Preview
M0000
ORIGINAL ® ° 812017 |
DEHAY & ELLISTON, LLP
William H. Armstrong, SBN 40650
Bradley P. Kaplan, SBN 148647
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George H. Irwin, SBN 188463
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100 Pringle Avenue, Suite 700
Walnut Creek, California 94596
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Telephone: (510) 433-1830
Facsimile: (866) 611-8690
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E-mail: barmstrong@dehay.com
E-mail: bkaplan@dehay.com
E-mail: girwin@dehay.com
Attorneys for Defendant
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RALPHS GROCERY COMPANY
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10
1 SUPERIOR .COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF ALAMEDA —- UNLIMITED JURISDICTION
13 MERIDITH A. EGLI, Case No: RG20075272
14 Plaintiff, DEFENDANT RALPHS GROCERY
15 VS.
COMPANY’S ANSWER TO
PLAINTIFF’S COMPLAINT FOR
16 PERSONAL INJURY - ASBESTOS
JOHNSON & JOHNSON, et al.,
17 Action Filed: September 30, 2020
Defendants.
18
19
20 RALPHS GROCERY COMPANY (hereinafter referred to as “Defendant”), on its own
21 behalf and on behalf of no other entity answers Plaintiff's unverified Complaint for Personal
22 Injury— Asbestos (“Complaint”). S
2)
23 GENERAL DENIAL Se
24 Defendant generally denies the allegations in each and every cause of action to the@xtent
25 such allegations relate to it, its predecessors and/or its successors, and further denies that Plaintiff
26 has been damaged in the sums alleged, or in any other sum, or at all.
DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
By alleging the matters set forth below, Defendant does not allege or admit that it has the
burden of proof with respect to all such matters but, as for its further answers to the Complaint,
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by separate affirmative defenses, Defendant states:
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FIRST AFFIRMATIVE DEFENSE
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Plaintiff's Complaint, and each cause of action, fails or may fail to state a cause of action
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against this answering Defendant.
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SECOND AFFIRMATIVE DEFENSE
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Plaintiff's employers fully knew of and appreciated the risks and dangers at the time and
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place of events and matters alleged in Plaintiff's Complaint and, notwithstanding such
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10 knowledge, voluntarily exposed Plaintiff to said risks and dangers, if any existed, and thereby
11 assumed all fault for damages and injuries to Plaintiff, and each of them, from all matters alleged
12 in the Complaint.
13 THIRD AFFIRMATIVE DEFENSE
14 Plaintiff's Complaint and every cause of action alleged therein is/are barred by California
15 Code of Civil Procedure § 340.2 or laches, or both.
16 FOURTH AFFIRMATIVE DEFENSE
17 Plaintiffs alleged injuries, losses or damages, if and to the extent they occurred, which
18 occurrence is expressly denied, were caused solely or contributed to by the faults of third parties
19 for which this answering Defendant is not responsible.
20 FIFTH AFFIRMATIVE DEFENSE
21 Plaintiffs alleged injuries, losses or damages, if and to the extent they occurred, which
22 occurrence is expressly denied, were caused solely or contributed to by her own carelessness,
23 recklessness, and/or negligence in failing to exercise reasonable care in the acts, events and
24 matters described in Plaintiff's Complaint.
25 ///
26 ///
2
DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s alleged injuries, losses, or damages, if and to the extent they occurred, were
aggravated by her failure to use reasonable diligence to mitigate them.
SEVENTH AFFIRMATIVE DEFENSE
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Plaintiffs alleged injuries, losses or damages, if and to the extent they occurred, which
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occurrence is expressly denied, were the result of Plaintiff's failure to use Defendant’s product(s)
for the purpose intended or in the manner intended, and said use constituted an unforeseeable
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misuse, unintended use, alteration or modification of said product(s).
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EIGHTH AFFIRMATIVE DEFENSE
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10 To the extent Plaintiffs alleged injuries, losses, or damages are asserted to result from an
11 alleged employment relationship with this answering Defendant, Plaintiffs claims are barred by
12 the exclusivity provisions of the California Labor Code.
13 NINTH AFFIRMATIVE DEFENSE
14 Plaintiffs alleged illnesses and injuries, if and to the extent they occurred, which
15 occurrence is expressly denied, were caused or contributed to by the negligence of Plaintiff
16) and/or her employer(s); and to the extent that Plaintiff has received or in the future she or her
17 heirs will receive, worker’s compensation benefits for such illnesses and/or injuries, this
18 answering Defendant is entitled to a comparative reduction in any economic damages sought by
19 Plaintiff or recovered by her in this action.
20 TENTH AFFIRMATIVE DEFENSE
21 Defendant alleges, on information and belief, the causes of action alleged in the
22 Complaint arose outside of California while Plaintiff was a non-resident and, pursuant to the
23 applicable statutes of limitations or repose where Plaintiff was then residing or working, the
24 Complaint is barred by the provisions of those statutes and by Code of Civil Procedure § 361.
25 ///
26 ///
3
DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
ELEVENTH AFFIRMATIVE DEFENSE
-—
Plaintiffs claims are barred by California Code of Civil Procedure § 430.10, and/or the
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primary right doctrine, to the extent there is or was another action pending between the same
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parties on the same cause of action, and that Plaintiff improperly joined parties in this action, and
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that Plaintiff has failed to join indispensable parties.
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TWELFTH AFFIRMATIVE DEFENSE
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Defendant alleges that the risk of exposure to asbestos-containing products was inherent
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in Plaintiff’s trade and work, and/or understood by Plaintiff. Under the doctrines of primary and
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secondary assumption of risk, Plaintiff may not recover for harm caused by such inherent or:
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understood risk.
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THIRTEENTH AFFIRMATIVE DEFENSE
—_
—_
Plaintiffs claims are barred by the applicable principles of waiver and estoppel.
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—
FOURTEENTH AFFIRMATIVE DEFENSE
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Plaintiff’s claim for punitive damages violates this answering Defendant’s right to due
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process and equal protection as guaranteed by the Fourteenth Amendment to the United States
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Constitution and Article I, Section 7, of the California Constitution.
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FIFTEENTH AFFIRMATIVE DEFENSE
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Defendant contends that, to the extent Plaintiff seek to impose liability on Defendant as
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successor-in-interest to any other defendant or entity, Defendant is not or may not be liable for
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the acts or omissions of any such defendant or entity because Defendant did not become legally
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responsible or no longer is legally responsible for those alleged acts or omissions of any such
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defendant or entity given the facts and circumstances of the pertinent transactions or is not or
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may not be successor-in-interest, a successor-in-liability or an alternate entity for any such
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defendant or entity Plaintiffs claim.
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DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
SIXTEENTH AFFIRMATIVE DEFENSE
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Defendant contends that any products, materials or activities attributed to Defendants
were, at all relevant times, conducted, designed, manufactured, packaged, labeled, marketed or
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used in conformity with the existing scientific, medical, industrial hygiene and consumer
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knowledge, practice and state-of-the-art.
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SEVENTEENTH AFFIRMATIVE DEFENSE
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Parties to this action and/or nonparties, other than Defendant, were negligently or legally
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responsible, or otherwise at fault for any damages alleged in the Complaint, which damages are-
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herein denied and therefore, in the event of any liability, whether by settlement or judgment in
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favor of any other party against Defendant, the court or jury should apportion fault as to all
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parties. Furthermore, Defendant requests a judgment and declaration of indemnification and
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contribution against all other parties or persons in accordance with the apportionment of fault
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between the parties.
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EIGHTEENTH AFFIRMATIVE DEFENSE
—_
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All activities of this answering Defendant alleged in the Complaint, conform to statutes,
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governmental regulations, and industry standards based upon the state of knowledge existing at
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the time alleged in the Complaint and each cause of action therein.
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NINETEENTH AFFIRMATIVE DEFENSE
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Any injuries resulting from the use of the subject products, which injuries are herein
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denied, were not foreseeable to this answering defendant given the state of knowledge and state
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of art at the time of the alleged injuries.
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TWENTIETH AFFIRMATIVE DEFENSE
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Defendant is liable, if at all, only for its proportionate share of liability/damages as set
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forth by California Civil Code §§ 1431 et seq.
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DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
TWENTY-FIRST AFFIRMATIVE DEFENSE
A conflict in law exists as Plaintiffs’ claimed exposure to asbestos is alleged to have
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occurred outside the jurisdiction of this Court, and therefore the laws of another jurisdiction
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apply as between Plaintiff and Defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
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Defendant contends that any products, materials or activities attributed to Defendant were
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at all relevant times designed, manufactured, packaged, labeled, marketed, used, or conducted in
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accordance with specifications imposed by its codefendants and/or in compliance with applicable
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statutes, codes, regulations, standard or specifications of the U.S. Government and/or the State of
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10 California.
11 TWENTY-THIRD AFFIRMATIVE DEFENSE
12 Defendant adopts and incorporates the applicable affirmative defenses asserted by any
13 other defendant to this action and reserves the right to add or amend their answers and
14 affirmative defenses during the course of this action to conform to the proof at trial
15 //]
16 ///
17 ///
18 ///
19 //1
20 ///
21 //1
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23 //1
24 ///
25 ///
26 ///
6
DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
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WHEREFORE, having fully responded to the subject Complaint, answering Defendant
prays:
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1. That Plaintiff take nothing by reason of the operative Complaint on file
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herein;
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2. That Defendant has judgment of dismissal;
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3. That Defendant be awarded reasonable attorneys’ fees and costs incurred
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herein;
4. That if Defendant is found liable, that the degree of responsibility and
liability for the resulting damages be determined and apportioned in accordance with California
10 Civil Code §§ 1431, et seg.; and
11 5. For such other and further relief as the Court may deem just and proper.
12 DATED: November 23, 2020
13 DEHAY & ELLISTON, LLP
— el Baas
14
15
16
o» Po Bra P. Kap
Attorneys for Defendant
Ralphs Grocery Company
17
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DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Meredith A. Egli vs. Johnson & Johnson, et al. -
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Alameda County Superior Court, Civil Action No. RG20075272
WwW
I, Beth D. Self, declare that am, and was at the time of service of the document
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herein referred to, over 18 years of age, not a party to this action and a citizen of the United
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States. I am employed in the County of Contra Costa, California by DeHay & Elliston, LLP and
RH
my work email address is bself@dehay.com and my work mailing address is 100 Pringle
Avenue, Suite 700, Walnut Creek, California 94596.
On November 23, 2020, I electronically served the following document by File &
10 ServeXpress:
1 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO
PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS
12
13 I served the recipients designated on the Transaction Receipt located on the File
14 & ServeXpress website.
15 I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct and that this declaration was executed on November 23, 2020, at
17 Walnut Creek, California.
18
19 Brith Odo
Beth D. Self /:
20
21
22
23
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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Preview
M0000 ORIGINAL ® ° 812017 | DEHAY & ELLISTON, LLP William H. Armstrong, SBN 40650 Bradley P. Kaplan, SBN 148647 WN George H. Irwin, SBN 188463 we 100 Pringle Avenue, Suite 700 Walnut Creek, California 94596 => Telephone: (510) 433-1830 Facsimile: (866) 611-8690 THR ~ E-mail: barmstrong@dehay.com E-mail: bkaplan@dehay.com E-mail: girwin@dehay.com Attorneys for Defendant CSG RALPHS GROCERY COMPANY Oo 10 1 SUPERIOR .COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF ALAMEDA —- UNLIMITED JURISDICTION 13 MERIDITH A. EGLI, Case No: RG20075272 14 Plaintiff, DEFENDANT RALPHS GROCERY 15 VS. COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR 16 PERSONAL INJURY - ASBESTOS JOHNSON & JOHNSON, et al., 17 Action Filed: September 30, 2020 Defendants. 18 19 20 RALPHS GROCERY COMPANY (hereinafter referred to as “Defendant”), on its own 21 behalf and on behalf of no other entity answers Plaintiff's unverified Complaint for Personal 22 Injury— Asbestos (“Complaint”). S 2) 23 GENERAL DENIAL Se 24 Defendant generally denies the allegations in each and every cause of action to the@xtent 25 such allegations relate to it, its predecessors and/or its successors, and further denies that Plaintiff 26 has been damaged in the sums alleged, or in any other sum, or at all. DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS By alleging the matters set forth below, Defendant does not allege or admit that it has the burden of proof with respect to all such matters but, as for its further answers to the Complaint, WN by separate affirmative defenses, Defendant states: Qo FIRST AFFIRMATIVE DEFENSE > Plaintiff's Complaint, and each cause of action, fails or may fail to state a cause of action WN against this answering Defendant. A SECOND AFFIRMATIVE DEFENSE a Plaintiff's employers fully knew of and appreciated the risks and dangers at the time and 6 place of events and matters alleged in Plaintiff's Complaint and, notwithstanding such So 10 knowledge, voluntarily exposed Plaintiff to said risks and dangers, if any existed, and thereby 11 assumed all fault for damages and injuries to Plaintiff, and each of them, from all matters alleged 12 in the Complaint. 13 THIRD AFFIRMATIVE DEFENSE 14 Plaintiff's Complaint and every cause of action alleged therein is/are barred by California 15 Code of Civil Procedure § 340.2 or laches, or both. 16 FOURTH AFFIRMATIVE DEFENSE 17 Plaintiffs alleged injuries, losses or damages, if and to the extent they occurred, which 18 occurrence is expressly denied, were caused solely or contributed to by the faults of third parties 19 for which this answering Defendant is not responsible. 20 FIFTH AFFIRMATIVE DEFENSE 21 Plaintiffs alleged injuries, losses or damages, if and to the extent they occurred, which 22 occurrence is expressly denied, were caused solely or contributed to by her own carelessness, 23 recklessness, and/or negligence in failing to exercise reasonable care in the acts, events and 24 matters described in Plaintiff's Complaint. 25 /// 26 /// 2 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS SIXTH AFFIRMATIVE DEFENSE Plaintiff’s alleged injuries, losses, or damages, if and to the extent they occurred, were aggravated by her failure to use reasonable diligence to mitigate them. SEVENTH AFFIRMATIVE DEFENSE > Plaintiffs alleged injuries, losses or damages, if and to the extent they occurred, which WM A_ occurrence is expressly denied, were the result of Plaintiff's failure to use Defendant’s product(s) for the purpose intended or in the manner intended, and said use constituted an unforeseeable ~a misuse, unintended use, alteration or modification of said product(s). © EIGHTH AFFIRMATIVE DEFENSE eo 10 To the extent Plaintiffs alleged injuries, losses, or damages are asserted to result from an 11 alleged employment relationship with this answering Defendant, Plaintiffs claims are barred by 12 the exclusivity provisions of the California Labor Code. 13 NINTH AFFIRMATIVE DEFENSE 14 Plaintiffs alleged illnesses and injuries, if and to the extent they occurred, which 15 occurrence is expressly denied, were caused or contributed to by the negligence of Plaintiff 16) and/or her employer(s); and to the extent that Plaintiff has received or in the future she or her 17 heirs will receive, worker’s compensation benefits for such illnesses and/or injuries, this 18 answering Defendant is entitled to a comparative reduction in any economic damages sought by 19 Plaintiff or recovered by her in this action. 20 TENTH AFFIRMATIVE DEFENSE 21 Defendant alleges, on information and belief, the causes of action alleged in the 22 Complaint arose outside of California while Plaintiff was a non-resident and, pursuant to the 23 applicable statutes of limitations or repose where Plaintiff was then residing or working, the 24 Complaint is barred by the provisions of those statutes and by Code of Civil Procedure § 361. 25 /// 26 /// 3 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS ELEVENTH AFFIRMATIVE DEFENSE -— Plaintiffs claims are barred by California Code of Civil Procedure § 430.10, and/or the NY primary right doctrine, to the extent there is or was another action pending between the same wH parties on the same cause of action, and that Plaintiff improperly joined parties in this action, and fF that Plaintiff has failed to join indispensable parties. Nn TWELFTH AFFIRMATIVE DEFENSE A Defendant alleges that the risk of exposure to asbestos-containing products was inherent a2 in Plaintiff’s trade and work, and/or understood by Plaintiff. Under the doctrines of primary and C6 secondary assumption of risk, Plaintiff may not recover for harm caused by such inherent or: So understood risk. —) — THIRTEENTH AFFIRMATIVE DEFENSE —_ —_ Plaintiffs claims are barred by the applicable principles of waiver and estoppel. LS — FOURTEENTH AFFIRMATIVE DEFENSE oe) —_ Plaintiff’s claim for punitive damages violates this answering Defendant’s right to due we & process and equal protection as guaranteed by the Fourteenth Amendment to the United States el 74) Constitution and Article I, Section 7, of the California Constitution. — N FIFTEENTH AFFIRMATIVE DEFENSE ~] — Defendant contends that, to the extent Plaintiff seek to impose liability on Defendant as io] — successor-in-interest to any other defendant or entity, Defendant is not or may not be liable for \o = the acts or omissions of any such defendant or entity because Defendant did not become legally wu _— responsible or no longer is legally responsible for those alleged acts or omissions of any such WN — defendant or entity given the facts and circumstances of the pertinent transactions or is not or NN N may not be successor-in-interest, a successor-in-liability or an alternate entity for any such NHN HH defendant or entity Plaintiffs claim. >. NY /// an NY //1 ry Nn 4 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS SIXTEENTH AFFIRMATIVE DEFENSE N= Defendant contends that any products, materials or activities attributed to Defendants were, at all relevant times, conducted, designed, manufactured, packaged, labeled, marketed or WO used in conformity with the existing scientific, medical, industrial hygiene and consumer & knowledge, practice and state-of-the-art. mn SEVENTEENTH AFFIRMATIVE DEFENSE HA Parties to this action and/or nonparties, other than Defendant, were negligently or legally sa responsible, or otherwise at fault for any damages alleged in the Complaint, which damages are- © herein denied and therefore, in the event of any liability, whether by settlement or judgment in So favor of any other party against Defendant, the court or jury should apportion fault as to all i] —_ parties. Furthermore, Defendant requests a judgment and declaration of indemnification and —_ _ contribution against all other parties or persons in accordance with the apportionment of fault —_ nN between the parties. re) —_ EIGHTEENTH AFFIRMATIVE DEFENSE —_ > All activities of this answering Defendant alleged in the Complaint, conform to statutes, i nn governmental regulations, and industry standards based upon the state of knowledge existing at fay — the time alleged in the Complaint and each cause of action therein. —_ ~I NINETEENTH AFFIRMATIVE DEFENSE io] —_ Any injuries resulting from the use of the subject products, which injuries are herein it \o denied, were not foreseeable to this answering defendant given the state of knowledge and state i=] Nw of art at the time of the alleged injuries. re — TWENTIETH AFFIRMATIVE DEFENSE No N Defendant is liable, if at all, only for its proportionate share of liability/damages as set Ge N forth by California Civil Code §§ 1431 et seq. N = /// nn N //1 Ne N 5 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS TWENTY-FIRST AFFIRMATIVE DEFENSE A conflict in law exists as Plaintiffs’ claimed exposure to asbestos is alleged to have N occurred outside the jurisdiction of this Court, and therefore the laws of another jurisdiction F_W apply as between Plaintiff and Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE Nn Defendant contends that any products, materials or activities attributed to Defendant were DA at all relevant times designed, manufactured, packaged, labeled, marketed, used, or conducted in wT accordance with specifications imposed by its codefendants and/or in compliance with applicable C6 statutes, codes, regulations, standard or specifications of the U.S. Government and/or the State of oOo 10 California. 11 TWENTY-THIRD AFFIRMATIVE DEFENSE 12 Defendant adopts and incorporates the applicable affirmative defenses asserted by any 13 other defendant to this action and reserves the right to add or amend their answers and 14 affirmative defenses during the course of this action to conform to the proof at trial 15 //] 16 /// 17 /// 18 /// 19 //1 20 /// 21 //1 22 /T/ 23 //1 24 /// 25 /// 26 /// 6 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS @ S WHEREFORE, having fully responded to the subject Complaint, answering Defendant prays: WL 1. That Plaintiff take nothing by reason of the operative Complaint on file HH herein; Fr 2. That Defendant has judgment of dismissal; mn 3. That Defendant be awarded reasonable attorneys’ fees and costs incurred Hn herein; 4. That if Defendant is found liable, that the degree of responsibility and liability for the resulting damages be determined and apportioned in accordance with California 10 Civil Code §§ 1431, et seg.; and 11 5. For such other and further relief as the Court may deem just and proper. 12 DATED: November 23, 2020 13 DEHAY & ELLISTON, LLP — el Baas 14 15 16 o» Po Bra P. Kap Attorneys for Defendant Ralphs Grocery Company 17 18 19 20 21 22 23 24 25 26 7 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS PROOF OF SERVICE BY ELECTRONIC TRANSMISSION Meredith A. Egli vs. Johnson & Johnson, et al. - WN Alameda County Superior Court, Civil Action No. RG20075272 WwW I, Beth D. Self, declare that am, and was at the time of service of the document & herein referred to, over 18 years of age, not a party to this action and a citizen of the United wa States. I am employed in the County of Contra Costa, California by DeHay & Elliston, LLP and RH my work email address is bself@dehay.com and my work mailing address is 100 Pringle Avenue, Suite 700, Walnut Creek, California 94596. On November 23, 2020, I electronically served the following document by File & 10 ServeXpress: 1 DEFENDANT RALPHS GROCERY COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS 12 13 I served the recipients designated on the Transaction Receipt located on the File 14 & ServeXpress website. 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct and that this declaration was executed on November 23, 2020, at 17 Walnut Creek, California. 18 19 Brith Odo Beth D. Self /: 20 21 22 23 24 25 26 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION