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1 BERKES CRANE ROBINSON & SEAL LLP
Carmen Santana(SBN 193511) ELECTRONICALLY
2 csantana@bcrslaw.cor n
Taylor M. Matsumoto(SBN 302932) FILED
Superior Court of California,
3 tmatsurnoto@bcrslaw.com County of San Francisco
Giorgio 0. Panagos(SBN 325892)
4 gpanagos@bcrslaw.coin 07/09/2020
Clerk of the Court
515 South Figueroa Street, Suite 1500 BY: MADONNA CARANTO
5 Los Angeles, California 90071 Deputy Clerk
Telephone: (213)955-1150
6 Facsimile: (213)955-1155
7 Attorneys for Defendant
FLUOR CORPORATION
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO
10
11
RITA CARUSO and ROBERT CARUSO, CASE No. CGC-20-276837
12
Plaintiffs, DEFENDANT FLUOR CORPORATION'S
13 ANSWER TO PLAINTIFF'S
V. COMPLAINT FOR PERSONAL INJURY
14 AND LOSS OF CONSORTIUM —
CRANE CO., et al., ASBESTOS
15
Defendants. Action Filed: May 29, 2020
16 Trial Date: None
17 Defendant FLUOR CORPORATION ("Defendant") individually, and for no other,
18 answers or otherwise responds to the unverified Complaint for Personal Injury and Loss of
19 Consortium - Asbestos. The word "Plaintiff," as used herein, shall include the plural (i.e.,
20 plaintiffs) as well as the singular (i.e., plaintiff) and the feminine as well as the masculine, and
21 shall also include Plaintiff's decedent as may be appropriate to the particular context in which the
22 word appears.
23 GENERAL DENIAL
24 Pursuant to California Code of Civil Procedure §431.30, Defendant hereby denies,
25 generally and specifically, each and every allegation ofthe Complaint. In addition, Defendant
26 denies that Plaintiff has been injured in any manner by the acts or omissions of Defendant or any
27 person or entity for whose act it is liable, and further denies that Defendant is legally responsible
28 in any manner whatsoever for any damages that Plaintiff may have suffered.
LAW OFFICES
BERKES CRANE 1
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOS
1 FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that Plaintiff has failed to state facts sufficient to constitute a claim upon which
4 relief may be granted.
5 SECOND AFFIRMATIVE DEFENSE
6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
7 Defendant alleges that Plaintiffs claim is barred by laches, waiver, res judicata and/or collateral
8 estoppel.
9 THIRD AFFIRMATIVE DEFENSE
10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
1 1 Defendant alleges that this Court does not have subject matter jurisdiction over this action, or,
12 alternatively, that the Court lacks jurisdiction due to insufficiency of process, or the service
13 thereof, and/or improper venue.
14 FOURTH AFFIRMATIVE DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 Defendant alleges that Plaintiff has failed to commence this action within the time required by the
17 applicable statute of limitations, including but not limited to California Code of Civil Procedure
18 sections 337.1, 337.15, 338(a), 338(d), 340.2, 343 and 361.
19 FIFTH AFFIRMATIVE DEFENSE
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
21 Defendant alleges that Plaintiff was careless and negligent in and about the matters alleged in the
22 complaint and said carelessness and negligence of Plaintiff proximately contributed to the
23 happening ofthe accident, incident and occurrence alleged in the complaint, and to the injuries,
24 losses and damages complained of therein, if any there were, and said contributory negligence bars
25 a recovery or proportionately reduces any potential verdict.
26 SIXTH AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 Defendant alleges that Plaintiff failed to mitigate their alleged damages, if any there were.
LAW OFFICES
BERKES CRANE
2
PERSONAL INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR
AND LOSS OF CONSORTIUM — ASBESTOS
1 SEVENTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were
4 caused and/or contributed to by Plaintiffs misuse of the product or products, and Plaintiffs
5 recovery should be barred or reduced accordingly.
6 EIGHTH AFFIRMATIVE DEFENSE
7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
8 Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were
9 solely and proximately caused by material modifications or alterations of the product or products
10 involved in this action after it or they left the custody and control of Defendant.
11 NINTH AFFIRMATIVE DEFENSE
12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
13 Defendant alleges that any asbestos-containing product or products alleged to have caused
e
14 Plaintiffs injuries were manufactured, used, installed and/or distributed in mandatory complianc
set
15 with specifications promulgated by the United States government under its war powers, as
ce of the
16 forth in the U. S. Constitution, and that any recovery by Plaintiff is barred as a consequen
17 exercise of those sovereign powers.
18 TENTH AFFIRMATIVE DEFENSE
19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
20 Defendant alleges that any product or products alleged by Plaintiffto have caused Plaintiffs
ions
21 injuries were manufactured, installed, used and/or distributed in compliance with specificat
22 provided by third parties to Defendant and/or in compliance with all applicable health and safety
23 statutes and regulations.
24 ELEVENTH AFFIRMATIVE DEFENSE
25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
26 Defendant alleges that if Plaintiff suffered any damages, which is denied, the risk of any such
27 damages was not foreseeable to Defendant. Defendant at all times material hereto acted in
to
28 accordance with the industry custom and practice and the state of scientific knowledge available
LAW OFFICES
BERKES CRANE
3
PERSONAL INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR
AND LOSS OF CONSORTIUM - ASBESTOS
1 manufacturers, installers and/or users of asbestos-containing products.
2 TWELFTH AFFIRMATIVE DEFENSE
3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
4 Defendant alleges that Plaintiffs claim against Defendant is barred by the holding ofPrivette v.
h 689 and Hooker v. Dept. ofTransportation (2002)24 Cal.4th 198,
5 Superior Court(1993)5 Ca1.4t
6 in that Defendant, a general contractor, did not retain control over any independent contractor
7 sufficient to affirmatively contribute to Plaintiffs alleged injuries.
8 THIRTEENTH AFFIRMATIVE DEFENSE
9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
10 Defendant alleges that Plaintiffs exposure to any asbestos-containing product or products was not
1 1 a substantial factor and/or legal cause of Plaintiffs alleged injuries.
12 FOURTEENTH AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that this action is barred by the applicable state and/or federal industrial
Labor
15 insurance and/or Workers' Compensation laws, including, but not limited to, California
16 Code sections 3601 and 3602, and 33 U.S.C. section 905.
17 FIFTEENTH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that Plaintiff voluntarily and knowingly assumed the alleged risks and hazards
20 incident to the alleged operations, acts and conduct at the times and places alleged in Plaintiffs
21 complaint and that Plaintiffs acts proximately caused and contributed to the alleged damages, if
22 any there were.
23 SIXTEENTH AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 Defendant alleges that at all times relevant to the matters alleged in Plaintiffs complaint, various
26 employers of Plaintiff were sophisticated users of asbestos-containing products and said
27 employers' negligence in providing said products to its employees was a superseding and/or
28 intervening cause of Plaintiffs injuries, if any there were.
LAW OFFICES
BERKES CRANE
4
L INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONA
AND LOSS OF CONSORTIUM ASBESTOS
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges, in accordance with section 1431.2 of the Civil Code, known as the Fair
4 Responsibility Act of 1986, that if Plaintiffs complaint states a cause of action, each defendant is
5 liable, if at all, only for those non-economic damages allocated to each defendant in direct
6 proportion to each defendant's percentage of fault, if any. Defendant requests a judicial
7 determination of the amount of non-economic damages, if any. Defendant also requests a judicial
8 determination of the amount of non-economic damages, if any, allocated to Defendant in direct
9 proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance
10 therewith.
EIGHTEENTH AFFIRMATIVE DEFENSE
12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
13 Defendant alleges that the damages and injuries, if any, were proximately caused or contributed to,
14 in whole or in part, by the negligence or fault or other acts and/or omissions of persons or entities
15 other than Defendant, for which Defendant is not responsible.
16 NINETEENTH AFFIRMATIVE DEFENSE
17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
18 Defendant alleges that neither the complaint nor any purported causes ofaction alleged therein states
19 facts sufficient to entitle Plaintiff to an award of punitive or exemplary damages against Defendant.
II TWENTIETH AFFIRMATIVE DEFENSE
20
21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
22 Defendant alleges that any products were manufactured, produced, supplied, sold and distributed
23 pursuant to contract with the United States government, and that any recovery by Plaintiff is
24 barred by consequence ofthe judicially recognized doctrine ofimmunity conferred upon that
25 contractual relationship and any occurrences arising therefrom.
26 TWENTY-FIRST AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 Defendant alleges that the allegations of the complaint should be dismissed pursuant to California
LAW OFFICES
BERKES CRANE
5
INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
AND LOSS OF CONSORTIUM - ASBESTOS
1 Code of Civil Procedure sections 583.210 through 583.250, 583.410 through 583.430, and other
2 applicable code sections.
3 TWENTY-SECOND AFFIRMATIVE DEFENSE
4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
5 Defendant alleges that it does not have and never has had a successor, successor-in-business,
6 successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor,
7 predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest,
8 partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon
9 which Plaintiff base allegations of liability.
10 TWENTY-THIRD AFFIRMATIVE DEFENSE
11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that it did not have a sufficient market share with respect to products and
13 materials which Plaintiff claims caused the alleged injuries and damages. Defendant may not be
14 held liable to Plaintiff for any alleged share of said market or upon any theory premised upon
15 market-share liability.
16 TWENTY-FOURTH AFFIRMATIVE DEFENSE
17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
18 Defendant alleges that if Plaintiff sustained injuries or damages attributable to the use of any
19 product researched, tested, studied, manufactured, fabricated, inadequately researched, designed,
20 inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold,
21 inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged,
22 rebranded, manufactured for others, packaged, advertised and/or which contained or lacked
23 warnings by Defendant, which allegations are expressly denied, the injuries or damages were
24 proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or improper
25 maintenance of the product by others.
26 TWENTY-FIFTH AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 Defendant alleges that all claims asserted by Plaintiff was proximately caused by a superseding,
LAW OFFICES
BERKES CRANE
6
INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
AND LOSS OF CONSORTIUM - ASBESTOS
1 intervening cause.
2 TWENTY-SIXTH AFFIRMATIVE DEFENSE
3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
4 Defendant alleges that Plaintiff is not entitled to an award of punitive or exemplary damages in
5 this action. Such an award would be unconstitutional unless Defendant is accorded the safeguards
6 provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and
7 Fourteenth Amendments to the United States Constitution.
8 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
10 Defendant alleges that Plaintiff lacks standing to sue Defendant.
11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
13 Defendant alleges that any danger or defect on the premises was obvious or could have been
14 observed by Plaintiffs exercise of reasonable care.
15 TWENTY-NINTH AFFIRMATIVE DEFENSE
16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
17 Defendant alleges that it warned applicable employers of all dangers on the premises known to
18 Defendant.
19 THIRTIETH AFFIRMATIVE DEFENSE
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
21 Defendant alleges that it presently has insufficient knowledge or information on which to form a
22 belief as to whether it may have additional, as yet unstated, defenses available. Defendant
be
23 reserves the right to assert additional defenses in the event discovery indicates that they would
24 appropriate.
25 THIRTY-FIRST AFFIRMATIVE DEFENSE
26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
27 Defendant alleges that at all times relevant to the matters alleged in Plaintiffs complaint, Plaintiff
a
28 knew or should have known the hazards of asbestos containing products, and, therefore, was
LAW OFFICES
BERKES CRANE
7
L INJURY
ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONA
AND LOSS OF CONSORTIUM - ASBESTOS
1 sophisticated user of asbestos-containing products within the meaning of Johnson v. American
2 Standard, Inc. (2008)43 Cal. 4th 56.
3 THIRTY-SECOND AFFIRMATIVE DEFENSE
4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
5 Defendant alleges it did not manufacture, sell or distribute the product(s) at issue in Plaintiffs
is
6 complaint. Strict liability is precluded against Defendant, a contractor/service provider, as it
transfers
7 well-settled that "strict product liability theories apply only to sales or other commercial
3d 509,
8 ofgoods and not to services." Hyland Therapeutics v. Superior Court(1985) 175 Cal.App.
248, 258;
9 513 (emphasis in original); see also Ferrari v. Grand Canyon Dories(1995)32 Cal.App.4th
Cal.App.3d
10 Pena v. Sita World Travel, Inc. (1978)88 Cal.App.3d 642,644; Barton v. Owen(1977)71
1 1 484, 498; Silverhart v. Mount Zion Hospital(1971)20 Cal.App.3d 1022, 1027; Monte Vista
12 Development Corp. v. Superior Court(1991)226 Cal. App. 3d 1681.
13 THIRTY-THIRD AFFIRMATIVE DEFENSE
,
14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION
t neither Plaintiff
15 Defendant alleges that at all times and places in the matters alleged in the complain
privity bars Plaintiffs
16 nor their employers were in privity ofcontract with Defendant, and said lack of
17 recovery herein upon any theory of warranty, in particular breach of warranty.
18 IRTY-FOURTH AFFIRMATIVE DEFENSE
TH
,
19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION
e condition or
20 Defendant alleges that it received no notice of any dangerous, hazardous or defectiv
21 any breach of warranty, either express or implied.
22 THIRTY-FIFTH AFFIRMATIVE DEFENSE
,
23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION
t Defenda nt
24 Defendant alleges that at all times and places in the matters alleged in the complain
critical or
25 neither communicated with or misled Plaintiff in any fashion nor suppressed any
to sue for fraud,
26 relevant information from Plaintiff. Therefore, Plaintiff lacks the standing or right
through 1710, and
27 conspiracy, deceit, or any cause of action under California Civil Code sections 1708
t to constitutea
28 the complaint, as it concerns these causes of action therein, fails to state facts sufficien
LAW OFFICES
BERKES CRANE
8
INT FOR PERSONAL INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLA
AND LOSS OF CONSORTIUM - ASBESTOS
1 cause of action against this answering Defendant.
2 THIRTY-SIXTH AFFIRMATIVE DEFENSE
3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
4 Defendant alleges that it is not liable in strict liability or negligence for harm caused by another
5 manufacturer's product. (O'Neil v. Crane Co.,(2012) 53 Cal. 4th 335; Taylor v. Elliott
6 Turbomachinery Co. Inc. (2009) 171 Cal. App.4th 564.)
7 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
8 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF
site
9 ACTION, Defendant alleges that any product or material that it may have brought to the job
that
10 was incidental to the work or service that Defendant was hired to perform and therefore denies
1 1 it was a supplier.
12 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
ured,
14 Defendant alleges that all products and materials researched, tested, studied, manufact
d, distributed,
15 fabricated, inadequately researched, designed, inadequately tested, labeled, assemble
for installation,
16 leased, bought, offered for sale, sold, inspected, serviced, installed, contracted
, advertised
17 repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged
denied,
18 and/or which contained or lacked warnings by Defendant, which allegations are expressly
state-of-the-
19 were not defective in any manner, as said products and materials conformed with the
20 art in existence at all times mentioned in the complaint.
21 THIRTY-NINTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
by the
23 Defendant alleges that the entire Complaint, and each cause of action thereof, is barred
)-(g); 338(a)-
24 limitations and repose periods set forth in Sections 337(1)-(3); 337.1(a)-(f); 337.15(a
a Code of
25 (k); 338.1; 339(1)-(3); 340(a)-(e); 340.2(a)-(c); 343; 353.1; 355; and 361 of the Californi
ns and/or
26 Civil Procedure, and all other applicable limitations periods, including any limitatio
discover y to be
27 repose periods of foreign jurisdictions that may be determined during the course of
28 applicable.
LAW OFFICES
BERKES CRANE
9
NT FOR PERSONAL INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAI
AND LOSS OF CONSORTIUM - ASBESTOS
1 FORTIETH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that the entire Complaint, and each cause of action thereof, is barred because
4 Plaintiff has failed to comply with the provisions of California Code of Civil Procedure §411.35.
5 FORTY-FIRST AFFIRMATIVE DEFENSE
6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
just
7 Defendant alleges that Plaintiff has failed to join all proper parties necessary for a full and
misjoine d the
8 adjudication of the purported causes of action in the Complaint, or alternatively, has
9 parties to this action.
10 FORTY-SECOND AFFIRMATIVE DEFENSE
11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
and
12 Defendant alleges that all or part of Plaintiffs injuries or damages, if any, were actually
13 proximately caused by the conduct ofthird parties, and not Defendant.
14 FORTY-THIRD AFFIRMATIVE DEFENSE
ACTION,
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF
liability, or "enterprise
16 Defendant alleges that to the extent the Complaint alleges "market share"
action against
17 liability," the Complaint fails to state facts sufficient to constitute a cause of
18 Defendant.
19 FORTY-FOURTH AFFIRMATIVE DEFENSE
,
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION
is barred as against
21 Defendant alleges that the entire Complaint, and each cause of action thereof,
22 Defendant by the provisions of Section 3600, et seq., of the California Labor Code.
23 FORTY-FIFTH AFFIRMATIVE DEFENSE
,
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION
fails to state a cause
25 Defendant alleges that the entire Complaint, and each cause of action thereof,
the field of law
26 of action against Defendant because the federal government has preempted
claims forming the
27 applicable to the products alleged to have caused Plaintiffs injuries, or the
impede, impair,
28 basis for relief. The granting of the relief prayed for in the Complaint would
LAW OFFICES
BERKES CRANE
10
INT FOR PERSONAL INJURY
ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLA
AND LOSS OF CONSORTIUM - ASBESTOS
1 frustrate and/or burden the effectiveness offederal law regulating the field and would violate the
2 Supremacy Clause contained in Article VI, Clause 2 ofthe United States Constitution.
3 FORTY-SIXTH AFFIRMATIVE DEFENSE
4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
5 Defendant alleges that any defect or danger in or about the premises was trivial.
6 FORTY-SEVENTH AFFIRMATIVE DEFENSE
7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
8 Defendant alleges that Plaintiff has improperly split the causes of action and seeks to maintain a
9 duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed.
10 FORTY-EIGHTH AFFIRMATIVE DEFENSE
11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff was employed
13 and was entitled to receive workers' compensation benefits from his employers; that Plaintiffs
14 employers, other than Defendant, may have been negligent in and about the matters referred to in
15 said Complaint, and that such negligence on the part of said employers proximately and
16 concurrently contributed to the happening of the accident and to the loss or damage complained of
17 by Plaintiff, if any there were; and that by reason thereof Defendant is entitled to set off any such
18 benefits received or to be received by Plaintiff against any judgment which may be rendered in
19 favor of Plaintiff.
20 FORTY-NINTH AFFIRMATIVE DEFENSE
21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
22 Defendant alleges that Plaintiff has received, or in the future may receive, workers' compensation
23 benefits from Defendant under the Labor Code of the State of California as a consequence of the
24 alleged industrial injury referred to in the Complaint, and in the event Plaintiff is awarded
25 damages against Defendant, Defendant claims a credit against such award to the extent Defendant
26 is barred from enforcing its rights to reimbursement against workers' compensation benefits that
27 Plaintiff has received or may in the future receive.
28 / / /
LAW OFFICES
BERKES CRANE
11
INJURY
ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
AND LOSS OF CONSORTIUM - ASBESTOS
1 FIFTIETH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 Defendant alleges that if Plaintiff has received, or in the future may receive workers' compensation
4 benefits from Defendant under the Labor Code of the State of California as a consequence of the
5 alleged industrial injury referred to in the Complaint, Defendant demands repayment of any such
6 workers' compensation benefits in the event that Plaintiff recovers tort damages as a result of the
7 industrial injury allegedly involved here. Although Defendant denies the validity of Plaintiffs
8 claims, in the event those claims are held valid and not barred by the statute of limitations or
9 otherwise, Defendant asserts that cross-demands for money have existed between Plaintiff and
10 Defendant and the demands are compensated, so far as they equal each other, pursuant to
1 1 California Code of Civil Procedure §431.70.
12 FIFTY-FIRST AFFIRMATIVE DEFENSE
,
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION
in by
14 Defendant alleges that the activity alleged in the Complaint, to the extent it was engaged
15 Defendant, if at all, was not ultrahazardous under California law.
16 FIFTY-SECOND AFFIRMATIVE DEFENSE
17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
conformi ty
18 Defendant alleges that at all times relevant, Defendant's acts and omissions were in
the state of
19 with all government statutes and regulations and all industry standards based upon
20 knowledge existing at the time ofthe acts or omissions.
21 FIFTY-THIRD AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
conduct;
23 Defendant alleges that Plaintiff directed, ordered, approved and/or ratified Defendant's
result
24 therefore, Plaintiff is estopped from asserting the claims alleged in the Complaint which
25 from his own acts, conduct or omissions.
26 FIFTY-FOURTH AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
based
28 Defendant alleges that Plaintiffs Complaint and each and every cause of action therein
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BERKES CRANE
12
NT FOR PERSONAL INJURY
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAI
AND LOSS OF CONSORTIUM - ASBESTOS
1 upon warranty or breach thereof, is barred as a result of failure of Plaintiffs to give notice required
2 under Commercial Code §2607(3)(a).
3 FIFTY-FIFTH AFFIRMATIVE DEFENSE
4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
5 Defendant alleges that- to the extent Plaintiff claims, or may claim, injury or damage caused
6 by work performed by Defendant for, or under the direction and control of, the United States
7 Government - Plaintiffs claims are barred by the "government contractor defense" as articulated in
8 Boyle v. United Techs, Inc. (1988)487 U.S. 500 as Defendant, in performing such work, did so in
9 conformity with detailed specifications which were created or approved by the United States
10 Government and as the United States Government was, at all relevant times, independently aware
1 1 of health hazards potentially associated with certain asbestos exposures.
12 FIFTY-SIXTH AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that if Defendant has purportedly been named or served in this action as a Doe
15 Defendant, Plaintiff's attempt to do so is invalid in that Plaintiff knew or should have known of
16 the identity of Defendant and of Plaintiff's alleged causes of action against Defendant at the time
17 ofthe filing of the Complaint.
18 WHEREFORE,Defendant prays for judgment as follows:
19 1. That Plaintiff take nothing by reason of his complaint herein;
20 2. Thatjudgment is entered in favor of Defendant;
21 3. For costs of suit incurred herein;
22 4. For appropriate credits and set-offs arising out of any payment of Workers'
23 Compensation benefits as alleged above;
24 5. For ajudicial determination ofthe amount ofnon-economic damages,ifany,allocated
25 to Defendant in direct proportion ofthe Defendant's percentage offault, if any, and a
26 separate judgment in conformance therewith; and
27 6. For such other and further relief as the Court may deem just and proper.
28
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BERKES CRANE
13
INJURY
ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
AND LOSS OF CONSORTIU M - ASBESTOS
1 NOTICE OF REQUEST FOR JURY TRIAL
2 Pursuant to California Code of Civil Procedure section 631, FLUOR CORPORATION
3 hereby gives Notice of Its Request for Trial by Jury.
4
5 DATED: July 9, 2020 BERKES CRANE ROBINSON & SEAL LIT
6
7 By:
8 CARMEN SANTAN
TAYLOit SUMOTO
9 GIORGIO 0.PANAGOS
Attorneys for Defendant
10 FLUOR CORPORATION
6465387
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BERKES CRANE 14
ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOS
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA,COUNTY OF LOS ANGELES
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Los Angeles, State of California. My business address is 515 South
4 Figueroa Street, Suite 1500, Los Angeles, CA 90071.
5 On July 9, 2020, I served true copies of the following document(s) described as
DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT
6 FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOS on the interested
parties in this action as follows:
7
PER MASTER SERVICE LIST(VIA FILE & SERVE XPRESS)
8
BY ELECTRONIC SERVICE: I electronically served the document(s) described above
9 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the
File & ServeXPress website (https://secure.fileandservexpress.com) pursuant to the Court Order
10 establishing the case website and authorizing service of documents.
11 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
12
Executed on July 9, 2020, at Los Angeles, California.
1:3
14
15 abrina V. Gutierrez
16
17
Preview
1 BERKES CRANE ROBINSON & SEAL LLP Carmen Santana(SBN 193511) ELECTRONICALLY 2 csantana@bcrslaw.cor n Taylor M. Matsumoto(SBN 302932) FILED Superior Court of California, 3 tmatsurnoto@bcrslaw.com County of San Francisco Giorgio 0. Panagos(SBN 325892) 4 gpanagos@bcrslaw.coin 07/09/2020 Clerk of the Court 515 South Figueroa Street, Suite 1500 BY: MADONNA CARANTO 5 Los Angeles, California 90071 Deputy Clerk Telephone: (213)955-1150 6 Facsimile: (213)955-1155 7 Attorneys for Defendant FLUOR CORPORATION 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 RITA CARUSO and ROBERT CARUSO, CASE No. CGC-20-276837 12 Plaintiffs, DEFENDANT FLUOR CORPORATION'S 13 ANSWER TO PLAINTIFF'S V. COMPLAINT FOR PERSONAL INJURY 14 AND LOSS OF CONSORTIUM — CRANE CO., et al., ASBESTOS 15 Defendants. Action Filed: May 29, 2020 16 Trial Date: None 17 Defendant FLUOR CORPORATION ("Defendant") individually, and for no other, 18 answers or otherwise responds to the unverified Complaint for Personal Injury and Loss of 19 Consortium - Asbestos. The word "Plaintiff," as used herein, shall include the plural (i.e., 20 plaintiffs) as well as the singular (i.e., plaintiff) and the feminine as well as the masculine, and 21 shall also include Plaintiff's decedent as may be appropriate to the particular context in which the 22 word appears. 23 GENERAL DENIAL 24 Pursuant to California Code of Civil Procedure §431.30, Defendant hereby denies, 25 generally and specifically, each and every allegation ofthe Complaint. In addition, Defendant 26 denies that Plaintiff has been injured in any manner by the acts or omissions of Defendant or any 27 person or entity for whose act it is liable, and further denies that Defendant is legally responsible 28 in any manner whatsoever for any damages that Plaintiff may have suffered. LAW OFFICES BERKES CRANE 1 ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 FIRST AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that Plaintiff has failed to state facts sufficient to constitute a claim upon which 4 relief may be granted. 5 SECOND AFFIRMATIVE DEFENSE 6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 7 Defendant alleges that Plaintiffs claim is barred by laches, waiver, res judicata and/or collateral 8 estoppel. 9 THIRD AFFIRMATIVE DEFENSE 10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 1 1 Defendant alleges that this Court does not have subject matter jurisdiction over this action, or, 12 alternatively, that the Court lacks jurisdiction due to insufficiency of process, or the service 13 thereof, and/or improper venue. 14 FOURTH AFFIRMATIVE DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 Defendant alleges that Plaintiff has failed to commence this action within the time required by the 17 applicable statute of limitations, including but not limited to California Code of Civil Procedure 18 sections 337.1, 337.15, 338(a), 338(d), 340.2, 343 and 361. 19 FIFTH AFFIRMATIVE DEFENSE 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 21 Defendant alleges that Plaintiff was careless and negligent in and about the matters alleged in the 22 complaint and said carelessness and negligence of Plaintiff proximately contributed to the 23 happening ofthe accident, incident and occurrence alleged in the complaint, and to the injuries, 24 losses and damages complained of therein, if any there were, and said contributory negligence bars 25 a recovery or proportionately reduces any potential verdict. 26 SIXTH AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 Defendant alleges that Plaintiff failed to mitigate their alleged damages, if any there were. LAW OFFICES BERKES CRANE 2 PERSONAL INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR AND LOSS OF CONSORTIUM — ASBESTOS 1 SEVENTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were 4 caused and/or contributed to by Plaintiffs misuse of the product or products, and Plaintiffs 5 recovery should be barred or reduced accordingly. 6 EIGHTH AFFIRMATIVE DEFENSE 7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 8 Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were 9 solely and proximately caused by material modifications or alterations of the product or products 10 involved in this action after it or they left the custody and control of Defendant. 11 NINTH AFFIRMATIVE DEFENSE 12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 13 Defendant alleges that any asbestos-containing product or products alleged to have caused e 14 Plaintiffs injuries were manufactured, used, installed and/or distributed in mandatory complianc set 15 with specifications promulgated by the United States government under its war powers, as ce of the 16 forth in the U. S. Constitution, and that any recovery by Plaintiff is barred as a consequen 17 exercise of those sovereign powers. 18 TENTH AFFIRMATIVE DEFENSE 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 20 Defendant alleges that any product or products alleged by Plaintiffto have caused Plaintiffs ions 21 injuries were manufactured, installed, used and/or distributed in compliance with specificat 22 provided by third parties to Defendant and/or in compliance with all applicable health and safety 23 statutes and regulations. 24 ELEVENTH AFFIRMATIVE DEFENSE 25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 26 Defendant alleges that if Plaintiff suffered any damages, which is denied, the risk of any such 27 damages was not foreseeable to Defendant. Defendant at all times material hereto acted in to 28 accordance with the industry custom and practice and the state of scientific knowledge available LAW OFFICES BERKES CRANE 3 PERSONAL INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR AND LOSS OF CONSORTIUM - ASBESTOS 1 manufacturers, installers and/or users of asbestos-containing products. 2 TWELFTH AFFIRMATIVE DEFENSE 3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 4 Defendant alleges that Plaintiffs claim against Defendant is barred by the holding ofPrivette v. h 689 and Hooker v. Dept. ofTransportation (2002)24 Cal.4th 198, 5 Superior Court(1993)5 Ca1.4t 6 in that Defendant, a general contractor, did not retain control over any independent contractor 7 sufficient to affirmatively contribute to Plaintiffs alleged injuries. 8 THIRTEENTH AFFIRMATIVE DEFENSE 9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 10 Defendant alleges that Plaintiffs exposure to any asbestos-containing product or products was not 1 1 a substantial factor and/or legal cause of Plaintiffs alleged injuries. 12 FOURTEENTH AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that this action is barred by the applicable state and/or federal industrial Labor 15 insurance and/or Workers' Compensation laws, including, but not limited to, California 16 Code sections 3601 and 3602, and 33 U.S.C. section 905. 17 FIFTEENTH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that Plaintiff voluntarily and knowingly assumed the alleged risks and hazards 20 incident to the alleged operations, acts and conduct at the times and places alleged in Plaintiffs 21 complaint and that Plaintiffs acts proximately caused and contributed to the alleged damages, if 22 any there were. 23 SIXTEENTH AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 Defendant alleges that at all times relevant to the matters alleged in Plaintiffs complaint, various 26 employers of Plaintiff were sophisticated users of asbestos-containing products and said 27 employers' negligence in providing said products to its employees was a superseding and/or 28 intervening cause of Plaintiffs injuries, if any there were. LAW OFFICES BERKES CRANE 4 L INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONA AND LOSS OF CONSORTIUM ASBESTOS 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges, in accordance with section 1431.2 of the Civil Code, known as the Fair 4 Responsibility Act of 1986, that if Plaintiffs complaint states a cause of action, each defendant is 5 liable, if at all, only for those non-economic damages allocated to each defendant in direct 6 proportion to each defendant's percentage of fault, if any. Defendant requests a judicial 7 determination of the amount of non-economic damages, if any. Defendant also requests a judicial 8 determination of the amount of non-economic damages, if any, allocated to Defendant in direct 9 proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance 10 therewith. EIGHTEENTH AFFIRMATIVE DEFENSE 12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 13 Defendant alleges that the damages and injuries, if any, were proximately caused or contributed to, 14 in whole or in part, by the negligence or fault or other acts and/or omissions of persons or entities 15 other than Defendant, for which Defendant is not responsible. 16 NINETEENTH AFFIRMATIVE DEFENSE 17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 18 Defendant alleges that neither the complaint nor any purported causes ofaction alleged therein states 19 facts sufficient to entitle Plaintiff to an award of punitive or exemplary damages against Defendant. II TWENTIETH AFFIRMATIVE DEFENSE 20 21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 22 Defendant alleges that any products were manufactured, produced, supplied, sold and distributed 23 pursuant to contract with the United States government, and that any recovery by Plaintiff is 24 barred by consequence ofthe judicially recognized doctrine ofimmunity conferred upon that 25 contractual relationship and any occurrences arising therefrom. 26 TWENTY-FIRST AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 Defendant alleges that the allegations of the complaint should be dismissed pursuant to California LAW OFFICES BERKES CRANE 5 INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL AND LOSS OF CONSORTIUM - ASBESTOS 1 Code of Civil Procedure sections 583.210 through 583.250, 583.410 through 583.430, and other 2 applicable code sections. 3 TWENTY-SECOND AFFIRMATIVE DEFENSE 4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 5 Defendant alleges that it does not have and never has had a successor, successor-in-business, 6 successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor, 7 predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest, 8 partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon 9 which Plaintiff base allegations of liability. 10 TWENTY-THIRD AFFIRMATIVE DEFENSE 11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that it did not have a sufficient market share with respect to products and 13 materials which Plaintiff claims caused the alleged injuries and damages. Defendant may not be 14 held liable to Plaintiff for any alleged share of said market or upon any theory premised upon 15 market-share liability. 16 TWENTY-FOURTH AFFIRMATIVE DEFENSE 17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 18 Defendant alleges that if Plaintiff sustained injuries or damages attributable to the use of any 19 product researched, tested, studied, manufactured, fabricated, inadequately researched, designed, 20 inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, 21 inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, 22 rebranded, manufactured for others, packaged, advertised and/or which contained or lacked 23 warnings by Defendant, which allegations are expressly denied, the injuries or damages were 24 proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or improper 25 maintenance of the product by others. 26 TWENTY-FIFTH AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 Defendant alleges that all claims asserted by Plaintiff was proximately caused by a superseding, LAW OFFICES BERKES CRANE 6 INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL AND LOSS OF CONSORTIUM - ASBESTOS 1 intervening cause. 2 TWENTY-SIXTH AFFIRMATIVE DEFENSE 3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 4 Defendant alleges that Plaintiff is not entitled to an award of punitive or exemplary damages in 5 this action. Such an award would be unconstitutional unless Defendant is accorded the safeguards 6 provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and 7 Fourteenth Amendments to the United States Constitution. 8 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 9 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 10 Defendant alleges that Plaintiff lacks standing to sue Defendant. 11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 13 Defendant alleges that any danger or defect on the premises was obvious or could have been 14 observed by Plaintiffs exercise of reasonable care. 15 TWENTY-NINTH AFFIRMATIVE DEFENSE 16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 17 Defendant alleges that it warned applicable employers of all dangers on the premises known to 18 Defendant. 19 THIRTIETH AFFIRMATIVE DEFENSE 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 21 Defendant alleges that it presently has insufficient knowledge or information on which to form a 22 belief as to whether it may have additional, as yet unstated, defenses available. Defendant be 23 reserves the right to assert additional defenses in the event discovery indicates that they would 24 appropriate. 25 THIRTY-FIRST AFFIRMATIVE DEFENSE 26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 27 Defendant alleges that at all times relevant to the matters alleged in Plaintiffs complaint, Plaintiff a 28 knew or should have known the hazards of asbestos containing products, and, therefore, was LAW OFFICES BERKES CRANE 7 L INJURY ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONA AND LOSS OF CONSORTIUM - ASBESTOS 1 sophisticated user of asbestos-containing products within the meaning of Johnson v. American 2 Standard, Inc. (2008)43 Cal. 4th 56. 3 THIRTY-SECOND AFFIRMATIVE DEFENSE 4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 5 Defendant alleges it did not manufacture, sell or distribute the product(s) at issue in Plaintiffs is 6 complaint. Strict liability is precluded against Defendant, a contractor/service provider, as it transfers 7 well-settled that "strict product liability theories apply only to sales or other commercial 3d 509, 8 ofgoods and not to services." Hyland Therapeutics v. Superior Court(1985) 175 Cal.App. 248, 258; 9 513 (emphasis in original); see also Ferrari v. Grand Canyon Dories(1995)32 Cal.App.4th Cal.App.3d 10 Pena v. Sita World Travel, Inc. (1978)88 Cal.App.3d 642,644; Barton v. Owen(1977)71 1 1 484, 498; Silverhart v. Mount Zion Hospital(1971)20 Cal.App.3d 1022, 1027; Monte Vista 12 Development Corp. v. Superior Court(1991)226 Cal. App. 3d 1681. 13 THIRTY-THIRD AFFIRMATIVE DEFENSE , 14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION t neither Plaintiff 15 Defendant alleges that at all times and places in the matters alleged in the complain privity bars Plaintiffs 16 nor their employers were in privity ofcontract with Defendant, and said lack of 17 recovery herein upon any theory of warranty, in particular breach of warranty. 18 IRTY-FOURTH AFFIRMATIVE DEFENSE TH , 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION e condition or 20 Defendant alleges that it received no notice of any dangerous, hazardous or defectiv 21 any breach of warranty, either express or implied. 22 THIRTY-FIFTH AFFIRMATIVE DEFENSE , 23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION t Defenda nt 24 Defendant alleges that at all times and places in the matters alleged in the complain critical or 25 neither communicated with or misled Plaintiff in any fashion nor suppressed any to sue for fraud, 26 relevant information from Plaintiff. Therefore, Plaintiff lacks the standing or right through 1710, and 27 conspiracy, deceit, or any cause of action under California Civil Code sections 1708 t to constitutea 28 the complaint, as it concerns these causes of action therein, fails to state facts sufficien LAW OFFICES BERKES CRANE 8 INT FOR PERSONAL INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLA AND LOSS OF CONSORTIUM - ASBESTOS 1 cause of action against this answering Defendant. 2 THIRTY-SIXTH AFFIRMATIVE DEFENSE 3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 4 Defendant alleges that it is not liable in strict liability or negligence for harm caused by another 5 manufacturer's product. (O'Neil v. Crane Co.,(2012) 53 Cal. 4th 335; Taylor v. Elliott 6 Turbomachinery Co. Inc. (2009) 171 Cal. App.4th 564.) 7 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 8 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF site 9 ACTION, Defendant alleges that any product or material that it may have brought to the job that 10 was incidental to the work or service that Defendant was hired to perform and therefore denies 1 1 it was a supplier. 12 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, ured, 14 Defendant alleges that all products and materials researched, tested, studied, manufact d, distributed, 15 fabricated, inadequately researched, designed, inadequately tested, labeled, assemble for installation, 16 leased, bought, offered for sale, sold, inspected, serviced, installed, contracted , advertised 17 repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged denied, 18 and/or which contained or lacked warnings by Defendant, which allegations are expressly state-of-the- 19 were not defective in any manner, as said products and materials conformed with the 20 art in existence at all times mentioned in the complaint. 21 THIRTY-NINTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, by the 23 Defendant alleges that the entire Complaint, and each cause of action thereof, is barred )-(g); 338(a)- 24 limitations and repose periods set forth in Sections 337(1)-(3); 337.1(a)-(f); 337.15(a a Code of 25 (k); 338.1; 339(1)-(3); 340(a)-(e); 340.2(a)-(c); 343; 353.1; 355; and 361 of the Californi ns and/or 26 Civil Procedure, and all other applicable limitations periods, including any limitatio discover y to be 27 repose periods of foreign jurisdictions that may be determined during the course of 28 applicable. LAW OFFICES BERKES CRANE 9 NT FOR PERSONAL INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAI AND LOSS OF CONSORTIUM - ASBESTOS 1 FORTIETH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that the entire Complaint, and each cause of action thereof, is barred because 4 Plaintiff has failed to comply with the provisions of California Code of Civil Procedure §411.35. 5 FORTY-FIRST AFFIRMATIVE DEFENSE 6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, just 7 Defendant alleges that Plaintiff has failed to join all proper parties necessary for a full and misjoine d the 8 adjudication of the purported causes of action in the Complaint, or alternatively, has 9 parties to this action. 10 FORTY-SECOND AFFIRMATIVE DEFENSE 11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, and 12 Defendant alleges that all or part of Plaintiffs injuries or damages, if any, were actually 13 proximately caused by the conduct ofthird parties, and not Defendant. 14 FORTY-THIRD AFFIRMATIVE DEFENSE ACTION, 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF liability, or "enterprise 16 Defendant alleges that to the extent the Complaint alleges "market share" action against 17 liability," the Complaint fails to state facts sufficient to constitute a cause of 18 Defendant. 19 FORTY-FOURTH AFFIRMATIVE DEFENSE , 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION is barred as against 21 Defendant alleges that the entire Complaint, and each cause of action thereof, 22 Defendant by the provisions of Section 3600, et seq., of the California Labor Code. 23 FORTY-FIFTH AFFIRMATIVE DEFENSE , 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION fails to state a cause 25 Defendant alleges that the entire Complaint, and each cause of action thereof, the field of law 26 of action against Defendant because the federal government has preempted claims forming the 27 applicable to the products alleged to have caused Plaintiffs injuries, or the impede, impair, 28 basis for relief. The granting of the relief prayed for in the Complaint would LAW OFFICES BERKES CRANE 10 INT FOR PERSONAL INJURY ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLA AND LOSS OF CONSORTIUM - ASBESTOS 1 frustrate and/or burden the effectiveness offederal law regulating the field and would violate the 2 Supremacy Clause contained in Article VI, Clause 2 ofthe United States Constitution. 3 FORTY-SIXTH AFFIRMATIVE DEFENSE 4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 5 Defendant alleges that any defect or danger in or about the premises was trivial. 6 FORTY-SEVENTH AFFIRMATIVE DEFENSE 7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 8 Defendant alleges that Plaintiff has improperly split the causes of action and seeks to maintain a 9 duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. 10 FORTY-EIGHTH AFFIRMATIVE DEFENSE 11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff was employed 13 and was entitled to receive workers' compensation benefits from his employers; that Plaintiffs 14 employers, other than Defendant, may have been negligent in and about the matters referred to in 15 said Complaint, and that such negligence on the part of said employers proximately and 16 concurrently contributed to the happening of the accident and to the loss or damage complained of 17 by Plaintiff, if any there were; and that by reason thereof Defendant is entitled to set off any such 18 benefits received or to be received by Plaintiff against any judgment which may be rendered in 19 favor of Plaintiff. 20 FORTY-NINTH AFFIRMATIVE DEFENSE 21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 22 Defendant alleges that Plaintiff has received, or in the future may receive, workers' compensation 23 benefits from Defendant under the Labor Code of the State of California as a consequence of the 24 alleged industrial injury referred to in the Complaint, and in the event Plaintiff is awarded 25 damages against Defendant, Defendant claims a credit against such award to the extent Defendant 26 is barred from enforcing its rights to reimbursement against workers' compensation benefits that 27 Plaintiff has received or may in the future receive. 28 / / / LAW OFFICES BERKES CRANE 11 INJURY ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL AND LOSS OF CONSORTIUM - ASBESTOS 1 FIFTIETH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 Defendant alleges that if Plaintiff has received, or in the future may receive workers' compensation 4 benefits from Defendant under the Labor Code of the State of California as a consequence of the 5 alleged industrial injury referred to in the Complaint, Defendant demands repayment of any such 6 workers' compensation benefits in the event that Plaintiff recovers tort damages as a result of the 7 industrial injury allegedly involved here. Although Defendant denies the validity of Plaintiffs 8 claims, in the event those claims are held valid and not barred by the statute of limitations or 9 otherwise, Defendant asserts that cross-demands for money have existed between Plaintiff and 10 Defendant and the demands are compensated, so far as they equal each other, pursuant to 1 1 California Code of Civil Procedure §431.70. 12 FIFTY-FIRST AFFIRMATIVE DEFENSE , 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION in by 14 Defendant alleges that the activity alleged in the Complaint, to the extent it was engaged 15 Defendant, if at all, was not ultrahazardous under California law. 16 FIFTY-SECOND AFFIRMATIVE DEFENSE 17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, conformi ty 18 Defendant alleges that at all times relevant, Defendant's acts and omissions were in the state of 19 with all government statutes and regulations and all industry standards based upon 20 knowledge existing at the time ofthe acts or omissions. 21 FIFTY-THIRD AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, conduct; 23 Defendant alleges that Plaintiff directed, ordered, approved and/or ratified Defendant's result 24 therefore, Plaintiff is estopped from asserting the claims alleged in the Complaint which 25 from his own acts, conduct or omissions. 26 FIFTY-FOURTH AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, based 28 Defendant alleges that Plaintiffs Complaint and each and every cause of action therein LAW OFFICES BERKES CRANE 12 NT FOR PERSONAL INJURY ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAI AND LOSS OF CONSORTIUM - ASBESTOS 1 upon warranty or breach thereof, is barred as a result of failure of Plaintiffs to give notice required 2 under Commercial Code §2607(3)(a). 3 FIFTY-FIFTH AFFIRMATIVE DEFENSE 4 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 5 Defendant alleges that- to the extent Plaintiff claims, or may claim, injury or damage caused 6 by work performed by Defendant for, or under the direction and control of, the United States 7 Government - Plaintiffs claims are barred by the "government contractor defense" as articulated in 8 Boyle v. United Techs, Inc. (1988)487 U.S. 500 as Defendant, in performing such work, did so in 9 conformity with detailed specifications which were created or approved by the United States 10 Government and as the United States Government was, at all relevant times, independently aware 1 1 of health hazards potentially associated with certain asbestos exposures. 12 FIFTY-SIXTH AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that if Defendant has purportedly been named or served in this action as a Doe 15 Defendant, Plaintiff's attempt to do so is invalid in that Plaintiff knew or should have known of 16 the identity of Defendant and of Plaintiff's alleged causes of action against Defendant at the time 17 ofthe filing of the Complaint. 18 WHEREFORE,Defendant prays for judgment as follows: 19 1. That Plaintiff take nothing by reason of his complaint herein; 20 2. Thatjudgment is entered in favor of Defendant; 21 3. For costs of suit incurred herein; 22 4. For appropriate credits and set-offs arising out of any payment of Workers' 23 Compensation benefits as alleged above; 24 5. For ajudicial determination ofthe amount ofnon-economic damages,ifany,allocated 25 to Defendant in direct proportion ofthe Defendant's percentage offault, if any, and a 26 separate judgment in conformance therewith; and 27 6. For such other and further relief as the Court may deem just and proper. 28 LAW OFFICES BERKES CRANE 13 INJURY ROBINSON Er SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL AND LOSS OF CONSORTIU M - ASBESTOS 1 NOTICE OF REQUEST FOR JURY TRIAL 2 Pursuant to California Code of Civil Procedure section 631, FLUOR CORPORATION 3 hereby gives Notice of Its Request for Trial by Jury. 4 5 DATED: July 9, 2020 BERKES CRANE ROBINSON & SEAL LIT 6 7 By: 8 CARMEN SANTAN TAYLOit SUMOTO 9 GIORGIO 0.PANAGOS Attorneys for Defendant 10 FLUOR CORPORATION 6465387 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES BERKES CRANE 14 ROBINSON Et SEAL DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA,COUNTY OF LOS ANGELES 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 515 South 4 Figueroa Street, Suite 1500, Los Angeles, CA 90071. 5 On July 9, 2020, I served true copies of the following document(s) described as DEFENDANT FLUOR CORPORATION'S ANSWER TO PLAINTIFF'S COMPLAINT 6 FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOS on the interested parties in this action as follows: 7 PER MASTER SERVICE LIST(VIA FILE & SERVE XPRESS) 8 BY ELECTRONIC SERVICE: I electronically served the document(s) described above 9 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXPress website (https://secure.fileandservexpress.com) pursuant to the Court Order 10 establishing the case website and authorizing service of documents. 11 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 12 Executed on July 9, 2020, at Los Angeles, California. 1:3 14 15 abrina V. Gutierrez 16 17