`
`LISA L. OBERG (SBN 120139)
`Lisa.Oberg@huschblackwell.com
`JENNIFER J. LEE (SBN 203774)
`Jennifer.Lee@huschblackwell.com
`DANIEL B. HOYE (SBN 139683)
`Daniel.Hoye@huschblackwell.com
`HUSCH BLACKWELL LLP
`1999 Harrison St., Suite 700
`Oakland, CA 94612
`Telephone:
`510.768.0650
`Facsimile:
`510.768.0651
`Attorneys for Defendant
`THE PEP BOYS MANNY, MOE & JACK
`OF CALIFORNIA LLC formerly known as
`THE PEP BOYS – MANNY, MOE &
`JACK OF CALIFORNIA
`
`
`
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`04/12/2023
`Clerk of the Court
`BY: CAROL BALISTRERI
`Deputy Clerk
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`COUNTY OF SAN FRANCISCO
`
` CASE NO. CGC-23-277103
`ANSWER OF DEFENDANT, THE PEP BOYS
`MANNY, MOE & JACK OF CALIFORNIA LLC
`FORMERLY KNOWN AS THE PEP BOYS –
`MANNY MOE & JACK OF CALIFORNIA, TO
`PLAINTIFFS’ COMPLAINT FOR SURVIVAL,
`WRONGFUL DEATH – ASBESTOS
`
`
`KEVIN JOHNSON, as Successor-in-Interest
`to and as Wrongful Death Heir of
`MARGARET JOHNSON, Deceased; and
`MARLA JOHNSON, TYRA SWEIGART,
`SHANEE OSBORNE, and the Estate of
`OSCAR JOHNSON, as Wrongful Death Heirs
`of MARGARET JOHNSON, Deceased,
`Plaintiff,
`
`v.
`GENERAL ELECTRIC COMPANY, et al.,
`Defendants.
`
`
`
`
`Defendant PEP BOYS, MANNY MOE & JACK OF CALIFORNIA LLC, f/k/a THE PEP
`BOYS – MANNY, MOE & JACK OF CALIFORNIA, for itself and for no other defendant,
`(hereinafter “answering Defendant” or “Defendant”) answers the complaint of Plaintiffs KEVIN
`
`The use of “plaintiff” shall refer to both plaintiff in the singular and plural, as appropriate.
`
`
`
`
`
`
`
`1
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`
`

`

`
`
`JOHNSON, as Successor-in-Interest to and as Wrongful Death Heir of MARGARET JOHNSON,
`Deceased; and MARLA JOHNSON, TYRA SWEIGART, SHANEE OSBORNE, and the Estate of
`OSCAR JOHNSON, as Wrongful Death Heirs of MARGARET JOHNSON, as follows:
`1.
`Pursuant to California Code of Civil Procedure section 431.30(d), answering
`defendant denies, both generally and specifically, each and every allegation contained in the
`complaint, and each cause of action therein, and each paragraph of each cause of action, and
`denies that, as a direct and proximate result or any result of any tortious conduct on the part of this
`defendant, plaintiff has been or will be injured or damaged in the manner and amount alleged or in
`any manner or amount whatsoever.
`2.
`Answering defendant denies that, by reason of any act or omission, fault, conduct,
`or liability on the part of answering defendant, plaintiff has been injured or damaged in the manner
`and amounts alleged or in any manner or amount whatsoever, and denies that this answering
`defendant or any of its agents, servants or employees, or anyone acting for or on its behalf was
`negligent, careless, reckless, or otherwise breached any duty owed to plaintiff, whether as alleged
`or otherwise.
`FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`3.
`Alleges that the complaint, and each and every cause of action therein, is barred by
`the applicable statute of limitations, California Code of Civil Procedure section 335.1.
`FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`4.
`Alleges that the complaint, and each and every cause of action therein, is barred by
`the applicable statute of limitations, California Code of Civil Procedure sections 340.2(a)(1)
`340.2(a)(2), 340.2(c)(1) and 340.2(c)(2).
`FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`5.
`Alleges that the product involved was materially altered or changed by a party or
`parties other than, and without the permission of, this answering defendant, its employees,
`servants, or other agents, such alteration or change creating the alleged defect, if any, which was
`the proximate or legal cause of plaintiff’s injuries, or damages, if any.
`
`
`
`
`
`2
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

`
`
`FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`6.
`Alleges that the defect in the product, if any, was known to plaintiff’s decedent,
`who used said product after full knowledge of said alleged defect; that, as a result, plaintiff is
`barred from recovery herein, proportionately, or totally, in that plaintiff’s decedent voluntarily
`exposed himself and his property to a known danger and thereby assumed the risk of any injury or
`damage resulting from that injury.
`FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`7.
`Alleges that plaintiff’s complaint, and each and every cause of action therein based
`upon warranty or breach thereof, is barred as a result of failure of plaintiff to give notice required
`under Commercial Code section 2607(3)(a).
`FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`8.
`Alleges that the product was improperly maintained and cared for by plaintiff’s
`decedent or his employer or agents; that such improper maintenance and care created the defect, if
`any, that was the proximate or legal cause of plaintiff’s injuries and damages, if any; that such
`improper maintenance and care was unforeseeable to this answering defendant; and that plaintiff’s
`claim is thereby reduced by the percentage of all responsibility attributable to plaintiff’s decedent,
`his employer or other agents by virtue of said improper maintenance and care.
`FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`9.
`Alleges that the complaint, and each and every cause of action therein, is barred by
`the applicable statute of limitations, Code of Civil Procedure section 338(d).
`FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`10.
`Alleges that the loss, injury, or damage, if any, incurred by plaintiff was the result
`of superseding or intervening causes arising from negligent or willful acts or omissions by parties
`which defendant neither controlled nor had the right to control, and said losses, injuries, or
`damages were not proximately or legally caused by any act, omission, or other conduct of
`defendant.
`
`
`
`
`
`3
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

`
`
`FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`11.
`Alleges that the plaintiff’s decedent failed to mitigate his damages, if any, in that he
`/she failed to use reasonable diligence in caring for his injuries and reasonable means to prevent
`their aggravation or to accomplish their healing.
`FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`12.
`Alleges that, if this defendant is responsible to plaintiff, which responsibility is
`expressly denied, this defendant shall be liable to plaintiff only for the amount of non-economic
`damages allocated to this defendant in direct proportion to this defendant’s percentage of fault, if
`any.
`FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`13.
`Alleges that plaintiff’s claims are barred by the doctrine of laches.
`FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`14.
`Alleges that if the products described in the complaint were manufactured or
`distributed by defendant, they were manufactured or distributed in accordance with specifications
`and requirements supplied to defendant by persons other than defendant, including, but not limited
`to, the government of the United States of America. Any defect in said products was caused by
`deficiencies in said mandatory specifications and requirements supplied to defendant, which
`deficiencies were neither known to defendant nor discoverable by defendant with the exercise of
`reasonable care.
`FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`15.
`Alleges that plaintiff’s decedent was not in privity with defendant and, therefore,
`plaintiff may not rely upon the theory of any alleged breach of express or implied warranty.
`FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`16.
`Alleges that any exposure of plaintiff’s decedent to defendant’s products was so
`minimal as to be insufficient to establish to a reasonable degree of probability that any such
`product caused any alleged injury, damage, or loss to plaintiff’s decedent or plaintiff.
`
`
`
`
`
`4
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

`
`
`FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`17.
`Alleges that if defendant has purportedly been named or served in this action as a
`Doe defendant, such effort by plaintiff is invalid on the ground that plaintiff knew or should have
`known of the identity of the defendant and the plaintiff’s alleged causes of action against
`defendant at the time of the filing of the complaint.
`FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`18.
`Is informed and believes, and upon such information and belief alleges that
`plaintiff’s decedent was negligent, careless, reckless, and acted unlawfully in the use, control,
`direction and application of his bodily movements and the equipment, safety devices, and other
`facilities supplied to him, and existing as a part of his environment, and the injuries, if any, and
`damages, if any, were directly and proximately caused and contributed to by his own negligence.
`FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`19.
`Is informed and believes and upon such information and belief alleges that
`plaintiff’s decedent misused the product and used same after knowledge of defect, if any, existing
`therein.
`FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`20.
`Alleges that the plaintiff’s decedent’s employer so negligently, carelessly,
`recklessly, and unlawfully directed, controlled, and supplied plaintiff’s decedent and plaintiff’s
`decedent’s co-employees with a working environment, including safety and protective equipment,
`clothing or the lack thereof, so as to directly and proximately cause and contribute to the injuries
`in question, if the same do exist, and to the extent that any sum or sums have been paid to plaintiff
`or plaintiff’s decedent by said employer, this claim is barred thereby.
`FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`21.
`Alleges that the complaint, and each and every cause of action therein, fails to state
`facts sufficient to constitute a cause of action against defendant and is barred by the provisions of
`Labor Code section 3600.
`
`
`
`
`
`5
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

`
`
`FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`22.
`Alleges that the complaint, and each and every cause of action therein, fails to state
`facts sufficient to constitute a cause of action against defendant and is barred by the provisions of
`Labor Code section 3601.
`FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`23.
`Alleges that the complaint, and each and every cause of action therein, fails to state
`facts sufficient to constitute a cause of action against defendant and is barred by the provisions of
`Labor Code section 3602.
`FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`24.
`Alleges that the complaint, and each and every cause of action therein, fails to state
`facts sufficient to constitute a cause of action against answering defendant upon which relief can
`be granted.
`FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`25.
`Alleges that the statutory authority, including but not limited to California Civil
`Code section 3294, pursuant to which plaintiff claims punitive damages is invalid on its face
`and/or as applied to this defendant pursuant to the First, Fifth, Eighth and Fourteenth Amendments
`to the Constitution of the United States and Article I of the Constitution of the State of California.
`FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`26.
`Alleges that, insofar as the Complaint alleges punitive damages against defendant,
`such damages are not permitted in actions based upon wrongful death.
`FOR A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`27.
`Alleges that plaintiff’s action is barred by the provisions of California Code of
`Civil Procedure section 361 in that plaintiff’s claims arose in another state or foreign country, and
`by the laws thereof an action cannot be maintained against this answering defendant.
`FOR A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`28.
`Alleges that the instant action is barred by the rule against splitting a cause of
`
`action.
`
`
`
`
`
`6
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

`
`
`FOR A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`29.
`Alleges that plaintiff is collaterally estopped or barred by the doctrine of res
`judicata from maintaining this action and/or seeking damages against this answering defendant.
`FOR A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`30.
`Alleges that defendant is not a successor, successor in business, successor in
`product line or portion thereof, assign, predecessor in product line or portion thereof, parent, alter-
`ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in any
`entity owning property, maintaining premises, researching, studying, manufacturing, fabricating,
`designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
`servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding,
`manufacturing for others, packaging or advertising any asbestos-containing or silica-containing
`products. Defendant is therefore not liable for any acts, whether they be active or passive, or
`omissions of any entities to which defendant is or may be alleged to be a successor-in-interest,
`predecessor-in-interest, alter-ego or the like.
`FOR A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`31.
`Alleges plaintiff’s claims, causes of action, theories of liability and matters alleged
`in this complaint are barred by the doctrine of accord and satisfaction as plaintiff has reached an
`accord with defendant regarding this litigation.
`FOR A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`32.
`Alleges that plaintiff has released, settled, entered into an accord and satisfaction,
`or otherwise compromised the claims herein, and accordingly, said claims are barred.
`FOR A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
`33.
`Alleges that plaintiff’s decedent and/or the purchaser or user of the product at issue
`was sufficiently knowledgeable, informed and or trained and knew or should have known of the
`potential danger associated with the risk of exposure to asbestos from the course of his/her work,
`and the claims are therefore barred under the sophisticated user doctrine, pursuant to the California
`Supreme Court’s opinion in William Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.
`
`
`
`
`
`7
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

`
`
`WHEREFORE, defendant prays for judgment herein, for costs of suit incurred herein, and
`for such other and further relief as the court may deem just and proper.
`DEMAND FOR JURY TRIAL
`Defendant hereby demands a trial by jury on all issues triable by a jury in the above-
`entitled action.
`
`Dated: April 12, 2023
`
`
`
`
`HUSCH BLACKWELL LLP
`
`
`By:
`
`LISA L. OBERG
`JENNIFER J. LEE
`DANIEL B. HOYE
`
`
`Attorneys for Defendant
`THE PEP BOYS MANNY, MOE & JACK OF
`CALIFORNIA LLC formerly known as THE PEP
`BOYS – MANNY, MOE & JACK OF
`CALIFORNIA
`
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`1 2 3 4 5 6 7 8 9
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`8
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`

`

`
`
`PROOF OF SERVICE VIA FILE&SERVEXPRESS
`I am a citizen of the United States and employed in Alameda County, California. I am over
`the age of eighteen years and not a party to the within-entitled action. My business address is 1999
`Harrison St., Suite 700, Oakland, CA 94612.
`On April 12, 2023, I electronically served the document(s) via FILE&SERVEXPRESS
`described as:
`
`ANSWER OF DEFENDANT, THE PEP BOYS MANNY,
`MOE & JACK OF CALIFORNIA LLC FORMERLY
`KNOWN AS THE PEP BOYS – MANNY MOE & JACK
`OF CALIFORNIA, TO PLAINTIFFS’ COMPLAINT FOR
`SURVIVAL, WRONGFUL DEATH – ASBESTOS
`on the recipients designated on the Transaction Receipt located on the FILE&SERVEXPRESS
`website. I declare under penalty of perjury pursuant to the laws of the State of California that the
`foregoing is true and correct and was executed on April 12, 2023, at Oakland, California.
`
`
`
`
`
`
`ROSE MANABAT
`
`
`
`
`
`9
`Answer Of Defendant, The Pep Boys Manny, Moe & Jack of California LLC formerly known as The Pep Boys – Manny Moe & Jack of California,
`To Plaintiffs’ Complaint For Survival, Wrongful Death – Asbestos
`
`1 2 3 4 5 6 7 8 9
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`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
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`1999 HARRISON ST., SUITE 700, OAKLAND, CA 94612
`
`HUSCH BLACKWELL LLP
`
`(510) 768-0650
`
`