Preview
COMA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
May-07-2012 9:18 am
Case Number: CGC-10-504804
Filing Date: May-04-2012 9:17
Filed by: CAROL BALISTRERI
Juke Box: 001 Image: 03604118
ANSWER
SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY
SIGHTSEEING CORPORATION, A DELAWARE et al
001003604118
Instructions:
Please place this sheet on top of the document to be scanned.JONES BOTHWELL DION & THOMPSON LLP
ELIZABETH THOMPSON (S.B. #112888)
PAUL J. DION (S.B. #088231} Fl L E D
44 Montgomery Street, Suite 610 ea SRC
San Francisco, CA 94104-4608 “
Telephone: (415) 951-8900 MAY 0 4 2917
Facsimile: (415) 951-8901 ChEAK Of
or lena BS SOUT
Attorneys for Defendant Depi
CitySightseeing Corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804
PHILLIP THOMAS NAILS, BENJAMIN
DUAX and DAVID HAYWARD, individually ANSWER OF DEFENDANT
and on behalf of all others similarly situated, CITYSIGHTSEEING
Plaintiff CORPORATION TO UNVERIFIED
, THIRD AMENDED COMPLAINT
V. FOR DAMAGES
CITY SIGHTSEEING CORPORATION, a
Delaware corporation, and DOES 1 through 500,
inclusive,
Defendants.
AND RELATED CROSS-COMPLAINT.
Defendant CitySightseeing Corporation (incorrectly sued herein as City Sightseeing
Corporation) (“Defendant”), on behalf of itself alone, by way of this Third Amended Answer,
responds to the unverified Third Amended Complaint for Damages (the “unverified Third
Amended Complaint”) on file herein as follows:
Pursuant to the provisions of Section 431.30 of the California Code of Civil Procedure,
Defendant denies generally and specifically each and every allegation of the unverified Third
Amended Complaint and each and every purported cause of action thereof, and specifically
denies that plaintiffs Salvatore Mineo, Gina Schembari, Phillip Thomas Nails, Benjamin Duax,
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 1 Case No. CGC-10-504804
TO UNVERIFIED THIRD AMENDED27
28
David Hayward (collectively, “Plaintiffs”) and the members of the putative class alleged in the
unverified Third Amended Complaint are entitled to the relief requested or any relief whatsoever
as against Defendant.
As separate and distinct affirmative defenses to the unverified Third Amended Complaint,
Defendant alleges as follows:
FIRST AFFIRMATIVE DEFENSE
1. The unverified Third Amended Complaint and each purported cause of action
asserted therein against Defendant are so vaguely alleged without reference to specific dates on
which the wrongdoings allegedly occurred, the frequency at which the wrongdoings allegedly
occurred, the periods of time the wrongdoings allegedly occurred and/or the relevant factual
circumstances giving rise to the purported wrongdoings by Defendant and the bases for the relief
and damages sought by Plaintiffs that they fail to state facts sufficient to constitute a claim upon
which relief may be granted against Defendant.
SECOND AFFIRMATIVE DEFENSE
2. The unverified Third Amended Complaint and each purported claim asserted therein
based on Defendant’s alleged failure to provide rest and meal periods are barred to the extent
that the nature of the work performed by the named Plaintiffs and those in the alleged class,
including, but not limited to, tour guides and tour bus drivers, prevented them from being
relieved of duty during rest and meal periods.
THIRD AFFIRMATIVE DEFENSE
3. Plaintiff Phillip Thomas Nails and others in the alleged class classified as
independent contractors by Defendant were properly classified in accordance with federal and
California law governing the definition of independent contractors.
FOURTH AFFIRMATIVE DEFENSE
4. To the extent that Plaintiffs failed to utilize rest and meal periods made available to
them, or failed to complain to, or alert, Defendant about working through meal and rest periods,
they failed to mitigate, minimize, or avoid any damages they have allegedly sustained and
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 2 Case No. CGC-10-504804
TO UNVERIFIED THIRD AMENDEDrecovery against Defendant, if any, must be reduced by that amount.
FIFTH AFFIRMATIVE DEFENSE
5. Atall relevant times, Defendant’s actions were conducted with proper justification
in a reasonable and appropriate manner. Such actions were in good faith and for a fair, honest
and lawful reason and not with the intent to injure Plaintiffs or those in the alleged class they
seek to represent.
SIXTH_ AFFIRMATIVE DEFENSE
6. To the extent the unverified Third Amended Complaint and each purported cause
of action asserted therein seek damages and/or other relief for alleged actions and/or omissions
occurring for time periods beyond the statutes of limitations set forth in California Code of Civil
Procedure §§ 337, 338, 339, 340(a) and 343, California Labor Code §§ 203 and 1197.5,
California Business and Professions Code § 17208 and/or 29 U.S.C. § 255(a), said claims are
barred.
SEVENTH AFFIRMATIVE DEFENSE
7. The unverified Third Amended Complaint, to the extent it seeks restitution on
behalf of persons who are not parties to this action, violates Defendant’s rights to substantive
and procedural due process and equal protection under the law as provided by the Fifth and
Fourteenth Amendments of the United States Constitution and Article I, Section 7 and Article
IV, Section 16 of the Constitution of the State of California.
EIGHTH AFFIRMATIVE DEFENSE
8. The superior and appropriate forum for the resolution of Plaintiffs’ claims is before
the California Labor Commission because, inter alia, a majority of the putative class members
oppose resolution of Plaintiffs’ claims on a class basis.
NINTH AFFIRMATIVE DEFENSE
9. The superior and appropriate forum for the resolution of Plaintiffs’ overtime claims
is before the United States Department of Labor because, inter alia, a majority of the putative
class members oppose resolution of Plaintiffs’ claims on a class basis.
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 3 Case No. CGC-10-504804
TO UNVERIFIED THIRD AMENNDENTENTH AFFIRMATIVE DEFENSE
10. Plaintiffs and those in the alleged class they seek to represent who worked for
Defendant as independent contractors consented to and/or authorized the conduct and omissions
of Defendant alleged in the unverified Third Amended Complaint in that, among other things,
said independent contractors agreed and/or demanded to work through meals and rest periods
and to work more than cight hours per day or forty hours per week in order to maximize their
income.
ELEVENTH AFFIRMATIVE DEFENSE
11, The named Plaintiffs allege “on information and belief” in the unverified Third
Amended Complaint that Defendant denied them “regular and overtime wages” and “meal and
test periods” and “failed to maintain accurate payroll records” as to them without reference to
any specific dates, periods of time, frequency, waiver of or failure to utilize meal and/or rest
periods, or other relevant factual circumstances as to such wrongdoings that were allegedly
perpetrated by Defendant against them or whether any such wrongdoings were in fact actually
perpetrated by Defendant. As such, to the extent that the named Plaintiffs’ allegations as to
Defendant’s alleged wrongdoings with regard to the named Plaintiffs are vague, uncertain,
unspecific and without reference to actual factual circumstances relevant to Plaintiffs or other
members of the putative class, the named Plaintiffs are not representative parties who will fairly
and adequately protect the interest of the class alleged in the unverified Third Amended
Complaint.
TWELFTH AFFIRMATIVE DEFENSE
12. The named Plaintiffs’ failure to allege in the unverified Third Amended Complaint
specific facts, with references to specific dates, periods of time, alleged frequency, waiver of or
failure to utilize meal and/or rest periods, as to Defendants’ alleged wrongdoings as to them
with respect to the purported denial of “regular and overtime wages”, “meal and rest periods”
and inadequate “payroll records” and the named Plaintiffs’ failure to allege that such alleged
wrongdoings in fact actually occurred, makes it impossible to determine whether the named
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 4 Case No. CGC-10-504804
TO UNVERIFIED THIRD AMENDED27
28
Plaintiffs’ claims are typical of the claims of the class alleged in the unverified Third Amended
Complaint and the defenses that may be asserted against them. Accordingly, Defendant alleges
that the named Plaintiffs’ claims are not typical.
THIRTEENTH AFFIRMATIVE DEFENSE
13. The members of the alleged class include persons providing uniquely different
services under different working schedules and job requirements and making uniquely
individualized decisions whether, when and under what circumstances to waive, utilize or fail to
utilize meal and/or rest periods offered by Defendant. As such, questions of law and fact
common to the members of the class alleged in the unverified Third Amended Complaint do not
predominate over questions which may affect only individual members of the alleged class.
FOURTEENTH AFFIRMATIVE DEFENSE
14. Plaintiffs’ claims under the California Labor Code and Industrial Welfare
Commission Wage Orders are not appropriate for resolution as a class action.
FIFTEENTH AFFIRMATIVE DEFENSE
15. Punitive damages are not recoverable for violation of obligations statutorily
imposed under the California Labor Code or the federal Fair Labor Standards Act.
SIXTEENTH AFFIRMATIVE DEFENSE
16. The claims asserted in the unverified Third Amended Complaint by plaintiff Phillip
Thomas Nails individually and on behalf of others in the alleged class whom Plaintiffs allege
were misclassified as independent contractors (which Defendant expressly denies) are barred,
either in whole or in part, in that Phillip Thomas Nails and others in the alleged class held
themselves out to Defendant as independent contractors and Defendant reasonably and in good
faith believed that plaintiff Phillip Thomas Nails and others in the alleged class were
independent contractors exempt from overtime, meal and rest period and bookkeeping
requirements of the California Labor Code, the California Industrial Commission (“IWC”)
Wage Orders and the federal Fair Labor Standards Act.
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 3 Case No. CGC-10-504804
TO UNVERIFIED THIRD AMENDEDSEVENTEENTH AFFIRMATIVE DEFENSE
17. The purported claims for daily and/or weekly overtime pay asserted in the
unverified Third Amended Complaint by plaintiff David Hayward individually and on behalf of
others in the alleged class who operated as bus drivers for Defendant are barred in that bus
drivers are exempt from daily and/or weekly overtime pay pursuant to Section 3 (L) (1) and/or
(2) of the IWC Order No. 9-2001.
EIGHTEENTH AFFIRMATIVE DEFENSE
18. The wrongful actions and conduct of the named plaintiffs while working for
Defendant, including, but not limited to, the misrepresentations to Defendant of the actual time
worked, being under the influence of alcoholic beverages and illegal substances while on duty
and the failure to complete work tasks in accordance with prescribed job-defined duties, render
Plaintiffs unsuitable to act as representative parties who will fairly and adequately protect the
interest of the class alleged in the unverified Third Amended Complaint.
NINETEENTH AFFIRMATIVE DEFENSE
19. Recovery under the purported claims asserted in the unverified Third Amended
Complaint by plaintiffs Benjamin Duax, Thomas Nails, David Hayward and Salvatore Mineo
individually and on behalf of others in the alleged class are reduced pursuant to C.C.P. Section
431.70 by a setoff held by Defendant against plaintiffs Duax, Nails, Hayward, Mineo and others
in the alleged class for payments made to them for non-working lunch and other periods that
plaintiffs included in their timesheets submitted to Defendant and for which they were not
entitled to compensation.
TWENTIETH AFFIRMATIVE DEFENSE
20. The purported claims asserted in the unverified Third Amended Complaint that
Defendant failed to provide the named plaintiffs and others in the alleged class with rest and/or
meal periods, or did not permit the named plaintiffs or others in the alleged class to take rest
and/or meal periods, are barred because, at all relevant times, Defendant made rest and/or meal
periods available at appropriate intervals by relieving plaintiffs and others in the alleged class of
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 6 Case No. CGC-10-504804
TO UNVERIFIED THIRD AMENDEDall duties, relinquishing control over their activities and permitting them a reasonable
opportunity to take an uninterrupted duty-free rest and/or meal period without impeding or
discouraging them from doing so.
TWENTY-FIRST AFFIRMATIVE DEFENSE
21. To the extent that Plaintiffs and/or other members of the alleged class waived their
rights to take rest and meal periods, the claims that Defendant failed to provide or permit rest
and/or meal periods are barred.
TWENTY-SECOND AFFIRMATIVE DEFENSE
22. The putative class is not sufficiently numerous to allow the purported claims
asserted in the Third Amended Complaint to proceed on a class basis because, infer alia, a
majority of the putative class members oppose resolution of Plaintiffs’ claims on a class basis.
TWENTY-THIRD AFFIRMATIVE DEFENSE
23. To the extent the purported claims asserted in the Third Amended Complaint seek
penalties under the Private Attorneys General Act, California Labor Code §§ 2698, et seq., the
claims are barred by Plaintiffs’ failure to provide notice to the Labor and Workforce
Development Agency and Defendant as required by California Labor Code § 2699,3.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
24, The purported claims asserted in the Third Amended Complaint seeking penalties
under Labor Code § 201.3 are barred on the grounds that any violations of the provisions thereof
were unintentional, and Plaintiffs’ and/or other members of the alleged class were reimbursed
for any service charges incurred by them.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
25. Recovery of liquidated damages or any amount in excess of the amount specified in
29 U.S.C. § 216 based on alleged violation of the Fair Labor Standards Act (“FLSA”) is barred
because any act or omission of Defendant resulting in failure to pay overtime wages was made
in good faith and with reasonable grounds for believing that Defendant’s act or omission was not
a violation of the FLSA.
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 7 Case No. CGC-10-504804
TO UNVERIFIED THIRD AMENDEDTWENTY-SIXTH AFFIRMATIVE DEFENSE
26. Recovery of penalties under California Labor Code § 203 is barred because any
failure to pay wages to employees who were discharged or quit within the time period specified
therein was not willful.
WHEREFORE, Defendant prays as follows:
1. That Plaintiffs and the persons they purport to represent in this action take nothing
by reason of their unverified Third Amended Complaint;
2. That this Court enter judgment in favor of Defendant, and against Plaintiffs and the
persons they purport to represent, on each and every cause of action of the
| unverified Third Amended Complaint;
3. For Defendant’s attomeys fees and costs;
4. For such other and further relief as the Court may deem fair and equitable.
Dated: May 3, 2012 JONES BOTHWELL DION & THOMPSON LLP
ANSWER OF DEFENDANT
CITYSIGHTSEEING CORPORATION 8 Case No. CGC-10-504804
} TO UNVERIFIED THIRD AMENDEDCERTIFICATE OF SERVICE
Tam employed in the City and County of San Francisco, California. I am over the age of 18
and not a party to the within action. My business address is 44 Montgomery Street, Suite 610, San
Francisco, California, 94104. On May 3, 2012, I served the following document(s) entitled:
ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION TO UNVERIFIED THIRD
AMENDED COMPLAINT FOR DAMAGES
[X] By placing a copy thereof enclosed in sealed a envelope addressed as follows:
Ashwin Ladva, Esq. Daniel Vega, Esq.
LADVA LAW FIRM Law Office of Daniel Vega
530 Jackson Street, 2™ Floor 201 Spear Street, Suite 1100
San Francisco, CA 94133 San Francisco, CA 94105-6164
(X]_ (BY MAIL) As follows: I am readily familiar with the firm’s practice for collection
and processing correspondence for mailing. Under that practice it would be deposited with the U.S.
Postal Service on that same day with postage thercon fully prepaid at San Francisco, California, in
the ordinary course of business.
[.] (BY FAX) At m., | transmitted, pursuant to Rules 2005 and 2009, the above-
described document by facsimile machine (which complied with Rule 2003(3)), to the above-listed
party(ies). The transmission was reported complete and without error. A copy was placed in a sealed
envelope addressed to the above party(ies) and deposited as indicated.
{ ]. (BY PERSONAL SERVICE) | caused such envelope to be delivered by hand to the
addressee(s) identified above.
[ |. (BY FEDEX) I placed a true copy thereof in a FedEx envelope and caused said
envelope to be delivered via overnight service by FedEx in lieu of delivery by mail to the
addressee(s) identified above.
[ ] (BY EMAIL) Pursuant to agreement of counsel, to the addressec(s) identified above.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed at San Francisco, California on May 3, 2012.
Ln
Kevin Kitsuda
CERTIFICATE OF SERVICE
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COMA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet May-07-2012 9:18 am Case Number: CGC-10-504804 Filing Date: May-04-2012 9:17 Filed by: CAROL BALISTRERI Juke Box: 001 Image: 03604118 ANSWER SALVATORE MINEO INDIVIDUALLY, AND ON BEHALF OF ALL et al VS. CITY SIGHTSEEING CORPORATION, A DELAWARE et al 001003604118 Instructions: Please place this sheet on top of the document to be scanned.JONES BOTHWELL DION & THOMPSON LLP ELIZABETH THOMPSON (S.B. #112888) PAUL J. DION (S.B. #088231} Fl L E D 44 Montgomery Street, Suite 610 ea SRC San Francisco, CA 94104-4608 “ Telephone: (415) 951-8900 MAY 0 4 2917 Facsimile: (415) 951-8901 ChEAK Of or lena BS SOUT Attorneys for Defendant Depi CitySightseeing Corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO SALVATORE MINEO, GINA SCHEMBARI, No. CGC-10-504804 PHILLIP THOMAS NAILS, BENJAMIN DUAX and DAVID HAYWARD, individually ANSWER OF DEFENDANT and on behalf of all others similarly situated, CITYSIGHTSEEING Plaintiff CORPORATION TO UNVERIFIED , THIRD AMENDED COMPLAINT V. FOR DAMAGES CITY SIGHTSEEING CORPORATION, a Delaware corporation, and DOES 1 through 500, inclusive, Defendants. AND RELATED CROSS-COMPLAINT. Defendant CitySightseeing Corporation (incorrectly sued herein as City Sightseeing Corporation) (“Defendant”), on behalf of itself alone, by way of this Third Amended Answer, responds to the unverified Third Amended Complaint for Damages (the “unverified Third Amended Complaint”) on file herein as follows: Pursuant to the provisions of Section 431.30 of the California Code of Civil Procedure, Defendant denies generally and specifically each and every allegation of the unverified Third Amended Complaint and each and every purported cause of action thereof, and specifically denies that plaintiffs Salvatore Mineo, Gina Schembari, Phillip Thomas Nails, Benjamin Duax, ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 1 Case No. CGC-10-504804 TO UNVERIFIED THIRD AMENDED27 28 David Hayward (collectively, “Plaintiffs”) and the members of the putative class alleged in the unverified Third Amended Complaint are entitled to the relief requested or any relief whatsoever as against Defendant. As separate and distinct affirmative defenses to the unverified Third Amended Complaint, Defendant alleges as follows: FIRST AFFIRMATIVE DEFENSE 1. The unverified Third Amended Complaint and each purported cause of action asserted therein against Defendant are so vaguely alleged without reference to specific dates on which the wrongdoings allegedly occurred, the frequency at which the wrongdoings allegedly occurred, the periods of time the wrongdoings allegedly occurred and/or the relevant factual circumstances giving rise to the purported wrongdoings by Defendant and the bases for the relief and damages sought by Plaintiffs that they fail to state facts sufficient to constitute a claim upon which relief may be granted against Defendant. SECOND AFFIRMATIVE DEFENSE 2. The unverified Third Amended Complaint and each purported claim asserted therein based on Defendant’s alleged failure to provide rest and meal periods are barred to the extent that the nature of the work performed by the named Plaintiffs and those in the alleged class, including, but not limited to, tour guides and tour bus drivers, prevented them from being relieved of duty during rest and meal periods. THIRD AFFIRMATIVE DEFENSE 3. Plaintiff Phillip Thomas Nails and others in the alleged class classified as independent contractors by Defendant were properly classified in accordance with federal and California law governing the definition of independent contractors. FOURTH AFFIRMATIVE DEFENSE 4. To the extent that Plaintiffs failed to utilize rest and meal periods made available to them, or failed to complain to, or alert, Defendant about working through meal and rest periods, they failed to mitigate, minimize, or avoid any damages they have allegedly sustained and ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 2 Case No. CGC-10-504804 TO UNVERIFIED THIRD AMENDEDrecovery against Defendant, if any, must be reduced by that amount. FIFTH AFFIRMATIVE DEFENSE 5. Atall relevant times, Defendant’s actions were conducted with proper justification in a reasonable and appropriate manner. Such actions were in good faith and for a fair, honest and lawful reason and not with the intent to injure Plaintiffs or those in the alleged class they seek to represent. SIXTH_ AFFIRMATIVE DEFENSE 6. To the extent the unverified Third Amended Complaint and each purported cause of action asserted therein seek damages and/or other relief for alleged actions and/or omissions occurring for time periods beyond the statutes of limitations set forth in California Code of Civil Procedure §§ 337, 338, 339, 340(a) and 343, California Labor Code §§ 203 and 1197.5, California Business and Professions Code § 17208 and/or 29 U.S.C. § 255(a), said claims are barred. SEVENTH AFFIRMATIVE DEFENSE 7. The unverified Third Amended Complaint, to the extent it seeks restitution on behalf of persons who are not parties to this action, violates Defendant’s rights to substantive and procedural due process and equal protection under the law as provided by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 7 and Article IV, Section 16 of the Constitution of the State of California. EIGHTH AFFIRMATIVE DEFENSE 8. The superior and appropriate forum for the resolution of Plaintiffs’ claims is before the California Labor Commission because, inter alia, a majority of the putative class members oppose resolution of Plaintiffs’ claims on a class basis. NINTH AFFIRMATIVE DEFENSE 9. The superior and appropriate forum for the resolution of Plaintiffs’ overtime claims is before the United States Department of Labor because, inter alia, a majority of the putative class members oppose resolution of Plaintiffs’ claims on a class basis. ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 3 Case No. CGC-10-504804 TO UNVERIFIED THIRD AMENNDENTENTH AFFIRMATIVE DEFENSE 10. Plaintiffs and those in the alleged class they seek to represent who worked for Defendant as independent contractors consented to and/or authorized the conduct and omissions of Defendant alleged in the unverified Third Amended Complaint in that, among other things, said independent contractors agreed and/or demanded to work through meals and rest periods and to work more than cight hours per day or forty hours per week in order to maximize their income. ELEVENTH AFFIRMATIVE DEFENSE 11, The named Plaintiffs allege “on information and belief” in the unverified Third Amended Complaint that Defendant denied them “regular and overtime wages” and “meal and test periods” and “failed to maintain accurate payroll records” as to them without reference to any specific dates, periods of time, frequency, waiver of or failure to utilize meal and/or rest periods, or other relevant factual circumstances as to such wrongdoings that were allegedly perpetrated by Defendant against them or whether any such wrongdoings were in fact actually perpetrated by Defendant. As such, to the extent that the named Plaintiffs’ allegations as to Defendant’s alleged wrongdoings with regard to the named Plaintiffs are vague, uncertain, unspecific and without reference to actual factual circumstances relevant to Plaintiffs or other members of the putative class, the named Plaintiffs are not representative parties who will fairly and adequately protect the interest of the class alleged in the unverified Third Amended Complaint. TWELFTH AFFIRMATIVE DEFENSE 12. The named Plaintiffs’ failure to allege in the unverified Third Amended Complaint specific facts, with references to specific dates, periods of time, alleged frequency, waiver of or failure to utilize meal and/or rest periods, as to Defendants’ alleged wrongdoings as to them with respect to the purported denial of “regular and overtime wages”, “meal and rest periods” and inadequate “payroll records” and the named Plaintiffs’ failure to allege that such alleged wrongdoings in fact actually occurred, makes it impossible to determine whether the named ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 4 Case No. CGC-10-504804 TO UNVERIFIED THIRD AMENDED27 28 Plaintiffs’ claims are typical of the claims of the class alleged in the unverified Third Amended Complaint and the defenses that may be asserted against them. Accordingly, Defendant alleges that the named Plaintiffs’ claims are not typical. THIRTEENTH AFFIRMATIVE DEFENSE 13. The members of the alleged class include persons providing uniquely different services under different working schedules and job requirements and making uniquely individualized decisions whether, when and under what circumstances to waive, utilize or fail to utilize meal and/or rest periods offered by Defendant. As such, questions of law and fact common to the members of the class alleged in the unverified Third Amended Complaint do not predominate over questions which may affect only individual members of the alleged class. FOURTEENTH AFFIRMATIVE DEFENSE 14. Plaintiffs’ claims under the California Labor Code and Industrial Welfare Commission Wage Orders are not appropriate for resolution as a class action. FIFTEENTH AFFIRMATIVE DEFENSE 15. Punitive damages are not recoverable for violation of obligations statutorily imposed under the California Labor Code or the federal Fair Labor Standards Act. SIXTEENTH AFFIRMATIVE DEFENSE 16. The claims asserted in the unverified Third Amended Complaint by plaintiff Phillip Thomas Nails individually and on behalf of others in the alleged class whom Plaintiffs allege were misclassified as independent contractors (which Defendant expressly denies) are barred, either in whole or in part, in that Phillip Thomas Nails and others in the alleged class held themselves out to Defendant as independent contractors and Defendant reasonably and in good faith believed that plaintiff Phillip Thomas Nails and others in the alleged class were independent contractors exempt from overtime, meal and rest period and bookkeeping requirements of the California Labor Code, the California Industrial Commission (“IWC”) Wage Orders and the federal Fair Labor Standards Act. ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 3 Case No. CGC-10-504804 TO UNVERIFIED THIRD AMENDEDSEVENTEENTH AFFIRMATIVE DEFENSE 17. The purported claims for daily and/or weekly overtime pay asserted in the unverified Third Amended Complaint by plaintiff David Hayward individually and on behalf of others in the alleged class who operated as bus drivers for Defendant are barred in that bus drivers are exempt from daily and/or weekly overtime pay pursuant to Section 3 (L) (1) and/or (2) of the IWC Order No. 9-2001. EIGHTEENTH AFFIRMATIVE DEFENSE 18. The wrongful actions and conduct of the named plaintiffs while working for Defendant, including, but not limited to, the misrepresentations to Defendant of the actual time worked, being under the influence of alcoholic beverages and illegal substances while on duty and the failure to complete work tasks in accordance with prescribed job-defined duties, render Plaintiffs unsuitable to act as representative parties who will fairly and adequately protect the interest of the class alleged in the unverified Third Amended Complaint. NINETEENTH AFFIRMATIVE DEFENSE 19. Recovery under the purported claims asserted in the unverified Third Amended Complaint by plaintiffs Benjamin Duax, Thomas Nails, David Hayward and Salvatore Mineo individually and on behalf of others in the alleged class are reduced pursuant to C.C.P. Section 431.70 by a setoff held by Defendant against plaintiffs Duax, Nails, Hayward, Mineo and others in the alleged class for payments made to them for non-working lunch and other periods that plaintiffs included in their timesheets submitted to Defendant and for which they were not entitled to compensation. TWENTIETH AFFIRMATIVE DEFENSE 20. The purported claims asserted in the unverified Third Amended Complaint that Defendant failed to provide the named plaintiffs and others in the alleged class with rest and/or meal periods, or did not permit the named plaintiffs or others in the alleged class to take rest and/or meal periods, are barred because, at all relevant times, Defendant made rest and/or meal periods available at appropriate intervals by relieving plaintiffs and others in the alleged class of ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 6 Case No. CGC-10-504804 TO UNVERIFIED THIRD AMENDEDall duties, relinquishing control over their activities and permitting them a reasonable opportunity to take an uninterrupted duty-free rest and/or meal period without impeding or discouraging them from doing so. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. To the extent that Plaintiffs and/or other members of the alleged class waived their rights to take rest and meal periods, the claims that Defendant failed to provide or permit rest and/or meal periods are barred. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. The putative class is not sufficiently numerous to allow the purported claims asserted in the Third Amended Complaint to proceed on a class basis because, infer alia, a majority of the putative class members oppose resolution of Plaintiffs’ claims on a class basis. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. To the extent the purported claims asserted in the Third Amended Complaint seek penalties under the Private Attorneys General Act, California Labor Code §§ 2698, et seq., the claims are barred by Plaintiffs’ failure to provide notice to the Labor and Workforce Development Agency and Defendant as required by California Labor Code § 2699,3. TWENTY-FOURTH AFFIRMATIVE DEFENSE 24, The purported claims asserted in the Third Amended Complaint seeking penalties under Labor Code § 201.3 are barred on the grounds that any violations of the provisions thereof were unintentional, and Plaintiffs’ and/or other members of the alleged class were reimbursed for any service charges incurred by them. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. Recovery of liquidated damages or any amount in excess of the amount specified in 29 U.S.C. § 216 based on alleged violation of the Fair Labor Standards Act (“FLSA”) is barred because any act or omission of Defendant resulting in failure to pay overtime wages was made in good faith and with reasonable grounds for believing that Defendant’s act or omission was not a violation of the FLSA. ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 7 Case No. CGC-10-504804 TO UNVERIFIED THIRD AMENDEDTWENTY-SIXTH AFFIRMATIVE DEFENSE 26. Recovery of penalties under California Labor Code § 203 is barred because any failure to pay wages to employees who were discharged or quit within the time period specified therein was not willful. WHEREFORE, Defendant prays as follows: 1. That Plaintiffs and the persons they purport to represent in this action take nothing by reason of their unverified Third Amended Complaint; 2. That this Court enter judgment in favor of Defendant, and against Plaintiffs and the persons they purport to represent, on each and every cause of action of the | unverified Third Amended Complaint; 3. For Defendant’s attomeys fees and costs; 4. For such other and further relief as the Court may deem fair and equitable. Dated: May 3, 2012 JONES BOTHWELL DION & THOMPSON LLP ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION 8 Case No. CGC-10-504804 } TO UNVERIFIED THIRD AMENDEDCERTIFICATE OF SERVICE Tam employed in the City and County of San Francisco, California. I am over the age of 18 and not a party to the within action. My business address is 44 Montgomery Street, Suite 610, San Francisco, California, 94104. On May 3, 2012, I served the following document(s) entitled: ANSWER OF DEFENDANT CITYSIGHTSEEING CORPORATION TO UNVERIFIED THIRD AMENDED COMPLAINT FOR DAMAGES [X] By placing a copy thereof enclosed in sealed a envelope addressed as follows: Ashwin Ladva, Esq. Daniel Vega, Esq. LADVA LAW FIRM Law Office of Daniel Vega 530 Jackson Street, 2™ Floor 201 Spear Street, Suite 1100 San Francisco, CA 94133 San Francisco, CA 94105-6164 (X]_ (BY MAIL) As follows: I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thercon fully prepaid at San Francisco, California, in the ordinary course of business. [.] (BY FAX) At m., | transmitted, pursuant to Rules 2005 and 2009, the above- described document by facsimile machine (which complied with Rule 2003(3)), to the above-listed party(ies). The transmission was reported complete and without error. A copy was placed in a sealed envelope addressed to the above party(ies) and deposited as indicated. { ]. (BY PERSONAL SERVICE) | caused such envelope to be delivered by hand to the addressee(s) identified above. [ |. (BY FEDEX) I placed a true copy thereof in a FedEx envelope and caused said envelope to be delivered via overnight service by FedEx in lieu of delivery by mail to the addressee(s) identified above. [ ] (BY EMAIL) Pursuant to agreement of counsel, to the addressec(s) identified above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California on May 3, 2012. Ln Kevin Kitsuda CERTIFICATE OF SERVICE