Motion-Secondary: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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                                Becherer
Kannett &
Schweitzer

510-658-3600

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Mark 8. Kannett, SBN 104572

Anthony Bentivegna, SBN 129487

Julie E. Williams, SBN 260278
BECHERER KANNETT & SCHWEITZER
The Water Tower 41255 Powell Street
Emeryville, California 94608-2604

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

Telephone: (510) 658-3600
Facsimile: (510) 658-1151 JAN 28 2ot1
BY: VANESSA WU
Attorneys for Defendant Deputy Clerk
HAAS AND HAYNIE CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
LAURENCE HAGEN, Case No. CGC 10-275582
Plaintiff, DECLARATION OF JULIE
WILLIAMS IN SUPPORT OF EX
v. PARTE APPLICATION BY
DEFENDANT HAAS AND HAYNIE
ASSOCIATED INSULATION OF CORPORATION TO SET ASIDE AND

CALIFORNIA; Defendants as Reflected on VACATE DEFAULT

Exhibit 1 attached to the Summary

Complaint herein; and DOES 1-8500., Date: February 1, 2011
Time: . 11:00 am.

Defendants. Dept: 220

Judge: Hon. Harold E. Khan
Complaint Filed: June 2, 2010
Trial Date: None

I, Julie E. Williams, declare as follows:

1. Tam an attorney with the law firm of Becherer Kannett and Schweitzer, attorneys

of record for Haas & Haynie Corporation, Defendant in this action. I am a licensed attorney

admitted to practice before the courts of the State of California. The matters stated herein are

based upon personal knowledge, and if called upon, I could competently testify thereto.

2. On January 18, 2011, Haas & Haynie first learned that a complaint had been filed

against it when one of its insurance carriers received the proof of service of summons filed on

DECLARATION OF JULIE WILLIAMS IN SUPPORT OF EX PARTE APPLICATION BY DEFENDANT HAAS AND
HAYNIE CORPORATION TO SET ASIDE AND VACATE DEFAULTBecherer
Kannett &
Schweitzer

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January 7, 2011 and forwarded the same to my office. Attached here as Exhibit A is a true and
correct copy of the proof of service of summons.

3. On January 18, 2011, I also learned through the court’s website that a default had
been taken against Haas & Haynie by Plaintiff. Another attorney from my firm immediately
contacted counsel for Plaintiff and explained that the summons was improperly served and
requested that the default be set aside. Counsel for Plaintiff agreed to do so.

4. On January 21, 2011 both parties executed a stipulation to set aside the default.
The stipulation is attached here as Exhibit B to this declaration.

5. A copy of the proposed answer of Defendant Haas & Haynie is attached as
Exhibit C to this declaration.

6. Good cause exists to grant this application ex parte because Haas & Haynie will be
irreparably harmed if it is not able to appear and defend itself during the discovery process, which
has already been ongoing without Haas & Haynie’s participation for several months.

7. On January 28, 2011 at 10 a.m. I gave notice to all parties of record in this matter
of this ex parte application. Haas & Haynie has not made any prior ex parte applications of this
nature.

I declare under penalty of perjury under tbe laws of the State of California that the
foregoing is true and correct to the best of my knowledge.

Executed on the 28" of January 2011, in Emeryville, California.

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2

DECLARATION OF JULIE WILLIAMS IN SUPPORT OF EX PARTE APPLICATION BY DEFENDANT HAAS AND
HAYNIE CORPORATION TO SET ASIDE AND VACATE DEFAULTEXHIBIT A

TO THE DECLARATION OF
JULIE E WILLIAMS IN SUPPORT OF
DEFENDANT HAAS & HAYNIE CORPORATION’S
EXPARTE APPLICATION TO SET ASIDE |
AND VACATE DEFAULTa . : -

SyM002520

BRawra Nawe- UNLIMITED CIVIL. JURISDICTION

BY: EDNALEEN JAVIER

POS.010
eT Sa POnCoUNT USE ORT :
| RRAWION a PURCELL ATTORNEYS APC AW :
222 RUSE LANDING ROAD, .
POHOX 6169 (ZEP: 81948-6169) .
. ELECTRONICALLY
WAL ADDRESS tr wo ad .KRILED..
Tost ron pe: PLRINTIBE/CAURANCE BAGEN . ¢ : “Suporior Court of California,
‘SUPEHIOH GOURT OF CALIFORNIA, COUNTY OF SAM FRANCISCO. . County of San Francisco ~
‘sineer anonees 40 MCALLISTER STREET, ROOM 103 “JAN 07 2014
‘ir aw zw cond: SAN FRANCISCO, CA 94460-4514 Clerk of the Court

Deyuily Clerh
PLAINTIFPETITIONER: LAURANCE HAGEN CAEN:
. we . CGC10275582
DEPENDAN/RESPONDENT: ASSOCIATED INSULATION OF CALIFORNIA, et al
el Na Feta:
PROOF OF SERVICE OF SUMMONS: GROUPALOZO

1. AUthotine of cores | was a as! 18 year o ean nat a patty (0 his ecton,
2, | served copies of

a (SS) summons :

b. complaint .

©. [__], Attergiive, Dispute Resolution (ADA package

 [B3] Civil Case Coversheet {eacead i compar cates ont) .
e. CF orss-complain”

(Senarale proof of sarvica. is mavited for eaoh pany served)

4. [Sz] other (efecty daounients) Stivkeawieivt OF DAMAGES, ANSWERS TO INTELMOGATORIES ON CD, NOTICE OF
ICE, PRELIMINARY FACT SHEET

2. a. Pasty served (opacity nama of pay Be show On Be Seoa NR SU
| TIAAS & HAYNIE CORPORATION

bE] Porson (other than the party n tom Se) served on half fan enlty ore an authvizd agent (and neta person

PAULA. FAY, Il, AUTHORIZED AGENT FOR SHEVICE OF PROCESS

Address where the party was served: 1 PRESIDIO TER «
SAN FRANCISCO, CA 94118
5, [served the party fehack proper box)

‘éceive service of process for the party (1) on (dale):

o ‘under tom 53 on whom cubetiluted service Was made) (specify namo and refalonship to the party named in lem 2a.

4 (1 by personal servicn.| personally delivered the documents stein em 210 the party oF parson eorz eta
(2) at (tone): .

b. [SR] hy sunstituted service, On (dato): 09/15/10 al (lime): 08+41 PM Telf the documents isted in item 2 with or
inthe presence of fname and thle or relationship (o person indicated in ern Sb}

JOHN DOE, SECURITY GUARD 40/5'10/200L HS/HISPAMUBLACK HAIR.

(1) (2) ‘thitsiness) a person al least 18 years of age apparenily in charge at the oltice or usual place of business
. ‘1 the person fo be served. tintormed him or her of the general nature of the papers.

(2) [SZ] (home) a competent member of the household (at feast 18 years of ago) al the dwelling house or usual
Dlace of abode of the party. | Informed him or her of the general nalure of Ihe papers

©) [2] Ghysical addreos unknown) a person al teas! 18 yaars of ago apparently In charge al the usuat aii
- address of Ihe person ta be served, other than # United Slates Postal Service pest office box. 1 informed

1him or her of the general nature of the papers,

(4) [53] tharetior mated fy nt-slass, postage prep copes ofthe doguments lot person 16 be served
“atthe place where the copias were tell (Code Civ. Proc, § 415.20). | mailed the documents on

{date}: 0972010 trom (olty)SAN JOSE

(5) () allached a declaratlen of dillgence stating actions taken first to.attemp! personal service.

-or[S%] a declaration of mating Is attached.

Pages 2

ini lary Ue
Peon

POSE a dear 12007) PROOF OF SERVICE OF SUMMONS

Tab Pca § 41730

aero$JM002520

PLAINTIFF/PETITIONER: LAURANCE HAGEN [CASE NUMBER:
. (CGUL0275582

| DEFENDANT/RESPONDENT: ASSOCIATED INSULATION OF CALIFORNIA, et al.

ce. |] by mail and acknowledgment of receipt of service. | mailed the documents fisted in item 2 to the party, to the

address, shown it iin item. 4, by first-class mail, Postage prepaid,
(1) on (date): - (2) trom*(city): vhs

d. [7] byother means (specify means of service and authorizing code section);

[_} Additional page deseribing service is attached.
G. The “Notice to the Person Served" (on the summons) was completed @s follaws:
a Ea as an individual defendant. . .
b. as the person sued under the fictitious name of of pect
e. Sj as occupant.
¢. [5] On behall of (specify): HAAS.& HAYNIE CORPORATION
under the totlawing Code of Civil Procedure section.

5<]_ 416.10 (corporation) {1 415.95 (business organization, form unknown)
©) 416.20 (defunct-corporation) (5) 418.60 (minor)
° (71 418.30 {joint stock company/association) =] 416.70 (ward or conservatee).
(5) 416.40 (association or partnership) (1) 416.90 (authorized person) .
T1 416.50 (public entity) (J 415.46 (occupant)
~ 1 other:

7. Person who served papers * *
a. Name: MICHAEL OGATA
b. Address: 981 RIDDER PARK DRIVE, SAN JOSE,CA 95131
c. Telephone number: 408/441-7000 .
“dg. The fee. for service was: $ . ° .
e, lam - | . *
(1) [J nota registered Califomia process server,
(2) [1] exempt from registration under Business and Professions Code section 22350(b).
(3) [64] registered Califomia process server:
@ owner employes [$<] independent contractor.

- (ii) Registration No: 424
(il) County: SAN MATEO :

8. [2] I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is true and correct.

or . :
9. Cam the California sheriff or marshal and | certify that the foregoing is trae and correct.

Date: 09/30/10

(3) with two copies of the Notice and Acknowledgment of Receipt: and’ ‘a postage-paid retum envelope addressed
tome. (Aifach completed Notice and Acknowledgement of Receipt.) (Code Civ. Proc., § 415.30.)

(4) to an address outside Califomia with retum receipt requested. (Code Civ, Proc., § 415.40.) ”

4 ’
MICHAEL OGATA. b . Lakes C2.
(NAME OF PERSON WHO SERVED PAPERS/SHERIFF OF MARSHAL) . {SIGNATURE}

tu. POS-010 (Rev, January 1, 2007]

‘ PROOF OF SERVICE OF SUMMONS

Page 2 of 2

epee /POS2_ SJM002520

arrow OR PARTY WITHOUT. ATTORNEY (Name and Address): * . TELEPHONE No; 418/898-1555, " For Court Use Ority:
zw -BRAYTON & PURCELL .
ATTORNEYS AT LAW
229 RUSH LANDING ROAD
PO BOX 6169 (ZIP: 94948-6169)
NOVATO, CA 94945
DAVID R. DONADIO, ESQ. Bar #: 154436 _ | Fel. No. or Fite No.
ATTORNEY FOR (Name): PLAINTIFF/_AURANGE HAGEN GROUP#1020

Insert name ol cour and name of judicial disiicl and branch court, if any:
SUPERIOR COURT OF CALIFORNIA -
COUNTY OF SAN FRANCISCO -

400 MCALLISTER STREET, ROOM 103:
SAN FRANCISCO, CA 94102-4514
UNLIMITED CIVIL JURISDICTION

SHORT TITLE OF case: LAURANCE HAGEN. VS. ASSOCIATED INSULATION OF CALIFORNIA, etal.

PROOF OF SERVICE BY MAIL | | HEARING DATE: we TT DEPTIDIV: CASE.NUMBER: CGCtoz75582
CCP 1013g,2015.5 . .

lam a citizen of the United States and employed in ‘the County of SANTA CLARA Stale of Califomia. | am over the age
of eighteen years and not a Party to the within action.

My business address i is: 981 Ridder Park Drive
San Jose, CA 95131

On 09/20/10 | served copies of the (Specify documents) ; .

SUMMONS, ‘COMPLAINT, STATEMENT OF DAMAGES, ANSWERS TO INTERROGATORIES

ON CD, NOTICE OF STATUS CINFERENCE, PRELIMINARY FACT SHEET, CIVIL

CASE COVER SHEET” . .

by placing a true copy thereof enctosed in a sealed envelope with postage thereon prepaid in the United States mail at
SAN JOSE California addressed as follows:

“HAAS & HAYNIE CORPORATION
1 PRESIDIO TER
SAN FRANCISCO, CA 94118.

ATTENTION: PAUL B. FAY, Il, AGENT

| declare under penalty of perjury Under the laws of the State of California that the foregoing is true and correct.
Executed on 09/30/10 at _SAN JOSE, California

“Orlanda PataoEXHIBIT B

TO THE DECLARATION OF
JULIE E WILLIAMS IN SUPPORT OF
DEFENDANT HAAS & HAYNIE CORPORATION’S
EXPARTE APPLICATION TO SET ASIDE
AND VACATE DEFAULTOo OTF Oo FB wo wD

Ne eB ee ee Se i eB
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S1D-SR-7600

Mark S. Kannett, SBN 104572

Anthony Bentivegna, SBN 129487

Julie E. Williams, S8M 260278
BECHERER KANNETT & SCHWEITZER
The Water Tower 41255 Powell Strect
Emeryville, California 94608-2604.
Telephone: (510) 658-3600

Facsimile: (510) 658-1151

Attomeys for Defendant
HAAS AND HAYNIE CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
LAURENCE HAGEN, Case No. CGC 10-275582
Plaintif7, STIRULATION BETWEEN
DEFENDANT HAAS AND HAYNIE

v. , ' CORPORATION AND PLAINTIFF TO
: SET ASIDE AND VACATE DEFAULT
ASSOCIATED INSULATION OF .
CALIFORNIA; Defendants as Reflected on
Exhibit 1 attached to the Summary
Complaint herein; and DOES 1-8500.

Defendants.

STIPULATION AND ORDER BY DEFENDANT HAAS AND HAYNIE CORPORATION 10 SBT ASIDE AND
VACATE DEFAULT .

Received Time Jan. 21, 2011 14:30AM Wo. 33351 Pursuant to Code of Civil Procedure ‘Sections 473 through 473.5, the partics below hereby
i 21 STIPULATTE that the default judgment entered against Haas & Haynie on January 7, 2011, is
4 3 . . .
| hereby vacated and that Haas & Haynie will answer this action within ten days of the signing of
: 4 : .
' 5 this order, The parties further agree that the stipulation and the order may be approved by the
6 Court ex parte,
7 :
Dated: January'21, 2011 BECHERER KANNETT & SCHWEITZER,
\ 8
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10 By: J 4 Hn .
tt Williams
: oo : Atfomeys for Defendant
12 HAAS AND HAYNIE CORPORATION
13
14 | Dated: JanaryZ/, 2011 BRAYTON * PURCELL LLP
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STIPULATION AND ORDER BY DEFENDANT HAAS AND HASNIE CORPORATION TO SETASIDEAND
VACATE DEFAULT

Received Time Jan. 21. 2011 11:30AM Wo. 3335EXHIBIT C

TO THE DECLARATION OF
JOLIE E WILLIAMS IN SUPPORT OF
DEFENDANT HAAS & HAYNIE CORPORATION’S
EXPARTE APPLICATION TO SET ASIDE
AND VACATE DEFAULTBecherer
Kannett &
Schweitzer

1255
Powell Steet
Emeryville, CA
94608-2604
510-658-3600

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Mark S. Kannett, SBN 104572

Anthony Bentivegna, SBN 129487

Julie E. Williams, SBN 260278
BECHERER KANNETT & SCHWEITZER
1255 Powell Street

Emeryville, California 94608-2604
Telephone: (510) 658-3600

Facsimile: (510) 658-1151

Attorneys for Defendant
HAAS AND HAYNIE CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
LAURENCE HAGEN, Case No. CGC 10-275582
Plaintiff, ANSWER TO COMPLAINT FOR
PERSONAL INJURY — ASBESTOS BY
v. DEFENDANT HAAS AND HAYNIE
CORPORATION
ASSOCIATED INSULATION OF

CALIFORNIA; Defendants as Reflected on
Exhibit 1 attached to the Summary Complaint
herein; and DOES 1-8500.

Defendants.

Defendant HAAS AND HAYNIE CORPORATION (herein after referred to as, “HAAS”)|
answers the Complaint as follows:

The use of a neuter pronoun in this answer includes feminine, masculine and plural
pronouns, and any singular in this answer, referring to "plaintiff" or "defendant," shall include the}
plural reference.

GENERAL DENIAL

This answering defendant generally denies each and every allegation in the Complaint, as

permitted by California Code of Civil Procedure § 431.30. HAAS further denies that Plaintiff is

entitled to recover damages of any kind in any amount whatsoever from HAAS.

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Karmett &
Schweitzer

1255
Powell Street
Emeryville, CA

510-658-3600

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AFFIRMATIVE DEFENSES

FIRST DEFENSE
(Failure to State a Cause of Action)

This answering defendant alleges that the Complaint and each of the causes of action for!

relief alleged therein, fail to state a cause of action against this answering defendant.

SECOND DEFENSE
(Comparative Fault)

This answering defendant alleges that the damages, if any, complained of by Plaintiff, was
proximately caused by the negligence of firms, persons, corporations and entities other than
HAAS, and that said negligence comparatively reduces the percentage of any negligence for]
which HAAS is legally responsible, if any be found, which negligence this defendant expressly}

denies.
THIRD DEFENSE
(Contributory Negligence)

This answering defendant alleges that Plaintiff did not exercise ordinary, care, caution or
prudence to avoid the incidents complained of herein, and said incidents and the injuries and
damages, if any, sustained by Plaintiff, were directly and proximately caused and contributed to

by the carelessness and negligence of said Plaintiff.

FOURTH DEFENSE
(Uncertainty)

This answering defendant alleges that the Complaint and all purported causes of action

therein are vague, ambiguous and uncertain.

FIFTH DEFENSE
(Laches)}

This answering defendant alleges that Plaintiff unreasonably delayed in bringing this
action and that such delay substantially prejudiced defendant, and that this action is therefore

barred by the doctrine of laches.

2

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

1255
Powell Streat
Emeryville, CA
94608-2604
510-658-3600

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SIXTH DEFENSE
(Statute of Limitations)

This answering defendant alleges that Plaintiffs Complaint and the purported causes “4
action therein are barred by all statutes of limitation, including but not limited to, the provisions

of California Code of Civil Procedure §§ 340 and 340.2. Plaintiff’s claims are further barred by

the statutes of limitations of states other than California pursuant to California Code of Civil

Procedure § 361.

SEVENTH DEFENSE
(Failure to Mitigate)

This answering defendant alleges that Plaintiff failed to mitigate damages which they

contend they suffered, and Plaintiff is, therefore, barred from recovery whatsoever.

EIGHTH DEFENSE
({Estoppel)

This answering defendant alleges that as a result of the acts, conduct and/or omissions of}
Plaintiff and his agents, or each of them, the Complaint, and each cause of action presented

therein, is barred under the doctrine of estoppel.

NINTH DEFENSE
(Waiver)

This answering defendant alleges that Plaintiff, by his acts, conduct and omissions, have

waived the claims alleged in the Complaint and in each purported cause of action alleged therein.

TENTH DEFENSE
(Compliance with Statutes)

This answering defendant alleges that all of its conduct and activities as alleged in the
Complaint conformed to statutes, government regulations, and industry standards based upon the

state of knowledge existing at all relevant times.
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ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

1285
Pevwell Stroot
Emeryville, CA
94608-2504
510-658-3600,

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ELEVENTH DEFENSE
(Compliance with Specifications)

This answering defendant alleges that the asbestos products, if each, for which HAAS had]
each legal responsibility, were manufactured, packaged, distributed or sold in accordance with]
contract specifications imposed by its co-defendants, by the U.S. Government, by Plaintiff's

employers, or by third parties yet to be identified.

TWELFTH DEFENSE
(State of the Art)

This answering defendant alleges that all of its products and materials at issue here at all

times were produced and marketed in conformity with the existing state of the art.

THIRTEENTH DEFENSE
(Misuse)

This answering defendant alleges that if Plaintiff allegedly suffered injuries attributable to
the use of any product for which HAAS, had any legal responsibility, which allegations are
expressly herein denied, the injuries were solely caused by and attributable to the unreasonable,
unforeseeable, and inappropriate purpose and improper use and abuse which was made of said

product.

FOURTEENTH DEFENSE
(Due Care and Diligence)

This answering defendant alleges that HAAS, exercised due care and diligence in all of
the matters alleged in the Complaint, and no act or omission by HAAS, was the proximate cause
of any damage, injury or loss to Plaintiff.

FIFTEENTH DEFENSE
(Alteration of Product)

This answering defendant alleges that an insubstantial amount, if any at all, of the
products containing asbestos sold by defendant, were not sold to Plaintiff, and if so, were

substantially altered by others and/or used in a mamner inconsistent with the labeled directions.

4

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

Vass
Powell Steet
Emeryville, CA.
91608-2604
510-658-3600

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SIXTEENTH DEFENSE
(Equal or Greater Knowledge of Hazards)
This answering defendant alleges that each product containing asbestos supplied by’
defendant were supplied to persons or entities who had knowledge with respect to the hazards, iff
each, resulting from exposure to products containing asbestos which are equal to or greater than!

the knowledge of HAAS.

SEVENTEENTH DEFENSE
(Other Parties’ Liability and Negligence)

This answering defendant alleges that if there was any negligence or any other form of
liability on the part of each of the parties named herein, it was the sole and exclusive negligence

and liability of the other persons or entities and not of HAAS.

EIGHTEENTH DEFENSE
(Witt v. Jackson: Apportionment and Offset)

This answering defendant is informed and believes and thereon alleges that each of|
Plaintiff's employer's acts and omissions, including Plaintiff's employer's agents, servants, and
employees acting within the course and scope of his employment, and others contributed to the
alleged damages, injury, or loss, if cach, sustained by Plaintiff. Defendant requests that the Court
apply the principles of Witt v. Jackson, 57 Cal.2d 57 (1961), and the subsequent cases modifying
that decision so as to permit the Court or jury to apportion liability according to fault and to grant

defendant a corresponding offset against each damages awarded to Plaintiff.

NINETEENTH DEFENSE -
(Assumption of Risk by Each Plaintiffs Employer(s))

This answering defendant alleges that the Complaint and each cause of action alleged!
therein are barred on the grounds that Plaintiff's employer or employers knowingly entered into
and engaged in the operations, acts and conduct alleged in the 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.

5

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

1255
Powell Sireet
Emeryville, CA
54608-2608
510-658-3600

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TWENTIETH DEFENSE
(Assumption of Risk)

This answering defendant alleges that Plaintiff assumed the risk of the matters referred to
in his Complaint and that Plaintiff knew and appreciated the nature of the risk and that each|
Plaintiff voluntarily accepted this risk.

TWENTY-FIRST DEFENSE
(No Market Share)

This answering defendant alleges that HAAS did not have. an appreciable share of the
market for the asbestos-containing products which allegedly caused Plaintiff's injuries, which|
occurrence HAAS expressly denies. Accordingly, HAAS may not be held liable to Plainti

based on its alleged share of the applicable product market.

TWENTY-SECOND DEFENSE
(Independent, Intervening or Superseding Cause)

This answering defendant alleges that if Plaintiff suffered any injuries attributable to the
use of each product containing asbestos which was sold by defendant, which allegations are
expressly herein denied, the injuries were solely caused by an unforeseeable, independent,
intervening and/or superseding event beyond the control and unrelated to cach conduct of
defendant. Defendant’s actions, if any, were superseded by the negligence and wrongful conduct

of others.
TWENTY-THIRD DEFENSE
(Not a Substantial Factor)

This answering defendant alleges that the Complaint and each cause of action therein
presented are barred on the grounds that the defendant’s products or materials referred to in the

Complaint, if any, were not a substantial factor in bringing about the injuries and damages

™

complained of by Plainti

TWENTY-FOURTH DEFENSE
(No Successor Liability)

This answering defendant alleges that HAAS, has no liability for the acts of any other|

-defendant or any other entity because HAAS, did not become legally responsible for the acts o:

6

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

128s
Powell Street
Emeryville, CA
94608-2604
510-658-3600

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any such defendant or entity given the facts and circumstances of the pertinent transactions.

TWENTY-FIFTH DEFENSE
(Lack of Privity)

This answering defendant alleges that Plaintiff has failed to state a cause of action in that}
the Complaint fails to allege that there was privity between defendant on the one hand, and
Plaintiff on the other, and furthermore, such privity did not exist between defendant on the one

hand, and Plaintiff on the other.

TWENTY-SIXTH DEFENSE
(Civil Code Section 1431.2)

This answering defendant alleges that the provisions of California Civil Code § 1431.2 are!

applicable to the Complaint and to each cause of action therein.

TWENTY-SEVENTH DEFENSE
(Workers’ Compensation Exclusive Remedy)

This answering defendant alleges that the Complaint ‘is barred by the exclusivity
provisions of the California Workers’ Compensation laws, including, but not limited to,

California Labor Code §§ 3600, et seq.

TWENTY-EIGHTH DEFENSE
(Offset for Workers’ Compensation Benefits)

This answering defendant alleges that to the extent Plaintiff herein recovered each monies
in connection with any claim for workers’ compensation, benefits, each amounts recovered in this

action are subject to a credit or offset.

TWENTY-NINTH DEFENSE
(Failure to Establish Involvement with
Asbestos-Related Activities)

This answering defendant alleges that HAAS, did not research, study, manufacture,
fabricate, design, modify, label, assemble, distribute, lease, buy, sell, offer for sale, supply,

inspect, service, install, contract for installation, repair, market, warrant, rebrand, package,

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ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

Lass
Povrell Street
Emeryville, CA
94608-2604
510-658-4600

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oO wy
Be So

22

27
28

advertise, transport, or use each asbestos or products containing asbestos to which Plaintiff was

allegedly exposed.

THIRTIETH DEFENSE
(Unusual Susceptibility)

This answering defendant alleges that each of Plaintiff's injuries and damages, if any,
were proximately caused or contributed to by each Plaintiff's unforeseeable idiosyncratic

condition, unusual susceptibility, or hypersensitive reactions for which HAAS, is not liable.

THIRTY-FIRST DEFENSE
(Punitive Damages Prohibited)

This answering defendant alleges that the Complaint-fails to state facts sufficient to
support an award of punitive or exemplary damages against HAAS. . The Complaint, to the extent}
that it seeks exemplary or punitive damages, violates HAAS’s right to procedural due process
under the Fourteenth Amendment of the United States Constitution, and the Constitution of the
State of California, and fails to state a cause of action upon which either punitive or exemplary

damages can be awarded.

THIRTY-SECOND DEFENSE
(Punitive Damages Prohibited)

This answering defendant alleges that the Complaint, to the extent that it seeks punitive or|
exemplary damages, violates HAAS’s right to protection from excessive fines as provided in the
Eighth Amendment of the United States Constitution and Article I, Section 17 of the Constitution|
of the State of California, and violates HAAS’s right to substantive due process as provided in the
Fifth and Fourteenth Amendment of the United States and California Constitutions, and thus fails

to state a cause of action supporting an award of punitive or exemplary damages.

THIRTY-THIRD DEFENSE
(Good Faith)

This answering defendant alleges that Plaintiffs claim for punitive damages is barred
because HAAS, at all times and places mentioned in the Complaint acted reasonably and in good|

faith, and without malice or oppression towards Plaintiff.
8

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

155
Powell Street
Emeryville, CA
94608-2604
510-658-3600

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RO a a aaa ee
oO OO WAN DO HOH FB WH NH KF OD

21

THIRTY-FOURTH DEFENSE
(Sophisticated User)

This answering defendant alleges that HAAS, was under no legal duty to warn Plaintiff of|
the hazard associated with the use of products containing asbestos. The purchasers of said
products, Plaintiff's employers, unions or certain third parties yet to be identified, were
knowledgeable and sophisticated users and were in a better position to warn Plaintiff of the risk
associated with using products containing asbestos and, assuming a warning was required, it was

the failure of such persons or entities to give such a warning that was the proximate and

superseding cause of Plaintiff's damages, if each.

THIRTY-FIFTH DEFENSE
(Applicable Law)

This answering defendant alleges that the law applicable to defendant and Plaintiff is the
law as it existed during the period defendant allegedly engaged in manufacturing, sale or|

distribution of asbestos or asbestos containing products.

THIRTY-SIXTH DEFENSE
’ Cailure to Allege with Particularity)

This answering defendant alleges that the Complaint fails to set out its claims with!
sufficient particularity to permit defendant to raise all appropriate defenses and, thus, defendant

reserves the right to add additional defenses as the factual basis for these claims becomes known.

THIRTY-SEVENTH DEFENSE
(Res Judicata and Collateral Estoppel)

This answering defendant alleges that the Complaint is barred under the principles of res
judicata, collateral estoppel and the prohibition against split causes of action.
iif
if
Mf
df

9

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &
Schweitzer

1255
Powell Stceet
Emeryville, CA
94608-2604
510-658-3600

CoM NAH BF WY

YN N NN Be Be Be ee ee
BONS = 6 © B® NDA ROHN HF CS

25
26
27
28

WHEREFORE, this answering defendant prays for judgment as follows:
1. That Plaintiff take nothing by reason of his Complaint or each claims stated therein;

2. That Plaintiffs Complaint and each cause of action contained therein be dismissed

- with prejudice against HAAS;

3. For costs of suit; and

4. For such other relief as the Court deems just and appropriate in the circumstances.

Dated: January 20, 2011 BECHERER KANNETT & SCHWEITZER

By: lo 4 (Kh
julie E. Williams

‘Attorneys for Defendant
HAAS AND HAYNIE CORPORATION

10

ANSWER TO COMPLAINT BY DEFENDANT HAAS AND HAYNIE CORPORATIONBecherer
Kannett &

oOo oO NN DO oO FF Ww NY =

24
25

Schweitzer

1255
Powell SL

26

Emeryville, CAY
Spee cAQ7

510-658-2600

28

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, Sonjua R. Fisher, declare that | am, and was at the time of service of the documents herein
teferred to, over the age of 18 years, and not a party to the action; and I am employed in the County
of Alameda, State of California. My business address is 1255 Powell Street, Emeryville, California
94608.

On January 28, 2011, I electronically served the document(s) via LexisNexis File & Serve
described as:

MEX PARTE APPLICATION BY DEFENDANT HAAS AND HAYNIE CORPORATION
TO SET ASIDE AND VACATE DEFAULT;

Hl) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION BY DEFENDANT HAAS AND HAYNIE CORPORATION TO SET
ASIDE AND VACATE DEFAULT;

Ml DECLARATION OF JULIE WILLIAMS IN SUPPORT OF EX PARTE APPLICATION BY
DEFENDANT HAAS AND HAYNIE CORPORATION TO SET ASIDE AND VACATE
DEFAULT; and;

M ORDER RE STIPULATION BETWEEN PLAINTIFF AND BY DEFENDANT HAAS AND
HAYNIE CORPORATION TO SET ASIDE AND VACATE DEFAULT

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

I declare under penalty of perjury~pursuant| to the laws of the State of California that the
foregoing is true and correct and that\this declafation was executed on January 28, 2011, at
Emeryville, California.

1

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Laurence Hagen v. Associated Insulation of California, et al
SFSC Case No.: CGC 10-275582