Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 30, 2021

Gordon Rees Scully Mansukhani, LLP 275 Battery Streeet, Sulte 2000 San Francisco, CA 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381 528 Santa Clara - Civil J. DOMINIC CAMPODONICO (SBN 188035) E'ec"°"'°a"y Fl'ed GORDON REES SCULLY MANSUKHANI, LLP by $”Per'0’ CW” °f CA, 275 Battery Street, Suite 2000 County 0f Santa C'aras San Francisco, CA 941 11 0n 10/28/2021 5:01 PM Tel: (415) 986-5900 Reviewed By: J. Ngo Fax: (415.) 986-8054 Case #21 CV381 528 dcampodonlco@grsm.com Envelope: 7561 503 Attorneys for Defendant TYCO FIRE PRODUCTS, LP SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA CALIFORNIA MUTUAL INSURANCE CASE NO. 2 1CV3 8 1 528 COMPANY, INC., DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION Plaintiff, VS. limited company; A TOTAL FIRE PROTECTION COMPANY, INC., a California corporation; and DOES 1 through 20, inclusive, Defendants. ) ) ) ) ) ) JOHNSON CONTROLS plc, a foreign public g ) ) ) ) ) Complaint Filed: March 30, 2021 ) COMES NOW Defendant Tyco Fire Products LP (hereinafter referred to as “Tyco”) by and through undersigned counsel, and states as follows for its Answer t0 California Mutual Insurance Company’s Complaint for Damages in Subrogation: GENERAL DENIAL Pursuant to California Code 0f Civil Procedure Section 43 1 .30(d), Tyco generally and specifically denies each and every allegation contained in Plaintiff’ s Complaint for Damages in Subrogation, and each and every alleged cause 0f action therein, and further denies that Plaintiff is entitled to any of the relief requested, that Tyco committed any wrongful conduct 0r omission, -1- DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION . Ngo Gordon Rees Scully Mansukhani, LLP 275 Battery Streeet, Sulte 2000 San Francisco, CA 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Whether alleged 0r otherwise, and that any conduct 0f Tyco caused any injury 0r damage t0 Plaintiff in the sum or manner alleged, or in any other sum or manner, 0r at all. AFFIRMATIVE DEFENSES Tyco sets forth below its affirmative defenses. By setting forth these affirmative defenses, Tyco does not assume the burden of proving any fact, issue 0r element 0f a cause of action whereby such burden 0f pleading 0r proof would otherwise rest 0n Plaintiff. Moreover, nothing stated herein is intended 0r shall be construed as an acknowledgement that any particular issue 0r subj ect is relevant to Plaintiff s allegations. FIRST AFFIRMATIVE DEFENSE (Failure t0 State a Claim) The Complaint fails to state a claim against Tyco upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE (Failure t0 Mitigate) To the extent the Plaintiff sustained damages, which is denied, Plaintiff s claims are barred, in whole 0r in part, because they failed t0 mitigate those damages t0 the extent required. THIRD AFFIRMATIVE DEFENSE (Comparative Fault) If Plaintiff sustained damages, Which is denied, such damages were directly and proximately caused by Plaintiff’ s and/or other third parties’ negligence and their recovery, if any, should be reduced in proportion t0 their comparative fault. FOURTH AFFIRMATIVE DEFENSE (Comparative Fault OfOthers) If Plaintiff sustained damages, which is denied, such damages were directly and proximately caused by the comparative fault of others, Whether or not parties t0 this action, and recovery, if any, should be reduced in proportion t0 the comparative fault of those others. FIFTH AFFIRMATIVE DEFENSE (Superseding 0r Intervening Cause) If Plaintiff sustained damages, Which is denied, such damages were caused by the -2- DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION Gordon Rees Scully Mansukhani, LLP 275 Battery Streeet, Sulte 2000 San Francisco, CA 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unforeseeable acts, wrongs or omissions by intervening or superseding actions of third parties over which Tyco had no control and for Which Tyco is not responsible. SIXTH AFFIRMATIVE DEFENSE (Statute ofLimitations) The Plaintiff s Complaint is barred by the applicable statute of limitations. SEVENTH AFFIRMATIVE DEFENSE (Lack ofProximate Cause) The claims Plaintiff” s Complaint are barred because such alleged damages or injuries, if any, were actually or proximately caused by the intervening 0r superseding conduct of person(s) 0r entities over Which Tyco had n0 control. EIGHTH AFFIRMATIVE DEFENSE (Estoppel and/or Quasi-Estoppel) Plaintiff is estopped from asserting any claims for damages or seeking any other relief whatsoever against Tyco by their own acts. NINTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived and/or released all claims, if any, against Tyco by their own acts. TENTH AFFIRMATIVE DEFENSE (Laches) Plaintiff s claims are barred in whole or in part by the doctrine of laches. ELEVENTH AFFIRMATIVE DEFENSE (Warranty) Tyco’s limited warranty precludes any liability for the damages alleged in the Complaint for Damages. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer) Tyco effectively disclaimed, excluded, or limited any alleged or express 0r implied warranties, and, therefore, any recovery is limited to the terms, provisions, and conditions 0f the -3- DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION Gordon Rees Scully Mansukhani, LLP 275 Battery Streeet, Sulte 2000 San Francisco, CA 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 warranties, if any, provided by Tyco to Plaintiff, and/or other third parties. THIRTEENTH AFFIRMATIVE DEFENSE (Indemnification/Contribution) To the extent that Plaintiff seeks indemnification and/or contribution from Tyco for its damages, such damages were caused in whole or in part by the negligence of Plaintiff, and/or other third parties and Tyco was in n0 way at fault. FOURTEENTH AFFIRMATIVE DEFENSE (Proposition 51 - Fair Responsibility Act 0f1986) (Several Liabililyfor Non-Economic Damages) Tyco alleges that Plaintiff’ s injuries or damages, if there were any, were the result of the negligence and faults, if any, of other parties to this action. Tyco’s liability is limited to its own percentage share 0f liability, if any, which is expressly denied and contested, subj ect to California Civil Code §§1431 et seq. Specifically, pursuant to the provisions of Civil Code section 1431.2, the liability, if any, of Tyco for non-economic damages shall be several rather than joint, and Tyco shall be liable, if at all, for non-economic damages commensurate with the percentage of liability allocated by the trier of fact. FIFTEENTH AFFIRMATIVE DEFENSE (Set-Ofi? Recovery against Tyco, if any, should be reduced by any settlement, judgment, or payment 0f any kind received from any other individual or entity in connection with the subj ect matter of the incident described in the Complaint Damages. SIXTEENTH AFFIRMATIVE DEFENSE (N0 Reliance) Plaintiff did not rely upon any alleged warranty and, therefore, any recovery by Plaintiff under any theory of warranty is barred. SEVENTEENTH AFFIRMATIVE DEFENSE (Alteration ofProduct) The “Product” described in the Plaintiff” s Complaint was not in the same condition at the -4- DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION Gordon Rees Scully Mansukhani, LLP 275 Battery Streeet, Sulte 2000 San Francisco, CA 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time 0f the events, injuries, and damages alleged in the Complaint as When it left the custody and possession of Tyco and, therefore, any recovery by Plaintiff is barred. EIGHTEENTH AFFIRMATIVE DEFENSE (Misuse ofProduct) Any alleged defect in the “Product” described in Plaintiff s Complaint developed as a result of unforeseeable misuse, abuse, abnormal use, alterations, changes, modifications 0r improper maintenance 0r repairs made t0 the system described in Plaintiff’ s Complaint after it left the possession and control 0f Tyco by persons or entities over Which Tyco had no control and, therefore, any recovery by Plaintiff against Tyco is barred. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Give Notice) Plaintiff failed to give Tyco timely notice 0f any alleged breach 0f warranty. TWENTIETH AFFIRMATIVE DEFENSE (Spoliation ovaidence) Tyco’s rights, including the right t0 due process, have been violated as a result 0f the actions 0f Plaintiff and/or third parties Who have negligently, willfully, and/or recklessly destructed, significantly altered, and/or failed to preserve evidence critical to Tyco’s defense which offends the notion of fairness and justice. Tyco reserves its rights to seek all types 0f remedial relief as a result of said actions. TWENTY-FIRST AFFIRMATIVE DEFENSE (Lack ofDefect) Plaintiff’ s causes 0f action are barred, in Whole or in part, by the lack 0f a defect since the subj ect product was properly prepared in accordance with the applicable standard of care and was not defective, was reasonably fit, suitable, and safe for its intended purpose, and was not unreasonably dangerous. / / / / // -5- DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION Gordon Rees Scully Mansukhani, LLP 275 Battery Streeet, Sulte 2000 San Francisco, CA 94111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Consumer Expectation/Risk Benefit) The consumer expectations test does not apply in this case because the alleged defect claim involves complex questions of feasibility, practicality, risk, and benefit beyond the common knowledge ofjurors. Accordingly, California requires application of the risk benefit test, under which the subj ect product’s design was not a substantial factor in causing harm t0 Plaintiff and the benefits of the product’s design outweighs the risks 0f the design. Nevertheless, in the event the Court did apply the consumer expectations test, then Plaintiff s product liability causes 0f action are barred because the subj ect product was consistent with or exceeded consumer expectations. Notwithstanding the Claims and contentions of Plaintiff, Plaintiff received all or substantially all of the benefit from the subj ect product Plaintiffhoped and intended to receive, and, to that extent, any damages and/or restitution Plaintiff might be entitled to recover from Defendant must be correspondingly reduced. TWENTY-THIRD AFFIRMATIVE DEFENSE (State-of-the-Art) Plaintiff cannot recover under the Complaint because Defendant’s product was in conformity with the generally recognized state-of-the-art at the time it was designed, manufactured, packaged, and labeled. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Defenses 0f0thers) Tyco incorporates and asserts as if set forth herein all affirmative defenses asserted by other defendants in this matter and reserves the right t0 assert such other and further defenses as the course of the investigation and discovery shall dictate. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Tyco reserves the right to rely on any other defenses that become available during the discovery proceedings in this case and reserves the right to amend its answer t0 assert any such defense. -6- DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION Gordon Rees Scully Mansukhani, LLP 275 Battery Streeet, Sulte 2000 San Francisco, CA 94111 A “GNU! 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRAYER FOR RELIEF WHEREFORE, Defendant Tyco Fire Products LP having fully answered the Complaint for Damages in Subrogation of California Mutual Insurance Company, prays as follows: 1. That Plaintiff take nothing by way 0f its Complaint and that judgment be entered in favor 0f Tyco. 2. That Defendant Tyco Fire Products LP recover its costs, disbursements and any applicable attorneys’ fees; and 3. For such other and further relief as this Court deems just and proper. DEMAND FOR JURY TRIAL This answering Defendant hereby demands a trial by jury in the above-entitled action. Dated: August 30, 2021 GORDON REES SCULLY MANSUKHANI, LLP i ”Z? F, T’Dominic Gampodonico Attorneys for Defendant/Cross-Defendant TYCO FIRE PRODUCTS LP By: -7- DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION 1 2 3 4 5 6 7 8 9 10 m 11 d O §§ : 12 .fi o H g: g 13 a ‘35 g g Q. 14 bfi a E‘ w '5 £ b 5 15 m 3 a a 16 5 '“ w E [a 17 c3 18 19 20 21 22 23 24 25 26 1240314/59804682v‘1 27 28 PROOF OF SERVICE California Mutual Insurance Company v. Johnson Controls plc, et al. Santa Clara County Superior Court, Case N0. 21CIV381528 I am a resident 0f the State of California, over the age 0f 18 years, and not a party to the Within action. My business address is Gordon Rees Scully Mansukhani, LLP, 275 Battery Street, Suite 2000, San Francisco, California 941 1 1. On the date below, I served the within document(s): DEFENDANT TYCO FIRE PRODUCTS LP’S ANSWER TO COMPLAINT FOR DAMAGES IN SUBROGATION ONLY BY ELECTRONIC TRANSMISSION: Only by e-mailing the document(s) t0 the persons at the e-mail address(es) listed based on notice provided on March 16, 2020 that, during the Coronavirus (Covid-19) pandemic, this office will be working remotely, not able t0 send physical mail as usual, and is therefore using only electronic mail. N0 electronic message 0r other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. Attorneysfor Plaintiff Attorneysfor Defendant/Cross-complainant California Mutual Insurance Company A Total Fire Protection Company, Inc. Robert E. Wall, Esq. Candice N. Hamant, Esq. THE GRUNSKY LAW FIRM PC Stephanie M. Drenski, Esq. 240 Westgate Drive TYSON & MENDES LLP Watsonville, CA 95076 371 Bel Marin Keys Boulevard, Suite 100 Tel: 83 1-722-2444 Novato, CA 94949 Fax: 83 1-722-6153 Tel: 628-253-5070 rewall@grunsky1aw.com Fax: 4 1 5-785-3 165 chamant@tysonmendes.com sdrenski@tysonmendes.com I declare under penalty of perjury under the laws of the State of California that the above is true and correct. C lifornia.Executed on August 30, 2021, at San Francisco,/ Wag Von Weeks -1- PROOF OF SERVICE