Preview
JODY A. LANDRY, Bar No. 125743 Electronically Filed
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jlandry@littler.com 12/18/2020 9:59 AM
2 KRYSTAL N. WEAVER, Bar No. 286930 Superior Court of California
kweaver@littler.com County of Stanislaus
3 LITTLER MENDELSON, P.C. Clerk of the Court
501 W. Broadway By: Lori Salazar, Deputy
4 Suite 900
San Diego, CA 92101.3577
5 Telephone: 619.232.0441
Fax No.: 619.232.4302
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Attorneys for Defendant
7 ONEMAIN GENERAL SERVICES
CORPORATION
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9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF STANISLAUS
11 RACHEL LATIN, an individual, on behalf Case No. CV-20-002498
of herself, and on behalf of all persons
12 similarly situated, ASSIGNED FOR ALL PURPOSES TO JUDGE
STACY SPEILLER, DEPT 22
13 Plaintiffs,
DEFENDANT’S ANSWER TO
14 v. PLAINTIFF'S SECOND AMENDED
COMPLAINT
15 ONEMAIN GENERAL SERVICES
CORPORATION, a Delaware
16 Corporation; and DOES 1 through 50,
Inclusive,
17 Trial Date: Not Set
Defendants. Complaint Filed: June 8, 2020
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LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 Defendant ONEMAIN GENERAL SERVICES CORPORATION (“Defendant”) hereby
2 answers Plaintiff RACHEL LATIN’S (“Plaintiff”) unverified representative action Private Attorney
3 General Act Second Amended Complaint (“Complaint”) as follows:
4 GENERAL DENIAL
5 Pursuant to the provisions of Code of Civil Procedure section 431.30, Defendant denies
6 generally and specifically, each and every allegation contained in Plaintiff’s Complaint, and further
7 denies that Plaintiff or other allegedly “aggrieved” employees are entitled to penalties, attorneys’ fees,
8 prejudgment interest, costs of suit, or any other relief of any kind whatsoever under the Private
9 Attorney General’s Act (“PAGA”) as alleged in the Complaint.
10 AFFIRMATIVE DEFENSES
11 Defendant further asserts the following affirmative defenses. By asserting these defenses,
12 Defendant does not concede that it has the burden of production or proof as to any affirmative defense
13 asserted below. Moreover, Defendant has not yet had the opportunity to engage in discovery and has
14 not yet completed its investigation of this case. Therefore, Defendant reserves the right to seek leave
15 of Court to amend this Answer should it later discover facts demonstrating the existence of additional
16 affirmative defenses.
17 FIRST AFFIRMATIVE DEFENSE
18 (Failure to State a Claim)
19 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each
20 and every alleged cause of action therein, fails to state facts sufficient to constitute a claim upon which
21 relief can be granted and/or fails to allege the underlying purported Labor Code violations with
22 sufficient specificity.
23 SECOND AFFIRMATIVE DEFENSE
24 (Lack of Standing)
25 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is
26 barred, in whole or in part, because Plaintiff and some, or all, of the alleged “aggrieved employees”
27 Plaintiff seeks to represent lack standing.
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LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
2
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 THIRD AFFIRMATIVE DEFENSE
2 (Arbitration)
3 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each
4 and every cause of action alleged therein, fails, in whole or in part, to the extent Plaintiff, and/or some
5 or all of the alleged “aggrieved employees” contracted to submit all claims against Defendant to
6 binding arbitration, and, therefore, their exclusive remedy is through final and binding arbitration.
7 FOURTH AFFIRMATIVE DEFENSE
8 (Laches, Unclean Hands, Waiver and/or Estoppel)
9 As a separate and distinct affirmative defense, Defendant alleges that the Complaint is barred,
10 in whole or in part, by the equitable doctrines of laches, unclean hands, waiver and/or estoppel.
11 FIFTH AFFIRMATIVE DEFENSE
12 (Statute of Limitations)
13 As a separate and distinct affirmative defense, Defendant is informed and believes, and on that
14 basis alleges, that Plaintiff’s Complaint is barred, in whole or in part, by the applicable statutes of
15 limitations, including but not limited to California Code of Civil Procedure section 340, California
16 Labor Code section 2699.3, and the relevant limitation periods applying to Plaintiff’s underlying Labor
17 Code claims.
18 SIXTH AFFIRMATIVE DEFENSE
19 (Accord and Satisfaction)
20 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each
21 and every cause of action alleged therein, is barred, in whole or in part, by the doctrines of accord and
22 satisfaction, to the extent that Plaintiff, and/or some or all alleged “aggrieved employees” have
23 received, or will receive, compensation for any outstanding wages, penalties, and/or damages
24 purportedly due.
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LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
3
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 SEVENTH AFFIRMATIVE DEFENSE
2 (Discharge)
3 As a separate and distinct affirmative defense, Defendant alleges that to the extent Defendant
4 owed any duties or obligations to Plaintiff or any of the employees she seeks to represent, such duties
5 or obligations have been fully performed, satisfied or discharged.
6 EIGHTH AFFIRMATIVE DEFENSE
7 (Failure to Exhaust Internal Remedies)
8 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is
9 barred, in whole or in part, because Plaintiff and/or the alleged aggrieved employees (hereinafter
10 collectively referred to as “the employees she seeks to represent”) have failed to exhaust internal
11 remedies as required by and/or made available by Defendant.
12 NINTH AFFIRMATIVE DEFENSE
13 (Waiver – Meal or Rest Breaks)
14 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is
15 barred on the grounds, and to the extent, that she and/or some or all employees she seeks to represent
16 (1) failed to take meal or rest breaks that were provided to her/them in compliance with California
17 law, (2) chose not to take meal or rest breaks that were authorized and permitted, or (3) waived
18 her/their right to meal breaks.
19 TENTH AFFIRMATIVE DEFENSE
20 (Expenses Not Reasonably Necessary or Required)
21 As a separate and distinct affirmative defense, Defendant alleges that any claims for civil
22 penalties pursuant to Labor Code section 2802 are barred, in whole or in part, because the expenses
23 claimed were not reasonably necessary/required for job and/or were not incurred in direct consequence
24 of the discharge of their duties.
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LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
4
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 ELEVENTH AFFIRMATIVE DEFENSE
2 (Waiting Time Penalties – Good Faith Dispute)
3 As a separate and distinct affirmative defense, Defendant alleges that any claims for PAGA
4 penalties pursuant to Labor Code section 203 are barred, in whole or in part, because a good faith
5 dispute exists over whether wages are owed.
6 TWELFTH AFFIRMATIVE DEFENSE
7 (No Injury)
8 As a separate and distinct affirmative defense, Defendant alleges Plaintiff’s First Amended
9 Complaint is barred, in whole or in part, because Plaintiff and the allegedly-aggrieved employees
10 Plaintiff seeks to represent have not suffered any injury from Defendant’s actions or failure to act.
11 THIRTEENTH AFFIRMATIVE DEFENSE
12 (Acts or Omissions)
13 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each
14 and every cause of action alleged therein, cannot be maintained against Defendant because the alleged
15 losses or harms sustained, if any, resulted from the acts or omissions of Plaintiff, and/or some or all of
16 the alleged “aggrieved employees.”
17 FOURTEENTH AFFIRMATIVE DEFENSE
18 (Accurate Wage Statements)
19 As a separate and distinct affirmative defense, Defendant alleges that any underlying claims
20 for PAGA penalties pursuant to Labor Code section 226 are barred, in whole or in part, because
21 Plaintiff’s wage statements and those of the employees she seeks to represent accurately reported the
22 hours and rates in effect at the time they were issued, and thus, Plaintiff’s wage statement claim fails
23 under Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal. App. 5th 1308.
24 FIFTEENTH AFFIRMATIVE DEFENSE
25 (Substantial Compliance)
26 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims are
27 barred, in whole or in part, because Defendant substantially complied with all applicable laws, statutes,
28 regulations, and applicable Wage Orders.
LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
5
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 (No Wage Recovery)
3 As a separate and distinct affirmative defense, Defendant alleges that to the extent Plaintiff’s
4 Complaint asserts a claim for unpaid wages, Plaintiff cannot recover wages in a PAGA action based
5 on the decision in Lawson v. ZB (2019) 8 Cal. 5th 175.
6 SEVENTEENTH AFFIRMATIVE DEFENSE
7 (Bona Fide Dispute)
8 As a separate and distinct affirmative defense, Defendant alleges that it paid Plaintiff and the
9 employees she seeks to represent all wages and expense reimbursements owed to them within the
10 appropriate time period and further alleges there is a bona fide dispute as to whether any additional
11 compensation or reimbursement is actually due to Plaintiff and/or the employees she seeks to
12 represent, and if so, the amount due.
13 EIGHTEENTH AFFIRMATIVE DEFENSE
14 (Avoidable Consequences)
15 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint,
16 and each and every claim alleged therein, is barred, or recovery should be reduced, pursuant to the
17 doctrine of avoidable consequences.
18 NINETEENTH AFFIRMATIVE DEFENSE
19 (De Minimis)
20 As a separate and distinct affirmative defense, Defendant alleges that some or all of the
21 amounts claimed by Plaintiff or the employees she seek to represent are de minimis and thus, not
22 compensable, even under the revised guidance provided in Troester v. Starbucks Corp. (2018) 5 Cal.
23 5th 829.
24 TWENTIETH AFFIRMATIVE DEFENSE
25 (PAGA—Representative Action Inappropriate)
26 As a separate and distinct affirmative defense, Defendant alleges that the claims asserted by
27 Plaintiff on behalf of herself and the employees she seeks to represent cannot be tried on a
28 representative basis under PAGA because: (1) resolution of each alleged Labor Code and/or Wage
LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
6
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 Order violation requires complex individualized factual determinations; (2) penalties could not be
2 calculated on a representative basis; (3) any penalties that might be proved would not be identical for
3 all allegedly aggrieved employees; (4) trying such a representative action would be unmanageable;
4 and (5) trying such a representative action would be contrary to the legislative intent of the PAGA.
5 TWENTY-FIRST AFFIRMATIVE DEFENSE
6 (PAGA – Failure to Exhaust)
7 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is
8 barred, in whole or in part, based on Plaintiff’s failure to comply with the pre-filing notice and
9 exhaustion requirements set forth in California Labor Code section 2699.3, or any other provision of
10 the California Labor Code. Plaintiff failed to provide the Labor Workforce Development Agency
11 (“LWDA”) sufficient notice of her claims, the identity of the “aggrieved employees” on whose behalf
12 she intended to seek penalties, and/or the facts and theories underlying her claims to permit the LWDA
13 to make a reasoned determination regarding whether to investigate Plaintiff’s claims.
14 TWENTY-SECOND AFFIRMATIVE DEFENSE
15 (PAGA – Claims Exceed Scope of Notice)
16 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Amended
17 Complaint is barred, in whole or in part, because assuming arguendo that Plaintiff did exhaust her
18 administrative remedies with the LWDA, the Labor Code and /or Wage Order violations asserted in
19 the First Amended Complaint exceed the scope of the Labor Code and Wage Order violations
20 identified in Plaintiff’s notice to the LWDA.
21 TWENTY-THIRD AFFIRMATIVE DEFENSE
22 (PAGA—Unconstitutional; Excessive Fines and Punishment)
23 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is
24 barred, in whole or in part, because an award of penalties would result in the imposition of excessive
25 fines in violation of the Eighth and Fourteenth Amendments of the United States Constitution and
26 Article 1, §§ 7 and 8 of the California Constitution, including the prohibition against excessive fines
27 and punishment. See Timbs v. Indiana (U.S. Feb. 20, 2019) 138 S.Ct. 682, 689 (Excessive Fines
28 Clause of the Eighth Amendment prohibits the government from imposing “excessive fines” as
LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
7
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 punishment); United States v. Mackby (9th Cir. 2001) 261 F.3d 821, 830 (civil sanctions under False
2 Claims Act should be analyzed under “the Excessive Fines Clause because the sanctions represent a
3 payment to the government, at least in part, as punishment.”); City & Cty. of San Francisco v. Sainez
4 (2000) 77 Cal. App.4th 1302, 1321 (applying the prohibition of excessive fines to penalties imposed
5 under California’s Building Code: “The law is settled that a civil penalty such as the one here, by
6 virtue of its partially punitive purpose, is a fine for purposes of the constitutional protection.”).
7 TWENTY-FOURTH AFFIRMATIVE DEFENSE
8 (PAGA—Unconstitutional; Violates Due Process)
9 As a separate and distinct affirmative defense, Defendant alleges that the prosecution of a
10 representative action under the PAGA based upon the facts and circumstances alleged in support of
11 Plaintiff’s Complaint would be an unconstitutional denial of Defendant’s rights contained in the
12 California and United States Constitutions, including, but not limited to, the due process clause of the
13 Fourteenth Amendment to the United States Constitution, and Article I, Section 7 of the California
14 Constitution. See State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408
15 (2003); People ex. rel. Lockyer v. R.J. Reynolds, 37 Cal. 4th 707 (2005).
16 TWENTY-FIFTH AFFIRMATIVE DEFENSE
17 (PAGA—Unconstitutional; Equal Protection)
18 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is
19 barred, in whole or in part, because the prosecution of this matter as a representative action under
20 PAGA, and/or an award of penalties pursuant to the PAGA, would violate the Equal Protection Clause
21 of the United States and California Constitutions, as it arbitrarily and unjustly exempts some
22 employers to the exclusion of others. See Cal. Labor Code § 2699.6.
23 TWENTY-SIXTH AFFIRMATIVE DEFENSE
24 (LWDA Retains Authority to Investigate Future Violations)
25 As a separate and distinct affirmative defense, Defendant alleges that the civil penalties sought
26 by Plaintiff for alleged Labor Code violations occurring after the date of the “written notice” provided
27 by Plaintiff to the LWDA pursuant to Labor Code § 2699.3 are barred because the LWDA, and its
28 departments, divisions, commissions, boards, agencies, or employees retain their primary and
LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
8
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 exclusive authority to investigate and cite a “person” (as defined by the PAGA) for future violations
2 not disclosed by alleged aggrieved employees in the administrative exhaustion process required by the
3 PAGA.
4 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
5 (Penalties for Future Violations Barred – Qui Tam, Lacks Governmental Oversight)
6 As a separate and distinct affirmative defense, Defendant alleges that the civil penalties sought
7 by Plaintiff for alleged Labor Code violations occurring after the date of the “written notice” provided
8 by Plaintiff to the LWDA pursuant to Labor Code § 2699.3 are barred because a representative PAGA
9 action, to the extent it is a qui tam action, lacks governmental oversight of the action that is provided
10 in other types of qui tam actions such as the California False Claims Act, justifying the recovery for
11 future violations under the False Claims Act by qui tam plaintiffs.
12 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
13 (No Jury Trial)
14 As a separate and distinct affirmative defense, Defendant alleges that neither Plaintiff nor any
15 of the employees she seeks to represent are entitled to a jury trial because a claim under PAGA is an
16 action solely seeking PAGA penalties, which sounds in equity and thus may only be tried to a court.
17 ADDITIONAL AFFIRMATIVE DEFENSES
18 As a separate and distinct affirmative defense, Defendant states that it does not presently know
19 all facts concerning the conduct of Plaintiff and her claims sufficient to state all affirmative defenses
20 at this time. Defendant reserves the right to seek to amend this Answer should it later discover facts
21 demonstrating the existence of additional affirmative defenses.
22 PRAYER FOR RELIEF
23 WHEREFORE, Defendant prays for judgment from this Court as follows:
24 1. Plaintiff take nothing by this action;
25 2. That the Complaint be dismissed with prejudice and that judgment be entered against
26 Plaintiff and in favor of Defendant on each claim;
27 3. That Defendant be awarded its attorneys’ fees and costs of suit herein to the extent
28 permitted under applicable law; and
LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
9
San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 4. Such other and further relief as the Court deems appropriate.
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3 Dated: December 18, 2020
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JODY A. LANDRY
5 KRYSTAL N. WEAVER
LITTLER MENDELSON, P.C.
6 Attorneys for Defendant
ONEMAIN GENERAL SERVICES
7 CORPORATION
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4842-8015-7652.1 108624.1001
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LITTLER M ENDELSON, P.C.
501 W. Broadway
Suite 900
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San Diego, CA 92101.3577
619.232.0441
DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
Preview
JODY A. LANDRY, Bar No. 125743 Electronically Filed 1 jlandry@littler.com 12/18/2020 9:59 AM 2 KRYSTAL N. WEAVER, Bar No. 286930 Superior Court of California kweaver@littler.com County of Stanislaus 3 LITTLER MENDELSON, P.C. Clerk of the Court 501 W. Broadway By: Lori Salazar, Deputy 4 Suite 900 San Diego, CA 92101.3577 5 Telephone: 619.232.0441 Fax No.: 619.232.4302 6 Attorneys for Defendant 7 ONEMAIN GENERAL SERVICES CORPORATION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF STANISLAUS 11 RACHEL LATIN, an individual, on behalf Case No. CV-20-002498 of herself, and on behalf of all persons 12 similarly situated, ASSIGNED FOR ALL PURPOSES TO JUDGE STACY SPEILLER, DEPT 22 13 Plaintiffs, DEFENDANT’S ANSWER TO 14 v. PLAINTIFF'S SECOND AMENDED COMPLAINT 15 ONEMAIN GENERAL SERVICES CORPORATION, a Delaware 16 Corporation; and DOES 1 through 50, Inclusive, 17 Trial Date: Not Set Defendants. Complaint Filed: June 8, 2020 18 19 20 21 22 23 24 25 26 27 28 LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 Defendant ONEMAIN GENERAL SERVICES CORPORATION (“Defendant”) hereby 2 answers Plaintiff RACHEL LATIN’S (“Plaintiff”) unverified representative action Private Attorney 3 General Act Second Amended Complaint (“Complaint”) as follows: 4 GENERAL DENIAL 5 Pursuant to the provisions of Code of Civil Procedure section 431.30, Defendant denies 6 generally and specifically, each and every allegation contained in Plaintiff’s Complaint, and further 7 denies that Plaintiff or other allegedly “aggrieved” employees are entitled to penalties, attorneys’ fees, 8 prejudgment interest, costs of suit, or any other relief of any kind whatsoever under the Private 9 Attorney General’s Act (“PAGA”) as alleged in the Complaint. 10 AFFIRMATIVE DEFENSES 11 Defendant further asserts the following affirmative defenses. By asserting these defenses, 12 Defendant does not concede that it has the burden of production or proof as to any affirmative defense 13 asserted below. Moreover, Defendant has not yet had the opportunity to engage in discovery and has 14 not yet completed its investigation of this case. Therefore, Defendant reserves the right to seek leave 15 of Court to amend this Answer should it later discover facts demonstrating the existence of additional 16 affirmative defenses. 17 FIRST AFFIRMATIVE DEFENSE 18 (Failure to State a Claim) 19 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each 20 and every alleged cause of action therein, fails to state facts sufficient to constitute a claim upon which 21 relief can be granted and/or fails to allege the underlying purported Labor Code violations with 22 sufficient specificity. 23 SECOND AFFIRMATIVE DEFENSE 24 (Lack of Standing) 25 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is 26 barred, in whole or in part, because Plaintiff and some, or all, of the alleged “aggrieved employees” 27 Plaintiff seeks to represent lack standing. 28 LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 2 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 (Arbitration) 3 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each 4 and every cause of action alleged therein, fails, in whole or in part, to the extent Plaintiff, and/or some 5 or all of the alleged “aggrieved employees” contracted to submit all claims against Defendant to 6 binding arbitration, and, therefore, their exclusive remedy is through final and binding arbitration. 7 FOURTH AFFIRMATIVE DEFENSE 8 (Laches, Unclean Hands, Waiver and/or Estoppel) 9 As a separate and distinct affirmative defense, Defendant alleges that the Complaint is barred, 10 in whole or in part, by the equitable doctrines of laches, unclean hands, waiver and/or estoppel. 11 FIFTH AFFIRMATIVE DEFENSE 12 (Statute of Limitations) 13 As a separate and distinct affirmative defense, Defendant is informed and believes, and on that 14 basis alleges, that Plaintiff’s Complaint is barred, in whole or in part, by the applicable statutes of 15 limitations, including but not limited to California Code of Civil Procedure section 340, California 16 Labor Code section 2699.3, and the relevant limitation periods applying to Plaintiff’s underlying Labor 17 Code claims. 18 SIXTH AFFIRMATIVE DEFENSE 19 (Accord and Satisfaction) 20 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each 21 and every cause of action alleged therein, is barred, in whole or in part, by the doctrines of accord and 22 satisfaction, to the extent that Plaintiff, and/or some or all alleged “aggrieved employees” have 23 received, or will receive, compensation for any outstanding wages, penalties, and/or damages 24 purportedly due. 25 /// 26 /// 27 /// 28 LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 3 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Discharge) 3 As a separate and distinct affirmative defense, Defendant alleges that to the extent Defendant 4 owed any duties or obligations to Plaintiff or any of the employees she seeks to represent, such duties 5 or obligations have been fully performed, satisfied or discharged. 6 EIGHTH AFFIRMATIVE DEFENSE 7 (Failure to Exhaust Internal Remedies) 8 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is 9 barred, in whole or in part, because Plaintiff and/or the alleged aggrieved employees (hereinafter 10 collectively referred to as “the employees she seeks to represent”) have failed to exhaust internal 11 remedies as required by and/or made available by Defendant. 12 NINTH AFFIRMATIVE DEFENSE 13 (Waiver – Meal or Rest Breaks) 14 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is 15 barred on the grounds, and to the extent, that she and/or some or all employees she seeks to represent 16 (1) failed to take meal or rest breaks that were provided to her/them in compliance with California 17 law, (2) chose not to take meal or rest breaks that were authorized and permitted, or (3) waived 18 her/their right to meal breaks. 19 TENTH AFFIRMATIVE DEFENSE 20 (Expenses Not Reasonably Necessary or Required) 21 As a separate and distinct affirmative defense, Defendant alleges that any claims for civil 22 penalties pursuant to Labor Code section 2802 are barred, in whole or in part, because the expenses 23 claimed were not reasonably necessary/required for job and/or were not incurred in direct consequence 24 of the discharge of their duties. 25 /// 26 /// 27 /// 28 LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 4 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 ELEVENTH AFFIRMATIVE DEFENSE 2 (Waiting Time Penalties – Good Faith Dispute) 3 As a separate and distinct affirmative defense, Defendant alleges that any claims for PAGA 4 penalties pursuant to Labor Code section 203 are barred, in whole or in part, because a good faith 5 dispute exists over whether wages are owed. 6 TWELFTH AFFIRMATIVE DEFENSE 7 (No Injury) 8 As a separate and distinct affirmative defense, Defendant alleges Plaintiff’s First Amended 9 Complaint is barred, in whole or in part, because Plaintiff and the allegedly-aggrieved employees 10 Plaintiff seeks to represent have not suffered any injury from Defendant’s actions or failure to act. 11 THIRTEENTH AFFIRMATIVE DEFENSE 12 (Acts or Omissions) 13 As a separate and distinct affirmative defense, Defendant alleges that the Complaint, and each 14 and every cause of action alleged therein, cannot be maintained against Defendant because the alleged 15 losses or harms sustained, if any, resulted from the acts or omissions of Plaintiff, and/or some or all of 16 the alleged “aggrieved employees.” 17 FOURTEENTH AFFIRMATIVE DEFENSE 18 (Accurate Wage Statements) 19 As a separate and distinct affirmative defense, Defendant alleges that any underlying claims 20 for PAGA penalties pursuant to Labor Code section 226 are barred, in whole or in part, because 21 Plaintiff’s wage statements and those of the employees she seeks to represent accurately reported the 22 hours and rates in effect at the time they were issued, and thus, Plaintiff’s wage statement claim fails 23 under Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal. App. 5th 1308. 24 FIFTEENTH AFFIRMATIVE DEFENSE 25 (Substantial Compliance) 26 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims are 27 barred, in whole or in part, because Defendant substantially complied with all applicable laws, statutes, 28 regulations, and applicable Wage Orders. LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 5 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 (No Wage Recovery) 3 As a separate and distinct affirmative defense, Defendant alleges that to the extent Plaintiff’s 4 Complaint asserts a claim for unpaid wages, Plaintiff cannot recover wages in a PAGA action based 5 on the decision in Lawson v. ZB (2019) 8 Cal. 5th 175. 6 SEVENTEENTH AFFIRMATIVE DEFENSE 7 (Bona Fide Dispute) 8 As a separate and distinct affirmative defense, Defendant alleges that it paid Plaintiff and the 9 employees she seeks to represent all wages and expense reimbursements owed to them within the 10 appropriate time period and further alleges there is a bona fide dispute as to whether any additional 11 compensation or reimbursement is actually due to Plaintiff and/or the employees she seeks to 12 represent, and if so, the amount due. 13 EIGHTEENTH AFFIRMATIVE DEFENSE 14 (Avoidable Consequences) 15 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint, 16 and each and every claim alleged therein, is barred, or recovery should be reduced, pursuant to the 17 doctrine of avoidable consequences. 18 NINETEENTH AFFIRMATIVE DEFENSE 19 (De Minimis) 20 As a separate and distinct affirmative defense, Defendant alleges that some or all of the 21 amounts claimed by Plaintiff or the employees she seek to represent are de minimis and thus, not 22 compensable, even under the revised guidance provided in Troester v. Starbucks Corp. (2018) 5 Cal. 23 5th 829. 24 TWENTIETH AFFIRMATIVE DEFENSE 25 (PAGA—Representative Action Inappropriate) 26 As a separate and distinct affirmative defense, Defendant alleges that the claims asserted by 27 Plaintiff on behalf of herself and the employees she seeks to represent cannot be tried on a 28 representative basis under PAGA because: (1) resolution of each alleged Labor Code and/or Wage LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 6 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 Order violation requires complex individualized factual determinations; (2) penalties could not be 2 calculated on a representative basis; (3) any penalties that might be proved would not be identical for 3 all allegedly aggrieved employees; (4) trying such a representative action would be unmanageable; 4 and (5) trying such a representative action would be contrary to the legislative intent of the PAGA. 5 TWENTY-FIRST AFFIRMATIVE DEFENSE 6 (PAGA – Failure to Exhaust) 7 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is 8 barred, in whole or in part, based on Plaintiff’s failure to comply with the pre-filing notice and 9 exhaustion requirements set forth in California Labor Code section 2699.3, or any other provision of 10 the California Labor Code. Plaintiff failed to provide the Labor Workforce Development Agency 11 (“LWDA”) sufficient notice of her claims, the identity of the “aggrieved employees” on whose behalf 12 she intended to seek penalties, and/or the facts and theories underlying her claims to permit the LWDA 13 to make a reasoned determination regarding whether to investigate Plaintiff’s claims. 14 TWENTY-SECOND AFFIRMATIVE DEFENSE 15 (PAGA – Claims Exceed Scope of Notice) 16 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Amended 17 Complaint is barred, in whole or in part, because assuming arguendo that Plaintiff did exhaust her 18 administrative remedies with the LWDA, the Labor Code and /or Wage Order violations asserted in 19 the First Amended Complaint exceed the scope of the Labor Code and Wage Order violations 20 identified in Plaintiff’s notice to the LWDA. 21 TWENTY-THIRD AFFIRMATIVE DEFENSE 22 (PAGA—Unconstitutional; Excessive Fines and Punishment) 23 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is 24 barred, in whole or in part, because an award of penalties would result in the imposition of excessive 25 fines in violation of the Eighth and Fourteenth Amendments of the United States Constitution and 26 Article 1, §§ 7 and 8 of the California Constitution, including the prohibition against excessive fines 27 and punishment. See Timbs v. Indiana (U.S. Feb. 20, 2019) 138 S.Ct. 682, 689 (Excessive Fines 28 Clause of the Eighth Amendment prohibits the government from imposing “excessive fines” as LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 7 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 punishment); United States v. Mackby (9th Cir. 2001) 261 F.3d 821, 830 (civil sanctions under False 2 Claims Act should be analyzed under “the Excessive Fines Clause because the sanctions represent a 3 payment to the government, at least in part, as punishment.”); City & Cty. of San Francisco v. Sainez 4 (2000) 77 Cal. App.4th 1302, 1321 (applying the prohibition of excessive fines to penalties imposed 5 under California’s Building Code: “The law is settled that a civil penalty such as the one here, by 6 virtue of its partially punitive purpose, is a fine for purposes of the constitutional protection.”). 7 TWENTY-FOURTH AFFIRMATIVE DEFENSE 8 (PAGA—Unconstitutional; Violates Due Process) 9 As a separate and distinct affirmative defense, Defendant alleges that the prosecution of a 10 representative action under the PAGA based upon the facts and circumstances alleged in support of 11 Plaintiff’s Complaint would be an unconstitutional denial of Defendant’s rights contained in the 12 California and United States Constitutions, including, but not limited to, the due process clause of the 13 Fourteenth Amendment to the United States Constitution, and Article I, Section 7 of the California 14 Constitution. See State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 15 (2003); People ex. rel. Lockyer v. R.J. Reynolds, 37 Cal. 4th 707 (2005). 16 TWENTY-FIFTH AFFIRMATIVE DEFENSE 17 (PAGA—Unconstitutional; Equal Protection) 18 As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s Complaint is 19 barred, in whole or in part, because the prosecution of this matter as a representative action under 20 PAGA, and/or an award of penalties pursuant to the PAGA, would violate the Equal Protection Clause 21 of the United States and California Constitutions, as it arbitrarily and unjustly exempts some 22 employers to the exclusion of others. See Cal. Labor Code § 2699.6. 23 TWENTY-SIXTH AFFIRMATIVE DEFENSE 24 (LWDA Retains Authority to Investigate Future Violations) 25 As a separate and distinct affirmative defense, Defendant alleges that the civil penalties sought 26 by Plaintiff for alleged Labor Code violations occurring after the date of the “written notice” provided 27 by Plaintiff to the LWDA pursuant to Labor Code § 2699.3 are barred because the LWDA, and its 28 departments, divisions, commissions, boards, agencies, or employees retain their primary and LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 8 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 exclusive authority to investigate and cite a “person” (as defined by the PAGA) for future violations 2 not disclosed by alleged aggrieved employees in the administrative exhaustion process required by the 3 PAGA. 4 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 5 (Penalties for Future Violations Barred – Qui Tam, Lacks Governmental Oversight) 6 As a separate and distinct affirmative defense, Defendant alleges that the civil penalties sought 7 by Plaintiff for alleged Labor Code violations occurring after the date of the “written notice” provided 8 by Plaintiff to the LWDA pursuant to Labor Code § 2699.3 are barred because a representative PAGA 9 action, to the extent it is a qui tam action, lacks governmental oversight of the action that is provided 10 in other types of qui tam actions such as the California False Claims Act, justifying the recovery for 11 future violations under the False Claims Act by qui tam plaintiffs. 12 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 13 (No Jury Trial) 14 As a separate and distinct affirmative defense, Defendant alleges that neither Plaintiff nor any 15 of the employees she seeks to represent are entitled to a jury trial because a claim under PAGA is an 16 action solely seeking PAGA penalties, which sounds in equity and thus may only be tried to a court. 17 ADDITIONAL AFFIRMATIVE DEFENSES 18 As a separate and distinct affirmative defense, Defendant states that it does not presently know 19 all facts concerning the conduct of Plaintiff and her claims sufficient to state all affirmative defenses 20 at this time. Defendant reserves the right to seek to amend this Answer should it later discover facts 21 demonstrating the existence of additional affirmative defenses. 22 PRAYER FOR RELIEF 23 WHEREFORE, Defendant prays for judgment from this Court as follows: 24 1. Plaintiff take nothing by this action; 25 2. That the Complaint be dismissed with prejudice and that judgment be entered against 26 Plaintiff and in favor of Defendant on each claim; 27 3. That Defendant be awarded its attorneys’ fees and costs of suit herein to the extent 28 permitted under applicable law; and LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 9 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 4. Such other and further relief as the Court deems appropriate. 2 3 Dated: December 18, 2020 4 JODY A. LANDRY 5 KRYSTAL N. WEAVER LITTLER MENDELSON, P.C. 6 Attorneys for Defendant ONEMAIN GENERAL SERVICES 7 CORPORATION 8 4842-8015-7652.1 108624.1001 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER M ENDELSON, P.C. 501 W. Broadway Suite 900 10 San Diego, CA 92101.3577 619.232.0441 DEFENDANT’S ANSWER TO PLAINTIFF’S SECOND AMENDED COMPLAINT