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

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                                RICHARD D. DUMONT, ESQ. (SBN 107967)
PAUL J. GAMBA, ESQ. (SBN 146097)

VASQUEZ ESTRADA & DUMONT LLP ELECTRONICALLY
Courthouse Square

1000 Fourth Street, Suite 700 sobcecl E Pe
San Rafael, CA 94901 San Francisco
Telephone: (415) 453-0555 County of San Francisca
Facsimile: (415) 453-0549 MAY 04 2009

GORDON PARK-LI, Clerk
BY: VANESSA WU

Attorneys for Defendant Deputy Clerk

SCOTT CO. OF CALIFORNIA, erroneously sued
as the alternate entity of Broadway Plumbing Co., Inc.
and Broadway Mechanical Contractors, Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

PAUL VAN DEGRIFT, Case No.: CGC-09-275076

Plaintiff, DEFENDANT SCOTT CO. OF
CALIFORNIA’S ANSWER TO
PLAINTIFF’S UNVERIFIED

COMPLAINT FOR PERSONAL INJURIES,
~ ASBESTOS

vs.
ASBESTOS DEFENDANTS (BP), et al.

Defendants.

ee ee er

DEFENDANT SCOTT CO. OF CALIFORNIA (hereinafter “DEFENDANT”),
erroneously sued herein as the alternate entity of Broadway Plumbing Co., Inc. and Broadway
Mechanical Contractors, Inc., answers the unverified Complaint (“Complaint”) herein on its own

behalf and on behalf of no other defendant or entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), DEFENDANT denies
generally each and every allegation of the Complaint.
FIRST AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged by the plaintiff therein
states facts sufficient to constitute a cause of action against DEFENDANT.
SECOND AFFIRMATIVE DEFENSE
To the extent the Complaint asserts DEFENDANT’s alleged “market share” liability, or

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076“enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action
against DEFENDANT.
THIRD AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged therein states facts
sufficient to entitle plaintiff to an award of punitive damages against DEFENDANT.
FOURTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would deprive DEFENDANT of its
property without due process of law under the California Constitution and United States
Constitution.

FIFTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would violate the United States
Constitution’s prohibition against laws impairing the obligation of contracts.

SIXTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would constitute a criminal fine or
penalty and should, therefore, be remitted on the ground that the award violates the United States
Constitution.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations, including but not limited to California Code of Civil Procedure, sections 335.1, 338.1,
339, 340.2, 340.8, 343, 583.310 and 583.410 and California Commercial Code, section 2725.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff unreasonably delayed in bringing this action, without good cause therefor, and
thereby has prejudiced DEFENDANT as a direct and proximate result of such delay; accordingly,
his action is barred by laches and by section 583.310, ef, seg. of the Code of Civil Procedure.

NINTH AFFIRMATIVE DEFENSE

Plaintiff was negligent in and about the matters alleged in the Complaint and in each
alleged cause of action; this negligence proximately caused, in whole or in part, the damages
alleged in the Complaint. In the event plaintiff is entitled to any damages, the amount of these

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076damages should be reduced by the comparative fault of plaintiff and any person whose negligent
acts or omissions are imputed to plaintiff.

TENTH AFFIRMATIVE DEFENSE

Plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the risks
and hazards, if any, referred to in the Complaint and each alleged cause of action, and this
undertaking proximately caused and contributed to any loss, injury or damages incurred by
plaintiff.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiff 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.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by plaintiff or
by others: the misuse, abuse or alteration was not reasonably foreseeable to DEFENDANT, and
proximately caused any loss, injury or damages incurred by plaintiff.

THIRTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that any products allegedly installed, removed or disturbed by
DEFENDANT or at DEFENDANT’S direction, if any, were manufactured, produced, supplied,
sold and/or distributed in mandatory conformity with specifications promulgated by the United

States Government under its war powers, as set forth in the United States Constitution, and that

any recovery by plaintiff on the Complaint on file herein is barred in consequence of the exercise
of those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages;
accordingly, the amount of damages to which plaintiff is entitled, if any, should be reduced by the
amount of damages which would have otherwise been mitigated.

Mit

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076FIFTEENTH AFFIRMATIVE DEFENSE
The Court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and each alleged cause of action against DEFENDANT are barred by the
provisions of California Labor Code, section 3600, et seq.

SIXTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plainuff was
employed and was entitled to receive workers’ compensation benefits from his employer's
workers’ compensation insurance carrier; that all of plaintiff's employers, other than
DEFENDANT, were negligent in and about the matters referred to in said Complaint, and that
such negligence on the part of said employers proximately and concurrently contributed to the
happening of the accident and to the loss or damage complained of by plaintiff, if any there were;
and that by reason thereof DEFENDANT is entitled to set off and/or reduce any such workers’
compensation benefits received or to be received by plaintiff against any judgment which may be
rendered in favor of plaintiff. (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641)

SEVENTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiffs

employers, other than DEFENDANT, were negligent in and about the matters referred to in said

Complaint, and that such negligence on the part of said employers proximately and concurrently

contributed to any loss or damage, including non-economic damages, complained of by plaintiff, if
any there were; and that DEFENDANT is not liable for said employers’ proportionate share of
non-economic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, parties other
than this DEFENDANT were negligent in and about the matters referred to in said Complaint, and
that such negligence on the part of said parties proximately and concurrently contributed to any
loss or damage, including non-economic damages, complained of by plaintiff, if any there were:
and that DEFENDANT herein shall not be liable for said parties’ proportionate share of non-
economic damages.

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076NINETEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at all times relative to matters alleged in the Complaint, all of
plaintiff's employers, other than DEFENDANT, were sophisticated users of asbestos-containing
products and said employers’ negligence in providing the product to its employees in a negligent,
careless and reckless manner was a superseding cause of plaintiffs injuries, if any.

TWENTIETH AFFIRMATIVE DEFENSE

If plaintiff has received, or in the future may receive, Workers’ Compensation benefits
from DEFENDANT under the Labor Code of the State of California as a consequence of the
alleged industrial injury referred to in the Complaint, and in the event plaintiff is awarded damages
against DEFENDANT, DEFENDANT claims a credit against this award to the extent that
DEFENDANT is barred from enforcing his rights to reimbursement for Workers’ Compensation
benefits that plaintiff has received or may in the future receive.

TWENTY-FIRST AFFIRMATIVE DEFENSE

Hf plaintiff has received, or in the future may receive Workers’ Compensation benefits from
DEFENDANT under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, DEFENDANT demands repayment of any such
Workers’ Compensation benefits in the event that plaintiff recovers tort damages as a result of the
industrial injury allegedly involved here. Although DEFENDANT denies the validity of plaintiff's
claims, in the event those claims are held valid and not barred by the statute of limitations or
otherwise, DEFENDANT asserts that cross-demands for money have existed between plaintiff and
DEFENDANT and the demands are compensated, so far as they equal each other, pursuant to
California Code of Civil Procedure section 431.70.

TWENTY-SECOND AFFIRMATIVE DEFENSE

At all times and places in the Complaint, plaintiff was not in privity of contract with
DEFENDANT and said lack of privity bars plaintiff's recovery herein upon any theory of
warranty.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff is barred from recovery in that all products installed, removed, disturbed,

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076produced, sold or distributed by DEFENDANT or at DEFENDANT’S direction, if any, were in
conformity with the existing state-of-the-art, and as a result, these products were not defective in
any manner.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
DEFENDANT did not and does not have a substantial percentage of the market for the
asbestos-containing products, if any, which allegedly caused plaintiff's injuries. Therefore,
DEFENDANT may not be held liable to plaintiff based on this DEFENDANT’s alleged
percentage share of the applicable market.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
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 an entity researching, studying, manufacturing, fabricating, designing,
labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing,
installing, contracting for installation, repairing, marketing, warranting, rebranding, manufacturing
for others, packaging and advertising products that contained a certain substance, the generic name
of which is asbestos. DEFENDANT specifically denies being the alternate entity of Broadway
Plumbing Co., Inc. and Broadway Mechanical Contractors, Inc.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
DEFENDANT alleges that plaintiff's claims are or may be barred in whole or in part by res
judicata, collateral estoppel, issue preclusion and/or release.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that it is immune from liability for any alleged failure to warn
plaintiff of material risks associated with DEFENDANT’s products, if any, because such risks
were or should have been obvious to a reasonably prudent product user in plaintiffs position, or
were otherwise a matter of common knowledge to persons in the same or similar position to
plaintiff.

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076TWENTY-EIGHTH AFFIRMATIVE DEFENSE
This court lacks subject matter jurisdiction over the causes of action alleged in the
Complaint.
TWENTY-NINTH AFFIRMATIVE DEFENSE
As a result of plaintiff's unreasonable delay in bringing this action, without good cause
therefor, in addition to his other unreasonable acts and omissions, plaintiff has waived each or
some of the claims stated or purportedly stated in the Complaint.

THIRTIETH AFFIRMATIVE DEFENSE

The activity alleged in the Complaint, to the extent that it was engaged in by
DEFENDANT, if at all, was not ultrahazardous under California law.
THIRTY-FIRST AFFIRMATIVE DEFENSE

California Civil Code sections 1431.1 through 1431.5, known as the Fair Responsibility
Act of 1986, is applicable at least in part to the present action and to certain claims therein, and
based upon the principle of comparative fault, the liability, if any, of DEFENDANT, if liable at all,
shall be several only and shall not be joint. DEFENDANT, if liable at all, shall be liable as to
certain claims only for the amount of non-economic damages allocated to DEFENDANT in direct
proportion to DEFENDANT’s percentage of fault, if any, and a separate and several judgment
shall be rendered against DEFENDANT for non-economic damages, if any.

THIRTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff cannot prove any facts showing that the conduct of DEFENDANT was a cause in
fact of any alleged injuries or damages suffered by plaintiff as alleged in the Complaint.

THIRTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff cannot prove any facts showing that the conduct of DEFENDANT was the
proximate cause of any alleged injuries or damages suffered by plaintiff as alleged in the
Complaint.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Hf plaintiff was injured as alleged in the Complaint, those injuries were proximately caused

by allergies, sensitivities and idiosyncrasies particular to plaintiff, not found in the general public

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076and unknown and unknowable to DEFENDANT. Such injuries, if any, were not reasonably
foreseeable to DEFENDANT.
THIRTY-FIFTH AFFIRMATIVE DEFENSE

At all times relevant, DEFENDANT’s acts and omissions were in conformity with all
government statutes and regulations and all industry standards based upon the state of knowledge
existing at the time of the acts or omissions.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiff has failed to join all parties necessary for full and just adjudication of the
purported causes of action asserted in the Complaint.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that plaintiff has directed, ordered, approved and/or ratified
DEFENDANT’s conduct and plaintiff is therefore estopped from asserting their claims alleged in
the Complaint as a result of their own acts, conduct or omissions,

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiff was
employed and was entitled to receive Workers’ Compensation benefits from his employer’s
workers’ compensation insurance carrier; that DEFENDANT did not control plaintiff's work
activities at his worksites; that all of plaintiff's employers, other than DEFENDANT, were
negligent in and about the matters referred to in said Complaint, that other parties over whom
DEFENDANT had no control were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said employers and other parties proximately
and concurrently contributed to the happening of the accident and to the loss or damage
complained of by plaintiff, if any there were; and as a result thereof, DEFENDANT bears no
liability for plaintiffs alleged damages.

THIRTY-NINTH AFFIRMATIVE DEFENSE

The Complaint fails to state facts sufficient to constitute a cause of action for “Premises
Owner/Contractor Liability” against this DEFENDANT pursuant to the ruling of the California
Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689; the ruling of the California

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076Court of Appeal in Smith v. ACand’S, Inc. (1994) 31 Cal. App Ath 77; the ruling of the California
Court of Appeal in Grahn v. Tosco Corporation (1997) 58 Cal.App.4th 1373; the ruling of the
California Supreme Court in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253; and
the ruling of the California Supreme Court in Kinsman vs. Unocal Corporation (2006) 37 Cal 4th
659, et al.
FORTIETH AFFIRMATIVE DEFENSE

DEFENDANT had no property interest, ownership or control of any premises at any time

during which plaintiff alleges exposure, injury or damages due to asbestos dust inhalation.
FORTY-FIRST AFFIRMATIVE DEFENSE

DEFENDANT alleges that plaintiffs claims, or some of them, are barred by the provisions

of California Code of Civil Procedure §361.
FORTY-SECOND AFFIRMATIVE DEFENSE

DEFENDANT refers to and incorporates herein each and every affirmative defense
pleaded by the other parties herein to the extent that such defenses are not inconsistent with the
matters stated herein.

FORTY-THIRD AFFIRMATIVE DEFENSE

DEFENDANT alleges that it presently has insufficient knowledge or information on which
to form a belief as to whether it may have additional, as yet unasserted defenses available.
DEFENDANT reserves herein the right to assert additional defenses in the event discovery
indicates that they would be appropriate.

WHEREFORE, DEFENDANT prays:

(1) That plaintiff takes nothing by this Complaint;

(2) That Judgment be entered in favor of DEFENDANT;

(3) For recovery of DEFENDANT’s costs of suit;
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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076(4) For appropriate credits and set-offs arising out of any payment of Workers’
Compensation benefits, or otherwise, as alleged above; and

(5) For such other and further relief as the Court deems just and proper.

Dated: May 1, 2009 VASQUEZ ESTRADA & DUMONT LLP

By:__/s/ Richard D. Dumont
RICHARD BD. DUMONT

Attorneys for Defendant

SCOTT CO. OF CALIFORNIA

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DEFENDANT SCOTT CO. OF CALIFORNIA’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURIES — ASBESTOS -- CASE NO. CGC-09-275076