Preview
1 CONSTANCE E. NORTON (SBN 146365)
cnorton@littler.com
2 CIRRUS JAHANGIRI (SBN 351052)
cjahangiri@littler.com
3 LITTLER MENDELSON, P.C.
101 Second Street, Suite 1000
4 San Francisco, CA 94105
Telephone: 415.433.1940
5
Attorneys for Defendant
6 FLYERS ENERGY, LLC
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN
10
11 JANE DOE, CASE NO. BCV-24-101783
12 Plaintiff, ASSIGNED FOR ALL PURPOSES TO
HON.GREGORY PULSKAMP
13 (Bakersfield Division J)
v.
14
DEFENDANT FLYER ENERGY, LLC’S
15 FLYERS ENERGY, LLC, a California Limited ANSWER TO COMPLAINT
Liability Company; JAMES GERARD
16 PEDERSON, as an Individual, and DOES 1
through 10, inclusive,
17
Defendants. Complaint Filed: May 29, 2024
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LITTLER MENDELSON, P.C.
101 S eco nd S tree t
Su ite 10 00
Sa n F ra nc is co, C A 94 105 CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 Defendant FLYERS ENERGY, LLC (“FLYERS”) responds to and answers the Complaint
2 filed by Plaintiff JANE DOE (“PLAINTIFF”) in the above-referenced action as follows:
3 GENERAL DENIAL
4 Pursuant to section 431.30(d) of the California Code of Civil Procedure, FLYERS generally
5 and specifically denies each and every allegation in the Complaint. In addition, FLYERS denies that
6 PLAINTIFF has sustained, or will sustain, any loss or damage in the manner or the amount alleged,
7 or otherwise, by reason of any act or omission of, or any other conduct or absence thereof on the part
8 of, FLYERS. This general and specific denial of the Complaint is filed without prejudice to FLYERS’
9 right to file amended answers, including additional defenses.
10 AFFIRMATIVE DEFENSES
11 FLYERS asserts the following affirmative defenses. In so doing, FLYERS does not concede
12 it has the burden of proof or production with respect to any such affirmative defense. Moreover,
13 FLYERS does not presently know all the facts concerning the conduct of PLAINTIFF sufficient to
14 state all affirmative defenses. Accordingly, FLYERS will seek leave of this Court to amend this
15 Answer should it later discover facts demonstrating the existence of additional affirmative defenses.
16 Furthermore, all such defenses are pleaded in the alternative, and do not constitute an admission of
17 liability or that PLAINTIFF is entitled to any relief whatsoever.
18 FIRST AFFIRMATIVE DEFENSE
19 (Statute of Limitations)
20 1. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint and
21 each cause of action set forth therein are barred, in whole or in part, by the applicable statutes of
22 limitation including, without limitation, those set forth in California Government Code section 12960,
23 subdivision (e) and California Code of Civil Procedure sections 340.16, subdivision (a) and 335.1.
24 SECOND AFFIRMATIVE DEFENSE
25 (Failure to State a Cause of Action)
26 2. As a separate and distinct affirmative defense, FLYERS asserts that the Complaint and
27 each cause of action set forth therein fail to state facts sufficient to constitute a cause of action upon
28 which relief may be granted.
LITTLER MENDELSON, P.C.
101 S eco nd S tree t
Su ite 10 00
Sa n F ra nc is co, C A 94 105 2. CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 THIRD AFFIRMATIVE DEFENSE
2 (Failure to File Declaration Under CCP §340.16)
3 3. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint and
4 each cause of action set forth therein are barred, in whole or in part, because counsel for PLAINTIFF
5 failed to comply with the requirements set forth in California Code of Civil Procedure §340.16(c)(3)
6 and did not file the declaration required by law.
7 FOURTH AFFIRMATIVE DEFENSE
8 (Failure to Exhaust Administrative Remedies)
9 4. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint and
10 each cause of action set forth therein are barred, in whole or in part, because PLAINTIFF failed to
11 exhaust her administrative remedies with the California Civil Rights Department (formerly named the
12 California Department of Fair Employment and Housing) and/or the Equal Employment Opportunity
13 Commission.
14 FIFTH AFFIRMATIVE DEFENSE
15 (Avoidable Consequences)
16 5. As a separate and distinct affirmative defense, FLYERS alleges, without admitting that
17 any defendant engaged in any of the acts or omissions alleged in PLAINTIFF ’s Complaint, that the
18 Complaint and each cause of action set forth therein, or some of them, are barred, in whole or in part,
19 because: (a) FLYERS exercised reasonable care to prevent and promptly correct any alleged
20 discriminatory behavior, including, but not limited to, maintaining an open door policy with a
21 complaint procedure; and (b) PLAINTIFF unreasonably failed to take advantage of any preventative
22 or corrective opportunity provided by FLYERS or to otherwise avoid harm.
23 SIXTH AFFIRMATIVE DEFENSE
24 (Reasonable Investigation)
25 6. As a separate and distinct affirmative defense, FLYERS alleges PLAINTIFF ’s
26 Complaint is barred, in whole or in part, on the ground that FLYERS conducted a reasonable
27 investigation of PLAINTIFF ’s report of inappropriate or unlawful conduct and took all necessary and
28 appropriate action based upon that investigation.
LITTLER MENDELSON, P.C.
101 S eco nd S tree t
Su ite 10 00
Sa n F ra nc is co, C A 94 105 3. CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 SEVENTH AFFIRMATIVE DEFENSE
2 (Outside Scope of Employment)
3 7. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint,
4 and each cause of action set forth therein, or some of them, cannot be maintained against it because,
5 to the extent any FLYERS employee engaged in any unlawful conduct, such conduct was committed
6 outside the course and scope of such employee's employment, was not authorized, adopted, or ratified
7 by FLYERS, and/or FLYERS did not know nor should it have known of such conduct. FLYERS
8 further alleges that even assuming arguendo, any employee or agent of FLYERS engaged in any
9 unlawful conduct toward PLAINTIFF (which FLYERS denies), such conduct was contrary to
10 FLYERS’ express policies.
11 EIGHTH AFFIRMATIVE DEFENSE
12 (No Agency Relationship)
13 8. As a separate and distinct affirmative defense, FLYERS denies the existence of an
14 agency relationship between Co-Defendant JAMES GERARD PEDERSON (“PEDERSON”) and
15 FLYERS at the time of the alleged incident. Without admitting the conduct alleged in the Complaint
16 occurred, FLYERS asserts that PEDERSON was not acting within the scope of employment or with
17 authority from FLYERS if the alleged incident occurred.
18 NINTH AFFIRMATIVE DEFENSE
19 (No Intent to Cause Harmful or Offensive Contact)
20 9. As a separate and distinct affirmative defense, FLYERS denies any intent on its part to
21 cause harmful or offensive contact with PLAINTIFF as alleged in her Complaint.
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23 TENTH AFFIRMATIVE DEFENSE
24 (Sexual Battery/Assault Not Foreseeable)
25 10. As a separate and distinct affirmative defense, FLYERS denies that it was foreseeable
26 to anticipate that the alleged actor would engage in conduct alleged by PLAINTIFF in her fourth cause
27 of action in her Complaint.
28 ///
LITTLER MENDELSON, P.C.
101 S eco nd S tree t
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Sa n F ra nc is co, C A 94 105 4. CASE NO. BCV-24-101783
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ANSWER TO COMPLAINT
1 ELEVENTH AFFIRMATIVE DEFENSE
2 (No Prior Knowledge of Unlawful Conduct)
3 11. As a separate and distinct affirmative defense, FLYERS alleges that it had no prior
4 notice or knowledge of any alleged harassing conduct toward PLAINTIFF.
5 TWELFTH AFFIRMATIVE DEFENSE
6 (All Reasonable Steps Taken to Prevent Harassment)
7 12. As a separate and distinct affirmative defense, FLYERS asserts that it took all
8 appropriate actions to prevent and/or correct the harassment allegedly suffered by PLAINTIFF.
9 THIRTEENTH AFFIRMATIVE DEFENSE
10 (All Reasonable Steps Taken)
11 13. As a separate and distinct affirmative defense, FLYERS alleges it employs
12 comprehensive policies and procedures designed to prevent harassment in the workplace, including,
13 but not limited to, regularly conducted training programs for employees on harassment prevention,
14 robust policies to report harassment, and employing monitoring and supervisory mechanisms to ensure
15 compliance with its anti-harassment policies.
16 FOURTEENTH AFFIRMATIVE DEFENSE
17 (Contributory and/or Comparative Negligence)
18 14. As a separate and distinct affirmative defense, FLYERS alleges that PLAINTIFF failed
19 to exercise reasonable and ordinary care, caution, and/or prudence and the alleged injuries and
20 damages, if any were suffered, were proximately caused and/or contributed to by PLAINTIFF ’s own
21 negligent and/or intentional conduct and any recovery to which PLAINTIFF might be entitled must
22 be reduced by reason of PLAINTIFF ’s contributory and/or comparative negligence.
23 FIFTEENTH AFFIRMATIVE DEFENSE
24 (Superseding Cause)
25 15. As a separate and distinct affirmative defense, while FLYERS denies that it engaged
26 in the conduct attributed to it by PLAINTIFF, if it is determined the conduct alleged is legally
27 attributable to FLYERS, FLYERS alleges that the proximate cause of such damage as the conduct,
28 intentional tort, and/or criminal act of another.
LITTLER MENDELSON, P.C.
101 S eco nd S tree t
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Sa n F ra nc is co, C A 94 105 5. CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 (Workers’ Compensation Preemption)
3 16. As a separate and distinct affirmative defense, FLYERS alleges, based on information
4 and belief, that the Court lacks jurisdiction over the subject matter of each of PLAINTIFF ’s claims
5 for relief, or some of them, because the exclusive remedy for PLAINTIFF ’s purported injuries lies
6 under the California Workers’ Compensation Act, Lab. Code § 3600, et seq.
7 SEVENTEENTH AFFIRMATIVE DEFENSE
8 (Waiver)
9 17. As a separate and distinct affirmative defense, FLYERS is informed and believes that
10 further investigation and discovery will reveal, that the Complaint and each cause of action set forth
11 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of waiver.
12 EIGHTEENTH AFFIRMATIVE DEFENSE
13 (Estoppel)
14 18. As a separate and distinct affirmative defense, FLYERS is informed and believes that
15 further investigation and discovery will reveal, that the Complaint and each cause of action set forth
16 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of estoppel.
17 NINETEENTH AFFIRMATIVE DEFENSE
18 (Laches)
19 19. As a separate and distinct affirmative defense, FLYERS is informed and believes that
20 further investigation and discovery will reveal, that the Complaint and each cause of action set forth
21 therein, or some of them, are barred by the equitable doctrine of laches.
22 TWENTIETH AFFIRMATIVE DEFENSE
23 (Unclean Hands)
24 20. As a separate and distinct affirmative defense, FLYERS is informed and believes that
25 further investigation and discovery will reveal, that the Complaint and each cause of action set forth
26 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of unclean hands.
27 ///
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LITTLER MENDELSON, P.C.
101 S eco nd S tree t
Su ite 10 00
Sa n F ra nc is co, C A 94 105 6. CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 TWENTY-FIRST AFFIRMATIVE DEFENSE
2 (Consent)
3 21. As a separate and distinct affirmative defense, FLYERS is informed and believes that
4 further investigation and discovery will reveal, that the Complaint and each cause of action set forth
5 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of consent.
6 TWENTY-SECOND AFFIRMATIVE DEFENSE
7 (Offset)
8 22. As a separate and distinct affirmative defense, FLYERS alleges that if PLAINTIFF is
9 judged to be entitled to any recovery, any award to PLAINTIFF must be offset by all sums received
10 by PLAINTIFF from any source, including but not limited to, payments made by FLYERS to
11 PLAINTIFF while on leave, unemployment insurance, private insurance, state disability insurance,
12 Social Security disability payments, workers’ compensation payments, and/or other monies and/or
13 benefits PLAINTIFF has received or will receive.
14 TWENTY-THIRD AFFIRMATIVE DEFENSE
15 (Failure to Mitigate Damages)
16 23. As a separate and distinct affirmative defense, FLYERS alleges that to the extent
17 PLAINTIFF sustained damages, which FLYERS denies, PLAINTIFF failed to mitigate her damages
18 as required by law.
19 TWENTY-FOURTH AFFIRMATIVE DEFENSE
20 (Apportionment of Fault)
21 24. As a separate and distinct affirmative defense, FLYERS alleges provisionally and
22 conditionally that if PLAINTIFF suffered any damages, such damages were proximately or legally
23 caused by the misconduct of PLAINTIFF and/or parties other than FLYERS and, accordingly, any
24 award of damages must be reduced in whole or in part, or apportioned in proportion to the percentage
25 of comparative fault of PLAINTIFF , other parties and/or unauthorized individuals, including both
26 economic and non-economic damages. In the event of such apportionment, FLYERS is entitled to a
27 separate judgment for non-economic damages in direct proportion to her percentage of fault, if any is
28 found, notwithstanding FLYERS’ continuing denial of any fault, pursuant to California Civil Code
LITTLER MENDELSON, P.C.
101 S eco nd S tree t
Su ite 10 00
Sa n F ra nc is co, C A 94 105 7. CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 section 1431.2, with such percentage determined by the comparative fault of all parties, non-parties
2 and/or unauthorized individuals to this action, known or unknown. To assess any greater percentage
3 of fault and damages than her own against FLYERS would constitute a denial of equal protection of
4 the law and due process which is guaranteed by the United States and California Constitutions.
5 TWENTY-FIFTH AFFIRMATIVE DEFENSE
6 (Punitive Damages Unwarranted)
7 25. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint fails
8 to state facts sufficient to set forth a cause of action for punitive or exemplary damages as it relates to
9 any act or omission by FLYERS.
10 TWENTY-SIXTH AFFIRMATIVE DEFENSE
11 (No Malice, Oppression or Fraud)
12 26. As a separate and distinct affirmative defense, FLYERS alleges PLAINTIFF is not
13 entitled to recover punitive or exemplary damages, because PLAINTIFF cannot establish facts by clear
14 and convincing evidence sufficient to support allegations of malice, oppression or fraud as it relates
15 to any act or omission by FLYERS as required by California Civil Code section 3294, subdivision (a).
16 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
17 (No Prejudgment Interest)
18 27. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint fails
19 to state a claim upon which prejudgment interest may be granted because the damages claimed are not
20 sufficiently certain to allow an award of prejudgment interest.
21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
22 (No Causation for Emotional Distress)
23 28. As a separate and distinct affirmative defense, FLYERS denies that it proximately
24 caused PLAINTIFF any alleged emotional distress and that any alleged emotional distress suffered by
25 PLAINTIFF resulted from the proximate cause of such damage as the conduct, intentional tort, and/or
26 criminal act of another.
27 ///
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LITTLER MENDELSON, P.C.
101 S eco nd S tree t
Su ite 10 00
Sa n F ra nc is co, C A 94 105 8. CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 TWENTY-NINTH AFFIRMATIVE DEFENSE
2 (Assumption of Risk of Alleged Emotional Distress)
3 29. As a separate and distinct affirmative defense, FLYERS alleges that PLAINTIFF
4 voluntarily assumed the risk of any emotional distress arising from the allegations alleged in her
5 Complaint.
6 RESERVATION OF ADDITIONAL DEFENSES
7 FLYERS does not presently know all facts concerning the conduct of PLAINTIFF to state all
8 affirmative defenses at this time. FLYERS reserves the right to amend this Answer should it later
9 discover facts demonstrating the existence of new and/or additional affirmative defenses, and/or
10 should a change a law in the law support the inclusion of new and/or additional affirmative defenses.
11 PRAYER FOR RELIEF
12 WHEREFORE, FLYERS prays for relief as follows:
13 1. That the Complaint be dismissed in its entirety with prejudice;
14 2. That PLAINTIFF take nothing by reason of her Complaint;
15 3. That judgment be entered on the Complaint in favor of FLYERS and against
16 PLAINTIFF on all causes of action;
17 4. That FLYERS be awarded attorneys’ fees and costs of suit incurred herein, where
18 appropriate; and
19 5. For such other and further relief as the Court may deem just and proper.
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DATED: July 1, 2024 LITTLER MENDELSON P.C.
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23 CONSTANCE E. NORTON
CIRRUS JAHANGIRI
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Attorneys for Defendant
25 FLYERS ENERGY, LLC
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LITTLER MENDELSON, P.C.
101 S eco nd S tree t
Su ite 10 00
Sa n F ra nc is co, C A 94 105 9. CASE NO. BCV-24-101783
(415) 43 3 - 19 40
ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 I, the undersigned, state:
3 I am employed in the City and County of San Francisco, State of California. I am over the
age of 18 years, and not a party to the within action. My business address is LITTLER
4 MENDELSON, P.C., 101 Second Street, Suite 1000, San Francisco, CA 94105.
5 On July 1, 2024, I served the foregoing document(s) described as:
6 DEFENDANT FLYER ENERGY, LLC’S ANSWER TO COMPLAINT
7 on the interested parties as follows:
8 Neama Rahmani, Esq.
Ronald L. Zambrano, Esq.
9 Ashley J. Garay, Esq.
WEST COAST TRIAL LAWYERS, APLC
10 1147 South Hope Street
Los Angeles, California 90015
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Emails: ron@westcoasttriallawyers.com
12 ashleyg@westcoasttriallawyers.com,
efilings@westcoasttriallawyers.com
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Attorneys for Plaintiff,
14 JANE DOE
15
VIA ELECTRONIC MAIL: 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 the documents to be sent to the persons at the electronic service addresses
17 listed herein. My email address is dalawadhi@littler.com.
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I declare under penalty of perjury under the laws of the State of California that the foregoing
19 is true and correct.
20 Executed on July 1, 2024, at Lake Oswego, Oregon.
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Diana A. Al-Awadhi
23 4891-4934-3693.1 / 058211-1046
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LITTLER MENDELSON, P.C.
101 S eco nd S tree t
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(415) 43 3 - 19 40
ANSWER TO COMPLAINT
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1 CONSTANCE E. NORTON (SBN 146365) cnorton@littler.com 2 CIRRUS JAHANGIRI (SBN 351052) cjahangiri@littler.com 3 LITTLER MENDELSON, P.C. 101 Second Street, Suite 1000 4 San Francisco, CA 94105 Telephone: 415.433.1940 5 Attorneys for Defendant 6 FLYERS ENERGY, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN 10 11 JANE DOE, CASE NO. BCV-24-101783 12 Plaintiff, ASSIGNED FOR ALL PURPOSES TO HON.GREGORY PULSKAMP 13 (Bakersfield Division J) v. 14 DEFENDANT FLYER ENERGY, LLC’S 15 FLYERS ENERGY, LLC, a California Limited ANSWER TO COMPLAINT Liability Company; JAMES GERARD 16 PEDERSON, as an Individual, and DOES 1 through 10, inclusive, 17 Defendants. Complaint Filed: May 29, 2024 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 Defendant FLYERS ENERGY, LLC (“FLYERS”) responds to and answers the Complaint 2 filed by Plaintiff JANE DOE (“PLAINTIFF”) in the above-referenced action as follows: 3 GENERAL DENIAL 4 Pursuant to section 431.30(d) of the California Code of Civil Procedure, FLYERS generally 5 and specifically denies each and every allegation in the Complaint. In addition, FLYERS denies that 6 PLAINTIFF has sustained, or will sustain, any loss or damage in the manner or the amount alleged, 7 or otherwise, by reason of any act or omission of, or any other conduct or absence thereof on the part 8 of, FLYERS. This general and specific denial of the Complaint is filed without prejudice to FLYERS’ 9 right to file amended answers, including additional defenses. 10 AFFIRMATIVE DEFENSES 11 FLYERS asserts the following affirmative defenses. In so doing, FLYERS does not concede 12 it has the burden of proof or production with respect to any such affirmative defense. Moreover, 13 FLYERS does not presently know all the facts concerning the conduct of PLAINTIFF sufficient to 14 state all affirmative defenses. Accordingly, FLYERS will seek leave of this Court to amend this 15 Answer should it later discover facts demonstrating the existence of additional affirmative defenses. 16 Furthermore, all such defenses are pleaded in the alternative, and do not constitute an admission of 17 liability or that PLAINTIFF is entitled to any relief whatsoever. 18 FIRST AFFIRMATIVE DEFENSE 19 (Statute of Limitations) 20 1. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint and 21 each cause of action set forth therein are barred, in whole or in part, by the applicable statutes of 22 limitation including, without limitation, those set forth in California Government Code section 12960, 23 subdivision (e) and California Code of Civil Procedure sections 340.16, subdivision (a) and 335.1. 24 SECOND AFFIRMATIVE DEFENSE 25 (Failure to State a Cause of Action) 26 2. As a separate and distinct affirmative defense, FLYERS asserts that the Complaint and 27 each cause of action set forth therein fail to state facts sufficient to constitute a cause of action upon 28 which relief may be granted. LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 2. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 (Failure to File Declaration Under CCP §340.16) 3 3. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint and 4 each cause of action set forth therein are barred, in whole or in part, because counsel for PLAINTIFF 5 failed to comply with the requirements set forth in California Code of Civil Procedure §340.16(c)(3) 6 and did not file the declaration required by law. 7 FOURTH AFFIRMATIVE DEFENSE 8 (Failure to Exhaust Administrative Remedies) 9 4. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint and 10 each cause of action set forth therein are barred, in whole or in part, because PLAINTIFF failed to 11 exhaust her administrative remedies with the California Civil Rights Department (formerly named the 12 California Department of Fair Employment and Housing) and/or the Equal Employment Opportunity 13 Commission. 14 FIFTH AFFIRMATIVE DEFENSE 15 (Avoidable Consequences) 16 5. As a separate and distinct affirmative defense, FLYERS alleges, without admitting that 17 any defendant engaged in any of the acts or omissions alleged in PLAINTIFF ’s Complaint, that the 18 Complaint and each cause of action set forth therein, or some of them, are barred, in whole or in part, 19 because: (a) FLYERS exercised reasonable care to prevent and promptly correct any alleged 20 discriminatory behavior, including, but not limited to, maintaining an open door policy with a 21 complaint procedure; and (b) PLAINTIFF unreasonably failed to take advantage of any preventative 22 or corrective opportunity provided by FLYERS or to otherwise avoid harm. 23 SIXTH AFFIRMATIVE DEFENSE 24 (Reasonable Investigation) 25 6. As a separate and distinct affirmative defense, FLYERS alleges PLAINTIFF ’s 26 Complaint is barred, in whole or in part, on the ground that FLYERS conducted a reasonable 27 investigation of PLAINTIFF ’s report of inappropriate or unlawful conduct and took all necessary and 28 appropriate action based upon that investigation. LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 3. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Outside Scope of Employment) 3 7. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint, 4 and each cause of action set forth therein, or some of them, cannot be maintained against it because, 5 to the extent any FLYERS employee engaged in any unlawful conduct, such conduct was committed 6 outside the course and scope of such employee's employment, was not authorized, adopted, or ratified 7 by FLYERS, and/or FLYERS did not know nor should it have known of such conduct. FLYERS 8 further alleges that even assuming arguendo, any employee or agent of FLYERS engaged in any 9 unlawful conduct toward PLAINTIFF (which FLYERS denies), such conduct was contrary to 10 FLYERS’ express policies. 11 EIGHTH AFFIRMATIVE DEFENSE 12 (No Agency Relationship) 13 8. As a separate and distinct affirmative defense, FLYERS denies the existence of an 14 agency relationship between Co-Defendant JAMES GERARD PEDERSON (“PEDERSON”) and 15 FLYERS at the time of the alleged incident. Without admitting the conduct alleged in the Complaint 16 occurred, FLYERS asserts that PEDERSON was not acting within the scope of employment or with 17 authority from FLYERS if the alleged incident occurred. 18 NINTH AFFIRMATIVE DEFENSE 19 (No Intent to Cause Harmful or Offensive Contact) 20 9. As a separate and distinct affirmative defense, FLYERS denies any intent on its part to 21 cause harmful or offensive contact with PLAINTIFF as alleged in her Complaint. 22 23 TENTH AFFIRMATIVE DEFENSE 24 (Sexual Battery/Assault Not Foreseeable) 25 10. As a separate and distinct affirmative defense, FLYERS denies that it was foreseeable 26 to anticipate that the alleged actor would engage in conduct alleged by PLAINTIFF in her fourth cause 27 of action in her Complaint. 28 /// LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 4. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 ELEVENTH AFFIRMATIVE DEFENSE 2 (No Prior Knowledge of Unlawful Conduct) 3 11. As a separate and distinct affirmative defense, FLYERS alleges that it had no prior 4 notice or knowledge of any alleged harassing conduct toward PLAINTIFF. 5 TWELFTH AFFIRMATIVE DEFENSE 6 (All Reasonable Steps Taken to Prevent Harassment) 7 12. As a separate and distinct affirmative defense, FLYERS asserts that it took all 8 appropriate actions to prevent and/or correct the harassment allegedly suffered by PLAINTIFF. 9 THIRTEENTH AFFIRMATIVE DEFENSE 10 (All Reasonable Steps Taken) 11 13. As a separate and distinct affirmative defense, FLYERS alleges it employs 12 comprehensive policies and procedures designed to prevent harassment in the workplace, including, 13 but not limited to, regularly conducted training programs for employees on harassment prevention, 14 robust policies to report harassment, and employing monitoring and supervisory mechanisms to ensure 15 compliance with its anti-harassment policies. 16 FOURTEENTH AFFIRMATIVE DEFENSE 17 (Contributory and/or Comparative Negligence) 18 14. As a separate and distinct affirmative defense, FLYERS alleges that PLAINTIFF failed 19 to exercise reasonable and ordinary care, caution, and/or prudence and the alleged injuries and 20 damages, if any were suffered, were proximately caused and/or contributed to by PLAINTIFF ’s own 21 negligent and/or intentional conduct and any recovery to which PLAINTIFF might be entitled must 22 be reduced by reason of PLAINTIFF ’s contributory and/or comparative negligence. 23 FIFTEENTH AFFIRMATIVE DEFENSE 24 (Superseding Cause) 25 15. As a separate and distinct affirmative defense, while FLYERS denies that it engaged 26 in the conduct attributed to it by PLAINTIFF, if it is determined the conduct alleged is legally 27 attributable to FLYERS, FLYERS alleges that the proximate cause of such damage as the conduct, 28 intentional tort, and/or criminal act of another. LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 5. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 (Workers’ Compensation Preemption) 3 16. As a separate and distinct affirmative defense, FLYERS alleges, based on information 4 and belief, that the Court lacks jurisdiction over the subject matter of each of PLAINTIFF ’s claims 5 for relief, or some of them, because the exclusive remedy for PLAINTIFF ’s purported injuries lies 6 under the California Workers’ Compensation Act, Lab. Code § 3600, et seq. 7 SEVENTEENTH AFFIRMATIVE DEFENSE 8 (Waiver) 9 17. As a separate and distinct affirmative defense, FLYERS is informed and believes that 10 further investigation and discovery will reveal, that the Complaint and each cause of action set forth 11 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of waiver. 12 EIGHTEENTH AFFIRMATIVE DEFENSE 13 (Estoppel) 14 18. As a separate and distinct affirmative defense, FLYERS is informed and believes that 15 further investigation and discovery will reveal, that the Complaint and each cause of action set forth 16 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of estoppel. 17 NINETEENTH AFFIRMATIVE DEFENSE 18 (Laches) 19 19. As a separate and distinct affirmative defense, FLYERS is informed and believes that 20 further investigation and discovery will reveal, that the Complaint and each cause of action set forth 21 therein, or some of them, are barred by the equitable doctrine of laches. 22 TWENTIETH AFFIRMATIVE DEFENSE 23 (Unclean Hands) 24 20. As a separate and distinct affirmative defense, FLYERS is informed and believes that 25 further investigation and discovery will reveal, that the Complaint and each cause of action set forth 26 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of unclean hands. 27 /// 28 LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 6. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 TWENTY-FIRST AFFIRMATIVE DEFENSE 2 (Consent) 3 21. As a separate and distinct affirmative defense, FLYERS is informed and believes that 4 further investigation and discovery will reveal, that the Complaint and each cause of action set forth 5 therein, or some of them, are barred, in whole or in part, by the equitable doctrine of consent. 6 TWENTY-SECOND AFFIRMATIVE DEFENSE 7 (Offset) 8 22. As a separate and distinct affirmative defense, FLYERS alleges that if PLAINTIFF is 9 judged to be entitled to any recovery, any award to PLAINTIFF must be offset by all sums received 10 by PLAINTIFF from any source, including but not limited to, payments made by FLYERS to 11 PLAINTIFF while on leave, unemployment insurance, private insurance, state disability insurance, 12 Social Security disability payments, workers’ compensation payments, and/or other monies and/or 13 benefits PLAINTIFF has received or will receive. 14 TWENTY-THIRD AFFIRMATIVE DEFENSE 15 (Failure to Mitigate Damages) 16 23. As a separate and distinct affirmative defense, FLYERS alleges that to the extent 17 PLAINTIFF sustained damages, which FLYERS denies, PLAINTIFF failed to mitigate her damages 18 as required by law. 19 TWENTY-FOURTH AFFIRMATIVE DEFENSE 20 (Apportionment of Fault) 21 24. As a separate and distinct affirmative defense, FLYERS alleges provisionally and 22 conditionally that if PLAINTIFF suffered any damages, such damages were proximately or legally 23 caused by the misconduct of PLAINTIFF and/or parties other than FLYERS and, accordingly, any 24 award of damages must be reduced in whole or in part, or apportioned in proportion to the percentage 25 of comparative fault of PLAINTIFF , other parties and/or unauthorized individuals, including both 26 economic and non-economic damages. In the event of such apportionment, FLYERS is entitled to a 27 separate judgment for non-economic damages in direct proportion to her percentage of fault, if any is 28 found, notwithstanding FLYERS’ continuing denial of any fault, pursuant to California Civil Code LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 7. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 section 1431.2, with such percentage determined by the comparative fault of all parties, non-parties 2 and/or unauthorized individuals to this action, known or unknown. To assess any greater percentage 3 of fault and damages than her own against FLYERS would constitute a denial of equal protection of 4 the law and due process which is guaranteed by the United States and California Constitutions. 5 TWENTY-FIFTH AFFIRMATIVE DEFENSE 6 (Punitive Damages Unwarranted) 7 25. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint fails 8 to state facts sufficient to set forth a cause of action for punitive or exemplary damages as it relates to 9 any act or omission by FLYERS. 10 TWENTY-SIXTH AFFIRMATIVE DEFENSE 11 (No Malice, Oppression or Fraud) 12 26. As a separate and distinct affirmative defense, FLYERS alleges PLAINTIFF is not 13 entitled to recover punitive or exemplary damages, because PLAINTIFF cannot establish facts by clear 14 and convincing evidence sufficient to support allegations of malice, oppression or fraud as it relates 15 to any act or omission by FLYERS as required by California Civil Code section 3294, subdivision (a). 16 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 17 (No Prejudgment Interest) 18 27. As a separate and distinct affirmative defense, FLYERS alleges that the Complaint fails 19 to state a claim upon which prejudgment interest may be granted because the damages claimed are not 20 sufficiently certain to allow an award of prejudgment interest. 21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 22 (No Causation for Emotional Distress) 23 28. As a separate and distinct affirmative defense, FLYERS denies that it proximately 24 caused PLAINTIFF any alleged emotional distress and that any alleged emotional distress suffered by 25 PLAINTIFF resulted from the proximate cause of such damage as the conduct, intentional tort, and/or 26 criminal act of another. 27 /// 28 LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 8. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 (Assumption of Risk of Alleged Emotional Distress) 3 29. As a separate and distinct affirmative defense, FLYERS alleges that PLAINTIFF 4 voluntarily assumed the risk of any emotional distress arising from the allegations alleged in her 5 Complaint. 6 RESERVATION OF ADDITIONAL DEFENSES 7 FLYERS does not presently know all facts concerning the conduct of PLAINTIFF to state all 8 affirmative defenses at this time. FLYERS reserves the right to amend this Answer should it later 9 discover facts demonstrating the existence of new and/or additional affirmative defenses, and/or 10 should a change a law in the law support the inclusion of new and/or additional affirmative defenses. 11 PRAYER FOR RELIEF 12 WHEREFORE, FLYERS prays for relief as follows: 13 1. That the Complaint be dismissed in its entirety with prejudice; 14 2. That PLAINTIFF take nothing by reason of her Complaint; 15 3. That judgment be entered on the Complaint in favor of FLYERS and against 16 PLAINTIFF on all causes of action; 17 4. That FLYERS be awarded attorneys’ fees and costs of suit incurred herein, where 18 appropriate; and 19 5. For such other and further relief as the Court may deem just and proper. 20 DATED: July 1, 2024 LITTLER MENDELSON P.C. 21 22 23 CONSTANCE E. NORTON CIRRUS JAHANGIRI 24 Attorneys for Defendant 25 FLYERS ENERGY, LLC 26 27 28 LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 9. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 I, the undersigned, state: 3 I am employed in the City and County of San Francisco, State of California. I am over the age of 18 years, and not a party to the within action. My business address is LITTLER 4 MENDELSON, P.C., 101 Second Street, Suite 1000, San Francisco, CA 94105. 5 On July 1, 2024, I served the foregoing document(s) described as: 6 DEFENDANT FLYER ENERGY, LLC’S ANSWER TO COMPLAINT 7 on the interested parties as follows: 8 Neama Rahmani, Esq. Ronald L. Zambrano, Esq. 9 Ashley J. Garay, Esq. WEST COAST TRIAL LAWYERS, APLC 10 1147 South Hope Street Los Angeles, California 90015 11 Emails: ron@westcoasttriallawyers.com 12 ashleyg@westcoasttriallawyers.com, efilings@westcoasttriallawyers.com 13 Attorneys for Plaintiff, 14 JANE DOE 15 VIA ELECTRONIC MAIL: 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 the documents to be sent to the persons at the electronic service addresses 17 listed herein. My email address is dalawadhi@littler.com. 18 I declare under penalty of perjury under the laws of the State of California that the foregoing 19 is true and correct. 20 Executed on July 1, 2024, at Lake Oswego, Oregon. 21 22 Diana A. Al-Awadhi 23 4891-4934-3693.1 / 058211-1046 24 25 26 27 28 LITTLER MENDELSON, P.C. 101 S eco nd S tree t Su ite 10 00 Sa n F ra nc is co, C A 94 105 10. CASE NO. BCV-24-101783 (415) 43 3 - 19 40 ANSWER TO COMPLAINT