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Ken M. Fitzgerald, State Bar No. 143019
KEN M. FITZGERALD ATTORNEY E-FILED
4236 W. Mineral King Ave. 11/19/2020 9:50 AM
Visalia, California 93291 Superior Court of California
Telephone: (559) 733-3733 County of Fresno
Facsimile: (559) 733-3987 By: C. York, Deputy
Email: ken@kmf-atty.corn
Attorneys for Defendants, FAMILY
FOUNDATIONS COUNSELING
SERVICES, a California non-profit
corporation, PEARL HEPPNER, an
individual
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF FRESNO
12 SHANEKKA BROWN-JOHNSON, an Case No.: 20CECG02950
individual, GLADYS ORONA, an individual,
13 DIAMOND ROBINSON, an individual, and
MICHELLE HILL, an individual, DEFENDANTS'NSWER TO FIRST
14 AMENDED COMPLAINT
Plaintiffs,
15 JURY TRIAL DEMANDED
vs.
16
FAMILY FOUNDATIONS COUNSELING
17 SERVICES, a California non-profit
corporation; PEARL HEPPNER, an
18 individual; and Does I through 25, inclusive,
19 Defendants.
20
21
COME NOW Defendants and answering the unverified First Amended Complaint
22
("FAC") on file herein, answer the Plaintiffs'nverified FAC as follows:
23
GENERAL DENIAL
24
Under and pursuant to the provisions of California Code of Civil Procedure Section
25
431.30, these answering Defendants generally deny each and every allegation of said unverified
26
FAC, and the whole thereof, and each and every allegation of each and every cause of action
27
alleged therein, and further expressly deny that as a direct or proximate result of any acts or
28
ANSWER TO FIRST AMENDED COMPLAINT
omissions on the part of these answering Defendants, Plaintiffs herein sustained or suffered injury
or damage in the amount alleged in the unverified FAC, or in any amount at all, or that Plaintiffs
have suffered injury or damage for any reason in the sums alleged in the unverified FAC, or in
any other sum or sums, or at aH.
First Affirmative Defense
(Failure to State a Cause of Action)
1. As a separate and affirmative defense to the unverified FAC, and each cause of action
therein, these answering Defendants allege that neither the FAC, in its entirety, nor any purported
10 cause of action set forth therein, alleges facts sufficient to constitute a cause of action against
these answering Defendants.
12 Second Affirmative Defense
13 (Statute of Limitations)
14 2. As a separate and affirmative defense to the unverified FAC, and each cause of action
15 therein, these answering Defendants allege that the FAC, and each cause of action therein, is
16 barred by the applicable statutes of limitations, including, but not limited to, Governmeru Code
17 Sections 12960(d) and 12965(b) and Code of CivilProcedure Sections 335.1, 338(a), 340(a), and
18 340(c).
19 Third Affirmative Defense
20 (Unclean Hands)
21 3. As a separate and affirmative defense to the unverified FAC, and each cause of action
22 therein, these answering Defendants allege that the Plaintiffs'laims are barred or abated
23 substantially by the doctrine of unclean hands, due to the fraudulent, illegal, despicable, and
24 inequitable conduct of the Plaintiffs.
25 Fourth Affirmative Defense
26 (After-Acquired Evidence Doctrine)
27 4. As a separate and affirmative defense to the unverified FAC, and each cause of action
28 therein, these answering Defendants allege that Plaintiffs are barred, in whole or in part, from
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KEN EI.
FITZGERALD
ATTORNEY
I IIW Naaaaal
ANSWER TO FIRST AMENDED COMPLAINT
K IA
Vaaal A CA YKWI
recovery of damages as alleged and prayed for in the Complaint by the after-acquired evidence
doctrine.
Fifth Affirmative Defense
(Failure to Exhaust Administrative Remedies)
5. As a separate and affirmative defense to the unverified FAC, and each cause of action
therein, these answering Defendants allege that Plaintiffs have failed to exhaust her administrative
remedies under the California Fair Employment and Housing Act.
Sixth Affirmative Defense
10 (Failure to Timely File Administrative Complaint)
6. As a separate and affirmative defense to the unverified FAC, and each cause of action
12 therein, these answering Defendants allege that the unverified FAC, and each cause of action
13 therein, is barred to the extent that Plaintiffs seek relief for conduct occurring more than 365 days
14 prior to the filing of an administrative charge under the provisions of the California Fair
15 Employment and Housing Act.
16
17 Seventh Affirmative Defense
18 (Same Outcome)
19 7. As a separate and affirmative defense to the unverified FAC, and each cause of action
20 therein, these answering Defendants allege that the actions alleged by Plaintiffs, which these
21 answering Defendants deny, would have occurred for legitimate, independent reasons even if the
22 Plaintiffs had not engaged in activities protected by Labor Code Section 1102.5, an allegation
23 which Defendants deny.
24 Eiuhth Affirmative Defense
25 (Litigation Privilege)
26 8. As a separate and affirmative defense to the FAC, and each cause of action therein, these
27 answering Defendants allege that the FAC, and each cause of action therein, is barred by the
28 litigation privilege codified by Civil Code Section 47(b).
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KRN III
FITZGERALD
ATTORNEY
G33 W Ml Nvl
ANSWER TO FIRST AMENDED COMPLAINT
IGFF A c
3ANIN. CA 33 31
Ninth Affirmative Defense
(Common Interest Privilege)
9. As a separate and affirmative defense to the FAC, and each cause of action therein, these
answering Defendants allege that the FAC, and each cause of action therein, is barred by the
common interest privilege codified by Civil Code Section 47(c).
Tenth Affirmative Defense
(Avoidable Consequences Doctrine)
10. As a separate and affirmative defense to the FAC, and each cause of action therein, these
10 answering Defendants allege that the FAC, and each cause of action therein, is barred by the
avoidable consequences'octrine.
12
13 Eleventh Affirmative Defense
14 (Failure to Mitigate Damages)
15 11. As a separate and affirmative defense to the FAC, and each cause of action therein, these
16 answering Defendants allege that Plaintiffs have failed to mitigate or attempt to mitigate damages,
17 if in fact any damages have been or will be sustained, and any recovery by Plaintiffs must be
18 diminished or barred by reason thereof.
19
20 Twelfth Affirmative Defense
21 (Setoff)
22 12. As a separate and affirmative defense to the FAC, and each cause of action therein, these
23 answering Defendants, without conceding that any act of these answering Defendants caused
24 damage to the Plaintiffs or any other person in any respect, these answering Defendants allege
25 that these answering Defendants are entitled to offset and recoup against any judgment that may
26 be entered against them all obligations of the Plaintiffs owing to these answering Defendants.
27 Offset and recoupment are appropriate by reason of Plaintiffs'isrepresentations and
28 concealment of facts, Plaintiffs'reaches of duty and violations of the covenant of good faith and
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KKN II.
FITZGKRAI.D
ATTDRNKY
cuaw M cd ANSWER TO FIRST AMENDED COMPLAINT
KlaIA C
Vaaha. CA 93391
1 fair dealing, and other wrongful conduct.
Thirteenth Affirmative Defense
(Truth)
5 13. As a separate and affirmative defense to the FAC, and each cause of action therein, these
6 answering Defendants allege that any representation made by the Defendants were true when
made.
Fourteenth Affirmative Defense
(Fault of Others)
10 14. As a separate and affirmative defense to the FAC, and each cause of action therein, these
answering Defendants are informed and believe and thereon allege that the injuries and damages
12 complained of by Plaintiffs, if any, were, either wholly or in part, directly and proximately caused
13 by the acts, omissions, andlor legal fault or default of persons or entities other than these
14 answering Defendants.
15
16 Fifteenth Affirmative Defense
17 (Apportionment of Fault)
18 15. As a separate and affirmative defense to the FAC, and each cause of action therein,
19 these answering Defendants, while denying any liability to Plaintiffs or to any other party by
20 reason of any allegation in the FAC, allege that in the event judgment is entered against these
21 answering Defendants in this action, these answering Defendants are entitled to have that
22 liability or judgment apportioned among themselves, Plaintiffs, and Co-Defendants herein in
23 accordance with each party's comparative fault as determined at trial.
24 Sixteenth Affirmative Defense
25 (Legitimate Business Reason)
26 16. As a separate and affirmative defense to the FAC, and each cause of action therein, the
27 same are barred on the grounds that the Defendants possessed legitimate business reasons, which
28 were not pretext for discrimination, harassinent, or retaliation.
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KEN IIL
FITZGERALD
ATTORNEY
9339 WMioaal
ANSWER TO FIRST AMENDED COMPLAINT
K TAw
VRal *CA 93
91
Seventeenth Affirmative Defense
(Mixed Motive)
3 17. As a separate and affirmative defense to the FAC, and each cause of action therein, the
4 same are barred in light of the fact that the acts or omissions complained of herein, the occurrence
5 of which these answering Defendants deny, would have occurred in any event for legitimate, non-
6 discriminatory, non-pretextual reasons.
Eiahteenth Affirmative Defense
(Estoppel)
10 18. As a separate and affirmative defense to the FAC, and each cause of action therein, these
11 answering Defendants allege that Plaintiffs are estopped from pursuing the claims in the FAC by
12 reason of Plaintiffs'wn action and course of conduct.
13
14
Dated: November ~, 2020 KEN M. FITZGERALD ATTORNEY
15
16 BY: Ken M. Fitzgerald
17 Attorney for Defendants, FAMILY
FOUNDATIONS COUNSELING SERVICES
18 and PEARL HEPPNER
19
20
21
22
23
24
25
26
27
28
KEN El.
FITZGERALD
ATTORNEY
42M w ADncral
ANSWER TO FIRST AMENDED COMPLAINT
IO FA
Yuala. CA 3323 I
PROOF OF SERVICE
RE: Shanekka Brown-Johnson. et al. v. Familv Foundations Counselinu Services. et aL
Fresno County Superior Court Case No. 20CECG02950
I, Genie Moore, declare:
That I am a citizen of the United States, over 18 years of age, a resident of Tulare County, and
not a party to within action. That my business address is 4236 W. Mineral King Ave., Visalia,
California 93291.
That on November 17, 2020, I served a copy of the attached on the interested parties in this
action by placing true copies thereof enclosed in sealed envelopes addressed as follows:
DEFENDANTS'NSWER TO FIRST AMENDED COMPLAINT.
Narek Avetisyan
LEGALATORY, INC.
516 W. Shaw Ave., Ste. 200
Fresno, CA 93704-2515
T: 559-550-2525
F: 559-206-3535
10
na leaalatorv.corn
Attorney for Plaintiffs,
Diamond Robinson, Gladys Orona
12
Shanekka Brown — Johnson,
Michelle Hill
13
(X) (BY UNITED STATES MAIL) I enclosed the documents in a sealed envelope or package addressed to the
14
persons at the addresses listed on the attachment and placed the envelope for collection and mailing, following ow
ordinary business practices. I am readily familiar with this business's practice for collecting and processing
15
correspondence for mailing. On the same day that correspondence is placed for cogection and mailing, it is deposited
in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully
16
prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was
placed in the mail at Visalia, California.
17
( ) (BY OVERNIGHT DELIVERY) I enclosed the documents in an envelope or package provided by an overnight
18
delivery carrier and addressed to the persons at the addresses listed on the attachment. I placed the envelope or
package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery
19
Calllel .
20
() (BY FAX TRANSMISSION) Based on an agreement of the parties to accept service by fax transmission, I faxed
hl
aIC the documents to the persons at the fax numbers listed on the attachment. No error was reported by the fax machine
21
ct that I used. A copy of the record of the fax transmission, which I printed out, is attached.
gj Y 22
() (BY ELECTRONIC SERVICE) Based on a court order or agreement of the parties to accept service by electronic
transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed on the
IQ
o
as 23
attachment.
24
aIQ () (BY PERSONAL DELIVERY) I personally delivered the documents to the persons at
V
25
I declare under penalty of perjury that the foregoing is true and correct. Executed on
November 17, 2020, at Visalia, California.
26
27
Genie Moore
28
PROOF OF SERVICE
I
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Ken M. Fitzgerald, State Bar No. 143019 KEN M. FITZGERALD ATTORNEY E-FILED 4236 W. Mineral King Ave. 11/19/2020 9:50 AM Visalia, California 93291 Superior Court of California Telephone: (559) 733-3733 County of Fresno Facsimile: (559) 733-3987 By: C. York, Deputy Email: ken@kmf-atty.corn Attorneys for Defendants, FAMILY FOUNDATIONS COUNSELING SERVICES, a California non-profit corporation, PEARL HEPPNER, an individual SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 12 SHANEKKA BROWN-JOHNSON, an Case No.: 20CECG02950 individual, GLADYS ORONA, an individual, 13 DIAMOND ROBINSON, an individual, and MICHELLE HILL, an individual, DEFENDANTS'NSWER TO FIRST 14 AMENDED COMPLAINT Plaintiffs, 15 JURY TRIAL DEMANDED vs. 16 FAMILY FOUNDATIONS COUNSELING 17 SERVICES, a California non-profit corporation; PEARL HEPPNER, an 18 individual; and Does I through 25, inclusive, 19 Defendants. 20 21 COME NOW Defendants and answering the unverified First Amended Complaint 22 ("FAC") on file herein, answer the Plaintiffs'nverified FAC as follows: 23 GENERAL DENIAL 24 Under and pursuant to the provisions of California Code of Civil Procedure Section 25 431.30, these answering Defendants generally deny each and every allegation of said unverified 26 FAC, and the whole thereof, and each and every allegation of each and every cause of action 27 alleged therein, and further expressly deny that as a direct or proximate result of any acts or 28 ANSWER TO FIRST AMENDED COMPLAINT omissions on the part of these answering Defendants, Plaintiffs herein sustained or suffered injury or damage in the amount alleged in the unverified FAC, or in any amount at all, or that Plaintiffs have suffered injury or damage for any reason in the sums alleged in the unverified FAC, or in any other sum or sums, or at aH. First Affirmative Defense (Failure to State a Cause of Action) 1. As a separate and affirmative defense to the unverified FAC, and each cause of action therein, these answering Defendants allege that neither the FAC, in its entirety, nor any purported 10 cause of action set forth therein, alleges facts sufficient to constitute a cause of action against these answering Defendants. 12 Second Affirmative Defense 13 (Statute of Limitations) 14 2. As a separate and affirmative defense to the unverified FAC, and each cause of action 15 therein, these answering Defendants allege that the FAC, and each cause of action therein, is 16 barred by the applicable statutes of limitations, including, but not limited to, Governmeru Code 17 Sections 12960(d) and 12965(b) and Code of CivilProcedure Sections 335.1, 338(a), 340(a), and 18 340(c). 19 Third Affirmative Defense 20 (Unclean Hands) 21 3. As a separate and affirmative defense to the unverified FAC, and each cause of action 22 therein, these answering Defendants allege that the Plaintiffs'laims are barred or abated 23 substantially by the doctrine of unclean hands, due to the fraudulent, illegal, despicable, and 24 inequitable conduct of the Plaintiffs. 25 Fourth Affirmative Defense 26 (After-Acquired Evidence Doctrine) 27 4. As a separate and affirmative defense to the unverified FAC, and each cause of action 28 therein, these answering Defendants allege that Plaintiffs are barred, in whole or in part, from -2- KEN EI. FITZGERALD ATTORNEY I IIW Naaaaal ANSWER TO FIRST AMENDED COMPLAINT K IA Vaaal A CA YKWI recovery of damages as alleged and prayed for in the Complaint by the after-acquired evidence doctrine. Fifth Affirmative Defense (Failure to Exhaust Administrative Remedies) 5. As a separate and affirmative defense to the unverified FAC, and each cause of action therein, these answering Defendants allege that Plaintiffs have failed to exhaust her administrative remedies under the California Fair Employment and Housing Act. Sixth Affirmative Defense 10 (Failure to Timely File Administrative Complaint) 6. As a separate and affirmative defense to the unverified FAC, and each cause of action 12 therein, these answering Defendants allege that the unverified FAC, and each cause of action 13 therein, is barred to the extent that Plaintiffs seek relief for conduct occurring more than 365 days 14 prior to the filing of an administrative charge under the provisions of the California Fair 15 Employment and Housing Act. 16 17 Seventh Affirmative Defense 18 (Same Outcome) 19 7. As a separate and affirmative defense to the unverified FAC, and each cause of action 20 therein, these answering Defendants allege that the actions alleged by Plaintiffs, which these 21 answering Defendants deny, would have occurred for legitimate, independent reasons even if the 22 Plaintiffs had not engaged in activities protected by Labor Code Section 1102.5, an allegation 23 which Defendants deny. 24 Eiuhth Affirmative Defense 25 (Litigation Privilege) 26 8. As a separate and affirmative defense to the FAC, and each cause of action therein, these 27 answering Defendants allege that the FAC, and each cause of action therein, is barred by the 28 litigation privilege codified by Civil Code Section 47(b). -3- KRN III FITZGERALD ATTORNEY G33 W Ml Nvl ANSWER TO FIRST AMENDED COMPLAINT IGFF A c 3ANIN. CA 33 31 Ninth Affirmative Defense (Common Interest Privilege) 9. As a separate and affirmative defense to the FAC, and each cause of action therein, these answering Defendants allege that the FAC, and each cause of action therein, is barred by the common interest privilege codified by Civil Code Section 47(c). Tenth Affirmative Defense (Avoidable Consequences Doctrine) 10. As a separate and affirmative defense to the FAC, and each cause of action therein, these 10 answering Defendants allege that the FAC, and each cause of action therein, is barred by the avoidable consequences'octrine. 12 13 Eleventh Affirmative Defense 14 (Failure to Mitigate Damages) 15 11. As a separate and affirmative defense to the FAC, and each cause of action therein, these 16 answering Defendants allege that Plaintiffs have failed to mitigate or attempt to mitigate damages, 17 if in fact any damages have been or will be sustained, and any recovery by Plaintiffs must be 18 diminished or barred by reason thereof. 19 20 Twelfth Affirmative Defense 21 (Setoff) 22 12. As a separate and affirmative defense to the FAC, and each cause of action therein, these 23 answering Defendants, without conceding that any act of these answering Defendants caused 24 damage to the Plaintiffs or any other person in any respect, these answering Defendants allege 25 that these answering Defendants are entitled to offset and recoup against any judgment that may 26 be entered against them all obligations of the Plaintiffs owing to these answering Defendants. 27 Offset and recoupment are appropriate by reason of Plaintiffs'isrepresentations and 28 concealment of facts, Plaintiffs'reaches of duty and violations of the covenant of good faith and -4- KKN II. FITZGKRAI.D ATTDRNKY cuaw M cd ANSWER TO FIRST AMENDED COMPLAINT KlaIA C Vaaha. CA 93391 1 fair dealing, and other wrongful conduct. Thirteenth Affirmative Defense (Truth) 5 13. As a separate and affirmative defense to the FAC, and each cause of action therein, these 6 answering Defendants allege that any representation made by the Defendants were true when made. Fourteenth Affirmative Defense (Fault of Others) 10 14. As a separate and affirmative defense to the FAC, and each cause of action therein, these answering Defendants are informed and believe and thereon allege that the injuries and damages 12 complained of by Plaintiffs, if any, were, either wholly or in part, directly and proximately caused 13 by the acts, omissions, andlor legal fault or default of persons or entities other than these 14 answering Defendants. 15 16 Fifteenth Affirmative Defense 17 (Apportionment of Fault) 18 15. As a separate and affirmative defense to the FAC, and each cause of action therein, 19 these answering Defendants, while denying any liability to Plaintiffs or to any other party by 20 reason of any allegation in the FAC, allege that in the event judgment is entered against these 21 answering Defendants in this action, these answering Defendants are entitled to have that 22 liability or judgment apportioned among themselves, Plaintiffs, and Co-Defendants herein in 23 accordance with each party's comparative fault as determined at trial. 24 Sixteenth Affirmative Defense 25 (Legitimate Business Reason) 26 16. As a separate and affirmative defense to the FAC, and each cause of action therein, the 27 same are barred on the grounds that the Defendants possessed legitimate business reasons, which 28 were not pretext for discrimination, harassinent, or retaliation. -5- KEN IIL FITZGERALD ATTORNEY 9339 WMioaal ANSWER TO FIRST AMENDED COMPLAINT K TAw VRal *CA 93 91 Seventeenth Affirmative Defense (Mixed Motive) 3 17. As a separate and affirmative defense to the FAC, and each cause of action therein, the 4 same are barred in light of the fact that the acts or omissions complained of herein, the occurrence 5 of which these answering Defendants deny, would have occurred in any event for legitimate, non- 6 discriminatory, non-pretextual reasons. Eiahteenth Affirmative Defense (Estoppel) 10 18. As a separate and affirmative defense to the FAC, and each cause of action therein, these 11 answering Defendants allege that Plaintiffs are estopped from pursuing the claims in the FAC by 12 reason of Plaintiffs'wn action and course of conduct. 13 14 Dated: November ~, 2020 KEN M. FITZGERALD ATTORNEY 15 16 BY: Ken M. Fitzgerald 17 Attorney for Defendants, FAMILY FOUNDATIONS COUNSELING SERVICES 18 and PEARL HEPPNER 19 20 21 22 23 24 25 26 27 28 KEN El. FITZGERALD ATTORNEY 42M w ADncral ANSWER TO FIRST AMENDED COMPLAINT IO FA Yuala. CA 3323 I PROOF OF SERVICE RE: Shanekka Brown-Johnson. et al. v. Familv Foundations Counselinu Services. et aL Fresno County Superior Court Case No. 20CECG02950 I, Genie Moore, declare: That I am a citizen of the United States, over 18 years of age, a resident of Tulare County, and not a party to within action. That my business address is 4236 W. Mineral King Ave., Visalia, California 93291. That on November 17, 2020, I served a copy of the attached on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: DEFENDANTS'NSWER TO FIRST AMENDED COMPLAINT. Narek Avetisyan LEGALATORY, INC. 516 W. Shaw Ave., Ste. 200 Fresno, CA 93704-2515 T: 559-550-2525 F: 559-206-3535 10 na leaalatorv.corn Attorney for Plaintiffs, Diamond Robinson, Gladys Orona 12 Shanekka Brown — Johnson, Michelle Hill 13 (X) (BY UNITED STATES MAIL) I enclosed the documents in a sealed envelope or package addressed to the 14 persons at the addresses listed on the attachment and placed the envelope for collection and mailing, following ow ordinary business practices. I am readily familiar with this business's practice for collecting and processing 15 correspondence for mailing. On the same day that correspondence is placed for cogection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully 16 prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Visalia, California. 17 ( ) (BY OVERNIGHT DELIVERY) I enclosed the documents in an envelope or package provided by an overnight 18 delivery carrier and addressed to the persons at the addresses listed on the attachment. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery 19 Calllel . 20 () (BY FAX TRANSMISSION) Based on an agreement of the parties to accept service by fax transmission, I faxed hl aIC the documents to the persons at the fax numbers listed on the attachment. No error was reported by the fax machine 21 ct that I used. A copy of the record of the fax transmission, which I printed out, is attached. gj Y 22 () (BY ELECTRONIC SERVICE) Based on a court order or agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed on the IQ o as 23 attachment. 24 aIQ () (BY PERSONAL DELIVERY) I personally delivered the documents to the persons at V 25 I declare under penalty of perjury that the foregoing is true and correct. Executed on November 17, 2020, at Visalia, California. 26 27 Genie Moore 28 PROOF OF SERVICE I