On December 06, 2001 a
Answer
was filed
involving a dispute between
Jordan, Cheryl Lynn,
Jordan, James,
Thomas Dee Engineering Company,
and
4520 Corp.,
Abblummus Global, Inc.,
A C And S,Inc.,
A.H. Voss Company,
Albay Construction,
Allis-Chalmers Corp. Product Liability Trust,
American Honda Motor Co., Inc.,
American Standard, Inc.,
Asbestos Corp. Limited,
Asbestos Corporation Ltd.,
Asbestos Defendants,
Babcock Borsig Power Inc Ref To Db Riley Inc,
Blue Diamond Corp.,
Borg Warner Inc.,
Borgwarner Inc. Fka Borg-Warner Automotive, Inc.,
Bragg Investment Company, Inc.,
Bridgestone Firestone Americas Holdings, Inc.,
Bridgestone Firestone,Inc.,
Bridgestone Firestone North American Tire, Llc,,
Bwd Automotive,
Calaveras Cement Co.,
Certainteed Corporation,
Chevron Products Company,
Colonial Sugar Refining Company,
Conocophillips Company,
Consolidated Insulation, Inc.,
Crane Co.,
Crown Cork & Seal Company,Inc.,
Daimlerchrysler Corporation,
Dana Corporation,
D. Cummins Corporation,
Diamond International Corp.,
Dillingham Construction N.A.,Inc.,
Dixon Boiler Works Inc,
Dixon Boiler Works, Inc.,
Does 1-800,
Dow Chemical Company,
Dresser Industries Inc.,
D.W. Nicholson Corporation,
Eaton Corporation,
Elliott Company,
Elliott Turbomachinery Co., Inc.,
Fisher Controls International, Llc,
Flintkote Co.,
Flintkote Mines Ltd.,
Flowserve Us Inc,
Flowserve Us Inc.,
Fluor Corporation,
Fmc Corporation -Turbo Pump Operation,
Ford Motor Company,
Foster Wheeler Llc,
Garlock Sealing Technologies, Ll,
Gatke Corporation,
General Electric Company,
General Motors Corporation,
General Refractories Company,
Genstar Co.,
Genuine Parts Company,
Goodrich Corporation,
Grinnell Corporation,
Halliburton Company,
Hanson Cement, Inc.,
Henry Vogt Machine Co.,
Hercules Powder Company,
Honeywell International, Inc. Fka Alliedsignal,
Imo Industries Inc.,,
Imo Industries, Inc.,
J.R.Simplot Company,
J.R. Simplot Company, A Nevada Corporation,,
J.T. Thorpe & Son, Inc.,
Kaiser Gypsum Company, Inc.,
Keenan Properties, Inc,
Kubota Corporation,
Lamons Gasket Company Dba Power Engineering &,
Lear Siegler Diversified Holdings Corp.,
Maremont Corporation,
Metalclad Insulation Corporation,
Monsanto Company,
Morton International, Inc. A Rohm And Haas Company,
Oakfabco, Inc.,
Oscar E. Erickson, Inc.,
Owens-Illinois, Inc.,
Pacific Coast Building Products, Inc Dba Pacific,
Parker Hannifin Corporation,
Parker-Hannifin Corporation,
Parsons Energy & Chemical Group, Inc.,
Parsons Energy & Chemicals Group Inc,
Plant Insulation Company,
Pnuemo Abex Corporation, As Successor,
Power Engineering & Equipment Co. Inc.,
Quigley Company, Inc.,
Rapid-American Corporation,
Republic Supply Company,
Rheem Manufacturing Co,
Rheem Manufacturing Company,
Robertson-Ceco Corporation,
Rosendahl Corporation,
Santa Fe Braun, Inc. As Successor-In-Interest To,
Sequoia Ventures, Inc.,
Shell Oil Company,
Soo Line Railroad Company,
Standard Motor Products,
Stuart Radiator Core Manufacturing Co Inc,
Stuart Radiator Core Manufacturing Co. Inc.,
Stuart-Western, Inc.,
Sugar City Building Materials Inc.,
Taylor Plumbing Supply Company, Dba Globe Plumbing,
Taylor Plumbing Supply Inc.,
Temporary Plant Cleaners, Inc.,
The Budd Company,
Thomas Dee Engineering Company,
Thorpe Insulation Company,
Tosco Corporation,
Tosco Refining Company,
Trimon, Inc.,
Union Carbide Corporation,
Unocal Corporation,
Viacom Inc., Successor By Merger To Cbs Corporatio,
Vogt Valve Company,
Waldron, Duffy, Inc.,
Westburne Supply, Inc.,
Yale Industrial Products, Inc.,
Zurn Industries, Inc.,
for ASBESTOS
in the District Court of San Francisco County.
Preview
eee Be
MA
San Francisco Superior Courts
Information Technology Group
Document Scanning Lead Sheet
Mar-13-2002 10:03 am
Case Number: CGC-01-402113
Filing Date: Mar-13-2002 10:01
Juke Box: 001 Image: 00377144
ANSWER
JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)
001000377144
Instructions:
Please place this sheet on top of the document to be scanned.
Se SU
RICHARD L. REYNOLDS #77881
BENNET?1, SAMUELSEN, REYNOLDS & ALLARD
A Professional Corporation
F
Attorneys at Law
1951 Webster Street, Suite 200
Qakland, California 94612-2940 San Francisco County Superior Court
Telephone: (510) 444-7688
MAR 13 2002
PAUL J. RIEHLE #115199
er
SEDWICK, DETERT, MORAN & ARNOLD K-L lerk
One Embarcadero Center, 16" Floor
San Francisco, CA_94111 Bspahy Clerk
Telephone: (415) 781-7900
Attorneys for Defendant
GATKE CORPORATION
9 A Bankrupt, Defunct, Dissolved Corporation
10
11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 IN AND FOR THE COUNTY OF SAN FRANCISCO
13 JAMES JORDAN, NO. 402113
(Unlimited Jurisdiction]
14 Plaintiff,
ANSWER TO COMPLAINT
15 vs.
16 ASBESTOS DEFENDANTS [BHC], et al.,
17 Defendants.
18
19
20 COMES NOW defendant GATKE CORPORATION, a bankrupt, defunct, dissolved
21 corporation, and answers plaintiff's unverified complaint herein as follows:
22 I
23 This defendant denies each and every, all and singular, generally and specifically, the
24 allegations contained in the complaint, and in this connection, this defendant denies that
25
plaintiff has becn or was injured or damaged in the unspecified sum or sums alleged in the
26 complaint, or in any other sum or sums, or otherwise, or at all.
27
28
BENNETT, SAMUELSEN,
REYNOLDS LEA -4-
APROFESSION
981 WEBS) REET
IR 30
OAKLANI 12.2940 ANSWER TO COMPLAINT
Gl
oo
MY Ne
AFFIRMATIVE DEFENSES
AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES TO
EACH AND EVERY CAUSE OF ACTION OF PLAINTIFF’S COMPLAINT, AS
THOUGH PLEAD SEPARATELY TO EACH AND EVERY OF SAID CAUSES OF
ACTION, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
FIRST AFFIRMATIVE DEFENSE
Each and every of said causes of action fails to state a cause of action against this
answering defendant.
SECOND AFFIRMATIVE DEFENSE
10 Each and every cause of action of plaintiffs complaint seeks recovery for damages,
ll which is barred by the statute of limitations, including but not limited to, California Code of
12 Civil Procedure, Sections 340(3), 340.2, 338(1), 338(4), 343, 337.1 and 337.15.
13 THIRD AFFIRMATIVE DEFENSE
14 I
15 This answering defendant is informed and believes, and based upon said information
16 and belief alleges, that at the times and places mentioned in plaintiff's complaint, the
17 plaintiff was careless and negligent in and about the matters alleged in the complaint, and
18 that said carelessness and negligence caused and contributed, to the extent of one hundred
19 percent, to any injuries and damages allegedly sustained by plaintiff, if any such injuries or
20 damages there were, or are.
21 IL.
22 Atall times denying any liability whatsoever to plaintiff herein and at all times
23 denying that plaintiff is entitled to any recovery herein, this answering defendant alleges that
24 in the event of any judgment or verdict in favor of plaintiff herein, that said judgment or
25 verdict must be reduced to the extent that said carelessness and negligence of plaintiff
26 caused or contributed to the alleged injuries and damages allegedly sustained by plaintiff, if
27 any such injuries or damages there were, or are.
28
REET AMUPLSEN,
‘& ALLARD
‘8 PROFESSIONAL CORP,
-2-
1981 WEBSTER STREET
OAKLAND, CA aie}2-2010
S10} 444-7688. ANSWER TO COMPLAINT
\, Se
FOURTH AFFIRMATIVE DEFENSE
L
This answering defendant is informed and believes, and based upon said information
and belief alleges, that plaintiff has received or receive disability and medical benefits under
a worker’s compensation law, or similar laws, from plaintiff's employers or former
employers or their worker’s compensation or similar insurers, on account of the injuries and
damages allegedly sustained by plaintiff which give rise to this lawsuit, if any such injuries
or damages there were or are.
IL.
10 At all times denying any liability or obligation to plaintiff or any other person or
1] entity whatsoever, this answering defendant alleges that each and every of plaintiff's
12 employers and former employers was careless and negligent in and about the matters alleged
13 in plaintiff's complaint and that said carelessness and negligence of each and every of said
14 employers contributed directly and proximately to any alleged injuries or damages sustained
15 by plaintiff and/or any or all of said employers.
16 Ill.
17 By reason of the premises, and at all times denying that plaintiff is entitled to any
18 judgment or verdict whatsoever herein, any judgment or verdict that might be rendered in
19 favor of plaintiff herein should be reduced by the amount of all such payments by said
20 employers or insurers, and that each of said employers or insurers should be barred from any
21 recovery by lien or otherwise in connection with this matter.
22 FIFTH AFFIRMATIVE DEFENSE
23 At all times denying the allegations of plaintiff's complaint, this answering defendant
24 is informed and believes, and based upon said information and belief alleges, that plaintiff
25 voluntarily and knowingly assumed the alleged risks and alleged hazards incident to the
26 alleged operations, acts and conduct at the times and places alleged in the complaint, and
27 that plaintiff's said acts proximately caused and contributed to the alleged injuries and
28
ENNETT, SAMUELSER,
SERDEESSIONAL COME -3-
19st WEBSTER STREET
OAKLAND, CA 4812-2940
{S19} 444-7656 ANSWER TO COMPLAINT
‘. ~. ~
damages, if any such injuries or damages there were, or are.
SIXTH AFFIRMATIVE DEFENSE
I
This answering defendant is informed and believes, and based upon said information
and belief alleges, that any injuries and damages allegedly sustained by plaintiff were
6 directly and proximately caused by the misuse of the product or products allegedly involved,
by plaintiff and plaintiff's employers.
SEVENTH AFFIRMATIVE DEFENSE
I
10 This answering defendant incorporates herein by reference, as though sct forth in full
lh at this point, each and every allegation contained in Paragraph 1 of its Fourth Affirmative
12 Defense.
13 I.
14 At all times denying all allegations of plaintiff's complaint, this defendant is informed
15 and believes, and based on said information and belief alleges, that plaintiff's employers
16 voluntarily and knowingly assumed the alleged risks and alleged hazards of the alleged
17 operations, acts and conduct at the times and places alleged in plaintiff's complaint, and that
18 said acts of plaintiffs employers directly and proximately caused and contributed to any
19 alleged injuries or damages allegedly sustained by the plaintiff, and/or by any or all of
20 plaintiff's employers, if any such injuries or damages to either plaintiff or any employer of
21 plaintiff there were, or are.
22 UL.
23 By reason of the premises, at all times denying that plaintiff is entitled to any
24 judgment or verdict whatsoever herein, any judgment or verdict that might be entered in
25 favor of plaintiff herein should be reduced by the amount of all such payments by said
26 employers or insurers, and that each of said insurers or employers should be barred from any
27 recovery herein.
28
DENNETT, SAMUELSEN,
menoresuvar Cone =4-
198] WERSTRR STREET
OnrcanDy CA 582-2900
(S103 454.7688 ANSWER TO COMPLAINT
Ne
EIGHTH AFFIRMATIVE DEFENSE
At all times denying any liability whatsoever for plaintiff herein, this defendant
alleges that any alleged liability or responsibility of this defendant, any such alleged liability
and responsibility being denied, is small in proportion to the alleged liability and
responsibility of other persons and entities, including other persons and entities who are
defendants herein, and that plaintiff should be limited to seeking recovery from this
defendant for the proportion of alleged injuries and damages for which this defendant is
allegedly liable or responsible, all such alleged liability and alleged responsibility being
expressly denied.
10 NINTH AFFIRMATIVE DEFENSE
11 This answering defendant is informed and believes, and based upon said information
12 and belief alleges, that plaintiff has unreasonably delayed in bringing of this action without
13 good cause therefor. Said delay has directly and proximately resulted in prejudice to this
14 defendant and, therefore, this action is barred by laches.
15 TENTH AFFIRMATIVE DEFENSE
16 At all times denying all allegations of plaintiff's complaint, this answering defendant
17 is informed and believes, and based upon said information and belief alleges, that plaintiff is
18 barred from recovery herein because of modification, alteration or change in some other
19 manner of the products alleged in plaintiff's complaint on file herein.
20 ELEVENTH AFFIRMATIVE DEFENSE
21 At all times mentioned herein, this answering defendant is informed and believes, and
22 based upon said information and belief alleges, that plaintiff acknowledged, ratified,
23 consented to and acquiesced in the alleged acts or omissions, if any there were, of this
24 answering defendant, thus barring plaintiff from any relief as prayed for herein.
25 TWELFTH AFFIRMATIVE DEFENSE
26 At all times denying any liability or obligation whatsoever to plaintiff herein, and/or
27 to any other person or entily of any nature or capacity whatsoever, and at all times denying
28
ENNETT, SAMUBI.SEN,
& PROFESSIONAL CORP. -5-
PSst WEaSTE TREET
OAKLAND,
(519) ee ANSWER TO COMPLAINT
Be
Ne
that plaintiff is entitled to any recovery herein, this answering defendant alleges that at all
times and places mentioned in plaintiff's complaint, its products were manufactured,
produced, supplied, sold and distributed in 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 herein is thus further barred by said
sovereign acts and powers.
THIRTEENTH AFFIRMATIVE DEFENSE
The complaint fails to state a cause of action against this answering defendant for
exemplary/punitive damages.
10 FOURTEENTH AFFIRMATIVE DEFENSE
lt There is a defect and misjoinder of partics defendant.
12 FIFTEENTH AFFIRMATIVE DEFENSE
13 The complaint and each cause of action thereof is barred by the provisions of
14 Commercial Code Sections 2725(1) and 2725(2).
15 SIXTEENTH AFFIRMATIVE DEFENSE
16 Plaintiff failed to mitigate his alleged damages, if any there were.
17 SEVENTEENTIT AFFIRMATIVE DEFENSE
18 This answering defendant received no notice of any dangerous, hazardous or
19 defective condition or any breach of warranty, either express or implied.
20 EIGHTEENTH AFFIRMATIVE DEFENSE
21 The claim of plaintiff for personal injury was previously litigated on the merits, and a
22 judgment in said prior action having been rendered, plaintiff's complaint, and each cause of
23 action therein, is barred.
24 NINETEENTH AFFIRMATIVE DEFENSE
25 Plaintiff presently has another action pending arising out of the same wrongs and
26 injuries alleged in this matter, and on that basis plaintiff
has split his cause of action and the
27 present action is therefore barred.
28
BENNETT, SAMUELSEN,
& ARD
A PROFESSIONAL CORP -6-
18S? WEBSTER, ceT
OAKLAND, C4 $4612-2940 ANSWER TO COMPLAINT
(510) 444-7688
~ eo
TWENTIETH AFFIRMATIVE DEFENSE
Defendant alleges that plaintiffs action is barred as to this defendant by reason of the
operations of the provisions contained in California Labor Code Sections 3600, 3601 and
3602, et seq., and that plaintiffs right to recovery against this defendant, if any there be, is
limited to the exclusive remedy provided in the aforementioned sections.
TWENTY-FIRST AFFIRMATIVE DEFENSE
This answering defendant alleges that this action is stayed or plaintiff's claim is
discharged in bankruptcy filed by this defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
10 This answering defendant alleges that this action is barred and is untimely as
1] defendant, a dissolved Illinois corporation, was dissolved more than five years prior to the
12 filing of the complaint herein, pursuant to 805 IT.CS $/12.80.
13 TWENTY-THIRD AFFIRMATIVE DEFENSE
14 As and for a further affirmative defense to the complaint, defendant alleges that the
15 action is barred by virtue of Civil Code section 47, the litigation privilege, in that the
16 statements, acts, conduct or omissions alleged occurred in connection with the litigation of
17 claims and defenses in actions in which defendant was concerned.
18 TWENTY-FOURTH AFFIRMATIVE DEFENSE
19 As and for a further affirmative defense to the complaint, defendant alleges that the
20 action is barred by virtue of the First Amendment to the Constitution of the United States of
21 America, and the Constitution of the State of California and other States of the United
22 States, in that the statements, acts, conduct or omissions alleged were undertaken in the free
23 exercise of rights guaranteed to defendant under said constitutions, including rights of free
24 speech, access to courts and the judicial system, and participation in the political process
25 including but not limited to petitioning the government and its agencies,
26 TWENTY-FIFTH AFFIRMATIVE DEFENSE
27 As and for a further affirmative defense to the complaint, defendant alleges that the
28
BENNETT, SAMUELSEN,
OLDS & ALLARD. -7-
‘A PROFESSIONAL CORP.
1981 WEDS TER STREET
Gi adds 12-3840
3 ANSWER TO COMPLAINT
2
action is barred by virtue of the decisions ofthe California Supreme Court in Temple
Community Hospital v. Superior Court (1999) 20 Cal. 4" 464; Cedars Sinai Medical Center
v, Superior Court (1998) 18 Cal 4" 1, in that the statements, acts, conduct or omissions
alleged are not actionable.
WHEREFORE, this answering defendant prays as follows:
1 That plaintiff take nothing by reason of his complaint on file herein.
2 For costs of suit incurred herein; and
3 For such other and further relief’as the court deems proper.
10 DATED: March 7, 2002
il BENNETT, SAMUELSEN, REYNOLDS & ALLARD
12
13
By
14 Richard L. Reynolds
Attorneys for efendant
15 GATKE CORPORATION
16
17
18
19
20
21
22
23
24
25
26
27
28
BENNETT, SAMUELSEN,
REYNOLDS &
‘A PROFESSIONAL one. -B-
1951 WEBSTER STREET
OAKLAND, Ga Dasi2-29¢0
(510) 442.7688 ANSWER TO COMPLAINT
-
CERTIFICATE OF SERVICE
1am a citizen of the United States, over the age of 18 years and not a party to the
cause herein. am an employee of BEN TT, SAMUELSEN, REYNOLDS &
ALLARD, A Professional Corporation, 1951 Webster Street, Suite 200, Oakland,
California 94612-2940.
On March 11, 2002, | served the attached:
ANSWER TO COMPLAINT
on the interested parties in said cause, by causing an original or true copy thereof to
be enclosed in a sealed envelope addressed as follows:
10
IL Alan R. Brayton
Brayton Purcell
12 P. O. Box 2109
Novato, CA 94948
13
Paul J. Riehle |
14 Sedgwick, Detert, Moran & Arnold
One Embarcadero Center, 16" Floor
15 San Francisco, CA 94111-3628
16
17
18
19 § nited
x ) BY MAIL: I caused such envelo with postage thereon fully prepaid to be placed in the
States mail, in the City of Oakland, California.
20 I declare under penalty of perjury under the laws, tate of California that the
fore; oing is true and correct and that this declaration w. ited on 3/11/02 in Oakland,
21 Cali ornia,
22
CLEMENTINE HALL fst
23 Name of Declarant SIGNATURE ON ORIGINAL PROOF OF SERVICE
24
25
26
27
BENNETT, SAMUELSEN,
DS@ AL AR
ATkOee iSSIONAL CO! ee
19S! WEBSTER § eT
A 98612-2020
(510) 444.7688
Preview
eee Be MA San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Mar-13-2002 10:03 am Case Number: CGC-01-402113 Filing Date: Mar-13-2002 10:01 Juke Box: 001 Image: 00377144 ANSWER JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) 001000377144 Instructions: Please place this sheet on top of the document to be scanned. Se SU RICHARD L. REYNOLDS #77881 BENNET?1, SAMUELSEN, REYNOLDS & ALLARD A Professional Corporation F Attorneys at Law 1951 Webster Street, Suite 200 Qakland, California 94612-2940 San Francisco County Superior Court Telephone: (510) 444-7688 MAR 13 2002 PAUL J. RIEHLE #115199 er SEDWICK, DETERT, MORAN & ARNOLD K-L lerk One Embarcadero Center, 16" Floor San Francisco, CA_94111 Bspahy Clerk Telephone: (415) 781-7900 Attorneys for Defendant GATKE CORPORATION 9 A Bankrupt, Defunct, Dissolved Corporation 10 11 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF SAN FRANCISCO 13 JAMES JORDAN, NO. 402113 (Unlimited Jurisdiction] 14 Plaintiff, ANSWER TO COMPLAINT 15 vs. 16 ASBESTOS DEFENDANTS [BHC], et al., 17 Defendants. 18 19 20 COMES NOW defendant GATKE CORPORATION, a bankrupt, defunct, dissolved 21 corporation, and answers plaintiff's unverified complaint herein as follows: 22 I 23 This defendant denies each and every, all and singular, generally and specifically, the 24 allegations contained in the complaint, and in this connection, this defendant denies that 25 plaintiff has becn or was injured or damaged in the unspecified sum or sums alleged in the 26 complaint, or in any other sum or sums, or otherwise, or at all. 27 28 BENNETT, SAMUELSEN, REYNOLDS LEA -4- APROFESSION 981 WEBS) REET IR 30 OAKLANI 12.2940 ANSWER TO COMPLAINT Gl oo MY Ne AFFIRMATIVE DEFENSES AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES TO EACH AND EVERY CAUSE OF ACTION OF PLAINTIFF’S COMPLAINT, AS THOUGH PLEAD SEPARATELY TO EACH AND EVERY OF SAID CAUSES OF ACTION, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: FIRST AFFIRMATIVE DEFENSE Each and every of said causes of action fails to state a cause of action against this answering defendant. SECOND AFFIRMATIVE DEFENSE 10 Each and every cause of action of plaintiffs complaint seeks recovery for damages, ll which is barred by the statute of limitations, including but not limited to, California Code of 12 Civil Procedure, Sections 340(3), 340.2, 338(1), 338(4), 343, 337.1 and 337.15. 13 THIRD AFFIRMATIVE DEFENSE 14 I 15 This answering defendant is informed and believes, and based upon said information 16 and belief alleges, that at the times and places mentioned in plaintiff's complaint, the 17 plaintiff was careless and negligent in and about the matters alleged in the complaint, and 18 that said carelessness and negligence caused and contributed, to the extent of one hundred 19 percent, to any injuries and damages allegedly sustained by plaintiff, if any such injuries or 20 damages there were, or are. 21 IL. 22 Atall times denying any liability whatsoever to plaintiff herein and at all times 23 denying that plaintiff is entitled to any recovery herein, this answering defendant alleges that 24 in the event of any judgment or verdict in favor of plaintiff herein, that said judgment or 25 verdict must be reduced to the extent that said carelessness and negligence of plaintiff 26 caused or contributed to the alleged injuries and damages allegedly sustained by plaintiff, if 27 any such injuries or damages there were, or are. 28 REET AMUPLSEN, ‘& ALLARD ‘8 PROFESSIONAL CORP, -2- 1981 WEBSTER STREET OAKLAND, CA aie}2-2010 S10} 444-7688. ANSWER TO COMPLAINT \, Se FOURTH AFFIRMATIVE DEFENSE L This answering defendant is informed and believes, and based upon said information and belief alleges, that plaintiff has received or receive disability and medical benefits under a worker’s compensation law, or similar laws, from plaintiff's employers or former employers or their worker’s compensation or similar insurers, on account of the injuries and damages allegedly sustained by plaintiff which give rise to this lawsuit, if any such injuries or damages there were or are. IL. 10 At all times denying any liability or obligation to plaintiff or any other person or 1] entity whatsoever, this answering defendant alleges that each and every of plaintiff's 12 employers and former employers was careless and negligent in and about the matters alleged 13 in plaintiff's complaint and that said carelessness and negligence of each and every of said 14 employers contributed directly and proximately to any alleged injuries or damages sustained 15 by plaintiff and/or any or all of said employers. 16 Ill. 17 By reason of the premises, and at all times denying that plaintiff is entitled to any 18 judgment or verdict whatsoever herein, any judgment or verdict that might be rendered in 19 favor of plaintiff herein should be reduced by the amount of all such payments by said 20 employers or insurers, and that each of said employers or insurers should be barred from any 21 recovery by lien or otherwise in connection with this matter. 22 FIFTH AFFIRMATIVE DEFENSE 23 At all times denying the allegations of plaintiff's complaint, this answering defendant 24 is informed and believes, and based upon said information and belief alleges, that plaintiff 25 voluntarily and knowingly assumed the alleged risks and alleged hazards incident to the 26 alleged operations, acts and conduct at the times and places alleged in the complaint, and 27 that plaintiff's said acts proximately caused and contributed to the alleged injuries and 28 ENNETT, SAMUELSER, SERDEESSIONAL COME -3- 19st WEBSTER STREET OAKLAND, CA 4812-2940 {S19} 444-7656 ANSWER TO COMPLAINT ‘. ~. ~ damages, if any such injuries or damages there were, or are. SIXTH AFFIRMATIVE DEFENSE I This answering defendant is informed and believes, and based upon said information and belief alleges, that any injuries and damages allegedly sustained by plaintiff were 6 directly and proximately caused by the misuse of the product or products allegedly involved, by plaintiff and plaintiff's employers. SEVENTH AFFIRMATIVE DEFENSE I 10 This answering defendant incorporates herein by reference, as though sct forth in full lh at this point, each and every allegation contained in Paragraph 1 of its Fourth Affirmative 12 Defense. 13 I. 14 At all times denying all allegations of plaintiff's complaint, this defendant is informed 15 and believes, and based on said information and belief alleges, that plaintiff's employers 16 voluntarily and knowingly assumed the alleged risks and alleged hazards of the alleged 17 operations, acts and conduct at the times and places alleged in plaintiff's complaint, and that 18 said acts of plaintiffs employers directly and proximately caused and contributed to any 19 alleged injuries or damages allegedly sustained by the plaintiff, and/or by any or all of 20 plaintiff's employers, if any such injuries or damages to either plaintiff or any employer of 21 plaintiff there were, or are. 22 UL. 23 By reason of the premises, at all times denying that plaintiff is entitled to any 24 judgment or verdict whatsoever herein, any judgment or verdict that might be entered in 25 favor of plaintiff herein should be reduced by the amount of all such payments by said 26 employers or insurers, and that each of said insurers or employers should be barred from any 27 recovery herein. 28 DENNETT, SAMUELSEN, menoresuvar Cone =4- 198] WERSTRR STREET OnrcanDy CA 582-2900 (S103 454.7688 ANSWER TO COMPLAINT Ne EIGHTH AFFIRMATIVE DEFENSE At all times denying any liability whatsoever for plaintiff herein, this defendant alleges that any alleged liability or responsibility of this defendant, any such alleged liability and responsibility being denied, is small in proportion to the alleged liability and responsibility of other persons and entities, including other persons and entities who are defendants herein, and that plaintiff should be limited to seeking recovery from this defendant for the proportion of alleged injuries and damages for which this defendant is allegedly liable or responsible, all such alleged liability and alleged responsibility being expressly denied. 10 NINTH AFFIRMATIVE DEFENSE 11 This answering defendant is informed and believes, and based upon said information 12 and belief alleges, that plaintiff has unreasonably delayed in bringing of this action without 13 good cause therefor. Said delay has directly and proximately resulted in prejudice to this 14 defendant and, therefore, this action is barred by laches. 15 TENTH AFFIRMATIVE DEFENSE 16 At all times denying all allegations of plaintiff's complaint, this answering defendant 17 is informed and believes, and based upon said information and belief alleges, that plaintiff is 18 barred from recovery herein because of modification, alteration or change in some other 19 manner of the products alleged in plaintiff's complaint on file herein. 20 ELEVENTH AFFIRMATIVE DEFENSE 21 At all times mentioned herein, this answering defendant is informed and believes, and 22 based upon said information and belief alleges, that plaintiff acknowledged, ratified, 23 consented to and acquiesced in the alleged acts or omissions, if any there were, of this 24 answering defendant, thus barring plaintiff from any relief as prayed for herein. 25 TWELFTH AFFIRMATIVE DEFENSE 26 At all times denying any liability or obligation whatsoever to plaintiff herein, and/or 27 to any other person or entily of any nature or capacity whatsoever, and at all times denying 28 ENNETT, SAMUBI.SEN, & PROFESSIONAL CORP. -5- PSst WEaSTE TREET OAKLAND, (519) ee ANSWER TO COMPLAINT Be Ne that plaintiff is entitled to any recovery herein, this answering defendant alleges that at all times and places mentioned in plaintiff's complaint, its products were manufactured, produced, supplied, sold and distributed in 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 herein is thus further barred by said sovereign acts and powers. THIRTEENTH AFFIRMATIVE DEFENSE The complaint fails to state a cause of action against this answering defendant for exemplary/punitive damages. 10 FOURTEENTH AFFIRMATIVE DEFENSE lt There is a defect and misjoinder of partics defendant. 12 FIFTEENTH AFFIRMATIVE DEFENSE 13 The complaint and each cause of action thereof is barred by the provisions of 14 Commercial Code Sections 2725(1) and 2725(2). 15 SIXTEENTH AFFIRMATIVE DEFENSE 16 Plaintiff failed to mitigate his alleged damages, if any there were. 17 SEVENTEENTIT AFFIRMATIVE DEFENSE 18 This answering defendant received no notice of any dangerous, hazardous or 19 defective condition or any breach of warranty, either express or implied. 20 EIGHTEENTH AFFIRMATIVE DEFENSE 21 The claim of plaintiff for personal injury was previously litigated on the merits, and a 22 judgment in said prior action having been rendered, plaintiff's complaint, and each cause of 23 action therein, is barred. 24 NINETEENTH AFFIRMATIVE DEFENSE 25 Plaintiff presently has another action pending arising out of the same wrongs and 26 injuries alleged in this matter, and on that basis plaintiff has split his cause of action and the 27 present action is therefore barred. 28 BENNETT, SAMUELSEN, & ARD A PROFESSIONAL CORP -6- 18S? WEBSTER, ceT OAKLAND, C4 $4612-2940 ANSWER TO COMPLAINT (510) 444-7688 ~ eo TWENTIETH AFFIRMATIVE DEFENSE Defendant alleges that plaintiffs action is barred as to this defendant by reason of the operations of the provisions contained in California Labor Code Sections 3600, 3601 and 3602, et seq., and that plaintiffs right to recovery against this defendant, if any there be, is limited to the exclusive remedy provided in the aforementioned sections. TWENTY-FIRST AFFIRMATIVE DEFENSE This answering defendant alleges that this action is stayed or plaintiff's claim is discharged in bankruptcy filed by this defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE 10 This answering defendant alleges that this action is barred and is untimely as 1] defendant, a dissolved Illinois corporation, was dissolved more than five years prior to the 12 filing of the complaint herein, pursuant to 805 IT.CS $/12.80. 13 TWENTY-THIRD AFFIRMATIVE DEFENSE 14 As and for a further affirmative defense to the complaint, defendant alleges that the 15 action is barred by virtue of Civil Code section 47, the litigation privilege, in that the 16 statements, acts, conduct or omissions alleged occurred in connection with the litigation of 17 claims and defenses in actions in which defendant was concerned. 18 TWENTY-FOURTH AFFIRMATIVE DEFENSE 19 As and for a further affirmative defense to the complaint, defendant alleges that the 20 action is barred by virtue of the First Amendment to the Constitution of the United States of 21 America, and the Constitution of the State of California and other States of the United 22 States, in that the statements, acts, conduct or omissions alleged were undertaken in the free 23 exercise of rights guaranteed to defendant under said constitutions, including rights of free 24 speech, access to courts and the judicial system, and participation in the political process 25 including but not limited to petitioning the government and its agencies, 26 TWENTY-FIFTH AFFIRMATIVE DEFENSE 27 As and for a further affirmative defense to the complaint, defendant alleges that the 28 BENNETT, SAMUELSEN, OLDS & ALLARD. -7- ‘A PROFESSIONAL CORP. 1981 WEDS TER STREET Gi adds 12-3840 3 ANSWER TO COMPLAINT 2 action is barred by virtue of the decisions ofthe California Supreme Court in Temple Community Hospital v. Superior Court (1999) 20 Cal. 4" 464; Cedars Sinai Medical Center v, Superior Court (1998) 18 Cal 4" 1, in that the statements, acts, conduct or omissions alleged are not actionable. WHEREFORE, this answering defendant prays as follows: 1 That plaintiff take nothing by reason of his complaint on file herein. 2 For costs of suit incurred herein; and 3 For such other and further relief’as the court deems proper. 10 DATED: March 7, 2002 il BENNETT, SAMUELSEN, REYNOLDS & ALLARD 12 13 By 14 Richard L. Reynolds Attorneys for efendant 15 GATKE CORPORATION 16 17 18 19 20 21 22 23 24 25 26 27 28 BENNETT, SAMUELSEN, REYNOLDS & ‘A PROFESSIONAL one. -B- 1951 WEBSTER STREET OAKLAND, Ga Dasi2-29¢0 (510) 442.7688 ANSWER TO COMPLAINT - CERTIFICATE OF SERVICE 1am a citizen of the United States, over the age of 18 years and not a party to the cause herein. am an employee of BEN TT, SAMUELSEN, REYNOLDS & ALLARD, A Professional Corporation, 1951 Webster Street, Suite 200, Oakland, California 94612-2940. On March 11, 2002, | served the attached: ANSWER TO COMPLAINT on the interested parties in said cause, by causing an original or true copy thereof to be enclosed in a sealed envelope addressed as follows: 10 IL Alan R. Brayton Brayton Purcell 12 P. O. Box 2109 Novato, CA 94948 13 Paul J. Riehle | 14 Sedgwick, Detert, Moran & Arnold One Embarcadero Center, 16" Floor 15 San Francisco, CA 94111-3628 16 17 18 19 § nited x ) BY MAIL: I caused such envelo with postage thereon fully prepaid to be placed in the States mail, in the City of Oakland, California. 20 I declare under penalty of perjury under the laws, tate of California that the fore; oing is true and correct and that this declaration w. ited on 3/11/02 in Oakland, 21 Cali ornia, 22 CLEMENTINE HALL fst 23 Name of Declarant SIGNATURE ON ORIGINAL PROOF OF SERVICE 24 25 26 27 BENNETT, SAMUELSEN, DS@ AL AR ATkOee iSSIONAL CO! ee 19S! WEBSTER § eT A 98612-2020 (510) 444.7688