Preview
AMC
__ 22264 408 _
DIANA M. ESTRADA (STATE BAR NO. 212702)
FILED
Email: diana.estrada@wilsonelser.com
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP ALAM
555 South Flower Street, Suite 2900 EDA COUNTY
Los Angeles, California 90071
Telephone: (213) 443-5100 JUN ~ 5 2019
Facsimile: (213) 443-5101 CLERK OE Thais Ay 16
agi
B =elj OR OO!
DONALD P. SULLIVAN (State Bar No. 191080) y oe SUA
Email: Donald.Sullivan@wilsonelser.com
“SDN
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
525 Market Street, 17" Floor
San Francisco, Califomia 94105
fo
Telephone: (415) 433-0990
Facsimile: (415) 434-1370
o
10 Attorneys for Defendants
PPH FRANCHISE HOLDINGS, LLC,
1 PASSPORT HEALTH HOLDINGS, LLC
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
FOR THE COUNTY OF ALAMEDA
14
15
MARK TIRMAN, individually, and on behalf of all Case No.: RG19017399
16 other similarly situated,
17 DEFENDANTS’ ANSWER TO
Plaintiff, PLAINTIFF’S COMPLAINT
18 Vs.
19 PPH FRANCHISE HOLDINGS, LLC, PASSPORT
HEALTH HOLDINGS, LLC and DOES 1 through
20 100, inclusive,
21 Defendants.
22
23
Defendants PPH FRNACHISE HOLDINGS. LLC, and PASSPORT HEALTH HOLDINGS,
24
LLC (“Defendants”), on behalf of itself and for no other Defendants, hereby answers the Complaint
25
for Damages and Restitution (“Complaint”) filed by Plaintiff MARK TIRMAN (“Plaintiff”) as
26
follows:
27
//1
28
1
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
GENERAL DENIAL
Pursuant to Code of Civil Procedure § 431.30(d), this answering Defendants deny generally
and specifically each and every allegation contained in the Complaint, and denies that Plaintiff has
suffered any injury or been damaged in any sum whatsoever.
>
AFFIRMATIVE DEFENSES
WN
Defendants have not completed its investigation of the facts of this case, has not completed
BO
discovery in this matter, and has not completed its preparation for trial. The affirmative defenses
NHN
asserted herein are based on Defendants’ knowledge, information and belief at this time, and
fo
Defendants specifically reserve the right to modify, amend or supplement any affirmative defense
oOo
10 contained herein at any time. Without conceding that it bears the burden of proof or persuasion as to
11 any one of these, Defendants allege the following defenses to the Complaint:
12 FIRST AFFIRMATIVE DEFENSE
13 (Failure to State a Claim)
14 1. The Complaint as a whole, and each purported cause of action alleged therein, fails to
15 state facts sufficient to constitute a cause of action against Defendants upon which relief may be
16 granted.
17 SECOND AFFIRMATIVE DEFENSE
18 (Statute of Limitations)
19 2. The Complaint as a whole, and each purported cause of action alleged therein, is
20 barred in whole or in part by the applicable statute of limitations, including but not limited to those
21 set forth in the California Labor Code, including but not limited to §§ 203, 226, et seq. the Code of
22 Civil Procedure §§ 335.1, 337, 338, 339, 340(a), 340(b), and Business and Professions Code §
23 17208, et seq.
24 THIRD AFFIRMATIVE DEFENSE
25 (Arbitration)
26 3. Defendants allege that the Complaint is barred in that Plaintiff and Defendants have
27 agreed that arbitration is the sole remedy for adjudication of the dispute that is the subject of this
28 litigation.
2
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
FOURTH AFFIRMATIVE DEFENSE
(Lack of Standing)
4, Plaintiff lacks standing to bring a cause of action based on California Business and
Professions Code §§ 17200, et seg. because she has not suffered any injury in fact and has not lost
money or property as a result of unfair competition by this Answering Defendants as no alleged act
or omission of Defendants harmed or threatened to harm the public or the public interest.
DN
FIFTH AFFIRMATIVE DEFENSE
NN
(Adequate Remedy at Law)
Oo
5. Plaintiff is not entitled to any equitable or injunctive relief as prayed for in the
oO
10 Complaint because Plaintiff has suffered no irreparable injury based on any alleged conduct of
1 Defendants, and Plaintiff has an adequate remedy at law for any such alleged conduct.
12 SIXTH AFFIRMATIVE DEFENSE
13 (Inadequate Class Representative)
14 6. This case is not appropriate for class certification because Plaintiff is not able to fairly
15 and adequately protect or represent the interests of all members of the putative class.
16 SEVENTH AFFIRMATIVE DEFENSE
17 (Conflict)
18 7. This case is not appropriate for class certification because Defendants allege that
19 certain of the interests of the Plaintiff and the putative class members are in conflict with the
20 interests of all or certain sub-groups of the members of the alleged class of persons, which Plaintiff
21 ‘purports to represent.
22 EIGHTH AFFIRMATIVE DEFENSE
23 (Numerosity)
24 8. This case is not appropriate for class certification because Plaintiff cannot establish
25, numerosity.
26 | NINTH AFFIRMATIVE DEFENSE
27 (Individualized Issues)
28 9. This case is not appropriate for class certification because the individualized nature of
3
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
Plaintiff's claims make class treatment inappropriate.
=
TENTH AFFIRMATIVE DEFENSE
NHN
(Lack of Typicality)
WY
10. This case is not appropriate for class certification because the claims of Plaintiff are
Ff
not typical of the claims of the alleged putative class.
A
ELEVENTH AFFIRMATIVE DEFENSE
DB
(No Ascertainability)
nN
11. Plaintiffs claims are not appropriate for either class treatment because, among other
fo
reasons, the putative class and alleged “aggrieved employees” are not ascertainable.
Oo
TWELFTH AFFIRMATIVE DEFENSE
(After Acquired Evidence)
12. Any recovery on Plaintiff's Complaint, or any purported cause of action contained
ee
therein, is barred by the after-acquired evidence doctrine or the doctrine of after-acquired evidence
ce
limits or reduces Plaintiffs alleged damages.
ee
THIRTEENTH AFFIRMATIVE DEFENSE
(Avoidable Consequences)
13. Although Defendants deny it has committed or has responsibility for any act that
could support the recovery of damages in this lawsuit, if any, the claims of Plaintiff, any putative
a
member of the purported class are barred and/or damages limited, by the doctrine of avoidable
consequences because the alleged damages could have been avoided by reasonable effort, but
Plaintiff and/or some or all of the putative class members of the purported class failed to do so.
[OO
FOURTEENTH AFFIRMATIVE DEFENSE
(Waiver)
14. Plaintiff's claims and the claims of some or all of the putative members of the
purported class are barred, in whole or in part, to the extent such claims have been waived,
discharged, and/or abandoned.
4
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
FIFTEENTH AFFIRMATIVE DEFENSE
(Unclean Hands)
15. Plaintiff's claims and the claims of some or all of the putative members of the
purported class are barred, in whole or in part, by their unclean hands and/or inequitable or wrongful
-
conduct.
MN
SIXTEENTH AFFIRMATIVE DEFENSE
ND
(Estoppel)
SN
16. Plaintiff's claims and the claims of some or all of the putative members of the
fo
purported class are barred, in whole or in part, by the doctrine of estoppel.
Oo
10 SEVENTEENTH AFFIRMATIVE DEFENSE
1 (Accord and Satisfaction)
12 17. Plaintiff's claims and the claims of some or all of the putative members of the
13 purported class are barred, in whole or in part, by the principles of accord and satisfaction.
14 EIGHTEENTH AFFIRMATIVE DEFENSE
15 (Prior Release)
16 18. Plaintiff's claims and the claims of some or all of the putative members of the
17 purported class are barred, in whole or in part, to the extent they entered into any settlement
18 agreement with a release of claims, any such individual has released some or all of the claims
19 alleged in the Complaint.
20 NINETEENTH AFFIRMATIVE DEFENSE
21 (Good Faith Wage Dispute)
22 19, Plaintiffs claims and the claims of some or all of the putative members of the
23 purported class action for waiting time penalties are precluded because there is a good faith dispute
24 that any wages are due to them.
25 TWENTIETH AFFIRMATIVE DEFENSE
26 (Waiting Time Penalties Barred)
27 20. To the extent any of the putative members of the purported class action did not resign
28 or were not discharged prior to the filing of this action, such individuals cannot recover waiting time
5
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
penalties because such penalties cannot be recovered after the commencement of an action for
penalties.
TWENTY-FIRST AFFIRMATIVE DEFENSE
w
(Due Process)
21. Plaintiff is not entitled to any civil penalties because under the circumstances of this
ws
case, any such recover would be unjust, arbitrary, oppressive, or confiscatory and is violative of the
DW
principles of substantive due process under the Fourteenth Amendment to the United States
wn
Constitution and Article I, Section 7 of the California Constitution.
o
TWENTY-SECOND AFFIRMATIVE DEFENSE
oOo
10 (Failure to Mitigate)
11 22. Plaintiffs claims and the claims of some or all of the putative members of the
12 purported class and each alleged cause of action is barred in whole or in part from recovering any
13 damages, or any recovery must be reduced, by virtue of their failure to exercise reasonable diligence
14 to mitigate their alleged damages and as such, any damages should be reduced accordingly.
15 TWENTY-THIRD AFFIRMATIVE DEFENSE
16 (Good Faith/Reasonable Grounds)
17 23. Plaintiff's claims and the claims of some or all of the putative members of the
18 purported class for liquidated damages under Labor Code §1194.2 should be denied or limited
19 because the alleged acts or omissions at issue were in good faith and there were reasonable grounds
20 for believing that such acts or omissions were not a violation of the Labor Code or other applicable
21 orders.
22 TWENTY-FOURTH AFFIRMATIVE DEFENSE
23 (Setoff and Recoupment)
24 24. If any damages have been sustained by Plaintiff and any putative member of the
25 purported class, although such is specifically denied, Defendants are entitled under the equitable
26 doctrine of setoff and recoupment to offset all extra payments or overpayments and/or all obligations
27 that Plaintiff and any putative member of the purported class owed to Defendants against any
28 judgment that may be entered against Defendants.
6
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(No Unfair or Unlawful Conduct)
25, If any damages have been sustained by Plaintiff and any putative member of the
purported class action, are barred in whole or part, because the conduct by Defendants alleged in the
Complaint was and is expressly permitted by law, and accordingly, such conduct cannot be deemed
unfair or unlawful under Business and Professions Code §§ 17200et seq.
DW
TWENTY-SIXTH AFFIRMATIVE DEFENSE
NN
(No Entitlement to Jury Trial — Certain Claims)
Oo
26. Plaintiffs claims and the claims of some or all of the putative members of the
oO
10 purported class are not entitled to a trial by jury, including their claims under Business and
1 Professions Code §§ 17200 et seq.
12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
13 (Substantial Compliance)
14 27. Plaintiff's claims and the claims of some or all of the putative members of the
15 purported class are barred in whole or part, because Defendants complied with its statutory
16 obligations, if any, and to the extent it is determine that there was non-compliance, Defendants
17 substantially complied with its obligations and is not liable for Plaintiff's causes of action.
18 RIGHT TO ADD ADDITIONAL AFFIRMATIVE DEFENSE
19 Because Plaintiff's Complaint is couched in broad and conclusory terms, and Defendants
20 have not completed its investigation and discovery regarding the acts and claims asserted by
21 Plaintiff, Defendants cannot fully anticipate all defenses that may be applicable to this action.
22 Accordingly, the right to assert additional defenses, if any to the extent that such defenses are
23 applicable is hereby reserved.
24 WHEREFORE, Defendants pray for judgment as follows:
25 1. That the Court deny Plaintiffs request to maintain or prosecute this action as a class
26 action and deny any request to certify a class;
27 2. That Plaintiff take nothing by her Complaint;
28 3. That the Complaint be dismissed in its entirety with prejudice;
7
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
4. That the Court enter judgment for Defendants and against Plaintiff, on all of her
alleged causes of action;
5. For cost of suits incurred herein including reasonable attorneys’ fees incurred to the
extent permitted by applicable law; and
>
6. For such other and further relief as the Court deems just and equitable.
DN
Dated: June S 2019 WILSON, ELSER, MOSKOWITZ, EDELMAN&
NN
DICKER, LLP
» Deved fl
Oo
Oo
DIANA M. ESTRADA
10 DONALD P. SULLIVAN
Attorneys for Defendants
11 PPH FRANCHISE HOLDINGS, LLC,
PASSPORT HEALTH HOLDINGS, LLC
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
PROOF OF SERVICE
At the time of service I was over 18 years of age and not a party to this action. [am
employed in the City and County of San Francisco, California. My business address is 525 Market
Street, 17th Floor, San Francisco, California 94105. My business fax number is (415) 434-1370. On
this date I served the following document(s): DEFENDANTS’ ANSWER TO PLAINTIFF’S
COMPLAINT
on the persons listed below, or through their respective attorneys of record in this action, by placing
true copies thereof in sealed envelopes or packages addressed as shown below by the following
means of service:
DN
XX]: By United States Mail. I placed the envelope(s) for collection and mailing, following our
ws
ordinary business practices. I am readily familiar with this business’s practice for collecting
and processing correspondence for mailing. On the same day that correspondence is placed
Co
for collection and mailing, it is deposited in the ordinary course of business with the United
States Postal Service, in a sealed envelope with postage fully prepaid.
Oo
10 []: By Overnight Delivery. I enclosed the documents in an envelope or package provided by an
ovemight delivery carrier and address to the persons at the addresses below. I placed the
1] envelope or package for collection and overnight delivery at an office or a regularly utilized
drop box of the overnight delivery carrier. —
12
[]: By Messenger Service. I served the documents by placing them in an envelope or package
13 addressed to the persons at the addresses listed below and provided them to a professional
messenger service for service.
14
[]: By Fax Transmission. Based on an agreement of the parties to accept service by fax
15 transmission, I faxed the documents to the persons at the fax numbers listed below. No error
was reported by the fax machine that I used. A copy of the record of the fax transmission,
16 which was printed out, is attached.
17 Scott Edward Cole, Esq.
Andrew Daniel Weaver, Esq.
18 Scott Cole & Associates, APC
555 12" Street, Suite 1725
19
Oakland, California 94607
20 Telephone: 510-891-9800
Facsimile: 510-891-7030
21 Email: scole@scalaw.com
Email: aweaver@scalaw.com
22° Attormeys for Plaintiff
Mark Tirman
23
24
I declare under penalty of perjury under the laws of the State of California that the foregoing
25 is true and correct to the best of my knowledge.
26 EXECUTED on June 5, 2019 eave: 0»
27
“oe VIALPANDO U/
28
9
DEFENDANTS’ ANSWER TO COMPLAINT
2219892v.1
Preview
AMC __ 22264 408 _ DIANA M. ESTRADA (STATE BAR NO. 212702) FILED Email: diana.estrada@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP ALAM 555 South Flower Street, Suite 2900 EDA COUNTY Los Angeles, California 90071 Telephone: (213) 443-5100 JUN ~ 5 2019 Facsimile: (213) 443-5101 CLERK OE Thais Ay 16 agi B =elj OR OO! DONALD P. SULLIVAN (State Bar No. 191080) y oe SUA Email: Donald.Sullivan@wilsonelser.com “SDN WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 525 Market Street, 17" Floor San Francisco, Califomia 94105 fo Telephone: (415) 433-0990 Facsimile: (415) 434-1370 o 10 Attorneys for Defendants PPH FRANCHISE HOLDINGS, LLC, 1 PASSPORT HEALTH HOLDINGS, LLC 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF ALAMEDA 14 15 MARK TIRMAN, individually, and on behalf of all Case No.: RG19017399 16 other similarly situated, 17 DEFENDANTS’ ANSWER TO Plaintiff, PLAINTIFF’S COMPLAINT 18 Vs. 19 PPH FRANCHISE HOLDINGS, LLC, PASSPORT HEALTH HOLDINGS, LLC and DOES 1 through 20 100, inclusive, 21 Defendants. 22 23 Defendants PPH FRNACHISE HOLDINGS. LLC, and PASSPORT HEALTH HOLDINGS, 24 LLC (“Defendants”), on behalf of itself and for no other Defendants, hereby answers the Complaint 25 for Damages and Restitution (“Complaint”) filed by Plaintiff MARK TIRMAN (“Plaintiff”) as 26 follows: 27 //1 28 1 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 GENERAL DENIAL Pursuant to Code of Civil Procedure § 431.30(d), this answering Defendants deny generally and specifically each and every allegation contained in the Complaint, and denies that Plaintiff has suffered any injury or been damaged in any sum whatsoever. > AFFIRMATIVE DEFENSES WN Defendants have not completed its investigation of the facts of this case, has not completed BO discovery in this matter, and has not completed its preparation for trial. The affirmative defenses NHN asserted herein are based on Defendants’ knowledge, information and belief at this time, and fo Defendants specifically reserve the right to modify, amend or supplement any affirmative defense oOo 10 contained herein at any time. Without conceding that it bears the burden of proof or persuasion as to 11 any one of these, Defendants allege the following defenses to the Complaint: 12 FIRST AFFIRMATIVE DEFENSE 13 (Failure to State a Claim) 14 1. The Complaint as a whole, and each purported cause of action alleged therein, fails to 15 state facts sufficient to constitute a cause of action against Defendants upon which relief may be 16 granted. 17 SECOND AFFIRMATIVE DEFENSE 18 (Statute of Limitations) 19 2. The Complaint as a whole, and each purported cause of action alleged therein, is 20 barred in whole or in part by the applicable statute of limitations, including but not limited to those 21 set forth in the California Labor Code, including but not limited to §§ 203, 226, et seq. the Code of 22 Civil Procedure §§ 335.1, 337, 338, 339, 340(a), 340(b), and Business and Professions Code § 23 17208, et seq. 24 THIRD AFFIRMATIVE DEFENSE 25 (Arbitration) 26 3. Defendants allege that the Complaint is barred in that Plaintiff and Defendants have 27 agreed that arbitration is the sole remedy for adjudication of the dispute that is the subject of this 28 litigation. 2 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 FOURTH AFFIRMATIVE DEFENSE (Lack of Standing) 4, Plaintiff lacks standing to bring a cause of action based on California Business and Professions Code §§ 17200, et seg. because she has not suffered any injury in fact and has not lost money or property as a result of unfair competition by this Answering Defendants as no alleged act or omission of Defendants harmed or threatened to harm the public or the public interest. DN FIFTH AFFIRMATIVE DEFENSE NN (Adequate Remedy at Law) Oo 5. Plaintiff is not entitled to any equitable or injunctive relief as prayed for in the oO 10 Complaint because Plaintiff has suffered no irreparable injury based on any alleged conduct of 1 Defendants, and Plaintiff has an adequate remedy at law for any such alleged conduct. 12 SIXTH AFFIRMATIVE DEFENSE 13 (Inadequate Class Representative) 14 6. This case is not appropriate for class certification because Plaintiff is not able to fairly 15 and adequately protect or represent the interests of all members of the putative class. 16 SEVENTH AFFIRMATIVE DEFENSE 17 (Conflict) 18 7. This case is not appropriate for class certification because Defendants allege that 19 certain of the interests of the Plaintiff and the putative class members are in conflict with the 20 interests of all or certain sub-groups of the members of the alleged class of persons, which Plaintiff 21 ‘purports to represent. 22 EIGHTH AFFIRMATIVE DEFENSE 23 (Numerosity) 24 8. This case is not appropriate for class certification because Plaintiff cannot establish 25, numerosity. 26 | NINTH AFFIRMATIVE DEFENSE 27 (Individualized Issues) 28 9. This case is not appropriate for class certification because the individualized nature of 3 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 Plaintiff's claims make class treatment inappropriate. = TENTH AFFIRMATIVE DEFENSE NHN (Lack of Typicality) WY 10. This case is not appropriate for class certification because the claims of Plaintiff are Ff not typical of the claims of the alleged putative class. A ELEVENTH AFFIRMATIVE DEFENSE DB (No Ascertainability) nN 11. Plaintiffs claims are not appropriate for either class treatment because, among other fo reasons, the putative class and alleged “aggrieved employees” are not ascertainable. Oo TWELFTH AFFIRMATIVE DEFENSE (After Acquired Evidence) 12. Any recovery on Plaintiff's Complaint, or any purported cause of action contained ee therein, is barred by the after-acquired evidence doctrine or the doctrine of after-acquired evidence ce limits or reduces Plaintiffs alleged damages. ee THIRTEENTH AFFIRMATIVE DEFENSE (Avoidable Consequences) 13. Although Defendants deny it has committed or has responsibility for any act that could support the recovery of damages in this lawsuit, if any, the claims of Plaintiff, any putative a member of the purported class are barred and/or damages limited, by the doctrine of avoidable consequences because the alleged damages could have been avoided by reasonable effort, but Plaintiff and/or some or all of the putative class members of the purported class failed to do so. [OO FOURTEENTH AFFIRMATIVE DEFENSE (Waiver) 14. Plaintiff's claims and the claims of some or all of the putative members of the purported class are barred, in whole or in part, to the extent such claims have been waived, discharged, and/or abandoned. 4 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 FIFTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) 15. Plaintiff's claims and the claims of some or all of the putative members of the purported class are barred, in whole or in part, by their unclean hands and/or inequitable or wrongful - conduct. MN SIXTEENTH AFFIRMATIVE DEFENSE ND (Estoppel) SN 16. Plaintiff's claims and the claims of some or all of the putative members of the fo purported class are barred, in whole or in part, by the doctrine of estoppel. Oo 10 SEVENTEENTH AFFIRMATIVE DEFENSE 1 (Accord and Satisfaction) 12 17. Plaintiff's claims and the claims of some or all of the putative members of the 13 purported class are barred, in whole or in part, by the principles of accord and satisfaction. 14 EIGHTEENTH AFFIRMATIVE DEFENSE 15 (Prior Release) 16 18. Plaintiff's claims and the claims of some or all of the putative members of the 17 purported class are barred, in whole or in part, to the extent they entered into any settlement 18 agreement with a release of claims, any such individual has released some or all of the claims 19 alleged in the Complaint. 20 NINETEENTH AFFIRMATIVE DEFENSE 21 (Good Faith Wage Dispute) 22 19, Plaintiffs claims and the claims of some or all of the putative members of the 23 purported class action for waiting time penalties are precluded because there is a good faith dispute 24 that any wages are due to them. 25 TWENTIETH AFFIRMATIVE DEFENSE 26 (Waiting Time Penalties Barred) 27 20. To the extent any of the putative members of the purported class action did not resign 28 or were not discharged prior to the filing of this action, such individuals cannot recover waiting time 5 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 penalties because such penalties cannot be recovered after the commencement of an action for penalties. TWENTY-FIRST AFFIRMATIVE DEFENSE w (Due Process) 21. Plaintiff is not entitled to any civil penalties because under the circumstances of this ws case, any such recover would be unjust, arbitrary, oppressive, or confiscatory and is violative of the DW principles of substantive due process under the Fourteenth Amendment to the United States wn Constitution and Article I, Section 7 of the California Constitution. o TWENTY-SECOND AFFIRMATIVE DEFENSE oOo 10 (Failure to Mitigate) 11 22. Plaintiffs claims and the claims of some or all of the putative members of the 12 purported class and each alleged cause of action is barred in whole or in part from recovering any 13 damages, or any recovery must be reduced, by virtue of their failure to exercise reasonable diligence 14 to mitigate their alleged damages and as such, any damages should be reduced accordingly. 15 TWENTY-THIRD AFFIRMATIVE DEFENSE 16 (Good Faith/Reasonable Grounds) 17 23. Plaintiff's claims and the claims of some or all of the putative members of the 18 purported class for liquidated damages under Labor Code §1194.2 should be denied or limited 19 because the alleged acts or omissions at issue were in good faith and there were reasonable grounds 20 for believing that such acts or omissions were not a violation of the Labor Code or other applicable 21 orders. 22 TWENTY-FOURTH AFFIRMATIVE DEFENSE 23 (Setoff and Recoupment) 24 24. If any damages have been sustained by Plaintiff and any putative member of the 25 purported class, although such is specifically denied, Defendants are entitled under the equitable 26 doctrine of setoff and recoupment to offset all extra payments or overpayments and/or all obligations 27 that Plaintiff and any putative member of the purported class owed to Defendants against any 28 judgment that may be entered against Defendants. 6 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 TWENTY-FIFTH AFFIRMATIVE DEFENSE (No Unfair or Unlawful Conduct) 25, If any damages have been sustained by Plaintiff and any putative member of the purported class action, are barred in whole or part, because the conduct by Defendants alleged in the Complaint was and is expressly permitted by law, and accordingly, such conduct cannot be deemed unfair or unlawful under Business and Professions Code §§ 17200et seq. DW TWENTY-SIXTH AFFIRMATIVE DEFENSE NN (No Entitlement to Jury Trial — Certain Claims) Oo 26. Plaintiffs claims and the claims of some or all of the putative members of the oO 10 purported class are not entitled to a trial by jury, including their claims under Business and 1 Professions Code §§ 17200 et seq. 12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 13 (Substantial Compliance) 14 27. Plaintiff's claims and the claims of some or all of the putative members of the 15 purported class are barred in whole or part, because Defendants complied with its statutory 16 obligations, if any, and to the extent it is determine that there was non-compliance, Defendants 17 substantially complied with its obligations and is not liable for Plaintiff's causes of action. 18 RIGHT TO ADD ADDITIONAL AFFIRMATIVE DEFENSE 19 Because Plaintiff's Complaint is couched in broad and conclusory terms, and Defendants 20 have not completed its investigation and discovery regarding the acts and claims asserted by 21 Plaintiff, Defendants cannot fully anticipate all defenses that may be applicable to this action. 22 Accordingly, the right to assert additional defenses, if any to the extent that such defenses are 23 applicable is hereby reserved. 24 WHEREFORE, Defendants pray for judgment as follows: 25 1. That the Court deny Plaintiffs request to maintain or prosecute this action as a class 26 action and deny any request to certify a class; 27 2. That Plaintiff take nothing by her Complaint; 28 3. That the Complaint be dismissed in its entirety with prejudice; 7 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 4. That the Court enter judgment for Defendants and against Plaintiff, on all of her alleged causes of action; 5. For cost of suits incurred herein including reasonable attorneys’ fees incurred to the extent permitted by applicable law; and > 6. For such other and further relief as the Court deems just and equitable. DN Dated: June S 2019 WILSON, ELSER, MOSKOWITZ, EDELMAN& NN DICKER, LLP » Deved fl Oo Oo DIANA M. ESTRADA 10 DONALD P. SULLIVAN Attorneys for Defendants 11 PPH FRANCHISE HOLDINGS, LLC, PASSPORT HEALTH HOLDINGS, LLC 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1 PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. [am employed in the City and County of San Francisco, California. My business address is 525 Market Street, 17th Floor, San Francisco, California 94105. My business fax number is (415) 434-1370. On this date I served the following document(s): DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT on the persons listed below, or through their respective attorneys of record in this action, by placing true copies thereof in sealed envelopes or packages addressed as shown below by the following means of service: DN XX]: By United States Mail. I placed the envelope(s) for collection and mailing, following our ws ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed Co for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Oo 10 []: By Overnight Delivery. I enclosed the documents in an envelope or package provided by an ovemight delivery carrier and address to the persons at the addresses below. I placed the 1] envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. — 12 []: By Messenger Service. I served the documents by placing them in an envelope or package 13 addressed to the persons at the addresses listed below and provided them to a professional messenger service for service. 14 []: By Fax Transmission. Based on an agreement of the parties to accept service by fax 15 transmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, 16 which was printed out, is attached. 17 Scott Edward Cole, Esq. Andrew Daniel Weaver, Esq. 18 Scott Cole & Associates, APC 555 12" Street, Suite 1725 19 Oakland, California 94607 20 Telephone: 510-891-9800 Facsimile: 510-891-7030 21 Email: scole@scalaw.com Email: aweaver@scalaw.com 22° Attormeys for Plaintiff Mark Tirman 23 24 I declare under penalty of perjury under the laws of the State of California that the foregoing 25 is true and correct to the best of my knowledge. 26 EXECUTED on June 5, 2019 eave: 0» 27 “oe VIALPANDO U/ 28 9 DEFENDANTS’ ANSWER TO COMPLAINT 2219892v.1