Answer: LEWIS FORBES et al VS. ACANDS, INC.

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                NCA

San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Sep-09-2002 6:56 pm

Case Number: CGC-02-411098
Filing Date: Sep-05-2002 6:53
Juke Box: 001 Image: 00502017
ANSWER

LEWIS FORBES et al VS. ACANDS, INC.

001000502017

Instructions:
Please place this sheet on top of the document to be scanned.Cc amy Hw hk YW NY

yo oR YW NR NY NB RNR KB DP Be BR BR BE Re ee Se
oa aa £& Oo RP se S&S BC ON DH BRB BW N KF S

a
a

Eric R. Haas, State Bar No. 073947
Richard A. Chavez, State Bar No. 203576 FELE
BURNHAM BROWN SUPERIOR SOURT

A Professional Law C ti SUPERIC
P.O, Box 119. ay Rorporanen. COUNTY OF SAN’FRANCISCO
Oakland, California 94604 SEP OB 2102

1901 Harrison Street, 11th Floor 3A

Oakland, California 94612 GORDON PARK-LI, Clerk
Telephone: (510) 444-6800 o Depuyy Clark

Facsimile: (510) 835-6666

Attomeys for Defendant
U.S. FILTER DISTRIBUTION GROUP, INC.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
LEWIS FORBES AND DIANA FORBES, No. 411098
Plaintiffs, DEFENDANT U, S, FILTER
DISTRIBUTION GROUP, INC.'S
v. ANSWER TO COMPLAINT FOR
PERSONAL INJURY-ASBESTOS
ACand§, INC.,
Complaint Filed: August 2, 2002
Defendants.

Defendant U.S. Filter Distribution Group, Inc. (“Defendant”), in answer to the complaint
on file herein, denies generally and specifically, each and every, all and singular, the allegations
of said complaint, and each cause of action thereof, and further denies that Plaintiffs Lewis
Forbes and Diana Forbes (“Plaintiffs”) have been damaged in any sum or sums or at all.

WHEREFORE, this answering Defendant asserts the following affirmative defenscs:

AFFIRMATIVE DEFENSES

1. Asa first affirmative defense to each cause of action, the complaint does not state
facts sufficient to constitute a cause of action against this Defendant. -

2. Asasecond affirmative defense, each cause of action is barred by the applicable
statute of limitations, including but not limited to, California Civil Procedure Code
sections 340.2 and 361.

3. Asa third affirmative defense to each cause of action, Plaintiff Lewis Forbes
1

DEF. U. 5. FILTER DISTRIBUTION GROUP, INC'S ANSWER TO COMPLAINT FOR No. 411098
PERSONAL INJURY-ASBESTOSce UN A HW eB WH

Ny MW RM NR NB NR BR aaa
ew A nm 8 Ao FM se S&S 6 eT A eH FF Bw YP KE S

(“Plaintiff”) failed to mitigate or make reasonable efforts to mitigate his damages, if any, as
required by law.

4. Asa fourth affirmative defense to each cause of action, the damages sustained by
Plaintiffs, if any, were caused, in whole or in part, by the negligence, strict liability or fault of
others for which this Defendant is not liable or responsible.

5, Asa fifth affirmative defense to each cause of action, Plaintiff by her actions, knew
of and appreciated the risks involved, and voluntarily and reasonably assumed the risk of said
injuries, proximately causing or contributing to the damages alleged.

6. Asasixth affirmative defense to each cause of action, if Plaintiff sustained injuries
attributable to the use of any product, which allegations are expressly denied, the injuries were
caused in whole or in part by the unreasonable, unforeseeable and inappropriate purpose and/or
improper use which was made of the product.

7. As aseventh affirmative defense to each cause of action, Plaintiff was partially, if not
wholly, negligent or otherwise at fault on her own part pursuant to the doctrine of comparative
fault, and Plaintiff is barred from recovery of that portion of the damages directly attributable to
her proportionate share of fault.

8. As an eighth affirmative defense to cach cause of action, Defendant alleges that the
products were as safe as could be designed under the state of technology and medical and
scientific knowledge existing at the time the products were manufactured.

9. As aninth affirmative defense to each cause of action, Defendant alleges that any
claim for punitive or exemplary damages is barred by the United States Constitution, including
the First, Fifth, Eighth and Fourteenth Amendments, and by the California Constitution,
including Article I, and that Civil Code section 3294 is invalid on its face or as applied in this
action.

10. As a tenth affirmative defense to each cause of action, at the time and place of the
happening of the incident alleged in the complaint, Plaintiff was employed by various
employers, and was working within the course and scope of employment and certain sums have

been or will be paid under the applicable provisions of the Labor Code and any award made

2
DEF. U. 5. FILTER DISTRIBUTION GROUP, INC.'S ANSWER TO COMPLAINT FOR No. 411098
PERSONAL INJURY-ASBESTOSSo ON KD A heh RN

ye oR RP BP NM Me NN YF Be Be BP Be Be ee ee
eaaganre © BF SF BO BA AA RB ANH EP TS

No

must be reduced by the payments.

11. As an eleventh affirmative defense to each cause of action, Defendant alleges that
the action is barred under the “primary right” doctrine on the basis that causes of action may not
be split by the doctrines of res judicata and collateral estoppel and by virtue of Plaintiff's
prosecution and/or settlement of her claims in this or in prior actions.

12. As a twelfth affirmative defense to each cause of action, Defendant alleges that if
Plaintiff worked for this answering Defendant, then Plaintiff's claim is barred by the exclusive
remedy provisions of the appropriate state or federal law.

13. Asa thirteenth affirmative defense to each cause of action, Defendant alleges that
Plaintiff was provided and/or was covered by workers’ compensation insurance by each of his
employers, and Plaintiff, his employer and/or employers were subject to the provisions of the
Workers’ Compensation Act of the State of California. Accordingly, Plaintiff's actions are
barred by the doctrine articulated in Privette v. Superior Court, 5 Cal. 4th 689 (1993).

14. Asa fourteenth affirmative defense to each cause of action, this Defendant
alleges that Plaintiff assumed whatever risk or hazard, if any, that cxisted at the time and place
of the alleged accident set forth in Plaintiffs’ complaint, and said assumption of risk or hazard is
imputed to said Plaintiff.

15. As a fifteenth affirmative defense to each cause of action, Plaintiff acknowledged,
ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this Defendant,
thus barring Plaintiff's recovery.

16. Asa sixteenth affirmative defense to each cause of action, the injuries and
damages sustained by Plaintiff, if any, were solely and legally caused by the modification,
alteration or change of the product referred to in the complaint and said modification, alteration
or change was performed by persons or entities other than this answering Defendant and without
its knowledge or consent.

17. Asaseventeenth affirmative defense to each cause of action, Defendant presently
has insufficient knowledge or information on which to form a belief as to whether it may have

additional, as yet unstated, defenses available. Defendant reserves herein the right to assert

3
DEF. U. S. FILTER DISTRIBUTION GROUP, INC.'S ANSWER TO COMPLAINT FOR No, 411098
PERSONAL INJURY-ASBESTOSSC fe TI DH FF BD NY

BM BP BM MB DB BD RD Rm mem
eo A KR A BF YBN SF SD SB eB AR eH BW KY BS

additional defenses in the event discovery indicates that they would be appropriate.

18. As an eighteenth affirmative defense to each cause of action, the provisions of the
“Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections
1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the
extent that Plaintiff's injuries and damages, if any, were legally caused or contributed to by the
negligence or fault of persons or entities other than this answering Defendant.

19. As a ninetecnth affirmative defense to each cause of action, the asbestos products,
if any, for which Defendant may have any legal responsibility were manufactured, packaged,
distributed, and/or sold in accordance with contract specifications imposed by Co-Defendant, by
the U.S. Government, by Plaintiff's employers, and/or by third parties yet to be identified.

20. As a twentieth affirmative defense to each cause of action, Plaintiff’s complaint,
and each cause of action therein, is barred by the doctrine of laches.

21. Asa twenty-first affirmative defense to cach cause of action, Plaintiff's
employers were partially, if not wholly, negligent, or otherwise at fault on their own part
pursuant to the doctrine of comparative negligence, and Plaintiff should be barred from recovery
of that portion of the damages directly attributable to Plaintiff's employers’ proportionate share
of the negligence or fault. Witt v. Jackson, 57 Cal. 2d 57 (1961).

22. As a twenty-second affirmative defense to each cause of action, Plaintiffs’
complaint, and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.

23. As a twenty-third affirmative defense to each cause of action, Plaintiffs have
failed to join all persons and parties needed for a just adjudication of this action.

24. Asa twenty-fourth affirmative defense, with respect to some or all of Plaintiffs”
alleged claims and causes of action, this Court lacks jurisdiction.

25.  Asatwenty-fifth affirmative defense, with respect to some or all of Plaintiffs’
alleged claims and causes of action, in the interest of substantial justice, the action should be
heard in a forum outside this state.

“if
Ut

4
DEF. U. 8. FILTER DISTRIBUTION GROUP, INC.S ANSWER TO COMPLAINT FOR No, 411098
PERSONAL INJURY-ASBESTOSCe eS AD DBD UH FF BW NE

~~ NM BY NR NR NR BR RD aa aes
ota aA A BS NSN SF SF BG we IA AH Rh BW HY SK SO

WHEREFORE, this answering Defendant prays for judgment as follows:
1. That Plaintiff take nothing by reason of her complaint on file herein;
2. For costs of suit incurred herein; and

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

DATED: September 4, 2002 BURNHAM BROWN
om >

RICHARD A. CHAVEZ
Attomeys for Defendant

U.S. FILTER DISTRIBUTION GROUP, INC.

580936/UDG-106

5
DEF. U. S. FILTER DISTRIBUTION GROUP, INC.“S ANSWER TO COMPLAINT FOR
PERSONAL INJURY-ASBESTOS

No. 411098Re: Lewis Forbes & Diana Forbes v. ACandS, Inc. et al.

Court: San Francisco Superior Court

Action No: 411098

PROOF OF SERVICE BY UNITED STATES MAIL

T declare that I am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnham Brown whose business address is 1901 Harrison Street,
11" Floor, Oakland, Alameda County, California 94612 (mailing address: Post Office
Box 119, Oakland, California 94604).

On September 4, 2002, I served the following document(s):

DEFENDANT U. S, FILTER DISTRIBUTION GROUP, INC.'S ANSWER TO
COMPLAINT FOR PERSONAL INJURY-ASBESTOS

By placing a copy thereof into envelope(s) bearing the name(s) and address(es) of the
person(s) to be served as shown below. J placed said envelope(s) for collection and
mailing at the office of Bumham Brown, 1901 Harrison Street, 11th Floor, Oakland,
California. I am familiar with the business practice for collection and processing of
correspondence for mailing with the United States Postal Service and, in the ordinary
course of business, the correspondence would be deposited with the United States Postal
Service on the day on which it is collected at the business.

Clapper & Patti Attorneys for Plaintiffs
2330 Marinship Way, Suite 140
Sausalito, CA 94965

I dectare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

DATED: September 4, 2002
ep’ Prete Mu py

Paula Murphy

Proof of Service