Preview
1 Cedric Severino (SBN 247648)
LAW OFFICES OF CEDRIC SEVERINO
2 295 Cattail Lane
North Liberty, IA 52317
3 Telephone: (323) 514-5499
Law@CedricSeverino.com
4
Attorneys for Defendants,
5 VITALITY CA, LLC and
GUY SHANI
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF MONTEREY
10
11
L. PINA, an Individual, CASE NO. 24CV000515
12
Plaintiff,
13 DEFENDANTS GUY SHANI AND
vs. VITALITY CA, LLC’S ANSWER TO L.
14 PINA’S COMPLAINT FOR DAMAGES
VITALITY CA, LLC, a limited liability AND INJUNCTIVE RELIEF
15 company formed in the state of Nevada;
GUY SHANI, an individual; and DOES 1
16 through 10, inclusive, COMPLAINT FILED: FEBRUARY 8, 2024
17 Defendants. JUDGE: HON. VANESSA W. VALLARTA
18
19
20 DEFENDANTS, VITALITY CA, LLC and GUY SHANI (“Defendants”), answering PLAINTIFF
21 L. PINA’S (“Plaintiff”) unverified Complaint for Damages and Injunctive Relief (hereinafter
22 “Complaint”) on file herein and each of the separate causes of action therein, submit the following
23 response to the Complaint filed by Plaintiff.
24 GENERAL DENIAL
25 Pursuant to the provisions of the California Code of Civil Procedure section 431.30(d),
26 Defendants deny generally and specifically each and every allegation contained in Plaintiff’s
27 Complaint. In addition, Defendants deny that Plaintiff has sustained, or will sustain, any loss or
28 1
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
1 damage in the manner of amount alleged, or otherwise, by reason of any act or omission, or any
2 other conduct or absence thereof on the part of Defendants, or at all.
3
4 AFFIRMATIVE DEFENSES
5 As separate and distinct affirmative defenses to Plaintiff’s Complaint, Defendants allege as
6 follows:
7 FIRST AFFIRMATIVE DEFENSE
8 (Failure to State a Claim)
9 As a separate and distinct affirmative defense, Defendants allege that the Complaint, and
10 each and every alleged cause of action therein, fails to state facts sufficient to constitute a cause of
11 action upon which relief can be granted.
12 SECOND AFFIRMATIVE DEFENSE
13 (Offset)
14 As a separate and distinct affirmative defense, Defendants allege that it is entitled to credit
15 or offset for any amounts overpaid to Plaintiff during the course of his employment with
16 Defendants.
17 THIRD AFFIRMATIVE DEFENSE
18 (No Violation)
19 As a separate and distinct affirmative defense, Defendants allege that it did not violate the
20 California Labor Code, the California Business and Professions Code, or applicable Wage Orders
21 issued by the Industrial Welfare Commission.
22 FOURTH AFFIRMATIVE DEFENSE
23 (No Failure to Provide Meal Periods or Rest Breaks)
24 As a separate and distinct affirmative defense, Defendants allege that it did not fail to
25 provide meal periods or rest breaks pursuant to the California Labor Code, applicable Wage Orders
26 issued by the Industrial Welfare Commission, or any other basis.
27
28 2
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
1 FIFTH AFFIRMATIVE DEFENSE
2 (Good Faith)
3 As a separate and distinct affirmative defense, Defendants allege that any violation of the
4 Labor Code or an Order of the Industrial Welfare Commission was an act or omission made in good
5 faith and Defendants had reasonable grounds for believing their payment, overtime, meal and rest
6 period practices complied with applicable laws and that such an omission was not a violation of the
7 Labor Code or any Order of the Industrial Welfare Commission such that Plaintiff is not entitled to
8 any damages.
9 SIXTH AFFIRMATIVE DEFENSE
10 (Accord and Satisfaction)
11 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are
12 barred, in whole or in part, because Plaintiff has been fully compensated for any wages owed, and
13 by accepting the payments made to them, have effectuated an accord and satisfaction of their
14 claims.
15 SEVENTH AFFIRMATIVE DEFENSE
16 (Not Suffered or Permitted to Work)
17 As a separate and distinct affirmative defense, Defendants allege that Plaintiff was not
18 suffered or permitted to work during any time for which they were allegedly not paid the
19 appropriate wage rate, including the proper minimum wage and overtime rates.
20 EIGHTH AFFIRMATIVE DEFENSE
21 (Not Hours Worked)
22 As a separate and distinct affirmative defense, Defendants allege that some or all of the
23 hours for which Plaintiff claims compensation are not considered hours worked under California
24 law.
25 NINTH AFFIRMATIVE DEFENSE
26 (Hours Worked Were De Minimis)
27 As a separate and distinct affirmative defense, Defendants allege that, to the extent that
28 3
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
1 Plaintiff claims he was entitled to pay for time he spent working or working overtime, such time
2 was de minimis.
3 TENTH AFFIRMATIVE DEFENSE
4 (Exempt)
5 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are
6 barred, in whole or in party, because Plaintiff was exempt from applicable California law providing
7 for the payment of meal breaks, rest breaks, and/or overtime wages and premiums as alleged in
8 Plaintiff’s Complaint.
9 ELEVENTH AFFIRMATIVE DEFENSE
10 (Failure to Exhaust, Administrative Remedies)
11 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are
12 barred, in whole or in part, because Plaintiff failed to exhaust his administrative remedies and/or
13 otherwise failed to comply with the statutory prerequisites to the bringing of this action.
14 TWELFTH AFFIRMATIVE DEFENSE
15 (Failure to Exhaust, Internal Remedies)
16 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are
17 barred, in whole or in part, because Plaintiff failed to exhaust Defendant Vitality CA, LLC’s
18 internal remedies prior to bringing this action.
19 THIRTEENTH AFFIRMATIVE DEFENSE
20 (Statutes of Limitations)
21 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are
22 barred by the applicable statutes of limitations, including , but not limited to, the three-year
23 limitations period contained in California Code of Civil Procedure § 338(a); the one-year limitations
24 period governing recovery of statutory penalties contained in California Code of Civil Procedure §
25 340(a); the four-year limitations period found in Business and Professions Code § 17208; and/or
26 any other applicable statute of limitations.
27
28 4
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Failure to Mitigate)
3 As a separate and distinct affirmative defense, without admitting that Plaintiff is entitled to
4 any recovery, Defendants allege that any recovery to which Plaintiff might be entitled must be
5 reduced because of Plaintiff’s failure to mitigate his damages, if any.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (Lack of Knowledge – Plaintiff’s Conduct)
8 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims for
9 pay for hours worked (including overtime) and for meal and rest periods are barred to the extent that
10 the employer had no knowledge of or reason to know that Plaintiff was working for time for which
11 Plaintiff was not paid, or that he was not taking meal or best breaks in accordance with the law.
12 SIXTEENTH AFFIRMATIVE DEFENSE
13 (Avoidable Consequences)
14 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are
15 barred, in whole or in part, or any recovery should be reduced, pursuant to the avoidable
16 consequences doctrine, because Defendants took reasonable steps to prevent and correct alleged
17 violations of wage and hour laws; Plaintiff unreasonably failed to use the preventative and
18 corrective opportunities provided by Defendants; Defendants communicated those procedures to
19 Plaintiff during his employment; Plaintiff was aware of such procedures; and reasonable use of
20 Defendant Vitality CA, LLC’s procedures would have prevented at least some of the harm that
21 Plaintiff allegedly suffered.
22 SEVENTEENTH AFFIRMATIVE DEFENSE
23 (Attorney’s Fees Unavailable)
24 As a separate and distinct affirmative defense, Defendants allege that Plaintiff has failed to
25 state facts sufficient to constitute a claim for which attorney’s fees and costs may be granted.
26
27
28 5
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 (No Unpaid Minimum Wages)
3 As a separate and distinct affirmative defense, Defendants allege that it did not fail to
4 provide payment of minimum wages pursuant to the California Labor Code, applicable Wage
5 Orders issued by the Industrial Welfare Commission, or any other basis.
6 NINETEENTH AFFIRMATIVE DEFENSE
7 (No Unpaid Overtime)
8 As a separate and distinct affirmative defense, Defendants allege that it did not fail to
9 provide payment of overtime wages pursuant to the California Labor Code, applicable Wage Orders
10 issued by the Industrial Welfare Commission, or any other basis.
11 TWENTIETH AFFIRMATIVE DEFENSE
12 (Contributory or Comparative Cause, Plaintiff)
13 As a separate and distinct affirmative defense, Defendants allege that any loss, injury,
14 damage, or detriment as alleged in Plaintiff’s Complaint was caused and contributed to by the
15 actions of Plaintiff herself in that Plaintiff’s own acts and omissions proximately cause and
16 contributed to the loss, injury, damages and detriment alleged. Plaintiff’s recovery from Defendants,
17 if any, should be reduced in proportion to the percentage of Plaintiff’s own negligence or proportion
18 of fault.
19 TWENTY-FIRST AFFIRMATIVE DEFENSE
20 (Equitable Defenses)
21 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are
22 barred by the equitable doctrines of estoppel, waiver, unclean hands, consent, res judicata and/or
23 laches.
24 TWENTY-SECOND AFFIRMATIVE DEFENSE
25 (Mitigation of Damages)
26 As a separate and distinct affirmative defense, Defendants allege that if Plaintiff has
27 obtained monies from other sources as compensation for injuries alleged in its Company, any such
28 6
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
1 monies must be set off against any damages allegedly due Plaintiff by Defendants.
2 TWENTY-THIRD AFFIRMATIVE DEFENSE
3 (Pre-Judgment Interest Uncertain)
4 As a separate and distinct affirmative defense, Defendants allege that the Complaint fails to
5 properly state a claim for prejudgment interest, as the damages claimed are not sufficiently certain
6 to support an award of prejudgment interest.
7 TWENTY-FOURTH AFFIRMATIVE DEFENSE
8 (Past Earnings Damages Inapplicable)
9 As a separate and distinct affirmative defense, Defendants allege that some or all of the
10 Plaintiff’s claims are barred by Plaintiff’s consent to and/or voluntary participation in all or some of
11 the acts alleged, or conduct similar thereto.
12 TWENTY-FIFTH AFFIRMATIVE DEFENSE
13 (No Employment Relationship between Plaintiff and Defendant Guy Shani)
14 As a separate and distinct affirmative defense, Defendant Guy Shani alleges that Plaintiff’s
15 Complaint and each cause of action fail to support the existence of an employer-employee
16 relationship between Plaintiff and Defendant Guy Shani under applicable law.
17 TWENTY-SIXTH AFFIRMATIVE DEFENSE
18 (No Alter Ego or Other Relationship that Makes Guy Shani Liable for Vitality CA, LLC’s Actions)
19 As a separate and distinct affirmative defense, Defendant Guy Shani alleges that Plaintiff’s
20 Complaint and each cause of action fail to support that Defendant Guy Shani was or is the alter ego,
21 joint-venturer, co-employer, joint employer, agent, servant, employee, co-venturer, or co-
22 conspirator of Defendant Vitality CA, LLC.
23 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
24 (No Itemized Wage Statement Violations)
25 As a separate and distinct affirmative defense, Defendants allege that they didn’t fail to
26 provide itemized wage statements pursuant to the California Labor Code.
27
28 7
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
1 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
2 (No Waiting Time Penalties)
3 As a separate and distinct affirmative defense, Defendants allege that they did not fail to pay
4 unpaid wages and waiting time penalties pursuant to the California Labor Code.
5 TWENTY-NINTH AFFIRMATIVE DEFENSE
6 (No Unfair Business Practices)
7 As a separate and distinct affirmative defense, Defendants allege that they did not commit
8 any unfair business practices pursuant to the California Business and Professions Code.
9 ADDITIONAL AFFIRMATIVE DEFENSES
10 As a separate and distinct affirmative defense, Defendants state that it does not presently
11 know all facts concerning the conduct of Plaintiff and his claims sufficient to state all affirmative
12 defenses at this time. Defendants will seek leave of this Court to amend this Answer should they
13 later discover facts demonstrating the existence of additional affirmative defenses.
14
15 PRAYER FOR RELIEF
16 WHEREFORE, Defendants pray for judgment as follows:
17 1. That the entire Complaint be dismissed with prejudice;
18 2. That Plaintiff take nothing by way of his Complaint;
19 3. That Plaintiff be ordered to pay Defendants’ costs and attorney’s fees as permitted by law;
20 and;
21 4. For such other and further relief that the Court deems just and proper.
22
23 DATED: April 24, 2024
24
__________________________________
25 Cedric Severino
LAW OFFICES OF CEDRIC SEVERINO
26 Attorney for Defendants, GUY SHANI
and VITALITY CA, LLC
27
28 8
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO
PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF
POS-040
ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO: 247,648 FOR COURT USE ONLY
NAME: Cedric Severino
FIRM NAME: Law Offices of Cedric Severino
STREET ADDRESS: 295 Cattail Lane
CITY: North Liberty STATE: IA ZIP CODE: 52317
TELEPHONE NO.: 323-514-5499 FAX NO. :
E-MAIL ADDRESS: Law@CedricSeverino.com
ATTORNEY FOR (name): Vitality CA, LLC and GUY SHANI
SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
STREET ADDRESS: 1200 Aguajito Road
MAILING ADDRESS:
CITY AND ZIP CODE: Monterey, CA 93940
BRANCH NAME: Monterey Courthouse
CASE NUMBER:
Plaintiff/Petitioner: L. Pina 24CV000515
Defendant/Respondent: Vitality CA, LLC and Guy Shani
JUDICIAL OFFICER:
PROOF OF SERVICE—CIVIL Hon. Vanessa W. Vallarta
Check method of service (only one):
By Personal Service By Mail By Overnight Delivery DEPARTMENT:
13A
By Messenger Service By Fax
Do not use this form to show service of a summons and complaint or for electronic service.
See USE OF THIS FORM on page 3.
1. At the time of service I was over 18 years of age and not a party to this action.
2. My residence or business address is:
295 Cattail Lane, North Liberty, IA 52317
3. The fax number from which I served the documents is (complete if service was by fax):
4. On (date): April 23, 2024 I served the following documents (specify):
DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO L. PINA’S COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF
5. I served the documents on the person or persons below, as follows:
a. Name of person served: Donald L. Mabry
b. (Complete if service was by personal service, mail, overnight delivery, or messenger service.)
Business or residential address where person was served:
Hutkin Law Firm, APC 1220 Marsh Street San Luis Obispo, CA 93401
c. (Complete if service was by fax.)
Fax number where person was served:
The names, addresses, and other applicable information about persons served is on the Attachment to Proof of Service—
Civil (Persons Served) (form POS-040(P)).
6. The documents were served by the following means (specify):
a. By personal service. I personally delivered the documents to the persons at the addresses listed in item 5. (1) For a
party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by leaving the documents at the
attorney's office, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an
individual in charge of the office; or (c) if there was no person in the office with whom the notice or papers could be left, by
leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the evening. (2) For
a party, delivery was made to the party or by leaving the documents at the party's residence with some person not
younger than 18 years of age between the hours of eight in the morning and eight in the evening.
Page 1 of 3
Form Approved for Optional Use
Judicial Council of California
PROOF OF SERVICE—CIVIL Code of Civil Procedure, §§ 1011, 1013, 1013a,
2015.5; Cal. Rules of Court, rule 2.306
POS-040 [Rev. January 1, 2020] (Proof of Service) www.courts.ca.gov
POS-040
CASE NAME: CASE NUMBER:
L. Pina v. Vitality CA, LLC, et. al. 24CV000515
6. b. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the
addresses in item 5 and (specify one):
(1)
(2)
I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at
(city and state): North Liberty, IA
c. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier
and addressed to the persons at the addresses in item 5. I placed the envelope or package for collection and overnight
delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
d. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at
the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the
messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.)
e. By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents
to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that I used. A copy of the
record of the fax transmission, which I printed out, is attached.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: April 24, 2024
Cedric Severino
(TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT)
(If item 6d above is checked, the declaration below must be completed or a separate declaration from a messenger must be attached.)
DECLARATION OF MESSENGER
By personal service. I personally delivered the envelope or package received from the declarant above to the persons at the
addresses listed in item 5. (1) For a party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by
leaving the documents at the attorney's office, in an envelope or package clearly labeled to identify the attorney being served,
with a receptionist or an individual in charge of the office; or (c) if there was no person in the office with whom the notice or
papers could be left, by leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the
evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person
not younger than 18 years of age between the hours of eight in the morning and eight in the evening.
At the time of service, I was over 18 years of age. I am not a party to the above-referenced legal proceeding.
I served the envelope or package, as stated above, on (date):
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
(NAME OF DECLARANT) (SIGNATURE OF DECLARANT)
POS-040 [Rev. January 1, 2020] PROOF OF SERVICE—CIVIL Page 2 of 3
(Proof of Service)
Preview
1 Cedric Severino (SBN 247648) LAW OFFICES OF CEDRIC SEVERINO 2 295 Cattail Lane North Liberty, IA 52317 3 Telephone: (323) 514-5499 Law@CedricSeverino.com 4 Attorneys for Defendants, 5 VITALITY CA, LLC and GUY SHANI 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF MONTEREY 10 11 L. PINA, an Individual, CASE NO. 24CV000515 12 Plaintiff, 13 DEFENDANTS GUY SHANI AND vs. VITALITY CA, LLC’S ANSWER TO L. 14 PINA’S COMPLAINT FOR DAMAGES VITALITY CA, LLC, a limited liability AND INJUNCTIVE RELIEF 15 company formed in the state of Nevada; GUY SHANI, an individual; and DOES 1 16 through 10, inclusive, COMPLAINT FILED: FEBRUARY 8, 2024 17 Defendants. JUDGE: HON. VANESSA W. VALLARTA 18 19 20 DEFENDANTS, VITALITY CA, LLC and GUY SHANI (“Defendants”), answering PLAINTIFF 21 L. PINA’S (“Plaintiff”) unverified Complaint for Damages and Injunctive Relief (hereinafter 22 “Complaint”) on file herein and each of the separate causes of action therein, submit the following 23 response to the Complaint filed by Plaintiff. 24 GENERAL DENIAL 25 Pursuant to the provisions of the California Code of Civil Procedure section 431.30(d), 26 Defendants deny generally and specifically each and every allegation contained in Plaintiff’s 27 Complaint. In addition, Defendants deny that Plaintiff has sustained, or will sustain, any loss or 28 1 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF 1 damage in the manner of amount alleged, or otherwise, by reason of any act or omission, or any 2 other conduct or absence thereof on the part of Defendants, or at all. 3 4 AFFIRMATIVE DEFENSES 5 As separate and distinct affirmative defenses to Plaintiff’s Complaint, Defendants allege as 6 follows: 7 FIRST AFFIRMATIVE DEFENSE 8 (Failure to State a Claim) 9 As a separate and distinct affirmative defense, Defendants allege that the Complaint, and 10 each and every alleged cause of action therein, fails to state facts sufficient to constitute a cause of 11 action upon which relief can be granted. 12 SECOND AFFIRMATIVE DEFENSE 13 (Offset) 14 As a separate and distinct affirmative defense, Defendants allege that it is entitled to credit 15 or offset for any amounts overpaid to Plaintiff during the course of his employment with 16 Defendants. 17 THIRD AFFIRMATIVE DEFENSE 18 (No Violation) 19 As a separate and distinct affirmative defense, Defendants allege that it did not violate the 20 California Labor Code, the California Business and Professions Code, or applicable Wage Orders 21 issued by the Industrial Welfare Commission. 22 FOURTH AFFIRMATIVE DEFENSE 23 (No Failure to Provide Meal Periods or Rest Breaks) 24 As a separate and distinct affirmative defense, Defendants allege that it did not fail to 25 provide meal periods or rest breaks pursuant to the California Labor Code, applicable Wage Orders 26 issued by the Industrial Welfare Commission, or any other basis. 27 28 2 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF 1 FIFTH AFFIRMATIVE DEFENSE 2 (Good Faith) 3 As a separate and distinct affirmative defense, Defendants allege that any violation of the 4 Labor Code or an Order of the Industrial Welfare Commission was an act or omission made in good 5 faith and Defendants had reasonable grounds for believing their payment, overtime, meal and rest 6 period practices complied with applicable laws and that such an omission was not a violation of the 7 Labor Code or any Order of the Industrial Welfare Commission such that Plaintiff is not entitled to 8 any damages. 9 SIXTH AFFIRMATIVE DEFENSE 10 (Accord and Satisfaction) 11 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are 12 barred, in whole or in part, because Plaintiff has been fully compensated for any wages owed, and 13 by accepting the payments made to them, have effectuated an accord and satisfaction of their 14 claims. 15 SEVENTH AFFIRMATIVE DEFENSE 16 (Not Suffered or Permitted to Work) 17 As a separate and distinct affirmative defense, Defendants allege that Plaintiff was not 18 suffered or permitted to work during any time for which they were allegedly not paid the 19 appropriate wage rate, including the proper minimum wage and overtime rates. 20 EIGHTH AFFIRMATIVE DEFENSE 21 (Not Hours Worked) 22 As a separate and distinct affirmative defense, Defendants allege that some or all of the 23 hours for which Plaintiff claims compensation are not considered hours worked under California 24 law. 25 NINTH AFFIRMATIVE DEFENSE 26 (Hours Worked Were De Minimis) 27 As a separate and distinct affirmative defense, Defendants allege that, to the extent that 28 3 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF 1 Plaintiff claims he was entitled to pay for time he spent working or working overtime, such time 2 was de minimis. 3 TENTH AFFIRMATIVE DEFENSE 4 (Exempt) 5 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are 6 barred, in whole or in party, because Plaintiff was exempt from applicable California law providing 7 for the payment of meal breaks, rest breaks, and/or overtime wages and premiums as alleged in 8 Plaintiff’s Complaint. 9 ELEVENTH AFFIRMATIVE DEFENSE 10 (Failure to Exhaust, Administrative Remedies) 11 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are 12 barred, in whole or in part, because Plaintiff failed to exhaust his administrative remedies and/or 13 otherwise failed to comply with the statutory prerequisites to the bringing of this action. 14 TWELFTH AFFIRMATIVE DEFENSE 15 (Failure to Exhaust, Internal Remedies) 16 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are 17 barred, in whole or in part, because Plaintiff failed to exhaust Defendant Vitality CA, LLC’s 18 internal remedies prior to bringing this action. 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 (Statutes of Limitations) 21 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are 22 barred by the applicable statutes of limitations, including , but not limited to, the three-year 23 limitations period contained in California Code of Civil Procedure § 338(a); the one-year limitations 24 period governing recovery of statutory penalties contained in California Code of Civil Procedure § 25 340(a); the four-year limitations period found in Business and Professions Code § 17208; and/or 26 any other applicable statute of limitations. 27 28 4 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Failure to Mitigate) 3 As a separate and distinct affirmative defense, without admitting that Plaintiff is entitled to 4 any recovery, Defendants allege that any recovery to which Plaintiff might be entitled must be 5 reduced because of Plaintiff’s failure to mitigate his damages, if any. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 (Lack of Knowledge – Plaintiff’s Conduct) 8 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims for 9 pay for hours worked (including overtime) and for meal and rest periods are barred to the extent that 10 the employer had no knowledge of or reason to know that Plaintiff was working for time for which 11 Plaintiff was not paid, or that he was not taking meal or best breaks in accordance with the law. 12 SIXTEENTH AFFIRMATIVE DEFENSE 13 (Avoidable Consequences) 14 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are 15 barred, in whole or in part, or any recovery should be reduced, pursuant to the avoidable 16 consequences doctrine, because Defendants took reasonable steps to prevent and correct alleged 17 violations of wage and hour laws; Plaintiff unreasonably failed to use the preventative and 18 corrective opportunities provided by Defendants; Defendants communicated those procedures to 19 Plaintiff during his employment; Plaintiff was aware of such procedures; and reasonable use of 20 Defendant Vitality CA, LLC’s procedures would have prevented at least some of the harm that 21 Plaintiff allegedly suffered. 22 SEVENTEENTH AFFIRMATIVE DEFENSE 23 (Attorney’s Fees Unavailable) 24 As a separate and distinct affirmative defense, Defendants allege that Plaintiff has failed to 25 state facts sufficient to constitute a claim for which attorney’s fees and costs may be granted. 26 27 28 5 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 (No Unpaid Minimum Wages) 3 As a separate and distinct affirmative defense, Defendants allege that it did not fail to 4 provide payment of minimum wages pursuant to the California Labor Code, applicable Wage 5 Orders issued by the Industrial Welfare Commission, or any other basis. 6 NINETEENTH AFFIRMATIVE DEFENSE 7 (No Unpaid Overtime) 8 As a separate and distinct affirmative defense, Defendants allege that it did not fail to 9 provide payment of overtime wages pursuant to the California Labor Code, applicable Wage Orders 10 issued by the Industrial Welfare Commission, or any other basis. 11 TWENTIETH AFFIRMATIVE DEFENSE 12 (Contributory or Comparative Cause, Plaintiff) 13 As a separate and distinct affirmative defense, Defendants allege that any loss, injury, 14 damage, or detriment as alleged in Plaintiff’s Complaint was caused and contributed to by the 15 actions of Plaintiff herself in that Plaintiff’s own acts and omissions proximately cause and 16 contributed to the loss, injury, damages and detriment alleged. Plaintiff’s recovery from Defendants, 17 if any, should be reduced in proportion to the percentage of Plaintiff’s own negligence or proportion 18 of fault. 19 TWENTY-FIRST AFFIRMATIVE DEFENSE 20 (Equitable Defenses) 21 As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are 22 barred by the equitable doctrines of estoppel, waiver, unclean hands, consent, res judicata and/or 23 laches. 24 TWENTY-SECOND AFFIRMATIVE DEFENSE 25 (Mitigation of Damages) 26 As a separate and distinct affirmative defense, Defendants allege that if Plaintiff has 27 obtained monies from other sources as compensation for injuries alleged in its Company, any such 28 6 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF 1 monies must be set off against any damages allegedly due Plaintiff by Defendants. 2 TWENTY-THIRD AFFIRMATIVE DEFENSE 3 (Pre-Judgment Interest Uncertain) 4 As a separate and distinct affirmative defense, Defendants allege that the Complaint fails to 5 properly state a claim for prejudgment interest, as the damages claimed are not sufficiently certain 6 to support an award of prejudgment interest. 7 TWENTY-FOURTH AFFIRMATIVE DEFENSE 8 (Past Earnings Damages Inapplicable) 9 As a separate and distinct affirmative defense, Defendants allege that some or all of the 10 Plaintiff’s claims are barred by Plaintiff’s consent to and/or voluntary participation in all or some of 11 the acts alleged, or conduct similar thereto. 12 TWENTY-FIFTH AFFIRMATIVE DEFENSE 13 (No Employment Relationship between Plaintiff and Defendant Guy Shani) 14 As a separate and distinct affirmative defense, Defendant Guy Shani alleges that Plaintiff’s 15 Complaint and each cause of action fail to support the existence of an employer-employee 16 relationship between Plaintiff and Defendant Guy Shani under applicable law. 17 TWENTY-SIXTH AFFIRMATIVE DEFENSE 18 (No Alter Ego or Other Relationship that Makes Guy Shani Liable for Vitality CA, LLC’s Actions) 19 As a separate and distinct affirmative defense, Defendant Guy Shani alleges that Plaintiff’s 20 Complaint and each cause of action fail to support that Defendant Guy Shani was or is the alter ego, 21 joint-venturer, co-employer, joint employer, agent, servant, employee, co-venturer, or co- 22 conspirator of Defendant Vitality CA, LLC. 23 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 24 (No Itemized Wage Statement Violations) 25 As a separate and distinct affirmative defense, Defendants allege that they didn’t fail to 26 provide itemized wage statements pursuant to the California Labor Code. 27 28 7 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF 1 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 2 (No Waiting Time Penalties) 3 As a separate and distinct affirmative defense, Defendants allege that they did not fail to pay 4 unpaid wages and waiting time penalties pursuant to the California Labor Code. 5 TWENTY-NINTH AFFIRMATIVE DEFENSE 6 (No Unfair Business Practices) 7 As a separate and distinct affirmative defense, Defendants allege that they did not commit 8 any unfair business practices pursuant to the California Business and Professions Code. 9 ADDITIONAL AFFIRMATIVE DEFENSES 10 As a separate and distinct affirmative defense, Defendants state that it does not presently 11 know all facts concerning the conduct of Plaintiff and his claims sufficient to state all affirmative 12 defenses at this time. Defendants will seek leave of this Court to amend this Answer should they 13 later discover facts demonstrating the existence of additional affirmative defenses. 14 15 PRAYER FOR RELIEF 16 WHEREFORE, Defendants pray for judgment as follows: 17 1. That the entire Complaint be dismissed with prejudice; 18 2. That Plaintiff take nothing by way of his Complaint; 19 3. That Plaintiff be ordered to pay Defendants’ costs and attorney’s fees as permitted by law; 20 and; 21 4. For such other and further relief that the Court deems just and proper. 22 23 DATED: April 24, 2024 24 __________________________________ 25 Cedric Severino LAW OFFICES OF CEDRIC SEVERINO 26 Attorney for Defendants, GUY SHANI and VITALITY CA, LLC 27 28 8 DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO PLAINTIFF L. PINA’S COMPLAINT FOR DAMAGES AND INJUCTIVE RELIEF POS-040 ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO: 247,648 FOR COURT USE ONLY NAME: Cedric Severino FIRM NAME: Law Offices of Cedric Severino STREET ADDRESS: 295 Cattail Lane CITY: North Liberty STATE: IA ZIP CODE: 52317 TELEPHONE NO.: 323-514-5499 FAX NO. : E-MAIL ADDRESS: Law@CedricSeverino.com ATTORNEY FOR (name): Vitality CA, LLC and GUY SHANI SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY STREET ADDRESS: 1200 Aguajito Road MAILING ADDRESS: CITY AND ZIP CODE: Monterey, CA 93940 BRANCH NAME: Monterey Courthouse CASE NUMBER: Plaintiff/Petitioner: L. Pina 24CV000515 Defendant/Respondent: Vitality CA, LLC and Guy Shani JUDICIAL OFFICER: PROOF OF SERVICE—CIVIL Hon. Vanessa W. Vallarta Check method of service (only one): By Personal Service By Mail By Overnight Delivery DEPARTMENT: 13A By Messenger Service By Fax Do not use this form to show service of a summons and complaint or for electronic service. See USE OF THIS FORM on page 3. 1. At the time of service I was over 18 years of age and not a party to this action. 2. My residence or business address is: 295 Cattail Lane, North Liberty, IA 52317 3. The fax number from which I served the documents is (complete if service was by fax): 4. On (date): April 23, 2024 I served the following documents (specify): DEFENDANTS GUY SHANI AND VITALITY CA, LLC’S ANSWER TO L. PINA’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 5. I served the documents on the person or persons below, as follows: a. Name of person served: Donald L. Mabry b. (Complete if service was by personal service, mail, overnight delivery, or messenger service.) Business or residential address where person was served: Hutkin Law Firm, APC 1220 Marsh Street San Luis Obispo, CA 93401 c. (Complete if service was by fax.) Fax number where person was served: The names, addresses, and other applicable information about persons served is on the Attachment to Proof of Service— Civil (Persons Served) (form POS-040(P)). 6. The documents were served by the following means (specify): a. By personal service. I personally delivered the documents to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by leaving the documents at the attorney's office, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office; or (c) if there was no person in the office with whom the notice or papers could be left, by leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and eight in the evening. Page 1 of 3 Form Approved for Optional Use Judicial Council of California PROOF OF SERVICE—CIVIL Code of Civil Procedure, §§ 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rule 2.306 POS-040 [Rev. January 1, 2020] (Proof of Service) www.courts.ca.gov POS-040 CASE NAME: CASE NUMBER: L. Pina v. Vitality CA, LLC, et. al. 24CV000515 6. b. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 5 and (specify one): (1) (2) I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at (city and state): North Liberty, IA c. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 5. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. d. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.) e. By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: April 24, 2024 Cedric Severino (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) (If item 6d above is checked, the declaration below must be completed or a separate declaration from a messenger must be attached.) DECLARATION OF MESSENGER By personal service. I personally delivered the envelope or package received from the declarant above to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was made (a) to the attorney personally; or (b) by leaving the documents at the attorney's office, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office; or (c) if there was no person in the office with whom the notice or papers could be left, by leaving them in a conspicuous place in the office between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and eight in the evening. At the time of service, I was over 18 years of age. I am not a party to the above-referenced legal proceeding. I served the envelope or package, as stated above, on (date): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: (NAME OF DECLARANT) (SIGNATURE OF DECLARANT) POS-040 [Rev. January 1, 2020] PROOF OF SERVICE—CIVIL Page 2 of 3 (Proof of Service)