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1 MEDINA McKELVEY LLP Electronically Filed
Brandon R. McKelvey (SBN 217002) 12/4/2020 1:58 PM
2 Email: brandon@medinamckelvey.com Superior Court of California
Caitlin E. Kaufman (SBN 238424)
Email: caitlin@medinamckelvey.com County of Stanislaus
3
983 Reserve Drive Clerk of the Court
4 Roseville, California 95678 By: Sonia Krohn, Deputy
Telephone: (916) 960-2211
5 Facsimile: (916) 742-5488
6 Counsel for Defendant STORER $435 PAID
TRANSPORTATION SERVICE; STORER
7 TRANSIT SYSTEMS
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF STANISLAUS
11 DAVID GORDON, an individual, CASE NO. CV-20-004458
Assigned for All Purposes to Honorable
12 Plaintiff, Judge John D. Freeland, Department 23
13 v.
DEFENDANTS STORER
14 STORER TRANSPORTATION SERVICE; TRANSPORTATION SERVICE AND
STORER TRANSIT SYSTEMS; and DOES 1 STORER TRANSIT SYSTEMS’ ANSWER
15 through 25, inclusive, TO COMPLAINT
16 Defendants. Action Filed: October 13, 2020
17 Trial: Not Yet Set
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 Defendants STORER TRANSPORTATION SERVICE and STORER TRANSIT
2 SYSTEMS (collectively, “Defendants”) hereby answer Plaintiff DAVID GORDON’s
3 (“Plaintiff’s”) Complaint as follows:
4 GENERAL DENIAL
5 Pursuant to the provisions of California Code of Civil Procedure section 431.30(d),
6 Defendants deny, generally and specifically, each and every allegation, statement, matter and
7 each purported cause of action contained in the Complaint, and without limiting the generality of
8 the foregoing, deny, generally and specifically, that Plaintiff has been damaged in the manner or
9 sums alleged, or in any way at all, by reason of any acts or omissions of Defendants.
10 SEPARATE AND AFFIRMATIVE DEFENSES
11 In further answer to the Complaint, and as separate and distinct defenses, Defendants
12 allege as follows, without assuming any burden of production of proof that they otherwise would
13 not have:
14 FIRST AFFIRMATIVE DEFENSE
15 (Failure to State a Claim for Which Relief Can Be Granted—All Causes of Action)
16 Plaintiff’s Complaint, and each purported cause of action alleged therein, fails to state
17 facts sufficient to constitute claims upon which relief can be granted against Defendants.
18 SECOND AFFIRMATIVE DEFENSE
19 (Failure to State Facts Sufficient to Constitute Any Cause of Action—All Causes of Action)
20 Plaintiff’s Complaint, and each purported cause of action alleged therein, fails to state
21 facts sufficient to constitute any cause of action upon which relief can be granted.
22 THIRD AFFIRMATIVE DEFENSE
23 (Waiver and Estoppel—All Causes of Action)
24 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the
25 doctrines of waiver and estoppel.
26 ///
27 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 FOURTH AFFIRMATIVE DEFENSE
2 (Consent—All Causes of Action)
3 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the
4 doctrine of consent.
5 FIFTH AFFIRMATIVE DEFENSE
6 (Statutes of Limitation—All Causes of Action)
7 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the
8 applicable statutes of limitation for each alleged cause of action, including but not limited to,
9 California Code of Civil Procedure Sections 312, 337, 338, 339, 340, and 343.
10 SIXTH AFFIRMATIVE DEFENSE
11 (Laches—All Causes of Action)
12 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the
13 doctrine of laches, because Plaintiff exercised inexcusable delay in commencing this action.
14 SEVENTH AFFIRMATIVE DEFENSE
15 (Failure to Exhaust Administrative Remedies—All Causes of Action)
16 Plaintiff’s claims are barred to the extent that Plaintiff has failed to exhaust his
17 administrative remedies prior to commencing this action.
18 EIGHTH AFFIRMATIVE DEFENSE
19 (Failure to Mitigate Damages—All Causes of Action)
20 Plaintiff is not entitled to recover the amount of damages from Defendants as alleged in
21 his Complaint, or any damages, due to his continuous failure to make reasonable efforts to
22 mitigate or minimize the damages that he has allegedly incurred.
23 NINTH AFFIRMATIVE DEFENSE
24 (Ratification—All Causes of Action)
25 Plaintiff is precluded from pursuing his Complaint and each cause of action alleged in it
26 because he failed to act upon the knowledge available to him, thereby ratifying the conduct of
27 Defendants he complains of.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TENTH AFFIRMATIVE DEFENSE
2 (Unclean Hands—All Causes of Action)
3 Plaintiff is precluded from maintaining the Complaint, and each purported cause of action
4 alleged therein, because Plaintiff engaged in conduct showing unclean hands.
5 ELEVENTH AFFIRMATIVE DEFENSE
6 (Failure to Use Ordinary Care—All Causes of Action)
7 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the
8 extent that Plaintiff received good consideration in agreement to serve as an employee yet failed
9 to use ordinary care and diligence during his employment, or employment-related duties, pursuant
10 to California Labor Code Section 2854.
11 TWELFTH AFFIRMATIVE DEFENSE
12 (Failure to Comply with Employer’s Directions—All Causes of Action)
13 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the
14 extent that Plaintiff failed to substantially comply with all of the directions of his employer
15 concerning the service on which he was engaged and Plaintiff’s obedience to the directions of the
16 employer was neither impossible or unlawful, nor would impose new and unrealistic burdens
17 upon him, pursuant to California Labor Code Section 2856.
18 THIRTEENTH AFFIRMATIVE DEFENSE
19 (Failure to Conform to Usage of Place of Performance—All Causes of Action)
20 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the
21 extent that Plaintiff failed to perform services in conformity to the usage of the place of
22 performance and was not otherwise directed by the employer, and such performance was neither
23 impracticable, nor manifestly injurious to Plaintiff, pursuant to California Labor Code Section
24 2857.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Failure to Use Skill Possessed—All Causes of Action)
3 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the
4 extent that Plaintiff did not use such skill as he possessed, so far as the same is required, for the
5 service specified for Defendants, as provided under California Labor Code Section 2859.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (Contribution by Plaintiff’s Own Acts—All Causes of Action)
8 If the injuries and/or alleged damages in the Complaint occurred at all (which Defendants
9 deny), such injuries and/or alleged damages were proximately caused by and/or contributed to by
10 Plaintiff’s own acts, omissions, and/or failures to act.
11 SIXTEENTH AFFIRMATIVE DEFENSE
12 (Avoidable Consequences Doctrine—All Causes of Action)
13 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the
14 avoidable consequences doctrine.
15 SEVENTEENTH AFFIRMATIVE DEFENSE
16 (De Minimis Doctrine—All Causes of Action)
17 Plaintiff’s claims fail to the extent that, even if Plaintiff has suffered damage, such
18 damage is de minimis and therefore, not compensable as a matter of law.
19 EIGHTEENTH AFFIRMATIVE DEFENSE
20 (Accord and Satisfaction/Release—All Causes of Action)
21 Plaintiff’s claims are barred, in whole or in part, pursuant to an accord and satisfaction
22 and/or are barred to the extent that Plaintiff has entered into or is otherwise bound by
23 compromise, settlement or release agreements regarding those claims.
24 NINETEENTH AFFIRMATIVE DEFENSE
25 (Other Actions—All Causes of Action)
26 Plaintiff’s claims are barred by the doctrines of res judicata and/or collateral estoppel to
27 the extent that Plaintiff has asserted and adjudicated in any prior legal or administrative
28 proceeding claims at issue in this litigation.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TWENTIETH AFFIRMATIVE DEFENSE
2 (Failure to State A Claim for Attorneys’ Fees—All Causes of Action)
3 Plaintiff’s claims fail to state a claim for attorneys’ fees under the California Code of Civil
4 Procedure, the California Government Code, or any other statutory basis.
5 TWENTY-FIRST AFFIRMATIVE DEFENSE
6 (Punitive Damages Unconstitutional—All Causes of Action)
7 California Civil Code section 3294, relating to the imposition of punitive damages, is
8 invalid on its face, or as applied to Defendants in this action, pursuant to Article I, Section 10,
9 Article IV, Section 2, and the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the
10 Constitution of the United States, and Articles I and IV of the California Constitution.
11 TWENTY-SECOND AFFIRMATIVE DEFENSE
12 (Punitive Damages (No Malice, Fraud, or Oppression)—All Causes of Action)
13 Plaintiff’s Complaint and each of its purported causes of action fail to state facts sufficient
14 to support a claim for punitive damages because Defendants did not act with malice, fraud, or
15 oppression, or otherwise engage in conduct that would support a claim for punitive damages.
16 TWENTY-THIRD AFFIRMATIVE DEFENSE
17 (Punitive Damages (Insufficient Facts)—All Causes of Action)
18 Plaintiff’s causes of action fail to state facts sufficient to constitute a claim for punitive
19 damages against Defendants pursuant to California Civil Code section 3294.
20 TWENTY-FOURTH AFFIRMATIVE DEFENSE
21 (Pre-Existing Conditions—All Causes of Action)
22 To the extent that Plaintiff has suffered any symptoms of mental or emotional distress or
23 injury, such symptoms are the result of a pre-existing psychological or physical disorder, or an
24 alternative concurrent cause, and not the result of any act or omission of Defendants.
25 TWENTY-FIFTH AFFIRMATIVE DEFENSE
26 (Adequate Remedy at Law—All Causes of Action)
27 Plaintiff is not entitled to the equitable relief sought insofar as he has an adequate remedy
28 at law.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TWENTY-SIXTH AFFIRMATIVE DEFENSE
2 (Setoff—All Causes of Action)
3 Defendants allege that if Plaintiff is awarded a recovery based on the causes of action set
4 forth in his Complaint, then Defendants are entitled to a set-off for any such recovery, including
5 but not limited to payments to Plaintiff in connection with any proceedings before the California
6 Workers’ Compensation Appeals Board or the Economic Development Department.
7 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
8 (No Violation of Public Policy—Sixth Cause of Action)
9 Defendants’ conduct did not violate the public policy of the State of California, the
10 Constitution of the State of California, or any California statute.
11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
12 (Satisfaction of Duty—All Causes of Action)
13 Defendants satisfied, fulfilled and performed each and every obligation and duty imposed
14 by law or contract to the full extent of their responsibility.
15 TWENTY-NINTH AFFIRMATIVE DEFENSE
16 (Workers’ Compensation Exclusivity—All Causes of Action)
17 Defendants allege that Plaintiff’s Complaint and each of its purported causes of action are
18 barred by the workers’ compensation exclusive remedy rule.
19 THIRTIETH AFFIRMATIVE DEFENSE
20 (Good Faith and Legitimate Reasons for Actions—All Causes of Action
21 The Complaint and each of its purported causes of action are barred in that, to the extent
22 Defendants engaged in any of the alleged actions set forth in Plaintiff’s Complaint, such actions
23 were taken in good faith, for legitimate, non-discriminatory business reasons and/or as a result of
24 business necessity.
25 THIRTY-FIRST AFFIRMATIVE DEFENSE
26 (No Reasonable Basis for Claims—All Causes of Action)
27 Plaintiff knew or should have known that his claims are without any reasonable basis in
28 law and equity and cannot be supported by a good faith argument for extension, modification or
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 reversal of existing law. As a result of Plaintiff’s filing of this lawsuit, Defendants have been
2 required to obtain the services of the undersigned attorneys and have and will continue to incur
3 substantial costs and attorneys’ fees in defense of this frivolous case. Defendants are therefore
4 entitled to recover reasonable attorneys’ fees, expenses, and costs incurred by and through this
5 action in accordance with California Code of Civil Procedure section 128.5.
6 THIRTY-SECOND AFFIRMATIVE DEFENSE
7 (Undue Hardship—All Causes of Action)
8 Plaintiff’s Complaint, and each cause of action attempted to be stated therein, is barred
9 because Plaintiff’s alleged disability could not be accommodated without undue hardship to
10 Defendants.
11 THIRTY-THIRD AFFIRMATIVE DEFENSE
12 (Interactive Process Breakdown—All Causes of Action)
13 Plaintiff’s Complaint, and each cause of action attempted to be stated therein, is barred
14 because Defendants had no duty to engage in the interactive process with Plaintiff never engaged
15 Defendants in the interactive process.
16 THIRTY-FOURTH AFFIRMATIVE DEFENSE
17 (Same Decision—All Causes of Action)
18 Plaintiff’s remedies are limited and/or liability is precluded because Defendants would
19 have taken the same action in the absence of the alleged impermissible motivating factor(s).
20 THIRTY-FIFTH AFFIRMATIVE DEFENSE
21 (After-Acquired Evidence—All Causes of Action)
22 Plaintiff’s claims for damages are barred to the extent he engaged in any fraud or
23 misconduct of which Defendants were unaware until after Plaintiff filed suit, and which, if known
24 would have caused Plaintiff to be terminated or not hired in the first place.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 THIRTY-SIXTH AFFIRMATIVE DEFENSE
2 (Reasonable Care to Prevent and Correct—All Causes of Action)
3 Plaintiff’s Complaint is barred, in whole or in part, because Defendants exercised
4 reasonable care to prevent and correct promptly any alleged discriminatory and/or retaliatory
5 conduct, if any.
6 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
7 (Right to Raise Other Defenses)
8 Defendants hereby give notice that they intend to rely upon such other and further
9 affirmative defenses as may become available during discovery in this action and Defendants
10 reserve the right to amend this Answer to assert any such defenses.
11 PRAYER
12 Wherefore, Defendants pray for judgment as follows:
13 1. That Plaintiff takes nothing by his Complaint;
14 2. That judgment be entered in favor of Defendants and against Plaintiff on all causes
15 of action;
16 3. That Defendants be awarded reasonable attorneys’ fees according to proof;
17 4. That Defendants be awarded the costs of suit incurred herein; and
18 5. That Defendants be awarded such other and further relief as the Court may deem
19 appropriate.
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Dated: December 4, 2020 MEDINA McKELVEY LLP
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By:___________________________________
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CAITLIN E. KAUFMAN
24 Attorneys for Defendants STORER
TRANSPORTATION SERVICE; STORER
25 TRANSIT SYSTEMS
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 PROOF OF SERVICE
2 I am a resident of the State of California, over the age of eighteen years, and not a party to
the within action. My business address is Medina McKelvey LLP, 983 Reserve Drive, Roseville,
3 California 95678. On December 4, 2020, I served the following document(s):
4 DEFENDANTS STORER TRANSPORTATION SERVICE AND STORER TRANSIT
5 SYSTEMS’ ANSWER TO COMPLAINT
6 X (BY EMAIL) I caused an email to be sent to the email address listed below.
7 (BY OVERNIGHT DELIVERY) I place each such sealed envelope, with delivery fees
provided for, for collection and overnight delivery at Medina McKelvey LLP, Roseville,
8
California, following ordinary business practices. I am readily familiar with the practice of
9 Medina McKelvey LLP’s collection and processing of correspondence for overnight
delivery, said practice being that in the ordinary course of business, correspondence is
10 deposited in the facility regularly maintained by the express services carrier the same day as
it is placed for collection.
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(BY U.S. MAIL) I placed the document listed above in a sealed envelope with postage thereon
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fully prepaid, in the United States mail at Roseville, California addressed as set forth below. I am
13 readily familiar with the firm’s practice of collection and processing correspondence for
mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
14 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
15 meter date is more than one day after date of deposit for mailing in affidavit.
16
Christopher W. Taylor, Esq.
17 Parham Barkhordar, Esq.
Taylor H. White, Esq.
18 Philip Horlacher, Esq.
Taylor Labor Law, P.C.
19 80 S. Lake Avenue, Suite 860
Pasadena, California 91101
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Ph: (626) 219-6008
21 Fax: (626) 219-6009
Email: chris@taylorlaborlaw.com
22 Email: parham@taylorlaborlaw.com
Email: taylor@taylorlaborlaw.com
23 Email: phil@taylorlaborlaw.com
24 Attorneys for Plaintiff David Gordon
25 I declare under the penalty of perjury under the laws of the State of California that the
above is true and correct.
26
Executed on December 4, 2020, at Roseville, California.
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_____________________________________
28 Andrew Sayre
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
Preview
1 MEDINA McKELVEY LLP Electronically Filed Brandon R. McKelvey (SBN 217002) 12/4/2020 1:58 PM 2 Email: brandon@medinamckelvey.com Superior Court of California Caitlin E. Kaufman (SBN 238424) Email: caitlin@medinamckelvey.com County of Stanislaus 3 983 Reserve Drive Clerk of the Court 4 Roseville, California 95678 By: Sonia Krohn, Deputy Telephone: (916) 960-2211 5 Facsimile: (916) 742-5488 6 Counsel for Defendant STORER $435 PAID TRANSPORTATION SERVICE; STORER 7 TRANSIT SYSTEMS 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF STANISLAUS 11 DAVID GORDON, an individual, CASE NO. CV-20-004458 Assigned for All Purposes to Honorable 12 Plaintiff, Judge John D. Freeland, Department 23 13 v. DEFENDANTS STORER 14 STORER TRANSPORTATION SERVICE; TRANSPORTATION SERVICE AND STORER TRANSIT SYSTEMS; and DOES 1 STORER TRANSIT SYSTEMS’ ANSWER 15 through 25, inclusive, TO COMPLAINT 16 Defendants. Action Filed: October 13, 2020 17 Trial: Not Yet Set 18 19 20 21 22 23 24 25 26 27 28 -1- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 Defendants STORER TRANSPORTATION SERVICE and STORER TRANSIT 2 SYSTEMS (collectively, “Defendants”) hereby answer Plaintiff DAVID GORDON’s 3 (“Plaintiff’s”) Complaint as follows: 4 GENERAL DENIAL 5 Pursuant to the provisions of California Code of Civil Procedure section 431.30(d), 6 Defendants deny, generally and specifically, each and every allegation, statement, matter and 7 each purported cause of action contained in the Complaint, and without limiting the generality of 8 the foregoing, deny, generally and specifically, that Plaintiff has been damaged in the manner or 9 sums alleged, or in any way at all, by reason of any acts or omissions of Defendants. 10 SEPARATE AND AFFIRMATIVE DEFENSES 11 In further answer to the Complaint, and as separate and distinct defenses, Defendants 12 allege as follows, without assuming any burden of production of proof that they otherwise would 13 not have: 14 FIRST AFFIRMATIVE DEFENSE 15 (Failure to State a Claim for Which Relief Can Be Granted—All Causes of Action) 16 Plaintiff’s Complaint, and each purported cause of action alleged therein, fails to state 17 facts sufficient to constitute claims upon which relief can be granted against Defendants. 18 SECOND AFFIRMATIVE DEFENSE 19 (Failure to State Facts Sufficient to Constitute Any Cause of Action—All Causes of Action) 20 Plaintiff’s Complaint, and each purported cause of action alleged therein, fails to state 21 facts sufficient to constitute any cause of action upon which relief can be granted. 22 THIRD AFFIRMATIVE DEFENSE 23 (Waiver and Estoppel—All Causes of Action) 24 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the 25 doctrines of waiver and estoppel. 26 /// 27 /// 28 /// -2- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 FOURTH AFFIRMATIVE DEFENSE 2 (Consent—All Causes of Action) 3 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the 4 doctrine of consent. 5 FIFTH AFFIRMATIVE DEFENSE 6 (Statutes of Limitation—All Causes of Action) 7 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the 8 applicable statutes of limitation for each alleged cause of action, including but not limited to, 9 California Code of Civil Procedure Sections 312, 337, 338, 339, 340, and 343. 10 SIXTH AFFIRMATIVE DEFENSE 11 (Laches—All Causes of Action) 12 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the 13 doctrine of laches, because Plaintiff exercised inexcusable delay in commencing this action. 14 SEVENTH AFFIRMATIVE DEFENSE 15 (Failure to Exhaust Administrative Remedies—All Causes of Action) 16 Plaintiff’s claims are barred to the extent that Plaintiff has failed to exhaust his 17 administrative remedies prior to commencing this action. 18 EIGHTH AFFIRMATIVE DEFENSE 19 (Failure to Mitigate Damages—All Causes of Action) 20 Plaintiff is not entitled to recover the amount of damages from Defendants as alleged in 21 his Complaint, or any damages, due to his continuous failure to make reasonable efforts to 22 mitigate or minimize the damages that he has allegedly incurred. 23 NINTH AFFIRMATIVE DEFENSE 24 (Ratification—All Causes of Action) 25 Plaintiff is precluded from pursuing his Complaint and each cause of action alleged in it 26 because he failed to act upon the knowledge available to him, thereby ratifying the conduct of 27 Defendants he complains of. 28 /// -3- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 TENTH AFFIRMATIVE DEFENSE 2 (Unclean Hands—All Causes of Action) 3 Plaintiff is precluded from maintaining the Complaint, and each purported cause of action 4 alleged therein, because Plaintiff engaged in conduct showing unclean hands. 5 ELEVENTH AFFIRMATIVE DEFENSE 6 (Failure to Use Ordinary Care—All Causes of Action) 7 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the 8 extent that Plaintiff received good consideration in agreement to serve as an employee yet failed 9 to use ordinary care and diligence during his employment, or employment-related duties, pursuant 10 to California Labor Code Section 2854. 11 TWELFTH AFFIRMATIVE DEFENSE 12 (Failure to Comply with Employer’s Directions—All Causes of Action) 13 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the 14 extent that Plaintiff failed to substantially comply with all of the directions of his employer 15 concerning the service on which he was engaged and Plaintiff’s obedience to the directions of the 16 employer was neither impossible or unlawful, nor would impose new and unrealistic burdens 17 upon him, pursuant to California Labor Code Section 2856. 18 THIRTEENTH AFFIRMATIVE DEFENSE 19 (Failure to Conform to Usage of Place of Performance—All Causes of Action) 20 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the 21 extent that Plaintiff failed to perform services in conformity to the usage of the place of 22 performance and was not otherwise directed by the employer, and such performance was neither 23 impracticable, nor manifestly injurious to Plaintiff, pursuant to California Labor Code Section 24 2857. 25 /// 26 /// 27 /// 28 /// -4- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Failure to Use Skill Possessed—All Causes of Action) 3 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred to the 4 extent that Plaintiff did not use such skill as he possessed, so far as the same is required, for the 5 service specified for Defendants, as provided under California Labor Code Section 2859. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 (Contribution by Plaintiff’s Own Acts—All Causes of Action) 8 If the injuries and/or alleged damages in the Complaint occurred at all (which Defendants 9 deny), such injuries and/or alleged damages were proximately caused by and/or contributed to by 10 Plaintiff’s own acts, omissions, and/or failures to act. 11 SIXTEENTH AFFIRMATIVE DEFENSE 12 (Avoidable Consequences Doctrine—All Causes of Action) 13 Plaintiff’s Complaint, and each purported cause of action alleged therein, is barred by the 14 avoidable consequences doctrine. 15 SEVENTEENTH AFFIRMATIVE DEFENSE 16 (De Minimis Doctrine—All Causes of Action) 17 Plaintiff’s claims fail to the extent that, even if Plaintiff has suffered damage, such 18 damage is de minimis and therefore, not compensable as a matter of law. 19 EIGHTEENTH AFFIRMATIVE DEFENSE 20 (Accord and Satisfaction/Release—All Causes of Action) 21 Plaintiff’s claims are barred, in whole or in part, pursuant to an accord and satisfaction 22 and/or are barred to the extent that Plaintiff has entered into or is otherwise bound by 23 compromise, settlement or release agreements regarding those claims. 24 NINETEENTH AFFIRMATIVE DEFENSE 25 (Other Actions—All Causes of Action) 26 Plaintiff’s claims are barred by the doctrines of res judicata and/or collateral estoppel to 27 the extent that Plaintiff has asserted and adjudicated in any prior legal or administrative 28 proceeding claims at issue in this litigation. -5- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (Failure to State A Claim for Attorneys’ Fees—All Causes of Action) 3 Plaintiff’s claims fail to state a claim for attorneys’ fees under the California Code of Civil 4 Procedure, the California Government Code, or any other statutory basis. 5 TWENTY-FIRST AFFIRMATIVE DEFENSE 6 (Punitive Damages Unconstitutional—All Causes of Action) 7 California Civil Code section 3294, relating to the imposition of punitive damages, is 8 invalid on its face, or as applied to Defendants in this action, pursuant to Article I, Section 10, 9 Article IV, Section 2, and the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the 10 Constitution of the United States, and Articles I and IV of the California Constitution. 11 TWENTY-SECOND AFFIRMATIVE DEFENSE 12 (Punitive Damages (No Malice, Fraud, or Oppression)—All Causes of Action) 13 Plaintiff’s Complaint and each of its purported causes of action fail to state facts sufficient 14 to support a claim for punitive damages because Defendants did not act with malice, fraud, or 15 oppression, or otherwise engage in conduct that would support a claim for punitive damages. 16 TWENTY-THIRD AFFIRMATIVE DEFENSE 17 (Punitive Damages (Insufficient Facts)—All Causes of Action) 18 Plaintiff’s causes of action fail to state facts sufficient to constitute a claim for punitive 19 damages against Defendants pursuant to California Civil Code section 3294. 20 TWENTY-FOURTH AFFIRMATIVE DEFENSE 21 (Pre-Existing Conditions—All Causes of Action) 22 To the extent that Plaintiff has suffered any symptoms of mental or emotional distress or 23 injury, such symptoms are the result of a pre-existing psychological or physical disorder, or an 24 alternative concurrent cause, and not the result of any act or omission of Defendants. 25 TWENTY-FIFTH AFFIRMATIVE DEFENSE 26 (Adequate Remedy at Law—All Causes of Action) 27 Plaintiff is not entitled to the equitable relief sought insofar as he has an adequate remedy 28 at law. -6- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 TWENTY-SIXTH AFFIRMATIVE DEFENSE 2 (Setoff—All Causes of Action) 3 Defendants allege that if Plaintiff is awarded a recovery based on the causes of action set 4 forth in his Complaint, then Defendants are entitled to a set-off for any such recovery, including 5 but not limited to payments to Plaintiff in connection with any proceedings before the California 6 Workers’ Compensation Appeals Board or the Economic Development Department. 7 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 8 (No Violation of Public Policy—Sixth Cause of Action) 9 Defendants’ conduct did not violate the public policy of the State of California, the 10 Constitution of the State of California, or any California statute. 11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 12 (Satisfaction of Duty—All Causes of Action) 13 Defendants satisfied, fulfilled and performed each and every obligation and duty imposed 14 by law or contract to the full extent of their responsibility. 15 TWENTY-NINTH AFFIRMATIVE DEFENSE 16 (Workers’ Compensation Exclusivity—All Causes of Action) 17 Defendants allege that Plaintiff’s Complaint and each of its purported causes of action are 18 barred by the workers’ compensation exclusive remedy rule. 19 THIRTIETH AFFIRMATIVE DEFENSE 20 (Good Faith and Legitimate Reasons for Actions—All Causes of Action 21 The Complaint and each of its purported causes of action are barred in that, to the extent 22 Defendants engaged in any of the alleged actions set forth in Plaintiff’s Complaint, such actions 23 were taken in good faith, for legitimate, non-discriminatory business reasons and/or as a result of 24 business necessity. 25 THIRTY-FIRST AFFIRMATIVE DEFENSE 26 (No Reasonable Basis for Claims—All Causes of Action) 27 Plaintiff knew or should have known that his claims are without any reasonable basis in 28 law and equity and cannot be supported by a good faith argument for extension, modification or -7- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 reversal of existing law. As a result of Plaintiff’s filing of this lawsuit, Defendants have been 2 required to obtain the services of the undersigned attorneys and have and will continue to incur 3 substantial costs and attorneys’ fees in defense of this frivolous case. Defendants are therefore 4 entitled to recover reasonable attorneys’ fees, expenses, and costs incurred by and through this 5 action in accordance with California Code of Civil Procedure section 128.5. 6 THIRTY-SECOND AFFIRMATIVE DEFENSE 7 (Undue Hardship—All Causes of Action) 8 Plaintiff’s Complaint, and each cause of action attempted to be stated therein, is barred 9 because Plaintiff’s alleged disability could not be accommodated without undue hardship to 10 Defendants. 11 THIRTY-THIRD AFFIRMATIVE DEFENSE 12 (Interactive Process Breakdown—All Causes of Action) 13 Plaintiff’s Complaint, and each cause of action attempted to be stated therein, is barred 14 because Defendants had no duty to engage in the interactive process with Plaintiff never engaged 15 Defendants in the interactive process. 16 THIRTY-FOURTH AFFIRMATIVE DEFENSE 17 (Same Decision—All Causes of Action) 18 Plaintiff’s remedies are limited and/or liability is precluded because Defendants would 19 have taken the same action in the absence of the alleged impermissible motivating factor(s). 20 THIRTY-FIFTH AFFIRMATIVE DEFENSE 21 (After-Acquired Evidence—All Causes of Action) 22 Plaintiff’s claims for damages are barred to the extent he engaged in any fraud or 23 misconduct of which Defendants were unaware until after Plaintiff filed suit, and which, if known 24 would have caused Plaintiff to be terminated or not hired in the first place. 25 /// 26 /// 27 /// 28 /// -8- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 THIRTY-SIXTH AFFIRMATIVE DEFENSE 2 (Reasonable Care to Prevent and Correct—All Causes of Action) 3 Plaintiff’s Complaint is barred, in whole or in part, because Defendants exercised 4 reasonable care to prevent and correct promptly any alleged discriminatory and/or retaliatory 5 conduct, if any. 6 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 7 (Right to Raise Other Defenses) 8 Defendants hereby give notice that they intend to rely upon such other and further 9 affirmative defenses as may become available during discovery in this action and Defendants 10 reserve the right to amend this Answer to assert any such defenses. 11 PRAYER 12 Wherefore, Defendants pray for judgment as follows: 13 1. That Plaintiff takes nothing by his Complaint; 14 2. That judgment be entered in favor of Defendants and against Plaintiff on all causes 15 of action; 16 3. That Defendants be awarded reasonable attorneys’ fees according to proof; 17 4. That Defendants be awarded the costs of suit incurred herein; and 18 5. That Defendants be awarded such other and further relief as the Court may deem 19 appropriate. 20 Dated: December 4, 2020 MEDINA McKELVEY LLP 21 22 By:___________________________________ 23 CAITLIN E. KAUFMAN 24 Attorneys for Defendants STORER TRANSPORTATION SERVICE; STORER 25 TRANSIT SYSTEMS 26 27 28 -9- DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Medina McKelvey LLP, 983 Reserve Drive, Roseville, 3 California 95678. On December 4, 2020, I served the following document(s): 4 DEFENDANTS STORER TRANSPORTATION SERVICE AND STORER TRANSIT 5 SYSTEMS’ ANSWER TO COMPLAINT 6 X (BY EMAIL) I caused an email to be sent to the email address listed below. 7 (BY OVERNIGHT DELIVERY) I place each such sealed envelope, with delivery fees provided for, for collection and overnight delivery at Medina McKelvey LLP, Roseville, 8 California, following ordinary business practices. I am readily familiar with the practice of 9 Medina McKelvey LLP’s collection and processing of correspondence for overnight delivery, said practice being that in the ordinary course of business, correspondence is 10 deposited in the facility regularly maintained by the express services carrier the same day as it is placed for collection. 11 (BY U.S. MAIL) I placed the document listed above in a sealed envelope with postage thereon 12 fully prepaid, in the United States mail at Roseville, California addressed as set forth below. I am 13 readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 14 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage 15 meter date is more than one day after date of deposit for mailing in affidavit. 16 Christopher W. Taylor, Esq. 17 Parham Barkhordar, Esq. Taylor H. White, Esq. 18 Philip Horlacher, Esq. Taylor Labor Law, P.C. 19 80 S. Lake Avenue, Suite 860 Pasadena, California 91101 20 Ph: (626) 219-6008 21 Fax: (626) 219-6009 Email: chris@taylorlaborlaw.com 22 Email: parham@taylorlaborlaw.com Email: taylor@taylorlaborlaw.com 23 Email: phil@taylorlaborlaw.com 24 Attorneys for Plaintiff David Gordon 25 I declare under the penalty of perjury under the laws of the State of California that the above is true and correct. 26 Executed on December 4, 2020, at Roseville, California. 27 _____________________________________ 28 Andrew Sayre - 10 - DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT