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ENON
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Apr-22-2010 10:39 am
Case Number: CGC-10-497294
Filing Date: Apr-22-2010 10:38
Juke Box: 001 Image: 02826631
ANSWER
JACK LESIEWSKI VS. O.C. COMMUNICATIONS, INC. et al
001002826631
Instructions:
Please place this sheet on top of the document to be scanned.28
LITTLER MENDELSON
sn 2]
WSs ete
ALAN S. LEVINS, Bar No. 57612
SHANNON M. GIBSON, Bar No. 256634
LITTLER MENDELSON
A Professional Corporation ft Lot a DD
650 California Street odes oun LOR gen
20th Floor 92 ri0
San Francisco, CA 94108.2693 APR
Telephone: 415.433.1940 COURT
FaxNo.: 415.399.8490 CLERK OF THE CY
BY: Caley apie Clerk
Attorneys for Defendant
0.C. COMMUNICATIONS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JACK LESIEWSKI, on behalf of himself Case No. CGC-10-497294
and all others similarly situated,
Plaintiff, DEFENDANT O.C. COMMUNICATIONS
INC.’S ANSWER TO PLAINTIFF’S
v. UNVERIFIED COMPLAINT FOR
DAMAGES
0.C. COMMUNICATIONS, INC.,
COMCAST CABLE Complaint filed: March 1, 2010
COMMUNICATIONS MANAGEMENT
LLC, COMCAST CORPORATION, and
DOES 1 through 60, inclusive,
Defendants.
Defendant O.C. COMMUNICATIONS, INC. (“Defendant”) hereby answers the
unverified Complaint for Damages (“Complaint”) filed by Plaintiff JACK LESIEWSKI (“Plaintiff”)
individually and on behalf of all others similarly situated:
GENERAL DENIAL
Pursuant to Section 431.30 of the California Code of Civil Procedure, Defendant
generally denies each and every allegation contained in the Complaint, and further denies that
Plaintiff or any purported class member has been, is or will be damaged in any sum or manner, or is
or will be entitled to any recovery or remedy of any type whatsoever, by reason of Defendant’s acts,
conducts or omissions. Defendant denies that this matter is appropriate for class or representative
adjudication.
Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES28
LITTLER MENDELSON
92683
~
~ Mer
AFFIRMATIVE DEFENSES
1. AS A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that neither the Complaint, nor any cause of action set forth therein, states facts
sufficient to constitute a cause of action against Defendant.
2. AS A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiffs claims are barred by the applicable statute of limitations, including
but not limited to, California Code of Civil Procedure sections 338, 340, and 343; Cal. Labor Code
section 203; and/or California Business and Professions Code section 17208.
3. AS A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff failed to mitigate his purported damages and that his right to recover
against Defendant should be reduced and/or eliminated by such a failure.
4, AS A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff's claims are barred by the doctrine of waiver or release of claims.
5. AS A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff's claims are barred by the doctrine of unjust enrichment.
6. AS A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff's claims are barred by the doctrine of laches.
7. AS A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff's claims are barred by the doctrine of estoppel.
8. AS AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff's claims are barred by the doctrine of unclean hands.
9. AS A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff lacks standing to prosecute one or more of the claims asserted in the
Complaint.
10. AS A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff cannot satisfy the prerequisites for class certification and therefore
cannot represent the interest of others.
2. Case No. CGC-10-497294
DEF. 0.C, COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES11. AS AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that the types of claims alleged by Plaintiff on behalf of himself
and/or the alleged putative class he purports to represent are matters in which individual questions of
fact and law predominate over common questions of fact and law and thus are not appropriate for
class treatment.
12. AS A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff is not similarly situated to other potential members of
the alleged putative class he purports to represent and/or his claims are not typical of those of the
putative class and thus Plaintiff is an inadequate representative of the alleged putative class.
13. AS A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that there is not a well-defined community of interest in the questions
of law and/or fact affecting Plaintiff and the members of the alleged putative class.
14. AS A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that to the extent the alleged putative class is not ascertainable and/or
identifiable, class treatment is not appropriate.
15. AS A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff has not shown and cannot show that class treatment of
the purported causes of action in his Complaint is superior to other methods of adjudicating the
controversy.
16. AS A SIXTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that this action may not be maintained as a class action because
certain of the interests of the putative class are in conflict with the interests of all or certain other
members of the putative class.
17. AS A SEVENTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that this action may not be maintained as a class action because the
purported representatives and their counsel will not fairly and adequately protect the interests of the
class.
3. Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES18. AS AN EIGHTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that certification of a class, as applied to the facts and circumstances
of this case, would constitute a denial of Defendant’s due process rights, both substantive and
procedural, in violation of the Fourteenth Amendment to the United States Constitution and the
California Constitution. Lockyer v. R.J. Reynolds Tobacco Co, (2005) 37 Cal. 4th 707; Ratner v.
Chemical Bank New York Trust Co. (S.D.N.Y. 1972) 54 F.R.D. 412.
19. AS A NINETEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff's claims are barred, in whole or in part, by the doctrine
°
accord and satisfaction.
20. AS A TWENTIETH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that the Complaint is barred, in whole or in part, to the extent that
Plaintiff consented to, encouraged, or voluntarily participated in all actions taken, if any.
21. AS A TWENTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that it has or will acquire evidence which, had Defendant known
about said evidence during Plaintiff's employment or that of the putative class members, would have
resulted in the termination of Plaintiff's employment and/or that of the putative class members. As a
result of this after acquired evidence and/or the doctrine of “avoidable consequences,” Plaintiff
and/or the putative class members is/are not entitled to any damages whatsoever or, at the very least,
not entitled to any damages subsequent to the time that Defendant acquired the evidence.
22. AS A TWENTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that the Complaint is uncertain as to the overtime allegedly worked
and the meal and rest periods allegedly denied as well as the wage statements allegedly rendered
inaccurate and the reimbursements allegedly not provided.
23. AS A TWENTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff's claims, in whole or in part, are barred by his and/or the
putative class members’ unreasonable failure to take advantage of preventative and corrective
opportunities and failure to exhaust administrative and/or other internal remedies and/or contractual
4. Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESOo CO YN KH A BY ND
10
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remedies available to him/them including under the California Labor Code or other provisions of law
prior to commencing this action and to otherwise avoid harm.
24. AS A TWENTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that the Complaint and each cause of action for penalties are barred
because (1) there is a bona fide dispute as to whether further compensation is due to Plaintiff and, if
so, as to the amount of such further compensation; (2) Defendant has not willfully failed to pay such
additional compensation; (3) to the extent any additional compensation is due, Plaintiff either
secreted or absented him/herself to avoid payment of compensation and/or refused payment fully
tendered to him/her; and (4) to impose penalties in this case would be inequitable and unjust.
25. AS A TWENTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant is informed and believes that a reasonable opportunity for investigation and
discovery will reveal and, on that basis alleges, that Plaintiff and the putative class members did not
necessarily incur “expenditures and losses” as defined under California Labor Code section 2802,
and any award of such expenditures and/or losses would unjustly enrich Plaintiff and the putative
class members.
26. AS A TWENTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff and all putative class members were properly
compensated for all hours of work in accordance with applicable law.
27. AS A TWENTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that to the extent that Plaintiff did not record all time worked and/or
worked off-the-clock, he did so by choice and without the permission or knowledge of Defendant.
28. AS A TWENTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that it acted with a reasonable and good faith belief that it complied
with its obligations, if any, under the California Labor Code, specifically including sections 226.7
and 512 thereof, as to Plaintiff and the putative class members.
29. AS A TWENTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff's Complaint and each cause of action set forth therein
cannot be maintained against Defendant because Defendant had a policy of providing meal and rest
5. Case No. CGC-10-497294
DEF. O.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES1 || periods as required by Wage Order(s) of the California Industrial Welfare Commission and
applicable California law.
30. AS A THIRTIETH SEPARATE AND DISTINCT AFFIRMATIVE
bwin
DEFENSE, Defendant alleges that to the extent that Plaintiff did not take meal and rest periods, he
5 || did so by choice and without the permission or knowledge of Defendant, and/or failed to work the
6 || requisite number of hours to qualify for a meal and/or rest period.
7 31. AS A THIRTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE
8 | DEFENSE, Defendant alleges that Plaintiff's alleged injuries were not proximately caused by any
9 | unlawful policy, custom, practice and/or procedure promulgated and/or tolerated by Defendant.
10 32. AS A THIRTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE
11 | DEFENSE, Defendant alleges that Plaintiff's damages, if any, were the result of his failure to
12 | comply with the reasonable expectations of Defendant and/or follow Defendant’s reasonable
13 | instructions and/or policies.
14 33. AS A THIRTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE
15 | DEFENSE, Defendant alleges that there is no private right of action for an employee to recover
16 | damages under sections 201, 203, 226, 226.7, 510, 512, 1194, 1199 and/or 2802 of the California
17 | Labor Code.
18 34. AS A THIRTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE
19 | DEFENSE, Defendant alleges that the Complaint in whole or in part is barred because the applicable
20 | Wage Order(s) of the California Industrial Welfare Commission is unconstitutionally vague and
21 || ambiguous and violates Defendant’s rights under the United States and California Constitutions as
22 | to, among other things, due process of law.
23 35. AS A THIRTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE
24 | DEFENSE, Defendant alleges that the Complaint fails to state a claim for penalties under California
25 || Labor Code section 203 in that there is a good faith dispute as to Defendant’s obligation to pay
26 | wages and any failure to pay wages was not willful.
27 36. AS A THIRTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that, if Plaintiff is adjudged to be entitled to any recovery, Defendant
6. Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES2 oe
is entitled to a set-off for damage to Defendant inflicted by Plaintiff's wrongful acts and breaches of
contract and duties, or for any payments made to Plaintiff by order of any agency, or other
compensation paid to or received by Plaintiff from any source.
37. AS A THIRTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that any expenses for which Plaintiff claims reimbursement were not
authorized and/or reasonably necessary for the performance of Plaintiff's work duties.
38. AS A THIRTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that to the extent there was any failure to adhere to the duties required
under California Labor Code section 226(a), any such failure was not “knowing and intentional.”
39. AS A THIRTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that to the extent there was any failure to adhere to the duties required
under California Labor Code section 226(a), such failure did not cause Plaintiff any injury.
40. AS A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff's claims seeking recovery in the form of restitution,
disgorgement, or injunctive relief under California Business and Professions Code section 17200 et
seq. are barred with respect to any alleged violations that have been discontinued, ceased or are not
likely to recur.
41. AS A FORTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiffs claim for restitution pursuant to California Business
and Professions Code section 17200 ef seq. is barred to the extent that these claims constitute
damages and/or penalties of any nature.
42. AS A FORTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE
se
DEFENSE, Defendant alleges that its business practices were not “unfair,” “unlawful,” or
“deceptive” within the meaning of California Business and Professions Code section 17200 et seq.
43. AS A FORTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that the prosecution of a representative action on behalf of the general
public under Business and Professions Code section 17200 ef seg., as applied to the facts and
7. Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESNY Dw Bw HN
10
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14
SOD
circumstances of this case, constitutes a denial of due process under the United States and California
Constitutions.
44, AS A FORTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff's claims seeking punitive or exemplary damages are
barred, in whole or in part, because the imposition of such damages in this case would violate the
due process and excessive fines clauses under the United States and California Constitutions.
45. AS A FORTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that, to the extent Plaintiff seeks statutory or other penalties, such
claims must comport with the due process requirements of State Farm v. Campbell (2003) 538 U.S.
408 and Simon v. San Paolo U.S. Holding Co. Inc. (2005) 35 Cal. 4th 1159.
46. AS A FORTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff’s claims are barred to the extent he seeks disgorgement
of any funds from Defendant or any related relief, because this and any related remedy is beyond the
grant of equitable power in California Business and Professions Code section 17203, is beyond the
court’s inherent equitable powers, does not serve the public and violates Defendant’s rights of due
process, all as set out in Kraus v. Trinity Mgmt. Srvs., Inc. (2000) 23 Cal. 4th 116.
47, AS A FORTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges, without specifically admitting that any duty was owed to Plaintiff,
that any duty or obligation, contractual or otherwise, which Plaintiff claims is owed to him has been
fully performed, satisfied and/or discharged.
48. AS A FORTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff's Complaint, and each alleged cause of action therein,
fail to state facts upon which to support a claim for attorneys’ fees and costs pursuant to California
Labor Code sections 218.5 or 1194, California Code of Civil Procedure section 1021.5, or any other
basis.
49. AS A FORTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiffs Complaint, and each alleged cause of action therein,
fail to state facts upon which to support a claim for prejudgment interest.
8. Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESoC Oe WN DH
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50. AS A FIFTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiffs Complaint, and each alleged cause of action therein, fail to state
facts upon which to support a claim for injunctive relief.
SL. AS A FIFTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that injunctive relief is improper in this case as the harms alleged by
Plaintiff have an adequate remedy at law.
52. AS A FIFTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that Plaintiff's claims are unreasonable and/or were filed in bad faith
and/or are frivolous and, for that reason, justify an award of attorney’s fees and costs against
Plaintiff and his attorney.
53. AS A FIFTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE Defendant alleges that Plaintiff's Complaint, and each alleged cause of action therein, do
not describe the claims against Defendant with sufficient particularity and certainty to enable
Defendant to determine what defenses exist. Defendant reserves the right to assert all defenses that
may be pertinent to or arise from Plaintiff's claims against it.
54. AS A FIFTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that without waiving its ability to oppose class certification and
explicitly asserting its opposition to the propriety of class treatment, if the Court certifies a class in
this case over Defendant’s objections, then Defendant asserts the aforementioned affirmative
defenses against each and every member of the certified class.
PRAYER FOR RELIEF
WHEREFORE, Defendant prays that:
1. Plaintiff takes nothing by his Complaint and that the Complaint be dismissed
in its entirety, with prejudice;
2. Defendant be awarded full judgment in this action;
3. Defendant be awarded costs of suit and attorneys’ fees incurred herein; and
9. Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESYD WU Fw WY
4. Defendant be awarded such other and further relief as the Court deems just
and proper.
Dated: April 22, 2010
Cf donb VWA
SHANNON M. GIBSON
LITTLER MENDELSON
A Professional Corporation.
Attorneys for Defendant
0.C. COMMUNICATIONS, INC.
Firmwide:94878942.1 035004.1000
10. Case No. CGC-10-497294
DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES28
LUTLER MENDELSON
0)
£
4
PROOF OF SERVICE BY MAIL
i am employed in San Francisco County, California. [| am over the age of eighteen
years and not a party to the within-entitled action. My business address is 650 California Street,
20th Floor, San Francisco, California 94108.2693. I am readily familiar with this firm’s practice for
collection and processing of correspondence for mailing with the United States Postal Service. On
April 22, 2010, I placed with this firm at the above address for deposit with the United States Postal
Service a true and correct copy of the within document(s):
DEFENDANT 0.C. COMMUNICATIONS INC.'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES
ina sealed envelope, postage fully paid, addressed as follows:
Daniel Berko
819 Eddy Street
San Francisco, CA 94109
Following ordinary business practices, the envelope was sealed and placed for
collection and mailing on this date, and would, in the ordinary course of business, be deposited with
the United States Postal Service on this date.
1 declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Executed on April 22, 2010, at San Francisco, California.
Auscea 0. Besa
Susan A. Becerra
PROOF OF SERVICE
Preview
ENON SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Apr-22-2010 10:39 am Case Number: CGC-10-497294 Filing Date: Apr-22-2010 10:38 Juke Box: 001 Image: 02826631 ANSWER JACK LESIEWSKI VS. O.C. COMMUNICATIONS, INC. et al 001002826631 Instructions: Please place this sheet on top of the document to be scanned.28 LITTLER MENDELSON sn 2] WSs ete ALAN S. LEVINS, Bar No. 57612 SHANNON M. GIBSON, Bar No. 256634 LITTLER MENDELSON A Professional Corporation ft Lot a DD 650 California Street odes oun LOR gen 20th Floor 92 ri0 San Francisco, CA 94108.2693 APR Telephone: 415.433.1940 COURT FaxNo.: 415.399.8490 CLERK OF THE CY BY: Caley apie Clerk Attorneys for Defendant 0.C. COMMUNICATIONS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JACK LESIEWSKI, on behalf of himself Case No. CGC-10-497294 and all others similarly situated, Plaintiff, DEFENDANT O.C. COMMUNICATIONS INC.’S ANSWER TO PLAINTIFF’S v. UNVERIFIED COMPLAINT FOR DAMAGES 0.C. COMMUNICATIONS, INC., COMCAST CABLE Complaint filed: March 1, 2010 COMMUNICATIONS MANAGEMENT LLC, COMCAST CORPORATION, and DOES 1 through 60, inclusive, Defendants. Defendant O.C. COMMUNICATIONS, INC. (“Defendant”) hereby answers the unverified Complaint for Damages (“Complaint”) filed by Plaintiff JACK LESIEWSKI (“Plaintiff”) individually and on behalf of all others similarly situated: GENERAL DENIAL Pursuant to Section 431.30 of the California Code of Civil Procedure, Defendant generally denies each and every allegation contained in the Complaint, and further denies that Plaintiff or any purported class member has been, is or will be damaged in any sum or manner, or is or will be entitled to any recovery or remedy of any type whatsoever, by reason of Defendant’s acts, conducts or omissions. Defendant denies that this matter is appropriate for class or representative adjudication. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES28 LITTLER MENDELSON 92683 ~ ~ Mer AFFIRMATIVE DEFENSES 1. AS A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that neither the Complaint, nor any cause of action set forth therein, states facts sufficient to constitute a cause of action against Defendant. 2. AS A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiffs claims are barred by the applicable statute of limitations, including but not limited to, California Code of Civil Procedure sections 338, 340, and 343; Cal. Labor Code section 203; and/or California Business and Professions Code section 17208. 3. AS A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff failed to mitigate his purported damages and that his right to recover against Defendant should be reduced and/or eliminated by such a failure. 4, AS A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims are barred by the doctrine of waiver or release of claims. 5. AS A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims are barred by the doctrine of unjust enrichment. 6. AS A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims are barred by the doctrine of laches. 7. AS A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims are barred by the doctrine of estoppel. 8. AS AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims are barred by the doctrine of unclean hands. 9. AS A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff lacks standing to prosecute one or more of the claims asserted in the Complaint. 10. AS A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff cannot satisfy the prerequisites for class certification and therefore cannot represent the interest of others. 2. Case No. CGC-10-497294 DEF. 0.C, COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES11. AS AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the types of claims alleged by Plaintiff on behalf of himself and/or the alleged putative class he purports to represent are matters in which individual questions of fact and law predominate over common questions of fact and law and thus are not appropriate for class treatment. 12. AS A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff is not similarly situated to other potential members of the alleged putative class he purports to represent and/or his claims are not typical of those of the putative class and thus Plaintiff is an inadequate representative of the alleged putative class. 13. AS A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that there is not a well-defined community of interest in the questions of law and/or fact affecting Plaintiff and the members of the alleged putative class. 14. AS A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that to the extent the alleged putative class is not ascertainable and/or identifiable, class treatment is not appropriate. 15. AS A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff has not shown and cannot show that class treatment of the purported causes of action in his Complaint is superior to other methods of adjudicating the controversy. 16. AS A SIXTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that this action may not be maintained as a class action because certain of the interests of the putative class are in conflict with the interests of all or certain other members of the putative class. 17. AS A SEVENTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that this action may not be maintained as a class action because the purported representatives and their counsel will not fairly and adequately protect the interests of the class. 3. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES18. AS AN EIGHTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that certification of a class, as applied to the facts and circumstances of this case, would constitute a denial of Defendant’s due process rights, both substantive and procedural, in violation of the Fourteenth Amendment to the United States Constitution and the California Constitution. Lockyer v. R.J. Reynolds Tobacco Co, (2005) 37 Cal. 4th 707; Ratner v. Chemical Bank New York Trust Co. (S.D.N.Y. 1972) 54 F.R.D. 412. 19. AS A NINETEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims are barred, in whole or in part, by the doctrine ° accord and satisfaction. 20. AS A TWENTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is barred, in whole or in part, to the extent that Plaintiff consented to, encouraged, or voluntarily participated in all actions taken, if any. 21. AS A TWENTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that it has or will acquire evidence which, had Defendant known about said evidence during Plaintiff's employment or that of the putative class members, would have resulted in the termination of Plaintiff's employment and/or that of the putative class members. As a result of this after acquired evidence and/or the doctrine of “avoidable consequences,” Plaintiff and/or the putative class members is/are not entitled to any damages whatsoever or, at the very least, not entitled to any damages subsequent to the time that Defendant acquired the evidence. 22. AS A TWENTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is uncertain as to the overtime allegedly worked and the meal and rest periods allegedly denied as well as the wage statements allegedly rendered inaccurate and the reimbursements allegedly not provided. 23. AS A TWENTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims, in whole or in part, are barred by his and/or the putative class members’ unreasonable failure to take advantage of preventative and corrective opportunities and failure to exhaust administrative and/or other internal remedies and/or contractual 4. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESOo CO YN KH A BY ND 10 28 remedies available to him/them including under the California Labor Code or other provisions of law prior to commencing this action and to otherwise avoid harm. 24. AS A TWENTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint and each cause of action for penalties are barred because (1) there is a bona fide dispute as to whether further compensation is due to Plaintiff and, if so, as to the amount of such further compensation; (2) Defendant has not willfully failed to pay such additional compensation; (3) to the extent any additional compensation is due, Plaintiff either secreted or absented him/herself to avoid payment of compensation and/or refused payment fully tendered to him/her; and (4) to impose penalties in this case would be inequitable and unjust. 25. AS A TWENTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiff and the putative class members did not necessarily incur “expenditures and losses” as defined under California Labor Code section 2802, and any award of such expenditures and/or losses would unjustly enrich Plaintiff and the putative class members. 26. AS A TWENTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff and all putative class members were properly compensated for all hours of work in accordance with applicable law. 27. AS A TWENTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that to the extent that Plaintiff did not record all time worked and/or worked off-the-clock, he did so by choice and without the permission or knowledge of Defendant. 28. AS A TWENTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that it acted with a reasonable and good faith belief that it complied with its obligations, if any, under the California Labor Code, specifically including sections 226.7 and 512 thereof, as to Plaintiff and the putative class members. 29. AS A TWENTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's Complaint and each cause of action set forth therein cannot be maintained against Defendant because Defendant had a policy of providing meal and rest 5. Case No. CGC-10-497294 DEF. O.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES1 || periods as required by Wage Order(s) of the California Industrial Welfare Commission and applicable California law. 30. AS A THIRTIETH SEPARATE AND DISTINCT AFFIRMATIVE bwin DEFENSE, Defendant alleges that to the extent that Plaintiff did not take meal and rest periods, he 5 || did so by choice and without the permission or knowledge of Defendant, and/or failed to work the 6 || requisite number of hours to qualify for a meal and/or rest period. 7 31. AS A THIRTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE 8 | DEFENSE, Defendant alleges that Plaintiff's alleged injuries were not proximately caused by any 9 | unlawful policy, custom, practice and/or procedure promulgated and/or tolerated by Defendant. 10 32. AS A THIRTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE 11 | DEFENSE, Defendant alleges that Plaintiff's damages, if any, were the result of his failure to 12 | comply with the reasonable expectations of Defendant and/or follow Defendant’s reasonable 13 | instructions and/or policies. 14 33. AS A THIRTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE 15 | DEFENSE, Defendant alleges that there is no private right of action for an employee to recover 16 | damages under sections 201, 203, 226, 226.7, 510, 512, 1194, 1199 and/or 2802 of the California 17 | Labor Code. 18 34. AS A THIRTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE 19 | DEFENSE, Defendant alleges that the Complaint in whole or in part is barred because the applicable 20 | Wage Order(s) of the California Industrial Welfare Commission is unconstitutionally vague and 21 || ambiguous and violates Defendant’s rights under the United States and California Constitutions as 22 | to, among other things, due process of law. 23 35. AS A THIRTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE 24 | DEFENSE, Defendant alleges that the Complaint fails to state a claim for penalties under California 25 || Labor Code section 203 in that there is a good faith dispute as to Defendant’s obligation to pay 26 | wages and any failure to pay wages was not willful. 27 36. AS A THIRTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that, if Plaintiff is adjudged to be entitled to any recovery, Defendant 6. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES2 oe is entitled to a set-off for damage to Defendant inflicted by Plaintiff's wrongful acts and breaches of contract and duties, or for any payments made to Plaintiff by order of any agency, or other compensation paid to or received by Plaintiff from any source. 37. AS A THIRTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that any expenses for which Plaintiff claims reimbursement were not authorized and/or reasonably necessary for the performance of Plaintiff's work duties. 38. AS A THIRTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that to the extent there was any failure to adhere to the duties required under California Labor Code section 226(a), any such failure was not “knowing and intentional.” 39. AS A THIRTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that to the extent there was any failure to adhere to the duties required under California Labor Code section 226(a), such failure did not cause Plaintiff any injury. 40. AS A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims seeking recovery in the form of restitution, disgorgement, or injunctive relief under California Business and Professions Code section 17200 et seq. are barred with respect to any alleged violations that have been discontinued, ceased or are not likely to recur. 41. AS A FORTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiffs claim for restitution pursuant to California Business and Professions Code section 17200 ef seq. is barred to the extent that these claims constitute damages and/or penalties of any nature. 42. AS A FORTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE se DEFENSE, Defendant alleges that its business practices were not “unfair,” “unlawful,” or “deceptive” within the meaning of California Business and Professions Code section 17200 et seq. 43. AS A FORTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the prosecution of a representative action on behalf of the general public under Business and Professions Code section 17200 ef seg., as applied to the facts and 7. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESNY Dw Bw HN 10 ll 14 SOD circumstances of this case, constitutes a denial of due process under the United States and California Constitutions. 44, AS A FORTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims seeking punitive or exemplary damages are barred, in whole or in part, because the imposition of such damages in this case would violate the due process and excessive fines clauses under the United States and California Constitutions. 45. AS A FORTY-FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that, to the extent Plaintiff seeks statutory or other penalties, such claims must comport with the due process requirements of State Farm v. Campbell (2003) 538 U.S. 408 and Simon v. San Paolo U.S. Holding Co. Inc. (2005) 35 Cal. 4th 1159. 46. AS A FORTY-SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff’s claims are barred to the extent he seeks disgorgement of any funds from Defendant or any related relief, because this and any related remedy is beyond the grant of equitable power in California Business and Professions Code section 17203, is beyond the court’s inherent equitable powers, does not serve the public and violates Defendant’s rights of due process, all as set out in Kraus v. Trinity Mgmt. Srvs., Inc. (2000) 23 Cal. 4th 116. 47, AS A FORTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges, without specifically admitting that any duty was owed to Plaintiff, that any duty or obligation, contractual or otherwise, which Plaintiff claims is owed to him has been fully performed, satisfied and/or discharged. 48. AS A FORTY-EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's Complaint, and each alleged cause of action therein, fail to state facts upon which to support a claim for attorneys’ fees and costs pursuant to California Labor Code sections 218.5 or 1194, California Code of Civil Procedure section 1021.5, or any other basis. 49. AS A FORTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiffs Complaint, and each alleged cause of action therein, fail to state facts upon which to support a claim for prejudgment interest. 8. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESoC Oe WN DH 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 nen 50. AS A FIFTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiffs Complaint, and each alleged cause of action therein, fail to state facts upon which to support a claim for injunctive relief. SL. AS A FIFTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that injunctive relief is improper in this case as the harms alleged by Plaintiff have an adequate remedy at law. 52. AS A FIFTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's claims are unreasonable and/or were filed in bad faith and/or are frivolous and, for that reason, justify an award of attorney’s fees and costs against Plaintiff and his attorney. 53. AS A FIFTY-THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE Defendant alleges that Plaintiff's Complaint, and each alleged cause of action therein, do not describe the claims against Defendant with sufficient particularity and certainty to enable Defendant to determine what defenses exist. Defendant reserves the right to assert all defenses that may be pertinent to or arise from Plaintiff's claims against it. 54. AS A FIFTY-FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that without waiving its ability to oppose class certification and explicitly asserting its opposition to the propriety of class treatment, if the Court certifies a class in this case over Defendant’s objections, then Defendant asserts the aforementioned affirmative defenses against each and every member of the certified class. PRAYER FOR RELIEF WHEREFORE, Defendant prays that: 1. Plaintiff takes nothing by his Complaint and that the Complaint be dismissed in its entirety, with prejudice; 2. Defendant be awarded full judgment in this action; 3. Defendant be awarded costs of suit and attorneys’ fees incurred herein; and 9. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGESYD WU Fw WY 4. Defendant be awarded such other and further relief as the Court deems just and proper. Dated: April 22, 2010 Cf donb VWA SHANNON M. GIBSON LITTLER MENDELSON A Professional Corporation. Attorneys for Defendant 0.C. COMMUNICATIONS, INC. Firmwide:94878942.1 035004.1000 10. Case No. CGC-10-497294 DEF. 0.C. COMMUNICATIONS INC.’S ANS. TO PL.’S UNVERIFIED COMPL. FOR DAMAGES28 LUTLER MENDELSON 0) £ 4 PROOF OF SERVICE BY MAIL i am employed in San Francisco County, California. [| am over the age of eighteen years and not a party to the within-entitled action. My business address is 650 California Street, 20th Floor, San Francisco, California 94108.2693. I am readily familiar with this firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. On April 22, 2010, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): DEFENDANT 0.C. COMMUNICATIONS INC.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES ina sealed envelope, postage fully paid, addressed as follows: Daniel Berko 819 Eddy Street San Francisco, CA 94109 Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 22, 2010, at San Francisco, California. Auscea 0. Besa Susan A. Becerra PROOF OF SERVICE