIRTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that while specifically and vigorously denying the allegations of the plaintiff concerning liability, injuries and damages, to the extent that plaintiff may be able to prove those allegations, this defendant states that they were the result of intervening acts of superseding negligence on the part of the person or persons over whom this defendant had neither control nor the right of control. itt -9- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - acSRR TNSGordon & Rees LLP 101 West Broadway, Suite 2008 San Diego, CA 92161 THIRTY-SECOND AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that at all times and places mentioned in the complaint, plaintiff and/or other persons used this answering defendant's products, if indeed any were used, in an unreasonable manner, not reasonably foreseeable to this defendant, and for a purpose for which the products were not intended, manufactured or designed. Plaintiff's injuries and damages, if any, were therefore directly and proximately caused by his misuse and abuse of such products. THIRTY-THIRD AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that any exposure of plaintiff to this defendant's product or products, which exposure is vigorously denied, was so minimal as to be insufficient to establish a reasonable degree of probability that the product or products caused his claimed injuries and illness. THIRTY-FOURTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that at the time of this filing, there was no good ground to support the complaint as to this defendant. There is now no good ground to support the complaint as to this defendant. THIRTY-FIETH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff has waived any and all claims sought in this action and is estopped both to assert and to recover upon such claims. THIRTY-SIXTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the doctrine of joint and several liability has been abolished in a case such as this, and should plaintiff prevail against this defendant, this dil -10- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - aSRE TAGGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 defendant's liability is several and is limited to its own actionable segment of fault, which fault is vigorously denied. THIRTY-SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to state a claim upon which relief can be granted, or, if relief be granted, this defendant's Constitutional right to substantive and procedural due process of law would be contravened. THIRTY-EIGHTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of actions asserted by the plaintiff fail to state a claim upon which relief can be granted, for if relief be granted, such relief would constitute a taking of this defendant's property for a public use without just compensation, a violation of this defendant's Constitutional rights. THIRTY-NINTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fails to state a claim upon which relief can be granted because such relief would constitute a denial by this court of defendant's Constitutional right to equal protection under the law. FORTIETH AFFIRMATIVE DEFENSE AS AND FOR A FORTIETH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff against this entity is improper as plaintiff incorrectly allege that this answering defendant is responsible, in whole or in part, for the acts of one or more alternative entities. This answering defendant denies those claims. FORTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff's claim of successor liability and //t -ll- DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - asnE TAT1 2 3 4 5 6 7 8 9 10 u 5 RB Ree 13 EFS 14 iif 15 523 16 Bou 18 9 20 2 2 2B 24 2s 26 27 28 ZRCAM/1057051/6542604y. association with other entities is not factually or legally supported, and, as such, plaintiff has no claim against answering defendant as asserted. WHEREFORE, this answering defendant prays that plaintiff takes nothing by his actions, that this answering defendant be dismissed with costs of suit incurred herein, and for such other and further relief as this court deems just and proper. Dated: April €0_, 2009 GORDON & REES LLP wy, Ae Cail Roger M. Mansukhani Shari I. Weintraub Tatiana Oseroff Attorneys For Defendant VACA VALLEY AUTO PARTS -12- DEFENDANT VACA VALLEY AUTO PARTS' ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASRE TOGGordon & Rees LLP 101 West Broadway, Suite 2600 San Diego, CA 92101 PROOF OF SERVICE BY ELECTRONIC SERVICE — LEXIS/NEXIS Paul Van Degrift v. Asbestos Defendants (B #P) County of San Francisco Superior Court Case No. CGC-09-275076 Iam a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon & Rees LLP 101 W. Broadway, Suite 2000, San Diego, CA 92101. On April 20, 2009, I served the within documents: DEFENDANT VACA VALLEY AUTO PARTS’ ANSWER TO COMPLAINT FOR) PERSONAL INJURY - ASBESTOS (X) BY ELECTRONIC SERVICE VIA LEXIS NEXIS FILE & SERVE. By sending electronically a true and correct copy thereof to Lexis Nexis File & Serve (www. lexisnexis.com/fileandserve) for service on all counsel of record by electronic service pursuant to the Order Mandating Electronic Filing and Service of Asbestos Pleadings and pursuant to CCP § 1013(a) and CRC 2060(c). The transmission was reported as complete and without error. 1 arn readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business, I am aware that on. motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 20, 2009 at San Diego, California. fburag é : fo Shirley Rita