Preview
Sarah A. Ornelas, Esq., SBN 258890
BORTON PETRINI, LLP
201 Needham Street
Modesto, California 95354
Tel: (209) 576-1701
Fax: (209) 527-9753
Email: sornelas@bortonpetrini.com
Attorneys for Defendants,
X MARS X, INC., a California corporation;
MARIO ALVAREZ, an individual
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF KERN
10 TORY NEWSOME, an individual Case No. BCV-23-104095
1 Plaintiff, DEFENDANT MARIO ALVAREZ’S
ANSWER COMPLAINT AND DEMAND
12 vs. FOR JURY TRIAL
13 X MARS X, INC., a California corporation)
MARIO ALVAREZ, an individual; and DOES 1
14 through 100, inclusive,
1S Defendant.
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17 COMES NOW the Defendant, MARIO ALVAREZ and answers the Complaint of the
18 Plaintiff, TORY NEWSOME, an individual, as follows:
19 1 It appearing herein that the Complaint on file is unverified, the Defendant hereby
20 files a general denial pursuant to California Code of Civil Procedure section 431.30(d).
21 2. The Defendant herein denies, generally and specifically, each and every allegation
22 of said Complaint, both conjunctively and disjunctively and the whole thereof, and deny further that
23 Plaintiff has been damaged in the sum alleges or in any other sum whatsoever or at all.
24 AFFIRMATIVE DEFENSES
25 1 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
26 Defendant alleges that the Complaint, and each cause of action stated therein, fail to state a cause of
27 action for which relief can be granted.
28 2 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
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@391270807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL
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Defendant alleges that the Court lacks subject matter jurisdiction over the Complaint and each cause of
action pled therein.
3 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
Defendant alleges that Plaintiff lacks standing to bring this lawsuit.
5 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
Defendant alleges that the Complaint and each cause of action stated therein is barred by the applicable
statute of limitations.
6 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
9 Defendant alleges that the causes of action contained in the Complaint are barred by the doctrine of
10 laches because Plaintiff waited an unreasonable amount of time in which to bring this action, to
lt Defendant’s prejudice,
12) 7 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
13 Defendant alleges that the causes of action contained in the Complaint are barred by the doctrine of
14 estoppel, because Defendant relied on Plaintiff's conduct to its prejudice.
15 8 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
16 Defendant alleges that the causes of action contained in the Complaint are barred by the doctrine of
17 unclean hands. Plaintiff brought this frivolous action after being terminated for cause, and Plaintiff's
18 claims have not been brought in good faith.
19 9 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
20 Defendant alleges that the causes of action contained in the Complaint are barred because Plaintiff
21 waived the causes of action he now asserts.
22) 10. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
23 Defendant alleges that the causes of action contained in the Complaint are barred because damages or
24 injuries sustained by Plaintiff were proximately caused by Plaintiff's own acts and omissions.
25 11. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
26 Defendant alleges that the damages alleged in the Complaint are barred as they were caused by the acts
27 and omissions of others.
28 12. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
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@ 391270807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL
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Defendant alleges the causes of action contained in Plaintiff's Complaint fail to state facts sufficient to
substantiate an award of punitive damages. Further, Defendant state that an award of punitive damages
is unconstitutional under various provisions of the United States Constitution and California
Constitution.
13. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
Defendant alleges that to the extent that Plaintiff claims emotional or physical injury, this Court lacks
jurisdiction any and recovery is barred by the exclusivity of remedy under the California Worket’s
Compensation Act, Labor Code § 3200, et. seq.
9 14. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
10 Defendant alleges that to the extent discovery may disclosure information which could serve as an
ll affirmative defense to this answering Defendant, Plaintiff is barred by recovery by the after acquired
12 evidence doctrine.
13 15. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
14 Defendant alleges that Defendant is entitled to an offset from any monies that Plaintiff received after
15 Plaintiff's employment from Defendant ended.
16 16. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
17 Defendant alleges that Plaintiff's claims are frivolous, unfounded and unreasonable, and therefore
18 Defendant is thereby entitled to an award of its reasonable attorneys’ fees and costs. Further, Defendant
19 reserves all rights to bring a malicious prosecution action against the Plaintiff in the future.
20 17. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
ai Defendant alleges Plaintiff failed to exhaust internal and administrative remedies.
22 18. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
23 Defendant alleges that this cause is not properly maintained as a class action because of the difficulties
24 likely to be encountered with the management of the class.
25 19. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
26) Defendant alleges that Plaintiff's employment was at-will and Defendant was thereafter able to
27 terminate Plaintiff's employment with or without cause (and ultimately terminated Plaintiff with cause).
28 20. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
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oo 270807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL
@A65901'plea
1}) Defendant alleges that the Plaintiff has failed to mitigate his damages in this action
2 21 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering
3l| Defendant alleges that Plaintiff has been fully satisfied and paid in full.
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5 Defendant hereby reserves the right to amend its Answer to Plaintiff's Complaint upon
6|| notice to Plaintiff and to add additional! affirmative defenses as additional information comes to light.
7\| Defendant demands a jury trial on all claims so triable
WHEREFORE, Defendant prays’
L That Plaintiff take nothing by way of their Complaint against Defendant:
10 2 That Plaintiff's Complaint be dismissed in its entirety with prejudice:
il 3 That Defendant be awarded reasonable attorneys’ fees and/or costs of suit; and
12 4. Such other and further relief as this Court deems just and proper.
13
14 Dated: April |, 2024
15 BORTON PETRINI, LLP
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&s arah Ornelas,
18 _. Ato ' for Defendants,
XX MARS X, INC,, a California corporation,
19 MARIO ALVAREZ, an individual
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@3912700807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL
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PROOF OF SERVICE (Code Civ. Proc., §§ 1013a)
STATE OF CALIFORNIA, COUNTY OF STANISLAUS
Tam employed in the County of Stanislaus, State of California. I am over the age of 18 and not a
party to the within action; my business address is Borton Petrini, LLP, 201 Needham Street, Modesto,
California 95354.
On April / le 2024, I served the foregoing document described as DEFENDANT MARIO
ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL on the other parties in
this action by placing the true copies thereof enclosed in sealed envelopes addressed as listed.
SEE SERVICE LIST ATTACHED
r
BY MAIL: As follows: I am "readily familiar" with the firm's practice of collection and
processing correspondence for mailing with the United States Postal Service. Under that practice
the envelope would be deposited with U.S. postal service on that same day with postage thereon
10 fully prepaid at Modesto, California in the ordinary course of business.
il BY FACSIMILE: I caused each document to be delivered by electronic facsimile to the listed
above, The facsimile machine I used complied with California Rules of Court, Rule 2.301 and
12 no error was reported by the machine. Pursuant to California Rules of Court, Rule 2.306.
13 BY OVERNIGHT COURIER SERVICE: | caused each envelope with postage fully prepaid
to be sent by overnight.
14
BY PERSONAL SERVICE: Pursuant to C.C.P. Section 1011, I caused to be delivered such
15 envelope by hand to the offices of the addressee(s) listed on the attached mailing list.
16) BY ELECTRONIC SERVICE: Pursuant to Code of Civil Procedure section 1010.6 and
California Rules of Court, Rule 2.251, service shall be completed via electronic transmission to
17 the attached person(s) transmission of such is at the e-mail address(es) indicated on the attached
mailing list.
18
v ONLY BY EMAIL TRANSMISSION: Pursuant to Emergency Rule 12 of the California Code
19) of Civil Procedure, which was adopted by the Judicial Counsel in response to the COVID-19
pandemic, this document is being served by electronic transmission only. Receiving party is
20 requested to immediately notify the serving party if any additional electronic service addresses
should be included in the electronic service of this document.
21
FEDERAL: I declare that I am e1 Mynployed in the office of a member of the bar of this court at
22, whose direction the service was ma
23 I declare under penalty of petjury under the laws of the State of California that the above is true
and correct.
24
Executed on April ‘4, 2024, at Modesto, California. 2
25 7
eon
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Michael Worsham
27 Type or Print Name Signature
28)
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@poiT0807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL
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ATTORNEYS FOR PLAINTIFF
Kevin A. Lipeles (Bar No. 244275)
Thomas H. Schelly (Bar No, 217285)
LIPELES LAW GROUP, APC
880 Apollo Street. Suite 336
El Segundo. California 90245
Telephone: (310) 322-2211
Fax: (310) 322-2252
Email: kevin@kallaw.com
thomas@kallaw.com
Justen@kallaw.com
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Preview
Sarah A. Ornelas, Esq., SBN 258890 BORTON PETRINI, LLP 201 Needham Street Modesto, California 95354 Tel: (209) 576-1701 Fax: (209) 527-9753 Email: sornelas@bortonpetrini.com Attorneys for Defendants, X MARS X, INC., a California corporation; MARIO ALVAREZ, an individual SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN 10 TORY NEWSOME, an individual Case No. BCV-23-104095 1 Plaintiff, DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND 12 vs. FOR JURY TRIAL 13 X MARS X, INC., a California corporation) MARIO ALVAREZ, an individual; and DOES 1 14 through 100, inclusive, 1S Defendant. 16 17 COMES NOW the Defendant, MARIO ALVAREZ and answers the Complaint of the 18 Plaintiff, TORY NEWSOME, an individual, as follows: 19 1 It appearing herein that the Complaint on file is unverified, the Defendant hereby 20 files a general denial pursuant to California Code of Civil Procedure section 431.30(d). 21 2. The Defendant herein denies, generally and specifically, each and every allegation 22 of said Complaint, both conjunctively and disjunctively and the whole thereof, and deny further that 23 Plaintiff has been damaged in the sum alleges or in any other sum whatsoever or at all. 24 AFFIRMATIVE DEFENSES 25 1 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 26 Defendant alleges that the Complaint, and each cause of action stated therein, fail to state a cause of 27 action for which relief can be granted. 28 2 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering mimatters\060 1 @391270807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL 7 @AGSIONplea Defendant alleges that the Court lacks subject matter jurisdiction over the Complaint and each cause of action pled therein. 3 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering Defendant alleges that Plaintiff lacks standing to bring this lawsuit. 5 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering Defendant alleges that the Complaint and each cause of action stated therein is barred by the applicable statute of limitations. 6 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 9 Defendant alleges that the causes of action contained in the Complaint are barred by the doctrine of 10 laches because Plaintiff waited an unreasonable amount of time in which to bring this action, to lt Defendant’s prejudice, 12) 7 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 13 Defendant alleges that the causes of action contained in the Complaint are barred by the doctrine of 14 estoppel, because Defendant relied on Plaintiff's conduct to its prejudice. 15 8 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 16 Defendant alleges that the causes of action contained in the Complaint are barred by the doctrine of 17 unclean hands. Plaintiff brought this frivolous action after being terminated for cause, and Plaintiff's 18 claims have not been brought in good faith. 19 9 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 20 Defendant alleges that the causes of action contained in the Complaint are barred because Plaintiff 21 waived the causes of action he now asserts. 22) 10. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 23 Defendant alleges that the causes of action contained in the Complaint are barred because damages or 24 injuries sustained by Plaintiff were proximately caused by Plaintiff's own acts and omissions. 25 11. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 26 Defendant alleges that the damages alleged in the Complaint are barred as they were caused by the acts 27 and omissions of others. 28 12. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering ar\matters\060 687 2 @ 391270807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL ar {@A65901\plea Defendant alleges the causes of action contained in Plaintiff's Complaint fail to state facts sufficient to substantiate an award of punitive damages. Further, Defendant state that an award of punitive damages is unconstitutional under various provisions of the United States Constitution and California Constitution. 13. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering Defendant alleges that to the extent that Plaintiff claims emotional or physical injury, this Court lacks jurisdiction any and recovery is barred by the exclusivity of remedy under the California Worket’s Compensation Act, Labor Code § 3200, et. seq. 9 14. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 10 Defendant alleges that to the extent discovery may disclosure information which could serve as an ll affirmative defense to this answering Defendant, Plaintiff is barred by recovery by the after acquired 12 evidence doctrine. 13 15. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 14 Defendant alleges that Defendant is entitled to an offset from any monies that Plaintiff received after 15 Plaintiff's employment from Defendant ended. 16 16. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 17 Defendant alleges that Plaintiff's claims are frivolous, unfounded and unreasonable, and therefore 18 Defendant is thereby entitled to an award of its reasonable attorneys’ fees and costs. Further, Defendant 19 reserves all rights to bring a malicious prosecution action against the Plaintiff in the future. 20 17. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering ai Defendant alleges Plaintiff failed to exhaust internal and administrative remedies. 22 18. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 23 Defendant alleges that this cause is not properly maintained as a class action because of the difficulties 24 likely to be encountered with the management of the class. 25 19. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 26) Defendant alleges that Plaintiff's employment was at-will and Defendant was thereafter able to 27 terminate Plaintiff's employment with or without cause (and ultimately terminated Plaintiff with cause). 28 20. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering nwmatters\060 687 3 oo 270807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL @A65901'plea 1}) Defendant alleges that the Plaintiff has failed to mitigate his damages in this action 2 21 FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, this answering 3l| Defendant alleges that Plaintiff has been fully satisfied and paid in full. 4 5 Defendant hereby reserves the right to amend its Answer to Plaintiff's Complaint upon 6|| notice to Plaintiff and to add additional! affirmative defenses as additional information comes to light. 7\| Defendant demands a jury trial on all claims so triable WHEREFORE, Defendant prays’ L That Plaintiff take nothing by way of their Complaint against Defendant: 10 2 That Plaintiff's Complaint be dismissed in its entirety with prejudice: il 3 That Defendant be awarded reasonable attorneys’ fees and/or costs of suit; and 12 4. Such other and further relief as this Court deems just and proper. 13 14 Dated: April |, 2024 15 BORTON PETRINI, LLP a 16 17 &s arah Ornelas, 18 _. Ato ' for Defendants, XX MARS X, INC,, a California corporation, 19 MARIO ALVAREZ, an individual 20 21 22 23 24 25 26 27 28 mocinatters\060, 4 @3912700807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL @A6590i\0len PROOF OF SERVICE (Code Civ. Proc., §§ 1013a) STATE OF CALIFORNIA, COUNTY OF STANISLAUS Tam employed in the County of Stanislaus, State of California. I am over the age of 18 and not a party to the within action; my business address is Borton Petrini, LLP, 201 Needham Street, Modesto, California 95354. On April / le 2024, I served the foregoing document described as DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL on the other parties in this action by placing the true copies thereof enclosed in sealed envelopes addressed as listed. SEE SERVICE LIST ATTACHED r BY MAIL: As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice the envelope would be deposited with U.S. postal service on that same day with postage thereon 10 fully prepaid at Modesto, California in the ordinary course of business. il BY FACSIMILE: I caused each document to be delivered by electronic facsimile to the listed above, The facsimile machine I used complied with California Rules of Court, Rule 2.301 and 12 no error was reported by the machine. Pursuant to California Rules of Court, Rule 2.306. 13 BY OVERNIGHT COURIER SERVICE: | caused each envelope with postage fully prepaid to be sent by overnight. 14 BY PERSONAL SERVICE: Pursuant to C.C.P. Section 1011, I caused to be delivered such 15 envelope by hand to the offices of the addressee(s) listed on the attached mailing list. 16) BY ELECTRONIC SERVICE: Pursuant to Code of Civil Procedure section 1010.6 and California Rules of Court, Rule 2.251, service shall be completed via electronic transmission to 17 the attached person(s) transmission of such is at the e-mail address(es) indicated on the attached mailing list. 18 v ONLY BY EMAIL TRANSMISSION: Pursuant to Emergency Rule 12 of the California Code 19) of Civil Procedure, which was adopted by the Judicial Counsel in response to the COVID-19 pandemic, this document is being served by electronic transmission only. Receiving party is 20 requested to immediately notify the serving party if any additional electronic service addresses should be included in the electronic service of this document. 21 FEDERAL: I declare that I am e1 Mynployed in the office of a member of the bar of this court at 22, whose direction the service was ma 23 I declare under penalty of petjury under the laws of the State of California that the above is true and correct. 24 Executed on April ‘4, 2024, at Modesto, California. 2 25 7 eon 26 Michael Worsham 27 Type or Print Name Signature 28) mac\matters\060 5 @poiT0807 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL @465901\vlea ATTORNEYS FOR PLAINTIFF Kevin A. Lipeles (Bar No. 244275) Thomas H. Schelly (Bar No, 217285) LIPELES LAW GROUP, APC 880 Apollo Street. Suite 336 El Segundo. California 90245 Telephone: (310) 322-2211 Fax: (310) 322-2252 Email: kevin@kallaw.com thomas@kallaw.com Justen@kallaw.com 9 10 ll 12 13 14 15 16 17 18 19 20) 21 22 23 24 25 26 27 28 nuc\matters\060 687 6 @3912700807 67 DEFENDANT MARIO ALVAREZ’S ANSWER COMPLAINT AND DEMAND FOR JURY TRIAL @A65901\plea