Answer: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet

May-03-2004 3:56 pm

Case Number: CGC-01-402113

Filing Date: Apr-29-2004 3:55

Juke Box: 001 Image: 00947794

ANSWER

JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

001000947794

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BENNETT, SAMUELSEN,
LDS & ALI

01 LARD
‘A PROFESSIONAL CORP.
1951 WEBSTER STREET

RICHARD L. REYNOLDS #77881
BENNETT, SAMUELSEN, REYNOLDS & ALLARD
a Professional Corporation sits
ttorneys at Law in Francisco; je
1951 Webster Street, Suite 200 ‘ountvSunerior Court
Oakland, California 94612-2940 R29 2004
ON PARK-LI Clerk

Telephone: (510) 444-7688

PAUL J. RIEHLE #115199

SEDGWICK, DETERT, MORAN & ARNOLD
One Embarcadero Center, 16" Floor

San Francisco, CA_94111

Telephone: (415) 781-7900

Attorne s for Defendant

A CORPORATION
A Bankrupt, Defunct, Dissolved Corporation

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

JAMES JORDAN, NO. 402113
[Unlimited Jurisdiction]
Plaintiff,
ANSWER TO FIRST AMENDED
vs. COMPLAINT

ASBESTOS DEFENDANTS [BHC], et al.,
Defendants.

COMES NOW defendant GATKE CORPORATION, a bankrupt, defunct, dissolved

corporation, and answers plaintiff's unverified complaint herein as follows:
I.

This defendant denies each and every, all and singular, generally and specifically, the
allegations contained in the complaint, and in this connection, this defendant denies that
plaintiff has been or was injured or damaged in the unspecified sum or sums alleged in the
complaint, or in any other sum or sums, or otherwise, or at all.

AFFIRMATIVE DEFENSES
AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES TO.

ANSWER TO COMPLAINTBENNETT, SAMUELSEN,

REYNOLDS & ALLARD

A PROFESSIONAL CORP.
SBSTER STREET

1951 WEBSTER

‘SUITE 200
OAKLAND, CA 94612-2940

(S10) 444-7688

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EACH AND EVERY CAUSE OF ACTION OF PLAINTIFF’S COMPLAINT, AS
THOUGH PLEAD SEPARATELY TO EACH AND EVERY OF SAID CAUSES OF
ACTION, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS:

FIRST AFFIRMATIVE DEFENSE

Each and every of said causes of action fails to state a cause of action against this
answering defendant.

SECOND AFFIRMATIVE DEFENSE

Each and every cause of action of plaintiff's complaint seeks recovery for damages,
which is barred by the statute of limitations, including but not limited to, California Code of
Civil Procedure, Sections 340(3), 340.2, 338(1), 338(4), 343, 337.1 and 337.15.

THIRD AFFIRMATIVE DEFENSE
1

This answering defendant is informed and believes, and based upon said information
and belief alleges, that at the times and places mentioned in plaintiffs complaint, the plaintiff
was careless and negligent in and about the matters alleged in the complaint, and that said
carelessness and negligence caused and contributed, to the extent of one hundred percent, to
any injuries and damages allegedly sustained by plaintiff, if any such injuries or damages
there were, or are.

Il.

At all times denying any liability whatsoever to plaintiff herein and at all times
denying that plaintiff is entitled to any recovery herein, this answering defendant alleges that
in the event of any judgment or verdict in favor of plaintiff herein, that said judgment or
verdict must be reduced to the extent that said carelessness and negligence of plaintiff caused
or contributed to the alleged injuries and damages allegedly sustained by plaintiff, if any such

injuries or damages there were, or are.

ANSWER TO COMPLAINTBENNETT, SAMUELSEN,
NOLDS & ALLARD

APROFESSIONAL CORP.

1951 WEBSTER STREET

‘SUITE 200
. CA 94612-2940

(510) 444-7688

FOURTH AFFIRMATIVE DEFENSE
I.

This answering defendant is informed and believes, and based upon said information
and belief alleges, that plaintiff has received or receive disability and medical benefits under
a worker’s compensation law, or similar laws, from plaintiffs employers or former
employers or their worker’s compensation or similar insurers, on account of the injuries and
damages allegedly sustained by plaintiff which give rise to this lawsuit, if any such injuries

or damages there were or are.

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IL.

Atall times denying any liability or obligation to plaintiff or any other person or entity
whatsoever, this answering defendant alleges that each and every of plaintiff's employers and
former employers was careless and negligent in and about the matters alleged in plaintiff's
complaint and that said carelessness and negligence of each and every of said employers
contributed directly and proximately to any alleged injuries or damages sustained by plaintiff
and/or any or all of said employers.

Il.

By reason of the premises, and at all times denying that plaintiff is entitled to any
judgment or verdict whatsoever herein, any judgment or verdict that might be rendered in
favor of plaintiff herein should be reduced by the amount of all such payments by said
employers or insurers, and that each of said employers or insurers should be barred from any
recovery by lien or otherwise in connection with this matter.

FIFTH AFFIRMATIVE DEFENSE

At all times denying the allegations of plaintiff's complaint, this answering defendant
is informed and believes, and based upon said information and belief alleges, that plaintiff
voluntarily and knowingly assumed the alleged risks and alleged hazards incident to the
alleged operations, acts and conduct at the times and places alleged in the complaint, and that

plaintiff's said acts proximately caused and contributed to the alleged injuries and damages,

ANSWER TO COMPLAINTDo oN DAM PF WN

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SUITE 200
OAKLAND, CA 94612-2940)
G10} 444-7688

if any such injuries or damages there were, or are.
SIXTH AFFIRMATIVE DEFENSE
I.

This answering defendant is informed and believes, and based upon said information
and belief alleges, that any injuries and damages allegedly sustained by plaintiff were directly
and proximately caused by the misuse of the product or products allegedly involved, by
plaintiff and plaintiff's employers.

SEVENTH AFFIRMATIVE DEFENSE
I.

This answering defendant incorporates herein by reference, as though set forth in full
at this point, each and every allegation contained in Paragraph 1 of its Fourth Affirmative
Defense.

IL.

At all times denying all allegations of plaintiff's complaint, this defendant is informed
and believes, and based on said information and belief alleges, that plaintiff's employers
voluntarily and knowingly assumed the alleged risks and alleged hazards of the alleged
operations, acts and conduct at the times and places alleged in plaintiff's complaint, and that
said acts of plaintiff’s employers directly and proximately caused and contributed to any
alleged injuries or damages allegedly sustained by the plaintiff, and/or by any or all of
plaintiff's employers, if any such injuries or damages to either plaintiff or any employer of
plaintiff there were, or are.

Il.

By reason of the premises, at all times denying that plaintiff is entitled to any
judgment or verdict whatsoever herein, any judgment or verdict that might be entered in
favor of plaintiff herein should be reduced by the amount of all such payments by said
employers or insurers, and that each of said insurers or employers should be barred from any

recovery herein.

ANSWER TO COMPLAINTYS ww

EIGHTH AFFIRMATIVE DEFENSE

At all times denying any liability whatsoever for plaintiff herein, this defendant

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alleges that any alleged liability or responsibility of this defendant, any such alleged liability
and responsibility being denied, is small in proportion to the alleged liability and
responsibility of other persons and entities, including other persons and entities who are
defendants herein, and that plaintiff should be limited to seeking recovery from this
defendant for the proportion of alleged injuries and damages for which this defendant is

allegedly liable or responsible, all such alleged liability and alleged responsibility being

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expressly denied.
NINTH AFFIRMATIVE DEFENSE

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This answering defendant is informed and believes, and based upon said information

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and belief alleges, that plaintiff has unreasonably delayed in bringing of this action without

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good cause therefor. Said delay has directly and proximately resulted in prejudice to this

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defendant and, therefore, this action is barred by laches.
TENTH AFFIRMATIVE DEFENSE

At all times denying all allegations of plaintiff's complaint, this answering defendant

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is informed and believes, and based upon said information and belief alleges, that plaintiff is

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barred from recovery herein because of modification, alteration or change in some other

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manner of the products alleged in plaintiff's complaint on file herein.

ELEVENTH AFFIRMATIVE DEFENSE

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At all times mentioned herein, this answering defendant is informed and believes, and

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based upon said information and belief alleges, that plaintiff acknowledged, ratified,

consented to and acquiesced in the alleged acts or omissions, if any there were, of this

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answering defendant, thus barring plaintiff from any relief as prayed for herein.
TWELFTH AFFIRMATIVE DEFENSE

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At all times denying any liability or obligation whatsoever to plaintiff herein, and/or to

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any other person or entity of any nature or capacity whatsoever, and at all times denying that

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BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
A PROFESSIONAL CORP.
1951 WEBSTER STREET

940)

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AND. CA 24612204011 ANSWER TO COMPLAINTBENNETT, SAMUELSEN,
'& ALLARD
RPROPESSIONAL CORP.

195] WEBSTER STREI
SUITE 200

(0) S84 7088

94612-2940

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plaintiff is entitled to any recovery herein, this answering defendant alleges that at all times
and places mentioned in plaintiff's complaint, its products were manufactured, produced,
supplied, sold and distributed in conformity with specifications promulgated by the United
States Government under its war powers as set forth in the United States Constitution, and
that any recovery by plaintiff herein is thus further barred by said sovereign acts and powers.
THIRTEENTH AFFIRMATIVE DEFENSE
The complaint fails to state a cause of action against this answering defendant for
exemplary/punitive damages.
FOURTEENTH AFFIRMATIVE DEFENSE

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There is a defect and misjoinder of parties defendant.
FIFTEENTH AFFIRMATIVE DEFENSE

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The complaint and each cause of action thereof is barred by the provisions of
Commercial Code Sections 2725(1) and 2725(2).
SIXTEENTH AFFIRMATIVE DEFENSE

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Plaintiff failed to mitigate his alleged damages, if any there were.
SEVENTEENTH AFFIRMATIVE DEFENSE

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This answering defendant received no notice of any dangerous, hazardous or defective

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condition or any breach of warranty, either express or implied.
EIGHTEENTH AFFIRMATIVE DEFENSE

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The claim of plaintiff for personal injury was previously litigated on the merits, and a

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judgment in said prior action having been rendered, plaintiffs complaint, and each cause of

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action therein, is barred.
NINETEENTH AFFIRMATIVE DEFENSE

Plaintiff presently has another action pending arising out of the same wrongs and

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injuries alleged in this matter, and on that basis plaintiff has split his cause of action and the

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present action is therefore barred.

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ANSWER TO COMPLAINTTWENTIETH AFFIRMATIVE DEFENSE

Defendant alleges that plaintiff's action is barred as to this defendant by reason of the

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operations of the provisions contained in California Labor Code Sections 3600, 3601 and
3602, et seq., and that plaintiff's right to recovery against this defendant, if any there be, is
limited to the exclusive remedy provided in the aforementioned sections.
TWENTY-FIRST AFFIRMATIVE DEFENSE
This answering defendant alleges that this action is stayed or plaintiff's claim is
discharged in bankruptcy filed by this defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE

This answering defendant alleges that this action is barred and is untimely as

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defendant, a dissolved Illinois corporation, was dissolved more than five years prior to the

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filing of the complaint herein, pursuant to 805 ILCS 5/12.80.
TWENTY-THIRD AFFIRMATIVE DEFENSE
As and for a further affirmative defense to the complaint, defendant alleges that the

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action is barred by virtue of Civil Code section 47, the litigation privilege, in that the

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statements, acts, conduct or omissions alleged occurred in connection with the litigation of

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claims and defenses in actions in which defendant was concerned.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

As and for a further affirmative defense to the complaint, defendant alleges that the

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action is barred by virtue of the First Amendment to the Constitution of the United States of

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America, and the Constitution of the State of California and other States of the United

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States, in that the statements, acts, conduct or omissions alleged were undertaken in the free

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exercise of rights guaranteed to defendant under said constitutions, including rights of free

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speech, access to courts and the judicial system, and participation in the political process

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including but not limited to petitioning the government and its agencies.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
As and for a further affirmative defense to the complaint, defendant alleges that the

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BENNETT, SAMUELSEN,

REYNOLDS & ALLAI

A PROFESSIONAL CORP.
95 STREE

SUITE 200
AND, CA 94612-2940

aK (510) 444-7688 ANSWER TO COMPLAINTNCTE 200
JAKLAND, CA 94612.

(610) 444-7688

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action is barred by virtue of the decisions of the California Supreme Court in Temple
Community Hospital v. Superior Court (1999) 20 Cal. 4" 464; Cedars Sinai Medical Center
v. Superior Court (1998) 18 Cal 4" 1, in that the statements, acts, conduct or omissions
alleged are not actionable.
TWENTY- SIXTH AFFIRMATIVE DEFENSE

Defendant asserts that it is immune from prosecution under state law based upon the
principle of government contractor and government specification immunity in that to
prosecute defendant would be inconsistent with the federal interest and because alleged
products supplied or manufactured by defendant were so supplied or manufactured pursuant
to government specification.

WHEREFORE, this answering defendant prays as follows:

1. That plaintiff take nothing by reason of his complaint on file herein.
2. For costs of suit incurred herein; and
3. For such other and further relief as the court deems proper.

DATED: April 26, 2004
BENNETT, SAMUELSEN, REYNOLDS & ALLARD

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Richard L: Reynolds
Attorneys for Defendant
GA CORPORATION

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BENNETT, SAMUELSEN,
REYNOLDS & ALLARD
‘A PROFESSIONAL CORP.
1951 WEBSTER STREET
SUITE 200
OAKLAND, CA 94612-2940
(610) 444-7688

CERTIFICATE OF SERVICE

lam a citizen of the United States, over the age of 18 years and nota party to the cause
herein. | am an employee of BENNETT, SAMUELSEN, REYNOL S & ALLARD, A
Professional Corporation, 1951 Webster Street, Suite 200, Oakland, California 94612-

On April 28, 2004, served the attached:
ANSWER TO FIRST AMENDED COMPLAINT

on the interested parties in said cause, by causing an original or true copy thereof to be
enclosed in a sealed envelope addressed as follows:

Alan R. Brayton
Brayton Purcell
P. O. Box 6169
Novato, CA 94948

Paul J. Riehle

Sedgwick, Detert, Moran & Arnold
One Embarcadero Center, 16" Floor
San Francisco, CA 94111-3628

(x) BY MAIL: I caused such envelope with postage thereon fully prepaid to be placed in the

United States mail, in the City of Oakland, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on 4/28/04 in Oakland,

California.
JANICE WASHINGTON iy Yirun Unshueety
Name of Declarant "AIGNATURE ON ORIGINAL PROOF OPSERVICE