Preview
1 Michael S. Kun (SBN 208684)
Kevin D. Sullivan (SBN 270343)
2 EPSTEIN BECKER & GREEN, P.C.
3 1925 Century Park East, Suite 500
Los Angeles, CA 90067
4 Telephone: 310-556-8861
Facsimile: 310-553-2165
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mkun@ebglaw.com
6 ksullivan@ebglaw.com
7 Attorneys for Defendant
8 ACTALENT, INC.
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SAN MATEO
12
13 JORGE DIAS, individually and on behalf of Case No.: 24-CIV-01055
others similarly situated,
14 Assigned to Hon. V. Raymond Swope, Dept. 23
15 Plaintiff,
16 vs. DEFENDANT ACTALENT, INC.’S
ANSWER TO PLAINTIFF’S
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ZOOX LABS, INC. dba ZOOX, INC.; UNVERIFIED COMPLAINT
18 ACTALENT, INC.; and DOES 1 through 25,
inclusive,
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Defendants. Complaint filed: February 23, 2024
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
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1 TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF
2 RECORD:
3 Defendant Actalent, Inc. (“Actalent”) hereby answers the unverified Complaint filed by
4 Plaintiff Jorge Dias (“Plaintiff”) and says as follows:
5 GENERAL DENIAL TO COMPLAINT
6 Pursuant to Code of Civil Procedure section 431.30, subdivision (d), Actalent generally
7 and specifically denies each material allegation contained in Plaintiff’s unverified Complaint.
8 Actalent generally and specifically denies that Plaintiff has incurred damages in any amount
9 whatsoever, and Actalent generally and specifically denies that Plaintiff has suffered any violation
10 of the Labor Code, Business & Professions Code, or any other statutory or common law scheme.
11 Actalent generally and specifically denies that Plaintiff is owed any penalty in any amount
12 whatsoever.
13 AFFIRMATIVE DEFENSES
14 Actalent submits the following affirmative defenses to the Complaint, and each and every
15 cause of action, claim or common count alleged therein, without assuming or undertaking any
16 burden, or burdens of proof, not otherwise assigned to Actalent by law:
17 FIRST AFFIRMATIVE DEFENSE
18 1. Plaintiff’s claims are barred, in whole or in part, because he is required to arbitrate
19 his individual claims pursuant to the terms of his arbitration agreement with Actalent.
20 SECOND AFFIRMATIVE DEFENSE
21 2. Plaintiff’s claims on behalf of other employees are barred, in whole or in part,
22 because, pursuant to the terms of his arbitration agreement with Actalent, he agreed to waive any
23 right to bring any claims on a class basis.
24 THIRD AFFIRMATIVE DEFENSE
25 3. Plaintiff’s claims on behalf of other employees of Actalent are barred, in whole or
26 in part, because, pursuant to the terms of other employees’ arbitration agreements with Actalent,
27 they not only agreed to arbitrate their claims on an individual basis, but they also waived their
28 right to participate in any class action.
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 FOURTH AFFIRMATIVE DEFENSE
2 4. Plaintiff’s Complaint fails to state sufficient facts to constitute any cause of action
3 against Actalent.
4 FIFTH AFFIRMATIVE DEFENSE
5 5. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of
6 limitations. (Code Civ. Proc., § 338, subd. (a); id., § 340, subd. (a); Bus. & Prof. Code, § 17208.)
7 SIXTH AFFIRMATIVE DEFENSE
8 6. Plaintiff failed and neglected to use reasonable care to minimize and mitigate his
9 alleged damages, if any.
10 SEVENTH AFFIRMATIVE DEFENSE
11 7. Some or all of Plaintiff’s claims are barred because, at all times, Actalent acted in
12 good faith.
13 EIGHTH AFFIRMATIVE DEFENSE
14 8. Some or all of Plaintiff’s claims are barred because Actalent lacks actual or
15 constructive knowledge of the conduct alleged in the Complaint or of any alleged wrongdoing by
16 any other persons.
17 NINTH AFFIRMATIVE DEFENSE
18 9. Granting Plaintiff’s prayer for relief would unjustly enrich Plaintiff, as he would
19 be receiving than to which he is entitled.
20 TENTH AFFIRMATIVE DEFENSE
21 10. Plaintiff’s claims are barred, in whole or in part, because Actalent cannot be held
22 liable for the allegedly wrongful acts of its client merely because Plaintiff alleges that Actalent
23 and Zoox Labs, Inc. were joint employers. (Serrano v. Aerotek, Inc. (2018) 21 Cal.App.5th 773,
24 782–785, disapproved on another ground in Donohue v. AMN Servs., LLC (2021) 11 Cal.5th 58,
25 77; Grande v. Eisenhower Medical Center (2020) 44 Cal.App.5th 1147, 1160 [“Serrano teaches
26 that joint employers are not vicariously liable for each other’s Labor Code violations, but liable
27 for their own conduct.”], affirmed on other grounds in Grande v. Eisenhower Medical Center
28 (2022) 13 Cal.5th 313; Gomez v. Elite Labor Services Weeklys, Ltd. (N.D. Cal. June 24, 2022)
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 2022 WL 2290620, p. *2 [relying on Serrano and holding that, “even assuming [the staffing
2 company defendants] were joint employers with [their client], [the staffing company defendants]
3 cannot be held vicariously liable for a violation by [their client]”]; Hinds v. FedEx Ground
4 Package System, Inc. (N.D. Cal. Apr. 25, 2022) 2022 WL 1212016, p. *3 [“The Court considered
5 Serrano in connection with the motion for class certification and still is not persuaded that Serrano
6 stands for the proposition that an employee might recover a “windfall” from a joint employer
7 ‘even though a direct employer actually complied with the Labor Code and with Wage Order
8 9.’”]; Overpeck v. FedEx Corporation (N.D. Cal. May 19, 2020) 2020 WL 2542030, p. *5 [“The
9 holding in Serrano informs the analysis here. As the Serrano court observed, a joint employer
10 who satisfies its duty under Labor Code § 226.7 is not vicariously liable for the breaches of a joint
11 employer.”]; Noe v. Superior Court (2015) 237 Cal.App.4th 316, 331–332 [rejecting the
12 plaintiff’s argument that a company that had not been a part of making a decision that a worker
13 be classified as an independent contractor could be held liable for misclassification even if the
14 company had no knowledge of the misclassification]; see also Ducksworth v. Tri-Modal
15 Distribution Services (2020) 47 Cal.App.5th 532, 539–540 [holding that a joint employer could
16 not be liable for harassment and discrimination absent a showing of actual involvement],
17 overruled on other grounds in Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th
18 918, 932.)
19 ELEVENTH AFFIRMATIVE DEFENSE
20 11. Plaintiff’s claims for unpaid wages are based on alleged instances of time which,
21 even if in fact worked, was de minimis and therefore cannot subject Actalent to liability. Pursuant
22 to the de minimis doctrine, the law disregards trifles. (Civ. Code, § 3533; Rodriguez v. Nike Retail
23 Servs., Inc. (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand the rule in Troester[ v. Starbucks
24 Corp. (2018) 5 Cal.5th 829] as mandating compensation where employees are regularly required
25 to work off the clock for more than “minute” or “brief” periods of time. This rule does not require
26 employers to “account for ‘split-second’ absurdities’”], citing Troester at p. 845.)
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 TWELFTH AFFIRMATIVE DEFENSE
2 12. Plaintiff’s Complaint is based on alleged meal period violations for instances,
3 which, even if in fact were late, short, or interrupted, were de minimis and therefore cannot subject
4 Actalent to liability. Pursuant to the de minimis doctrine, the law disregards trifles. (Civ. Code,
5 § 3533; Rodriguez v. Nike Retail Servs., Inc. (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand
6 the rule in Troester[ v. Starbucks Corp. (2018) 5 Cal.5th 829] as mandating compensation where
7 employees are regularly required to work off the clock for more than “minute” or “brief” periods
8 of time. This rule does not require employers to “account for ‘split-second’ absurdities’”], citing
9 Troester at p. 845.)
10 THIRTEENTH AFFIRMATIVE DEFENSE
11 13. Plaintiff’s Complaint is based on alleged rest period violations for instances,
12 which, even if in fact were late, short, or interrupted, were de minimis and therefore cannot subject
13 Actalent to liability. Pursuant to the de minimis doctrine, the law disregards trifles. (Civ. Code,
14 § 3533; Rodriguez v. Nike Retail Servs., Inc. (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand
15 the rule in Troester[ v. Starbucks Corp. (2018) 5 Cal.5th 829] as mandating compensation where
16 employees are regularly required to work off the clock for more than “minute” or “brief” periods
17 of time. This rule does not require employers to “account for ‘split-second’ absurdities’”], citing
18 Troester at p. 845.)
19 FOURTEENTH AFFIRMATIVE DEFENSE
20 14. Plaintiff’s claim for expense reimbursement is based on the alleged failure to
21 reimburse for business expenses which, even if in fact were necessarily incurred and reasonable,
22 were de minimis and therefore cannot subject Actalent to liability. Pursuant to the de minimis
23 doctrine, the law disregards trifles. (Civ. Code, § 3533; see Rodriguez v. Nike Retail Servs., Inc.
24 (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand the rule in Troester[ v. Starbucks Corp.
25 (2018) 5 Cal.5th 829] as mandating compensation where employees are regularly required to work
26 off the clock for more than “minute” or “brief” periods of time. This rule does not require
27 employers to “account for ‘split-second’ absurdities’”], citing Troester at p. 845.)
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 FIFTEENTH AFFIRMATIVE DEFENSE
2 15. Plaintiff’s claims for allegedly unpaid wages are barred, in whole or in part,
3 because assuming, arguendo, that Plaintiff’s hours worked were rounded, that was lawful. (Silva
4 v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 249–250; See’s Candy Shops, Inc. v.
5 Superior Court (2012) 210 Cal.App.4th 889, 903; 29 C.F.R. § 785.48(b); Corbin v. Time Warner
6 Entertainment-Advance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069, 1076.)
7 SIXTEENTH AFFIRMATIVE DEFENSE
8 16. Any recovery on Plaintiff’s Complaint, and each alleged cause of action, is barred,
9 in whole or in part, by Labor Code sections 2854 and 2856 in that Plaintiff failed to use ordinary
10 care and diligence in the performance of his duties and failed to comply substantially with the
11 reasonable directions of his employers.
12 SEVENTEENTH AFFIRMATIVE DEFENSE
13 17. Plaintiff’s claim for meal period violations is barred, in whole or in part, because
14 he waived his right to take meal periods when working more than 5 but not more than 6 hours in
15 a workday and when working more than 10 but not more than 12 hours in a workday.
16 EIGHTEENTH AFFIRMATIVE DEFENSE
17 18. Plaintiff’s claim for meal period violations is barred, in whole or in part, because
18 assuming, arguendo, that he worked during his meal periods or did not take his meal periods
19 timely or at all, he chose to do so and thus waived his rights. (Brinker Restaurant Corp. v.
20 Superior Court (2012) 53 Cal.4th 1004, 1040–1041 [“Bona fide relief from duty and the
21 relinquishing of control satisfies the employer’s obligations, and work by a relieved employee
22 during a meal break does not thereby place the employer in violation of its obligations and create
23 liability for premium pay”].)
24 NINETEENTH AFFIRMATIVE DEFENSE
25 19. Plaintiff’s claim for rest period violations is barred, in whole or in part, because
26 assuming, arguendo, that he worked during his rest periods or did not take his rest periods timely
27 or at all, he chose to do so and thus waived his rights. (Brinker Restaurant Corp. v. Superior
28 Court (2012) 53 Cal.4th 1004, 1040–1041 [“Bona fide relief from duty and the relinquishing of
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 control satisfies the employer’s obligations, and work by a relieved employee during a meal break
2 does not thereby place the employer in violation of its obligations and create liability for premium
3 pay”].)
4 TWENTIETH AFFIRMATIVE DEFENSE
5 20. Plaintiff’s claim for expense reimbursement is barred, in whole or in part, because,
6 even if he incurred business expenses for which reimbursement would be required, he did not
7 seek reimbursement for such purported expenses. (Chavez v. Lumber Liquidators, Inc. (N.D. Cal.
8 Mar. 26, 2012) 2012 WL 1004850, p. *10 [confirming that when determining an employer’s duty
9 to reimburse for expenses, “whether the employee actually sought reimbursement from [the
10 employer]” is relevant]; Ortiz v. CVS Caremark Corp. (N.D. Cal. Dec. 2, 2013) 2013 WL
11 6236743, p. *11 [holding that “the question of whether putative class members actually sought
12 reimbursement is an important one, and there is no common answer to that question”].)
13 TWENTY-FIRST AFFIRMATIVE DEFENSE
14 21. Plaintiff’s claims for failure to pay wages purportedly due at the end of
15 employment are barred, in whole or in part, because there is a good-faith dispute whether Plaintiff
16 is owed any wages. (Cal. Code Regs., tit. 8, § 13520; Naranjo v. Spectrum Security Services, Inc.
17 (2023) 88 Cal.App.5th 937, 944–948 [affirming the trial court’s ruling that, although meal period
18 premiums were owed to employees, a good faith dispute that such premiums were owed precluded
19 imposing waiting time penalties], affirmed on other grounds in Naranjo v. Spectrum Security
20 Services, Inc. (May 6, 2024, S279397) ___ Cal.5th ___, ___ [2024 WL 1979980]; Nordstrom
21 Com. Cases (2010) 186 Cal.App.4th 576, 584 [“There is no willful failure to pay wages if the
22 employer and employee have a good faith dispute as to whether and when the wages were due.”],
23 citing Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1201–1202.)
24 TWENTY-SECOND AFFIRMATIVE DEFENSE
25 22. Plaintiff’s claim for wage statement violations is barred, in whole or in part,
26 because Actalent had a reasonable, good faith belief that Plaintiff was being provided wage
27 statements in compliance with Labor Code section 226, subdivision (a). (Naranjo v. Spectrum
28 Security Services, Inc. (May 6, 2024, S279397) ___ Cal.5th ___, ___ [2024 WL 1979980, at p.
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 *1] [“We now conclude that if an employer reasonably and in good faith believed it was providing
2 a complete and accurate wage statement in compliance with the requirements of section 226, then
3 it has not knowingly and intentionally failed to comply with the wage statement law.”].)
4 TWENTY-THIRD AFFIRMATIVE DEFENSE
5 23. Plaintiff’s claim for failure to provide accurate wage statements is barred to the
6 extent the claim is based on the alleged failure to set forth wages purportedly earned and owed
7 but not paid. (Soto v. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 385, 392 [requiring only that
8 wage statements “document the paid wages to ensure the employee fully informed regarding the
9 calculation of those wages”], italics in original; Ramirez v. HV Global Mgmt. Corp. (N.D. Cal.
10 Jan. 19, 2023) 2023 WL 322888, p. *1; Rudolph v. Herc Rentals, Inc. (C.D. Cal. Mar. 11, 2022)
11 2022 WL 743513, p. *3 [“The hourly rates and wages earned on a wage statement are accurate if
12 they reflect what the employee was in fact paid.”].)
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE
14 24. Plaintiff’s claim for failure to provide accurate wage statements is barred to the
15 extent prevailing on such claims would result in an improper multiple recovery for Plaintiff.
16 (Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1336–1337; Ramirez v. HV
17 Global Mgmt. Corp. (N.D. Cal. Jan. 19, 2023) 2023 WL 322888, p. *1; Rudolph v. Herc Rentals,
18 Inc. (C.D. Cal. Mar. 11, 2022) 2022 WL 743513, p. *3.)
19 TWENTY-FIFTH AFFIRMATIVE DEFENSE
20 25. Plaintiff’s penalty- and monetary damage-based claims under Business &
21 Professions Code section 17200 et seq. are barred, in whole and or in part, because compensatory
22 damages and penalties are not recoverable under section 17200. (Korea Supply Co. v. Lockheed
23 Martin Corp. (2003) 29 Cal.4th 1134, 1144; Pineda v. Bank of America, N.A. (2010) 50 Cal.4th
24 1389, 1401–1402.)
25 TWENTY-SIXTH AFFIRMATIVE DEFENSE
26 26. Plaintiff’s derivative claims under Business & Professions Code section 17200 et
27 seq. are barred, in whole and or in part, to the extent his underlying claims fail. (AMN Healthcare,
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 Inc. v. Aya Healthcare Servs., Inc. (2018) 28 Cal.App.5th 923, 950, citation omitted; Price v.
2 Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147.)
3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
4 27. Plaintiff’s claim for failure to timely pay wages due during employment under
5 Labor Code section 204 is barred, in whole or in part, because such a claim “cannot be premised
6 solely on the claim that an employer underpaid wages.” (Carter v. Jai-Put Enter. Inc. (N.D. Cal.
7 June 30, 2020) 2020 WL 3545094, p. *10; accord, Soratorio v. Tesoro Ref. & Mktg. Co., LLC
8 (C.D. Cal. Apr. 26, 2017) 2017 WL 1520416, p. *7 [“Because Plaintiff’s allegations concern only
9 the nonpayment of wages, and not whether payments occurred, as required, between certain days
10 of the month, the claim must be dismissed.”]; Dutra v. J.R. Simplot Company (E.D. Cal. Jan. 5,
11 2023) 2023 WL 113846, p. *5 [following Carter and Soratorio and dismissing a derivative section
12 204 claim].)
13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
14 28. Plaintiff’s claim for failure to timely pay wages due during employment under
15 Labor Code section 204 is barred, in whole or in part, because there is no private right of action
16 to enforce that statute.
17 TWENTY-NINTH AFFIRMATIVE DEFENSE
18 29. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred
19 by the doctrine of waiver.
20 THIRTIETH AFFIRMATIVE DEFENSE
21 30. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred
22 by the doctrine of unclean hands.
23 THIRTY-FIRST AFFIRMATIVE DEFENSE
24 31. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred
25 by the doctrine of laches.
26 THIRTY-SECOND AFFIRMATIVE DEFENSE
27 32. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred
28 by the doctrine of consent.
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 THIRTY-THIRD AFFIRMATIVE DEFENSE
2 33. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred
3 by the doctrine of estoppel.
4 THIRTY-FOURTH AFFIRMATIVE DEFENSE
5 34. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred
6 by the doctrine of release.
7 THIRTY-FIFTH AFFIRMATIVE DEFENSE
8 35. Plaintiff’s request, if any, for a jury trial on his claims under the Unfair
9 Competition Law should be stricken because there is no right to a jury trial under that statutory
10 scheme. (Nationwide Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th 279, 292–
11 293.)
12 THIRTY-SIXTH AFFIRMATIVE DEFENSE
13 36. Plaintiff’s request for injunctive relief is barred because, as a former employee, he
14 lacks standing to seek such relief. (Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1142,
15 fn. 5 [“Price does not seek injunctive relief under section 226, subdivision (g), nor could he
16 because, as a former Starbucks employee, he lacks standing.”]; Wal-Mart Stores, Inc. v. Dukes
17 (2011) 564 U.S. 338, 364; Ellis v. Costco Wholesale Corp. (9th Cir. 2011) 657 F.3d 970, 986;
18 Cunha v. IntelliCheck, LLC (N.D. Cal. 2017) 254 F.Supp.3d 1124, 1138; Byrd v. Masonite Corp.
19 (C.D. Cal. 2016) 215 F.Supp.3d 859, 865 [“As a former employee of Defendant, Plaintiff lacks
20 standing to sue for injunctive relief.”].)
21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
22 37. Plaintiff’s request for public injunctive relief, if any, is barred because even
23 assuming, arguendo, that Plaintiff had standing to seek any type of injunctive relief as a former
24 employee, the relief that he seeks is private injunctive relief. (Clifford v. Quest Software Inc.
25 (2019) 38 Cal.App.5th 745, 755.)
26 Because the Complaint is couched in conclusory terms, Actalent cannot fully anticipate
27 all defenses that may be applicable to this action. Accordingly, Actalent hereby reserves the right
28 to assert additional defenses, if and to the extent such defenses are applicable.
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 WHEREFORE, Actalent respectfully requests that:
2 1. Plaintiff take nothing by his Complaint;
3 2. Judgment be entered in favor of Actalent and against Plaintiff on all causes of
4 action;
5 3. Actalent be awarded costs of suit and attorneys’ fees herein; and
6 4. For such other and further relief as the Court deems just and proper.
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8 DATED: May 22, 2024 EPSTEIN BECKER & GREEN, P.C.
9
By:
10 Michael S. Kun
Kevin D. Sullivan
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12 Attorneys for Defendant
ACTALENT, INC.
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 1. At the time of service I was at least 18 years of age and not a party to this legal action.
4 2. My business address is 1925 Century Park East, Suite 500, Los Angeles, CA 90067.
5 3. I served copies of the following documents (specify the exact title of each document served):
6 DEFENDANT ACTALENT, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED
COMPLAINT
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8 4. I served the documents listed above in item 3 on the following persons at the addresses listed:
9 Jonathan M. Genish, Esq. Attorneys for Plaintiff
Barbara DuVan-Clarke, Esq. JORGE DIAZ
10 Alexander K. Spellman, Esq.
P.J. Van Ert, Esq.
11 Annabel F. Blanchard, Esq.
12 BLACKSTONE LAW, APC
8383 Wilshire Blvd., Suite 745
13 Beverly Hills, CA 90211
T: (310) 622-4278 | F: (855) 786-6356
14 E: jgenish@blackstonepc.com
15 bdc@blackstonepc.com
aspellman@blackstonepc.com
16 pjvanert@blackstonepc.com
ablanchard@blackstonepc.com
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Agent for service of process for Defendant
18 ZOOX LABS, INC.
19 5. a.☒ By e-mail or electronic transmission. Pursuant to Code of Civil Procedure section
1010.6, I caused the documents to be sent on the date shown below to the e-mail
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addresses of the persons listed in item 4. I did not receive within a reasonable time
21 after the transmission any electronic message or other indication that the
transmission was unsuccessful.
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6. I served the documents by the means described in item 5 on (date): May 22, 2024.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is
24 true and correct.
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26 05/22/2024 Brooke Scott
DATE (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
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Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint
FIRM:64622984v1
Preview
1 Michael S. Kun (SBN 208684) Kevin D. Sullivan (SBN 270343) 2 EPSTEIN BECKER & GREEN, P.C. 3 1925 Century Park East, Suite 500 Los Angeles, CA 90067 4 Telephone: 310-556-8861 Facsimile: 310-553-2165 5 mkun@ebglaw.com 6 ksullivan@ebglaw.com 7 Attorneys for Defendant 8 ACTALENT, INC. 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SAN MATEO 12 13 JORGE DIAS, individually and on behalf of Case No.: 24-CIV-01055 others similarly situated, 14 Assigned to Hon. V. Raymond Swope, Dept. 23 15 Plaintiff, 16 vs. DEFENDANT ACTALENT, INC.’S ANSWER TO PLAINTIFF’S 17 ZOOX LABS, INC. dba ZOOX, INC.; UNVERIFIED COMPLAINT 18 ACTALENT, INC.; and DOES 1 through 25, inclusive, 19 Defendants. Complaint filed: February 23, 2024 20 21 22 23 24 25 26 27 28 1 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF 2 RECORD: 3 Defendant Actalent, Inc. (“Actalent”) hereby answers the unverified Complaint filed by 4 Plaintiff Jorge Dias (“Plaintiff”) and says as follows: 5 GENERAL DENIAL TO COMPLAINT 6 Pursuant to Code of Civil Procedure section 431.30, subdivision (d), Actalent generally 7 and specifically denies each material allegation contained in Plaintiff’s unverified Complaint. 8 Actalent generally and specifically denies that Plaintiff has incurred damages in any amount 9 whatsoever, and Actalent generally and specifically denies that Plaintiff has suffered any violation 10 of the Labor Code, Business & Professions Code, or any other statutory or common law scheme. 11 Actalent generally and specifically denies that Plaintiff is owed any penalty in any amount 12 whatsoever. 13 AFFIRMATIVE DEFENSES 14 Actalent submits the following affirmative defenses to the Complaint, and each and every 15 cause of action, claim or common count alleged therein, without assuming or undertaking any 16 burden, or burdens of proof, not otherwise assigned to Actalent by law: 17 FIRST AFFIRMATIVE DEFENSE 18 1. Plaintiff’s claims are barred, in whole or in part, because he is required to arbitrate 19 his individual claims pursuant to the terms of his arbitration agreement with Actalent. 20 SECOND AFFIRMATIVE DEFENSE 21 2. Plaintiff’s claims on behalf of other employees are barred, in whole or in part, 22 because, pursuant to the terms of his arbitration agreement with Actalent, he agreed to waive any 23 right to bring any claims on a class basis. 24 THIRD AFFIRMATIVE DEFENSE 25 3. Plaintiff’s claims on behalf of other employees of Actalent are barred, in whole or 26 in part, because, pursuant to the terms of other employees’ arbitration agreements with Actalent, 27 they not only agreed to arbitrate their claims on an individual basis, but they also waived their 28 right to participate in any class action. 2 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 FOURTH AFFIRMATIVE DEFENSE 2 4. Plaintiff’s Complaint fails to state sufficient facts to constitute any cause of action 3 against Actalent. 4 FIFTH AFFIRMATIVE DEFENSE 5 5. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of 6 limitations. (Code Civ. Proc., § 338, subd. (a); id., § 340, subd. (a); Bus. & Prof. Code, § 17208.) 7 SIXTH AFFIRMATIVE DEFENSE 8 6. Plaintiff failed and neglected to use reasonable care to minimize and mitigate his 9 alleged damages, if any. 10 SEVENTH AFFIRMATIVE DEFENSE 11 7. Some or all of Plaintiff’s claims are barred because, at all times, Actalent acted in 12 good faith. 13 EIGHTH AFFIRMATIVE DEFENSE 14 8. Some or all of Plaintiff’s claims are barred because Actalent lacks actual or 15 constructive knowledge of the conduct alleged in the Complaint or of any alleged wrongdoing by 16 any other persons. 17 NINTH AFFIRMATIVE DEFENSE 18 9. Granting Plaintiff’s prayer for relief would unjustly enrich Plaintiff, as he would 19 be receiving than to which he is entitled. 20 TENTH AFFIRMATIVE DEFENSE 21 10. Plaintiff’s claims are barred, in whole or in part, because Actalent cannot be held 22 liable for the allegedly wrongful acts of its client merely because Plaintiff alleges that Actalent 23 and Zoox Labs, Inc. were joint employers. (Serrano v. Aerotek, Inc. (2018) 21 Cal.App.5th 773, 24 782–785, disapproved on another ground in Donohue v. AMN Servs., LLC (2021) 11 Cal.5th 58, 25 77; Grande v. Eisenhower Medical Center (2020) 44 Cal.App.5th 1147, 1160 [“Serrano teaches 26 that joint employers are not vicariously liable for each other’s Labor Code violations, but liable 27 for their own conduct.”], affirmed on other grounds in Grande v. Eisenhower Medical Center 28 (2022) 13 Cal.5th 313; Gomez v. Elite Labor Services Weeklys, Ltd. (N.D. Cal. June 24, 2022) 3 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 2022 WL 2290620, p. *2 [relying on Serrano and holding that, “even assuming [the staffing 2 company defendants] were joint employers with [their client], [the staffing company defendants] 3 cannot be held vicariously liable for a violation by [their client]”]; Hinds v. FedEx Ground 4 Package System, Inc. (N.D. Cal. Apr. 25, 2022) 2022 WL 1212016, p. *3 [“The Court considered 5 Serrano in connection with the motion for class certification and still is not persuaded that Serrano 6 stands for the proposition that an employee might recover a “windfall” from a joint employer 7 ‘even though a direct employer actually complied with the Labor Code and with Wage Order 8 9.’”]; Overpeck v. FedEx Corporation (N.D. Cal. May 19, 2020) 2020 WL 2542030, p. *5 [“The 9 holding in Serrano informs the analysis here. As the Serrano court observed, a joint employer 10 who satisfies its duty under Labor Code § 226.7 is not vicariously liable for the breaches of a joint 11 employer.”]; Noe v. Superior Court (2015) 237 Cal.App.4th 316, 331–332 [rejecting the 12 plaintiff’s argument that a company that had not been a part of making a decision that a worker 13 be classified as an independent contractor could be held liable for misclassification even if the 14 company had no knowledge of the misclassification]; see also Ducksworth v. Tri-Modal 15 Distribution Services (2020) 47 Cal.App.5th 532, 539–540 [holding that a joint employer could 16 not be liable for harassment and discrimination absent a showing of actual involvement], 17 overruled on other grounds in Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 18 918, 932.) 19 ELEVENTH AFFIRMATIVE DEFENSE 20 11. Plaintiff’s claims for unpaid wages are based on alleged instances of time which, 21 even if in fact worked, was de minimis and therefore cannot subject Actalent to liability. Pursuant 22 to the de minimis doctrine, the law disregards trifles. (Civ. Code, § 3533; Rodriguez v. Nike Retail 23 Servs., Inc. (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand the rule in Troester[ v. Starbucks 24 Corp. (2018) 5 Cal.5th 829] as mandating compensation where employees are regularly required 25 to work off the clock for more than “minute” or “brief” periods of time. This rule does not require 26 employers to “account for ‘split-second’ absurdities’”], citing Troester at p. 845.) 27 28 4 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 TWELFTH AFFIRMATIVE DEFENSE 2 12. Plaintiff’s Complaint is based on alleged meal period violations for instances, 3 which, even if in fact were late, short, or interrupted, were de minimis and therefore cannot subject 4 Actalent to liability. Pursuant to the de minimis doctrine, the law disregards trifles. (Civ. Code, 5 § 3533; Rodriguez v. Nike Retail Servs., Inc. (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand 6 the rule in Troester[ v. Starbucks Corp. (2018) 5 Cal.5th 829] as mandating compensation where 7 employees are regularly required to work off the clock for more than “minute” or “brief” periods 8 of time. This rule does not require employers to “account for ‘split-second’ absurdities’”], citing 9 Troester at p. 845.) 10 THIRTEENTH AFFIRMATIVE DEFENSE 11 13. Plaintiff’s Complaint is based on alleged rest period violations for instances, 12 which, even if in fact were late, short, or interrupted, were de minimis and therefore cannot subject 13 Actalent to liability. Pursuant to the de minimis doctrine, the law disregards trifles. (Civ. Code, 14 § 3533; Rodriguez v. Nike Retail Servs., Inc. (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand 15 the rule in Troester[ v. Starbucks Corp. (2018) 5 Cal.5th 829] as mandating compensation where 16 employees are regularly required to work off the clock for more than “minute” or “brief” periods 17 of time. This rule does not require employers to “account for ‘split-second’ absurdities’”], citing 18 Troester at p. 845.) 19 FOURTEENTH AFFIRMATIVE DEFENSE 20 14. Plaintiff’s claim for expense reimbursement is based on the alleged failure to 21 reimburse for business expenses which, even if in fact were necessarily incurred and reasonable, 22 were de minimis and therefore cannot subject Actalent to liability. Pursuant to the de minimis 23 doctrine, the law disregards trifles. (Civ. Code, § 3533; see Rodriguez v. Nike Retail Servs., Inc. 24 (9th Cir. 2019) 928 F.3d 810, 818 [“[W]e understand the rule in Troester[ v. Starbucks Corp. 25 (2018) 5 Cal.5th 829] as mandating compensation where employees are regularly required to work 26 off the clock for more than “minute” or “brief” periods of time. This rule does not require 27 employers to “account for ‘split-second’ absurdities’”], citing Troester at p. 845.) 28 5 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 FIFTEENTH AFFIRMATIVE DEFENSE 2 15. Plaintiff’s claims for allegedly unpaid wages are barred, in whole or in part, 3 because assuming, arguendo, that Plaintiff’s hours worked were rounded, that was lawful. (Silva 4 v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 249–250; See’s Candy Shops, Inc. v. 5 Superior Court (2012) 210 Cal.App.4th 889, 903; 29 C.F.R. § 785.48(b); Corbin v. Time Warner 6 Entertainment-Advance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069, 1076.) 7 SIXTEENTH AFFIRMATIVE DEFENSE 8 16. Any recovery on Plaintiff’s Complaint, and each alleged cause of action, is barred, 9 in whole or in part, by Labor Code sections 2854 and 2856 in that Plaintiff failed to use ordinary 10 care and diligence in the performance of his duties and failed to comply substantially with the 11 reasonable directions of his employers. 12 SEVENTEENTH AFFIRMATIVE DEFENSE 13 17. Plaintiff’s claim for meal period violations is barred, in whole or in part, because 14 he waived his right to take meal periods when working more than 5 but not more than 6 hours in 15 a workday and when working more than 10 but not more than 12 hours in a workday. 16 EIGHTEENTH AFFIRMATIVE DEFENSE 17 18. Plaintiff’s claim for meal period violations is barred, in whole or in part, because 18 assuming, arguendo, that he worked during his meal periods or did not take his meal periods 19 timely or at all, he chose to do so and thus waived his rights. (Brinker Restaurant Corp. v. 20 Superior Court (2012) 53 Cal.4th 1004, 1040–1041 [“Bona fide relief from duty and the 21 relinquishing of control satisfies the employer’s obligations, and work by a relieved employee 22 during a meal break does not thereby place the employer in violation of its obligations and create 23 liability for premium pay”].) 24 NINETEENTH AFFIRMATIVE DEFENSE 25 19. Plaintiff’s claim for rest period violations is barred, in whole or in part, because 26 assuming, arguendo, that he worked during his rest periods or did not take his rest periods timely 27 or at all, he chose to do so and thus waived his rights. (Brinker Restaurant Corp. v. Superior 28 Court (2012) 53 Cal.4th 1004, 1040–1041 [“Bona fide relief from duty and the relinquishing of 6 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 control satisfies the employer’s obligations, and work by a relieved employee during a meal break 2 does not thereby place the employer in violation of its obligations and create liability for premium 3 pay”].) 4 TWENTIETH AFFIRMATIVE DEFENSE 5 20. Plaintiff’s claim for expense reimbursement is barred, in whole or in part, because, 6 even if he incurred business expenses for which reimbursement would be required, he did not 7 seek reimbursement for such purported expenses. (Chavez v. Lumber Liquidators, Inc. (N.D. Cal. 8 Mar. 26, 2012) 2012 WL 1004850, p. *10 [confirming that when determining an employer’s duty 9 to reimburse for expenses, “whether the employee actually sought reimbursement from [the 10 employer]” is relevant]; Ortiz v. CVS Caremark Corp. (N.D. Cal. Dec. 2, 2013) 2013 WL 11 6236743, p. *11 [holding that “the question of whether putative class members actually sought 12 reimbursement is an important one, and there is no common answer to that question”].) 13 TWENTY-FIRST AFFIRMATIVE DEFENSE 14 21. Plaintiff’s claims for failure to pay wages purportedly due at the end of 15 employment are barred, in whole or in part, because there is a good-faith dispute whether Plaintiff 16 is owed any wages. (Cal. Code Regs., tit. 8, § 13520; Naranjo v. Spectrum Security Services, Inc. 17 (2023) 88 Cal.App.5th 937, 944–948 [affirming the trial court’s ruling that, although meal period 18 premiums were owed to employees, a good faith dispute that such premiums were owed precluded 19 imposing waiting time penalties], affirmed on other grounds in Naranjo v. Spectrum Security 20 Services, Inc. (May 6, 2024, S279397) ___ Cal.5th ___, ___ [2024 WL 1979980]; Nordstrom 21 Com. Cases (2010) 186 Cal.App.4th 576, 584 [“There is no willful failure to pay wages if the 22 employer and employee have a good faith dispute as to whether and when the wages were due.”], 23 citing Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1201–1202.) 24 TWENTY-SECOND AFFIRMATIVE DEFENSE 25 22. Plaintiff’s claim for wage statement violations is barred, in whole or in part, 26 because Actalent had a reasonable, good faith belief that Plaintiff was being provided wage 27 statements in compliance with Labor Code section 226, subdivision (a). (Naranjo v. Spectrum 28 Security Services, Inc. (May 6, 2024, S279397) ___ Cal.5th ___, ___ [2024 WL 1979980, at p. 7 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 *1] [“We now conclude that if an employer reasonably and in good faith believed it was providing 2 a complete and accurate wage statement in compliance with the requirements of section 226, then 3 it has not knowingly and intentionally failed to comply with the wage statement law.”].) 4 TWENTY-THIRD AFFIRMATIVE DEFENSE 5 23. Plaintiff’s claim for failure to provide accurate wage statements is barred to the 6 extent the claim is based on the alleged failure to set forth wages purportedly earned and owed 7 but not paid. (Soto v. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 385, 392 [requiring only that 8 wage statements “document the paid wages to ensure the employee fully informed regarding the 9 calculation of those wages”], italics in original; Ramirez v. HV Global Mgmt. Corp. (N.D. Cal. 10 Jan. 19, 2023) 2023 WL 322888, p. *1; Rudolph v. Herc Rentals, Inc. (C.D. Cal. Mar. 11, 2022) 11 2022 WL 743513, p. *3 [“The hourly rates and wages earned on a wage statement are accurate if 12 they reflect what the employee was in fact paid.”].) 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE 14 24. Plaintiff’s claim for failure to provide accurate wage statements is barred to the 15 extent prevailing on such claims would result in an improper multiple recovery for Plaintiff. 16 (Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1336–1337; Ramirez v. HV 17 Global Mgmt. Corp. (N.D. Cal. Jan. 19, 2023) 2023 WL 322888, p. *1; Rudolph v. Herc Rentals, 18 Inc. (C.D. Cal. Mar. 11, 2022) 2022 WL 743513, p. *3.) 19 TWENTY-FIFTH AFFIRMATIVE DEFENSE 20 25. Plaintiff’s penalty- and monetary damage-based claims under Business & 21 Professions Code section 17200 et seq. are barred, in whole and or in part, because compensatory 22 damages and penalties are not recoverable under section 17200. (Korea Supply Co. v. Lockheed 23 Martin Corp. (2003) 29 Cal.4th 1134, 1144; Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 24 1389, 1401–1402.) 25 TWENTY-SIXTH AFFIRMATIVE DEFENSE 26 26. Plaintiff’s derivative claims under Business & Professions Code section 17200 et 27 seq. are barred, in whole and or in part, to the extent his underlying claims fail. (AMN Healthcare, 28 8 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 Inc. v. Aya Healthcare Servs., Inc. (2018) 28 Cal.App.5th 923, 950, citation omitted; Price v. 2 Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147.) 3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 4 27. Plaintiff’s claim for failure to timely pay wages due during employment under 5 Labor Code section 204 is barred, in whole or in part, because such a claim “cannot be premised 6 solely on the claim that an employer underpaid wages.” (Carter v. Jai-Put Enter. Inc. (N.D. Cal. 7 June 30, 2020) 2020 WL 3545094, p. *10; accord, Soratorio v. Tesoro Ref. & Mktg. Co., LLC 8 (C.D. Cal. Apr. 26, 2017) 2017 WL 1520416, p. *7 [“Because Plaintiff’s allegations concern only 9 the nonpayment of wages, and not whether payments occurred, as required, between certain days 10 of the month, the claim must be dismissed.”]; Dutra v. J.R. Simplot Company (E.D. Cal. Jan. 5, 11 2023) 2023 WL 113846, p. *5 [following Carter and Soratorio and dismissing a derivative section 12 204 claim].) 13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 14 28. Plaintiff’s claim for failure to timely pay wages due during employment under 15 Labor Code section 204 is barred, in whole or in part, because there is no private right of action 16 to enforce that statute. 17 TWENTY-NINTH AFFIRMATIVE DEFENSE 18 29. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred 19 by the doctrine of waiver. 20 THIRTIETH AFFIRMATIVE DEFENSE 21 30. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred 22 by the doctrine of unclean hands. 23 THIRTY-FIRST AFFIRMATIVE DEFENSE 24 31. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred 25 by the doctrine of laches. 26 THIRTY-SECOND AFFIRMATIVE DEFENSE 27 32. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred 28 by the doctrine of consent. 9 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 THIRTY-THIRD AFFIRMATIVE DEFENSE 2 33. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred 3 by the doctrine of estoppel. 4 THIRTY-FOURTH AFFIRMATIVE DEFENSE 5 34. Some or all of Plaintiff’s claims, or the damages and/or penalties sought, are barred 6 by the doctrine of release. 7 THIRTY-FIFTH AFFIRMATIVE DEFENSE 8 35. Plaintiff’s request, if any, for a jury trial on his claims under the Unfair 9 Competition Law should be stricken because there is no right to a jury trial under that statutory 10 scheme. (Nationwide Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th 279, 292– 11 293.) 12 THIRTY-SIXTH AFFIRMATIVE DEFENSE 13 36. Plaintiff’s request for injunctive relief is barred because, as a former employee, he 14 lacks standing to seek such relief. (Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1142, 15 fn. 5 [“Price does not seek injunctive relief under section 226, subdivision (g), nor could he 16 because, as a former Starbucks employee, he lacks standing.”]; Wal-Mart Stores, Inc. v. Dukes 17 (2011) 564 U.S. 338, 364; Ellis v. Costco Wholesale Corp. (9th Cir. 2011) 657 F.3d 970, 986; 18 Cunha v. IntelliCheck, LLC (N.D. Cal. 2017) 254 F.Supp.3d 1124, 1138; Byrd v. Masonite Corp. 19 (C.D. Cal. 2016) 215 F.Supp.3d 859, 865 [“As a former employee of Defendant, Plaintiff lacks 20 standing to sue for injunctive relief.”].) 21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 22 37. Plaintiff’s request for public injunctive relief, if any, is barred because even 23 assuming, arguendo, that Plaintiff had standing to seek any type of injunctive relief as a former 24 employee, the relief that he seeks is private injunctive relief. (Clifford v. Quest Software Inc. 25 (2019) 38 Cal.App.5th 745, 755.) 26 Because the Complaint is couched in conclusory terms, Actalent cannot fully anticipate 27 all defenses that may be applicable to this action. Accordingly, Actalent hereby reserves the right 28 to assert additional defenses, if and to the extent such defenses are applicable. 10 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 WHEREFORE, Actalent respectfully requests that: 2 1. Plaintiff take nothing by his Complaint; 3 2. Judgment be entered in favor of Actalent and against Plaintiff on all causes of 4 action; 5 3. Actalent be awarded costs of suit and attorneys’ fees herein; and 6 4. For such other and further relief as the Court deems just and proper. 7 8 DATED: May 22, 2024 EPSTEIN BECKER & GREEN, P.C. 9 By: 10 Michael S. Kun Kevin D. Sullivan 11 12 Attorneys for Defendant ACTALENT, INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 1. At the time of service I was at least 18 years of age and not a party to this legal action. 4 2. My business address is 1925 Century Park East, Suite 500, Los Angeles, CA 90067. 5 3. I served copies of the following documents (specify the exact title of each document served): 6 DEFENDANT ACTALENT, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 7 8 4. I served the documents listed above in item 3 on the following persons at the addresses listed: 9 Jonathan M. Genish, Esq. Attorneys for Plaintiff Barbara DuVan-Clarke, Esq. JORGE DIAZ 10 Alexander K. Spellman, Esq. P.J. Van Ert, Esq. 11 Annabel F. Blanchard, Esq. 12 BLACKSTONE LAW, APC 8383 Wilshire Blvd., Suite 745 13 Beverly Hills, CA 90211 T: (310) 622-4278 | F: (855) 786-6356 14 E: jgenish@blackstonepc.com 15 bdc@blackstonepc.com aspellman@blackstonepc.com 16 pjvanert@blackstonepc.com ablanchard@blackstonepc.com 17 Agent for service of process for Defendant 18 ZOOX LABS, INC. 19 5. a.☒ By e-mail or electronic transmission. Pursuant to Code of Civil Procedure section 1010.6, I caused the documents to be sent on the date shown below to the e-mail 20 addresses of the persons listed in item 4. I did not receive within a reasonable time 21 after the transmission any electronic message or other indication that the transmission was unsuccessful. 22 6. I served the documents by the means described in item 5 on (date): May 22, 2024. 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is 24 true and correct. 25 26 05/22/2024 Brooke Scott DATE (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) 27 28 12 Defendant Actalent, Inc.’s Answer to Plaintiff’s Unverified Complaint FIRM:64622984v1