On August 21, 2013 a
Answer
was filed
involving a dispute between
Moses Sr., Kenneth,
and
Alta Building Material Co.,
Ames Drywall Products Company,
Cahill Construction Co., Inc.,
Century Indemnity Company,,
Consolidated Insulation, Inc.,
Does 1 To 800, Inclusive,
Douglass Insulation Company, Inc., Et Al.,
Fdcc California, Inc.,
Georgia-Pacific Llc (Fka Georgia-Pacific,
Golden Gate Drywall, Inc.,
Hamilton Materials, Inc.,
James A. Nelson Co., Inc.,
J & R Construction,
Kaiser Gypsum Company, Inc.,
Kelly-Moore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Pacific Coast Building Products, Inc.,
Rich-Tex, Inc.,
Tom Oaks Drywall,
Union Carbide Corporation,
Moses Sr., Kenneth,
for civil
in the District Court of San Francisco County.
Preview
Eugene C, Blackard Jr. (Bar No. 142090)
ARCHER NORRIS
A Professional Law Corporation ELECTRONICALLY
2033 North Main Street, Suite 800
Walnut Creek, California 94596-3759 FILED
Telephone: 925.930.6600 Superior Court of California,
County of San Francisco
Facsimile: 925.930.6620
SEP 20 2013
Attorneys for Defendant Clerk of the Court
CAHILL CONSTRUCTION CO., INC. BY: EDNALEEN JAVIER
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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11 KENNETH MOSES, SR., Case No. CGC-13-276180
12 Plaintiff, ANSWER TO COMPLAINT FOR
PERSONAL INJURY
413 v
14 KAISER GYPSUM COMPANY, INC. et
al.,
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Defendants.
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COMES NOW defendant CAHILL CONSTRUCTION CO., INC. in answer to plaintiff's
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unverified complaint on file herein and by virtue of the provisions of Code of Civil Procedure
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Section 431,30, now files its general denial to said complaint, and denies each and every, all and
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singular, generally and specifically, all the allegations and causes of action contained therein, and
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further denies that plaintiff has been damaged in any sum, sums, or at all, and specifically denies:
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1 That any asbestos-containing product for which CAHILL CONSTRUCTION CO,,
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INC. was responsible was present at the work site at which the alleged asbestos exposure of
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plaintiff occurred;
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2 That plaintiff came into contact with any asbestos-containing product for which
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CAHILL CONSTRUCTION CO., INC. was responsible;
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3 That any act or omission of CAHILL CONSTRUCTION CO., INC. caused or
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AE1497/16668
10-1
ANSWER TO COMPLAINT FOR PERSONAL INJURY
contributed to any injury purportedly suffered by plaintiff; and
4 That any act or omission of CAHILL CONSTRUCTION CO., INC., contributed
to any asbestos health hazard.
This defendant herewith pleads and sets forth separately and distinctly the following
affirmative defenses to each and every cause of action of plaintiff's complaint as though pleaded
separately to each and every said cause of action, and this answering defendant alleges the
following affirmative defenses:
FIRST AFFIRMATIVE DEFENSE
(Comparative Negligence)
10 That plaintiff was careless and negligent in and about the matters alleged in the complaint,
li and that said carelessness and negligence on the part of said plaintiff proximately contributed to
12 the happening of the incident and to the injuries, loss and damages complained of, if any,
13 sustained by plaintiff and that plaintiff's recovery should therefore be reduced to the extent of
14 plaintiff negligence.
15 SECOND AFFIRMATIVE DEFENSE
16 (Assumption of Risk)
17 That plaintiff knew, or in the exercise of ordinary care should have known, of the risks
18 and hazards involved in the undertaking in which he was engaged, but nevertheless, and knowing
19 these things, did freely and voluntarily consent to and assume the risks and hazards incident to
20 said operations, acts and conduct at the time and place mentioned in said complaint.
21 THIRD AFFIRMATIVE DEFENSE
22 (Employer Negligence/Witt v. Jackson)
23 By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering
24 defendant alleges that at the time and place of the happening of the occurrences alleged in the
25 complaint, and at all times material herein, plaintiff was employed by various employers, the
26 names of which are unknown to this defendant at this time, and working within the course and
27 scope of his employment and/or employments, that said employer and/or employers and plaintiff
28 were subject to the provisions of the Workman's Compensation Act of the State of California; that
AE 1497/1 666840-1 2
ANSWER TO COMPLAINT FOR PERSONAL INJURY
certain sums have been paid to or on behalf of plaintiff herein under the applicable provisions of
the Labor Code of the State of California; that said employer and/or employers and each of them
were negligent and careless and that such negligence and carelessness proximately contributed
and caused the injuries of plaintiff, that by these premises any award made to the plaintiff, if any
award is made at all, must be reduced by any payment to by his employer or employers’
compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal.2d 57.
FOURTH AFFIRMATIVE DEFENSE
{Employer's Negligence)
This answering defendant alleges that plaintiff's employers were contributorily negligent
10 and careless in and about the matters alleged in the complaint, and that such negligence and
li carelessness was a proximate cause of any injuries and damages suffered by plaintiff, if any there
12 were,
13 FIFTH AFFIRMATIVE DEFENSE
14 (Employer's Assumption of the Risk)
15 This answering defendant alleges that plaintiff's employers voluntarily and knowingly
16 entered into and engaged in the operations, acts and conduct alleged in said complaint, and
17 voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct
18 alleged in said complaint, and voluntarily and knowingly assumed all of the risks incident to said
19 operations, acts and conduct at the time and place mentioned in the complaint.
20 SEXTH AFFIRMATIVE DEFENSE
21 {Alteration or Misuse)
22 This answering defendant alleges that the product in question was properly designed and
23 manufactured, and was fit for the purpose intended; that said product was improperly maintained
24 and used and was abused, resulting in plaintiff's damages, if any there were.
25 SEVENTH AFFIRMATIVE DEFENSE
26 (Statute of Limitations)
27 This answering defendant alleges that said complaint, and each of said alleged causes of
28 action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340, subsection
AE1497/16668 10-1 3
ANSWER TO COMPLAINT FOR PERSONAL INJURY
EIGHTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
This answering defendant alleges that said complaint, and each of said alleged causes of
action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340,2(a) and
().
NINTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
This answering defendant alleges that said complaint, and each of said alleged causes of
10 action thereof, is barred by the provisions of the Code of Civil Procedure, Section 338(4).
11 TENTH AFFIRMATIVE DEFENSE
12 (Laches)
13 This answering defendant alleges that plaintiff unreasonably delayed in the bringing of
14 this action without good cause therefore, and thereby have prejudiced this defendant; and as a
15 proximate result thereof, this entire action is barred by laches.
16 ELEVENTH AFFIRMATIVE DEFENSE
17 (Failure to State a Cause of Action - Exemplary Damages)
18 This answering defendant alleges that the complaint fails to state a cause of action against
19 this answering defendant for exemplary damages.
20 TWELFTH AFFIRMATIVE DEFENSE
21 (Preportionate Fault)
22 This answering defendant alleges that while at all times denying any liability whatsoever
23 to plaintiff herein, this defendant alleges that any alleged liability or responsibility of this
24 defendant, and such alleged liability and responsibility being denied, is small in proportion to the
25 alleged liability and responsibility of other persons and entities, including other persons and
26 entities who are defendants herein, and that plaintiff should be limited to seeking recovery from
27 this defendant for the proportion of alleged injuries and damages for which this defendant is
28 allegedly liable or responsible, all such alleged lability and alleged responsibility being expressly
AE1497/16668 10-1 4
ANSWER TO COMPLAINT FOR PERSONAL INJURY
denied,
THIRTEENTH AFFIRMATIVE DEFENSE
(Modification of Product)
This answering defendant is informed and believes, and based upon said information and
belief alleges, that the plaintiff is barred from recovery herein because of modification, alteration
or change in some other manner, of the products alleged in plaintiff's complaint.
FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to State Cause of Action)
This answering defendant alleges that plaintiff's complaint does not state facts sufficient to
10 constitute a cause of action against this answering defendant.
1 FIFTEENTH AFFIRMATIVE DEFENSE
12 (Waiver)
13 This answering defendant alleges that plaintiff acknowledged, ratified, consented to and
14 acquiesced in the alleged acts or omissions, if any, of this answering defendant, thus barring
15 plaintiff from any relief as prayed for herein.
16 SIXTEENTH AFFIRMATIVE DEFENSE
17 (No Identification of Product)
18 This answering defendant is informed and believes, and thereon alleges, that plaintiff is
19 unable to identify the actual manufacturer or manufacturers of the asbestos products which
20 allegedly caused the injury which forms the basis of the complaint herein, and that said
21 manufacturers were entities other than this defendant. Therefore, this defendant may not be held
22 liable for the injury of the plaintiff.
23 SEVENTEENTH AFFIRMATIVE DEFENSE
24 (Fair Responsibility Act)
25 This answering defendant alleges that said complaint, and each of said alleged causes of
26 action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code
27 Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if any, for
28 non-economic damages, if any, as defined in Civil Code Section 1431.2(b)(2) shall be several
AEI497/16668 10-1 5
ANSWER TO COMPLAINT FOR PERSONAL INJURY
only and shall not be joint with each or any co-defendant named in said complaint. This
answering defendant shall be liable only for the only of said non-economic damages, if any,
allocated to this answering defendant in direct proportion to this answering defendant's
percentage of fault, if any.
EIGHTEENTH AFFIRMATIVE DEFENSE
(No Peculiar Risk)
Defendant alleges that plaintiffis barred from seeking to hold defendant vicariously liable
for inherent risk of injury in the work place and premises under the now discredited doctrine of
peculiar risk according to the California Supreme Court decision of Privette v. Superior Court, 5
10 Cal.4th 689, 21 Cal.Rptr.2d 72 (1993).
iW WHEREFORE, this answering defendant prays as follows:
12 1 That plaintiff take nothing by reason of the complaint on file here.
13 2 That this defendant be hence dismissed with its costs of suit incurred herein; and
14 3 For such other and further relief as the court deems just and proper.
15
16 | Dated: September Ye 2013 SRNRNO ~
<
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“2?
18 OEE EBs Bh kG
gene C. Blackardtr.
19 ” Attomeys
for Defendant
“ CAHILL CONSTRUCTION CO,, INC.
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AEI497/1666810-1 6
ANSWER TO COMPLAINT FOR PERSONAL INJURY
PROOF OF SERVICE
Name of Action: Kenneth Moses, Sr. v. Kaiser Gypsum Company, Inc. et al.
Court and Action No: San Francisco Superior Court Action No. CGC-13-276180
I, Rakia V. Grant-Smith, declare that I am over the age of eighteen years and not a party to
Ht.
this action or proceeding. My business address 33 North Main Street, Suite 800, Walnut
Creek, California 94596-3759. On September ; 2013, I caused the following document(s)
to be served:
ANSWER TO COMPLAINT FOR PERSONAL INJURY
ix] T electronically served the above referenced document(s) through FILE & SERVE
XPRESS. E-service in this action was completed on all parties listed on the service list
with FILE & SERVE XPRESS. This service complies with the court’s order in this
case.
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1 declare under penalty of perjury that the foregoing is true and correct, Executed on
12 September /47 , 2013, at Walnut Creek, California.
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14 yeRakiae V.br a
Grant-Smith
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AE1497/1666810-1
ANSWER TO COMPLAINT FOR PERSONAL INJURY
Preview
Eugene C, Blackard Jr. (Bar No. 142090) ARCHER NORRIS A Professional Law Corporation ELECTRONICALLY 2033 North Main Street, Suite 800 Walnut Creek, California 94596-3759 FILED Telephone: 925.930.6600 Superior Court of California, County of San Francisco Facsimile: 925.930.6620 SEP 20 2013 Attorneys for Defendant Clerk of the Court CAHILL CONSTRUCTION CO., INC. BY: EDNALEEN JAVIER Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 11 KENNETH MOSES, SR., Case No. CGC-13-276180 12 Plaintiff, ANSWER TO COMPLAINT FOR PERSONAL INJURY 413 v 14 KAISER GYPSUM COMPANY, INC. et al., 18 Defendants. 16 17 COMES NOW defendant CAHILL CONSTRUCTION CO., INC. in answer to plaintiff's 18 unverified complaint on file herein and by virtue of the provisions of Code of Civil Procedure 19 Section 431,30, now files its general denial to said complaint, and denies each and every, all and 20 singular, generally and specifically, all the allegations and causes of action contained therein, and 21 further denies that plaintiff has been damaged in any sum, sums, or at all, and specifically denies: 22 1 That any asbestos-containing product for which CAHILL CONSTRUCTION CO,, 23 INC. was responsible was present at the work site at which the alleged asbestos exposure of 24 plaintiff occurred; 25 2 That plaintiff came into contact with any asbestos-containing product for which 26 CAHILL CONSTRUCTION CO., INC. was responsible; 27 3 That any act or omission of CAHILL CONSTRUCTION CO., INC. caused or 28 AE1497/16668 10-1 ANSWER TO COMPLAINT FOR PERSONAL INJURY contributed to any injury purportedly suffered by plaintiff; and 4 That any act or omission of CAHILL CONSTRUCTION CO., INC., contributed to any asbestos health hazard. This defendant herewith pleads and sets forth separately and distinctly the following affirmative defenses to each and every cause of action of plaintiff's complaint as though pleaded separately to each and every said cause of action, and this answering defendant alleges the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Comparative Negligence) 10 That plaintiff was careless and negligent in and about the matters alleged in the complaint, li and that said carelessness and negligence on the part of said plaintiff proximately contributed to 12 the happening of the incident and to the injuries, loss and damages complained of, if any, 13 sustained by plaintiff and that plaintiff's recovery should therefore be reduced to the extent of 14 plaintiff negligence. 15 SECOND AFFIRMATIVE DEFENSE 16 (Assumption of Risk) 17 That plaintiff knew, or in the exercise of ordinary care should have known, of the risks 18 and hazards involved in the undertaking in which he was engaged, but nevertheless, and knowing 19 these things, did freely and voluntarily consent to and assume the risks and hazards incident to 20 said operations, acts and conduct at the time and place mentioned in said complaint. 21 THIRD AFFIRMATIVE DEFENSE 22 (Employer Negligence/Witt v. Jackson) 23 By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering 24 defendant alleges that at the time and place of the happening of the occurrences alleged in the 25 complaint, and at all times material herein, plaintiff was employed by various employers, the 26 names of which are unknown to this defendant at this time, and working within the course and 27 scope of his employment and/or employments, that said employer and/or employers and plaintiff 28 were subject to the provisions of the Workman's Compensation Act of the State of California; that AE 1497/1 666840-1 2 ANSWER TO COMPLAINT FOR PERSONAL INJURY certain sums have been paid to or on behalf of plaintiff herein under the applicable provisions of the Labor Code of the State of California; that said employer and/or employers and each of them were negligent and careless and that such negligence and carelessness proximately contributed and caused the injuries of plaintiff, that by these premises any award made to the plaintiff, if any award is made at all, must be reduced by any payment to by his employer or employers’ compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal.2d 57. FOURTH AFFIRMATIVE DEFENSE {Employer's Negligence) This answering defendant alleges that plaintiff's employers were contributorily negligent 10 and careless in and about the matters alleged in the complaint, and that such negligence and li carelessness was a proximate cause of any injuries and damages suffered by plaintiff, if any there 12 were, 13 FIFTH AFFIRMATIVE DEFENSE 14 (Employer's Assumption of the Risk) 15 This answering defendant alleges that plaintiff's employers voluntarily and knowingly 16 entered into and engaged in the operations, acts and conduct alleged in said complaint, and 17 voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct 18 alleged in said complaint, and voluntarily and knowingly assumed all of the risks incident to said 19 operations, acts and conduct at the time and place mentioned in the complaint. 20 SEXTH AFFIRMATIVE DEFENSE 21 {Alteration or Misuse) 22 This answering defendant alleges that the product in question was properly designed and 23 manufactured, and was fit for the purpose intended; that said product was improperly maintained 24 and used and was abused, resulting in plaintiff's damages, if any there were. 25 SEVENTH AFFIRMATIVE DEFENSE 26 (Statute of Limitations) 27 This answering defendant alleges that said complaint, and each of said alleged causes of 28 action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340, subsection AE1497/16668 10-1 3 ANSWER TO COMPLAINT FOR PERSONAL INJURY EIGHTH AFFIRMATIVE DEFENSE (Statute of Limitations) This answering defendant alleges that said complaint, and each of said alleged causes of action thereof, is barred by the provisions of the Code of Civil Procedure, Section 340,2(a) and (). NINTH AFFIRMATIVE DEFENSE (Statute of Limitations) This answering defendant alleges that said complaint, and each of said alleged causes of 10 action thereof, is barred by the provisions of the Code of Civil Procedure, Section 338(4). 11 TENTH AFFIRMATIVE DEFENSE 12 (Laches) 13 This answering defendant alleges that plaintiff unreasonably delayed in the bringing of 14 this action without good cause therefore, and thereby have prejudiced this defendant; and as a 15 proximate result thereof, this entire action is barred by laches. 16 ELEVENTH AFFIRMATIVE DEFENSE 17 (Failure to State a Cause of Action - Exemplary Damages) 18 This answering defendant alleges that the complaint fails to state a cause of action against 19 this answering defendant for exemplary damages. 20 TWELFTH AFFIRMATIVE DEFENSE 21 (Preportionate Fault) 22 This answering defendant alleges that while at all times denying any liability whatsoever 23 to plaintiff herein, this defendant alleges that any alleged liability or responsibility of this 24 defendant, and such alleged liability and responsibility being denied, is small in proportion to the 25 alleged liability and responsibility of other persons and entities, including other persons and 26 entities who are defendants herein, and that plaintiff should be limited to seeking recovery from 27 this defendant for the proportion of alleged injuries and damages for which this defendant is 28 allegedly liable or responsible, all such alleged lability and alleged responsibility being expressly AE1497/16668 10-1 4 ANSWER TO COMPLAINT FOR PERSONAL INJURY denied, THIRTEENTH AFFIRMATIVE DEFENSE (Modification of Product) This answering defendant is informed and believes, and based upon said information and belief alleges, that the plaintiff is barred from recovery herein because of modification, alteration or change in some other manner, of the products alleged in plaintiff's complaint. FOURTEENTH AFFIRMATIVE DEFENSE (Failure to State Cause of Action) This answering defendant alleges that plaintiff's complaint does not state facts sufficient to 10 constitute a cause of action against this answering defendant. 1 FIFTEENTH AFFIRMATIVE DEFENSE 12 (Waiver) 13 This answering defendant alleges that plaintiff acknowledged, ratified, consented to and 14 acquiesced in the alleged acts or omissions, if any, of this answering defendant, thus barring 15 plaintiff from any relief as prayed for herein. 16 SIXTEENTH AFFIRMATIVE DEFENSE 17 (No Identification of Product) 18 This answering defendant is informed and believes, and thereon alleges, that plaintiff is 19 unable to identify the actual manufacturer or manufacturers of the asbestos products which 20 allegedly caused the injury which forms the basis of the complaint herein, and that said 21 manufacturers were entities other than this defendant. Therefore, this defendant may not be held 22 liable for the injury of the plaintiff. 23 SEVENTEENTH AFFIRMATIVE DEFENSE 24 (Fair Responsibility Act) 25 This answering defendant alleges that said complaint, and each of said alleged causes of 26 action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code 27 Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if any, for 28 non-economic damages, if any, as defined in Civil Code Section 1431.2(b)(2) shall be several AEI497/16668 10-1 5 ANSWER TO COMPLAINT FOR PERSONAL INJURY only and shall not be joint with each or any co-defendant named in said complaint. This answering defendant shall be liable only for the only of said non-economic damages, if any, allocated to this answering defendant in direct proportion to this answering defendant's percentage of fault, if any. EIGHTEENTH AFFIRMATIVE DEFENSE (No Peculiar Risk) Defendant alleges that plaintiffis barred from seeking to hold defendant vicariously liable for inherent risk of injury in the work place and premises under the now discredited doctrine of peculiar risk according to the California Supreme Court decision of Privette v. Superior Court, 5 10 Cal.4th 689, 21 Cal.Rptr.2d 72 (1993). iW WHEREFORE, this answering defendant prays as follows: 12 1 That plaintiff take nothing by reason of the complaint on file here. 13 2 That this defendant be hence dismissed with its costs of suit incurred herein; and 14 3 For such other and further relief as the court deems just and proper. 15 16 | Dated: September Ye 2013 SRNRNO ~ < 17 “2? 18 OEE EBs Bh kG gene C. Blackardtr. 19 ” Attomeys for Defendant “ CAHILL CONSTRUCTION CO,, INC. 20 21 22 23 24 25 26 27 28 AEI497/1666810-1 6 ANSWER TO COMPLAINT FOR PERSONAL INJURY PROOF OF SERVICE Name of Action: Kenneth Moses, Sr. v. Kaiser Gypsum Company, Inc. et al. Court and Action No: San Francisco Superior Court Action No. CGC-13-276180 I, Rakia V. Grant-Smith, declare that I am over the age of eighteen years and not a party to Ht. this action or proceeding. My business address 33 North Main Street, Suite 800, Walnut Creek, California 94596-3759. On September ; 2013, I caused the following document(s) to be served: ANSWER TO COMPLAINT FOR PERSONAL INJURY ix] T electronically served the above referenced document(s) through FILE & SERVE XPRESS. E-service in this action was completed on all parties listed on the service list with FILE & SERVE XPRESS. This service complies with the court’s order in this case. 10 1 1 declare under penalty of perjury that the foregoing is true and correct, Executed on 12 September /47 , 2013, at Walnut Creek, California. 13 14 yeRakiae V.br a Grant-Smith 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AE1497/1666810-1 ANSWER TO COMPLAINT FOR PERSONAL INJURY