Answer: MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al

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San Francisco Superior Courts
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Apr-28-2003 4:15 pm

Case Number: CGC-02-414536
Filing Date: Apr-28-2003 4:12
Juke Box: 001 Image: 00673758
ANSWER

MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al

001000673758

Instructions:
Please place this sheet on top of the document to be scanned.4

YW

JOHN R. WALLACE, ESQ. csB¢ $5709
PAUL J. GAMBA, ESQ. _CsB# 146097
JACKSON & WALLACE trp

55 Francisco Street, 6th Floor

San Francisco, CA 94133

(415) 982-6300

Attorneys For Defendant

HANSON PERMANENTE CEMENT, INC.

(fka KAISER CEMENT CORPORATION)

MARY W. WILLIAMS, individually and
as Successor-in-Interest to MEL
WILLIAMS, deceased and MARY M.
WILLIAMS, individually and as Guardian
ad Litem of RAQUEL L. WILLIAMS and
JUVON D. WILLIAMS, minors,
KIMBERLY C. WILLIAMS and
MICHELLE DeLEON, as legal heirs of
MELVIN WILLIAMS, deceased;

Plaintiff(s),
ve
A.W. CHESTERTON COMPANY

Defendants.

& Te \. ve
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

No. 414536

ANSWER OF DEFENDANT HANSON
PERMANENTE CEMENT, INC. (fka
KAISER CEMENT CORPORATION) TO
PLAINTIFFS' UNVERIFIED
COMPLAINT FOR WRONGFUL
DEATH AND SURVIVAL

DEFENDANT HANSON PERMANENTE CEMENT, INC. (fka KAISER
CEMENT CORPORATION) (hereinafter "Defendant") answers plaintiffs’

unverified Complaint on its own behalf and o:

as follows:

n behalf of no other defendant or entity

Pursuant to California Code of Civil Procedure section 431.30(d), Defendant

denies, generally each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by the

DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATH
¥Lv Ww

plaintiffs therein states facts sufficient to constitute a cause of action against
Defendant.
SECOND AFFIRMATIVE DEFENSE
To the extent the Complaint asserts Defendant's alleged "market share"
liability, or "enterprise liability", the Complaint fails to state facts sufficient to
constitute a cause of action against Defendant.
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states
facts sufficient to entitle plaintiffs to an award of punitive damages against Defendant.
FOURTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would deprive
Defendant of its property without due process of law under the California
Constitution and United States Constitution.
FIFTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would violate the
United States Constitution's prohibition against laws impairing the obligation of
contracts.
SIXTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would constitute a
criminal fine or penalty and should, therefore, be remitted on the ground that the
award violates the United States Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs' action, and each alleged cause of action, is barred by the applicable
statute of limitations, including but not limited to California Code of Civil Procedure,
sections 338(1), 338(4), 339(1), 340(1), 340(3), 340.2, 343, 353 and California
Commercial Code, section 2725.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs unreasonably delayed in bringing this action, without good cause

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHwv eY

therefor, and thereby has prejudiced Defendant as a direct and proximate result of
such delay; accordingly, this action is barred by laches.
NINTH AFFIRMATIVE DEFENSE

Plaintiffs' decedent was negligent in and about the matters alleged in the
Complaint and in each alleged cause of action; this negligence proximately caused, in
whole or in part, the damages alleged in the Complaint. In the event plaintiffs are
entitled to any damages, the amount of these damages should be reduced by the
comparative fault of plaintiffs and any person whose negligent acts or omissions are
imputed to plaintiff.

TENTH AFFIRMATIVE DEFENSE
Plaintiffs' decedent knowingly, voluntarily and unreasonably undertook to
encounter each of the risks and hazards, if any, referred to in the Complaint and each
alleged cause of action, and this undertaking proximately caused and contributed to
any loss, injury or damages incurred by plaintiff.
ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiffs was proximately caused by
the negligent or willful acts or omissions of parties whom Defendant neither
controlled nor had the right to control, and was not proximately caused by any acts,
omissions or other conduct of Defendant.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by
plaintiffs' decedent or by others; the misuse, abuse or alteration was not reasonably
foreseeable to Defendant, and proximately caused any loss, injury or damages
incurred by plaintiff.

THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ decedent failed to exercise due diligence to mitigate their loss, injury

or damages; accordingly, the amount of damages to which plaintiffs are entitled, if

any, should be reduced by the amount of damages which would have otherwise been

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHmitigated.
FOURTEENTH AFFIRMATIVE DEFENSE
The Court lacks subject matter jurisdiction over the matters alleged in the
Complaint because the Complaint and each alleged cause of action against Defendant
are barred by the provisions of California Labor Code, section 3600, et seq.
FIFTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that at the time of the injuries alleged in the Complaint,
plaintiffs' decedent was employed and was entitled to receive Workers’ Compensation
benefits from his employer's workers' compensation insurance carrier; that all of
plaintiffs' decedent's employers, other than Defendant, were negligent in and about
the matters referred to in said Complaint, and that such negligence on the part of said
employers proximately and concurrently contributed to the happening of the accident
and to the loss or damage complained of by plaintiff, if any there were; and that by
reason thereof Defendant is entitled to set off and/or reduce any such workers’
compensation benefits received or to be received by plaintiffs against any judgment
which may be rendered in favor of plaintiff. (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d
641)
SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint,
plaintiffs' decedent's employers were negligent in and about the matters referred to in
said Complaint, and that such negligence on the part of said employers proximately
and concurrently contributed to any loss or damage, including non-economic
damages, complained of by plaintiff, if any there were; and that Defendant is not
liable for said employers' proportionate share of non-economic damages.

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint,

parties other than this Defendant were negligent in and about the matters referred to

in said Complaint, and that such negligence on the part of said parties proximately

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHWS we

and concurrently contributed to any loss or damage, including non-economic
damages, complained of by plaintiff, if any there were; and that Defendant herein
shall not be liable for said parties' proportionate share of non-economic damages.
EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint,
all of plaintiffs' decedent's employers, other than Defendant, were sophisticated users
of asbestos-containing products and said employers’ negligence in providing the
product to its employees in a negligent, careless and reckless manner was a
superseding intervening cause of plaintiffs' injuries, if any there were.

NINTEENTH AFFIRMATIVE DEFENSE

If plaintiffs have received, or in the future may receive, Worker's
Compensation benefits from Defendant under the Labor Code of the State of
California as a consequence of the alleged industrial injury referred to in the
Complaint, and in the event plaintiffs are awarded damages against Defendant,
Defendant claims a credit against this award to the extent that Defendant is barred
from enforcing its rights to reimbursement for Worker's Compensation benefits that
plaintiffs have received or may in the future receive.

TWENTIETH AFFIRMATIVE DEFENSE

If plaintiffs have received, or in the future may receive Worker's
Compensation benefits from Defendant under the Labor Code of the State of
California as a consequence of the alleged industrial injury referred to in the
Complaint, Defendant demands repayment of any such Worker's Compensation
benefits in the event that plaintiffs recover tort damages as a result of the industrial
injury allegedly involved here. Although Defendant denies the validity of plaintiffs’
claims, in the event those claims are held valid and not barred by the statute of
limitations or otherwise, Defendant asserts that cross-demands for money have existed
between plaintiffs and Defendant and the demands are compensated, so far as they

equal each other, pursuant to California Code of Civil Procedure section 431.70.

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHWS
TWENTY-FIRST AFFIRMATIVE DEFENSE
At all times and places in the Complaint, plaintiffs were not in privity of
contract with Defendant and said lack of privity bars plaintiffs' recovery herein upon

any theory of warranty.

TWENTY-SECOND AFFIRMATIVE DEFENSE

Plaintiffs are barred from recovery in that all products produced by Defendant
was in conformity with the existing state-of-the-art, and as a result, these products

were not defective in any manner.

TWENTY-THIRD AFFIRMATIVE DEFENSE

The Defendant did not and do not have a substantial percentage of the market
for the asbestos-containing products which allegedly caused plaintiffs’ injuries.
Therefore, Defendant may not be held liable to plaintiffs based on this Defendant's
alleged percentage share of the applicable market.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that plaintiffs assert
Defendant's alleged liability as a successor, successor in business, successor in product
line or a portion thereof, assign, predecessor, predecessor in business, predecessor in
product line or a portion thereof, parent, alterego, subsidiary, wholly or partially
owned by, or the whole or partial owner of or member in an entity researching,
studying, manufacturing, fabricating, designing, labeling, assembling, distributing,
leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting
for installation, repairing, marketing, warranting, rebranding, manufacturing for
others, packaging and advertising a certain substance, the generic name of which is
asbestos.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Defendant alleges that as a result of the acts, conduct, and omissions of

plaintiffs' decedent and his agents, each cause of action presented in the Complaint has

been waived.

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHty

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant alleges that plaintiffs’ decedent's tobacco use is an assumption of a
known risk, and that said conduct of plaintiffs’ decedent proximately caused and
contributed to his injuries and damages, if any, and therefore the recovery of plaintiff,
if any, is barred or proportionately reduced.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Defendant alleges that consumption of tobacco products is negligent per se
because it is "inherently unsafe and consumed with the ordinary community
knowledge of its danger," as expressed in Richards v. Owens-Illinois, Inc. (1997) 14
Cal.4th 985, California Civil Code section 1714.45(a)(1). Thus, the said negligence of
plaintiffs' decedent proximately caused and contributed to his injuries and damages, if
any, and therefore, the recovery of plaintiff, if any, is barred or proportionately
reduced.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Defendant alleges that, on information and belief, plaintiffs named defendant
in this litigation without reasonable product identification and without a reasonable
investigation; accordingly, defendant, pursuant to California Code of Civil Procedure
section 128.5, requests reasonable expenses, including attorney's fees, incurred by this
defendant as a result of the maintenance by plaintiffs of this bad faith action.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Defendant alleges that plaintiffs' decedent's injury, damage or loss, if any, were
proximately caused by an unforeseeable, independent, intervening or superseding
event beyond the control, and unrelated to any conduct of defendant. Defendant's
actions, if any, were superseded by the negligence and wrongful conduct of others.

THIRTIETH AFFIRMATIVE DEFENSE

Defendant alleges that plaintiffs have failed to join all indispensable and/or
essential parties needed for just adjudication. Therefore, the action should be stayed

pending joinder of essential and/or indispensable parties or, in the alternative, the

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHCo oo
action should be dismissed.
WHEREFORE, Defendant prays:
(1) That plaintiffs take nothing by their Complaint;
(2) That Judgment be entered in favor of Defendant;
(3) For recovery of Defendant's costs of suit;

(4) For appropriate credits and set-offs arising out of

any payment of Worker's Compensation benefits as alleged above; and;

(5) For such other and further relief as the Court deems just and proper.

DATED: April 27 , 2003

JACKSON & W, CE Lip

ul J. Gambd
Attofneys For Defendant
HANSON PERMANENTE CEMENT, INC.
(fka KAISER CEMENT CORPORATION)

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHPROOF OF SERVICE BY MAIL
(Code Civ. Proc., §§ 1013, 2015.5
al. Rules of Court, rule 2008(e))

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

I, David S. Mandle, declare as follows:

Lam over 18 years of age and not a party to the within action; my business
address is 55 Francisco Street, Ga Francisco, California 94133; I am employed in San
Francisco County, California.

Iam readily familiar with my employer's practices for collection and
processing of correspondence for mailing with the United States Postal Service.

On April Z§ , 2003, I served a copy of the following documents: ANSWER.
OF DEFENDA’ ANSON PERMANENTE CEMENT, INC. fka KAISER
CEMENT CORPORATION ANSWER TO UNVERIFIED COMPLAINT FOR
WRONGFUL DEATH - ASBESTOS on the interested parties in the above-
referenced case by following ordinary business practices and placing for collection and
mailing at 55 Francisco Street, San Francisco, on the date above, a true copy of the
above-referenced document(s), enclosed in a sealed envelope; in the ordinary course of
business, the above documents would have been deposited for first-class delivery with
the United States Postal Service the same day they were placed for deposit, with
postage thereon fully prepaid.

The foregoing envelopes were addressed as follows:
Paul, Hanley & Harley LLP
1608 Fourth Street, Suite #300
Berkeley, CA 94710

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 April ZS",

\bDavid S. Mandle

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DEFENDANT'S ANSWER TO COMPLAINT FOR WRONGFUL DEATH