Preview
1 MORGAN, LEWIS & BOCKIUS LLP
JOSEPH DUFFY, Bar No. 241854
2 joseph.duffy@morganlewis.com
AMY J. TALARICO, Bar No. 209112 ELECTRONICALLY
3 amy.talarico@morganlewis.com
MARISA R. CHAVES, Bar No. 236533
FILED
Superior Court of California,
4 marisa.chaves@morganlewis.com County of San Francisco
One Market 08/05/2020
5 Spear Street Tower Clerk of the Court
San Francisco, California 94105-1596 BY: BOWMAN LIU
Deputy Clerk
6 Telephone: +1.415.442.1000
Facsimile: +1.415.442.1001
7
Attorneys for Defendant
8 ITT LLC
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
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13 MARK OWENS and DEBORA OWENS, Case No. CGC-20-276843
14 Plaintiffs, DEFENDANT ITT LLC’S ANSWER TO
PLAINTIFFS’ COMPLAINT FOR
15 vs. PERSONAL INJURY AND LOSS OF
CONSORTIUM – ASBESTOS
16 CRANE CO., et al.,
Complaint Filed: June 12, 2020
17 Defendants.
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
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2 ITT LLC (“Defendant” or “ITT”), answers Plaintiffs’ Complaint for Personal Injury and
3 Loss of Consortium – Asbestos (“Complaint”) as follows:
4 Under the provisions of Section 431.30(d), California Code of Civil Procedure, Defendant
5 denies each and every allegation of Plaintiffs’ Complaint and the whole thereof, and denies that
6 Plaintiffs have been damaged in any sum or amount whatsoever, or at all.
7 Whenever “Plaintiff” or “Plaintiffs” is used in this Answer, that reference embraces each
8 Plaintiff individually as well as collectively, plus the words “each of them.”
9 FIRST AFFIRMATIVE DEFENSE
10 If Defendant has purportedly been named or served in this action as a Doe defendant, such
11 effort by Plaintiffs is invalid on the grounds that Plaintiffs knew or should have known of the
12 identify of Defendant and the Plaintiffs’ alleged causes of action against Defendant at the time of
13 the filing of the Complaint.
14 SECOND AFFIRMATIVE DEFENSE
15 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
16 applicable statute of limitations, including but not limited to, Code of Civil Procedure sections
17 337.15, 340.2, 343 and 361, and California Commercial Code section 2725.
18 THIRD AFFIRMATIVE DEFENSE
19 Plaintiffs are barred from recovery herein by virtue of the application of the Doctrine of
20 Laches (inexcusable delay and prejudice to Defendant).
21 FOURTH AFFIRMATIVE DEFENSE
22 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
23 equitable Doctrine of Unclean Hands.
24 FIFTH AFFIRMATIVE DEFENSE
25 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
26 equitable Doctrine of Waiver.
27 SIXTH AFFIRMATIVE DEFENSE
28 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the
MORGAN, LEWIS & -2-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 equitable Doctrine of Estoppel.
2 SEVENTH AFFIRMATIVE DEFENSE
3 Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the
4 Complaint with full knowledge thereof, thereby proximately causing the injuries and damages, if
5 any, complained of by Plaintiffs and Plaintiffs are thereby barred from recovery herein.
6 EIGHTH AFFIRMATIVE DEFENSE
7 Plaintiff acknowledged, ratified, consented to, and/or acquiesced in the alleged acts or
8 omissions, if any, of this Defendant, thus barring Plaintiffs from any relief as prayed for herein.
9 NINTH AFFIRMATIVE DEFENSE
10 Plaintiff was advised, informed, and/or warned of any potential hazards and/or dangers, if
11 there were any, associated with the normal or foreseeable use, handling, and storage of the
12 products, substances, and/or equipment described in the Complaint.
13 TENTH AFFIRMATIVE DEFENSE
14 If Defendant provided the products alleged to have been defective, and without admitting
15 that it did so or that any product was defective, Defendant provided such products to distributors
16 or other intermediaries, including Plaintiff’s employers, who were knowledgeable, informed and
17 sophisticated concerning the use of the products and the alleged risks to the health of ultimate
18 users, such as Plaintiff, from the use of the products.
19 ELEVENTH AFFIRMATIVE DEFENSE
20 Plaintiffs’ causes of action are barred under Johnson v. American Standard, Inc., (2008)
21 43 Cal. 4th 56, because Plaintiff and/or his employers are sophisticated users.
22 TWELFTH AFFIRMATIVE DEFENSE
23 No conduct by or attributable to Defendant was the cause in fact or the proximate cause of
24 the damages, if any, sustained by Plaintiffs, nor a substantial factor in bringing about said
25 damages.
26 THIRTEENTH AFFIRMATIVE DEFENSE
27 Any exposure of Plaintiff to Defendant’s products was so minimal as to be insufficient to
28 establish by a reasonable degree of probability that any such product caused any alleged injury,
MORGAN, LEWIS & -3-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 damage, or loss to Plaintiffs.
2 FOURTEENTH AFFIRMATIVE DEFENSE
3 This Defendant’s products were not a substantial factor in bringing about the injuries and
4 damages complained of by Plaintiffs, and, therefore, Defendant may not be held liable to
5 Plaintiffs as alleged.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 That any and all events and happenings in connection with the allegations contained in
8 Plaintiffs’ Complaint and the resulting injuries and damages, if any, referred to therein, were
9 proximately caused and contributed to by the negligence of the Plaintiff, thereby barring or
10 reducing Plaintiffs’ recovery herein.
11 SIXTEENTH AFFIRMATIVE DEFENSE
12 Any loss, injury or damage to Plaintiffs was proximately caused or contributed to by the
13 negligent or other tortious acts, omissions, conduct, or products of persons, entities or parties
14 other than Defendant, and that each, any, and all damages recoverable by Plaintiffs must be
15 diminished in proportion to the amount of fault attributable to said other persons, entities or
16 parties, and there must be apportioned among all such persons, entities, and parties the amount of
17 damages attributed to them as an offset against damages, if any, awarded against Defendant.
18 SEVENTEENTH AFFIRMATIVE DEFENSE
19 Any loss, injury, or damage, if any, incurred by Plaintiffs was the result of superseding or
20 intervening causes arising from the negligent or willful acts or omissions of other parties which
21 Defendant neither controlled nor had the right to control, and that said loss, injury or damage was
22 not proximately or legally caused by any act, omission, or other conduct of Defendant.
23 EIGHTEENTH AFFIRMATIVE DEFENSE
24 If Plaintiff sustained any injury or illness attributable to the use of any products and/or
25 equipment manufactured, sold, or supplied by Defendant, which allegations are expressly denied,
26 the injuries were solely caused by and attributable to the unreasonable and improper use which
27 was made of said products and/or equipment, and each of them, by other persons, entities, or
28 parties whom Defendant neither controlled nor had the right to control.
MORGAN, LEWIS & -4-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 NINETEENTH AFFIRMATIVE DEFENSE
2 The product(s) involved was materially altered or changed by a party or parties other than
3 and without the permission of Defendant, its employees, servants, or other agents, and such
4 alteration or change created the alleged defect, if any, which was the proximate or legal cause of
5 Plaintiffs’ injuries or damages, if any.
6 TWENTIETH AFFIRMATIVE DEFENSE
7 The state of the medical, scientific, and industrial knowledge and practice was at all
8 material times such that Defendant neither breached any alleged duty owed Plaintiffs, nor knew,
9 nor could have known, that its products presented a foreseeable risk of harm to Plaintiffs in the
10 normal and expected use of such products.
11 TWENTY-FIRST AFFIRMATIVE DEFENSE
12 Any products, substances, and/or equipment manufactured, formulated, sold or supplied
13 by Defendant were made consistent with the state of the art and all health and safety statutes and
14 regulations applicable to said products, substances, and/or equipment at the time of their
15 manufacture, sale, formulation, or supply.
16 TWENTY-SECOND AFFIRMATIVE DEFENSE
17 The products, substances, and/or equipment referred to in the Complaint were properly
18 designed and manufactured, and safe for the purpose intended. Said products, substances, and/or
19 equipment were modified, altered, misused, abused, and/or improperly maintained by Plaintiff or
20 others, and said conduct was not reasonably foreseeable to Defendant and proximately caused or
21 contributed to the injuries, losses, and damages complained of, if any, thus barring Plaintiffs’
22 recovery herein.
23 TWENTY-THIRD AFFIRMATIVE DEFENSE
24 The asbestos-containing products, if any, for which Defendant had legal responsibility
25 were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged,
26 supplied, marketed, and/or sold in accordance with contract specifications imposed by its co-
27 defendants, by the U.S. Government, by Plaintiff’s employers, and/or by third parties yet to be
28 identified.
MORGAN, LEWIS & -5-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred under
3 the government contractor defense.
4 TWENTY-FIFTH AFFIRMATIVE DEFENSE
5 Plaintiffs’ Complaint and each cause of action alleged therein, which are admittedly based
6 upon a lack of identification of the manufacturer(s) and/or supplier(s) of the alleged injury-
7 causing product(s), fail to state facts sufficient to constitute a cause of action in that Plaintiff have
8 asserted a claim for relief which, if granted, would contravene Defendant’s constitutional rights to
9 substantive and procedural due process of law as preserved for Defendant by the Fourteenth
10 Amendment to the United States Constitution and by Article I section 7, of the Constitution of the
11 State of California.
12 TWENTY-SIXTH AFFIRMATIVE DEFENSE
13 Plaintiffs’ causes of action are barred under O’Neil v. Crane Co., (2012) 53 Cal.4th 335
14 and Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, among other cases,
15 because Plaintiffs have not pleaded and cannot show that Plaintiff was exposed to asbestos-
16 containing products that were manufactured, sold or supplied by Defendant or that were original
17 to any equipment alleged to be manufactured, sold or supplied by Defendant.
18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
19 Plaintiff failed to mitigate his damages, if any, in that they failed to use reasonable
20 diligence in caring for Plaintiff’s injuries and reasonable means to prevent their aggravation or to
21 accomplish their healing.
22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
23 Plaintiffs failed to give Defendant reasonably prompt notice of the breaches of warranty,
24 if any, alleged in the Complaint.
25 TWENTY-NINTH AFFIRMATIVE DEFENSE
26 Plaintiffs were not in privity of contract with Defendant and said lack of privity bars
27 Plaintiffs’ recovery herein upon any theory of warranty.
28 ///
MORGAN, LEWIS & -6-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 THIRTIETH AFFIRMATIVE DEFENSE
2 Plaintiffs herein have failed to join indispensable parties (California Code of Civil
3 Procedure section 389) such that the Complaint is defective, and Plaintiffs are thereby precluded
4 from any recovery whatsoever as prayed for herein.
5 THIRTY-FIRST AFFIRMATIVE DEFENSE
6 To the extent the Complaint asserts Defendant’s alleged “alternative,” “market share,” or
7 “enterprise” liability, the Complaint fails to state facts sufficient to constitute a cause of action
8 against Defendant.
9 THIRTY-SECOND AFFIRMATIVE DEFENSE
10 Plaintiffs’ Complaint and each cause of action alleged therein fail to state facts sufficient
11 to constitute a cause of action against Defendant in that Plaintiffs have failed to join a substantial
12 market share of the producers of the product or products to which Plaintiff was allegedly exposed.
13 THIRTY-THIRD AFFIRMATIVE DEFENSE
14 Defendant did not and does not have a substantial percentage of the market for the
15 asbestos-containing products that allegedly caused Plaintiff’s injuries. Therefore, Defendant may
16 not be held liable to Plaintiffs based on Defendant’s alleged percentage share of the applicable
17 market.
18 THIRTY-FOURTH AFFIRMATIVE DEFENSE
19 Plaintiffs have no standing or right to sue for fraud and conspiracy, breach of warranty,
20 deceit, or any cause of action under California Civil Code sections 1708-1710, and therefore each
21 such cause of action in the Complaint, if any, fails to state facts sufficient to constitute a cause of
22 action against this Defendant.
23 THIRTY-FIFTH AFFIRMATIVE DEFENSE
24 Fraud and conspiracy do not constitute a separate and distinct form of damages from
25 general damages. Therefore, the prayer for fraud and conspiracy in addition to general damages
26 does not sufficiently support or constitute a separate claim for damages against this Defendant,
27 but is simply cumulative and included in general damages.
28 ///
MORGAN, LEWIS & -7-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 THIRTY-SIXTH AFFIRMATIVE DEFENSE
2 Plaintiffs’ alleged cause of action seeking punitive damages against Defendant, if any,
3 does not state facts sufficient to constitute a cause of action against this Defendant.
4 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
5 Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the due process
6 clause of the Fourteenth Amendment to the United States Constitution.
7 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
8 Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the Eighth
9 Amendment to the United States Constitution, as applied to the States through the Fourteenth
10 Amendment, prohibiting the imposition of excessive fines.
11 THIRTY-NINTH AFFIRMATIVE DEFENSE
12 Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the “double
13 jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the
14 States through the Fourteenth Amendment.
15 FORTIETH AFFIRMATIVE DEFENSE
16 To the extent that these words purportedly apply to Defendant, which Defendant denies,
17 the Complaint does not state sufficient facts constituting “fraud,” “oppression,” or “malice,” as
18 these terms are used in California Civil Code section 3294.
19 FORTY-FIRST AFFIRMATIVE DEFENSE
20 Defendant alleges that California Civil Code Section 3294, et seq. violates the California
21 and/or the United States Constitutions because, among other things, it violates the due process
22 clauses and the equal protection clauses thereof, respectively; it is void because it is vague and
23 ambiguous; it constitutes an undue burden on interstate commerce; and it violates the Eighth
24 Amendment to the United States Constitution, and that, therefore, Plaintiffs are barred from any
25 recovery thereunder.
26 FORTY-SECOND AFFIRMATIVE DEFENSE
27 If Defendant is responsible to Plaintiffs, which responsibility is expressly denied,
28 Defendant shall be liable to Plaintiffs only for the amount of non-economic damages allocated to
MORGAN, LEWIS & -8-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 each defendant in direct proportion to each defendant’s percentage of fault, if any. (California
2 Civil Code sections 1431, et seq.).
3 FORTY-THIRD AFFIRMATIVE DEFENSE
4 As between Plaintiffs and Defendant, the law applicable to this action is the law as it
5 existed during the period Defendant engaged, if at all, in the manufacture, sale, or supply of
6 asbestos-containing products to which the Plaintiffs claim exposure. It is unlawful, inequitable,
7 and in violation of Defendant’s contractual, statutory, and constitutional rights to apply principles
8 of law other than or in a manner different from those which existed for the period in which
9 Defendant manufactured, sold, or supplied products to which Plaintiffs claim exposure.
10 FORTY-FOURTH AFFIRMATIVE DEFENSE
11 Defendant denies any and all liability to the extent that Plaintiffs assert Defendant’s
12 alleged liability as a successor-in-interest, successor-in-business, successor-in-product line, or a
13 portion thereof; assign, predecessor, predecessor in business, predecessor in product line, or a
14 portion thereof; parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial
15 owner of or member in an entity researching, studying, manufacturing, fabricating, designing,
16 labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing,
17 installing, contracting, or installation, repairing, marketing, warranting, re-branding,
18 manufacturing for others, packaging and advertising a certain substance, the generic name of
19 which is asbestos.
20 FORTY-FIFTH AFFIRMATIVE DEFENSE
21 The court lacks subject matter jurisdiction over the matters alleged in the Complaint
22 because the Complaint and each purported cause of action alleged therein against Defendant are
23 barred by the provisions of California Labor Code sections 3600, et seq.
24 FORTY-SIXTH AFFIRMATIVE DEFENSE
25 At the time and place of the happening of the occurrences and injuries alleged in the
26 Complaint, and all times material thereto, Plaintiff was employed by various employers, the
27 names of which are unknown to this Defendant, and working within the course and scope of their
28 employment. Said employers and Plaintiff were subject to the provisions of the Workers’
MORGAN, LEWIS & -9-
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 Compensation Act of the State of California and Plaintiff was entitled to receive Workers’
2 Compensation benefits from his employers. Certain sums have been paid to or on behalf of
3 Plaintiff herein under the applicable provisions of the Labor Code of the State of California. Said
4 employers and each of them were negligent, careless, and at fault in and about the matters
5 referred to in the Complaint and such negligence, carelessness, and fault proximately and
6 concurrently contributed to and caused the happening of the incidents complained of by Plaintiffs,
7 if there were any. By these premises, any judgment rendered in favor of Plaintiffs herein must be
8 reduced by any benefits or payments made or to be made to Plaintiff by Plaintiff’s employers or
9 their compensation carrier(s) under Witt vs. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 360
10 P.2d 641].
11 FORTY-SEVENTH AFFIRMATIVE DEFENSE
12 Plaintiffs have received, or in the future may receive, Workers’ Compensation benefits
13 from Defendant under the Labor Code of the State of California as a consequence of the alleged
14 industrial injury referred to in the Complaint, and, in the event Plaintiffs are awarded damages
15 against Defendant, Defendant claims a credit against this award to the extent that Defendant is
16 barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that
17 Plaintiffs have received or may in the future receive.
18 FORTY-EIGHTH AFFIRMATIVE DEFENSE
19 Plaintiffs’ alleged cause of action for loss of consortium against Defendant does not state
20 facts sufficient to constitute a cause of action against this Defendant.
21 Each denial of Plaintiffs’ allegations, together with each of Defendant’s allegations,
22 defenses and factual contentions, all as set forth herein, are hereby specifically identified as
23 denials, allegations, defenses and factual contentions subject to reasonable opportunity for further
24 investigation and discovery, as set forth in Code of Civil Procedure section 128.7(b)(3)(4).
25 WHEREFORE, this Defendant prays that Plaintiffs’ Complaint be dismissed and that
26 Plaintiffs take nothing by virtue of this Complaint on file herein, for its costs of suit herein
27 incurred, for appropriate credits and setoffs arising out of any payment of Workers’
28 ///
MORGAN, LEWIS & - 10 -
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 Compensation benefits alleged herein, and for any other and further relief as the Court may deem
2 proper.
3 Dated: August 5, 2020 Respectfully submitted,
4 MORGAN, LEWIS & BOCKIUS LLP
5
6 By
Marisa R. Chaves
7 One Market
Spear Street Tower
8 San Francisco, California 94105-1596
+1.415.442.1000
9 SBN 236533
10 Attorneys for Defendant
ITT LLC
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MORGAN, LEWIS & - 11 -
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS
1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
2 Mark Owens and Debora Owens v. Crane Co., et al.
San Francisco Superior Court Case No. CGC-20-276843
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I am a citizen of the United States and a resident of the State of California and employed
4 in the County of San Francisco, California. I am over the age of eighteen years and not a party to
the within-entitled action. My business address is One Market, Spear Street Tower, San
5 Francisco, CA 94105-1596.
6 On August 5, 2020, I served a copy of the within documents:
7 DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR PERSONAL INJURY AND LOSS OF
8 CONSORTIUM – ASBESTOS
9 BY ELECTRONIC TRANSMISSION. Pursuant to San Francisco Court General Order
No. 158, CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing
10 Electronic Service, or by an agreement of the parties, at approximately 4:30 p.m. I electronically
e-served through File & ServeXpress and caused the document to be sent to the persons at the
11 email addresses designated on the Transaction Receipt located on the File & ServeXpress
website. To the best of my knowledge, at the time of the transmission, the transmission was
12 reported as complete and without error.
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Executed on August 5, 2020, at San Francisco, California.
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I declare under penalty of perjury under the laws of the State of California that the above
15 is true and correct.
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18 Faye Geneviève Miranda
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO
DB2/ 39366756.1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Preview
1 MORGAN, LEWIS & BOCKIUS LLP JOSEPH DUFFY, Bar No. 241854 2 joseph.duffy@morganlewis.com AMY J. TALARICO, Bar No. 209112 ELECTRONICALLY 3 amy.talarico@morganlewis.com MARISA R. CHAVES, Bar No. 236533 FILED Superior Court of California, 4 marisa.chaves@morganlewis.com County of San Francisco One Market 08/05/2020 5 Spear Street Tower Clerk of the Court San Francisco, California 94105-1596 BY: BOWMAN LIU Deputy Clerk 6 Telephone: +1.415.442.1000 Facsimile: +1.415.442.1001 7 Attorneys for Defendant 8 ITT LLC 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 13 MARK OWENS and DEBORA OWENS, Case No. CGC-20-276843 14 Plaintiffs, DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR 15 vs. PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 16 CRANE CO., et al., Complaint Filed: June 12, 2020 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 2 ITT LLC (“Defendant” or “ITT”), answers Plaintiffs’ Complaint for Personal Injury and 3 Loss of Consortium – Asbestos (“Complaint”) as follows: 4 Under the provisions of Section 431.30(d), California Code of Civil Procedure, Defendant 5 denies each and every allegation of Plaintiffs’ Complaint and the whole thereof, and denies that 6 Plaintiffs have been damaged in any sum or amount whatsoever, or at all. 7 Whenever “Plaintiff” or “Plaintiffs” is used in this Answer, that reference embraces each 8 Plaintiff individually as well as collectively, plus the words “each of them.” 9 FIRST AFFIRMATIVE DEFENSE 10 If Defendant has purportedly been named or served in this action as a Doe defendant, such 11 effort by Plaintiffs is invalid on the grounds that Plaintiffs knew or should have known of the 12 identify of Defendant and the Plaintiffs’ alleged causes of action against Defendant at the time of 13 the filing of the Complaint. 14 SECOND AFFIRMATIVE DEFENSE 15 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the 16 applicable statute of limitations, including but not limited to, Code of Civil Procedure sections 17 337.15, 340.2, 343 and 361, and California Commercial Code section 2725. 18 THIRD AFFIRMATIVE DEFENSE 19 Plaintiffs are barred from recovery herein by virtue of the application of the Doctrine of 20 Laches (inexcusable delay and prejudice to Defendant). 21 FOURTH AFFIRMATIVE DEFENSE 22 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the 23 equitable Doctrine of Unclean Hands. 24 FIFTH AFFIRMATIVE DEFENSE 25 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the 26 equitable Doctrine of Waiver. 27 SIXTH AFFIRMATIVE DEFENSE 28 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the MORGAN, LEWIS & -2- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 equitable Doctrine of Estoppel. 2 SEVENTH AFFIRMATIVE DEFENSE 3 Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the 4 Complaint with full knowledge thereof, thereby proximately causing the injuries and damages, if 5 any, complained of by Plaintiffs and Plaintiffs are thereby barred from recovery herein. 6 EIGHTH AFFIRMATIVE DEFENSE 7 Plaintiff acknowledged, ratified, consented to, and/or acquiesced in the alleged acts or 8 omissions, if any, of this Defendant, thus barring Plaintiffs from any relief as prayed for herein. 9 NINTH AFFIRMATIVE DEFENSE 10 Plaintiff was advised, informed, and/or warned of any potential hazards and/or dangers, if 11 there were any, associated with the normal or foreseeable use, handling, and storage of the 12 products, substances, and/or equipment described in the Complaint. 13 TENTH AFFIRMATIVE DEFENSE 14 If Defendant provided the products alleged to have been defective, and without admitting 15 that it did so or that any product was defective, Defendant provided such products to distributors 16 or other intermediaries, including Plaintiff’s employers, who were knowledgeable, informed and 17 sophisticated concerning the use of the products and the alleged risks to the health of ultimate 18 users, such as Plaintiff, from the use of the products. 19 ELEVENTH AFFIRMATIVE DEFENSE 20 Plaintiffs’ causes of action are barred under Johnson v. American Standard, Inc., (2008) 21 43 Cal. 4th 56, because Plaintiff and/or his employers are sophisticated users. 22 TWELFTH AFFIRMATIVE DEFENSE 23 No conduct by or attributable to Defendant was the cause in fact or the proximate cause of 24 the damages, if any, sustained by Plaintiffs, nor a substantial factor in bringing about said 25 damages. 26 THIRTEENTH AFFIRMATIVE DEFENSE 27 Any exposure of Plaintiff to Defendant’s products was so minimal as to be insufficient to 28 establish by a reasonable degree of probability that any such product caused any alleged injury, MORGAN, LEWIS & -3- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 damage, or loss to Plaintiffs. 2 FOURTEENTH AFFIRMATIVE DEFENSE 3 This Defendant’s products were not a substantial factor in bringing about the injuries and 4 damages complained of by Plaintiffs, and, therefore, Defendant may not be held liable to 5 Plaintiffs as alleged. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 That any and all events and happenings in connection with the allegations contained in 8 Plaintiffs’ Complaint and the resulting injuries and damages, if any, referred to therein, were 9 proximately caused and contributed to by the negligence of the Plaintiff, thereby barring or 10 reducing Plaintiffs’ recovery herein. 11 SIXTEENTH AFFIRMATIVE DEFENSE 12 Any loss, injury or damage to Plaintiffs was proximately caused or contributed to by the 13 negligent or other tortious acts, omissions, conduct, or products of persons, entities or parties 14 other than Defendant, and that each, any, and all damages recoverable by Plaintiffs must be 15 diminished in proportion to the amount of fault attributable to said other persons, entities or 16 parties, and there must be apportioned among all such persons, entities, and parties the amount of 17 damages attributed to them as an offset against damages, if any, awarded against Defendant. 18 SEVENTEENTH AFFIRMATIVE DEFENSE 19 Any loss, injury, or damage, if any, incurred by Plaintiffs was the result of superseding or 20 intervening causes arising from the negligent or willful acts or omissions of other parties which 21 Defendant neither controlled nor had the right to control, and that said loss, injury or damage was 22 not proximately or legally caused by any act, omission, or other conduct of Defendant. 23 EIGHTEENTH AFFIRMATIVE DEFENSE 24 If Plaintiff sustained any injury or illness attributable to the use of any products and/or 25 equipment manufactured, sold, or supplied by Defendant, which allegations are expressly denied, 26 the injuries were solely caused by and attributable to the unreasonable and improper use which 27 was made of said products and/or equipment, and each of them, by other persons, entities, or 28 parties whom Defendant neither controlled nor had the right to control. MORGAN, LEWIS & -4- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 NINETEENTH AFFIRMATIVE DEFENSE 2 The product(s) involved was materially altered or changed by a party or parties other than 3 and without the permission of Defendant, its employees, servants, or other agents, and such 4 alteration or change created the alleged defect, if any, which was the proximate or legal cause of 5 Plaintiffs’ injuries or damages, if any. 6 TWENTIETH AFFIRMATIVE DEFENSE 7 The state of the medical, scientific, and industrial knowledge and practice was at all 8 material times such that Defendant neither breached any alleged duty owed Plaintiffs, nor knew, 9 nor could have known, that its products presented a foreseeable risk of harm to Plaintiffs in the 10 normal and expected use of such products. 11 TWENTY-FIRST AFFIRMATIVE DEFENSE 12 Any products, substances, and/or equipment manufactured, formulated, sold or supplied 13 by Defendant were made consistent with the state of the art and all health and safety statutes and 14 regulations applicable to said products, substances, and/or equipment at the time of their 15 manufacture, sale, formulation, or supply. 16 TWENTY-SECOND AFFIRMATIVE DEFENSE 17 The products, substances, and/or equipment referred to in the Complaint were properly 18 designed and manufactured, and safe for the purpose intended. Said products, substances, and/or 19 equipment were modified, altered, misused, abused, and/or improperly maintained by Plaintiff or 20 others, and said conduct was not reasonably foreseeable to Defendant and proximately caused or 21 contributed to the injuries, losses, and damages complained of, if any, thus barring Plaintiffs’ 22 recovery herein. 23 TWENTY-THIRD AFFIRMATIVE DEFENSE 24 The asbestos-containing products, if any, for which Defendant had legal responsibility 25 were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged, 26 supplied, marketed, and/or sold in accordance with contract specifications imposed by its co- 27 defendants, by the U.S. Government, by Plaintiff’s employers, and/or by third parties yet to be 28 identified. MORGAN, LEWIS & -5- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 Plaintiffs’ Complaint and each purported cause of action alleged therein are barred under 3 the government contractor defense. 4 TWENTY-FIFTH AFFIRMATIVE DEFENSE 5 Plaintiffs’ Complaint and each cause of action alleged therein, which are admittedly based 6 upon a lack of identification of the manufacturer(s) and/or supplier(s) of the alleged injury- 7 causing product(s), fail to state facts sufficient to constitute a cause of action in that Plaintiff have 8 asserted a claim for relief which, if granted, would contravene Defendant’s constitutional rights to 9 substantive and procedural due process of law as preserved for Defendant by the Fourteenth 10 Amendment to the United States Constitution and by Article I section 7, of the Constitution of the 11 State of California. 12 TWENTY-SIXTH AFFIRMATIVE DEFENSE 13 Plaintiffs’ causes of action are barred under O’Neil v. Crane Co., (2012) 53 Cal.4th 335 14 and Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, among other cases, 15 because Plaintiffs have not pleaded and cannot show that Plaintiff was exposed to asbestos- 16 containing products that were manufactured, sold or supplied by Defendant or that were original 17 to any equipment alleged to be manufactured, sold or supplied by Defendant. 18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 19 Plaintiff failed to mitigate his damages, if any, in that they failed to use reasonable 20 diligence in caring for Plaintiff’s injuries and reasonable means to prevent their aggravation or to 21 accomplish their healing. 22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 23 Plaintiffs failed to give Defendant reasonably prompt notice of the breaches of warranty, 24 if any, alleged in the Complaint. 25 TWENTY-NINTH AFFIRMATIVE DEFENSE 26 Plaintiffs were not in privity of contract with Defendant and said lack of privity bars 27 Plaintiffs’ recovery herein upon any theory of warranty. 28 /// MORGAN, LEWIS & -6- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 THIRTIETH AFFIRMATIVE DEFENSE 2 Plaintiffs herein have failed to join indispensable parties (California Code of Civil 3 Procedure section 389) such that the Complaint is defective, and Plaintiffs are thereby precluded 4 from any recovery whatsoever as prayed for herein. 5 THIRTY-FIRST AFFIRMATIVE DEFENSE 6 To the extent the Complaint asserts Defendant’s alleged “alternative,” “market share,” or 7 “enterprise” liability, the Complaint fails to state facts sufficient to constitute a cause of action 8 against Defendant. 9 THIRTY-SECOND AFFIRMATIVE DEFENSE 10 Plaintiffs’ Complaint and each cause of action alleged therein fail to state facts sufficient 11 to constitute a cause of action against Defendant in that Plaintiffs have failed to join a substantial 12 market share of the producers of the product or products to which Plaintiff was allegedly exposed. 13 THIRTY-THIRD AFFIRMATIVE DEFENSE 14 Defendant did not and does not have a substantial percentage of the market for the 15 asbestos-containing products that allegedly caused Plaintiff’s injuries. Therefore, Defendant may 16 not be held liable to Plaintiffs based on Defendant’s alleged percentage share of the applicable 17 market. 18 THIRTY-FOURTH AFFIRMATIVE DEFENSE 19 Plaintiffs have no standing or right to sue for fraud and conspiracy, breach of warranty, 20 deceit, or any cause of action under California Civil Code sections 1708-1710, and therefore each 21 such cause of action in the Complaint, if any, fails to state facts sufficient to constitute a cause of 22 action against this Defendant. 23 THIRTY-FIFTH AFFIRMATIVE DEFENSE 24 Fraud and conspiracy do not constitute a separate and distinct form of damages from 25 general damages. Therefore, the prayer for fraud and conspiracy in addition to general damages 26 does not sufficiently support or constitute a separate claim for damages against this Defendant, 27 but is simply cumulative and included in general damages. 28 /// MORGAN, LEWIS & -7- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 THIRTY-SIXTH AFFIRMATIVE DEFENSE 2 Plaintiffs’ alleged cause of action seeking punitive damages against Defendant, if any, 3 does not state facts sufficient to constitute a cause of action against this Defendant. 4 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 5 Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the due process 6 clause of the Fourteenth Amendment to the United States Constitution. 7 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 8 Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the Eighth 9 Amendment to the United States Constitution, as applied to the States through the Fourteenth 10 Amendment, prohibiting the imposition of excessive fines. 11 THIRTY-NINTH AFFIRMATIVE DEFENSE 12 Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the “double 13 jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the 14 States through the Fourteenth Amendment. 15 FORTIETH AFFIRMATIVE DEFENSE 16 To the extent that these words purportedly apply to Defendant, which Defendant denies, 17 the Complaint does not state sufficient facts constituting “fraud,” “oppression,” or “malice,” as 18 these terms are used in California Civil Code section 3294. 19 FORTY-FIRST AFFIRMATIVE DEFENSE 20 Defendant alleges that California Civil Code Section 3294, et seq. violates the California 21 and/or the United States Constitutions because, among other things, it violates the due process 22 clauses and the equal protection clauses thereof, respectively; it is void because it is vague and 23 ambiguous; it constitutes an undue burden on interstate commerce; and it violates the Eighth 24 Amendment to the United States Constitution, and that, therefore, Plaintiffs are barred from any 25 recovery thereunder. 26 FORTY-SECOND AFFIRMATIVE DEFENSE 27 If Defendant is responsible to Plaintiffs, which responsibility is expressly denied, 28 Defendant shall be liable to Plaintiffs only for the amount of non-economic damages allocated to MORGAN, LEWIS & -8- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 each defendant in direct proportion to each defendant’s percentage of fault, if any. (California 2 Civil Code sections 1431, et seq.). 3 FORTY-THIRD AFFIRMATIVE DEFENSE 4 As between Plaintiffs and Defendant, the law applicable to this action is the law as it 5 existed during the period Defendant engaged, if at all, in the manufacture, sale, or supply of 6 asbestos-containing products to which the Plaintiffs claim exposure. It is unlawful, inequitable, 7 and in violation of Defendant’s contractual, statutory, and constitutional rights to apply principles 8 of law other than or in a manner different from those which existed for the period in which 9 Defendant manufactured, sold, or supplied products to which Plaintiffs claim exposure. 10 FORTY-FOURTH AFFIRMATIVE DEFENSE 11 Defendant denies any and all liability to the extent that Plaintiffs assert Defendant’s 12 alleged liability as a successor-in-interest, successor-in-business, successor-in-product line, or a 13 portion thereof; assign, predecessor, predecessor in business, predecessor in product line, or a 14 portion thereof; parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial 15 owner of or member in an entity researching, studying, manufacturing, fabricating, designing, 16 labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, 17 installing, contracting, or installation, repairing, marketing, warranting, re-branding, 18 manufacturing for others, packaging and advertising a certain substance, the generic name of 19 which is asbestos. 20 FORTY-FIFTH AFFIRMATIVE DEFENSE 21 The court lacks subject matter jurisdiction over the matters alleged in the Complaint 22 because the Complaint and each purported cause of action alleged therein against Defendant are 23 barred by the provisions of California Labor Code sections 3600, et seq. 24 FORTY-SIXTH AFFIRMATIVE DEFENSE 25 At the time and place of the happening of the occurrences and injuries alleged in the 26 Complaint, and all times material thereto, Plaintiff was employed by various employers, the 27 names of which are unknown to this Defendant, and working within the course and scope of their 28 employment. Said employers and Plaintiff were subject to the provisions of the Workers’ MORGAN, LEWIS & -9- BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 Compensation Act of the State of California and Plaintiff was entitled to receive Workers’ 2 Compensation benefits from his employers. Certain sums have been paid to or on behalf of 3 Plaintiff herein under the applicable provisions of the Labor Code of the State of California. Said 4 employers and each of them were negligent, careless, and at fault in and about the matters 5 referred to in the Complaint and such negligence, carelessness, and fault proximately and 6 concurrently contributed to and caused the happening of the incidents complained of by Plaintiffs, 7 if there were any. By these premises, any judgment rendered in favor of Plaintiffs herein must be 8 reduced by any benefits or payments made or to be made to Plaintiff by Plaintiff’s employers or 9 their compensation carrier(s) under Witt vs. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 360 10 P.2d 641]. 11 FORTY-SEVENTH AFFIRMATIVE DEFENSE 12 Plaintiffs have received, or in the future may receive, Workers’ Compensation benefits 13 from Defendant under the Labor Code of the State of California as a consequence of the alleged 14 industrial injury referred to in the Complaint, and, in the event Plaintiffs are awarded damages 15 against Defendant, Defendant claims a credit against this award to the extent that Defendant is 16 barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that 17 Plaintiffs have received or may in the future receive. 18 FORTY-EIGHTH AFFIRMATIVE DEFENSE 19 Plaintiffs’ alleged cause of action for loss of consortium against Defendant does not state 20 facts sufficient to constitute a cause of action against this Defendant. 21 Each denial of Plaintiffs’ allegations, together with each of Defendant’s allegations, 22 defenses and factual contentions, all as set forth herein, are hereby specifically identified as 23 denials, allegations, defenses and factual contentions subject to reasonable opportunity for further 24 investigation and discovery, as set forth in Code of Civil Procedure section 128.7(b)(3)(4). 25 WHEREFORE, this Defendant prays that Plaintiffs’ Complaint be dismissed and that 26 Plaintiffs take nothing by virtue of this Complaint on file herein, for its costs of suit herein 27 incurred, for appropriate credits and setoffs arising out of any payment of Workers’ 28 /// MORGAN, LEWIS & - 10 - BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 Compensation benefits alleged herein, and for any other and further relief as the Court may deem 2 proper. 3 Dated: August 5, 2020 Respectfully submitted, 4 MORGAN, LEWIS & BOCKIUS LLP 5 6 By Marisa R. Chaves 7 One Market Spear Street Tower 8 San Francisco, California 94105-1596 +1.415.442.1000 9 SBN 236533 10 Attorneys for Defendant ITT LLC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & - 11 - BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DB2/ 39366756.1 PERSONAL INJURY AND LOSS OF CONSORTIUM – ASBESTOS 1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 2 Mark Owens and Debora Owens v. Crane Co., et al. San Francisco Superior Court Case No. CGC-20-276843 3 I am a citizen of the United States and a resident of the State of California and employed 4 in the County of San Francisco, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is One Market, Spear Street Tower, San 5 Francisco, CA 94105-1596. 6 On August 5, 2020, I served a copy of the within documents: 7 DEFENDANT ITT LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR PERSONAL INJURY AND LOSS OF 8 CONSORTIUM – ASBESTOS 9 BY ELECTRONIC TRANSMISSION. Pursuant to San Francisco Court General Order No. 158, CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing 10 Electronic Service, or by an agreement of the parties, at approximately 4:30 p.m. I electronically e-served through File & ServeXpress and caused the document to be sent to the persons at the 11 email addresses designated on the Transaction Receipt located on the File & ServeXpress website. To the best of my knowledge, at the time of the transmission, the transmission was 12 reported as complete and without error. 13 Executed on August 5, 2020, at San Francisco, California. 14 I declare under penalty of perjury under the laws of the State of California that the above 15 is true and correct. 16 17 18 Faye Geneviève Miranda 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO DB2/ 39366756.1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION