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MARC L. JACUZZI, BAR NO. 173220
1] SARAHE, LUCAS, BAR NO. 148713
KENDALL M. BURTON, BAR NO. 228720 . Fir
2 || SIMPSON, GARRITY, INNES & JACUZZI ALayp ED
Professional Corporation DA Cou
3! 2175 N. California Blvd., Suite 710 - Ww NTy
Walnut Creek, CA 94596 SUL 55
41! Telephone: (925) 322-8889 Ty
Fax: (925) 322-8890 Up
51) mjacuzzi@sgijlaw.com
slucas@sgijlaw.com
6 | kburton@sgijlaw.com
71 Attorneys for Defendants
Mercy Housing Management Group, Inc.
811 and Mercy Housing, Iiic.
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
i FOR THE COUNTY OF ALAMEDA
12
LYNDONNA.GAMEZ, individually, andon ) Case No. RG21100185
13] behalf of other aggrieved employees pursuant )
to the California Private Attorneys General )
. ) ANSWER TO COMPLAINT FOR
15 Plaintiff, ) ENFORCEMENT UNDER THE
) PRIVATE ATTORNEYS’ GENERAL
16 V. ) ACT, LABOR CODE § 2898 ET. SEQ.
)
17! MERCY HOUSING MANAGEMENT )
GROUP, INC., an unknown business entity; )
18) MERCY HOUSING, INC., an unknown )
business entity; and DOES 1 through 100, )
19 inclusive; ) FAXED
) Complaint Filed: May 19, 2021
20 Defendants. )
21
22
33 GENERAL DENIAL
>A Defendants Mercy Housing Management Group, Inc. and Mercy Housing, Inc.
35 (collectively “Defendants”) in answer to the unverified Complaint (“Complaint”) of Plaintiff
26 Lyndonna Gamez (“Plaintiff”), generally and specifically deny each and every, all and singular,
37 conjunctively, and disjunctively, of the allegations of said Complaint. In this connection,
28
{31256-63 00540082.DOCX | } -1-
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 ET. SEQ.
Defendants deny that Plaintiff has been injured or damaged in any of the sums mentioned in said
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Complaint, or in any sum, or at all as a result of any act or omission of any Defendant.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(Failure to State Claim)
AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause of
action, Defendants allege that each such purported cause of action fails to state facts sufficient to
constitute any cause of action or claim for which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)
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AS.A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause
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of action, Defendants allége that each purported cause of action and alleged claim is barred in
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whole or in part by the applicable statute(s) of limitations, including, but not limited to: California
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Code of Civil Procedure section 340(a) and California Labor Code section 2699.3. These statutes
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of limitations each limit or entirely preclude Plaintiff and the purported aggrieved employees from
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recovering damages and/or penalties in this case.
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THIRD AFFIRMATIVE DEFENSE
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(Laches)
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AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause of
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action, Defendants allege that Plaintiff's and/or the alleged aggrieved employees’ claims for relief
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are barred by the doctrine of laches.
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FOURTH AFFIRMATIVE DEFENSE
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(Res Judicata)
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AS A FOURTH AFFIRMATIVE DEFENSE to each and every cause of action, Defendants
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allege that Plaintiffs and/or the alleged aggrieved employees’ claims are barred in whole or in part
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by the doctrine of res judicata.
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{31256-63 00540082.D0CX 1 } -2-
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 ET. SEQ.
FIFTH AFFIRMATIVE DEFENSE
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(Collateral Estoppel)
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AS A FIFTH AFFIRMATIVE DEFENSE to each and every cause of action, Defendants
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allege that Plaintiff's and/or the alleged aggrieved employees’ claims are barred in whole or in part
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by the doctrine of collateral estoppel.
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SIXTH AFFIRMATIVE DEFENSE
(Waiver)
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AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and evety cause of
action, Defendants allege that Plaintiff's claims and/or the alleged aggrieved employees’ claims
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are barred from any and all recovery by virtue of conduct constituting a waiver of each and every
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alleged claim for relief,
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SEVENTH AFFIRMATIVE DEFENSE
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(Estoppel)
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AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause
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of action, Defendants allege that Plaintiff and/or the alleged aggrieved employees are estopped by
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16 their own actions and conduct from seeking recovery on their cause of action in the Complaint.
EIGHTH AFFIRMATIVE DEFENSE
(Good Faith Dispute):
AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause
of action, Defendants allege that any failure by any Defendant to pay wages allegedly due to
Plaintiff or any alleged aggrieved employees was based on a good faith dispute as to whether those
wages were due.
NINTH AFFIRMATIVE DEFENSE
(Reasonable: Grounds)
AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSEto each and every cause of
action, Defendants allege that Plaintiff and/or the alleged aggrieved employees are not entitled to
any penalty award(s) under the California Labor Code, since, at all relevant times, Defendants did
{31256-63 00540082.DOCX 1 } -3-
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 ET. SEQ.
not willfully fail to comply with the compensation provisions of the California Labor Code, but
rather acted in good faith and had reasonable grounds for believing that Defendants, and each of
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them, had not violated those provisions.
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TENTH AFFIRMATIVE DEFENSE
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(Meal Periods Waived)
AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each arid every cause .of
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action, Defendants allege that to the extent meal periods may be waived, Plaintiff and/or the
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alleged aggrieved employees waived all -waivable meal periods.
ELEVENTH AFFIRMATIVE DEFENSE
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10 (Rest Periods Waived)
11 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every
12 cause of action, Defendant alleges that to the extent rest periods may be waived and/or combined,
13 Plaintiff and/or the alleged aggrieved employees waived and/or combined all such rest periods.
14 TWELFTH AFFIRMATIVE DEFENSE
15 (Failure to Avoid Foreseeable Consequences)
16 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause
17 of action, Defendants allege that Plaintiff and/or the alleged aggrieved employees unreasonably
18 failed to make use of employer-provided remedies and the doctrine of avoidable consequences
19 precludes Plaintiff.and/or the aggrieved employees from recovering any damages they could have
20 prevented by invoking those remedies.
21 THIRTEENTH AFFIRMATIVE DEFENSE
22 (Unclean Hands)
23 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every
24 cause of action, Defendants allege that the claims of Plaintiff and/or alleged aggrieved employees
25 are barred by the doctrine of unclean hands.
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{31256-63 00540082.DOCX 1 } 4.
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 ET. SEQ.
FOURTEENTH AFFIRMATIVE DEFENSE
. (Unjust Enrichment)
AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and évery
cause of action, Defendants allege that the Complaint is barred in whole or in part because
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Plaintiffs and the alleged aggrieved employees would be unjustly enriched if they recovered any
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sums alleged in the Complaint.
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FIFTEENTH AFFIRMATIVE DEFENSE
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(Penalties Violate Due Process)
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AS A FIFTHEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, to each and every
10 cause of action, Defendant alleges the penalties sought in the Complaint violate the Due Process
11 clauses of the United States and California Constitutions.
12 SIXTEENTH AFFIRMATIVE DEFENSE
13 (Penalties Violate Excessive Fines Clause)
14 AS A SIXEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, to each and every
15 cause of action, Defendants allege the penalties sought violate the Excessive Fines clauses of the
16 United States and California Constitutions.
17 SEVENTEENTH AFFIRMATIVE DEFENSE -
18 (PAGA-Not “Aggrieved Employees”)
19 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every
20 cause of action, Defendants allege that Plaintiff's purported cause of action under the Private
21 Attorney’s General Act, Labor Code section 2698 et. seg., is barred to the extent it seeks to
22 recover penalties on behalf of individuals who are not “aggrieved employees.”
23 EIGHTEENTH AFFIRMATIVE DEFENSE
24 (PAGA-Duplicative Recovery)
25 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every
26 cause of action, Defendants allege that Plaintiff, and the individuals on whose behalf Plaintiff
27 seeks relief, are not entitled to recovery of penalties under PAGA to the extent that such penalties
28
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ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 ET. SEQ.
are sought in addition to penalties for the same claims and such duplicative recovery is barred and
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constitutes unjust enrichment.
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NINETEENTH AFFIRMATIVE DEFENSE
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(Lack of Manageability)
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AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every
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cause of action, Defendants allege that Plaintiff's claims on behalf of the alleged aggrieved
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employees are unmanageable and therefore cannot be maintained.
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TWENTIETH AFFIRMATIVE DEFENSE
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(Failure to Exhaust Administrative Remedies)
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AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every
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cause of action, Defendants allege that Plaintiff failed to exhaust all administrative and/or other
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requirements for commencement of an action, including, but not limited to, those requirements set
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forth in California Labor Code section 2699.3.
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TWENTY-FIRST AFFIRMATIVE DEFENSE
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(Unjust, Arbitrary and Oppressive, or Confiscatory Award)
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AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to each and
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every cause of action, Defendants allege that awarding the maximum amounts of civil penalties
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based on the facts and circumstances of this case would result in an award that is unjust, arbitrary,
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and oppressive, or confiscatory as provided by Labor Code Section 2699(e)(2).
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TWENTY-SECOND AFFIRMATIVE DEFENSE
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(Plaintiff's Claims Not Representative of Others)
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AS A TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE to each and
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every cause of action, Plaintiff's claim for violation(s) of the Labor Code are not representative of
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the claims of other present and/or former employees of Defendants. Therefore, Plaintiff cannot as
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a matter of law represent other current and/or former employees.
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{31256-63 00540082.DOCX | } -6-
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 &T. SEQ.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Failure to Give Notice)
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AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to each and
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every cause of action, Defendants allege that Plaintiff failed to give written notice by certified mail
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to the Labor and Workforce Development Agency and the employer of the specific provisions of
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the Labor Code Defendants allegedly violated, including the facts and theories to support the
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alleged violation(s) as required by Labor Code Section 2699.3(b).
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
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(Expense Reimbursement)
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10 AS A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and
il every cause of action, Defendants allege that to the extent they were not aware of a reasonably
12 incurred business expense, they were not obligated to reimburse such expense.
13 TWENTY-FIFITH AFFIRMATIVE DEFENSE
14 (Accord and Satisfaction)
15 AS A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and
16 every cause of action, Defendants allege that the alleged claims are barred in whole or in part by
17 accord and satisfaction and/or payment and release.
18 TWENTY-SIXTH AFFIRMATIVE DEFENSE
19 (No Claim for Attorney’s Fees)
20 AS A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and
21 every cause of action, Defendants allege that the Complaint failed to properly state a claim for
22 attornéy’s fees including under Labor Code sections 210, 218.5 and 2699, or any other basis.
23 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
24 (Lack of Standing)
25 AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants
26 allege that the Complaint is barred because Plaintiff lacks standing to assert any purported claim
27 for relief alleged therein on behalf of themselves or others because Plaintiff is not an “aggrieved
28 employees” as required under California Labor Code section 2699, et seq.
{31256-63 00540082,DOCX | } -1-
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 &£T. SEQ.
TWENTY-EIGTH AFFIRMATIVE DEFENSE
(Duplicative Action Pending)
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AS A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants |
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allege that the Complaint is barred because a previously-filed identical or similar action is
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currently pending in the Superior Court of the State of California in another county.
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TWENTY-NINTH AFFIRMATIVE DEFENSE
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(Additional Affirmative Defenses)
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AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and
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every cause of action and underlying claim, Defendants, and each of them, allege that they have.
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10 insufficient knowledge or information on which to form a belief as to whether they may have
ll additional, but as yet unstated, affirmative defenses available to them. Defendants, and each of
12 them, therefore, reserve the right to assert additional affirmative defenses in the event discovery
13 indicates such defenses are available.
14 WHEREFORE, Defendants pray for judgment as follows:
15 1. That Plaintiff take nothing by reason of Plaintiff's Claims;
16 2. That this action be dismissed in its entirety with prejudice;
17 3. An order that the alleged claims not be allowed to proceed as a
18 representative action;
19 4. That judgment be entered for Defendants, and each of them;
20 5. That Defendants, and each of them, be awarded their reasonable costs and
21 attomeys’ fees; and
22 6. That Defendants, and each of them, be awarded such other and further relief
23 as the Court deems just and proper.
24
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{31256-63 00540082.DOCX 1 } -8-
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 ET: SEQ.
Date: July 15, 2021 Respectfully Submitted,
SIMPSON, GARRITY, INNES JACUZZI
Professional. Corporation’ ff" .
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MARC L. JACUZEE BAR.NO a
SARAHE. LUCAS, mone
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KENDALL M. BURTON, BAR NO. 228720
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Attorneys for Defendants
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{31256-63 00540082,.DOCX 1 }
ANSWER TO COMPLAINT
FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS: GENERAL-ACT
LABOR CODE § 2898 ET..SEQ,
PROOF OF SERVICE
I; Heather Halwig, declare:
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I am employed in the city of Walnut Creek and County of Contra Costa, California; I am
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over the age of 18 years and not a party to the within action; my business address is 2175 N.
California Blvd., Suite 710, Walnut Créek, California 94596. On the date set forth below, I served
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a true and accurate copy of the document(s) entitled:
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e ANSWER TO COMPLAINT FOR ENFORCEMENTUNDER THE
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PRIVATE ATTORNEYS’ GENERAL ACT
on the party(ies) in this action by placing said copy(ies) in a sealed envelope each addressed as
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follows:
SERVICE LIST
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Attorney for Plaintiff
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Edwin Aiwazian, Esq.
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Lawyers For Justice, PC
410 West Arden Avenue, Suite 203
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Glendale, California 91203
(818) 265-1020
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x [By First Class Mail] I am readily familiar with my employer's practice for collecting and
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processing documents for mailing with the United States Postal Service. On the date listed herein,
following ordinary business practice, I served the within document(s) at my place of business, by
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placing a true copy thereof, enclosed in a sealed envelope, with postage thereon fully prepaid, for
collection and mailing with the United States Postal Service where it would be deposited with the
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United States Postal Service that same day in the ordinary course of business.
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C] [By Overnight Courier] I caused each envelope to be delivered by a commercial carrier
service for overnight delivery to the offices of the addressee(s).
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{By Facsimile Transmission] I caused said document to be sent. by facsimile transmission
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to the fax number indicated for the party(ies) listed above.
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C] {By Electronic Transmission] I caused said document to be sent by electronic transmission
to the e-mail address(es) indicated for the party(ies) listed above.
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I declare under penalty of perjury that the foregoing is true and correct and that this
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declaration was executed this date at Walnut Créek, California.
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Dated: July 15, 2021 eablr W Niece
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Heather Halwig
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{31256-63 00540082.DOCX | } «Te
ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER. THE PRIVATE ATTORNEYS’ GENERAL ACT
LABOR CODE § 2898 ET. SEQ.
Preview
e © ranuiegyaqept MARC L. JACUZZI, BAR NO. 173220 1] SARAHE, LUCAS, BAR NO. 148713 KENDALL M. BURTON, BAR NO. 228720 . Fir 2 || SIMPSON, GARRITY, INNES & JACUZZI ALayp ED Professional Corporation DA Cou 3! 2175 N. California Blvd., Suite 710 - Ww NTy Walnut Creek, CA 94596 SUL 55 41! Telephone: (925) 322-8889 Ty Fax: (925) 322-8890 Up 51) mjacuzzi@sgijlaw.com slucas@sgijlaw.com 6 | kburton@sgijlaw.com 71 Attorneys for Defendants Mercy Housing Management Group, Inc. 811 and Mercy Housing, Iiic. 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA i FOR THE COUNTY OF ALAMEDA 12 LYNDONNA.GAMEZ, individually, andon ) Case No. RG21100185 13] behalf of other aggrieved employees pursuant ) to the California Private Attorneys General ) . ) ANSWER TO COMPLAINT FOR 15 Plaintiff, ) ENFORCEMENT UNDER THE ) PRIVATE ATTORNEYS’ GENERAL 16 V. ) ACT, LABOR CODE § 2898 ET. SEQ. ) 17! MERCY HOUSING MANAGEMENT ) GROUP, INC., an unknown business entity; ) 18) MERCY HOUSING, INC., an unknown ) business entity; and DOES 1 through 100, ) 19 inclusive; ) FAXED ) Complaint Filed: May 19, 2021 20 Defendants. ) 21 22 33 GENERAL DENIAL >A Defendants Mercy Housing Management Group, Inc. and Mercy Housing, Inc. 35 (collectively “Defendants”) in answer to the unverified Complaint (“Complaint”) of Plaintiff 26 Lyndonna Gamez (“Plaintiff”), generally and specifically deny each and every, all and singular, 37 conjunctively, and disjunctively, of the allegations of said Complaint. In this connection, 28 {31256-63 00540082.DOCX | } -1- ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 ET. SEQ. Defendants deny that Plaintiff has been injured or damaged in any of the sums mentioned in said _ Complaint, or in any sum, or at all as a result of any act or omission of any Defendant. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State Claim) AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause of action, Defendants allege that each such purported cause of action fails to state facts sufficient to constitute any cause of action or claim for which relief may be granted. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) oS — AS.A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause — — of action, Defendants allége that each purported cause of action and alleged claim is barred in pee N whole or in part by the applicable statute(s) of limitations, including, but not limited to: California WwW i Code of Civil Procedure section 340(a) and California Labor Code section 2699.3. These statutes ry eS of limitations each limit or entirely preclude Plaintiff and the purported aggrieved employees from ves 1o) recovering damages and/or penalties in this case. N — THIRD AFFIRMATIVE DEFENSE ~ _ (Laches) lo] _ AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause of \O _ action, Defendants allege that Plaintiff's and/or the alleged aggrieved employees’ claims for relief fo) N are barred by the doctrine of laches. NO — FOURTH AFFIRMATIVE DEFENSE bho N (Res Judicata) Ww N AS A FOURTH AFFIRMATIVE DEFENSE to each and every cause of action, Defendants bo > allege that Plaintiffs and/or the alleged aggrieved employees’ claims are barred in whole or in part Wa NR by the doctrine of res judicata. fon) N Ml ~) N oO NO {31256-63 00540082.D0CX 1 } -2- ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 ET. SEQ. FIFTH AFFIRMATIVE DEFENSE —_ (Collateral Estoppel) NN AS A FIFTH AFFIRMATIVE DEFENSE to each and every cause of action, Defendants W allege that Plaintiff's and/or the alleged aggrieved employees’ claims are barred in whole or in part FP by the doctrine of collateral estoppel. AH DBD SIXTH AFFIRMATIVE DEFENSE (Waiver) NY ea AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and evety cause of action, Defendants allege that Plaintiff's claims and/or the alleged aggrieved employees’ claims uo are barred from any and all recovery by virtue of conduct constituting a waiver of each and every oO alleged claim for relief, not SEVENTH AFFIRMATIVE DEFENSE N (Estoppel) WW AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause & of action, Defendants allege that Plaintiff and/or the alleged aggrieved employees are estopped by Mn 16 their own actions and conduct from seeking recovery on their cause of action in the Complaint. EIGHTH AFFIRMATIVE DEFENSE (Good Faith Dispute): AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause of action, Defendants allege that any failure by any Defendant to pay wages allegedly due to Plaintiff or any alleged aggrieved employees was based on a good faith dispute as to whether those wages were due. NINTH AFFIRMATIVE DEFENSE (Reasonable: Grounds) AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSEto each and every cause of action, Defendants allege that Plaintiff and/or the alleged aggrieved employees are not entitled to any penalty award(s) under the California Labor Code, since, at all relevant times, Defendants did {31256-63 00540082.DOCX 1 } -3- ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 ET. SEQ. not willfully fail to comply with the compensation provisions of the California Labor Code, but rather acted in good faith and had reasonable grounds for believing that Defendants, and each of N them, had not violated those provisions. W TENTH AFFIRMATIVE DEFENSE Fe DH (Meal Periods Waived) AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each arid every cause .of DN NHN action, Defendants allege that to the extent meal periods may be waived, Plaintiff and/or the eo alleged aggrieved employees waived all -waivable meal periods. ELEVENTH AFFIRMATIVE DEFENSE uo 10 (Rest Periods Waived) 11 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every 12 cause of action, Defendant alleges that to the extent rest periods may be waived and/or combined, 13 Plaintiff and/or the alleged aggrieved employees waived and/or combined all such rest periods. 14 TWELFTH AFFIRMATIVE DEFENSE 15 (Failure to Avoid Foreseeable Consequences) 16 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every cause 17 of action, Defendants allege that Plaintiff and/or the alleged aggrieved employees unreasonably 18 failed to make use of employer-provided remedies and the doctrine of avoidable consequences 19 precludes Plaintiff.and/or the aggrieved employees from recovering any damages they could have 20 prevented by invoking those remedies. 21 THIRTEENTH AFFIRMATIVE DEFENSE 22 (Unclean Hands) 23 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every 24 cause of action, Defendants allege that the claims of Plaintiff and/or alleged aggrieved employees 25 are barred by the doctrine of unclean hands. 26 Mt 27I 28 {31256-63 00540082.DOCX 1 } 4. ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 ET. SEQ. FOURTEENTH AFFIRMATIVE DEFENSE . (Unjust Enrichment) AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and évery cause of action, Defendants allege that the Complaint is barred in whole or in part because f Plaintiffs and the alleged aggrieved employees would be unjustly enriched if they recovered any WH sums alleged in the Complaint. NH NY FIFTEENTH AFFIRMATIVE DEFENSE Oo (Penalties Violate Due Process) Oo AS A FIFTHEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, to each and every 10 cause of action, Defendant alleges the penalties sought in the Complaint violate the Due Process 11 clauses of the United States and California Constitutions. 12 SIXTEENTH AFFIRMATIVE DEFENSE 13 (Penalties Violate Excessive Fines Clause) 14 AS A SIXEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, to each and every 15 cause of action, Defendants allege the penalties sought violate the Excessive Fines clauses of the 16 United States and California Constitutions. 17 SEVENTEENTH AFFIRMATIVE DEFENSE - 18 (PAGA-Not “Aggrieved Employees”) 19 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every 20 cause of action, Defendants allege that Plaintiff's purported cause of action under the Private 21 Attorney’s General Act, Labor Code section 2698 et. seg., is barred to the extent it seeks to 22 recover penalties on behalf of individuals who are not “aggrieved employees.” 23 EIGHTEENTH AFFIRMATIVE DEFENSE 24 (PAGA-Duplicative Recovery) 25 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every 26 cause of action, Defendants allege that Plaintiff, and the individuals on whose behalf Plaintiff 27 seeks relief, are not entitled to recovery of penalties under PAGA to the extent that such penalties 28 {31256-63 00540082.DOCX: 1 } -5- ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 ET. SEQ. are sought in addition to penalties for the same claims and such duplicative recovery is barred and i constitutes unjust enrichment. t NINETEENTH AFFIRMATIVE DEFENSE ies) (Lack of Manageability) & AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every 4) cause of action, Defendants allege that Plaintiff's claims on behalf of the alleged aggrieved nN employees are unmanageable and therefore cannot be maintained. ws TWENTIETH AFFIRMATIVE DEFENSE oOo (Failure to Exhaust Administrative Remedies) \o AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE to each and every © — cause of action, Defendants allege that Plaintiff failed to exhaust all administrative and/or other pad — requirements for commencement of an action, including, but not limited to, those requirements set pan N forth in California Labor Code section 2699.3. ~~ WW TWENTY-FIRST AFFIRMATIVE DEFENSE a) ba (Unjust, Arbitrary and Oppressive, or Confiscatory Award) "| WG AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to each and Nn i every cause of action, Defendants allege that awarding the maximum amounts of civil penalties pet ~ based on the facts and circumstances of this case would result in an award that is unjust, arbitrary, fo) i and oppressive, or confiscatory as provided by Labor Code Section 2699(e)(2). pone \o TWENTY-SECOND AFFIRMATIVE DEFENSE low) nN (Plaintiff's Claims Not Representative of Others) —_ NO AS A TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE to each and NO N every cause of action, Plaintiff's claim for violation(s) of the Labor Code are not representative of Ww N the claims of other present and/or former employees of Defendants. Therefore, Plaintiff cannot as bo > a matter of law represent other current and/or former employees. Nn Nw Ml nN nN nN ~ oo N {31256-63 00540082.DOCX | } -6- ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 &T. SEQ. TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure to Give Notice) bo AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to each and WwW every cause of action, Defendants allege that Plaintiff failed to give written notice by certified mail & to the Labor and Workforce Development Agency and the employer of the specific provisions of a the Labor Code Defendants allegedly violated, including the facts and theories to support the nN alleged violation(s) as required by Labor Code Section 2699.3(b). ~ TWENTY-FOURTH AFFIRMATIVE DEFENSE © (Expense Reimbursement) Oo 10 AS A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and il every cause of action, Defendants allege that to the extent they were not aware of a reasonably 12 incurred business expense, they were not obligated to reimburse such expense. 13 TWENTY-FIFITH AFFIRMATIVE DEFENSE 14 (Accord and Satisfaction) 15 AS A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and 16 every cause of action, Defendants allege that the alleged claims are barred in whole or in part by 17 accord and satisfaction and/or payment and release. 18 TWENTY-SIXTH AFFIRMATIVE DEFENSE 19 (No Claim for Attorney’s Fees) 20 AS A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and 21 every cause of action, Defendants allege that the Complaint failed to properly state a claim for 22 attornéy’s fees including under Labor Code sections 210, 218.5 and 2699, or any other basis. 23 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 24 (Lack of Standing) 25 AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants 26 allege that the Complaint is barred because Plaintiff lacks standing to assert any purported claim 27 for relief alleged therein on behalf of themselves or others because Plaintiff is not an “aggrieved 28 employees” as required under California Labor Code section 2699, et seq. {31256-63 00540082,DOCX | } -1- ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 &£T. SEQ. TWENTY-EIGTH AFFIRMATIVE DEFENSE (Duplicative Action Pending) N AS A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants | Ww allege that the Complaint is barred because a previously-filed identical or similar action is - currently pending in the Superior Court of the State of California in another county. ws TWENTY-NINTH AFFIRMATIVE DEFENSE nN (Additional Affirmative Defenses) nm» AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to each and o every cause of action and underlying claim, Defendants, and each of them, allege that they have. io) 10 insufficient knowledge or information on which to form a belief as to whether they may have ll additional, but as yet unstated, affirmative defenses available to them. Defendants, and each of 12 them, therefore, reserve the right to assert additional affirmative defenses in the event discovery 13 indicates such defenses are available. 14 WHEREFORE, Defendants pray for judgment as follows: 15 1. That Plaintiff take nothing by reason of Plaintiff's Claims; 16 2. That this action be dismissed in its entirety with prejudice; 17 3. An order that the alleged claims not be allowed to proceed as a 18 representative action; 19 4. That judgment be entered for Defendants, and each of them; 20 5. That Defendants, and each of them, be awarded their reasonable costs and 21 attomeys’ fees; and 22 6. That Defendants, and each of them, be awarded such other and further relief 23 as the Court deems just and proper. 24 25 26 27 28 {31256-63 00540082.DOCX 1 } -8- ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 ET: SEQ. Date: July 15, 2021 Respectfully Submitted, SIMPSON, GARRITY, INNES JACUZZI Professional. Corporation’ ff" . WwW VA ; ‘ / MARC L. JACUZEE BAR.NO a SARAHE. LUCAS, mone - KENDALL M. BURTON, BAR NO. 228720 A Attorneys for Defendants SD OP li 12 13 14 15 6 17 18 19 20) 21 22 23 24 25 26 27 28 {31256-63 00540082,.DOCX 1 } ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER THE PRIVATE ATTORNEYS: GENERAL-ACT LABOR CODE § 2898 ET..SEQ, PROOF OF SERVICE I; Heather Halwig, declare: YN I am employed in the city of Walnut Creek and County of Contra Costa, California; I am WD over the age of 18 years and not a party to the within action; my business address is 2175 N. California Blvd., Suite 710, Walnut Créek, California 94596. On the date set forth below, I served FL a true and accurate copy of the document(s) entitled: HH e ANSWER TO COMPLAINT FOR ENFORCEMENTUNDER THE HD PRIVATE ATTORNEYS’ GENERAL ACT on the party(ies) in this action by placing said copy(ies) in a sealed envelope each addressed as IN follows: SERVICE LIST > Attorney for Plaintiff Oo Edwin Aiwazian, Esq. com) —y Lawyers For Justice, PC 410 West Arden Avenue, Suite 203 iy _ Glendale, California 91203 (818) 265-1020 N _ x [By First Class Mail] I am readily familiar with my employer's practice for collecting and _ w processing documents for mailing with the United States Postal Service. On the date listed herein, following ordinary business practice, I served the within document(s) at my place of business, by BSN _ placing a true copy thereof, enclosed in a sealed envelope, with postage thereon fully prepaid, for collection and mailing with the United States Postal Service where it would be deposited with the —_ wm United States Postal Service that same day in the ordinary course of business. a — C] [By Overnight Courier] I caused each envelope to be delivered by a commercial carrier service for overnight delivery to the offices of the addressee(s). bos ~ {By Facsimile Transmission] I caused said document to be sent. by facsimile transmission od © to the fax number indicated for the party(ies) listed above. Oo ht C] {By Electronic Transmission] I caused said document to be sent by electronic transmission to the e-mail address(es) indicated for the party(ies) listed above. (an) nN I declare under penalty of perjury that the foregoing is true and correct and that this N _ declaration was executed this date at Walnut Créek, California. nN N Dated: July 15, 2021 eablr W Niece nN Ww bo eS Heather Halwig i) an nN Nd bo ~[o] N {31256-63 00540082.DOCX | } «Te ANSWER TO COMPLAINT FOR ENFORCEMENT UNDER. THE PRIVATE ATTORNEYS’ GENERAL ACT LABOR CODE § 2898 ET. SEQ.