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STUART KANE LLP
Lawyers
NewroaY Besct
ROBERT J. KANE, State Bar No. 50856
rkane@stuartkane.com
SHANE P. CRIQUI, State Bar No. 259045
scriqui@stuartkane.com
STUART KANE LLP
620 Newport Center Drive, Suite 200
Newport Beach, California 92660
Tel: (949) 791-5100
Fax: (949) 791-5200
Attorneys for Defendants
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of San Francisco
07/19/2018
Clerk of the Court
BY:BOWMAN LIU
Deputy Clerk
ACCENTCARE, INC, AND ACCENTCARE HOME
HEALTH OF CALIFORNIA, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO - CIVIC CENTER COURTHOUSE
MAGDALENA LANUZA, an individual, on
behalf of herself and on behalf of all persons
similarly situated,
Plaintiff,
Vv.
ACCENTCARE, INC., a Corporation;
ACCENTCARE HOME HEALTH OF
CALIFORNIA, INC.; a California Corporation;
and DOES 1 through 50, inclusive,
Defendants.
1
CASE NO.: CGC-18-565521
Honorable Teri L. Jackson
Department 610
DEFENDANTS’ ANSWER TO FIRST
AMENDED COMPLAINT
Complaint Filed: April 4, 2018
1st Amended Comp. Filed: June 11, 2018
Trial Date: Not Set
DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
4469752v1 / 014206.0053STUART KANE LLP
LAWYERS
Newvont BeAct
Defendants AccentCare, Inc. and AccentCare Home Health of California, Inc.
(“Defendants”), appearing for themselves and no other defendants, answer the unverified first
amended complaint (the “FAC”) filed by plaintiff Magdalena Lanuza (“Plaintiff”), an individual,
on behalf of herself and on behalf of all persons similarly situated, and admit, deny, and allege as|
follows:
GENERAL DENIAL
Pursuant to California Code of Civil Procedure § 431.30(d), Defendants deny each and
every allegation in the FAC and further deny specifically that Plaintiff or any allegedly aggrieved
persons are entitled to any relief sought in the FAC, or have suffered or are entitled to recover
damages in the amount or manner alleged in the FAC, or in any other amount or manner, or at
all.
Without assuming any burden of proof that would otherwise rest on Plaintiff and the
putative class, Defendants assert the following affirmative defenses:
FIRST AFFIRMATIVE DEFENSE
(Failure To State A Claim)
Each cause of action in the FAC fails to state facts sufficient to constitute a cause of
action.
SECOND AFFIRMATIVE DEFENSE
(Failure To Exhaust Administrative Remedies)
Each cause of action in the FAC is barred to the extent that Plaintiff and the members of
the putative class alleged in the FAC failed to exhaust their administrative remedies with respect
to all the allegations in the FAC.
//1
2
DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
4469752v1 / 014206.005328
STUART KANE LLP
Lawyers
Neweont Bescu
THIRD AFFIRMATIVE DEFENSE
(Statute Of Limitations)
Each cause of action in the FAC is barred by the applicable one-year statute of limitations
of California Code of Civil Procedure § 340.
FOURTH AFFIRMATIVE DEFENSE
(PAGA Notice Defective)
Each cause of action in the FAC is barred to the extent that Plaintiff did not give proper
written notice to the LWDA of the specific provisions of the California Labor Code that are
alleged to have been violated.
FIFTH AFFIRMATIVE DEFENSE
(Res Judicata / Collateral Estoppel)
Each cause of action in the FAC is barred, in whole or in part, by the doctrine of res
judicata and/or collateral estoppel due to an Order and Judgment signed by the Honorable
Timothy B. Taylor, San Diego County Superior Court, dated June 29, 2017, which provides that
“Plaintiff, the LWDA and any employee or other person acting as a private attorneys general on
the LWDA’s behalf, have released and forever discharged the Released Parties from and
regarding the PAGA Released Claims for the PAGA Period.”
SIXTH AFFIRMATIVE DEFENSE
(Unmanageability)
Each cause of action in the FAC is barred in that it would require an individualized
inquiry regarding each purportedly “aggrieved employee” at issue and therefore the case is
unmanageable.
Mt
3
DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
4469752v1 / 014206.005328
STUART KANE LLP
Lawyers
Neweont Brac
SEVENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
Each cause of action in the FAC is barred to the extent that Plaintiff lacks standing and is
not an “aggrieved employee.”
EIGHTH AFFIRMATIVE DEFENSE
(Unclean Hands)
Each cause of action in the FAC is barred by the doctrine of unclean hands.
NINTH AFFIRMATIVE DEFENSE
(Good Faith Dispute)
Each cause of action in the FAC is barred on the grounds that a good faith dispute existed|
as to whether Plaintiff or any member of the putative class were entitled to any additional
compensation at the time of termination or at any time.
TENTH AFFIRMATIVE DEFENSE
(Personal Attendant Exemption)
Each cause of action in the FAC is barred because Care Partners were properly classified
as personal attendants under !WC Wage Order 15 and so exempt from the meal period and rest
period requirements of California law.
ELEVENTH AFFIRMATIVE DEFENSE
(Not an Employer)
Each cause of action in the FAC is barred, in whole or in part, because AccentCare Home
Health of California, Inc. was not an employer of any Care Partners.
Mf
4
DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
4469752v1 / 014206.005326
STUART KANE LLP
Lawyers
NewiarT Beacon
ADDITIONAL AFFIRMATIVE DEFENSES
Defendants presently have insufficient knowledge or information on which to form a
belief as to whether they may have additional, unstated affirmative defenses. Defendants reserve
the right to file an amended answer asserting additional affirmative defenses in the event that
investigation or discovery indicates that it is appropriate.
PRAYER FOR RELIEF
WHEREFORE, Defendants pray for relief as set forth below:
1. For a judgment and order that Plaintiff and each person alleged to be an aggrieved
employee in the FAC take nothing by way of the FAC;
2. For a judgment and order that Plaintiffs FAC be dismissed with prejudice;
3. For an award of costs, including reasonable attorney’s fees, to Defendants;
4, For such other and further relief as the Court deems just and proper.
Dated: July 19, 2018 STUART KANE\LLP
By:
ROBERT J. KANE
SHANE P. CRIQUI
Attomeys for Defendants
ACCENTCARE, INC. AND ACCENTCARE
HOME HEALTH OF CALIFORNIA. INC.
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DEFENDANTS” ANSWER TO FIRST AMENDED COMPLAINT
4469752v1 / 014206,005328
STUART KANE LLP
Newvonr Brae
PROOF OF SERVICE
Magdalena Lanuza v. AccentCare, Inc., et al.
Case No, CGC-18-565521
I am employed in the County of Orange, State of California. I am over the age of 18 and
am not a party to the within action. My business address is 620 Newport Center Drive, Suite
200, Newport Beach, California 92660, On July 19, 2018, I served the foregoing document
described as follows:
DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
& By United States Mail: I am readily familiar with the firm’s practice for collection
and processing correspondence for mailing. Under that practice it would be deposited
with the U.S. postal service on that same day with postage thereon fully prepaid at
Newport Beach, California, in the ordinary course of business. I enclosed the above-
referenced document(s) in a sealed envelope or package addressed to the person(s) at
the address(es) as set forth below, and following ordinary business practices above I
placed the package for collection and mailing the date and at the place of business set
forth below,
Oo By Overnight Delivery: I enclosed the documents in an envelope or package provided
by an overnight delivery carrier and addressed to the person(s) at the address(es) listed
below. I placed the envelope or package for collection and overnight delivery at an
office or a regularly utilized drop box of the overnight delivery carrier.
Oo By Messenger Service: I served the above-referenced document(s) by placing them in
an envelope or package addressed to the person(s) at the address(es) listed below and
provided them to a professional messenger service for personal service.
gq By Electronic Service: I caused the document to be sent to the person(s) at the e-mail
address(es) listed below. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
unsuccessful.
x (STATE) I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
SERVICE LIST
Norman B. Blumenthal, Esq. Attorneys for Plaintiff MAGDALENA
Kyle R. Nordrehaug, Esq. LANUZA
Aparajit Bhowmik, Esq.
BLUMENTHAL NORDREHAUG Tel.: (858) 551-1223
BHOWMIK DE BLOUW LLP Fax: (858) 551-1232
2255 Calle Clara Email(s):
La Jolla. CA 92037 SBN(s): 068687: 205975: 248066
Executed on July 19, 2018, at Newport Beach, California.
ol sss IN Warts?
Leessa M. Westwood
PROOF OF SERVICE
44697S2v1 / 014206.0053
Preview
28 STUART KANE LLP Lawyers NewroaY Besct ROBERT J. KANE, State Bar No. 50856 rkane@stuartkane.com SHANE P. CRIQUI, State Bar No. 259045 scriqui@stuartkane.com STUART KANE LLP 620 Newport Center Drive, Suite 200 Newport Beach, California 92660 Tel: (949) 791-5100 Fax: (949) 791-5200 Attorneys for Defendants ELECTRONICALLY FILED Superior Court of Catifornia, County of San Francisco 07/19/2018 Clerk of the Court BY:BOWMAN LIU Deputy Clerk ACCENTCARE, INC, AND ACCENTCARE HOME HEALTH OF CALIFORNIA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO - CIVIC CENTER COURTHOUSE MAGDALENA LANUZA, an individual, on behalf of herself and on behalf of all persons similarly situated, Plaintiff, Vv. ACCENTCARE, INC., a Corporation; ACCENTCARE HOME HEALTH OF CALIFORNIA, INC.; a California Corporation; and DOES 1 through 50, inclusive, Defendants. 1 CASE NO.: CGC-18-565521 Honorable Teri L. Jackson Department 610 DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT Complaint Filed: April 4, 2018 1st Amended Comp. Filed: June 11, 2018 Trial Date: Not Set DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT 4469752v1 / 014206.0053STUART KANE LLP LAWYERS Newvont BeAct Defendants AccentCare, Inc. and AccentCare Home Health of California, Inc. (“Defendants”), appearing for themselves and no other defendants, answer the unverified first amended complaint (the “FAC”) filed by plaintiff Magdalena Lanuza (“Plaintiff”), an individual, on behalf of herself and on behalf of all persons similarly situated, and admit, deny, and allege as| follows: GENERAL DENIAL Pursuant to California Code of Civil Procedure § 431.30(d), Defendants deny each and every allegation in the FAC and further deny specifically that Plaintiff or any allegedly aggrieved persons are entitled to any relief sought in the FAC, or have suffered or are entitled to recover damages in the amount or manner alleged in the FAC, or in any other amount or manner, or at all. Without assuming any burden of proof that would otherwise rest on Plaintiff and the putative class, Defendants assert the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure To State A Claim) Each cause of action in the FAC fails to state facts sufficient to constitute a cause of action. SECOND AFFIRMATIVE DEFENSE (Failure To Exhaust Administrative Remedies) Each cause of action in the FAC is barred to the extent that Plaintiff and the members of the putative class alleged in the FAC failed to exhaust their administrative remedies with respect to all the allegations in the FAC. //1 2 DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT 4469752v1 / 014206.005328 STUART KANE LLP Lawyers Neweont Bescu THIRD AFFIRMATIVE DEFENSE (Statute Of Limitations) Each cause of action in the FAC is barred by the applicable one-year statute of limitations of California Code of Civil Procedure § 340. FOURTH AFFIRMATIVE DEFENSE (PAGA Notice Defective) Each cause of action in the FAC is barred to the extent that Plaintiff did not give proper written notice to the LWDA of the specific provisions of the California Labor Code that are alleged to have been violated. FIFTH AFFIRMATIVE DEFENSE (Res Judicata / Collateral Estoppel) Each cause of action in the FAC is barred, in whole or in part, by the doctrine of res judicata and/or collateral estoppel due to an Order and Judgment signed by the Honorable Timothy B. Taylor, San Diego County Superior Court, dated June 29, 2017, which provides that “Plaintiff, the LWDA and any employee or other person acting as a private attorneys general on the LWDA’s behalf, have released and forever discharged the Released Parties from and regarding the PAGA Released Claims for the PAGA Period.” SIXTH AFFIRMATIVE DEFENSE (Unmanageability) Each cause of action in the FAC is barred in that it would require an individualized inquiry regarding each purportedly “aggrieved employee” at issue and therefore the case is unmanageable. Mt 3 DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT 4469752v1 / 014206.005328 STUART KANE LLP Lawyers Neweont Brac SEVENTH AFFIRMATIVE DEFENSE (Lack of Standing) Each cause of action in the FAC is barred to the extent that Plaintiff lacks standing and is not an “aggrieved employee.” EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands) Each cause of action in the FAC is barred by the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Good Faith Dispute) Each cause of action in the FAC is barred on the grounds that a good faith dispute existed| as to whether Plaintiff or any member of the putative class were entitled to any additional compensation at the time of termination or at any time. TENTH AFFIRMATIVE DEFENSE (Personal Attendant Exemption) Each cause of action in the FAC is barred because Care Partners were properly classified as personal attendants under !WC Wage Order 15 and so exempt from the meal period and rest period requirements of California law. ELEVENTH AFFIRMATIVE DEFENSE (Not an Employer) Each cause of action in the FAC is barred, in whole or in part, because AccentCare Home Health of California, Inc. was not an employer of any Care Partners. Mf 4 DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT 4469752v1 / 014206.005326 STUART KANE LLP Lawyers NewiarT Beacon ADDITIONAL AFFIRMATIVE DEFENSES Defendants presently have insufficient knowledge or information on which to form a belief as to whether they may have additional, unstated affirmative defenses. Defendants reserve the right to file an amended answer asserting additional affirmative defenses in the event that investigation or discovery indicates that it is appropriate. PRAYER FOR RELIEF WHEREFORE, Defendants pray for relief as set forth below: 1. For a judgment and order that Plaintiff and each person alleged to be an aggrieved employee in the FAC take nothing by way of the FAC; 2. For a judgment and order that Plaintiffs FAC be dismissed with prejudice; 3. For an award of costs, including reasonable attorney’s fees, to Defendants; 4, For such other and further relief as the Court deems just and proper. Dated: July 19, 2018 STUART KANE\LLP By: ROBERT J. KANE SHANE P. CRIQUI Attomeys for Defendants ACCENTCARE, INC. AND ACCENTCARE HOME HEALTH OF CALIFORNIA. INC. 5 DEFENDANTS” ANSWER TO FIRST AMENDED COMPLAINT 4469752v1 / 014206,005328 STUART KANE LLP Newvonr Brae PROOF OF SERVICE Magdalena Lanuza v. AccentCare, Inc., et al. Case No, CGC-18-565521 I am employed in the County of Orange, State of California. I am over the age of 18 and am not a party to the within action. My business address is 620 Newport Center Drive, Suite 200, Newport Beach, California 92660, On July 19, 2018, I served the foregoing document described as follows: DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT & By United States Mail: I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Newport Beach, California, in the ordinary course of business. I enclosed the above- referenced document(s) in a sealed envelope or package addressed to the person(s) at the address(es) as set forth below, and following ordinary business practices above I placed the package for collection and mailing the date and at the place of business set forth below, Oo By Overnight Delivery: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the person(s) at the address(es) listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. Oo By Messenger Service: I served the above-referenced document(s) by placing them in an envelope or package addressed to the person(s) at the address(es) listed below and provided them to a professional messenger service for personal service. gq By Electronic Service: I caused the document to be sent to the person(s) at the e-mail address(es) listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. x (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. SERVICE LIST Norman B. Blumenthal, Esq. Attorneys for Plaintiff MAGDALENA Kyle R. Nordrehaug, Esq. LANUZA Aparajit Bhowmik, Esq. BLUMENTHAL NORDREHAUG Tel.: (858) 551-1223 BHOWMIK DE BLOUW LLP Fax: (858) 551-1232 2255 Calle Clara Email(s): La Jolla. CA 92037 SBN(s): 068687: 205975: 248066 Executed on July 19, 2018, at Newport Beach, California. ol sss IN Warts? Leessa M. Westwood PROOF OF SERVICE 44697S2v1 / 014206.0053