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ELECTRONICALLY FILED
1 HELENE WASSERMAN, Bar No. 130134 Superior Court of California
SHANNON R. BOYCE, Bar No. 229041 County of Santa Barbara
2 KENNELL M. SAMBOUR, Bar No. 325386 Darrel E. Parker, Executive Officer
LITTLER MENDELSON, P.C. 4/6/2020 9:59 AM
3 2049 Century Park East By: Narzralli Baksh, Deputy
5th Floor
4 Los Angeles, CA 90067.3107
Telephone: 310.553.0308
5 Fax No.: 310.553.5583
6 Attorneys for Defendant
TRADER JOE’S COMPANY
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SANTA BARBARA
10 VICTORIA TICE, as an individual and on Case No. 20CV00892
behalf of all others similarly situated,
11 CLASS ACTION
Plaintiff,
12 DEFENDANT TRADER JOE’S COMPANY’S
v. ANSWER TO PLAINTIFF VICTORIA
13 TICE’S UNVERIFIED CLASS AND
TRADER JOE’S COMPANY, a California REPRESENTATIVE ACTION COMPLAINT
14 corporation; and DOES 1 through 50, FOR DAMAGES
inclusive,
15 ASSIGNED FOR ALL PURPOSES TO JUDGE
Defendant. THOMAS P. ANDERLE, DEPT. 3
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17 Trial Date: Not set
Complaint Filed: February 14, 2020
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 Defendant TRADER JOE’S COMPANY, by and through its attorneys, hereby answers the
2 unverified Class and Representative Action Complaint for Damages (“Complaint”) of Plaintiff,
3 VICTORIA TICE (on behalf of herself and others similarly situated) as set forth below:
4 GENERAL DENIAL
5 Pursuant to section 431.30(d) of the California Code of Civil Procedure, Defendant hereby
6 answers Plaintiff’s unverified Complaint by generally denying each and every allegation contained
7 therein, by denying Plaintiff has been damaged or has sustained any damages as a result of the conduct
8 alleged therein, and by asserting the following separate and distinct defenses.
9 AFFIRMATIVE DEFENSES
10 Defendant asserts the following affirmative and other defenses designated, collectively, as
11 “affirmative defenses.” Defendant’s designation of defenses as “affirmative” is not intended in any
12 way to alter Plaintiff’s burden of proof with regard to any element of her causes of action. Defendant
13 also expressly denies the existence of any alleged putative group of persons that Plaintiff seeks to
14 represent in this lawsuit. Defendant incorporates (as if fully set forth herein) this express denial with
15 each and every reference to “Plaintiff.”
16 Defendant intends to rely upon any additional defenses that become available or apparent
17 during pretrial proceedings and discovery in this action and hereby reserves the right to amend this
18 Answer to assert all such further defenses.
19 FIRST SEPARATE AND AFFIRMATIVE DEFENSE
20 (Equitable Defenses)
21 1. As a separate and affirmative defense to the Complaint, Defendant is informed and
22 believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis
23 alleges, that the Complaint and each claim for relief set forth therein, or some of them, are barred by
24 the equitable doctrines of waiver, consent, estoppel, and laches. Defendant hereby reserves the right
25 to amend/supplement its Answer upon further investigation and discovery of facts supporting this
26 defense.
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 SECOND SEPARATE AND AFFIRMATIVE DEFENSE
2 (Statute of Limitations)
3 2. As a separate and affirmative defense to the Complaint, Defendant alleges that the
4 Complaint and each purported claim for relief set forth therein, or some of them, are barred in whole
5 or in part by the applicable statute(s) of limitation, including without limitation, those set forth in
6 California Code of Civil Procedure §§ 337, 338, and 340, and/or Labor Code § 203.
7 THIRD SEPARATE AND AFFIRMATIVE DEFENSE
8 (Good Faith)
9 3. As a separate affirmative defense to the Complaint, Defendant contends that there is a
10 good faith dispute and defense to Plaintiff's claims, and each of them, which bars the imposition of
11 Labor Code waiting time penalties under Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157 (2008).
12 FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
13 (Waiting Time Penalties – Secreted or Absented)
14 4. As a separate and distinct affirmative defense, Defendant alleges that any claim for
15 penalties pursuant to Labor Code section 203 is barred, in whole or in part, to the extent that Plaintiff
16 and/or some, or all, of the putative class members and/or purportedly aggrieved employees that
17 Plaintiff seeks to represent secreted or absented themselves to avoid payment of wages, thereby
18 relieving Defendant of liability for waiting time penalties under the California Labor Code.
19 FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
20 (No Willful or Intentional Failure to Pay Wages)
21 5. As a separate and distinct affirmative defense to the Complaint, Defendant alleges that,
22 even if Plaintiff, any putative class member, or purportedly aggrieved employee is entitled to any
23 wages, which Defendant denies, Defendant has not willfully or intentionally failed to pay any such
24 wages to Plaintiff or any putative class member to justify an award of penalties or fees, whether under
25 California Labor Code section 203 or otherwise.
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
2 (Bona Fide Dispute of Wages)
3 6. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
4 fails to state a claim for penalties under the California Labor Code in that there was a bona fide, good
5 faith dispute as to Defendant’s obligations under any applicable Labor Code provisions, includ ing,
6 without limitation, Labor Code section 203.
7 SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Avoidable Consequences)
9 7. As a separate and distinct affirmative defense, Defendant is informed and believes that
10 further investigation and discovery will reveal, and on that basis alleges, that the damages and/or
11 penalties, if any, are barred and/or limited pursuant to the doctrine of avoidable consequences.
12 Defendant will amend its answer to assert further facts in support of this affirmative defense as they
13 become known in discovery. See Department of Health Services v. Superior Court, 31 Cal. 4th 1026
14 (2003).
15 EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE
16 (Class Action – Standing)
17 8. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff lacks
18 standing to assert the legal rights or interests of others. To the extent that Plaintiff and her counsel
19 seek to represent each and every former employee in California in the instant matter, Defendant
20 contends that Plaintiff and her counsel cannot adequately do so, as she worked in a different location,
21 solely as a non-exempt employee, and under a different supervisor from almost all of those that she
22 seeks to represent, amongst other differences.
23 NINTH SEPARATE AND AFFIRMATIVE DEFENSE
24 (Good Faith)
9. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
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and each cause of action set forth therein cannot be maintained because, without admitting that any
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violation took place, Defendant alleges that any violation of the California Labor Code or of a Wage
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Order of the Industrial Welfare Commission was an act or omission made in good faith, and that in
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 any participation in such acts, Defendant had reasonable grounds for believing that the act or omissio n
2 was not a violation of the California Labor Code or any Wage Order of the Industrial Welfare
3 Commission.
4 TENTH SEPARATE AND AFFIRMATIVE DEFENSE
5 (Adequate Remedy at Law)
6 10. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff, the
7 purported class members, and/or the purportedly aggrieved employees Plaintiff seeks to represent are
8 not entitled to equitable relief insofar as they have an adequate remedy at law.
9 ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
10 (Failure to Mitigate)
11 11. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
12 and each cause of action set forth therein is barred, in whole or in part, because of the failure to mitigate
13 damages of Plaintiff, the putative class members, and/or the purportedly aggrieved employees that
14 Plaintiff seeks to represent. The claims of Plaintiff, putative class members, and/or purportedly
15 aggrieved employees that Plaintiff seeks to represent for lost wage damages, or any recovery for lost
16 wages must be reduced, as they failed to exhaust internal remedies or otherwise exercise reasonable
17 diligence to mitigate their alleged damages, if any.
18 TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE
19 (Breach of Duty)
20 12. As a separate and distinct affirmative defense to the Complaint, Defendant alleges that
21 the claims of Plaintiff, the putative class members, and/or the purportedly aggrieved employees that
22 Plaintiff seeks to represent are barred by their own breach of duties owed to Defendant, including but
23 not limited to those under California Labor Code sections 2853, 2854, 2856, 2857 and 2859.
24 THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
25 (Unclean Hands)
26 13. As a separate and affirmative defense to the Complaint, Defendant is informed and
27 believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis
28 alleges, that the Complaint and each claim for relief set forth therein, or some of them, are barred by
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 the equitable doctrine of unclean hands. Specifically, Plaintiff, the putative class members, and/or the
2 purportedly aggrieved employees that Plaintiff seeks to represent, cannot violate Defendant’s policies
3 or not perform their positions as instructed and use that nonperformance as a basis of seeking relief.
4 Defendant hereby reserves the right to amend/supplement its Answer upon further investigation and
5 discovery of facts supporting this defense.
6 FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
7 (Credit and Offset)
8 14. As a separate and distinct affirmative defense, Defendant alleges that it is entitled to an
9 offset against any relief due Plaintiff, members of the putative class, and/or purportedly aggrieved
10 employees that Plaintiff seeks to represent, based upon their respective wrongful conduct and/or
11 monies owed to Defendant, including, but not limited to, any overpayments made to such person and
12 any contractual damages and/or indemnity owed by such person as the result of his/her failure to
13 perform his/her contractual obligations or overpayment for hours worked.
14 FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
15 (Satisfaction and Accord)
16 15. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims
17 fail because Plaintiff, all members of the putative class, and/or the purportedly aggrieved employees
18 Plaintiff seeks to represent have been fully paid all amounts legally owed by Defendant and by
19 accepting the payments made to them, Plaintiff and the putative class members have effectuated an
20 accord and satisfaction of their claims.
21 SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
22 (Multiple Penalties Unconstitutional)
23 16. As a separate and distinct affirmative defense, Defendant alleges that the claims in the
24 Complaint that seek the imposition of multiple penalties for the same basic wrongs are unconstitutio na l
25 in that such relief violates the Due Process clauses of the Constitutions of both the United States and
26 the State of California.
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
2 (Constitutional Rights)
3 17. As a separate and distinct affirmative defense, Defendant alleges that investigation and
4 discovery will reveal that the Complaint, and each cause of action set forth therein, is barred because
5 the applicable Wage Orders of the Industrial Welfare Commission and California Business and
6 Professions Code sections 17200, et seq. are unconstitutionally vague and ambiguous and violate
7 Defendant’s rights under the United State Constitution and the California Constitution as to, among
8 other things, due process of law.
9 EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
10 (Claims May Not Be Properly Maintained as a Class Action)
11 18. As a separate and distinct affirmative defense, Defendant alleges that as to each
12 purported cause of action set forth in the Complaint as a representative or class action, that this suit
13 may not be properly maintained as a representative or class action because: (a) Plaintiff has failed to
14 plead, and cannot establish, the necessary procedural elements for such treatment; (b) a representative
15 or class action is not an appropriate method for the fair and efficient adjudication of the claims
16 described in the Complaint; (c) common issues of fact or law do not predominate, rather, to the
17 contrary, individual issues predominate; (d) Plaintiff’s claims are not representative or typical of the
18 claims of the putative class members; (e) Plaintiff and alleged putative class counsel are not adequate
19 representatives for the alleged putative class; (f) a well-defined community of interest in the questions
20 of law and/or fact affecting Plaintiff and the putative class members does not exist.
21 NINETEENTH SEPARATE AND AFFIRMATIVE DEFENSE
22 (Unconstitutionality of Civil or Statutory Penalties)
23 19. As a separate and distinct affirmative defense to the Complaint, Defendant alleges that
24 to the extent Plaintiff and/or the putative class seeks civil or statutory penalties, such claims violate
25 the Fifth, Fourteenth, and Eighth Amendments of the United States Constitution and also violate
26 Article 1, sections 17 and 8 of the California Constitution, including the prohibition against excessive
27 fines.
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 TWENTIETH SEPARATE AND AFFIRMATIVE DEFENSE
2 (Alleged Losses or Harms Resulted from Actions Other Than Defendant’s Actions)
20. As a separate and distinct affirmative defense, Defendant alleges that the Plaintiff’s
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Complaint cannot be maintained against Defendant because any alleged losses or harms sustained by
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Plaintiff and any putative class members, if any, which Defendant denies, resulted from actions other
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than any act or omission if any, by Defendant.
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TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE
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(Unjust Enrichment)
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21. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff and/or
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members of the putative class she seeks to represent would be unjustly enriched ifallowed to recover
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on the Complaint. During the relevant time period, Defendant maintained legally-compliant policies
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which included, but were not limited to, policies regarding the payment of final wages and
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authorizations for the use of pay cards, to the extent required by law. Without limiting Defendant’s
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reliance on this affirmative defense, to the extent that Plaintiff and/or members of the putative class
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Plaintiff purports to represent, inter alia, received their final wages in a manner that complies with
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California Labor Code §§ 201-203, 212, and/or 213; for that person to receive additional monies for
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the same would result in unjust enrichment. Defendant reserves the right to further amend this
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affirmative defense.
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TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE
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(Res Judicata and Collateral Estoppel)
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22. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
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and each cause of action set forth therein are barred, in whole or in part, by the doctrines of res judicata
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and/or collateral estoppel insofar as Plaintiff and/or alleged individual putative class members have
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litigated or will litigate issues raised by the Complaint prior to adjudication of those issues in the
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instant action.
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE
2 (Release of Defendant from Liability Prior to Instant Action)
3 23. As a separate and affirmative defense to the Complaint, Defendant alleges that the
4 Complaint and each cause of action asserted therein, are barred by waiver and release insofar as
5 Plaintiff and/or the putative class members have released or will release Defendant from liability for
6 such claims asserted in the Complaint prior to adjudication of those claims in the instant action.
7 TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Failure to Exhaust PAGA Prerequisites)
9 24. As a separate and distinct affirmative defense, Defendant is informed and believes that
10 further investigation and discovery will reveal, and on that basis alleges, that the Complaint and each
11 and every cause of action set forth therein, or some of them, are barred by Plaintiff’s failure to properly
12 exhaust all administrative remedies and satisfy the prerequisites of the PAGA, which are required prior
13 to filing a civil lawsuit. Defendant alleges that Plaintiff failed to provide the LWDA proper notifica tio n
14 of her claims or the names of the “aggrieved employees” on whose behalf she intends to seek penalties.
15 Plaintiff’s notice to the LWDA consists of recitations of the law, but Plaintiff failed to provide the
16 LWDA with the facts underlying her claims to permit the LWDA to make a reasoned determina tio n
17 regarding whether to investigate. Thus, Plaintiff’s notice was deficient and the Court lacks jurisdic tio n
18 over her claims under PAGA (California Labor Code section 2698 et seq.).
19 TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
20 (Failure to Identify Aggrieved Employees)
21 25. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff has
22 failed to properly identify any other allegedly “aggrieved employees,” as provided in PAGA.
23 TWENTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
24 (Representative Litigation A Violation of Due Process)
25 26. As a separate and distinct affirmative defense, Defendant alleges that under the PAGA,
26 determination/litigation of Plaintiff’s claims on a representative basis would deny Defendant its due
27 process right to present individual evidence, argument, and defenses as to each individual aggrieved
28 employee.
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 TWENTY-SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
2 (Representative Litigation A Violation of Due Process)
3 27. As a separate and distinct affirmative defense, Defendant alleges that Defendant’s due
4 process rights would be violated if Plaintiff is allowed to adjudicate the claims of other present or
5 former employees, pursuant to the PAGA, without first establishing that Plaintiff’s claims or defenses
6 are typical of the claims or defenses of the other employees Plaintiff seeks to represent, or without
7 first establishing that there are common questions of law and fact as to all of the employees whom
8 Plaintiff seeks to represent.
9 TWENTY-EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE
10 (PAGA – Lack of Manageability)
11 28. As a separate and distinct affirmative defense, Defendant alleges that the Complaint
12 and each cause of action set forth therein, or some of them, cannot proceed as a PAGA action because
13 of difficulties likely to be encountered that render the action unmanageable.
14 TWENTY-NINTH SEPARATE AND AFFIRMATIVE DEFENSE
15 (CAL. LAB. CODE § 2699 – Aggrieved Employee)
16 29. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff and/or
17 the purportedly aggrieved employees that Plaintiff seeks to represent lack standing to bring claims for
18 civil penalties because they are not aggrieved employees, pursuant to the PAGA.
19 THIRTIETH SEPARATE AND AFFIRMATIVE DEFENSE
20 (Less Than Maximum Award Required)
21 30. As a separate and distinct affirmative defense, Defendant alleges that, without
22 conceding that any penalties are due, less than the maximum penalties authorized under the PAGA
23 must be imposed under the facts of this case. To do otherwise would result in an award that is “unjust,
24 arbitrary, and oppressive or confiscatory.” Cal. Labor Code § 2699(e)(2).
25 THIRTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE
26 (Substantial Compliance)
27 31. As a separate and distinct affirmative defense, Defendant alleges that any claim for
28 civil penalties pursuant to the PAGA predicated on Labor Code § 201, 202 and 203, or any applicable
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 Wage Order, must fail because Defendant substantially complied with the applicable statute or Wage
2 Order.
3 THIRTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE
4 (PAGA Violates Constitutional Due Process)
5 32. As a separate and distinct affirmative defense, Defendant asserts that the Complaint,
6 and each and every alleged cause of action therein, or some of them, are barred because the PAGA
7 (including the imposition of replicating penalties), both in general and as applied to this case, violates
8 Defendant’s due process rights, both procedural and substantive, in violation of the Fourteenth
9 Amendment of the United States and California Constitutions. See, e.g., State Farm Mut. Auto. Ins.
10 Co. v. Campbell, 538 U.S. 408 (2003); People ex rel Lockyer v. R.J. Reynolds Tobacco Co., 37 Cal.
11 4th 707 (2005); Ratner v. Chemical Bank New York Trust Co., 54 F.R.D. 412 (S.D.N.Y. 1972).
12 THIRTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE
13 (PAGA Unconstitutional As Applied to This Case)
14 33. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is
15 barred, in whole or in part, because PAGA both in general and as applied to this case, violates the
16 Equal Protection Clause of the United States and California Constitutions.
17 THIRTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
18 (PAGA Civil Penalties Unconstitutionally Excessive)
19 34. As a separate and distinct affirmative defense, Defendant asserts that the Complaint,
20 and each and every alleged cause of action therein, or some of them, are barred because the PAGA
21 violates the prohibition against excessive fines in violation of the Eighth Amendment to the United
22 States Constitution and Article I, section 7 of the California Constitution. People ex rel Lockyer v. R.J.
23 Reynolds Tobacco Co., 37 Cal. 4th 707 (2005).
24 THIRTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
25 (PAGA Unconstitutionally Vague and Overbroad As Applied to This Case)
26 35. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is
27 barred, in whole or in part, because the PAGA is unconstitutionally vague and overbroad as applied
28 to the facts, circumstances of this case.
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 THIRTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
2 (No Award for Costs or Attorneys’ Fees)
3 36. The Complaint, and each and every cause of action alleged therein, fails to state a claim
4 for an award of costs or attorneys’ fees under California Labor Code §§ 218.5 and 2698 et seq., Code
5 of Civil Procedure § 1021.5, or any other basis.
6 THIRTY-SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
7 (Unreasonable and Bad Faith)
8 37. As a separate and distinct affirmative defense, Defendant is informed and believes that
9 further investigation and discovery will reveal, and on that basis alleges, that the Complaint and each
10 and every cause of action set forth therein, or some of them, are unreasonable and/or were filed in bad
11 faith and/or are frivolous and, for that reason, justify an award of attorneys’ fees and costs against
12 Plaintiff and her attorneys.
13 ADDITIONAL AFFIRMATIVE AND OTHER DEFENSES
14 38. Defendant presently has insufficient knowledge or information upon which to form a
15 belief as to whether there may be additional, as yet unstated, defenses and reserves the right to assert
16 additional defenses or affirmative defenses in the event discovery indicates such defenses are
17 appropriate.
18 DEFENDANT’S PRAYER FOR RELIEF
19 WHEREFORE, Defendant prays:
20 1. This action not be certified as a class action;
21 2. Plaintiff, the putative class members, and the purportedly aggrieved employees
22 Plaintiff seeks to represent take nothing by way of the Complaint;
23 3. Plaintiff’s Complaint be dismissed in its entirety with judgment entered against
24 Plaintiff and in favor of Defendant on all of Plaintiff’s causes of action;
25 4. Plaintiff be ordered to pay Defendant’s attorneys’ fees and costs as permitted by law,
26 including but not limited to attorneys’ fees and costs provided under California Labor code section
27 218.5 and
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
1 5. Defendant be awarded such other and further reliefas the Court deems just and proper.
2
3 Dated: April 6, 2020
4
5
HELENE WASSERMAN
6 SHANNON R. BOYCE
KENNELL M. SAMBOUR
7 LITTLER MENDELSON, P.C.
Attorneys for Defendant
8 TRADER JOE’S COMPANY
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4816-3544-1080.1 071820.1075
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DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES
.
1 PROOF OF SERVICE
2 I am a resident of the State of California, over the age of eighteen years, and not a party
3 to the within action. My business address is:
4 633 West 5th Street, 63rd Floor, Los Angeles, California 90071
5 On April 6, 2020, I served the within document(s):
6 DEFENDANT TRADER JOE’S COMPANY’S ANSWER TO PLAINTIFF VICTORIA
TICE’S UNVERIFIED CLASS AND REPRESENTATIVE ACTION COMPLAINT FOR
7 DAMAGES
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9 By personal service.
addresses listed below.
I personally delivered the
(1) For a party represented
documents to the
by an attorney,
persons
delivery
at the
was
made to the attorney or at the attorney's office by leaving the documents, in an
10
envelope or package clearly labeled to identify the attorney being served, with a
11 receptionist or an individual in charge of the office, between the hours of nine in
the morning and five in the evening. (2) For a party, delivery was made to the
12 party or by leaving the documents at the party's residence with some person not
younger than 18 years of age between the hours of eight in the morning and six in
13 the evening.
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¨ By United States mail.
addressed to the persons
I enclosed the documents
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ELECTRONICALLY FILED 1 HELENE WASSERMAN, Bar No. 130134 Superior Court of California SHANNON R. BOYCE, Bar No. 229041 County of Santa Barbara 2 KENNELL M. SAMBOUR, Bar No. 325386 Darrel E. Parker, Executive Officer LITTLER MENDELSON, P.C. 4/6/2020 9:59 AM 3 2049 Century Park East By: Narzralli Baksh, Deputy 5th Floor 4 Los Angeles, CA 90067.3107 Telephone: 310.553.0308 5 Fax No.: 310.553.5583 6 Attorneys for Defendant TRADER JOE’S COMPANY 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA BARBARA 10 VICTORIA TICE, as an individual and on Case No. 20CV00892 behalf of all others similarly situated, 11 CLASS ACTION Plaintiff, 12 DEFENDANT TRADER JOE’S COMPANY’S v. ANSWER TO PLAINTIFF VICTORIA 13 TICE’S UNVERIFIED CLASS AND TRADER JOE’S COMPANY, a California REPRESENTATIVE ACTION COMPLAINT 14 corporation; and DOES 1 through 50, FOR DAMAGES inclusive, 15 ASSIGNED FOR ALL PURPOSES TO JUDGE Defendant. THOMAS P. ANDERLE, DEPT. 3 16 17 Trial Date: Not set Complaint Filed: February 14, 2020 18 19 20 21 22 23 24 25 26 27 28 L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 Defendant TRADER JOE’S COMPANY, by and through its attorneys, hereby answers the 2 unverified Class and Representative Action Complaint for Damages (“Complaint”) of Plaintiff, 3 VICTORIA TICE (on behalf of herself and others similarly situated) as set forth below: 4 GENERAL DENIAL 5 Pursuant to section 431.30(d) of the California Code of Civil Procedure, Defendant hereby 6 answers Plaintiff’s unverified Complaint by generally denying each and every allegation contained 7 therein, by denying Plaintiff has been damaged or has sustained any damages as a result of the conduct 8 alleged therein, and by asserting the following separate and distinct defenses. 9 AFFIRMATIVE DEFENSES 10 Defendant asserts the following affirmative and other defenses designated, collectively, as 11 “affirmative defenses.” Defendant’s designation of defenses as “affirmative” is not intended in any 12 way to alter Plaintiff’s burden of proof with regard to any element of her causes of action. Defendant 13 also expressly denies the existence of any alleged putative group of persons that Plaintiff seeks to 14 represent in this lawsuit. Defendant incorporates (as if fully set forth herein) this express denial with 15 each and every reference to “Plaintiff.” 16 Defendant intends to rely upon any additional defenses that become available or apparent 17 during pretrial proceedings and discovery in this action and hereby reserves the right to amend this 18 Answer to assert all such further defenses. 19 FIRST SEPARATE AND AFFIRMATIVE DEFENSE 20 (Equitable Defenses) 21 1. As a separate and affirmative defense to the Complaint, Defendant is informed and 22 believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis 23 alleges, that the Complaint and each claim for relief set forth therein, or some of them, are barred by 24 the equitable doctrines of waiver, consent, estoppel, and laches. Defendant hereby reserves the right 25 to amend/supplement its Answer upon further investigation and discovery of facts supporting this 26 defense. 27 /// 28 /// L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 1. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 SECOND SEPARATE AND AFFIRMATIVE DEFENSE 2 (Statute of Limitations) 3 2. As a separate and affirmative defense to the Complaint, Defendant alleges that the 4 Complaint and each purported claim for relief set forth therein, or some of them, are barred in whole 5 or in part by the applicable statute(s) of limitation, including without limitation, those set forth in 6 California Code of Civil Procedure §§ 337, 338, and 340, and/or Labor Code § 203. 7 THIRD SEPARATE AND AFFIRMATIVE DEFENSE 8 (Good Faith) 9 3. As a separate affirmative defense to the Complaint, Defendant contends that there is a 10 good faith dispute and defense to Plaintiff's claims, and each of them, which bars the imposition of 11 Labor Code waiting time penalties under Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157 (2008). 12 FOURTH SEPARATE AND AFFIRMATIVE DEFENSE 13 (Waiting Time Penalties – Secreted or Absented) 14 4. As a separate and distinct affirmative defense, Defendant alleges that any claim for 15 penalties pursuant to Labor Code section 203 is barred, in whole or in part, to the extent that Plaintiff 16 and/or some, or all, of the putative class members and/or purportedly aggrieved employees that 17 Plaintiff seeks to represent secreted or absented themselves to avoid payment of wages, thereby 18 relieving Defendant of liability for waiting time penalties under the California Labor Code. 19 FIFTH SEPARATE AND AFFIRMATIVE DEFENSE 20 (No Willful or Intentional Failure to Pay Wages) 21 5. As a separate and distinct affirmative defense to the Complaint, Defendant alleges that, 22 even if Plaintiff, any putative class member, or purportedly aggrieved employee is entitled to any 23 wages, which Defendant denies, Defendant has not willfully or intentionally failed to pay any such 24 wages to Plaintiff or any putative class member to justify an award of penalties or fees, whether under 25 California Labor Code section 203 or otherwise. 26 /// 27 /// 28 // L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 2. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 SIXTH SEPARATE AND AFFIRMATIVE DEFENSE 2 (Bona Fide Dispute of Wages) 3 6. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 4 fails to state a claim for penalties under the California Labor Code in that there was a bona fide, good 5 faith dispute as to Defendant’s obligations under any applicable Labor Code provisions, includ ing, 6 without limitation, Labor Code section 203. 7 SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Avoidable Consequences) 9 7. As a separate and distinct affirmative defense, Defendant is informed and believes that 10 further investigation and discovery will reveal, and on that basis alleges, that the damages and/or 11 penalties, if any, are barred and/or limited pursuant to the doctrine of avoidable consequences. 12 Defendant will amend its answer to assert further facts in support of this affirmative defense as they 13 become known in discovery. See Department of Health Services v. Superior Court, 31 Cal. 4th 1026 14 (2003). 15 EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE 16 (Class Action – Standing) 17 8. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff lacks 18 standing to assert the legal rights or interests of others. To the extent that Plaintiff and her counsel 19 seek to represent each and every former employee in California in the instant matter, Defendant 20 contends that Plaintiff and her counsel cannot adequately do so, as she worked in a different location, 21 solely as a non-exempt employee, and under a different supervisor from almost all of those that she 22 seeks to represent, amongst other differences. 23 NINTH SEPARATE AND AFFIRMATIVE DEFENSE 24 (Good Faith) 9. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 25 and each cause of action set forth therein cannot be maintained because, without admitting that any 26 violation took place, Defendant alleges that any violation of the California Labor Code or of a Wage 27 Order of the Industrial Welfare Commission was an act or omission made in good faith, and that in 28 L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 3. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 any participation in such acts, Defendant had reasonable grounds for believing that the act or omissio n 2 was not a violation of the California Labor Code or any Wage Order of the Industrial Welfare 3 Commission. 4 TENTH SEPARATE AND AFFIRMATIVE DEFENSE 5 (Adequate Remedy at Law) 6 10. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff, the 7 purported class members, and/or the purportedly aggrieved employees Plaintiff seeks to represent are 8 not entitled to equitable relief insofar as they have an adequate remedy at law. 9 ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 10 (Failure to Mitigate) 11 11. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 12 and each cause of action set forth therein is barred, in whole or in part, because of the failure to mitigate 13 damages of Plaintiff, the putative class members, and/or the purportedly aggrieved employees that 14 Plaintiff seeks to represent. The claims of Plaintiff, putative class members, and/or purportedly 15 aggrieved employees that Plaintiff seeks to represent for lost wage damages, or any recovery for lost 16 wages must be reduced, as they failed to exhaust internal remedies or otherwise exercise reasonable 17 diligence to mitigate their alleged damages, if any. 18 TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE 19 (Breach of Duty) 20 12. As a separate and distinct affirmative defense to the Complaint, Defendant alleges that 21 the claims of Plaintiff, the putative class members, and/or the purportedly aggrieved employees that 22 Plaintiff seeks to represent are barred by their own breach of duties owed to Defendant, including but 23 not limited to those under California Labor Code sections 2853, 2854, 2856, 2857 and 2859. 24 THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 25 (Unclean Hands) 26 13. As a separate and affirmative defense to the Complaint, Defendant is informed and 27 believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis 28 alleges, that the Complaint and each claim for relief set forth therein, or some of them, are barred by L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 4. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 the equitable doctrine of unclean hands. Specifically, Plaintiff, the putative class members, and/or the 2 purportedly aggrieved employees that Plaintiff seeks to represent, cannot violate Defendant’s policies 3 or not perform their positions as instructed and use that nonperformance as a basis of seeking relief. 4 Defendant hereby reserves the right to amend/supplement its Answer upon further investigation and 5 discovery of facts supporting this defense. 6 FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 7 (Credit and Offset) 8 14. As a separate and distinct affirmative defense, Defendant alleges that it is entitled to an 9 offset against any relief due Plaintiff, members of the putative class, and/or purportedly aggrieved 10 employees that Plaintiff seeks to represent, based upon their respective wrongful conduct and/or 11 monies owed to Defendant, including, but not limited to, any overpayments made to such person and 12 any contractual damages and/or indemnity owed by such person as the result of his/her failure to 13 perform his/her contractual obligations or overpayment for hours worked. 14 FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 15 (Satisfaction and Accord) 16 15. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims 17 fail because Plaintiff, all members of the putative class, and/or the purportedly aggrieved employees 18 Plaintiff seeks to represent have been fully paid all amounts legally owed by Defendant and by 19 accepting the payments made to them, Plaintiff and the putative class members have effectuated an 20 accord and satisfaction of their claims. 21 SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 22 (Multiple Penalties Unconstitutional) 23 16. As a separate and distinct affirmative defense, Defendant alleges that the claims in the 24 Complaint that seek the imposition of multiple penalties for the same basic wrongs are unconstitutio na l 25 in that such relief violates the Due Process clauses of the Constitutions of both the United States and 26 the State of California. 27 /// 28 /// L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 5. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 2 (Constitutional Rights) 3 17. As a separate and distinct affirmative defense, Defendant alleges that investigation and 4 discovery will reveal that the Complaint, and each cause of action set forth therein, is barred because 5 the applicable Wage Orders of the Industrial Welfare Commission and California Business and 6 Professions Code sections 17200, et seq. are unconstitutionally vague and ambiguous and violate 7 Defendant’s rights under the United State Constitution and the California Constitution as to, among 8 other things, due process of law. 9 EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 10 (Claims May Not Be Properly Maintained as a Class Action) 11 18. As a separate and distinct affirmative defense, Defendant alleges that as to each 12 purported cause of action set forth in the Complaint as a representative or class action, that this suit 13 may not be properly maintained as a representative or class action because: (a) Plaintiff has failed to 14 plead, and cannot establish, the necessary procedural elements for such treatment; (b) a representative 15 or class action is not an appropriate method for the fair and efficient adjudication of the claims 16 described in the Complaint; (c) common issues of fact or law do not predominate, rather, to the 17 contrary, individual issues predominate; (d) Plaintiff’s claims are not representative or typical of the 18 claims of the putative class members; (e) Plaintiff and alleged putative class counsel are not adequate 19 representatives for the alleged putative class; (f) a well-defined community of interest in the questions 20 of law and/or fact affecting Plaintiff and the putative class members does not exist. 21 NINETEENTH SEPARATE AND AFFIRMATIVE DEFENSE 22 (Unconstitutionality of Civil or Statutory Penalties) 23 19. As a separate and distinct affirmative defense to the Complaint, Defendant alleges that 24 to the extent Plaintiff and/or the putative class seeks civil or statutory penalties, such claims violate 25 the Fifth, Fourteenth, and Eighth Amendments of the United States Constitution and also violate 26 Article 1, sections 17 and 8 of the California Constitution, including the prohibition against excessive 27 fines. 28 L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 6. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 TWENTIETH SEPARATE AND AFFIRMATIVE DEFENSE 2 (Alleged Losses or Harms Resulted from Actions Other Than Defendant’s Actions) 20. As a separate and distinct affirmative defense, Defendant alleges that the Plaintiff’s 3 Complaint cannot be maintained against Defendant because any alleged losses or harms sustained by 4 Plaintiff and any putative class members, if any, which Defendant denies, resulted from actions other 5 than any act or omission if any, by Defendant. 6 TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE 7 (Unjust Enrichment) 8 21. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff and/or 9 members of the putative class she seeks to represent would be unjustly enriched ifallowed to recover 10 on the Complaint. During the relevant time period, Defendant maintained legally-compliant policies 11 which included, but were not limited to, policies regarding the payment of final wages and 12 authorizations for the use of pay cards, to the extent required by law. Without limiting Defendant’s 13 reliance on this affirmative defense, to the extent that Plaintiff and/or members of the putative class 14 Plaintiff purports to represent, inter alia, received their final wages in a manner that complies with 15 California Labor Code §§ 201-203, 212, and/or 213; for that person to receive additional monies for 16 the same would result in unjust enrichment. Defendant reserves the right to further amend this 17 affirmative defense. 18 TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE 19 (Res Judicata and Collateral Estoppel) 20 22. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 21 and each cause of action set forth therein are barred, in whole or in part, by the doctrines of res judicata 22 and/or collateral estoppel insofar as Plaintiff and/or alleged individual putative class members have 23 litigated or will litigate issues raised by the Complaint prior to adjudication of those issues in the 24 instant action. 25 /// 26 /// 27 /// 28 L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 7. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE 2 (Release of Defendant from Liability Prior to Instant Action) 3 23. As a separate and affirmative defense to the Complaint, Defendant alleges that the 4 Complaint and each cause of action asserted therein, are barred by waiver and release insofar as 5 Plaintiff and/or the putative class members have released or will release Defendant from liability for 6 such claims asserted in the Complaint prior to adjudication of those claims in the instant action. 7 TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Failure to Exhaust PAGA Prerequisites) 9 24. As a separate and distinct affirmative defense, Defendant is informed and believes that 10 further investigation and discovery will reveal, and on that basis alleges, that the Complaint and each 11 and every cause of action set forth therein, or some of them, are barred by Plaintiff’s failure to properly 12 exhaust all administrative remedies and satisfy the prerequisites of the PAGA, which are required prior 13 to filing a civil lawsuit. Defendant alleges that Plaintiff failed to provide the LWDA proper notifica tio n 14 of her claims or the names of the “aggrieved employees” on whose behalf she intends to seek penalties. 15 Plaintiff’s notice to the LWDA consists of recitations of the law, but Plaintiff failed to provide the 16 LWDA with the facts underlying her claims to permit the LWDA to make a reasoned determina tio n 17 regarding whether to investigate. Thus, Plaintiff’s notice was deficient and the Court lacks jurisdic tio n 18 over her claims under PAGA (California Labor Code section 2698 et seq.). 19 TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE 20 (Failure to Identify Aggrieved Employees) 21 25. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff has 22 failed to properly identify any other allegedly “aggrieved employees,” as provided in PAGA. 23 TWENTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE 24 (Representative Litigation A Violation of Due Process) 25 26. As a separate and distinct affirmative defense, Defendant alleges that under the PAGA, 26 determination/litigation of Plaintiff’s claims on a representative basis would deny Defendant its due 27 process right to present individual evidence, argument, and defenses as to each individual aggrieved 28 employee. L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 8. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 TWENTY-SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 2 (Representative Litigation A Violation of Due Process) 3 27. As a separate and distinct affirmative defense, Defendant alleges that Defendant’s due 4 process rights would be violated if Plaintiff is allowed to adjudicate the claims of other present or 5 former employees, pursuant to the PAGA, without first establishing that Plaintiff’s claims or defenses 6 are typical of the claims or defenses of the other employees Plaintiff seeks to represent, or without 7 first establishing that there are common questions of law and fact as to all of the employees whom 8 Plaintiff seeks to represent. 9 TWENTY-EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE 10 (PAGA – Lack of Manageability) 11 28. As a separate and distinct affirmative defense, Defendant alleges that the Complaint 12 and each cause of action set forth therein, or some of them, cannot proceed as a PAGA action because 13 of difficulties likely to be encountered that render the action unmanageable. 14 TWENTY-NINTH SEPARATE AND AFFIRMATIVE DEFENSE 15 (CAL. LAB. CODE § 2699 – Aggrieved Employee) 16 29. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff and/or 17 the purportedly aggrieved employees that Plaintiff seeks to represent lack standing to bring claims for 18 civil penalties because they are not aggrieved employees, pursuant to the PAGA. 19 THIRTIETH SEPARATE AND AFFIRMATIVE DEFENSE 20 (Less Than Maximum Award Required) 21 30. As a separate and distinct affirmative defense, Defendant alleges that, without 22 conceding that any penalties are due, less than the maximum penalties authorized under the PAGA 23 must be imposed under the facts of this case. To do otherwise would result in an award that is “unjust, 24 arbitrary, and oppressive or confiscatory.” Cal. Labor Code § 2699(e)(2). 25 THIRTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE 26 (Substantial Compliance) 27 31. As a separate and distinct affirmative defense, Defendant alleges that any claim for 28 civil penalties pursuant to the PAGA predicated on Labor Code § 201, 202 and 203, or any applicable L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 9. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 Wage Order, must fail because Defendant substantially complied with the applicable statute or Wage 2 Order. 3 THIRTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE 4 (PAGA Violates Constitutional Due Process) 5 32. As a separate and distinct affirmative defense, Defendant asserts that the Complaint, 6 and each and every alleged cause of action therein, or some of them, are barred because the PAGA 7 (including the imposition of replicating penalties), both in general and as applied to this case, violates 8 Defendant’s due process rights, both procedural and substantive, in violation of the Fourteenth 9 Amendment of the United States and California Constitutions. See, e.g., State Farm Mut. Auto. Ins. 10 Co. v. Campbell, 538 U.S. 408 (2003); People ex rel Lockyer v. R.J. Reynolds Tobacco Co., 37 Cal. 11 4th 707 (2005); Ratner v. Chemical Bank New York Trust Co., 54 F.R.D. 412 (S.D.N.Y. 1972). 12 THIRTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE 13 (PAGA Unconstitutional As Applied to This Case) 14 33. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is 15 barred, in whole or in part, because PAGA both in general and as applied to this case, violates the 16 Equal Protection Clause of the United States and California Constitutions. 17 THIRTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE 18 (PAGA Civil Penalties Unconstitutionally Excessive) 19 34. As a separate and distinct affirmative defense, Defendant asserts that the Complaint, 20 and each and every alleged cause of action therein, or some of them, are barred because the PAGA 21 violates the prohibition against excessive fines in violation of the Eighth Amendment to the United 22 States Constitution and Article I, section 7 of the California Constitution. People ex rel Lockyer v. R.J. 23 Reynolds Tobacco Co., 37 Cal. 4th 707 (2005). 24 THIRTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE 25 (PAGA Unconstitutionally Vague and Overbroad As Applied to This Case) 26 35. As a separate and distinct affirmative defense, Defendant alleges that the Complaint is 27 barred, in whole or in part, because the PAGA is unconstitutionally vague and overbroad as applied 28 to the facts, circumstances of this case. L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 10. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 THIRTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE 2 (No Award for Costs or Attorneys’ Fees) 3 36. The Complaint, and each and every cause of action alleged therein, fails to state a claim 4 for an award of costs or attorneys’ fees under California Labor Code §§ 218.5 and 2698 et seq., Code 5 of Civil Procedure § 1021.5, or any other basis. 6 THIRTY-SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 7 (Unreasonable and Bad Faith) 8 37. As a separate and distinct affirmative defense, Defendant is informed and believes that 9 further investigation and discovery will reveal, and on that basis alleges, that the Complaint and each 10 and every cause of action set forth therein, or some of them, are unreasonable and/or were filed in bad 11 faith and/or are frivolous and, for that reason, justify an award of attorneys’ fees and costs against 12 Plaintiff and her attorneys. 13 ADDITIONAL AFFIRMATIVE AND OTHER DEFENSES 14 38. Defendant presently has insufficient knowledge or information upon which to form a 15 belief as to whether there may be additional, as yet unstated, defenses and reserves the right to assert 16 additional defenses or affirmative defenses in the event discovery indicates such defenses are 17 appropriate. 18 DEFENDANT’S PRAYER FOR RELIEF 19 WHEREFORE, Defendant prays: 20 1. This action not be certified as a class action; 21 2. Plaintiff, the putative class members, and the purportedly aggrieved employees 22 Plaintiff seeks to represent take nothing by way of the Complaint; 23 3. Plaintiff’s Complaint be dismissed in its entirety with judgment entered against 24 Plaintiff and in favor of Defendant on all of Plaintiff’s causes of action; 25 4. Plaintiff be ordered to pay Defendant’s attorneys’ fees and costs as permitted by law, 26 including but not limited to attorneys’ fees and costs provided under California Labor code section 27 218.5 and 28 L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 11. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES 1 5. Defendant be awarded such other and further reliefas the Court deems just and proper. 2 3 Dated: April 6, 2020 4 5 HELENE WASSERMAN 6 SHANNON R. BOYCE KENNELL M. SAMBOUR 7 LITTLER MENDELSON, P.C. Attorneys for Defendant 8 TRADER JOE’S COMPANY 9 4816-3544-1080.1 071820.1075 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L I T T L E R M E N D E L S ON , P .C . 2049 C ent ury P ark E as t 5th F l oor 12. Los A ngel es , C A 90067.3107 310.553.0308 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES . 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen years, and not a party 3 to the within action. My business address is: 4 633 West 5th Street, 63rd Floor, Los Angeles, California 90071 5 On April 6, 2020, I served the within document(s): 6 DEFENDANT TRADER JOE’S COMPANY’S ANSWER TO PLAINTIFF VICTORIA TICE’S UNVERIFIED CLASS AND REPRESENTATIVE ACTION COMPLAINT FOR 7 DAMAGES 8 9 By personal service. addresses listed below. I personally delivered the (1) For a party represented documents to the by an attorney, persons delivery at the was made to the attorney or at the attorney's office by leaving the documents, in an 10 envelope or package clearly labeled to identify the attorney being served, with a 11 receptionist or an individual in charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the 12 party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and six in 13 the evening. 14 ¨ By United States mail. addressed to the persons I enclosed the documents