Preview
ROBERT A. JONES, State Bar No. 107839
robert.jones@ogletreedeakins.com
CAROLYN B, HALL, State Bar No. 212311
carolyn. hall@ogletreedeakins,com
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
Steuart Tower, Suite 1300
One Market Plaza
San Francisco, CA 94105
Telephone: 415.442.4810
Facsimile: 415.442.4870
ROBERT R. ROGINSON (State Bar No. 185286)
robert.roginson@ogletreedeakins.com
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
JAN 29 2015
Clerk of the Court
BY: ROMY RISK
Deputy Clerk
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: 213.239.9800
Facsimile: 213.239.9045
Attorneys for Defendant AMEC CONSTRUCTION
MANAGEMENT, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
BRUCE JAMES BERGER; KEVIN D.
CHURCHILL; CHARLES C. FRANCO;
EDWARD LEACH; WILLIAM WEST, IL;
MARK WRIGHT, and CHARLES A.
PATRICK,
Plaintiffs/Petitioners,
VS.
AMEC CONSTRUCTION MANAGEMENT,
INC.; AMEC ENVIRONMENTAL &
INFRASTRUCTURE, INC., and CALIFORNIA
DEPARTMENT OF TRANSPORTATION,
Defendants/Respondents,
Case No. CPF-12-511817
AMEC CONSTRUCTION
MANAGEMENT, INC,’S ANSWER TO
SECOND AMENDED PETITION FOR
WRIT OF MANDATE TO COMPEL
PAYMENT OF PREVAILING WAGES,
COMPLAINT FOR DECLARATORY
JUDGMENT, FOR PAST DUE
PREVAILING WAGES AND FOR AN
ACCOUNTING
Action Filed: January 11, 2012
Case No, CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATE,~
AMEC Construction Management, Inc. (‘AMEC CMI’), erroneously named and sued
herein, answers each of the allegations in the Verified Second Amended Petition for Writ of
Mandate to Compel Payment of Prevailing Wages, Complaint for Declaratory Judgment, for Past
Due Prevailing Wages and for an Accounting (the “Complaint’”) as follows:
1. Paragraph 1 of the Complaint states legal conclusions to which no response is
required. To the extent there are allegations in paragraph 1, Respondent AMEC CMTis without
sufficient knowledge or information to form a belief as to the truth of such allegations and on that
basis AMEC CMI denies each and every allegation set forth in paragraph 1.
2. Respondent AMEC CMI admits that AMEC Construction Management, Inc. is a
Delaware corporation qualified to do business in California, AMEC CMI is without sufficient
knowledge or information to form a belief as to the truth of the remainder of the allegations in
paragraph 2, and on that basis denies each and every such allegation.
3. Respondent AMEC CMI is not and has never been the employer of
Plaintifi/Petitioner Bruce James Berger and on that basis AMEC CMI is without sufficient
knowledge or information to form a belief as to the truth of the allegations in paragraph 3 and, on
this ground, denies the allegations contained in paragraph 3.
4. Respondent AMEC CMT is not and has never been the employer of
Plaintiff/Petitioner Kevin D. Churchill and on that basis AMEC CMI is without sufficient
knowledge or information to form a belief as to the truth of the allegations in paragraph 4 and, on
this ground, denies the allegations contained in paragraph 4.
5. Respondent AMEC CMI is not and has never been the employer of
Plaintiff/Petitioner Charles C, Franco and on that basis AMEC CMI is without sufficient
knowledge or information to form a belicf as to the truth of the allegations in paragraph 5 and, on
this ground, denies the allegations contained in paragraph 5.
6. Respondent AMEC CMI is not and has never been the employer of
Plaintiff/Petitioner Edward Leach and on that basis AMEC CMI is without sufficient knowledge or
information to form a belief as to the truth of the allegations in paragraph 6 and, on this ground,
denies the allegations contained in paragraph 6.
1 Case No, CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR, WRIT OF MANDATE7. Respondent AMEC CMT is not and has never been the employer of
Plaintiff/Petitioner William West, III and on that basis AMEC CMI is without sufficient knowledge
or information to form a belief as to the truth of the allegations in paragraph 7 and, on this ground,
denies the allegations contained in paragraph 7.
8. Respondent AMEC CML is not and has never been the employer of
Plaintiff/Petitioner Mark Wright and on that basis AMEC CML is without sufficient knowledge or
information to form a belief as to the truth of the allegations in paragraph 8 and, on this ground,
denies the allegations contained in paragraph 8.
9. Respondent AMEC CMT is not and has never been the employer of
Plaintiff/Petitioner Charles A. Patrick and on that basis AMEC CMI is without sufficient
knowledge or information to form a belief as to the truth of the allegations in paragraph 9 and, on
this ground, denics the allegations contained in paragraph 9.
10, Paragraph 10 of the Complaint states legal conclusions to which no response is
required. To the extent there are allegations in paragraph 10, Respondent AMEC CML is without
sufficient knowledge or information to form a belief as to the truth of such allegations and on that
basis AMEC CMI denies each and every such allegation.
11. Paragraph 11 of the Complaint states legal conclusions to which no response is
required. To the extent there are allegations in paragraph 11, Respondent AMEC CMT is without
sufficient knowledge or information to form a belief as to the truth of such allegations and on that
basis AMEC CMI denies each and every such allegation.
12. As Respondent AMEC CMT is not now and never was a party to the contract alleged.
in paragraph 12, it cannot admit or deny any of the allegations and on that basis denies each and
every allegation set forth in paragraph 12.
13. As Respondent AMEC CMI is not now and never was a party to the contract alleged
in paragraph 13, it cannot admit or deny any of the allegations and on that basis denies each and
every allegation set forth in paragraph 13.
14. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 14, and on that basis AMEC CMI denies each and
2 Case No, CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEevery allegation set forth in paragraph 14.
15. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 15, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 15.
16. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 16, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 16.
17. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 17, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 17.
18. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 18, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 18.
19, Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 19, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 19.
20. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 20, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 20.
21. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 21, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 21.
22, Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 22, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 22.
23. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 23, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 23.
3 Case No. CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATE,24. Paragraph 24 of the Complaint states legal conclusions to which no response is
required. To the extent there are allegations in paragraph 24, Respondent AMEC CMI is without
sufficient knowledge or information to form a belief as to the truth of such allegations and on that
basis AMEC CMI denies cach and every allegation set forth in paragraph 24.
25. Paragraph 25 of the Complaint states legal conclusions to which no response is
required. To the extent there are allegations in paragraph 25, Respondent AMEC CMI is without
sufficient knowledge or information to form a belief as to the truth of such allegations and on that
basis AMEC CMI denies each and every allegation set forth in paragraph 25,
26. Paragraph 26 of the Complaint states legal conclusions to which no response is
required, To the extent there are allegations in paragraph 26, Respondent AMEC CMI is without
sufficient knowledge or information to form a belief as to the truth of such allegations and on that
basis AMEC CMI denies each and every allegation set forth in paragraph 26.
27. Respondent AMEC CMI lacks sufficient knowledge or information to form a belicf
as to the truth of the allegations in paragraph 27, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 27.
28. Respondent AMEC CMT lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 28, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 28.
29, Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 29, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 2.
30. | Respondent AMEC CMI admits that Plaintiffs/Petitioners incorporated paragraphs 1
through 29 of their First Cause of Action into their Second Cause of Action. The document speaks
for itself.
31. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 31, and on that basis AMEC CMI denies cach and
every allegation set forth in paragraph 31.
32. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
4 Case No. CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEas to the truth of the allegations in paragraph 32, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 32.
33. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 33, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 33.
34. Respondent AMEC CMI admits that Plaintiffs/Petitioners incorporated paragraphs 1
through 29 of their First Cause of Action into their Third Cause of Action, The document speaks
for itself.
35. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 35, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 35.
36. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief
as to the truth of the allegations in paragraph 36, and on that basis AMEC CMI denies each and
every allegation set forth in paragraph 36,
AFFIRMATIVE DEFENSES
As separate and independent defenses, Respondent AMEC CMI alleges as follows:
FIRST AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and each purported cause of action
therein, Defendant alleges that Plaintiffs/Petitioners have failed to state facts sufficient to constitute
a cause of action.
SECOND AFFIRMATIVE DEFENSE
Respondent AMEC Construction Management, Inc. is not and has not been
Plaintiffs/Petitioners’ employer and, therefore, is not liable for any alleged violation of California
law.
THIRD AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Defendant AMEC CMI alleges that Plaintiffs/Petitioners, by reason of their acts,
conduct and omissions, have waived their rights, if any, to obtain the relief sought in the
3 Case No. CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATERo
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Complaint.
FOURTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and each purported cause of action
therein, Respondent AMEC CMI alleges that Plaintififs/Petitioners’ claims are barred by the
applicable statutes of limitations, including but not limited to California Business and Professions
Code Section 17208, California Code of Civil Procedure Sections 337, 338, 339, 340, and 343, and
California Labor Code Section 203.
FIFTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Defendant AMEC CMI alleges that Plaintiffs/Petitioners, by reason of their acts,
conduct and omissions, are estopped from obtaining the relief sought in the Complaint.
SIXTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Defendant AMEC CMI alleges that an award of damages to Plaintiffs/Petitioners
would violate due process because AMEC CMI lacks fair notice from the State regarding what
types of work require the payment of prevailing wages.
SEVENTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Plaintiffs/Petitioners’ claims for damages pursuant to the Prevailing Wage Law are
barred in whole or in part because Plaintiffs/Petitioners failed to exhaust and/or avail themselves of
the administrative remedies relating to such claims by challenging a rate determination through the
administrative procedure set forth in Labor Code Section 1773.4.
EIGHTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, the claims asserted by Plaintiffs/Petitioners in the Complaint are barred by the
doctrines of exhaustion and/or primary jurisdiction in that the Division of Labor Standards and
Enforcement (DLSE) and/or Labor Workforce Development Agency (LWDA) have exclusive
jurisdiction in this matter, and Plaintiffs/Petitioners have not exhausted their administrative
6 Case No. CPE-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEN
remedies,
NINTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to Plaintiffs/Petitioners’ claims for Violation of the
California Prevailing Wage Law, Cal. Lab, Code § 1720-1861, Defendant AMEC CMI alleges that
no private right of action exists to enforce those statutes.
TENTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Defendant AMEC CMI alleges that many of the projects on which they base their
claims did not meet the minimum monetary thresholds necessary for the Prevailing Wage Act to
apply.
ELEVENTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, the claims asserted by Plaintiffs/Petitioners in the Complaint and the injunctive and
restitution remedies Plaintiffs/Petitioners seck are barred in light of the fact that
Plaintiffs/Petitioners and the members of the general public have an adequate remedy in that they
may file a claim with the Division of Labor Standards and Enforcement (DLSE) or other
administrative agency.
TWELFTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Plaintiffs/Petitioners are barred, in whole or in part, from recovering any damages,
or any recovery of damages must be reduced, excused and/or discharged by virtue of
Plaintiffs/Petitioners’ failure to exercise reasonable diligence to mitigate their alleged damages.
THIRTEENTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Defendant AMEC CMI acted at all times on the basis of a good faith, reasonable
belief that it was in compliance with state and federal law.
FOURTENTH AFFIRMATIVE DEFENSE
Asa separate and affirmative defense to the Complaint and to each purported cause of
7 Case No. CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEaction therein, the claims asserted by Plaintiffs/Petitioners in the Complaint are barred in whole, or
in part, by Defendant AMEC CMI’s good faith reliance upon written guidelines, coverage
determinations, interpretations, and rules promulgated by the Department of Industrial Relations
(DIR) and/or the Division of Labor Standards and Enforcement (DLSE) and upon the
administrative practice and enforcement policies of the DIR, DLSE and the Labor Commissioner
of the State of California regarding the application of California’s prevailing wage laws.
FIFTEENTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Plaintiffs/Petitioners are riot entitled to any penalties under the California Labor
Code or other applicable wage and hour laws, because at all relevant times Defendant AMEC CMI
did not willfully, knowingly, or intentionally fail to comply with the compensation provisions of
the California Labor Code or any other applicable wage and hour laws, but rather acted in good
faith and had reasonable grounds for believing that they did not violate those provisions.
SIXTEENTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Plaintiffs/Petitioners are barred, in whole or in part, from recovering any damages,
or any recovery of damages must be reduced to the extent that any alleged damages are offset by
amounts overpaid to Plaintiffs/Petitioners during their employment.
SEVENTEENTH AFFIRMATIVE DEFENSE
As a separate and affirmative defense to the Complaint and to each purported cause of
action therein, Defendant AMEC CMI alleges that Plaintiffs/Petitioners’ claims are barred because
the Complaint is based on facts that have not been properly pled or adequately verified, are beyond
the personal knowledge of the individual who signed the verification, are the subject of expert
testimony, and/or are outside the scope of the administrative record, and/or because the Complaint
is based on documents and exhibits that have not been properly or adequately verified.
EIGHTEENTH AFFIRMATIVE DEFENSE
Respondent AMEC CMI reserves the right to assert any additional applicable defenses in
the event that additional and ongoing investigation or discovery indicates that any such defenses
8 Case No. CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEwe
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would be legally appropriate, Respondent AMEC CMI having at present incomplete and
insufficient knowledge or information of the matter now pending before the Court.
WHEREFORE, Respondent AMEC CMI prays that:
L
The petition for writ of mandamus be denied;
2. Plaintiffs/Petitioners take nothing from their Petition for Writ and Complaint;
3. Respondent AMEC CMI recovers its costs in this proceeding; and
4, That the Court award such other and further relief as it considers proper.
DATED: January 29, 2015 OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
By: _/s/ Carolyn B. Hall
Robert R. Roginson.
Carolyn B. Hail
Attorneys for Defendant AMEC
CONSTRUCTION MANAGEMENT, INC.
9 Case No, CPF-12-511817
DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC,’S
ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEoD DR WH & WwW
PROOF OF SERVICE
Berger, et al. v. AMEC, et al.
Superior Court of California, County of San Francisco
Case No, CPF-12-511817
Jam and was at all times herein mentioned over the age of 18 years and not a party to the
action in which this service is made. At all times herein mentioned I have been employed in the
County of San Francisco in the office of a member of the bar of this court at whose direction the
service was made. My business address is Steuart Tower, Suite 1300, One Market Plaza, San
Francisco, CA 94105,
On January 29, 2015, I served the following document(s):
AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED
PETITION FOR WRIT OF MANDATE TO COMPEL PAYMENT OF PREVAILING
WAGES, COMPLAINT FOR DECLARATORY JUDGMENT, FOR PAST DUE
PREVAILING WAGES AND FOR AN ACCOUNTING
by placing [_] (the original) [X] (a true copy thereof) in a sealed envelope addressed as stated on:
Alan C. Davis Attorneys for Plaintiffs/Petitioners
Davis & Reno
22 Battery Street, Suite 800
San Francisco, CA 94111
Telephone: 415.274.8700
Facsimile: 415.274.8770
Email: aland3370@aol.com
Ronald W. Beals, Chief Counsel Attorneys for Defendant/Respondent
Jeanne Scherer, Deputy Chief Counsel People of the State of California,
Todd Van Santen, Assistant Chief Counsel Department of Transportation
Erin Holbrook
State of California
1120 N Street (MS 57) P.O. Box 1438
Sacramento, CA 95812-1438
Telephone: 916.654.2630
Facsimile: 916.654.6128
(1 BY HAND DELIVERY: I personally provided the documents by hand to the above
individuals. .
O BY MESSENGER: I provided the documents to a professional messenger service for
same day hand-delivery to Davis & Reno, 22 Battery Street, Suite 1000, San Francisco, CA
94111.
X BY MAIL: I placed the envelope for collection and mailing, following our ordinary
business practices. I am readily familiar with the practice of Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.’s practice for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service, ina
sealed envelope with postage fully prepaid.
1 Case No. CPF-12-511817
PROOF OF SERVICENo
[] BY MAIL: I deposited the sealed envelope with the United States Postal Service, with
the postage fully prepaid at Steuart Tower, Suite 1300, One Market Plaza, San
Francisco, CA 94105.
a BY OVERNIGHT DELIVERY: I placed the sealed envelope(s) or package(s)
: designated by the express service carrier for collection and overnight delivery by
following the ordinary business practices of Ogletree, Deakins, Nash, Smoak &
Stewart P.C., San Francisco, California. | am readily familiar with Ogletree, Deakins,
Nash, Smoak & Stewart P.C.’s practice for collecting and processing of
correspondence for overnight delivery, said practice being that, in the ordinary course
of business, correspondence for overnight delivery is deposited with delivery fees paid
or provided for at the carrier’s express service offices for next-day delivery,
oO BY FACSIMILE by transmitting a facsimile transmission a copy of said document(s) to
the above addressee(s) at the indicated facsimile number(s), in accordance with:
the written confirmation of counsel in this action;
Cl] [State Court motion, opposition or reply only] in accordance with Code of
Civil Procedure section 1005(b);
ol [Federal Court] in accordance with the written confirmation of counsel in
this action and order of the court.
BY ELECTRONIC FILING: | electronically filed the document(s) with the Clerk of the
Court and electronically transmitted the document(s) to the above addressee(s) via the E-
Filing system of File & ServeXpress.
& (State) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct,
["] @ederal) I declare that I am employed in the office of a member of the State Bar of this
Court at whose direction the service was made. I declare under penalty of
perjury under the laws of the United States of America that the above is true and
correct.
Executed on January 29, 2015, at San Francisco, CA. .
Matilda W. Thomas itd a di ) Theta,
Type or Print Name Signature
20137888.2
2 Case No, CPP~12-511817
PROOF OF SERVICE
Preview
ROBERT A. JONES, State Bar No. 107839 robert.jones@ogletreedeakins.com CAROLYN B, HALL, State Bar No. 212311 carolyn. hall@ogletreedeakins,com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuart Tower, Suite 1300 One Market Plaza San Francisco, CA 94105 Telephone: 415.442.4810 Facsimile: 415.442.4870 ROBERT R. ROGINSON (State Bar No. 185286) robert.roginson@ogletreedeakins.com ELECTRONICALLY FILED Superior Court of California, County of San Francisco JAN 29 2015 Clerk of the Court BY: ROMY RISK Deputy Clerk OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: 213.239.9800 Facsimile: 213.239.9045 Attorneys for Defendant AMEC CONSTRUCTION MANAGEMENT, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO BRUCE JAMES BERGER; KEVIN D. CHURCHILL; CHARLES C. FRANCO; EDWARD LEACH; WILLIAM WEST, IL; MARK WRIGHT, and CHARLES A. PATRICK, Plaintiffs/Petitioners, VS. AMEC CONSTRUCTION MANAGEMENT, INC.; AMEC ENVIRONMENTAL & INFRASTRUCTURE, INC., and CALIFORNIA DEPARTMENT OF TRANSPORTATION, Defendants/Respondents, Case No. CPF-12-511817 AMEC CONSTRUCTION MANAGEMENT, INC,’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATE TO COMPEL PAYMENT OF PREVAILING WAGES, COMPLAINT FOR DECLARATORY JUDGMENT, FOR PAST DUE PREVAILING WAGES AND FOR AN ACCOUNTING Action Filed: January 11, 2012 Case No, CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATE,~ AMEC Construction Management, Inc. (‘AMEC CMI’), erroneously named and sued herein, answers each of the allegations in the Verified Second Amended Petition for Writ of Mandate to Compel Payment of Prevailing Wages, Complaint for Declaratory Judgment, for Past Due Prevailing Wages and for an Accounting (the “Complaint’”) as follows: 1. Paragraph 1 of the Complaint states legal conclusions to which no response is required. To the extent there are allegations in paragraph 1, Respondent AMEC CMTis without sufficient knowledge or information to form a belief as to the truth of such allegations and on that basis AMEC CMI denies each and every allegation set forth in paragraph 1. 2. Respondent AMEC CMI admits that AMEC Construction Management, Inc. is a Delaware corporation qualified to do business in California, AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of the remainder of the allegations in paragraph 2, and on that basis denies each and every such allegation. 3. Respondent AMEC CMI is not and has never been the employer of Plaintifi/Petitioner Bruce James Berger and on that basis AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 3 and, on this ground, denies the allegations contained in paragraph 3. 4. Respondent AMEC CMT is not and has never been the employer of Plaintiff/Petitioner Kevin D. Churchill and on that basis AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 4 and, on this ground, denies the allegations contained in paragraph 4. 5. Respondent AMEC CMI is not and has never been the employer of Plaintiff/Petitioner Charles C, Franco and on that basis AMEC CMI is without sufficient knowledge or information to form a belicf as to the truth of the allegations in paragraph 5 and, on this ground, denies the allegations contained in paragraph 5. 6. Respondent AMEC CMI is not and has never been the employer of Plaintiff/Petitioner Edward Leach and on that basis AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 6 and, on this ground, denies the allegations contained in paragraph 6. 1 Case No, CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR, WRIT OF MANDATE7. Respondent AMEC CMT is not and has never been the employer of Plaintiff/Petitioner William West, III and on that basis AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 7 and, on this ground, denies the allegations contained in paragraph 7. 8. Respondent AMEC CML is not and has never been the employer of Plaintiff/Petitioner Mark Wright and on that basis AMEC CML is without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 8 and, on this ground, denies the allegations contained in paragraph 8. 9. Respondent AMEC CMT is not and has never been the employer of Plaintiff/Petitioner Charles A. Patrick and on that basis AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 9 and, on this ground, denics the allegations contained in paragraph 9. 10, Paragraph 10 of the Complaint states legal conclusions to which no response is required. To the extent there are allegations in paragraph 10, Respondent AMEC CML is without sufficient knowledge or information to form a belief as to the truth of such allegations and on that basis AMEC CMI denies each and every such allegation. 11. Paragraph 11 of the Complaint states legal conclusions to which no response is required. To the extent there are allegations in paragraph 11, Respondent AMEC CMT is without sufficient knowledge or information to form a belief as to the truth of such allegations and on that basis AMEC CMI denies each and every such allegation. 12. As Respondent AMEC CMT is not now and never was a party to the contract alleged. in paragraph 12, it cannot admit or deny any of the allegations and on that basis denies each and every allegation set forth in paragraph 12. 13. As Respondent AMEC CMI is not now and never was a party to the contract alleged in paragraph 13, it cannot admit or deny any of the allegations and on that basis denies each and every allegation set forth in paragraph 13. 14. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 14, and on that basis AMEC CMI denies each and 2 Case No, CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEevery allegation set forth in paragraph 14. 15. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 15, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 15. 16. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 16, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 16. 17. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 17, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 17. 18. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 18, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 18. 19, Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 19, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 19. 20. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 20, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 20. 21. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 21, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 21. 22, Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 22, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 22. 23. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 23, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 23. 3 Case No. CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATE,24. Paragraph 24 of the Complaint states legal conclusions to which no response is required. To the extent there are allegations in paragraph 24, Respondent AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of such allegations and on that basis AMEC CMI denies cach and every allegation set forth in paragraph 24. 25. Paragraph 25 of the Complaint states legal conclusions to which no response is required. To the extent there are allegations in paragraph 25, Respondent AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of such allegations and on that basis AMEC CMI denies each and every allegation set forth in paragraph 25, 26. Paragraph 26 of the Complaint states legal conclusions to which no response is required, To the extent there are allegations in paragraph 26, Respondent AMEC CMI is without sufficient knowledge or information to form a belief as to the truth of such allegations and on that basis AMEC CMI denies each and every allegation set forth in paragraph 26. 27. Respondent AMEC CMI lacks sufficient knowledge or information to form a belicf as to the truth of the allegations in paragraph 27, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 27. 28. Respondent AMEC CMT lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 28, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 28. 29, Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 29, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 2. 30. | Respondent AMEC CMI admits that Plaintiffs/Petitioners incorporated paragraphs 1 through 29 of their First Cause of Action into their Second Cause of Action. The document speaks for itself. 31. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 31, and on that basis AMEC CMI denies cach and every allegation set forth in paragraph 31. 32. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief 4 Case No. CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEas to the truth of the allegations in paragraph 32, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 32. 33. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 33, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 33. 34. Respondent AMEC CMI admits that Plaintiffs/Petitioners incorporated paragraphs 1 through 29 of their First Cause of Action into their Third Cause of Action, The document speaks for itself. 35. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 35, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 35. 36. Respondent AMEC CMI lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 36, and on that basis AMEC CMI denies each and every allegation set forth in paragraph 36, AFFIRMATIVE DEFENSES As separate and independent defenses, Respondent AMEC CMI alleges as follows: FIRST AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and each purported cause of action therein, Defendant alleges that Plaintiffs/Petitioners have failed to state facts sufficient to constitute a cause of action. SECOND AFFIRMATIVE DEFENSE Respondent AMEC Construction Management, Inc. is not and has not been Plaintiffs/Petitioners’ employer and, therefore, is not liable for any alleged violation of California law. THIRD AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Defendant AMEC CMI alleges that Plaintiffs/Petitioners, by reason of their acts, conduct and omissions, have waived their rights, if any, to obtain the relief sought in the 3 Case No. CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATERo oN DN th Rh Ow ° 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint. FOURTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and each purported cause of action therein, Respondent AMEC CMI alleges that Plaintififs/Petitioners’ claims are barred by the applicable statutes of limitations, including but not limited to California Business and Professions Code Section 17208, California Code of Civil Procedure Sections 337, 338, 339, 340, and 343, and California Labor Code Section 203. FIFTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Defendant AMEC CMI alleges that Plaintiffs/Petitioners, by reason of their acts, conduct and omissions, are estopped from obtaining the relief sought in the Complaint. SIXTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Defendant AMEC CMI alleges that an award of damages to Plaintiffs/Petitioners would violate due process because AMEC CMI lacks fair notice from the State regarding what types of work require the payment of prevailing wages. SEVENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Plaintiffs/Petitioners’ claims for damages pursuant to the Prevailing Wage Law are barred in whole or in part because Plaintiffs/Petitioners failed to exhaust and/or avail themselves of the administrative remedies relating to such claims by challenging a rate determination through the administrative procedure set forth in Labor Code Section 1773.4. EIGHTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, the claims asserted by Plaintiffs/Petitioners in the Complaint are barred by the doctrines of exhaustion and/or primary jurisdiction in that the Division of Labor Standards and Enforcement (DLSE) and/or Labor Workforce Development Agency (LWDA) have exclusive jurisdiction in this matter, and Plaintiffs/Petitioners have not exhausted their administrative 6 Case No. CPE-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEN remedies, NINTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to Plaintiffs/Petitioners’ claims for Violation of the California Prevailing Wage Law, Cal. Lab, Code § 1720-1861, Defendant AMEC CMI alleges that no private right of action exists to enforce those statutes. TENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Defendant AMEC CMI alleges that many of the projects on which they base their claims did not meet the minimum monetary thresholds necessary for the Prevailing Wage Act to apply. ELEVENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, the claims asserted by Plaintiffs/Petitioners in the Complaint and the injunctive and restitution remedies Plaintiffs/Petitioners seck are barred in light of the fact that Plaintiffs/Petitioners and the members of the general public have an adequate remedy in that they may file a claim with the Division of Labor Standards and Enforcement (DLSE) or other administrative agency. TWELFTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Plaintiffs/Petitioners are barred, in whole or in part, from recovering any damages, or any recovery of damages must be reduced, excused and/or discharged by virtue of Plaintiffs/Petitioners’ failure to exercise reasonable diligence to mitigate their alleged damages. THIRTEENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Defendant AMEC CMI acted at all times on the basis of a good faith, reasonable belief that it was in compliance with state and federal law. FOURTENTH AFFIRMATIVE DEFENSE Asa separate and affirmative defense to the Complaint and to each purported cause of 7 Case No. CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEaction therein, the claims asserted by Plaintiffs/Petitioners in the Complaint are barred in whole, or in part, by Defendant AMEC CMI’s good faith reliance upon written guidelines, coverage determinations, interpretations, and rules promulgated by the Department of Industrial Relations (DIR) and/or the Division of Labor Standards and Enforcement (DLSE) and upon the administrative practice and enforcement policies of the DIR, DLSE and the Labor Commissioner of the State of California regarding the application of California’s prevailing wage laws. FIFTEENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Plaintiffs/Petitioners are riot entitled to any penalties under the California Labor Code or other applicable wage and hour laws, because at all relevant times Defendant AMEC CMI did not willfully, knowingly, or intentionally fail to comply with the compensation provisions of the California Labor Code or any other applicable wage and hour laws, but rather acted in good faith and had reasonable grounds for believing that they did not violate those provisions. SIXTEENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Plaintiffs/Petitioners are barred, in whole or in part, from recovering any damages, or any recovery of damages must be reduced to the extent that any alleged damages are offset by amounts overpaid to Plaintiffs/Petitioners during their employment. SEVENTEENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each purported cause of action therein, Defendant AMEC CMI alleges that Plaintiffs/Petitioners’ claims are barred because the Complaint is based on facts that have not been properly pled or adequately verified, are beyond the personal knowledge of the individual who signed the verification, are the subject of expert testimony, and/or are outside the scope of the administrative record, and/or because the Complaint is based on documents and exhibits that have not been properly or adequately verified. EIGHTEENTH AFFIRMATIVE DEFENSE Respondent AMEC CMI reserves the right to assert any additional applicable defenses in the event that additional and ongoing investigation or discovery indicates that any such defenses 8 Case No. CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEwe on TN . 10 a 12 1B 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would be legally appropriate, Respondent AMEC CMI having at present incomplete and insufficient knowledge or information of the matter now pending before the Court. WHEREFORE, Respondent AMEC CMI prays that: L The petition for writ of mandamus be denied; 2. Plaintiffs/Petitioners take nothing from their Petition for Writ and Complaint; 3. Respondent AMEC CMI recovers its costs in this proceeding; and 4, That the Court award such other and further relief as it considers proper. DATED: January 29, 2015 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: _/s/ Carolyn B. Hall Robert R. Roginson. Carolyn B. Hail Attorneys for Defendant AMEC CONSTRUCTION MANAGEMENT, INC. 9 Case No, CPF-12-511817 DEFENDANT AMEC CONSTRUCTION MANAGEMENT, INC,’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATEoD DR WH & WwW PROOF OF SERVICE Berger, et al. v. AMEC, et al. Superior Court of California, County of San Francisco Case No, CPF-12-511817 Jam and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of San Francisco in the office of a member of the bar of this court at whose direction the service was made. My business address is Steuart Tower, Suite 1300, One Market Plaza, San Francisco, CA 94105, On January 29, 2015, I served the following document(s): AMEC CONSTRUCTION MANAGEMENT, INC.’S ANSWER TO SECOND AMENDED PETITION FOR WRIT OF MANDATE TO COMPEL PAYMENT OF PREVAILING WAGES, COMPLAINT FOR DECLARATORY JUDGMENT, FOR PAST DUE PREVAILING WAGES AND FOR AN ACCOUNTING by placing [_] (the original) [X] (a true copy thereof) in a sealed envelope addressed as stated on: Alan C. Davis Attorneys for Plaintiffs/Petitioners Davis & Reno 22 Battery Street, Suite 800 San Francisco, CA 94111 Telephone: 415.274.8700 Facsimile: 415.274.8770 Email: aland3370@aol.com Ronald W. Beals, Chief Counsel Attorneys for Defendant/Respondent Jeanne Scherer, Deputy Chief Counsel People of the State of California, Todd Van Santen, Assistant Chief Counsel Department of Transportation Erin Holbrook State of California 1120 N Street (MS 57) P.O. Box 1438 Sacramento, CA 95812-1438 Telephone: 916.654.2630 Facsimile: 916.654.6128 (1 BY HAND DELIVERY: I personally provided the documents by hand to the above individuals. . O BY MESSENGER: I provided the documents to a professional messenger service for same day hand-delivery to Davis & Reno, 22 Battery Street, Suite 1000, San Francisco, CA 94111. X BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, ina sealed envelope with postage fully prepaid. 1 Case No. CPF-12-511817 PROOF OF SERVICENo [] BY MAIL: I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid at Steuart Tower, Suite 1300, One Market Plaza, San Francisco, CA 94105. a BY OVERNIGHT DELIVERY: I placed the sealed envelope(s) or package(s) : designated by the express service carrier for collection and overnight delivery by following the ordinary business practices of Ogletree, Deakins, Nash, Smoak & Stewart P.C., San Francisco, California. | am readily familiar with Ogletree, Deakins, Nash, Smoak & Stewart P.C.’s practice for collecting and processing of correspondence for overnight delivery, said practice being that, in the ordinary course of business, correspondence for overnight delivery is deposited with delivery fees paid or provided for at the carrier’s express service offices for next-day delivery, oO BY FACSIMILE by transmitting a facsimile transmission a copy of said document(s) to the above addressee(s) at the indicated facsimile number(s), in accordance with: the written confirmation of counsel in this action; Cl] [State Court motion, opposition or reply only] in accordance with Code of Civil Procedure section 1005(b); ol [Federal Court] in accordance with the written confirmation of counsel in this action and order of the court. BY ELECTRONIC FILING: | electronically filed the document(s) with the Clerk of the Court and electronically transmitted the document(s) to the above addressee(s) via the E- Filing system of File & ServeXpress. & (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct, ["] @ederal) I declare that I am employed in the office of a member of the State Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on January 29, 2015, at San Francisco, CA. . Matilda W. Thomas itd a di ) Theta, Type or Print Name Signature 20137888.2 2 Case No, CPP~12-511817 PROOF OF SERVICE