Preview
1 Peter B. Langbord SBN 144319
Jocelyn M. Soriano SBN 201169
2 FOLEY & MANSFIELD, PLLP
ELECTRONICALLY
2185 N. California Boulevard, Suite 575
3 Walnut Creek, CA 94596 FILED
Superior Court of California,
Telephone: (510) 590-9500 County of San Francisco
4 Facsimile: (510) 590-9595
Email: jsoriano@foleymansfield.com 06/15/2020
5 Clerk of the Court
BY: MADONNA CARANTO
Attorneys for Defendant Deputy Clerk
6 RILEY POWER INC.
(erroneously sued as alternate entity of Babcock
7 Borsig Power, Inc.; Union Boiler Company;
8 Union Iron Works, Inc.; DB Riley, Inc.; Riley
Stoker Corporation; Badenhausen; Union Iron
9 Works; and Union Iron Works of Spokane, WA)
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF SAN FRANCISCO
12
RITA CARUSO and ROBERT CARUSO, Case No. CGC-20-276837
13
Plaintiffs,
14 DEFENDANT RILEY POWER INC.’S
vs. ANSWER TO PLAINTIFFS’ COMPLAINT
15 FOR PERSONAL INJURY; LOSS OF
CRANE CO., et al., CONSORTIUM AND REQUEST FOR JURY
16 TRIAL - ASBESTOS
Defendants.
17
Action Filed: May 29, 2020
18 Trial Date: TBD
19
20 COMES NOW Defendant RILEY POWER INC., (erroneously sued as alternate entity of
21 Babcock Borsig Power, Inc.; Union Boiler Company; Union Iron Works, Inc.; DB Riley Inc.; Riley
22 Stoker Corporation; Badenhausen; Union Iron Works; and Union Iron Works of Spokane, WA),
23 (“RILEY” or “Defendant”), and answering to Plaintiff’s Complaint and by virtue of the provisions
24 of Code of Civil Procedure Section 431.30(d), now files its general denial to said Complaint, and
25 denies each and every, all and singular, generally and specifically, allegations and causes of action
26 contained therein, and further denies that Plaintiff has been damaged in any sum, sums, or at all, and
27 specifically denies:
28 1. That the Plaintiff came into contact with any asbestos-containing product for which
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DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY;
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1 RILEY is alleged to be responsible;
2 2. That RILEY was negligent and/or careless in any respect whatsoever, or at all;
3 3. That any act or omission of RILEY caused or contributed to any injury purportedly
4 suffered by Plaintiff;
5 4. That any act or omission of RILEY contributed to any asbestos health hazard or any
6 injury claimed by Plaintiffs; and
7 5. That RILEY was present at the work sites at which the alleged asbestos exposure of
8 the Plaintiff occurred;
9 This Defendant herewith pleads and sets forth separately and distinctly the following
10 affirmative defenses to each and every cause of action of Plaintiffs’ Complaint as though pleaded
11 separately to each and every said cause of action, and this answering Defendant alleges the following
12 affirmative defenses:
13 FIRST AFFIRMATIVE DEFENSE
14 (Improper/Inconvenient Venue)
15 This answering Defendant alleges that venue is improper in this judicial district and/or is
16 inconvenient and does not serve the substantial interests of justice.
17 SECOND AFFIRMATIVE DEFENSE
18 (No Subject Matter Jurisdiction)
19 This answering Defendant alleges the Court lacks subject matter jurisdiction over the matters
20 alleged in the Complaint because the Complaint and each alleged cause of action against this
21 Defendant is barred by the provisions of California Labor Code §§3601, et seq.
22 THIRD AFFIRMATIVE DEFENSE
23 (Statute of Limitations)
24 This answering Defendant alleges that Plaintiffs’ action, and each alleged cause of action, is
25 barred by the applicable statute of limitations, including but not limited to California Code of Civil
26 Procedure, sections 338, 339, 340, 340.2, 343, 361, 583.210, 583.310 and 583.410, and California
27 Commercial Code, section 2725.
28 ///
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1 FOURTH AFFIRMATIVE DEFENSE
2 (Statute of Repose)
3 This answering Defendant alleges that Plaintiffs’ Complaint and the purported causes of
4 action therein are barred by all statutes of repose, including but not limited to the provisions of
5 California Code of Civil Procedure §§ 337.1, and 337.15.
6 FIFTH AFFIRMATIVE DEFENSE
7 (No Standing)
8 This answering Defendant alleges Plaintiff has no standing or right to sue for fraud,
9 conspiracy, deceit, or any cause of action under California Civil Code, sections 1708-1710, and
10 therefore the Complaint and each cause of action therein fails to state facts sufficient to constitute a
11 cause of action against this answering Defendant.
12 SIXTH AFFIRMATIVE DEFENSE
13 (Plaintiff Not a Real Party in Interest)
14 This answering Defendant alleges Plaintiff herein lacks legal capacity to sue and is not a real
15 party in interest and is thereby precluded from any recovery whatsoever as prayed for herein.
16 SEVENTH AFFIRMATIVE DEFENSE
17 (No Privity)
18 This answering Defendant alleges that there was never any privity of contract between it, its
19 employees or agents on the one hand and Plaintiff on the other and that this lack of privity bars any
20 cause of action by Plaintiffs in warranty or which requires privity as an essential element.
21 EIGHTH AFFIRMATIVE DEFENSE
22 (Failure to Join Parties)
23 This answering Defendant alleges Plaintiffs herein failed to join indispensable parties and the
24 Complaint is thereby defective, and Plaintiffs are thereby precluded from any recovery whatsoever
25 as prayed for herein.
26 NINTH AFFIRMATIVE DEFENSE
27 (Failure to State a Cause of Action)
28 This answering Defendant alleges the Complaint and each of its purported causes of action
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1 fail to state facts sufficient to constitute a cause or causes of action against Defendant.
2 TENTH AFFIRMATIVE DEFENSE
3 (Government Contractor Defense)
4 This answering Defendant alleges that Plaintiffs’ Complaint and all purported causes of
5 action therein are barred by the “government contractor” defense. (See Boyle v. United Technologies
6 Corp., 487 U.S. 500, 512 (1988); Getz v. The Boeing Company, 654 F.3d 852 (9th Cir. 2011); Tate v.
7 Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir+. 1995); McKay v. Rockwell International Corp.,
8 704 F.2d 444 (9th Cir. 1983).)
9 ELEVENTH AFFIRMATIVE DEFENSE
10 (Derivative Sovereign Immunity)
11 This answering Defendant alleges that insofar as any of Plaintiffs’ claims against Defendant
12 involve any military products or equipment it manufactured or supplied to the U.S. Government,
13 Defendant asserts that Plaintiffs’ claims are barred by the derivative sovereign immunity defense.
14 (See Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940); Campbell-Ewald Co. v. Gomez,
15 577 U.S. _____, 136 S.Ct. 663, 673 (2016) [“’there is no liability on the part of the contractor’ who
16 simply performed as the Government directed”].)
17 TWELFTH AFFIRMATIVE DEFENSE
18 (Federal Officer Defense)
19 This answering Defendant alleges that any product that Defendant manufactured for or
20 supplied to the Navy (and any product literature, labeling, or warnings that accompanied that
21 product) would be subject to Navy specifications and requirements. Federal officers exercised their
22 discretion regarding whether (1) asbestos was used in the product, and (2) whether a warning would
23 accompany the product (and if so, what it would say). Without approval from a federal officer, the
24 products could not have been used by the Navy. (28 U.S.C. §§ 1442(a)(1) and 1446; see Leite v.
25 Crane Co., 749 F.3d 1117 (9th Cir. 2014); accord Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014).
26 The “federal officer” defense acts as a complete bar to Plaintiffs’ claims.
27 ///
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1 THIRTEENTH AFFIRMATIVE DEFENSE
2 (Sovereign Powers)
3 This answering Defendant alleges that its products were manufactured, produced, supplied,
4 sold and distributed in mandatory conformity with specifications promulgated by the United States
5 Government under its war powers, as set forth in the United States Constitution, and that any
6 recovery by Plaintiffs on the complaint on file herein is barred in consequence of the exercise of
7 those sovereign powers.
8 FOURTEENTH AFFIRMATIVE DEFENSE
9 (No Cause of Action to Invoke Maritime Law)
10 This answering Defendant alleges the Complaint fails to state facts sufficient to constitute a
11 cause of action to invoke the maritime/admiralty laws of the United States.
12 FIFTEENTH AFFIRMATIVE DEFENSE
13 (Compliance with Statutes)
14 This answering Defendant alleges that all of its conduct and activities as alleged in Plaintiffs’
15 Complaint conformed to statutes, government regulations, and industry standards based upon the
16 state of knowledge existing at all relevant times.
17 SIXTEENTH AFFIRMATIVE DEFENSE
18 (Compliance with Specifications)
19 This answering Defendant alleges that the asbestos products or asbestos used or in place at
20 any premises, if any, for which Defendant had any legal responsibility, were manufactured,
21 packaged, distributed or sold in accordance with contract specifications imposed by co-defendants,
22 Plaintiff’s employers, the U.S. Government, the State of California, or by third parties yet to be
23 identified.
24 SEVENTEENTH AFFIRMATIVE DEFENSE
25 (Waiver, Estoppel and Laches)
26 This answering Defendant alleges that Plaintiffs unreasonably delayed in the bringing of this
27 action without good cause and/or ratified, consented to or acquiesced in the alleged acts or
28 omissions, if any, of this answering Defendant, and as a proximate result thereof, this entire action is
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1 barred by waiver, estoppel and laches.
2 EIGHTEENTH AFFIRMATIVE DEFENSE
3 (Consent)
4 This answering Defendant alleges that at all times mentioned, Plaintiff consented to the
5 alleged acts of Defendant.
6 NINETEENTH AFFIRMATIVE DEFENSE
7 (No Legal Causation)
8 This answering Defendant alleges that no conduct by or attributable to it was the cause in fact
9 or the proximate cause of the damages, if any, suffered by Plaintiff, nor a substantial factor in
10 bringing about said damages.
11 TWENTIETH AFFIRMATIVE DEFENSE
12 (No Duty Owed to Plaintiff)
13 This answering Defendant alleges that Plaintiffs’ claims against Defendant is barred because
14 Defendant owed Plaintiff no duty of care under the holding of Campbell v. Ford Motor Co., (2012)
15 206 Cal.App.4th 15. Defendant further alleges it had no duty to warn of the hazards of asbestos-
16 containing products manufactured or supplied by third parties within the meaning of O’Neil v. Crane
17 Co. (2012) 53 Cal. 4th 335 and is not liable for any injury caused by a design defect in asbestos-
18 containing products manufactured or supplied by third parties.
19 TWENTY FIRST AFFIRMATIVE DEFENSE
20 (No Retained Control)
21 This answering Defendant alleges that Plaintiffs’ claims against Defendant are barred by the
22 holding of Hooker v. Dept. of Transportation (2002) 24 Cal.4th 198, in that Defendant did not retain
23 control over any independent contractor, nor had the right to control, to affirmatively contribute to
24 Plaintiff’s alleged injuries.
25 TWENTY SECOND AFFIRMATIVE DEFENSE
26 (No Peculiar Risk)
27 This answering Defendant alleges that Plaintiffs’ claim is barred from seeking to hold
28 Defendant vicariously liable for inherent risk of injury in the work places and premises under the
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1 holding of Privette v. Superior Court (1993) 5 Cal.4th 689.
2 TWENTY THIRD AFFIRMATIVE DEFENSE
3 (No Strict Liability)
4 This answering Defendant alleges that it did not manufacture, sell nor distribute asbestos-
5 containing product(s) at issue in Plaintiffs’ Complaint. To the extent that Plaintiffs allege that
6 Defendant is liable in its capacity as a contractor, Defendant asserts that strict liability is precluded
7 against a contractor/service provider, as “strict product liability theories apply only to sales or other
8 commercial transfers of goods and not to services.” (Hyland Therapeutics v. Superior Court (1985)
9 175 Cal.App.3d 509, 513 (emphasis in original); see also Pierson v. Sharp Memorial Hospital, Inc.
10 (1989) 216 Cal. App. 3d 340, 344 [“Courts have not extended the doctrine of strict liability to
11 transactions whose primary objective is obtaining services.”].)
12 TWENTY FOURTH AFFIRMATIVE DEFENSE
13 (No Successor Liability)
14 This answering Defendant denies that it was a successor, successor in business, successor in
15 product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product
16 line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or
17 partial owner of or member in any entity owning property, maintaining premises, researching,
18 studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying,
19 offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing,
20 marketing, warranting, re-branding, manufacturing for others, packaging and advertising any
21 asbestos products. This answering Defendant is therefore not liable for any acts, whether active or
22 passive, or omission of any entities to which this answering Defendant is or may be alleged to be a
23 successor-in-interest, predecessor-in-interest, alter ego or the life.
24 TWENTY FIFTH AFFIRMATIVE DEFENSE
25 (No Identification of Product)
26 This answering Defendant alleges that Plaintiffs are unable to identify the actual
27 manufacturer or manufacturers of the asbestos products which allegedly caused the injury which
28 forms the basis of the Complaint herein, and that said manufacturers were entities other than this
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1 Defendant. Therefore, this Defendant may not be held liable for the injury of the Plaintiff.
2 TWENTY SIXTH AFFIRMATIVE DEFENSE
3 (No Defective Product)
4 This answering Defendant alleges that its products were not defective in any manner, and
5 therefore Plaintiff is barred from recovery.
6 TWENTY SEVENTH AFFIRMATIVE DEFENSE
7 (No Liability for Component or Replacement Parts)
8 This answering Defendant is not liable for a defect in another’s product and/or third-party
9 component parts even if it is foreseeable that the defective product would be used in conjunction
10 with Defendant’s products. (O’Neil v. Crane Co., 53 Cal.4th 335 (2012); Taylor v. Elliott
11 Turbomachinery Co., Inc., 171 Cal.App.4th 564 (2009).)
12 TWENTY EIGHTH AFFIRMATIVE DEFENSE
13 (Misuse/ Improper Use of Product)
14 This answering Defendant alleges that if Plaintiff incurred damages or injuries as a result of
15 their use of Defendant’s products, which fact defendant expressly denies, such damages and injuries
16 were caused or contributed to, either in whole or in part, by his misuse of defendant’s products.
17 TWENTY NINTH AFFIRMATIVE DEFENSE
18 (Modification/ Alteration of Product)
19 This answering Defendant alleges that Plaintiff’s injuries, if any, were caused by: (1)
20 modification and alterations to defendant’s products, which changes and alterations were made by
21 Plaintiff or third parties beyond the control of defendant; and (2) improper maintenance or
22 installation, abuse and misuse of the products by third parties beyond the control of this defendant.
23 THIRTIETH AFFIRMATIVE DEFENSES
24 (Sufficient Warnings)
25 This answering Defendant alleges that Plaintiff was advised, informed and warned of all
26 dangers on the premises and of any potential hazards and/or dangers associated with the normal or
27 foreseeable use, handling, and storage of the products, substances, and equipment described in the
28 Complaint.
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1 THIRTY FIRST AFFIRMATIVE DEFENSE
2 (State-of-the-Art)
3 This answering Defendant alleges that all of its activities, products, materials and its
4 premises at issue here at all times were conducted, used, produced, marketed, and operated in
5 conformity with the existing scientific, medical industrial hygiene and consumer knowledge, art and
6 practice and state-of-the-art.
7 THIRTY SECOND AFFIRMATIVE DEFENSE
8 (Sophisticated User)
9 This answering Defendant alleges Plaintiff’s employer/s, their union/s or certain third parties
10 yet to be identified, were knowledgeable and sophisticated users and were in a better position to
11 warn Plaintiff of the risks associated with using products containing asbestos and, assuming a
12 warning was required, it was the failure of such persons or entities to give such a warning that was
13 the proximate and superseding cause of Plaintiff’s damages, if any.
14 THIRTY THIRD AFFIRMATIVE DEFENSE
15 (Assumption of Risk)
16 This answering Defendant alleges that Plaintiff, knowing of the dangers incident to the
17 undertakings and activities described in the Complaint, nevertheless freely and voluntarily exposed
18 themselves to those dangers and thus assumed the risk of any resulting harm or damage.
19 THIRTY FOURTH AFFIRMATIVE DEFENSE
20 (Failure to Mitigate)
21 This answering Defendant alleges that the Complaint and each of its purported causes of
22 action are barred by Plaintiff’s failure to take reasonable steps to avoid or otherwise mitigate the
23 claimed damages, expenditures and costs.
24 THIRTY FIFTH AFFIRMATIVE DEFENSE
25 (Comparative Fault)
26 This answering Defendant alleges that Plaintiff was negligent with respect to each of the
27 matters described in the Complaint and that this negligence was the cause in fact and proximate
28 cause of the damages, if any, suffered by the Plaintiff. Plaintiff’s negligence bars recovery in this
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DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY;
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1 action, either in whole or in part.
2 THIRTY SIXTH AFFIRMATIVE DEFENSE
3 (Employer's Negligence)
4 This answering Defendant alleges that Plaintiff’s employers were contributorily negligent
5 and careless in and about the matters alleged in the Complaint, and that such negligence on the part
6 of said employers proximately and concurrently contributed to any loss or damage, including non-
7 economic damages, complained of in said Complaint. This Defendant herein is not liable for said
8 employers’ proportionate share of non-economic damages.
9 THIRTY SEVENTH AFFIRMATIVE DEFENSE
10 (Employer's Assumption of the Risk)
11 This answering Defendant alleges that Plaintiff’s employers voluntarily and knowingly
12 entered into and engaged in the operations, acts and conduct alleged in said Complaint, and
13 voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct
14 alleged in said Complaint, and voluntarily and knowingly assumed all of the risks incident to said
15 operations, acts and conduct at the time and place mentioned in the Complaint.
16 THIRTY EIGHTH AFFIRMATIVE DEFENSE
17 (Negligence of Others)
18 This answering Defendant alleges that Plaintiff’s damages, if any, were proximately caused
19 or contributed to by the negligence or other act, omission or wrongful conduct of persons or other
20 entities over whom/which defendant had no control and for whom/which defendant can have no
21 responsibility or liability.
22 THIRTY NINTH AFFIRMATIVE DEFENSE
23 (Proportionate Fault)
24 This answering Defendant alleges that while at all times denying any liability whatsoever to
25 Plaintiff herein, this Defendant alleges that any alleged liability or responsibility of this Defendant is
26 small in proportion to the alleged liability and responsibility of other persons and entities, including
27 other persons and entities who are defendants herein, and that Plaintiffs should be limited to seeking
28 recovery from this Defendant for the proportion of alleged injuries and damages for which this
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DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY;
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1 Defendant is allegedly liable or responsible.
2 FORTIETH AFFIRMATIVE DEFENSE
3 (Not a Substantial Factor)
4 This answering Defendant alleges that the Complaint and each cause of action therein
5 presented are barred on the grounds that the products, conduct, materials or premises of Defendant
6 as referred to in Plaintiffs’ Complaint, if any, were not a substantial factor in bringing about the
7 injuries and damages complained of by Plaintiffs and did not increase the risk that Plaintiffs would
8 suffer the injuries and damages complained of.
9 FORTY FIRST AFFIRMATIVE DEFENSE
10 (Independent, Intervening or Superseding Cause)
11 This answering Defendant alleges that if Plaintiff suffered any injuries attributable to the use
12 of any product containing asbestos which was used, distributed or sold by Defendant, which
13 allegations are expressly denied herein, the injuries were solely caused by an unforeseeable,
14 independent intervening and/or superseding event beyond the control and unrelated to any conduct
15 of Defendant. Defendant’s actions, if any, were superseded by the negligence and wrongful conduct
16 of others.
17 FORTY SECOND AFFIRMATIVE DEFENSE
18 (Indemnity/Contribution)
19 This answering Defendant alleges that it is entitled to contribution and/or partial or complete
20 indemnification from any person or entity whose negligence, fault, and/or acts proximately
21 contributed to the happenings of the claimed incident or alleged injuries.
22 FORTY THIRD AFFIRMATIVE DEFENSE
23 (Proposition 51 - Civil Code Section 1431.2)
24 This answering Defendant alleges that the provisions of California Civil Code § 1431.2
25 (commonly referred to as “Proposition 51”) are applicable to Plaintiffs’ Complaint and to each cause
26 of action therein.
27 ///
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1 FORTY FOURTH AFFIRMATIVE DEFENSE
2 (No Market Share Liability)
3 This answering Defendant alleges that Plaintiffs fail to state sufficient facts to invoke market
4 share theory of liability and further allege that Plaintiffs are not able to identify the entities actually
5 responsible for the asbestos-containing products which caused Plaintiff’s injuries, if any.
6 FORTY FIFTH AFFIRMATIVE DEFENSE
7 (Fraud and Conspiracy Are Not Separate Forms of Damages)
8 This answering Defendant alleges that Fraud and conspiracy do not constitute a separate and
9 distinct form of damages from general damages, and therefore, the prayer for fraud and conspiracy
10 in addition to general damages does not sufficiently support or constitute a separate claim for
11 damages against this answering Defendant, but is simply cumulative and included in general
12 damages.
13 FORTY SIXTH AFFIRMATIVE DEFENSE
14 (Fair Responsibility Act)
15 This answering Defendant alleges that said Complaint, and each of said alleged causes of
16 action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code
17 Sections 1431.1 through 1431.5. Liability of this answering Defendant to Plaintiffs for non-
18 economic damages, if any, as defined in Civil Code Section 1431.2(b)(2) shall be several only and
19 shall not be joint with each or any co-defendant named in said Complaint. This answering
20 Defendant shall be liable only for non-economic damages, if any, allocated to this answering
21 Defendant in direct proportion to this answering Defendant's percentage of fault, if any.
22 FORTY SEVENTH AFFIRMATIVE DEFENSE
23 (Workers Compensation Remedy)
24 This answering Defendant alleges that this action is barred by applicable state and/or federal
25 industrial insurance and/or Workers’ Compensation laws, including but not limited to California
26 Labor Code sections 3601 and 2602 and 33 U.S.C. section 905.
27 ///
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1 FORTY EIGHTH AFFIRMATIVE DEFENSE
2 (Offset for Workers’ Compensation Benefits)
3 This answering Defendant alleges that at the time and place of the happening of the
4 occurrences alleged in the Complaint, and at all times material herein, Plaintiff was employed by
5 various employers, the names of which are unknown to this Defendant at this time, and working
6 within the course and scope of his employment and/or employments, that said employer and/or
7 employers and Plaintiff were subject to the provisions of the Workman's Compensation Act of the
8 State of California; that certain sums have been paid to or on behalf of Plaintiff herein under the
9 applicable provisions of the Labor Code of the State of California; that said employer and/or
10 employers and each of them were negligent and careless and that such negligence and carelessness
11 proximately contributed and caused the injuries of Plaintiff; that by these premises any award made
12 to the Plaintiff, if any award is made at all, must be reduced by any payment to by his employer or
13 employers' compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal.2d 57.
14 FORTY NINTH AFFIRMATIVE DEFENSE
15 (No Punitive Damages)
16 This answering Defendant alleges that Plaintiffs’ Complaint fails to state facts sufficient to
17 constitute “fraud,” “oppression,” or “malice” as provided in Civil Code Section 3294 and therefore
18 fails to state a cause of action for punitive damages.
19 FIFTIETH AFFIRMATIVE DEFENSE
20 (Punitive Damages – Unconstitutional)
21 This answering Defendant alleges that the prayer for exemplary or punitive damages violates
22 Defendant’s right to procedural due process under the Fourteenth Amendment of the United States
23 Constitution, and Article I, Section 7, of the Constitution of the State of California, and therefore
24 fails to state a cause of action upon which either punitive or exemplary damages can be awarded.
25 FIFTY FIRST AFFIRMATIVE DEFENSE
26 (Punitive Damages – Excessive Fines)
27 This answering Defendant alleges that the prayer for punitive or exemplary damages violates
28 Defendant’s right to protection from excessive fines as provided in the Eighth Amendment of the
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1 United States Constitution and Article I, Section 17, of the Constitution of the State of California,
2 and violates Defendant’s right to substantive due process as provided in the Fifth and Fourteenth
3 Amendments of the United States and California Constitutions, and thus fails to state a cause of
4 action supporting an award of punitive or exemplary damages.
5 FIFTY SECOND AFFIRMATIVE DEFENSE
6 (Punitive Damages – Impairment of Obligation of Contracts)
7 This answering Defendant alleges that the prayer for punitive damages, if granted, would
8 violate the prohibition against laws impairing the obligation of contracts set forth in Article I,
9 Section 10, of the United States Constitution.
10 FIFTY THIRD AFFIRMATIVE DEFENSE
11 (Punitive Damages – “Double Jeopardy” Clause)
12 This answering Defendant alleges that the prayer for punitive or exemplary damages are
13 barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as
14 applied to the States through the Fourteenth Amendment.
15 FIFTY FOURTH AFFIRMATIVE DEFENSE
16 (Res Judicata)
17 This answering Defendant alleges that if Plaintiffs’ claims were already litigated and
18 resolved in any prior action, Plaintiffs’ claims herein are barred based on the primary right and res
19 judicata doctrines which prohibit splitting a single cause of action into successive suits, and seeking
20 new recovery for injuries for which the Plaintiffs were previously compensated by alleged joint tort-
21 feasors.
22 FIFTY FIFTH AFFIRMATIVE DEFENSE
23 (Further Affirmative Defenses)
24 This answering Defendant reserves the right to allege further affirmative defenses as they
25 become known through the course of discovery.
26 WHEREFORE, Defendant prays:
27 1. That the Complaint be dismissed or judgment be rendered in favor of Defendant and
28 that Plaintiffs take nothing thereby;
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1 2. For its costs of suit;
2 3. For reasonable attorneys’ fees;
3 4. For appropriate credits and setoffs arising out of any payment of workers’
4 compensation benefits as alleged above; and,
5 5. For such other and further relief as the court may deem just and proper.
6 NOTICE OF REQUEST FOR JURY TRIAL
7 Pursuant to California Code of Civil Procedure section 631, RILEY POWER INC. hereby
8 gives Notice of Its Request for Trial by Jury.
9 DATED: June 15, 2020 FOLEY & MANSFIELD, PLLP
10
By:
11 Peter B. Langbord
Jocelyn M. Soriano
12 Attorneys for Defendant
13 RILEY POWER INC.
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DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY;
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1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
2 Rita Caruso & Robert Caruso v. Crane Co., et al.
3 San Francisco Superior Court Case No. CGC-20-276837
I, the undersigned, declare as follows: I am employed in the County of Contra Costa, State
4 of California. I am over the age of 18 years and not a party to the within action. My business
address is 2185 N. California Blvd., Suite 575, Walnut Creek, CA 94596.
5
On the date executed below, I electronically served the following document(s):
6
DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
7 PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL -
ASBESTOS
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9 x BY ELECTRONIC TRANSMISSION: Pursuant to CCP 1010.6 and CRC 2.251, or
pursuant to the Stipulation and Order Authorizing Electronic Service, or by an agreement
10 of the parties, I electronically e-served through File & ServeXpress and caused the
document(s) to be sent to the person(s) at the email addresses designated on the
11 Transaction Receipt located on the File & ServeXpress website. To the best of my
knowledge, at the time of the transmission, the transmission was reported as complete and
12 without error.
13 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct and that this declaration was executed on June 15, 2020 at Walnut Creek,
14 California.
15 _____________________________
16 Amy Harkness
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DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY;
LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS
4281990 v1
Preview
1 Peter B. Langbord SBN 144319 Jocelyn M. Soriano SBN 201169 2 FOLEY & MANSFIELD, PLLP ELECTRONICALLY 2185 N. California Boulevard, Suite 575 3 Walnut Creek, CA 94596 FILED Superior Court of California, Telephone: (510) 590-9500 County of San Francisco 4 Facsimile: (510) 590-9595 Email: jsoriano@foleymansfield.com 06/15/2020 5 Clerk of the Court BY: MADONNA CARANTO Attorneys for Defendant Deputy Clerk 6 RILEY POWER INC. (erroneously sued as alternate entity of Babcock 7 Borsig Power, Inc.; Union Boiler Company; 8 Union Iron Works, Inc.; DB Riley, Inc.; Riley Stoker Corporation; Badenhausen; Union Iron 9 Works; and Union Iron Works of Spokane, WA) 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SAN FRANCISCO 12 RITA CARUSO and ROBERT CARUSO, Case No. CGC-20-276837 13 Plaintiffs, 14 DEFENDANT RILEY POWER INC.’S vs. ANSWER TO PLAINTIFFS’ COMPLAINT 15 FOR PERSONAL INJURY; LOSS OF CRANE CO., et al., CONSORTIUM AND REQUEST FOR JURY 16 TRIAL - ASBESTOS Defendants. 17 Action Filed: May 29, 2020 18 Trial Date: TBD 19 20 COMES NOW Defendant RILEY POWER INC., (erroneously sued as alternate entity of 21 Babcock Borsig Power, Inc.; Union Boiler Company; Union Iron Works, Inc.; DB Riley Inc.; Riley 22 Stoker Corporation; Badenhausen; Union Iron Works; and Union Iron Works of Spokane, WA), 23 (“RILEY” or “Defendant”), and answering to Plaintiff’s Complaint and by virtue of the provisions 24 of Code of Civil Procedure Section 431.30(d), now files its general denial to said Complaint, and 25 denies each and every, all and singular, generally and specifically, allegations and causes of action 26 contained therein, and further denies that Plaintiff has been damaged in any sum, sums, or at all, and 27 specifically denies: 28 1. That the Plaintiff came into contact with any asbestos-containing product for which 1 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 RILEY is alleged to be responsible; 2 2. That RILEY was negligent and/or careless in any respect whatsoever, or at all; 3 3. That any act or omission of RILEY caused or contributed to any injury purportedly 4 suffered by Plaintiff; 5 4. That any act or omission of RILEY contributed to any asbestos health hazard or any 6 injury claimed by Plaintiffs; and 7 5. That RILEY was present at the work sites at which the alleged asbestos exposure of 8 the Plaintiff occurred; 9 This Defendant herewith pleads and sets forth separately and distinctly the following 10 affirmative defenses to each and every cause of action of Plaintiffs’ Complaint as though pleaded 11 separately to each and every said cause of action, and this answering Defendant alleges the following 12 affirmative defenses: 13 FIRST AFFIRMATIVE DEFENSE 14 (Improper/Inconvenient Venue) 15 This answering Defendant alleges that venue is improper in this judicial district and/or is 16 inconvenient and does not serve the substantial interests of justice. 17 SECOND AFFIRMATIVE DEFENSE 18 (No Subject Matter Jurisdiction) 19 This answering Defendant alleges the Court lacks subject matter jurisdiction over the matters 20 alleged in the Complaint because the Complaint and each alleged cause of action against this 21 Defendant is barred by the provisions of California Labor Code §§3601, et seq. 22 THIRD AFFIRMATIVE DEFENSE 23 (Statute of Limitations) 24 This answering Defendant alleges that Plaintiffs’ action, and each alleged cause of action, is 25 barred by the applicable statute of limitations, including but not limited to California Code of Civil 26 Procedure, sections 338, 339, 340, 340.2, 343, 361, 583.210, 583.310 and 583.410, and California 27 Commercial Code, section 2725. 28 /// 2 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 FOURTH AFFIRMATIVE DEFENSE 2 (Statute of Repose) 3 This answering Defendant alleges that Plaintiffs’ Complaint and the purported causes of 4 action therein are barred by all statutes of repose, including but not limited to the provisions of 5 California Code of Civil Procedure §§ 337.1, and 337.15. 6 FIFTH AFFIRMATIVE DEFENSE 7 (No Standing) 8 This answering Defendant alleges Plaintiff has no standing or right to sue for fraud, 9 conspiracy, deceit, or any cause of action under California Civil Code, sections 1708-1710, and 10 therefore the Complaint and each cause of action therein fails to state facts sufficient to constitute a 11 cause of action against this answering Defendant. 12 SIXTH AFFIRMATIVE DEFENSE 13 (Plaintiff Not a Real Party in Interest) 14 This answering Defendant alleges Plaintiff herein lacks legal capacity to sue and is not a real 15 party in interest and is thereby precluded from any recovery whatsoever as prayed for herein. 16 SEVENTH AFFIRMATIVE DEFENSE 17 (No Privity) 18 This answering Defendant alleges that there was never any privity of contract between it, its 19 employees or agents on the one hand and Plaintiff on the other and that this lack of privity bars any 20 cause of action by Plaintiffs in warranty or which requires privity as an essential element. 21 EIGHTH AFFIRMATIVE DEFENSE 22 (Failure to Join Parties) 23 This answering Defendant alleges Plaintiffs herein failed to join indispensable parties and the 24 Complaint is thereby defective, and Plaintiffs are thereby precluded from any recovery whatsoever 25 as prayed for herein. 26 NINTH AFFIRMATIVE DEFENSE 27 (Failure to State a Cause of Action) 28 This answering Defendant alleges the Complaint and each of its purported causes of action 3 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 fail to state facts sufficient to constitute a cause or causes of action against Defendant. 2 TENTH AFFIRMATIVE DEFENSE 3 (Government Contractor Defense) 4 This answering Defendant alleges that Plaintiffs’ Complaint and all purported causes of 5 action therein are barred by the “government contractor” defense. (See Boyle v. United Technologies 6 Corp., 487 U.S. 500, 512 (1988); Getz v. The Boeing Company, 654 F.3d 852 (9th Cir. 2011); Tate v. 7 Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir+. 1995); McKay v. Rockwell International Corp., 8 704 F.2d 444 (9th Cir. 1983).) 9 ELEVENTH AFFIRMATIVE DEFENSE 10 (Derivative Sovereign Immunity) 11 This answering Defendant alleges that insofar as any of Plaintiffs’ claims against Defendant 12 involve any military products or equipment it manufactured or supplied to the U.S. Government, 13 Defendant asserts that Plaintiffs’ claims are barred by the derivative sovereign immunity defense. 14 (See Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940); Campbell-Ewald Co. v. Gomez, 15 577 U.S. _____, 136 S.Ct. 663, 673 (2016) [“’there is no liability on the part of the contractor’ who 16 simply performed as the Government directed”].) 17 TWELFTH AFFIRMATIVE DEFENSE 18 (Federal Officer Defense) 19 This answering Defendant alleges that any product that Defendant manufactured for or 20 supplied to the Navy (and any product literature, labeling, or warnings that accompanied that 21 product) would be subject to Navy specifications and requirements. Federal officers exercised their 22 discretion regarding whether (1) asbestos was used in the product, and (2) whether a warning would 23 accompany the product (and if so, what it would say). Without approval from a federal officer, the 24 products could not have been used by the Navy. (28 U.S.C. §§ 1442(a)(1) and 1446; see Leite v. 25 Crane Co., 749 F.3d 1117 (9th Cir. 2014); accord Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014). 26 The “federal officer” defense acts as a complete bar to Plaintiffs’ claims. 27 /// 28 /// 4 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 THIRTEENTH AFFIRMATIVE DEFENSE 2 (Sovereign Powers) 3 This answering Defendant alleges that its products were manufactured, produced, supplied, 4 sold and distributed in mandatory conformity with specifications promulgated by the United States 5 Government under its war powers, as set forth in the United States Constitution, and that any 6 recovery by Plaintiffs on the complaint on file herein is barred in consequence of the exercise of 7 those sovereign powers. 8 FOURTEENTH AFFIRMATIVE DEFENSE 9 (No Cause of Action to Invoke Maritime Law) 10 This answering Defendant alleges the Complaint fails to state facts sufficient to constitute a 11 cause of action to invoke the maritime/admiralty laws of the United States. 12 FIFTEENTH AFFIRMATIVE DEFENSE 13 (Compliance with Statutes) 14 This answering Defendant alleges that all of its conduct and activities as alleged in Plaintiffs’ 15 Complaint conformed to statutes, government regulations, and industry standards based upon the 16 state of knowledge existing at all relevant times. 17 SIXTEENTH AFFIRMATIVE DEFENSE 18 (Compliance with Specifications) 19 This answering Defendant alleges that the asbestos products or asbestos used or in place at 20 any premises, if any, for which Defendant had any legal responsibility, were manufactured, 21 packaged, distributed or sold in accordance with contract specifications imposed by co-defendants, 22 Plaintiff’s employers, the U.S. Government, the State of California, or by third parties yet to be 23 identified. 24 SEVENTEENTH AFFIRMATIVE DEFENSE 25 (Waiver, Estoppel and Laches) 26 This answering Defendant alleges that Plaintiffs unreasonably delayed in the bringing of this 27 action without good cause and/or ratified, consented to or acquiesced in the alleged acts or 28 omissions, if any, of this answering Defendant, and as a proximate result thereof, this entire action is 5 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 barred by waiver, estoppel and laches. 2 EIGHTEENTH AFFIRMATIVE DEFENSE 3 (Consent) 4 This answering Defendant alleges that at all times mentioned, Plaintiff consented to the 5 alleged acts of Defendant. 6 NINETEENTH AFFIRMATIVE DEFENSE 7 (No Legal Causation) 8 This answering Defendant alleges that no conduct by or attributable to it was the cause in fact 9 or the proximate cause of the damages, if any, suffered by Plaintiff, nor a substantial factor in 10 bringing about said damages. 11 TWENTIETH AFFIRMATIVE DEFENSE 12 (No Duty Owed to Plaintiff) 13 This answering Defendant alleges that Plaintiffs’ claims against Defendant is barred because 14 Defendant owed Plaintiff no duty of care under the holding of Campbell v. Ford Motor Co., (2012) 15 206 Cal.App.4th 15. Defendant further alleges it had no duty to warn of the hazards of asbestos- 16 containing products manufactured or supplied by third parties within the meaning of O’Neil v. Crane 17 Co. (2012) 53 Cal. 4th 335 and is not liable for any injury caused by a design defect in asbestos- 18 containing products manufactured or supplied by third parties. 19 TWENTY FIRST AFFIRMATIVE DEFENSE 20 (No Retained Control) 21 This answering Defendant alleges that Plaintiffs’ claims against Defendant are barred by the 22 holding of Hooker v. Dept. of Transportation (2002) 24 Cal.4th 198, in that Defendant did not retain 23 control over any independent contractor, nor had the right to control, to affirmatively contribute to 24 Plaintiff’s alleged injuries. 25 TWENTY SECOND AFFIRMATIVE DEFENSE 26 (No Peculiar Risk) 27 This answering Defendant alleges that Plaintiffs’ claim is barred from seeking to hold 28 Defendant vicariously liable for inherent risk of injury in the work places and premises under the 6 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 holding of Privette v. Superior Court (1993) 5 Cal.4th 689. 2 TWENTY THIRD AFFIRMATIVE DEFENSE 3 (No Strict Liability) 4 This answering Defendant alleges that it did not manufacture, sell nor distribute asbestos- 5 containing product(s) at issue in Plaintiffs’ Complaint. To the extent that Plaintiffs allege that 6 Defendant is liable in its capacity as a contractor, Defendant asserts that strict liability is precluded 7 against a contractor/service provider, as “strict product liability theories apply only to sales or other 8 commercial transfers of goods and not to services.” (Hyland Therapeutics v. Superior Court (1985) 9 175 Cal.App.3d 509, 513 (emphasis in original); see also Pierson v. Sharp Memorial Hospital, Inc. 10 (1989) 216 Cal. App. 3d 340, 344 [“Courts have not extended the doctrine of strict liability to 11 transactions whose primary objective is obtaining services.”].) 12 TWENTY FOURTH AFFIRMATIVE DEFENSE 13 (No Successor Liability) 14 This answering Defendant denies that it was a successor, successor in business, successor in 15 product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product 16 line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or 17 partial owner of or member in any entity owning property, maintaining premises, researching, 18 studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, 19 offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, 20 marketing, warranting, re-branding, manufacturing for others, packaging and advertising any 21 asbestos products. This answering Defendant is therefore not liable for any acts, whether active or 22 passive, or omission of any entities to which this answering Defendant is or may be alleged to be a 23 successor-in-interest, predecessor-in-interest, alter ego or the life. 24 TWENTY FIFTH AFFIRMATIVE DEFENSE 25 (No Identification of Product) 26 This answering Defendant alleges that Plaintiffs are unable to identify the actual 27 manufacturer or manufacturers of the asbestos products which allegedly caused the injury which 28 forms the basis of the Complaint herein, and that said manufacturers were entities other than this 7 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 Defendant. Therefore, this Defendant may not be held liable for the injury of the Plaintiff. 2 TWENTY SIXTH AFFIRMATIVE DEFENSE 3 (No Defective Product) 4 This answering Defendant alleges that its products were not defective in any manner, and 5 therefore Plaintiff is barred from recovery. 6 TWENTY SEVENTH AFFIRMATIVE DEFENSE 7 (No Liability for Component or Replacement Parts) 8 This answering Defendant is not liable for a defect in another’s product and/or third-party 9 component parts even if it is foreseeable that the defective product would be used in conjunction 10 with Defendant’s products. (O’Neil v. Crane Co., 53 Cal.4th 335 (2012); Taylor v. Elliott 11 Turbomachinery Co., Inc., 171 Cal.App.4th 564 (2009).) 12 TWENTY EIGHTH AFFIRMATIVE DEFENSE 13 (Misuse/ Improper Use of Product) 14 This answering Defendant alleges that if Plaintiff incurred damages or injuries as a result of 15 their use of Defendant’s products, which fact defendant expressly denies, such damages and injuries 16 were caused or contributed to, either in whole or in part, by his misuse of defendant’s products. 17 TWENTY NINTH AFFIRMATIVE DEFENSE 18 (Modification/ Alteration of Product) 19 This answering Defendant alleges that Plaintiff’s injuries, if any, were caused by: (1) 20 modification and alterations to defendant’s products, which changes and alterations were made by 21 Plaintiff or third parties beyond the control of defendant; and (2) improper maintenance or 22 installation, abuse and misuse of the products by third parties beyond the control of this defendant. 23 THIRTIETH AFFIRMATIVE DEFENSES 24 (Sufficient Warnings) 25 This answering Defendant alleges that Plaintiff was advised, informed and warned of all 26 dangers on the premises and of any potential hazards and/or dangers associated with the normal or 27 foreseeable use, handling, and storage of the products, substances, and equipment described in the 28 Complaint. 8 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 THIRTY FIRST AFFIRMATIVE DEFENSE 2 (State-of-the-Art) 3 This answering Defendant alleges that all of its activities, products, materials and its 4 premises at issue here at all times were conducted, used, produced, marketed, and operated in 5 conformity with the existing scientific, medical industrial hygiene and consumer knowledge, art and 6 practice and state-of-the-art. 7 THIRTY SECOND AFFIRMATIVE DEFENSE 8 (Sophisticated User) 9 This answering Defendant alleges Plaintiff’s employer/s, their union/s or certain third parties 10 yet to be identified, were knowledgeable and sophisticated users and were in a better position to 11 warn Plaintiff of the risks associated with using products containing asbestos and, assuming a 12 warning was required, it was the failure of such persons or entities to give such a warning that was 13 the proximate and superseding cause of Plaintiff’s damages, if any. 14 THIRTY THIRD AFFIRMATIVE DEFENSE 15 (Assumption of Risk) 16 This answering Defendant alleges that Plaintiff, knowing of the dangers incident to the 17 undertakings and activities described in the Complaint, nevertheless freely and voluntarily exposed 18 themselves to those dangers and thus assumed the risk of any resulting harm or damage. 19 THIRTY FOURTH AFFIRMATIVE DEFENSE 20 (Failure to Mitigate) 21 This answering Defendant alleges that the Complaint and each of its purported causes of 22 action are barred by Plaintiff’s failure to take reasonable steps to avoid or otherwise mitigate the 23 claimed damages, expenditures and costs. 24 THIRTY FIFTH AFFIRMATIVE DEFENSE 25 (Comparative Fault) 26 This answering Defendant alleges that Plaintiff was negligent with respect to each of the 27 matters described in the Complaint and that this negligence was the cause in fact and proximate 28 cause of the damages, if any, suffered by the Plaintiff. Plaintiff’s negligence bars recovery in this 9 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 action, either in whole or in part. 2 THIRTY SIXTH AFFIRMATIVE DEFENSE 3 (Employer's Negligence) 4 This answering Defendant alleges that Plaintiff’s employers were contributorily negligent 5 and careless in and about the matters alleged in the Complaint, and that such negligence on the part 6 of said employers proximately and concurrently contributed to any loss or damage, including non- 7 economic damages, complained of in said Complaint. This Defendant herein is not liable for said 8 employers’ proportionate share of non-economic damages. 9 THIRTY SEVENTH AFFIRMATIVE DEFENSE 10 (Employer's Assumption of the Risk) 11 This answering Defendant alleges that Plaintiff’s employers voluntarily and knowingly 12 entered into and engaged in the operations, acts and conduct alleged in said Complaint, and 13 voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct 14 alleged in said Complaint, and voluntarily and knowingly assumed all of the risks incident to said 15 operations, acts and conduct at the time and place mentioned in the Complaint. 16 THIRTY EIGHTH AFFIRMATIVE DEFENSE 17 (Negligence of Others) 18 This answering Defendant alleges that Plaintiff’s damages, if any, were proximately caused 19 or contributed to by the negligence or other act, omission or wrongful conduct of persons or other 20 entities over whom/which defendant had no control and for whom/which defendant can have no 21 responsibility or liability. 22 THIRTY NINTH AFFIRMATIVE DEFENSE 23 (Proportionate Fault) 24 This answering Defendant alleges that while at all times denying any liability whatsoever to 25 Plaintiff herein, this Defendant alleges that any alleged liability or responsibility of this Defendant is 26 small in proportion to the alleged liability and responsibility of other persons and entities, including 27 other persons and entities who are defendants herein, and that Plaintiffs should be limited to seeking 28 recovery from this Defendant for the proportion of alleged injuries and damages for which this 10 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 Defendant is allegedly liable or responsible. 2 FORTIETH AFFIRMATIVE DEFENSE 3 (Not a Substantial Factor) 4 This answering Defendant alleges that the Complaint and each cause of action therein 5 presented are barred on the grounds that the products, conduct, materials or premises of Defendant 6 as referred to in Plaintiffs’ Complaint, if any, were not a substantial factor in bringing about the 7 injuries and damages complained of by Plaintiffs and did not increase the risk that Plaintiffs would 8 suffer the injuries and damages complained of. 9 FORTY FIRST AFFIRMATIVE DEFENSE 10 (Independent, Intervening or Superseding Cause) 11 This answering Defendant alleges that if Plaintiff suffered any injuries attributable to the use 12 of any product containing asbestos which was used, distributed or sold by Defendant, which 13 allegations are expressly denied herein, the injuries were solely caused by an unforeseeable, 14 independent intervening and/or superseding event beyond the control and unrelated to any conduct 15 of Defendant. Defendant’s actions, if any, were superseded by the negligence and wrongful conduct 16 of others. 17 FORTY SECOND AFFIRMATIVE DEFENSE 18 (Indemnity/Contribution) 19 This answering Defendant alleges that it is entitled to contribution and/or partial or complete 20 indemnification from any person or entity whose negligence, fault, and/or acts proximately 21 contributed to the happenings of the claimed incident or alleged injuries. 22 FORTY THIRD AFFIRMATIVE DEFENSE 23 (Proposition 51 - Civil Code Section 1431.2) 24 This answering Defendant alleges that the provisions of California Civil Code § 1431.2 25 (commonly referred to as “Proposition 51”) are applicable to Plaintiffs’ Complaint and to each cause 26 of action therein. 27 /// 28 /// 11 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 FORTY FOURTH AFFIRMATIVE DEFENSE 2 (No Market Share Liability) 3 This answering Defendant alleges that Plaintiffs fail to state sufficient facts to invoke market 4 share theory of liability and further allege that Plaintiffs are not able to identify the entities actually 5 responsible for the asbestos-containing products which caused Plaintiff’s injuries, if any. 6 FORTY FIFTH AFFIRMATIVE DEFENSE 7 (Fraud and Conspiracy Are Not Separate Forms of Damages) 8 This answering Defendant alleges that Fraud and conspiracy do not constitute a separate and 9 distinct form of damages from general damages, and therefore, the prayer for fraud and conspiracy 10 in addition to general damages does not sufficiently support or constitute a separate claim for 11 damages against this answering Defendant, but is simply cumulative and included in general 12 damages. 13 FORTY SIXTH AFFIRMATIVE DEFENSE 14 (Fair Responsibility Act) 15 This answering Defendant alleges that said Complaint, and each of said alleged causes of 16 action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code 17 Sections 1431.1 through 1431.5. Liability of this answering Defendant to Plaintiffs for non- 18 economic damages, if any, as defined in Civil Code Section 1431.2(b)(2) shall be several only and 19 shall not be joint with each or any co-defendant named in said Complaint. This answering 20 Defendant shall be liable only for non-economic damages, if any, allocated to this answering 21 Defendant in direct proportion to this answering Defendant's percentage of fault, if any. 22 FORTY SEVENTH AFFIRMATIVE DEFENSE 23 (Workers Compensation Remedy) 24 This answering Defendant alleges that this action is barred by applicable state and/or federal 25 industrial insurance and/or Workers’ Compensation laws, including but not limited to California 26 Labor Code sections 3601 and 2602 and 33 U.S.C. section 905. 27 /// 28 /// 12 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 FORTY EIGHTH AFFIRMATIVE DEFENSE 2 (Offset for Workers’ Compensation Benefits) 3 This answering Defendant alleges that at the time and place of the happening of the 4 occurrences alleged in the Complaint, and at all times material herein, Plaintiff was employed by 5 various employers, the names of which are unknown to this Defendant at this time, and working 6 within the course and scope of his employment and/or employments, that said employer and/or 7 employers and Plaintiff were subject to the provisions of the Workman's Compensation Act of the 8 State of California; that certain sums have been paid to or on behalf of Plaintiff herein under the 9 applicable provisions of the Labor Code of the State of California; that said employer and/or 10 employers and each of them were negligent and careless and that such negligence and carelessness 11 proximately contributed and caused the injuries of Plaintiff; that by these premises any award made 12 to the Plaintiff, if any award is made at all, must be reduced by any payment to by his employer or 13 employers' compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal.2d 57. 14 FORTY NINTH AFFIRMATIVE DEFENSE 15 (No Punitive Damages) 16 This answering Defendant alleges that Plaintiffs’ Complaint fails to state facts sufficient to 17 constitute “fraud,” “oppression,” or “malice” as provided in Civil Code Section 3294 and therefore 18 fails to state a cause of action for punitive damages. 19 FIFTIETH AFFIRMATIVE DEFENSE 20 (Punitive Damages – Unconstitutional) 21 This answering Defendant alleges that the prayer for exemplary or punitive damages violates 22 Defendant’s right to procedural due process under the Fourteenth Amendment of the United States 23 Constitution, and Article I, Section 7, of the Constitution of the State of California, and therefore 24 fails to state a cause of action upon which either punitive or exemplary damages can be awarded. 25 FIFTY FIRST AFFIRMATIVE DEFENSE 26 (Punitive Damages – Excessive Fines) 27 This answering Defendant alleges that the prayer for punitive or exemplary damages violates 28 Defendant’s right to protection from excessive fines as provided in the Eighth Amendment of the 13 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 United States Constitution and Article I, Section 17, of the Constitution of the State of California, 2 and violates Defendant’s right to substantive due process as provided in the Fifth and Fourteenth 3 Amendments of the United States and California Constitutions, and thus fails to state a cause of 4 action supporting an award of punitive or exemplary damages. 5 FIFTY SECOND AFFIRMATIVE DEFENSE 6 (Punitive Damages – Impairment of Obligation of Contracts) 7 This answering Defendant alleges that the prayer for punitive damages, if granted, would 8 violate the prohibition against laws impairing the obligation of contracts set forth in Article I, 9 Section 10, of the United States Constitution. 10 FIFTY THIRD AFFIRMATIVE DEFENSE 11 (Punitive Damages – “Double Jeopardy” Clause) 12 This answering Defendant alleges that the prayer for punitive or exemplary damages are 13 barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as 14 applied to the States through the Fourteenth Amendment. 15 FIFTY FOURTH AFFIRMATIVE DEFENSE 16 (Res Judicata) 17 This answering Defendant alleges that if Plaintiffs’ claims were already litigated and 18 resolved in any prior action, Plaintiffs’ claims herein are barred based on the primary right and res 19 judicata doctrines which prohibit splitting a single cause of action into successive suits, and seeking 20 new recovery for injuries for which the Plaintiffs were previously compensated by alleged joint tort- 21 feasors. 22 FIFTY FIFTH AFFIRMATIVE DEFENSE 23 (Further Affirmative Defenses) 24 This answering Defendant reserves the right to allege further affirmative defenses as they 25 become known through the course of discovery. 26 WHEREFORE, Defendant prays: 27 1. That the Complaint be dismissed or judgment be rendered in favor of Defendant and 28 that Plaintiffs take nothing thereby; 14 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 2. For its costs of suit; 2 3. For reasonable attorneys’ fees; 3 4. For appropriate credits and setoffs arising out of any payment of workers’ 4 compensation benefits as alleged above; and, 5 5. For such other and further relief as the court may deem just and proper. 6 NOTICE OF REQUEST FOR JURY TRIAL 7 Pursuant to California Code of Civil Procedure section 631, RILEY POWER INC. hereby 8 gives Notice of Its Request for Trial by Jury. 9 DATED: June 15, 2020 FOLEY & MANSFIELD, PLLP 10 By: 11 Peter B. Langbord Jocelyn M. Soriano 12 Attorneys for Defendant 13 RILEY POWER INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1 1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 2 Rita Caruso & Robert Caruso v. Crane Co., et al. 3 San Francisco Superior Court Case No. CGC-20-276837 I, the undersigned, declare as follows: I am employed in the County of Contra Costa, State 4 of California. I am over the age of 18 years and not a party to the within action. My business address is 2185 N. California Blvd., Suite 575, Walnut Creek, CA 94596. 5 On the date executed below, I electronically served the following document(s): 6 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR 7 PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 8 9 x BY ELECTRONIC TRANSMISSION: Pursuant to CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing Electronic Service, or by an agreement 10 of the parties, I electronically e-served through File & ServeXpress and caused the document(s) to be sent to the person(s) at the email addresses designated on the 11 Transaction Receipt located on the File & ServeXpress website. To the best of my knowledge, at the time of the transmission, the transmission was reported as complete and 12 without error. 13 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on June 15, 2020 at Walnut Creek, 14 California. 15 _____________________________ 16 Amy Harkness 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANT RILEY POWER INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY; LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS 4281990 v1