Preview
1 Curtis A. Graham, Bar No. 215745
cagraham@littler.com
2 Melanie Rollins, Bar No. 305901
mrollins@littler.com
3 LITTLER MENDELSON, P.C.
633 West 5th Street 4/23/2024
4 63rd Floor
Los Angeles, California 90071
5 Telephone: 213.443.4300
Fax No.: 800.715.1330
6
Attorneys for Defendant
7 KELLY-MOORE PAINT COMPANY, INC.
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN MATEO
10
11
SCOTT BUNDY, individually and on behalf of Case No. 24-CIV-00772
12 all others similarly situated,
DEFENDANT KELLY-MOORE PAINT
13 Plaintiff, COMPANY, INC.’S ANSWER TO
PLAINTIFF’S CLASS ACTION
14 v.
COMPLAINT
15 KELLY-MOORE PAINT COMPANY, INC., a
California Corporation; and DOES 1-50, ASSIGNED FOR ALL PURPOSES TO
16 inclusive, JUDGE V. RAYMOND SWOPE, DEPT. 23
17 Defendants.
Trial Date: None Set
18 Complaint Filed: February 9, 2024
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LITTLER 28
MENDELSON P.C.
633 West 5th S treet
63rd Floor
1
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 Defendant KELLY-MOORE PAINT COMPANY, INC. (“Defendant”) hereby submits its
2 Answer to the Class Action Complaint (“Complaint”) filed by Plaintiff SCOTT BUNDY (“Plaintiff”),
3 as follows:
4 GENERAL DENIAL
5 Pursuant to California Code of Civil Procedure section 431.30, subdivision (d), Defendant
6 generally and specifically denies each and every allegation in the Complaint. In addition, Defendant
7 denies that Plaintiff or any putative class member or former employee is entitled to the relief requested,
8 or that Plaintiff or any putative class member has sustained, or will sustain any loss or damage in the
9 manner or amount alleged, or otherwise, by reason of any act or omission of, or any other conduct or
10 absence thereof on the part of, Defendant.
11 AFFIRMATIVE DEFENSES
12 Defendant asserts the following affirmative and other defenses, which are designated,
13 collectively, as “Affirmative Defenses.” In asserting these defenses, Defendant does not admit any of
14 the allegations of the Complaint and does not assume the burden of proof or persuasion as to any
15 matter that, as a matter of law, is Plaintiff’s burden to prove. Further, Defendant does not presently
16 know all the facts concerning the conduct of Plaintiff sufficient to state all affirmative defenses at this
17 time. Defendant intends to rely upon any additional defenses that become available or apparent during
18 pretrial proceedings and discovery in this action and hereby reserves the right to seek leave to amend
19 this Answer to assert all such further defenses. Defendant also expressly denies the existence of any
20 putative class member that Plaintiff purports to represent in this lawsuit. Defendant thus expressly
21 denies the existence of any such group each and every time it references “Plaintiff” as if fully set forth
22 herein. All defenses asserted are also asserted against any putative class member.
23 FIRST AFFIRMATIVE DEFENSE.
24 (Failure to State a Claim)
25 1. As a separate and distinct affirmative defense, Defendant asserts that the Complaint,
26 and each and every alleged cause of action therein, fails to state facts sufficient to constitute a cause
27 of action upon which relief can be granted.
LITTLER 28 ///
MENDELSON P.C.
633 West 5th S treet
63rd Floor
2
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 SECOND AFFIRMATIVE DEFENSE
2 (Laches)
3 2. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
4 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of
5 laches.
6 THIRD AFFIRMATIVE DEFENSE
7 (Waiver)
8 3. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
9 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of
10 waiver.
11 FOURTH AFFIRMATIVE DEFENSE
12 (Unclean Hands)
13 4. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
14 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of
15 unclean hands.
16 FIFTH AFFIRMATIVE DEFENSE
17 (Estoppel)
18 5. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
19 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of
20 estoppel.
21 SIXTH AFFIRMATIVE DEFENSE
22 (Consent)
23 6. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
24 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of
25 consent.
26 ///
27 ///
LITTLER 28 ///
MENDELSON P.C.
633 West 5th S treet
63rd Floor
3
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 SEVENTH AFFIRMATIVE DEFENSE
2 (Unjust Enrichment)
3 7. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
4 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of
5 unjust enrichment.
6 EIGHTH AFFIRMATIVE DEFENSE
7 (Prior or Pending Litigation –Collateral Estoppel/Res Judicata)
8 8. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
9 and each cause of action set forth therein are barred by the doctrines of collateral estoppel and/or res
10 judicata to the extent that Plaintiff or some or all putative class members have litigated issues raised
11 by the Complaint prior to adjudication of those issues in the instant action.
12 NINTH AFFIRMATIVE DEFENSE
13 (Release)
14 9. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
15 and the causes of action set forth therein are barred to the extent that Plaintiff and/or putative class
16 members have released Defendant from any liability as alleged in the Complaint prior to the
17 adjudication of those claims in the instant action.
18 TENTH AFFIRMATIVE DEFENSE
19 (Accord and Satisfaction)
20 10. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims
21 fail because Plaintiff and the putative class members have been fully paid all amounts legally owed by
22 Defendant and are barred by the doctrine of accord and satisfaction, and by accepting the payments
23 made to them, Plaintiff and the putative class members have effectuated an accord and satisfaction of
24 their claims.
25 ELEVENTH AFFIRMATIVE DEFENSE
26 (Statute of Limitations)
27 11. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
LITTLER 28 and each cause of action set forth therein, or some of them, are barred by the applicable statutes of
MENDELSON P.C.
633 West 5th S treet
63rd Floor
4
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 limitations, including, but not limited to, California Code of Civil Procedure sections 335.1, 337, 338,
2 339, 340 and 343, and California Business & Professions Code § 17208.
3 TWELFTH AFFIRMATIVE DEFENSE
4 (Good Faith)
5 12. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
6 and each cause of action set forth therein cannot be maintained because, without admitting that any
7 violation took place, any alleged violation was not knowingly, willfully or intentionally done and/or
8 was an act or omission made in good faith, because there exists a good faith dispute as to whether
9 compensation was due and/or Defendant had reasonable grounds for believing that its wage payment
10 practices complied with applicable laws and that any act or omission was not a violation, such that
11 Plaintiff and the putative class members are not entitled to any damages, penalties or attorneys’ fees.
12 THIRTEENTH AFFIRMATIVE DEFENSE
13 (Plaintiff’s Breach of Duties)
14 13. As a separate and distinct affirmative defense, Defendant alleges that the claims of
15 Plaintiff and some or all of the putative class members are barred by their own breach of the duties
16 owed to Defendant pursuant to the California Labor Code, including but not limited to California
17 Labor Code sections 2853, 2854, 2856, 2857 and/or 2859 and/or the refusal or failure by Plaintiff
18 and/or putative class members to meet Defendant’s reasonable expectations and the job performance
19 requirements.
20 FOURTEENTH AFFIRMATIVE DEFENSE
21 (Failure to Mitigate)
22 14. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff and the
23 putative class members have failed to take reasonable steps to mitigate their alleged damages, and that
24 any right of recovery must be reduced accordingly.
25 FIFTEENTH AFFIRMATIVE DEFENSE
26 (Avoidable Consequences)
27 15. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
LITTLER 28 and each cause of action therein are barred by the doctrine of avoidable consequences. Plaintiff
MENDELSON P.C.
633 West 5th S treet
63rd Floor
5
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 unreasonably failed to use the preventative and corrective opportunities provided to him by Defendant,
2 and reasonable use of Defendant’s procedures would have prevented at least some, if not all, of the
3 harm that Plaintiff allegedly suffered.
4 SIXTEENTH AFFIRMATIVE DEFENSE
5 (Credit and Offset)
6 16. As a separate and distinct affirmative defense, Defendant alleges that it is entitled to an
7 offset against any relief due Plaintiff and/or the putative class members based upon their respective
8 wrongful conduct and/or monies owed to Defendant, including, but not limited to, any overpayments
9 for hours worked.
10 SEVENTEENTH AFFIRMATIVE DEFENSE
11 (Substantial Compliance)
12 17. As a separate and distinct affirmative defense, and assuming arguendo Defendant had
13 failed to comply with any provision of the Labor Code, Defendant alleges that it substantially complied
14 with the Labor Code and or any applicable Wage Orders and Regulations, thus rendering an award of
15 civil penalties inappropriate under the circumstances.
16 EIGHTEENTH AFFIRMATIVE DEFENSE
17 (Claims Unconstitutional)
18 18. As a separate and distinct affirmative defense, Defendant alleges that the prosecution
19 of a class action as applied to the facts and circumstances of this case would constitute a denial of
20 Defendant’s Due Process rights, both substantive and procedural, in violation of the California
21 Constitution and the Fourteenth Amendment to the United States Constitution.
22 NINETEENTH AFFIRMATIVE DEFENSE
23 (Not Suitable for Class Action)
24 19. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
25 fails to state a cognizable class under California Code of Civil Procedure section 382 or any other
26 applicable rule or law regulating the maintenance of class actions.
27 ///
LITTLER 28 ///
MENDELSON P.C.
633 West 5th S treet
63rd Floor
6
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 TWENTIETH AFFIRMATIVE DEFENSE
2 (No Class or Representative Action)
3 20. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s and/or
4 any putative class member’s purported claims are such that they cannot be tried on a class or
5 representative basis because (1) such a determination requires complex individualized factual issues,
6 (2) damages and/or penalties could not be calculated on a representative basis, (3) any damages and/or
7 penalties that might be proved would not be identical for all putative class members, and (4) trying
8 such a class or representative action would be unmanageable.
9 TWENTY-FIRST AFFIRMATIVE DEFENSE
10 (Inadequate Class Representative)
11 21. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s class
12 action claims are barred in whole or in part because Plaintiff is an inadequate class representative as
13 to the claims asserted.
14 TWENTY-SECOND AFFIRMATIVE DEFENSE
15 (No Standing)
16 22. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff lacks
17 standing to assert the legal rights or interests of others.
18 TWENTY-THIRD AFFIRMATIVE DEFENSE
19 (Statutes Unconstitutionally Vague)
20 23. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is
21 barred, in whole or in part, because the applicable wage orders of the California Industrial Welfare
22 Commission and provisions of the California Labor Code are unconstitutionally vague and ambiguous
23 and violate Defendant’s due process rights under the United States and California Constitutions.
24 TWENTY-FOURTH AFFIRMATIVE DEFENSE
25 (Excessive Fines Clause)
26 24. As a separate and distinct affirmative defense, Defendant alleges that to the extent that
27 Plaintiff seeks statutory or other penalties, such claims are unconstitutional under the United States
LITTLER 28 and California Constitutional provisions of the excessive fines clauses.
MENDELSON P.C.
633 West 5th S treet
63rd Floor
7
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 (Attorneys’ Fees)
3 25. As a separate and distinct affirmative defense, Defendant alleges the Complaint, and
4 each and every cause of action alleged therein, fails to state a claim for an award of costs or attorneys’
5 fees under California Labor Code section 218.5, Code of Civil Procedure section 1021.5, California
6 Business and Professions Code section 17200, et seq., or any other basis.
7 TWENTY-SIXTH AFFIRMATIVE DEFENSE
8 (UCL Relief Barred)
9 26. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims
10 for restitution pursuant to California Business and Professions Code section 17200 et seq., are barred
11 to the extent they constitute claims for damages, are barred with respect to penalties of any nature,
12 and/or are barred to the extent the alleged violations have been discontinued, ceased, or are not likely
13 to recur.
14 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
15 (Labor Code §201 – 203 Penalties Barred)
16 27. Defendant is informed and believes that a reasonable opportunity for investigation and
17 discovery will reveal and, on that basis alleges, that Plaintiff’s and/or any putative class member’s
18 claims for penalties are barred because there are bona fide disputes as to whether Defendant failed to
19 timely pay all wages due and Defendant has not knowingly, intentionally or willfully failed to pay
20 such compensation, if any is owed.
21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
22 (Cal-WARN Not Applicable)
23 28. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is
24 barred in whole or in part because the California Worker Adjustment and Retraining Notification
25 (“Cal-WARN”) Act is not applicable to Plaintiff’s and/or any putative class member’s claims and
26 because Plaintiff and the putative class members he seeks to represent did not suffer any actionable
27 harm or are not entitled to any relief pursuant to Cal-WARN.
LITTLER 28 ///
MENDELSON P.C.
633 West 5th S treet
63rd Floor
8
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 TWENTY-NINTH AFFIRMATIVE DEFENSE
2 (Federal Arbitration Act)
3 29. As a separate and distinct affirmative defense, Defendant alleges that the Complaint,
4 and each purported cause of action alleged therein, is barred on the grounds that this Court lacks
5 subject matter jurisdiction over the matter to the extent that Plaintiff and/or the putative class members
6 are contractually obligated to submit their claims to binding arbitration pursuant to the Federal
7 Arbitration Act, 8 U.S.C. §§ 1, et seq.
8 ADDITIONAL AFFIRMATIVE DEFENSES
9 Defendant presently has insufficient knowledge or information upon which to form a belief as
10 to whether additional, as yet unstated, defenses may be warranted and reserves the right to seek leave
11 of court to assert additional defenses or affirmative defenses in the event discovery indicates such
12 defenses are appropriate.
13 PRAYER FOR RELIEF
14 WHEREFORE, Defendant prays that:
15 1. This action be prohibited from proceeding as a representative action;
16 2. Plaintiff and the putative class members take nothing by way of the Complaint;
17 3. Plaintiff’s Complaint be dismissed in its entirety with judgment entered against
18 Plaintiff and in favor of Defendant on all of Plaintiff’s causes of action;
19 4. Plaintiff be ordered to pay Defendant’s attorneys’ fees and costs, including but not
20 limited to attorneys’ fees and costs provided under California Labor Code section 218.5; and
21 5. Defendant be awarded such other and further relief as the Court deems just and proper.
22
Dated: April 22, 2024
23 LITTLER MENDELSON, P.C.
24
25
Curtis A. Graham
26 Melanie Rollins
27 Attorneys for Defendant
KELLY-MOORE PAINT COMPANY, INC.
LITTLER 28
MENDELSON P.C.
633 West 5th S treet
63rd Floor
9
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
1 PROOF OF SERVICE
2 I am employed in the County of Los Angeles, State of California, over the age of eighteen
3 years, and not a party of the within action. My business address is: 2049 Century Park East, Suite
4 500, Los Angeles, CA 90067. On April 22, 2024, I served the foregoing document(s) described as
5 DEFENDANT KELLY-MOORE PAINT COMPANY, INC.’S ANSWER TO PLAINTIFF’S
CLASS ACTION COMPLAINT
6
7 on the interested parties in this as follows:
8 James R. Hawkins, Esq. Attorneys for Plaintiff Scott Bundy
Gregory Mauro, Esq. Email: James@jameshawlcinsaplc.com
9 Michael Calvo, Esq. Email: Greg@jameshawkinsaplc.com
Lauren Falk, Esq. Email: Michael@jameshawkinsaplc.com
10 Ava Issary, Esq. Email: Lauren@jameshawkinsaplc.com
JAMES HAWKINS APLC Email: Ava@jameshawlcinsaplc.com
11 9880 Research Drive, Suite 200
12 Irvine, CA 92618
T: (949) 387-7200
13 F: (949) 387-6676
14
15
VIA ELECTRONIC SERVICE: Based on a court order or an agreement of the
parties to accept electronic service, including pursuant to Code of Civil Procedure
16
section 1010.6, which allows for service by e-mail or electronic transmission, I caused
17 the documents to be sent to the persons at the electronic service addresses listed herein.
My email address is mgerard@littler.com.
18
19 I declare under penalty of perjury under the laws of the State of California that the above is
20 true and correct.
21
Executed on April 22, 2024 at Los Angeles, California.
22
23
24
Mary Ann Gerard
25 [Signature]
26
4876-7072-0691.2 / 001665-1115
27
LITTLER 28
MENDELSON P.C.
633 West 5th S treet
63rd Floor
10
Los Angeles, CA
90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
213.443.4300
Preview
1 Curtis A. Graham, Bar No. 215745 cagraham@littler.com 2 Melanie Rollins, Bar No. 305901 mrollins@littler.com 3 LITTLER MENDELSON, P.C. 633 West 5th Street 4/23/2024 4 63rd Floor Los Angeles, California 90071 5 Telephone: 213.443.4300 Fax No.: 800.715.1330 6 Attorneys for Defendant 7 KELLY-MOORE PAINT COMPANY, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 SCOTT BUNDY, individually and on behalf of Case No. 24-CIV-00772 12 all others similarly situated, DEFENDANT KELLY-MOORE PAINT 13 Plaintiff, COMPANY, INC.’S ANSWER TO PLAINTIFF’S CLASS ACTION 14 v. COMPLAINT 15 KELLY-MOORE PAINT COMPANY, INC., a California Corporation; and DOES 1-50, ASSIGNED FOR ALL PURPOSES TO 16 inclusive, JUDGE V. RAYMOND SWOPE, DEPT. 23 17 Defendants. Trial Date: None Set 18 Complaint Filed: February 9, 2024 19 20 21 22 23 24 25 26 27 LITTLER 28 MENDELSON P.C. 633 West 5th S treet 63rd Floor 1 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 Defendant KELLY-MOORE PAINT COMPANY, INC. (“Defendant”) hereby submits its 2 Answer to the Class Action Complaint (“Complaint”) filed by Plaintiff SCOTT BUNDY (“Plaintiff”), 3 as follows: 4 GENERAL DENIAL 5 Pursuant to California Code of Civil Procedure section 431.30, subdivision (d), Defendant 6 generally and specifically denies each and every allegation in the Complaint. In addition, Defendant 7 denies that Plaintiff or any putative class member or former employee is entitled to the relief requested, 8 or that Plaintiff or any putative class member has sustained, or will sustain any loss or damage in the 9 manner or amount alleged, or otherwise, by reason of any act or omission of, or any other conduct or 10 absence thereof on the part of, Defendant. 11 AFFIRMATIVE DEFENSES 12 Defendant asserts the following affirmative and other defenses, which are designated, 13 collectively, as “Affirmative Defenses.” In asserting these defenses, Defendant does not admit any of 14 the allegations of the Complaint and does not assume the burden of proof or persuasion as to any 15 matter that, as a matter of law, is Plaintiff’s burden to prove. Further, Defendant does not presently 16 know all the facts concerning the conduct of Plaintiff sufficient to state all affirmative defenses at this 17 time. Defendant intends to rely upon any additional defenses that become available or apparent during 18 pretrial proceedings and discovery in this action and hereby reserves the right to seek leave to amend 19 this Answer to assert all such further defenses. Defendant also expressly denies the existence of any 20 putative class member that Plaintiff purports to represent in this lawsuit. Defendant thus expressly 21 denies the existence of any such group each and every time it references “Plaintiff” as if fully set forth 22 herein. All defenses asserted are also asserted against any putative class member. 23 FIRST AFFIRMATIVE DEFENSE. 24 (Failure to State a Claim) 25 1. As a separate and distinct affirmative defense, Defendant asserts that the Complaint, 26 and each and every alleged cause of action therein, fails to state facts sufficient to constitute a cause 27 of action upon which relief can be granted. LITTLER 28 /// MENDELSON P.C. 633 West 5th S treet 63rd Floor 2 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 SECOND AFFIRMATIVE DEFENSE 2 (Laches) 3 2. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 4 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of 5 laches. 6 THIRD AFFIRMATIVE DEFENSE 7 (Waiver) 8 3. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 9 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of 10 waiver. 11 FOURTH AFFIRMATIVE DEFENSE 12 (Unclean Hands) 13 4. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 14 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of 15 unclean hands. 16 FIFTH AFFIRMATIVE DEFENSE 17 (Estoppel) 18 5. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 19 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of 20 estoppel. 21 SIXTH AFFIRMATIVE DEFENSE 22 (Consent) 23 6. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 24 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of 25 consent. 26 /// 27 /// LITTLER 28 /// MENDELSON P.C. 633 West 5th S treet 63rd Floor 3 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Unjust Enrichment) 3 7. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 4 and each cause of action set forth therein, or some of them, are barred by the equitable doctrine of 5 unjust enrichment. 6 EIGHTH AFFIRMATIVE DEFENSE 7 (Prior or Pending Litigation –Collateral Estoppel/Res Judicata) 8 8. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 9 and each cause of action set forth therein are barred by the doctrines of collateral estoppel and/or res 10 judicata to the extent that Plaintiff or some or all putative class members have litigated issues raised 11 by the Complaint prior to adjudication of those issues in the instant action. 12 NINTH AFFIRMATIVE DEFENSE 13 (Release) 14 9. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 15 and the causes of action set forth therein are barred to the extent that Plaintiff and/or putative class 16 members have released Defendant from any liability as alleged in the Complaint prior to the 17 adjudication of those claims in the instant action. 18 TENTH AFFIRMATIVE DEFENSE 19 (Accord and Satisfaction) 20 10. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims 21 fail because Plaintiff and the putative class members have been fully paid all amounts legally owed by 22 Defendant and are barred by the doctrine of accord and satisfaction, and by accepting the payments 23 made to them, Plaintiff and the putative class members have effectuated an accord and satisfaction of 24 their claims. 25 ELEVENTH AFFIRMATIVE DEFENSE 26 (Statute of Limitations) 27 11. As a separate and distinct affirmative defense, Defendant alleges that the Complaint LITTLER 28 and each cause of action set forth therein, or some of them, are barred by the applicable statutes of MENDELSON P.C. 633 West 5th S treet 63rd Floor 4 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 limitations, including, but not limited to, California Code of Civil Procedure sections 335.1, 337, 338, 2 339, 340 and 343, and California Business & Professions Code § 17208. 3 TWELFTH AFFIRMATIVE DEFENSE 4 (Good Faith) 5 12. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 6 and each cause of action set forth therein cannot be maintained because, without admitting that any 7 violation took place, any alleged violation was not knowingly, willfully or intentionally done and/or 8 was an act or omission made in good faith, because there exists a good faith dispute as to whether 9 compensation was due and/or Defendant had reasonable grounds for believing that its wage payment 10 practices complied with applicable laws and that any act or omission was not a violation, such that 11 Plaintiff and the putative class members are not entitled to any damages, penalties or attorneys’ fees. 12 THIRTEENTH AFFIRMATIVE DEFENSE 13 (Plaintiff’s Breach of Duties) 14 13. As a separate and distinct affirmative defense, Defendant alleges that the claims of 15 Plaintiff and some or all of the putative class members are barred by their own breach of the duties 16 owed to Defendant pursuant to the California Labor Code, including but not limited to California 17 Labor Code sections 2853, 2854, 2856, 2857 and/or 2859 and/or the refusal or failure by Plaintiff 18 and/or putative class members to meet Defendant’s reasonable expectations and the job performance 19 requirements. 20 FOURTEENTH AFFIRMATIVE DEFENSE 21 (Failure to Mitigate) 22 14. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff and the 23 putative class members have failed to take reasonable steps to mitigate their alleged damages, and that 24 any right of recovery must be reduced accordingly. 25 FIFTEENTH AFFIRMATIVE DEFENSE 26 (Avoidable Consequences) 27 15. As a separate and distinct affirmative defense, Defendant alleges that the Complaint LITTLER 28 and each cause of action therein are barred by the doctrine of avoidable consequences. Plaintiff MENDELSON P.C. 633 West 5th S treet 63rd Floor 5 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 unreasonably failed to use the preventative and corrective opportunities provided to him by Defendant, 2 and reasonable use of Defendant’s procedures would have prevented at least some, if not all, of the 3 harm that Plaintiff allegedly suffered. 4 SIXTEENTH AFFIRMATIVE DEFENSE 5 (Credit and Offset) 6 16. As a separate and distinct affirmative defense, Defendant alleges that it is entitled to an 7 offset against any relief due Plaintiff and/or the putative class members based upon their respective 8 wrongful conduct and/or monies owed to Defendant, including, but not limited to, any overpayments 9 for hours worked. 10 SEVENTEENTH AFFIRMATIVE DEFENSE 11 (Substantial Compliance) 12 17. As a separate and distinct affirmative defense, and assuming arguendo Defendant had 13 failed to comply with any provision of the Labor Code, Defendant alleges that it substantially complied 14 with the Labor Code and or any applicable Wage Orders and Regulations, thus rendering an award of 15 civil penalties inappropriate under the circumstances. 16 EIGHTEENTH AFFIRMATIVE DEFENSE 17 (Claims Unconstitutional) 18 18. As a separate and distinct affirmative defense, Defendant alleges that the prosecution 19 of a class action as applied to the facts and circumstances of this case would constitute a denial of 20 Defendant’s Due Process rights, both substantive and procedural, in violation of the California 21 Constitution and the Fourteenth Amendment to the United States Constitution. 22 NINETEENTH AFFIRMATIVE DEFENSE 23 (Not Suitable for Class Action) 24 19. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 25 fails to state a cognizable class under California Code of Civil Procedure section 382 or any other 26 applicable rule or law regulating the maintenance of class actions. 27 /// LITTLER 28 /// MENDELSON P.C. 633 West 5th S treet 63rd Floor 6 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (No Class or Representative Action) 3 20. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s and/or 4 any putative class member’s purported claims are such that they cannot be tried on a class or 5 representative basis because (1) such a determination requires complex individualized factual issues, 6 (2) damages and/or penalties could not be calculated on a representative basis, (3) any damages and/or 7 penalties that might be proved would not be identical for all putative class members, and (4) trying 8 such a class or representative action would be unmanageable. 9 TWENTY-FIRST AFFIRMATIVE DEFENSE 10 (Inadequate Class Representative) 11 21. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s class 12 action claims are barred in whole or in part because Plaintiff is an inadequate class representative as 13 to the claims asserted. 14 TWENTY-SECOND AFFIRMATIVE DEFENSE 15 (No Standing) 16 22. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff lacks 17 standing to assert the legal rights or interests of others. 18 TWENTY-THIRD AFFIRMATIVE DEFENSE 19 (Statutes Unconstitutionally Vague) 20 23. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is 21 barred, in whole or in part, because the applicable wage orders of the California Industrial Welfare 22 Commission and provisions of the California Labor Code are unconstitutionally vague and ambiguous 23 and violate Defendant’s due process rights under the United States and California Constitutions. 24 TWENTY-FOURTH AFFIRMATIVE DEFENSE 25 (Excessive Fines Clause) 26 24. As a separate and distinct affirmative defense, Defendant alleges that to the extent that 27 Plaintiff seeks statutory or other penalties, such claims are unconstitutional under the United States LITTLER 28 and California Constitutional provisions of the excessive fines clauses. MENDELSON P.C. 633 West 5th S treet 63rd Floor 7 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (Attorneys’ Fees) 3 25. As a separate and distinct affirmative defense, Defendant alleges the Complaint, and 4 each and every cause of action alleged therein, fails to state a claim for an award of costs or attorneys’ 5 fees under California Labor Code section 218.5, Code of Civil Procedure section 1021.5, California 6 Business and Professions Code section 17200, et seq., or any other basis. 7 TWENTY-SIXTH AFFIRMATIVE DEFENSE 8 (UCL Relief Barred) 9 26. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims 10 for restitution pursuant to California Business and Professions Code section 17200 et seq., are barred 11 to the extent they constitute claims for damages, are barred with respect to penalties of any nature, 12 and/or are barred to the extent the alleged violations have been discontinued, ceased, or are not likely 13 to recur. 14 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 15 (Labor Code §201 – 203 Penalties Barred) 16 27. Defendant is informed and believes that a reasonable opportunity for investigation and 17 discovery will reveal and, on that basis alleges, that Plaintiff’s and/or any putative class member’s 18 claims for penalties are barred because there are bona fide disputes as to whether Defendant failed to 19 timely pay all wages due and Defendant has not knowingly, intentionally or willfully failed to pay 20 such compensation, if any is owed. 21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 22 (Cal-WARN Not Applicable) 23 28. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is 24 barred in whole or in part because the California Worker Adjustment and Retraining Notification 25 (“Cal-WARN”) Act is not applicable to Plaintiff’s and/or any putative class member’s claims and 26 because Plaintiff and the putative class members he seeks to represent did not suffer any actionable 27 harm or are not entitled to any relief pursuant to Cal-WARN. LITTLER 28 /// MENDELSON P.C. 633 West 5th S treet 63rd Floor 8 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 (Federal Arbitration Act) 3 29. As a separate and distinct affirmative defense, Defendant alleges that the Complaint, 4 and each purported cause of action alleged therein, is barred on the grounds that this Court lacks 5 subject matter jurisdiction over the matter to the extent that Plaintiff and/or the putative class members 6 are contractually obligated to submit their claims to binding arbitration pursuant to the Federal 7 Arbitration Act, 8 U.S.C. §§ 1, et seq. 8 ADDITIONAL AFFIRMATIVE DEFENSES 9 Defendant presently has insufficient knowledge or information upon which to form a belief as 10 to whether additional, as yet unstated, defenses may be warranted and reserves the right to seek leave 11 of court to assert additional defenses or affirmative defenses in the event discovery indicates such 12 defenses are appropriate. 13 PRAYER FOR RELIEF 14 WHEREFORE, Defendant prays that: 15 1. This action be prohibited from proceeding as a representative action; 16 2. Plaintiff and the putative class members take nothing by way of the Complaint; 17 3. Plaintiff’s Complaint be dismissed in its entirety with judgment entered against 18 Plaintiff and in favor of Defendant on all of Plaintiff’s causes of action; 19 4. Plaintiff be ordered to pay Defendant’s attorneys’ fees and costs, including but not 20 limited to attorneys’ fees and costs provided under California Labor Code section 218.5; and 21 5. Defendant be awarded such other and further relief as the Court deems just and proper. 22 Dated: April 22, 2024 23 LITTLER MENDELSON, P.C. 24 25 Curtis A. Graham 26 Melanie Rollins 27 Attorneys for Defendant KELLY-MOORE PAINT COMPANY, INC. LITTLER 28 MENDELSON P.C. 633 West 5th S treet 63rd Floor 9 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300 1 PROOF OF SERVICE 2 I am employed in the County of Los Angeles, State of California, over the age of eighteen 3 years, and not a party of the within action. My business address is: 2049 Century Park East, Suite 4 500, Los Angeles, CA 90067. On April 22, 2024, I served the foregoing document(s) described as 5 DEFENDANT KELLY-MOORE PAINT COMPANY, INC.’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 6 7 on the interested parties in this as follows: 8 James R. Hawkins, Esq. Attorneys for Plaintiff Scott Bundy Gregory Mauro, Esq. Email: James@jameshawlcinsaplc.com 9 Michael Calvo, Esq. Email: Greg@jameshawkinsaplc.com Lauren Falk, Esq. Email: Michael@jameshawkinsaplc.com 10 Ava Issary, Esq. Email: Lauren@jameshawkinsaplc.com JAMES HAWKINS APLC Email: Ava@jameshawlcinsaplc.com 11 9880 Research Drive, Suite 200 12 Irvine, CA 92618 T: (949) 387-7200 13 F: (949) 387-6676 14 15 VIA ELECTRONIC SERVICE: Based on a court order or an agreement of the parties to accept electronic service, including pursuant to Code of Civil Procedure 16 section 1010.6, which allows for service by e-mail or electronic transmission, I caused 17 the documents to be sent to the persons at the electronic service addresses listed herein. My email address is mgerard@littler.com. 18 19 I declare under penalty of perjury under the laws of the State of California that the above is 20 true and correct. 21 Executed on April 22, 2024 at Los Angeles, California. 22 23 24 Mary Ann Gerard 25 [Signature] 26 4876-7072-0691.2 / 001665-1115 27 LITTLER 28 MENDELSON P.C. 633 West 5th S treet 63rd Floor 10 Los Angeles, CA 90071 DEFENDANT’S ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT 213.443.4300