Preview
1 Arif Virji, Esq. (SBN 130322)
avirji@cmprlaw.com
2 Justin D. Hein (SBN 249275)
jhein@cmptlaw.com
3 Sarah Hirschfeld-Sussman (SBN 313658)
shsussman@cmprlaw.com
4 CARLE, MACKIE, POWER & ROSS, LLP
100 B Street, Suite 400
5 Santa Rosa, California 95401
Telephone: (707) 526-4200
6 Facsimile: (707) 526-4707
7 Attorneys for Defendant
CATTLEMENS, a California Corporation
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SONOMA
11 MARCO ANTONIO ZEPEDA AGUILAR, as Case No: SCV-271759
an aggrieved employee, and on behalf of all
12 other aggrieved employees under the Labor DEFENDANT CATTLEMENS, INC.’S
Code Private Attorneys’ General Act of 2004, ANSWER TO PLAINTIFF MARCO
13 ANTONIO ZEPEDA AGUILAR’S FIRST
Plaintiff, AMENDED COMPLAINT FOR
14 v. ENFORCEMENT UNDER THE
PRIVATE ATTORNEYS GENERAL
15 CATTLEMENS, a California corporation; ACT, CALIFORNIA LABOR CODE §
RUSSELL HOLLETT, an individual; JOHN 2698, ET SEQ.
16 FRENZEL, an individual; PETER MROZIK,
an individual; WAYNE HOLLOWAY, an
17 individual; JOHN GEARY, an individual; Complaint Filed: September 22, 2022
BARBARA O’CONNOR, an individual; and Amended Complaint Filed: November 14, 2022
18 DOES 1 through 100, inclusive,
19 Defendants.
20
21 GENERAL DENIAL
22 Pursuant to Section 431.30(d) of the California Code of Civil Procedure DEFENDANT
23 CATTLEMENS, a California Corporation (“Defendant”) hereby answers the Amended
24 Complaint (the “Complaint”) filed by Plaintiff MARCO ANTONIO ZEPEDA AGUILAR
25 (“Plaintiff”) by generally denying each and every allegation contained therein, by denying that
26 Plaintiff and the aggrieved employees and or aggrieved individuals have been damaged or have
27 sustained any damages as a result of the conduct alleged therein, and by asserting the following
28 separate and distinct affirmative defenses.
CARLE, MACKIE,
POWER & ROSS LLP 1
DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT
1 AFFIRMATIVE DEFENSES
2 As separate and distinct affirmative defenses to the Complaint and each cause of action
3 therein, Defendant alleges as follows:
4 FIRST AFFIRMATIVE DEFENSE
5 (Failure to State a Cause of Action)
6 Plaintiff’s Complaint and each cause of action therein fails to state facts sufficient to
7 constitute any cause of action against Defendant.
8 SECOND AFFIRMATIVE DEFENSE
9 (Meal and Rest Breaks Provided)
10 Plaintiff and the aggrieved employees were provided with all legally required meal and
11 rest breaks by Defendant. At no time did Defendant coerce, incentivize, or encourage Plaintiff or
12 the aggrieved employees to miss any legally available breaks. To the extent that Plaintiff or the
13 aggrieved employees did not take any breaks while employed by Defendant, which Defendant
14 specifically denies, Defendant was under no obligation to police his use of these breaks as
15 affirmed by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (2012)
16 53 Cal.4th 1004.
17 THIRD AFFIRMATIVE DEFENSE
18 (Failure to Exhaust Administrative Remedies)
19 Plaintiff and the aggrieved employees’ claims are barred, in whole or in part, by their
20 failure to exhaust administrative remedies as required by applicable statutes, including, but not
21 limited to, Labor Code, sections 2699.3 and 2699.5.
22 FOURTH AFFIRMATIVE DEFENSE
23 (Consent)
24 Plaintiff and/or the aggrieved employees’ claims are barred because they consented to
25 and approved the alleged acts and omissions about which they now complain and accordingly,
26 are now barred from pursuing this action.
27 //
28 //
CARLE, MACKIE,
POWER & ROSS LLP 2
DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT
1 FIFTH AFFIRMATIVE DEFENSE
2 (Waiver/Laches/Estoppel/Unclean Hands)
3 Plaintiff and/or the aggrieved employees’ claims are barred, in whole or in part, under the
4 doctrines of waiver, laches, estoppel, ratification, acquiescence, or unclean hands.
5 SIXTH AFFIRMATIVE DEFENSE
6 (Avoidable Consequences)
7 All or some of Plaintiff’s and/or the aggrieved employees’ claims may be barred, in
8 whole or in part, because Defendant exercised reasonable care and adopted and maintained
9 effective policies and procedures to prevent and correct promptly any purportedly improper
10 conduct as identified in Plaintiff’s Complaint. To the extent that Plaintiff and/or the aggrieved
11 employees unreasonably failed to utilize these policies and procedures or failed to take
12 advantage of any preventive or corrective opportunities provided by Defendant or to otherwise
13 avoid harm, Plaintiff and/or the aggrieved employees’ claims, or portions thereof, including any
14 claims for punitive damages, may be barred.
15 SEVENTH AFFIRMATIVE DEFENSE
16 (Prevention)
17 The Complaint and each cause of action therein are barred – or the damages flowing
18 therefrom reduced – because Plaintiff and the aggrieved employees failed to notify Defendant of
19 the alleged statutory violations at the time such violations occurred, which prevented Defendant
20 from taking any action to remedy such alleged violations.
21 EIGHTH AFFIRMATIVE DEFENSE
22 (No Knowledge)
23 Defendant has no knowledge of, nor should have had any knowledge of, any
24 uncompensated work by Plaintiff or the aggrieved employees as set forth in the Complaint, and
25 Defendant did not authorize, require, request, suffer, or permit such activity by Plaintiff or the
26 aggrieved employees.
27 //
28 //
CARLE, MACKIE,
POWER & ROSS LLP 3
DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT
1 NINTH AFFIRMATIVE DEFENSE
2 (Failure to Mitigate)
3 Any damages that Plaintiff or the aggrieved employees could recover must be eliminated
4 or reduced by their failure to mitigate damages. Plaintiff and the aggrieved employees had a
5 duty to abide by the employer’s policies involving meal periods, rest breaks, overtime, and their
6 damages were caused by their failure to do so. Plaintiff and the aggrieved employees had a duty
7 to report all discrepancies between their actual hours worked and the time reflected by their
8 records and their damages were cause by their failure to do so.
9 TENTH AFFIRMATIVE DEFENSE
10 (De Minimis)
11 Plaintiff and the aggrieved employees’ claims are barred, in whole or in part, because any
12 damages they suffered, which Defendant denies, were de minimis. To the extent that Plaintiff or
13 the aggrieved employees were not compensated for any alleged overtime or any other damages,
14 which Defendant specifically denies, the amount not compensated was minimal.
15 ELEVENTH AFFIRMATIVE DEFENSE
16 (No Attorney’s Fees)
17 The Complaint fails to state a claim against Defendant upon which attorney’s fees or
18 costs can be awarded.
19 TWELFTH AFFIRMATIVE DEFENSE
20 (No Prejudgment Interest)
21 The Complaint fails to properly state a claim upon which prejudgment interest may be
22 awarded, as the damages claimed are not sufficiently certain to allow an award of prejudgment
23 interest.
24 THIRTEENTH AFFIRMATIVE DEFENSE
25 (No Due Process)
26 Plaintiff and the aggrieved employees’ claims, if allowed to be tried upon or with so-
27 called representative evidence, would violate procedural and substantive Due Process clauses of
28 the State and Federal Constitutions. The imposition of multiple penalties for the same basic
CARLE, MACKIE,
POWER & ROSS LLP 4
DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT
1 wrongs would also violate such Due Process clauses.
2 FOURTEENTH AFFIRMATIVE DEFENSE
3 (No Standing/Not Similarly Situated)
4 Plaintiff has no standing to bring the claims alleged in the Complaint. Plaintiff is not
5 similarly situated to the aggrieved employees whom he purports to represent. Some or all of
6 Plaintiff’s claims lack the requisite standing to maintain or participate in this suit.
7 FIFTEENTH AFFIRMATIVE DEFENSE
8 (Performance of Duties)
9 Defendant is informed and believes, and thereon allege, that Defendant fully performed
10 any and all contractual, statutory, and other duties they owed to Plaintiff and the aggrieved
11 employees under applicable law. Therefore, the Plaintiff’s Complaint is barred.
12 SIXTEENTH AFFIRMATIVE DEFENSE
13 (Bad Faith)
14 Defendant is informed and believes, and thereon allege, that Plaintiff’s Complaint, and
15 each purported cause of action set forth therein, have always been, and continue to be frivolous,
16 unreasonable, in bad faith, and groundless. Plaintiff brought this action in bad faith and is
17 therefore barred from any recovery in this action.
18 SEVENTEENTH AFFIRMATIVE DEFENSE
19 (Contributory Negligence)
20 Defendant is informed and believes, and thereon alleges, that the damages referred to in
21 the Complaint by Plaintiff were proximately caused by the Plaintiff and/or others affiliated in
22 any manner with the Plaintiff, in that at all times relevant herein, Plaintiff failed to exercise for
23 his own protection the proper care and precautions which prudent persons under the same and
24 similar circumstances would have exercised, and that if this answering Defendant committed any
25 wrongful act at all (which supposition is made for the purpose of its defense without admitting
26 such to be a fact), the aforesaid conduct of Plaintiff and/or entities or persons associated in any
27 manner with Plaintiff contributed to the happenings of Plaintiff’s alleged damages.
28 //
CARLE, MACKIE,
POWER & ROSS LLP 5
DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 (Accord and Satisfaction)
3 Plaintiff’s Complaint and each cause of action therein is barred by the doctrine of accord
4 and satisfaction because Plaintiff and the aggrieved employees received compensation for any
5 outstanding wages and/or damages purportedly due.
6 NINETEENTH AFFIRMATIVE DEFENSE
7 (Release)
8 Plaintiff’s Complaint and each cause of action therein is barred because Plaintiff or some
9 or all of the aggrieved employees have released Defendant from any liability for the claims in the
10 Complaint.
11 TWENTIETH AFFIRMATIVE DEFENSE
12 (Reservation of Defenses)
13 Plaintiff’s Complaint and each cause of action therein is pled in conclusory allegations
14 and therefore, Defendant cannot now fully anticipate all defenses and hereby reserve the right to
15 assert additional defenses as applicable.
16 TWENTY-FIRST AFFIRMATIVE DEFENSE
17 (Mandatory Arbitration)
18 Plaintiff’s Complaint is barred because it is subject to a Mandatory Arbitration of
19 Employment Disputes signed by Plaintiff and all the aggrieved employees.
20 TWENTY-SECOND AFFIRMATIVE DEFENSE
21 (Statute of Limitations)
22 Plaintiff’s Complaint and each cause of action therein is barred, in whole or in part, by
23 the applicable statutes of limitations including, but not limited to, the statute of limitations set
24 forth in Code of Civil Procedure Sections 338, 339, 340, 343; Labor Code Sections 2698 et seq.,
25 203; Business and Professions Code Section 17208, and any other applicable statutes of
26 limitation.
27 ///
28 ///
CARLE, MACKIE,
POWER & ROSS LLP 6
DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT
1 TWENTY-THIRD AFFIRMATIVE DEFENSE
2 (Excessive Fines Prohibited)
3 Defendant alleges that the Private Attorney General Act (“PAGA”) imposes excessive
4 fines in violation of Amendment 8 of the California Constitution.
5 TWENTY-FOURTH AFFIRMATIVE DEFENSE
6 (Penalties Beyond “Initial Violation”)
7 Defendant alleges that the purported cause of action under PAGA is barred to the extent
8 Plaintiff, and the individuals on whose behalf Plaintiff seeks relief, seek penalties beyond the
9 “initial” violation as described in California Labor Code section 2699(f)(2).
10 TWENTY-FIFTH AFFIRMATIVE DEFENSE
11 (Individuals Who Are Not “Aggrieved Employees” Barred)
12 The purported cause of action under PAGA is barred to the extent it seeks to recover
13 penalties on behalf of individuals who are not “aggrieved employees.”
14 TWENTY-SIXTH AFFIRMATIVE DEFENSE
15 (Fines Imposed by PAGA Barred)
16 Defendant alleges that the fines imposed by PAGA violate substantive due process
17 guaranteed by Article I, section 7 of the California Constitution and the Fourteenth Amendment
18 of the United States Constitution.
19 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
20 (Failure to Exhaust Remedies Under PAGA)
21 Defendant alleges that the Complaint and each and every purported cause of action
22 contained therein is barred to the extent Plaintiff, and any person on whose behalf relief is
23 sought, failed to satisfy the notice and exhaustion requirements under PAGA, and to the extent
24 that Plaintiff otherwise has failed to exhaust administrative remedies.
25 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
26 (Unlawful Delegation of Executive Authority)
27 Defendant alleges that the purported cause of action under PAGA is barred to the extent
28 private actions seeking PAGA penalties manifest an unlawful delegation of executive authority.
CARLE, MACKIE,
POWER & ROSS LLP 7
DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT
1 TWENTY-NINTH AFFIRMATIVE
TWENTY-NINTH AFFIRMATIVE DEFENSE
DEFENSE
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DP2 (Plaintiff Not
(Plaintiff An “Aggrieved
Not An “Aggrieved Employee”)
Employee”)
3 Plaintiff’s
Plaintiff's PAGA
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an aggrieved
aggrieved employee
employee as
as that
that term
term is
is
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defined in
in Labor
Labor Code
Code section
section 2699(c).
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5 THIRTIETH AFFIRMATIVE
THIRTIETH AFFIRMATIVE DEFENSE
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(Double Penalties
Penalties in
in Violation of Due
Due Process)
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6 (Double Violation of
7 Plaintiff’s
Plaintiff's PAGA
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claim is
is barred
barred pursuant
pursuant to
to the
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and the
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to the
the extent
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Labor Code
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2698 et
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8 California
and violates
9 and violates the
the due
due process
process rights
rights of
of Defendant.
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10 PRAYER
PRAYER
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11 WHEREFORE, Defendant prays
WHEREFORE, Defendant prays for
for judgment as follows:
judgment as follows:
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12 1.1. That Plaintiff
That Plaintiff takes
takes nothing
nothing by
by way of the
way of the Complaint;
Complaint;
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2. That
That the
the Court
Court dismiss
dismiss with prejudice Plaintiff’s
with prejudice Plaintiff's Complaint
Complaint and
and each
each cause
cause of
of action
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therein;
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14 therein;
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3.
15 3. That judgment
That be entered
judgment be entered against
against Plaintiff
Plaintiff and
and in
in favor
favor of
of Defendant
Defendant on
on all
all claims;
claims;
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4. That
That the
the Court
Court award
award Defendant
Defendant its
its costs
costs of
of suit
suit and
and attorney’s
attorney’s fees
fees incurred under
incurred under
DOD
16 4.
BP
17 California Labor
California Labor Code
Code Sections
Sections 218.5
218.5 and
and 1194,
1194, and
and any
any other
other statutory
statutory basis;
basis; and
and
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5.
18 5. That the
That the Court
Court award
award Defendant
Defendant any
any such
such other
other and
and further
further relief
relief that
that the
the Court
Court deems
deems
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19 just and appropriate.
just and appropriate.
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Dated: April
20 Dated: April 22,
22, 2024
2024 CARLE, MACKIE,
CARLE, MACKIE, POWER
POWER &
& ROSS
ROSS LLP
LLP
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22 By: Aq
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By: ___________________________________
Arif Virji,
Arif Virj¥, Esq.
Esq.
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23 Justin D.
Justin D. Hein
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Sarah Hirschfeld-Sussman
Sarah Hirschfeld-Sussman
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24 Attorneys forfor Defendant,
Defendant,
NY
Attorneys
CATTLEMENS, aa California
CATTLEMENS, California Corporation
Corporation
25
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NO
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28
CARLE,
C MACKIE,
ARLE, M ACKIE,
POWER
POWER & & R
ROSS LLP
OSS LLP 88
DEFENDANT
D EFENDANT CATTLEMENS’ A
CATTLEMENS’ ANSWER TOO F
NSWER T FIRST AMENDED
IRST A COMPLAINT
MENDED COMPLAINT
1 PROOF OF SERVICE
2 I am a citizen of the United States. My business address is 100 B Street, Suite 400, Santa
Rosa, CA 95401. I am employed in the County of Sonoma where this service occurs. I am over
3 the age of 18 years and not a party to the within cause.
4 On the date set forth below, following ordinary business practice, I served a true copy of
the following document(s):
5
DEFENDANT CATTLEMENS ANSWER TO FIRST AMENDED COMPLAINT
6 addressed as follows :
7 Katherine Willis Attorneys for Plaintiff
David D. Bibiyan Marco Antonio Zepeda Aguilar
8 Jeffrey D. Klein
Bijan Mohseni
9 BIBIYAN LAW GROUP, P.C.
1460 Westwood Boulevard
10 Los Angeles, California 90024
Fax: (310) 300-1705
11 Email: kate@tomorrowlaw.com
david@tomorrowlaw.com
12 jeff@tomorrowlaw.com
bijan@tomorrowlaw.com
13 MarcoAguilarZ10285281@projects.filevine.com
14
☐ (BY FIRST CLASS MAIL) I caused such envelope(s) with postage thereon fully prepaid to
15 be placed in the United States mail at San Jose, California.
16 ☐ (BY FACSIMILE) I caused such document(s) to be transmitted by facsimile on this date to
the offices of the addressee(s).
17 ☐ (BY EMAIL) (C.C.P. §§ 1010.6(a)(2) and (e)(1 and 2)) – I caused the aforementioned
document(s) to be electronically served upon the addressee(s) as indicated above. The email
18 address(es) to be used for electronic service has/have been confirmed and acceptance of
electronic service has been agreed, pursuant to the requirements for electronic service. Please
19 contact our office immediately should any recipient object to continued electronic service.
20 ☐ (BY EMAIL-SELF REPRESENTED PARTY) (California Rule of Court, Rule 2.251) – I
caused the aforementioned document(s) to be electronically served upon the addressee(s) as
21 indicated above. The email address(es) to be used for electronic service has/have been confirmed
and acceptance of electronic service has been agreed, pursuant to the requirements for electronic
22 service. Please contact our office immediately should any recipient object to continued electronic
service.
23 ☒ (BY ELECTRONIC SERVICE VIA ONE LEGAL) I transmitted a true and correct copy of
the document(s) listed above to One Legal to be sent to all parties listed on the Proof of Service.
24 This service complies with local rules and California Rules of Court Rule 2.251. A copy of the
One Legal Filing Receipt page will be maintained with the original document(s) in our office.
25
☐ (BY OVERNIGHT DELIVERY) I caused such envelope(s) with postage thereon fully
26 prepaid to be delivered by overnight delivery on this date the offices of the addressee(s).
☐ (BY MESSENGER) I served the documents by placing them in an envelope or package
27 addressed to the person(s) at the address(es) listed above and providing them to a messenger for
service.
28
CARLE, MACKIE,
POWER & ROSS LLP 9
PROOF OF SERVICE
1 ☐
L] (BY
(BY PERSONAL
PERSONAL SERVICE) SERVICE) I| caused
caused such
such envelope(s)
envelope(s) to
to be
be delivered
delivered by
by hand
hand this
this date
date to
to
FFthe offices
the offices ofof the
the addressee(s).
addressee(s).
2
NP
I| declare
declare under
under penalty
penalty of
of perjury
perjury under
under the
the laws
laws of
of the
the State
State of
of California
California that
that the
the
3 foregoing
foregoing is
is true
true and
and correct.
correct.
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DATED: April
4 DATED: April 22,
22, 2024
2024 /s/ Michelle
/s/ Wichelle Swift
Swift
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Michelle Swift
Michelle Swift "
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CCARLE, MACKIE,
ARLE, M ACKIE,
POWER
POWER & & R
ROSS LLP
OSS LLP 10
10
PPROOF OF S
ROOF O F SERVICE
ERVICE
Preview
1 Arif Virji, Esq. (SBN 130322) avirji@cmprlaw.com 2 Justin D. Hein (SBN 249275) jhein@cmptlaw.com 3 Sarah Hirschfeld-Sussman (SBN 313658) shsussman@cmprlaw.com 4 CARLE, MACKIE, POWER & ROSS, LLP 100 B Street, Suite 400 5 Santa Rosa, California 95401 Telephone: (707) 526-4200 6 Facsimile: (707) 526-4707 7 Attorneys for Defendant CATTLEMENS, a California Corporation 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SONOMA 11 MARCO ANTONIO ZEPEDA AGUILAR, as Case No: SCV-271759 an aggrieved employee, and on behalf of all 12 other aggrieved employees under the Labor DEFENDANT CATTLEMENS, INC.’S Code Private Attorneys’ General Act of 2004, ANSWER TO PLAINTIFF MARCO 13 ANTONIO ZEPEDA AGUILAR’S FIRST Plaintiff, AMENDED COMPLAINT FOR 14 v. ENFORCEMENT UNDER THE PRIVATE ATTORNEYS GENERAL 15 CATTLEMENS, a California corporation; ACT, CALIFORNIA LABOR CODE § RUSSELL HOLLETT, an individual; JOHN 2698, ET SEQ. 16 FRENZEL, an individual; PETER MROZIK, an individual; WAYNE HOLLOWAY, an 17 individual; JOHN GEARY, an individual; Complaint Filed: September 22, 2022 BARBARA O’CONNOR, an individual; and Amended Complaint Filed: November 14, 2022 18 DOES 1 through 100, inclusive, 19 Defendants. 20 21 GENERAL DENIAL 22 Pursuant to Section 431.30(d) of the California Code of Civil Procedure DEFENDANT 23 CATTLEMENS, a California Corporation (“Defendant”) hereby answers the Amended 24 Complaint (the “Complaint”) filed by Plaintiff MARCO ANTONIO ZEPEDA AGUILAR 25 (“Plaintiff”) by generally denying each and every allegation contained therein, by denying that 26 Plaintiff and the aggrieved employees and or aggrieved individuals have been damaged or have 27 sustained any damages as a result of the conduct alleged therein, and by asserting the following 28 separate and distinct affirmative defenses. CARLE, MACKIE, POWER & ROSS LLP 1 DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT 1 AFFIRMATIVE DEFENSES 2 As separate and distinct affirmative defenses to the Complaint and each cause of action 3 therein, Defendant alleges as follows: 4 FIRST AFFIRMATIVE DEFENSE 5 (Failure to State a Cause of Action) 6 Plaintiff’s Complaint and each cause of action therein fails to state facts sufficient to 7 constitute any cause of action against Defendant. 8 SECOND AFFIRMATIVE DEFENSE 9 (Meal and Rest Breaks Provided) 10 Plaintiff and the aggrieved employees were provided with all legally required meal and 11 rest breaks by Defendant. At no time did Defendant coerce, incentivize, or encourage Plaintiff or 12 the aggrieved employees to miss any legally available breaks. To the extent that Plaintiff or the 13 aggrieved employees did not take any breaks while employed by Defendant, which Defendant 14 specifically denies, Defendant was under no obligation to police his use of these breaks as 15 affirmed by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (2012) 16 53 Cal.4th 1004. 17 THIRD AFFIRMATIVE DEFENSE 18 (Failure to Exhaust Administrative Remedies) 19 Plaintiff and the aggrieved employees’ claims are barred, in whole or in part, by their 20 failure to exhaust administrative remedies as required by applicable statutes, including, but not 21 limited to, Labor Code, sections 2699.3 and 2699.5. 22 FOURTH AFFIRMATIVE DEFENSE 23 (Consent) 24 Plaintiff and/or the aggrieved employees’ claims are barred because they consented to 25 and approved the alleged acts and omissions about which they now complain and accordingly, 26 are now barred from pursuing this action. 27 // 28 // CARLE, MACKIE, POWER & ROSS LLP 2 DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT 1 FIFTH AFFIRMATIVE DEFENSE 2 (Waiver/Laches/Estoppel/Unclean Hands) 3 Plaintiff and/or the aggrieved employees’ claims are barred, in whole or in part, under the 4 doctrines of waiver, laches, estoppel, ratification, acquiescence, or unclean hands. 5 SIXTH AFFIRMATIVE DEFENSE 6 (Avoidable Consequences) 7 All or some of Plaintiff’s and/or the aggrieved employees’ claims may be barred, in 8 whole or in part, because Defendant exercised reasonable care and adopted and maintained 9 effective policies and procedures to prevent and correct promptly any purportedly improper 10 conduct as identified in Plaintiff’s Complaint. To the extent that Plaintiff and/or the aggrieved 11 employees unreasonably failed to utilize these policies and procedures or failed to take 12 advantage of any preventive or corrective opportunities provided by Defendant or to otherwise 13 avoid harm, Plaintiff and/or the aggrieved employees’ claims, or portions thereof, including any 14 claims for punitive damages, may be barred. 15 SEVENTH AFFIRMATIVE DEFENSE 16 (Prevention) 17 The Complaint and each cause of action therein are barred – or the damages flowing 18 therefrom reduced – because Plaintiff and the aggrieved employees failed to notify Defendant of 19 the alleged statutory violations at the time such violations occurred, which prevented Defendant 20 from taking any action to remedy such alleged violations. 21 EIGHTH AFFIRMATIVE DEFENSE 22 (No Knowledge) 23 Defendant has no knowledge of, nor should have had any knowledge of, any 24 uncompensated work by Plaintiff or the aggrieved employees as set forth in the Complaint, and 25 Defendant did not authorize, require, request, suffer, or permit such activity by Plaintiff or the 26 aggrieved employees. 27 // 28 // CARLE, MACKIE, POWER & ROSS LLP 3 DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT 1 NINTH AFFIRMATIVE DEFENSE 2 (Failure to Mitigate) 3 Any damages that Plaintiff or the aggrieved employees could recover must be eliminated 4 or reduced by their failure to mitigate damages. Plaintiff and the aggrieved employees had a 5 duty to abide by the employer’s policies involving meal periods, rest breaks, overtime, and their 6 damages were caused by their failure to do so. Plaintiff and the aggrieved employees had a duty 7 to report all discrepancies between their actual hours worked and the time reflected by their 8 records and their damages were cause by their failure to do so. 9 TENTH AFFIRMATIVE DEFENSE 10 (De Minimis) 11 Plaintiff and the aggrieved employees’ claims are barred, in whole or in part, because any 12 damages they suffered, which Defendant denies, were de minimis. To the extent that Plaintiff or 13 the aggrieved employees were not compensated for any alleged overtime or any other damages, 14 which Defendant specifically denies, the amount not compensated was minimal. 15 ELEVENTH AFFIRMATIVE DEFENSE 16 (No Attorney’s Fees) 17 The Complaint fails to state a claim against Defendant upon which attorney’s fees or 18 costs can be awarded. 19 TWELFTH AFFIRMATIVE DEFENSE 20 (No Prejudgment Interest) 21 The Complaint fails to properly state a claim upon which prejudgment interest may be 22 awarded, as the damages claimed are not sufficiently certain to allow an award of prejudgment 23 interest. 24 THIRTEENTH AFFIRMATIVE DEFENSE 25 (No Due Process) 26 Plaintiff and the aggrieved employees’ claims, if allowed to be tried upon or with so- 27 called representative evidence, would violate procedural and substantive Due Process clauses of 28 the State and Federal Constitutions. The imposition of multiple penalties for the same basic CARLE, MACKIE, POWER & ROSS LLP 4 DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT 1 wrongs would also violate such Due Process clauses. 2 FOURTEENTH AFFIRMATIVE DEFENSE 3 (No Standing/Not Similarly Situated) 4 Plaintiff has no standing to bring the claims alleged in the Complaint. Plaintiff is not 5 similarly situated to the aggrieved employees whom he purports to represent. Some or all of 6 Plaintiff’s claims lack the requisite standing to maintain or participate in this suit. 7 FIFTEENTH AFFIRMATIVE DEFENSE 8 (Performance of Duties) 9 Defendant is informed and believes, and thereon allege, that Defendant fully performed 10 any and all contractual, statutory, and other duties they owed to Plaintiff and the aggrieved 11 employees under applicable law. Therefore, the Plaintiff’s Complaint is barred. 12 SIXTEENTH AFFIRMATIVE DEFENSE 13 (Bad Faith) 14 Defendant is informed and believes, and thereon allege, that Plaintiff’s Complaint, and 15 each purported cause of action set forth therein, have always been, and continue to be frivolous, 16 unreasonable, in bad faith, and groundless. Plaintiff brought this action in bad faith and is 17 therefore barred from any recovery in this action. 18 SEVENTEENTH AFFIRMATIVE DEFENSE 19 (Contributory Negligence) 20 Defendant is informed and believes, and thereon alleges, that the damages referred to in 21 the Complaint by Plaintiff were proximately caused by the Plaintiff and/or others affiliated in 22 any manner with the Plaintiff, in that at all times relevant herein, Plaintiff failed to exercise for 23 his own protection the proper care and precautions which prudent persons under the same and 24 similar circumstances would have exercised, and that if this answering Defendant committed any 25 wrongful act at all (which supposition is made for the purpose of its defense without admitting 26 such to be a fact), the aforesaid conduct of Plaintiff and/or entities or persons associated in any 27 manner with Plaintiff contributed to the happenings of Plaintiff’s alleged damages. 28 // CARLE, MACKIE, POWER & ROSS LLP 5 DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 (Accord and Satisfaction) 3 Plaintiff’s Complaint and each cause of action therein is barred by the doctrine of accord 4 and satisfaction because Plaintiff and the aggrieved employees received compensation for any 5 outstanding wages and/or damages purportedly due. 6 NINETEENTH AFFIRMATIVE DEFENSE 7 (Release) 8 Plaintiff’s Complaint and each cause of action therein is barred because Plaintiff or some 9 or all of the aggrieved employees have released Defendant from any liability for the claims in the 10 Complaint. 11 TWENTIETH AFFIRMATIVE DEFENSE 12 (Reservation of Defenses) 13 Plaintiff’s Complaint and each cause of action therein is pled in conclusory allegations 14 and therefore, Defendant cannot now fully anticipate all defenses and hereby reserve the right to 15 assert additional defenses as applicable. 16 TWENTY-FIRST AFFIRMATIVE DEFENSE 17 (Mandatory Arbitration) 18 Plaintiff’s Complaint is barred because it is subject to a Mandatory Arbitration of 19 Employment Disputes signed by Plaintiff and all the aggrieved employees. 20 TWENTY-SECOND AFFIRMATIVE DEFENSE 21 (Statute of Limitations) 22 Plaintiff’s Complaint and each cause of action therein is barred, in whole or in part, by 23 the applicable statutes of limitations including, but not limited to, the statute of limitations set 24 forth in Code of Civil Procedure Sections 338, 339, 340, 343; Labor Code Sections 2698 et seq., 25 203; Business and Professions Code Section 17208, and any other applicable statutes of 26 limitation. 27 /// 28 /// CARLE, MACKIE, POWER & ROSS LLP 6 DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT 1 TWENTY-THIRD AFFIRMATIVE DEFENSE 2 (Excessive Fines Prohibited) 3 Defendant alleges that the Private Attorney General Act (“PAGA”) imposes excessive 4 fines in violation of Amendment 8 of the California Constitution. 5 TWENTY-FOURTH AFFIRMATIVE DEFENSE 6 (Penalties Beyond “Initial Violation”) 7 Defendant alleges that the purported cause of action under PAGA is barred to the extent 8 Plaintiff, and the individuals on whose behalf Plaintiff seeks relief, seek penalties beyond the 9 “initial” violation as described in California Labor Code section 2699(f)(2). 10 TWENTY-FIFTH AFFIRMATIVE DEFENSE 11 (Individuals Who Are Not “Aggrieved Employees” Barred) 12 The purported cause of action under PAGA is barred to the extent it seeks to recover 13 penalties on behalf of individuals who are not “aggrieved employees.” 14 TWENTY-SIXTH AFFIRMATIVE DEFENSE 15 (Fines Imposed by PAGA Barred) 16 Defendant alleges that the fines imposed by PAGA violate substantive due process 17 guaranteed by Article I, section 7 of the California Constitution and the Fourteenth Amendment 18 of the United States Constitution. 19 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 20 (Failure to Exhaust Remedies Under PAGA) 21 Defendant alleges that the Complaint and each and every purported cause of action 22 contained therein is barred to the extent Plaintiff, and any person on whose behalf relief is 23 sought, failed to satisfy the notice and exhaustion requirements under PAGA, and to the extent 24 that Plaintiff otherwise has failed to exhaust administrative remedies. 25 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 26 (Unlawful Delegation of Executive Authority) 27 Defendant alleges that the purported cause of action under PAGA is barred to the extent 28 private actions seeking PAGA penalties manifest an unlawful delegation of executive authority. CARLE, MACKIE, POWER & ROSS LLP 7 DEFENDANT CATTLEMENS’ ANSWER TO FIRST AMENDED COMPLAINT 1 TWENTY-NINTH AFFIRMATIVE TWENTY-NINTH AFFIRMATIVE DEFENSE DEFENSE FF DP2 (Plaintiff Not (Plaintiff An “Aggrieved Not An “Aggrieved Employee”) Employee”) 3 Plaintiff’s Plaintiff's PAGA PAGA claim claim is barred because is barred because he he is is not not an an aggrieved aggrieved employee employee as as that that term term is is WOW defined in in Labor Labor Code Code section section 2699(c). 2699(c). FEF 4 defined 5 THIRTIETH AFFIRMATIVE THIRTIETH AFFIRMATIVE DEFENSE DEFENSE oO (Double Penalties Penalties in in Violation of Due Due Process) Process) oO 6 (Double Violation of 7 Plaintiff’s Plaintiff's PAGA PAGA claim claim is is barred barred pursuant pursuant to to the the United United States States Constitution Constitution and and the the N California Constitution Constitution to to the the extent extent Labor Labor Code Code section section 2698 2698 et et seq. seq. imposes imposes double double penalties penalties ada 8 California and violates 9 and violates the the due due process process rights rights of of Defendant. Defendant. oO 10 PRAYER PRAYER BB OO 11 WHEREFORE, Defendant prays WHEREFORE, Defendant prays for for judgment as follows: judgment as follows: BP FP 12 1.1. That Plaintiff That Plaintiff takes takes nothing nothing by by way of the way of the Complaint; Complaint; BP NY 2. That That the the Court Court dismiss dismiss with prejudice Plaintiff’s with prejudice Plaintiff's Complaint Complaint and and each each cause cause of of action action WwW 13 2. BRP therein; KR 14 therein; BP 3. 15 3. That judgment That be entered judgment be entered against against Plaintiff Plaintiff and and in in favor favor of of Defendant Defendant on on all all claims; claims; RP G4 4. That That the the Court Court award award Defendant Defendant its its costs costs of of suit suit and and attorney’s attorney’s fees fees incurred under incurred under DOD 16 4. BP 17 California Labor California Labor Code Code Sections Sections 218.5 218.5 and and 1194, 1194, and and any any other other statutory statutory basis; basis; and and RP wHOWN 5. 18 5. That the That the Court Court award award Defendant Defendant any any such such other other and and further further relief relief that that the the Court Court deems deems BB 19 just and appropriate. just and appropriate. Oo Dated: April 20 Dated: April 22, 22, 2024 2024 CARLE, MACKIE, CARLE, MACKIE, POWER POWER & & ROSS ROSS LLP LLP NY ean FP 21 YB 22 By: Aq NYO NB By: ___________________________________ Arif Virji, Arif Virj¥, Esq. Esq. WOW 23 Justin D. Justin D. Hein Hein YB Sarah Hirschfeld-Sussman Sarah Hirschfeld-Sussman BR 24 Attorneys forfor Defendant, Defendant, NY Attorneys CATTLEMENS, aa California CATTLEMENS, California Corporation Corporation 25 oO MO ODO 26 NO 27 YI NM 28 28 CARLE, C MACKIE, ARLE, M ACKIE, POWER POWER & & R ROSS LLP OSS LLP 88 DEFENDANT D EFENDANT CATTLEMENS’ A CATTLEMENS’ ANSWER TOO F NSWER T FIRST AMENDED IRST A COMPLAINT MENDED COMPLAINT 1 PROOF OF SERVICE 2 I am a citizen of the United States. My business address is 100 B Street, Suite 400, Santa Rosa, CA 95401. I am employed in the County of Sonoma where this service occurs. I am over 3 the age of 18 years and not a party to the within cause. 4 On the date set forth below, following ordinary business practice, I served a true copy of the following document(s): 5 DEFENDANT CATTLEMENS ANSWER TO FIRST AMENDED COMPLAINT 6 addressed as follows : 7 Katherine Willis Attorneys for Plaintiff David D. Bibiyan Marco Antonio Zepeda Aguilar 8 Jeffrey D. Klein Bijan Mohseni 9 BIBIYAN LAW GROUP, P.C. 1460 Westwood Boulevard 10 Los Angeles, California 90024 Fax: (310) 300-1705 11 Email: kate@tomorrowlaw.com david@tomorrowlaw.com 12 jeff@tomorrowlaw.com bijan@tomorrowlaw.com 13 MarcoAguilarZ10285281@projects.filevine.com 14 ☐ (BY FIRST CLASS MAIL) I caused such envelope(s) with postage thereon fully prepaid to 15 be placed in the United States mail at San Jose, California. 16 ☐ (BY FACSIMILE) I caused such document(s) to be transmitted by facsimile on this date to the offices of the addressee(s). 17 ☐ (BY EMAIL) (C.C.P. §§ 1010.6(a)(2) and (e)(1 and 2)) – I caused the aforementioned document(s) to be electronically served upon the addressee(s) as indicated above. The email 18 address(es) to be used for electronic service has/have been confirmed and acceptance of electronic service has been agreed, pursuant to the requirements for electronic service. Please 19 contact our office immediately should any recipient object to continued electronic service. 20 ☐ (BY EMAIL-SELF REPRESENTED PARTY) (California Rule of Court, Rule 2.251) – I caused the aforementioned document(s) to be electronically served upon the addressee(s) as 21 indicated above. The email address(es) to be used for electronic service has/have been confirmed and acceptance of electronic service has been agreed, pursuant to the requirements for electronic 22 service. Please contact our office immediately should any recipient object to continued electronic service. 23 ☒ (BY ELECTRONIC SERVICE VIA ONE LEGAL) I transmitted a true and correct copy of the document(s) listed above to One Legal to be sent to all parties listed on the Proof of Service. 24 This service complies with local rules and California Rules of Court Rule 2.251. A copy of the One Legal Filing Receipt page will be maintained with the original document(s) in our office. 25 ☐ (BY OVERNIGHT DELIVERY) I caused such envelope(s) with postage thereon fully 26 prepaid to be delivered by overnight delivery on this date the offices of the addressee(s). ☐ (BY MESSENGER) I served the documents by placing them in an envelope or package 27 addressed to the person(s) at the address(es) listed above and providing them to a messenger for service. 28 CARLE, MACKIE, POWER & ROSS LLP 9 PROOF OF SERVICE 1 ☐ L] (BY (BY PERSONAL PERSONAL SERVICE) SERVICE) I| caused caused such such envelope(s) envelope(s) to to be be delivered delivered by by hand hand this this date date to to FFthe offices the offices ofof the the addressee(s). addressee(s). 2 NP I| declare declare under under penalty penalty of of perjury perjury under under the the laws laws of of the the State State of of California California that that the the 3 foregoing foregoing is is true true and and correct. correct. WO DATED: April 4 DATED: April 22, 22, 2024 2024 /s/ Michelle /s/ Wichelle Swift Swift FF Michelle Swift Michelle Swift " 5 oO oO 6 7 N ada 8 9 oO 10 BB OO 11 BP FP 12 BRB NY 13 BRP Ww KR 14 BP 15 RP G4 DOD 16 BP 17 BRP wHON 18 19 KB Oo 20 NY FP 21 YB 22 NYS NB ODO 23 YB 24 BR NY 25 oO MB ODO 26 NO 27 YI NM 28 28 CCARLE, MACKIE, ARLE, M ACKIE, POWER POWER & & R ROSS LLP OSS LLP 10 10 PPROOF OF S ROOF O F SERVICE ERVICE