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UO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Oct-15-2013 01:16 pm
Case Number: CGC-13-533956
Filing Date: Oct-15-2013 01:14 pm
Filed by: ANNA TORRES
Juke Box: 001 Image: 04237456
ANSWER
WHITNEY R LEEMAN PHD VS. DEAN DISTRIBUTORS, INC et al
001004237456
Instructions:
Please place this sheet on top of the document to be scanned.ORIGINAL
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Buy R ° aupp ‘SEN Near San Francisco County Superior Court
Matthew K. Wisinski (SBN 195535) oct 15 2013
BOr South Grand Avenue, Ninth Fi
jou rand Avenue, Ninth Floor
Los Angeles, California 90017-4613 CLERK OF JHE COURT
Telephone: (213) 623-7400 BY: Deputy Clerk
Facsimile: (213) 623-6336
E-Mail: ggruppie@murchisonlaw.com
eweiss@murchisonlaw.com
mwisinski@murchisonlaw.com
Attorneys for Defendant DEAN
DISTRIBUTORS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
WHITNEY R. LEEMAN, PH.D., CASE NO. CGC 13-533956
Plaintiff, ANSWER TO COMPLAINT
vs. Action Filed: Aug. 30, 2013
Trial Date: None Set
DEAN DISTRIBUTORS, INC.; and DOES
1-150, inclusive,
Defendants.
COMES NOW defendant, DEAN DISTRIBUTORS, INC. and answering for itself
alone and in answer to the complaint of plaintiff WHITNEY R. LEEMAN, PH.D, herein
admits, denies and alleges as follows:
GENERAL DENIAL
1. Pursuant to the provisions of California Code of Civil Procedure §431.30(d),
this answering defendant denies generally and specifically each and every allegation
contained in plaintiffs complaint, and each and every cause of action therein set forth, and
the whole thereof, and specifically denies that plaintiff has been injured and/or damaged in
the amounts therein alleged or in any other amount or amounts, or at all by any act or
omission on the part of this answering defendant.
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And for a further, separate and distinct answer in defense to said complaint and to
each and every alleged cause of action contained therein, this answering defendant alleges
affirmative defenses as follows:
AFFIRMATIVE DEFENSES
First Affirmative Defense
2. As a first, separate, and distinct affirmative defense, this answering defendant
is informed and believes and thereon alleges that the complaint, and each and every cause
of action or purported cause of action stated therein, are barred by application of the statute
of limitations.
Second Affirmative Defense
3. As a second, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that the complaint, and each and
every cause of action or purported cause of action contained therein, fail to state facts
sufficient to constitute a cause of action as against this answering defendant.
Third Affirmative Defense
4. As a third, separate, and distinct affirmative defense, this answering defendant|
is informed and believes and thereon alleges that this answering defendant has not violated
California Health and Safety Code section 25249.6 because, in the course of doing
business in California, it has not knowingly or intentionally exposed any individual in the
State of California to a significant amount of a chemical known to the State of California to
cause cancer or reproductive toxicity.
Fourth Affirmative Defense
5. As a fourth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that if this answering defendant is
subject to any liability to plaintiff herein, it will be due in whole or in part to the conduct, acts,
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and/or omissions, and/or activities of a party or parties unknown to this answering defendant
at this time, and any recovery obtained by said plaintiff should be barred and/or reduced
according to law, up to and including the whole thereof.
Fifth Affirmative Defense
6. As a fifth, separate, and distinct affirmative defense, this answering defendant
is informed and believes and thereon alleges that all conduct and activity of this answering
defendant alleged in the Complaint conformed to all laws, government regulations, and
industry standards based upon the state of knowledge existing at all relevant times.
Sixth Affirmative Defense
7. As a sixth, separate, and distinct affirmative defense, this answering defendant
is informed and believes and thereon alleges that to the extent plaintiff purports to seek
relief on behalf of members of the general public who have suffered no damages, the
Complaint and each of its claims for relief herein violates the right of this answering
defendant to due process under the California and United States Constitutions.
Seventh Affirmative Defense
8. As a seventh, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that plaintiff seeks to apply
California Health and Safety Code section 25249.6 in a manner that would pose an
impermissible burden on interstate commerce under the United States Constitution.
Eighth Affirmative Defense
9. As an eighth, separate, and distinct affirmative defense, this answering is
informed and believes and thereon alleges that plaintiff to the extent plaintiff's claims are
derived from allegations concerning violations of Proposition 65, which has no specific
statute of limitations provision of its own, the applicable statute of limitation for such claims
is that provided for by California Code of Civil Procedure sections 340(a) and/or 340(b),
which bars such claims by plaintiff.
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Ninth Affirmative Defense
10. As aninth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that plaintiffs claims are barred by
the doctrine of laches.
Tenth Affirmative Defense
11. As atenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that the Complaint and each of its
claims for relief therein are barred because this answering defendant at all times acted in
good faith and had no intention nor knowledge, nor any reasonable grounds to know, that it
allegedly exposed persons in California to significant amounts of the substance at issue
without providing clear and reasonable warnings.
Eleventh Affirmative Defense
12. As aneleventh, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that the Complaint and each of its
claims for relief are barred by the doctrines of estoppel and/or waiver.
Twelfth Affirmative Defense
13. Asa twelfth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that the business practices and/or
acts of this answering defendant as described in the Complaint were, and are, neither
unlawful, unfair, nor fraudulent.
Thirteenth Affirmative Defense
14. Asa thirteenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that the Complaint and each of its
claims for relief therein are vague, ambiguous and uncertain.
Fourteenth Affirmative Defense
15. Asa fourteenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that there is no threat of immediate
harm sufficient to support a grant of injunctive relief.
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ANSWER TO COMPLAINTo ontonarkr © Nn =
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Fifteenth Affirmative Defense
16. Asafifteenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that any and all violations alleged in
the Complaint were proximately caused or contributed to by the acts, omissions, conduct, or
products other than this answering defendant and, for this reason, the Complaint and each
of its claims for relief fails to state facts sufficient to constitute a cause of action against this
answering defendant.
Sixteenth Affirmative Defense
17. As asixteenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that any and all violations alleged in
the Complaint were the result of superseding or intervening causes arising from the acts or
omissions of parties which this answering defendant neither controlled nor had the legal
tight to control, and said violations were not proximately or otherwise caused by any act,
omission, or other conduct of this answering defendant.
Seventeenth Affirmative Defense
18. Asaseventeenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that pursuant to California Health
and Safety Code section 25249.10(c), any exposures as alleged in the Complaint are
exempt from the warning requirement of California Health and Safety Code section 25249.6
because, based on the evidence and standards of comparable scientific validity as those
which form the basis for listing pursuant to California Health and Safety Code section
25249.8(a) and 22 C.C.R. section 12000, the alleged exposure has no observable effect of
reproductive harm assuming exposure at 1000 times the level in question and the alleged
exposure poses no significant risk of cancer.
Eighteenth Affirmative Defense
49. As aneighteenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that this answering defendant's
conduct was justified and in good faith.
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Nineteenth Affirmative Defense
20. As anineteenth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that plaintiff has failed to satisfy the
notice requirements under California Health and Safety Code section 25249.7.
Twentieth Affirmative Defense
21. Asa twentieth, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that plaintiffs Complaint and each
of its asserted claims are preempted by Federal law and are therefore barred.
Twenty-First Affirmative Defense
22. Asa twenty-first, separate, and distinct affirmative defense, this answering
defendant is informed and believes and thereon alleges that plaintiff's Complaint and each
of its asserted claims are improper to the extent plaintiff alleges violations of Proposition
65's warning requirements that occurred less than twelve (12) months after the chemical at
issue was listed as a carcinogen or reproductive toxin.
Twenty-Second Affirmative Defense
23. Asa twenty-second, separate, and distinct affirmative defense, this answering
defendant presently has insufficient knowledge or information on which to form a belief as to}
whether it may have additional as yet unstated affirmative defenses available. This
answering defendant reserves herein the right to assert additional affirmative defenses in
the event that discovery indicates that they would be appropriate.
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ANSWER TO COMPLAINTWHEREFORE, this answering defendant prays that the plaintiff take nothing by her
complaint, and that it be dismissed herefrom with costs of suit incurred, including but not
limited to disbursements, expenses and attorney's fees, and such other and further relief as
to the court may deem just and proper.
DATED: October 15, 2013 MURCHISON & CUMMING, LLP
oy fe
Guy R. Gruppie
Eric P. Weiss
Matthew K. Wisinski
Attorneys for Defendant DEAN
DISTRIBUTORS, INC.
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, | was over 18 years of age and not a party to this action. | am
employed in the County of Los Angeles, State of California. My business address is 801
South Grand Avenue, Ninth Floor, Los Angeles, California 90017-4613.
On October 15, 2013, | served true copies of the following document(s) described as
ANSWER TO COMPLAINT on the interested parties in this action as follows:
SEE ATTACHED LIST
BY MAIL: | enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection
and mailing, following our ordinary business practices. | am readily familiar with Murchison
& Cumming’s practice for collecting and processing correspondence for mailing. | am aware
that on motion of the party served, service is presumed invalid if the postal cancellation date
or postage meter date is more than one business day after the date of deposit for mailing in
this declaration.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on October 15, 2013, at Los Angeles! California.
Agua
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ANSWER TO COMPLAINTSERVICE LIST
Dean Distributors, Inc. adv. Leeman, Whitney
Clifford A. Chanler, Esq.
Josh Voorhess, Esq.
THE CHANLER GROUP
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, CA 94710
Telephone: 510-848-8880
Facsimile: 510-848-8118
Plaintiff WHITNEY R. LEEMAN, PH.D.
2
ANSWER TO COMPLAINT
Preview
UO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Oct-15-2013 01:16 pm Case Number: CGC-13-533956 Filing Date: Oct-15-2013 01:14 pm Filed by: ANNA TORRES Juke Box: 001 Image: 04237456 ANSWER WHITNEY R LEEMAN PHD VS. DEAN DISTRIBUTORS, INC et al 001004237456 Instructions: Please place this sheet on top of the document to be scanned.ORIGINAL o wonn oar Oo ND = E 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Buy R ° aupp ‘SEN Near San Francisco County Superior Court Matthew K. Wisinski (SBN 195535) oct 15 2013 BOr South Grand Avenue, Ninth Fi jou rand Avenue, Ninth Floor Los Angeles, California 90017-4613 CLERK OF JHE COURT Telephone: (213) 623-7400 BY: Deputy Clerk Facsimile: (213) 623-6336 E-Mail: ggruppie@murchisonlaw.com eweiss@murchisonlaw.com mwisinski@murchisonlaw.com Attorneys for Defendant DEAN DISTRIBUTORS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO WHITNEY R. LEEMAN, PH.D., CASE NO. CGC 13-533956 Plaintiff, ANSWER TO COMPLAINT vs. Action Filed: Aug. 30, 2013 Trial Date: None Set DEAN DISTRIBUTORS, INC.; and DOES 1-150, inclusive, Defendants. COMES NOW defendant, DEAN DISTRIBUTORS, INC. and answering for itself alone and in answer to the complaint of plaintiff WHITNEY R. LEEMAN, PH.D, herein admits, denies and alleges as follows: GENERAL DENIAL 1. Pursuant to the provisions of California Code of Civil Procedure §431.30(d), this answering defendant denies generally and specifically each and every allegation contained in plaintiffs complaint, and each and every cause of action therein set forth, and the whole thereof, and specifically denies that plaintiff has been injured and/or damaged in the amounts therein alleged or in any other amount or amounts, or at all by any act or omission on the part of this answering defendant. 1 1 ANSWER TO COMPLAINTooaont oar OW DN = NNNRYNKRNY NNN KD SPP zFeAeeereeoee)| owtoa»nrkoensS 3260606 0N DOD MD F WN A FD And for a further, separate and distinct answer in defense to said complaint and to each and every alleged cause of action contained therein, this answering defendant alleges affirmative defenses as follows: AFFIRMATIVE DEFENSES First Affirmative Defense 2. As a first, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that the complaint, and each and every cause of action or purported cause of action stated therein, are barred by application of the statute of limitations. Second Affirmative Defense 3. As a second, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that the complaint, and each and every cause of action or purported cause of action contained therein, fail to state facts sufficient to constitute a cause of action as against this answering defendant. Third Affirmative Defense 4. As a third, separate, and distinct affirmative defense, this answering defendant| is informed and believes and thereon alleges that this answering defendant has not violated California Health and Safety Code section 25249.6 because, in the course of doing business in California, it has not knowingly or intentionally exposed any individual in the State of California to a significant amount of a chemical known to the State of California to cause cancer or reproductive toxicity. Fourth Affirmative Defense 5. As a fourth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that if this answering defendant is subject to any liability to plaintiff herein, it will be due in whole or in part to the conduct, acts, Hit Hd 2 ANSWER TO COMPLAINToon Oa FF Oo Nn 10 and/or omissions, and/or activities of a party or parties unknown to this answering defendant at this time, and any recovery obtained by said plaintiff should be barred and/or reduced according to law, up to and including the whole thereof. Fifth Affirmative Defense 6. As a fifth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that all conduct and activity of this answering defendant alleged in the Complaint conformed to all laws, government regulations, and industry standards based upon the state of knowledge existing at all relevant times. Sixth Affirmative Defense 7. As a sixth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that to the extent plaintiff purports to seek relief on behalf of members of the general public who have suffered no damages, the Complaint and each of its claims for relief herein violates the right of this answering defendant to due process under the California and United States Constitutions. Seventh Affirmative Defense 8. As a seventh, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that plaintiff seeks to apply California Health and Safety Code section 25249.6 in a manner that would pose an impermissible burden on interstate commerce under the United States Constitution. Eighth Affirmative Defense 9. As an eighth, separate, and distinct affirmative defense, this answering is informed and believes and thereon alleges that plaintiff to the extent plaintiff's claims are derived from allegations concerning violations of Proposition 65, which has no specific statute of limitations provision of its own, the applicable statute of limitation for such claims is that provided for by California Code of Civil Procedure sections 340(a) and/or 340(b), which bars such claims by plaintiff. Ht HII 3 ANSWER TO COMPLAINT= oon D9 a Fk WO DN 10 Ninth Affirmative Defense 10. As aninth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that plaintiffs claims are barred by the doctrine of laches. Tenth Affirmative Defense 11. As atenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that the Complaint and each of its claims for relief therein are barred because this answering defendant at all times acted in good faith and had no intention nor knowledge, nor any reasonable grounds to know, that it allegedly exposed persons in California to significant amounts of the substance at issue without providing clear and reasonable warnings. Eleventh Affirmative Defense 12. As aneleventh, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that the Complaint and each of its claims for relief are barred by the doctrines of estoppel and/or waiver. Twelfth Affirmative Defense 13. Asa twelfth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that the business practices and/or acts of this answering defendant as described in the Complaint were, and are, neither unlawful, unfair, nor fraudulent. Thirteenth Affirmative Defense 14. Asa thirteenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that the Complaint and each of its claims for relief therein are vague, ambiguous and uncertain. Fourteenth Affirmative Defense 15. Asa fourteenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that there is no threat of immediate harm sufficient to support a grant of injunctive relief. 4 ANSWER TO COMPLAINTo ontonarkr © Nn = 10 Fifteenth Affirmative Defense 16. Asafifteenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that any and all violations alleged in the Complaint were proximately caused or contributed to by the acts, omissions, conduct, or products other than this answering defendant and, for this reason, the Complaint and each of its claims for relief fails to state facts sufficient to constitute a cause of action against this answering defendant. Sixteenth Affirmative Defense 17. As asixteenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that any and all violations alleged in the Complaint were the result of superseding or intervening causes arising from the acts or omissions of parties which this answering defendant neither controlled nor had the legal tight to control, and said violations were not proximately or otherwise caused by any act, omission, or other conduct of this answering defendant. Seventeenth Affirmative Defense 18. Asaseventeenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that pursuant to California Health and Safety Code section 25249.10(c), any exposures as alleged in the Complaint are exempt from the warning requirement of California Health and Safety Code section 25249.6 because, based on the evidence and standards of comparable scientific validity as those which form the basis for listing pursuant to California Health and Safety Code section 25249.8(a) and 22 C.C.R. section 12000, the alleged exposure has no observable effect of reproductive harm assuming exposure at 1000 times the level in question and the alleged exposure poses no significant risk of cancer. Eighteenth Affirmative Defense 49. As aneighteenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that this answering defendant's conduct was justified and in good faith. 5 ANSWER TO COMPLAINTon oak © N = yNyeRNYNHNH NN HK FPePzeeeeFeBe2oe ou’ o G& €& ON AF FO DON DW HA SF OH BAO OC Nineteenth Affirmative Defense 20. As anineteenth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that plaintiff has failed to satisfy the notice requirements under California Health and Safety Code section 25249.7. Twentieth Affirmative Defense 21. Asa twentieth, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that plaintiffs Complaint and each of its asserted claims are preempted by Federal law and are therefore barred. Twenty-First Affirmative Defense 22. Asa twenty-first, separate, and distinct affirmative defense, this answering defendant is informed and believes and thereon alleges that plaintiff's Complaint and each of its asserted claims are improper to the extent plaintiff alleges violations of Proposition 65's warning requirements that occurred less than twelve (12) months after the chemical at issue was listed as a carcinogen or reproductive toxin. Twenty-Second Affirmative Defense 23. Asa twenty-second, separate, and distinct affirmative defense, this answering defendant presently has insufficient knowledge or information on which to form a belief as to} whether it may have additional as yet unstated affirmative defenses available. This answering defendant reserves herein the right to assert additional affirmative defenses in the event that discovery indicates that they would be appropriate. Wi Hl Hd 11 Hl M11 Hil 11 6 ANSWER TO COMPLAINTWHEREFORE, this answering defendant prays that the plaintiff take nothing by her complaint, and that it be dismissed herefrom with costs of suit incurred, including but not limited to disbursements, expenses and attorney's fees, and such other and further relief as to the court may deem just and proper. DATED: October 15, 2013 MURCHISON & CUMMING, LLP oy fe Guy R. Gruppie Eric P. Weiss Matthew K. Wisinski Attorneys for Defendant DEAN DISTRIBUTORS, INC. 7 ANSWER TO COMPLAINToon oarkt O ND = YN DY KY WN NY NN KN fF SF FAA erereraeo2esd owen & &© Sb = oC oOo AN DW HT F OW NY A DO PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, | was over 18 years of age and not a party to this action. | am employed in the County of Los Angeles, State of California. My business address is 801 South Grand Avenue, Ninth Floor, Los Angeles, California 90017-4613. On October 15, 2013, | served true copies of the following document(s) described as ANSWER TO COMPLAINT on the interested parties in this action as follows: SEE ATTACHED LIST BY MAIL: | enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. | am readily familiar with Murchison & Cumming’s practice for collecting and processing correspondence for mailing. | am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one business day after the date of deposit for mailing in this declaration. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 15, 2013, at Los Angeles! California. Agua 4 ANSWER TO COMPLAINTSERVICE LIST Dean Distributors, Inc. adv. Leeman, Whitney Clifford A. Chanler, Esq. Josh Voorhess, Esq. THE CHANLER GROUP 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, CA 94710 Telephone: 510-848-8880 Facsimile: 510-848-8118 Plaintiff WHITNEY R. LEEMAN, PH.D. 2 ANSWER TO COMPLAINT