Answer: MARIO BARBERA VS. CERTAINTEED CORPORATION

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                                1 BERKES CRANE ROBINSON & SEAL LIT
                   Viiu Spangler Khare(SBN 190429)
                 2   vspanglerkhare@bcrslaw.com                                            ELECTRONICALLY
                   Ryan C. Kujawski(SBN 226873)                                                FILED
                 3  rkujawski@bcrslaw.com                                                  Superior Court of California,
                   515 South Figueroa Street, Suite 1500                                    County of San Francisco

                 4 Los Angeles, California 90071                                               08/26/2020
                   Telephone: (213)955-1150                                                Clerk of the Court
                 5 Facsimile:    (213)955-1155                                                BY: MADONNA CARANTO
                                                                                                        Deputy Clerk

                 6 Attorneys for Defendant
                   CAMPBELL CONSTRUCTION CO.
                 7

                 8
                                      SUPERIOR COURT OF THE STATE OF CALIFORNIA

                                                   COUNTY OF SAN FRANCISCO
                10

                11 SHIRLEY BARBERA,as Successor-in-                      CASE No. CGC-11-275838
                   Interest to and as Wrongful Death Heir of
                12 MARIO BARBERA,Deceased; and                           DEFENDANT CAMPBELL
                   CATHERINE SEARS; CHRISTIN                             CONSTRUCTION CO.'S ANSWER TO
                13 BARBERA; and MICHAEL BARBERA,as                       PLAINTIFFS' FIRST AMENDED
                   Wrongful Death Heirs of MARIO BARBERA,                COMPLAINT FOR SURVIVAL,
                14 Deceased                                              WRONGFUL DEATH-ASBESTOS

                15                 Plaintiff,

                16          V.

                17 C V SUPPLY,INC., et al.,                              Action Filed:      June 2, 2011
                                                                         FAC Filed:         July 27, 2020
                18                 Defendants.                           Trial Date:        None

                19

                20          COMES NOW defendant CAMPBELL CONSTRUCTION CO., and for no other,
                21   answers or otherwise responds to the unverified First Amended Complaint For Survival and
                22 Wrongful Death as follows:

                23          1.     Under the provisions of Section 431.30(d) of the California Code ofCivil

                24 Procedure, this answering defendant denies each and every allegation of said unverified First

                25 Amended Complaint, and the whole thereof, and denies that Decedent sustained damages in the

                26 sum or sums alleged, or in any other sum, or at all.

                27

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  LAW OFFICES
 BERKES CRANE                                                        1
ROBINSON Et SEAL          DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS' FIRST AMENDED
                                         COMPLAINT FOR SURVIVAL, WRONGFUL DEATH
                 1          2.     Further answering said First Amended Complaint and each cause of action thereof,

                2 and the whole thereof, this answering defendant denies that Decedent sustained any injury,

                 3 damage or loss, if any, by reason of any act or omission of this answering defendant.

                4                                   FIRST AFFIRMATIVE DEFENSE

                 5          3.     That each of the purported causes of action fails to state facts sufficient to

                6 constitute a cause of action against answering defendant.

                7                                   SECOND AFFIRMATIVE DEFENSE

                 8          4.     That at all times mentioned in the First Amended Complaint, Decedent so

                9 carelessly, recklessly and negligently conducted and maintained himself so as to cause and

                10 contribute in some degree to the alleged incidents and to the damages and injuries, if any, alleged

                1 1 to have been sustained. Said negligence operates as a complete bar to recovery by Decedent

                12 against this answering defendant and/or reduces the amount of Decedent's recovery in proportion

                13 to Decedent's degree of fault.

                14                                  THIRD AFFIRMATIVE DEFENSE

                15          5.     That at the time and place of the incidents or occurrences alleged in the First

                16 Amended Complaint, Decedent knew of the danger and risk inherent in Decedent's activities, if

                17 any, but nevertheless Decedent freely and voluntarily exposed himself to all risks of harm and

                18 assumed all risks of harm incurred thereto, which assumption of risk acts as a bar to any recovery

                19 against this answering defendant.

                20                                  FOURTH AFFIRMATIVE DEFENSE

                21          6.     That Decedent failed to give timely or any notice of the alleged breach of warranty

                22 to defendant.

                23                                   FIFTH AFFIRMATIVE DEFENSE

                24          7.     That the injuries and damages, if any, which Decedent sustained were caused and

                25 contributed to directly and proximately by the negligence of Decedent's employer and/or

                26 employers at the time and place of the occurrence of which Decedent complains, that Decedent's

                27 employer failed to provide a safe place in which to work so as to preclude, bar and prevent said

                28 employer from being entitled to recover any award or judgment against this answering defendant
  LAW OFFICES
 BERKES CRANE                                                         2
ROBINSON Et• SEAL         DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS' FIRST AMENDED
                                         COMPLAINT FOR SURVIVAL, WRONGFUL DEATH
                 1 in any sum or amount whatsoever. Said negligence of Decedent's employer also entitles this

                2 answering defendant to an offset against any recovery by Decedent against this answering

                 3 defendant in an amount equal to such sums as are paid by Decedent's employer or its Workers'

                4 Compensation carrier as a result of occurrences alleged in plaintiffs' First Amended Complaint.

                 5                                 SIXTH AFFIRMATIVE DEFENSE

                6           8.     That the First Amended Complaint improperly attempts to assert liability under the

                 7 theory of market share liability as postulated by Sindell v. Abbott Laboratories(1980)26 Cal.3d

                 8 588. However, market share liability has been expressly rejected in asbestos cases under Mullen v.

                     Armstrong World Industries(1988)200 Cal.App.3d 250, with the very limited exception in brake

                10 exposure cases under Wheeler v. Raybestos Manhattan (1992)8 Cal.App. 4th 1152.

                11                               SEVENTH AFFIRMATIVE DEFENSE

                12          9.     That the injuries and damages, if any, which Decedent sustained were caused and

                13 contributed to by the negligence or fault of parties named or unnamed in the First Amended

                14 Complaint on file herein other than this answering defendant, including, but not limited to,

                15 Decedent's employers. As a result of the negligence or fault of such other parties, this answering

                16 defendant is entitled to a limitation on any award of damages against this answering defendant
                17 equal to the proportionate share offault, if any, of answering defendant.

                18                                EIGHTH AFFIRMATIVE DEFENSE

                19          10.    Decedent and various entities, including Decedent's employer, to which this

                20 answering defendant allegedly supplied materials, and any other entities in the chain of supply,

                21   were sophisticated and learned users of such materials with knowledge as to any potential dangers

                22 and appropriate preventive measures to protect their employees from exposure. The employer

                23 should have exercised reasonable care to inform Decedent of potential health effects of the

                24 products, and this answering defendant had no reason to know or suspect that such warnings and

                25 precautions were allegedly not being performed by the sophisticated and learned intermediary and

                26 end users of the alleged products. In addition,Decedent, based upon his knowledge, skill, training

                27 and experience, knew or should have known of any potential hazards with respect to the materials

                28 supplied, manufactured or distributed by this answering defendant and exercised reasonable care.
  LAW OFFICES
 BERKES CRANE                                                        3
ROBINSON Er SEAL          DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS' FIRST AMENDED
                                         COMPLAINT FOR SURVIVAL, WRONGFUL DEATH
                  1                                 NINTH AFFIRMATIVE DEFENSE

                 2          1 1.    That Decedent's claims for punitive and exemplary damages against this answering

                 3 defendant are barred in whole or in part by applicable provisions of law, including the United

                 4 States and California Constitutions and interpretive case law.

                 5                                  TENTH AFFIRMATIVE DEFENSE

                 6          12.     The First Amended Complaint and each cause of action pleaded therein must be

                 7 dismissed or abated on the grounds that Decedentfailed to name and serve a necessary and/or an

                 8 indispensable party.

                 9                               ELEVENTH AFFIRMATIVE DEFENSE

                10          13.     Any loss, injury or damage incurred by Decedent was proximately caused by the

                1 1 negligent or willful acts or omissions of parties whom defendant neither controlled nor had the

                12 right to control, and was not proximately caused by any acts, omissions or other conduct of

                13 defendant.

                14                                TWELFTH AFFIRMATIVE DEFENSE

                15          14.     The tortious conduct alleged in the First Amended Complaint as to this defendant,

                16 if any, was not a substantial factor in bringing about the alleged injuries, and therefore was not a

                17 contributing cause, but was superseded by tortious and/or intentional conduct by one or more third

                18 parties whose misconduct was an independent, intervening, sole and proximate cause of each of

                19 Decedent's alleged injuries or damages, if any.

                20                              THIRTEENTH AFFIRMATIVE DEFENSE

                21          15.     Decedent named defendant in the First Amended Complaint without reasonable

                22 identification of what acts, if any, defendant participated in, and without a reasonable

                23 investigation. Pursuant to Code of Civil Procedure section 128.7, defendant requests reasonable

                24 expenses, including attorneys' fees incurred by defendant as a result of the maintenance by

                25 Decedent of this bad faith action.

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  LAW OFFICES
 BERKES CRANE                                                         4
ROBINSON & SEAL           DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS' FIRST AMENDED
                                         COMPLAINT FOR SURVIVAL, WRONGFUL DEATH
                 1                             FOURTEENTH AFFIRMATIVE DEFENSE

                 2          16.    The First Amended Complaint, and each cause of action therein, is barred by the

                 3 applicable statute of limitations including but not limited to Code of Civil Procedure sections

                 4 335.1, 337.1, 337.15, 338, 338(d)[fraud], 340, 340.2, 340.8 and 343 and Commercial Code

                 5 section 2725.

                 6                               FIFTEENTH AFFIRMATIVE DEFENSE

                 7          17.    Decedent's alleged injuries, if any, were caused wholly or in part by post-

                 8 distribution modifications, alterations or other changes in some manner in products used by

                     answering defendant, and such modifications, alterations or changes were not performed by,

                10 participated in, consented to, or approved by defendant, or any agent or employee of defendant,

                11 thus barring Decedent's recovery herein.

                12                               SIXTEENTH AFFIRMATIVE DEFENSE

                13          18.    Decedent is barred from any recovery herein as against defendant to the extent that,

                14 pursuant to Labor Code section 3600, et seq., Decedent's exclusive remedy as against defendant

                15 with respect to the incident and damages complained of would be and is pursuant to the workers'

                16 compensation laws ofthe State of California and subject to resolution only in a workers'

                17 compensation forum.

                18                             SEVENTEENTH AFFIRMATIVE DEFENSE

                19          19.    Defendant is entitled to a set-off of all amounts paid to the Decedent by other

                20 defendants pursuant to pro tanto settlements.

                21                              EIGHTEENTH AFFIRMATIVE DEFENSE

                22          20.    Any product or products alleged by Decedent to have caused Decedent's injuries

                23 were manufactured, installed, used or distributed in compliance with specifications provided by

                24 third parties to defendant and/or in compliance with all applicable health and safety statues,

                25 regulations, and all applicable building code statues and regulations.

                26                              NINETEENTH AFFIRMATIVE DEFENSE

                27          21.     At all relevant times, Decedent did not justifiably rely on defendant's alleged

                28 misrepresentations.
  LAW OFFICES
 BERKES CRANE                                                         5
ROBINSON Er SEAL          DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS'FIRST AMENDED
                                         COMPLAINT FOR SURVIVAL, WRONGFUL DEATH
                 1                               TWENTIETH AFFIRMATIVE DEFENSE

                2           22.     This answering defendant is informed and believes, and thereon alleges, that

                                      mitigate his alleged damages, if any, and any recovery by Decedent should be
                3 Decedent failed to
                                            of alleged damages incurred by said failure.
                4 reduced by the amount
                                              TWENTY-FIRST AFFIRMATIVE DEFENSE
                5

                6         23.     Defendant presently has insufficient knowledge or information upon which to form

                                          it may have additional, as yet unknown, affirmative defenses. Defendant
                7 a belief as to whether
                                   the right to assert additional affirmative defenses in the event discovery indicates it
                8 reserves herein

                9 would be appropriate.

                10           WHEREFORE,this answering defendant prays as follows:

                11           1. That Decedent take nothing by reason of his First Amended Complaint on file herein;

                12           2. For costs of suit incurred herein;

                13           3. For such other and further relief as the Court deems just and proper.

                     DATED: August 26, 2020                     BERKES CRANE ROBINSON & SEAL LLP
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                16
                                                                     VIM SPANGLER KHARE
                17                                                   RYAN C. KUJAWSKI
                18                                                   Attorneys for Defendant
                                                                     CAMPBELL CONSTRUCTION CO.
                19   6482936.DOCX


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  LAW OFFICES
 BERKES CRANE                                                         6
ROBINSON Er SEAL          DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS'FIRST AMENDED
                                         COMPLAINT FOR SURVIVAL, WRONGFUL DEATH
                   1                                         PROOF OF SERVICE

                 2 STATE OF CALIFORNIA,COUNTY OF LOS ANGELES

                   3      At the time of service, I was over 18 years of age and not a party to this action. I am
                   employed in the County of Los Angeles, State of California. My business address is 515 South
                 4 Figueroa Street, Suite 1500, Los Angeles, CA 90071.

                   5        On August 26, 2020, I served true copies of the following document(s) described as
                   DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS' FIRST
                 6 AMENDED COMPLAINT FOR SURVIVAL,WRONGFUL DEATH on the interested parties
                   in this action as follows:
                 7
                                   PER MASTER SERVICE LIST(VIA FILE & SERVE XPRESS)
                 8
                            BY ELECTRONIC SERVICE: I electronically served the document(s) described above
                 Q via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the
                   File & ServeXPress website (https://secure.fileandservexpress.com) pursuant to the Court Order
                10 establishing the case website and authorizing service of documents.

                11            I declare under penalty of perjury under the laws of the State of California that the
                       foregoing is true and correct.
                12
                              Executed on August 26, 2020, at Los Angeles, California.
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                15                                                       Rosario M. Castellanos

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  LAW OFFICES
 BERKES CRANE                                                           7
ROBINSON Er SEAL            DEFENDANT CAMPBELL CONSTRUCTION CO.'S ANSWER TO PLAINTIFFS' FIRST AMENDED
                                           COMPLAINT FOR SURVIVAL, WRONGFUL DEATH