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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
Shaun Medina., et al,
Plaintiff,
Case No. RG19006761
Vs.
CERTIFICATE
United Parcel Service, INC, et al,
Defendant,
———“‘“‘C_‘S/
FERIA AURA ACK
I, CHAD FINKE, Executive Officer/Clerk of the Superior Court of the State
of California, in and for the County of Alameda, which is a court of record of the
State of California, having by law a seal, do hereby certify that: the attached
documents are true and correct copies of each and every filing in the above
entitled action.
SER AIO OIC IC IC IR IKK ACCRA AA A AK
IN WITNESS WHEREOF, I have hereby set my hand
and affixed the seal of said Superior Court this 7th day of August, 2019.
FROCK OCA ICR ICR ACK
Chad Finke, Executive Officer/Clerk
é
(2.3. UF= COUNTY OF ALAMEDA : George E. McDonald Hall of Justice Page: 1
DOMAIN CASE SUMMARY
Rundate: 08/07/2019
Case Number RG19006761
Case Title Medina VS United Parcel Service, Inc.
Type General Civil Status Pending
Filing Date 02/13/2019 Stage Filed
Location Rene C, Davidson Alameda County Courthouse
Jurisdiction Unlimited
Matter Filed Date Matter Title Matter Status Disposition Type / Date
02/13/2019 Complaint - Wrongful Termination Pending
Plaintiff - Shaun Medina
Defendant Answered Uaited Parcel Service, Inc.
Defendant Named vivian Doe
RofADate —- ROfA Text.
02/13/2019 Complaint - Wrongful Termination Filed
02/13/2019 Civil Case Cover Sheet Filed for Shaun Medina
02/13/2019 Summons on Complaint Issued and Filed
02/20/2019 Initial Case Management Conference 07/02/2019 03:00 PM D- 15
02/20/2019 Notice of Assignment of Judge for All Purposes Issued
03/08/2015 Proof of Service on Complaint Ag to United Parcel Service, Inc. Filed
03/22/2019 Motion for Change of Venue (Out of County) Reservation Set for dept: 15 date:
06/07/2019 time:
04/05/2019 Answer to Complaint Filed for United Parcel Service, Inc.
04/05/2019 Motion for Change of Venue (our of County) Filed for Defendant
04/05/2019 Motion for Change of Venue (Out of County) Hearing Confirmed for 06/07/2019 10:00 AM D- 15
05/24/2019 Stipulation and Order Re: Other =x Parte Filed:
05/24/2019 Stipulation and Order Re: Other Ex Parte Routed to Judge
05/28/2019 Notice of Acknowledgment of Service Filed
05/30/2019 Stipulation and Order Re: Other Ex Parte Granted
06/31/2019 Notice of Posting of Jury Fees Filed
08/31/2019 Case Management Statement of Shaun Medina Filed
05/31/2019 Notice of Case Management Conference Filed
06/08/2019 TR - Motion for Change of Venue (Out pf County) - Dropped
06/07/2019 Civil Law and Motion. eer “Comme aed sand | Competed
06/07/2019
07/02/2019
07/02/2019 Case Management > din beSNet Ora ip rah Bt =
ne
07/08/2019 Case Management~Sti siaconit
07/08/2019
07/31/2019 Case Management seagate ot ainited
ND =
07/02/2019 case Management B foot Retneaeaioegi Tacos aM D- 15
sveed Service, Inc. Filed
re
07/31/2019 Proof of Service Case Managejtent Stavemenc Filed
Report Id : Case Reports - Register Of Actioney
OM COUNTY OF ALAMEDA : George E. McDonald Hall of Justice Page: 2
DOMAIN CASE SUMMARY
Rundate: 08/07/2019
Case Number RG19006761
07/31/2019 Hearing Reset to Case Management Conf Continuance 09/17/2019 03:00 PM D- 15
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDE 4,
The foregoing instru origi®
VINO
vraaind
Tey
ea
Report Id : Case Reports - Register Of ActionShegerian & Associates, INc. 7 r 1
Attn: Shegerian, Carney R.
225 Santa Monica Boulevard
Suite 700
L Santa Monica,CA 90401 J L 4
Superior Court of California, County of Alameda
Medina : No. RG19006761
Plaintiff/Petitioner(s)
VS. NOTICE OF CASE MANAGEMENT
CONFERENCE AND ORDER
United Parcel Service, Inc. Unlimited Jurisdiction
Defendant/Respondent(s)
(Abbreviated Title)
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
Notice is given that a Case Management Conference has been scheduled as follows:
Date: 07/02/2019 | Department: 15 udge: Evelio Grillo
Time: 03:00 PM Location: Administration Building Clerk: Dameda Scott
Third Floor (Clerk telephone: (510) 267-6931
1221 Oak Street, Oakland CA 94612 [E-mail:
Dept.15@alameda.courts.ca.gov
Internet: www.alameda.courts.ca.gov Fax:
ORDERS
|. Plaintiff must:
a, Serve all named defendants and file proofs of service on those defendants with the court within 60
days of the filing of the complaint (Cal. Rules of Court, 3.110(b)): and
b. Give notice of this conference to all other parties and file proof of service.
2. Defendant must respond as stated on the summons.
3, All parties who have appeared before the date of the conference must:
a. Meet and confer, in person or by telephone as required by Cal. Rules of Court, rule 3.724;
b, File and serve a completed Case Management Statement on Form CM-110 at least 15 days before
the Case Management Conference (Cal. Rules of Court, rule 3.725); and.
c. Post jury fees as required by Code of Civil Procedure section 631.
4. Ifyou do not follow the orders above, the court may issue an order to show cause why you should not be
sanctioned under Cal. Rules of Court, rule 2.30. Sanctions may include monetary sanctions, striking pleadings
or dismissal of the action.
5. You are further ordered to appear in person or through your attorney of record at the Case Management
Conference noticed above. You must be thoroughly familiar with the case and fully authorized to proceed.
You may be able to appear at Case Management Conferences by telephone. Contact CourtCall, an
independent vendor, at least three business days before the scheduled conference. Call 1-888-882-6878, or fax
a service request to (888) 882-2946, The vendor charges for this service.
6. You may file Case Management Conference Statements by E-Delivery. Submit them directly to the E-
Delivery Fax Number (510) 267-5732. No fee is charged for this service. For further information, go to
wit. alameda. courts.ca.gov/ff-
7. The judge may place a Tentative Case Management Order in your case’s on-line register of actions before the
conference, This order may establish a discovery schedule, set a trial date or refer the case to Alternate
Dispute Resolution, such as mediation or arbitration. Check the website of each assigned department for
procedures regarding tentative case management orders at s»w.a/ameda.courts.ca.gov/de,
Form Approved for Mandatory Use NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER Page 1 of 2
‘Superior Court of California, County
of Alameda
ALA CIV-100 [Rev. 07-01-2015]CLERK'S CERTIFICATE OF MAILING
1 certify that the following is true and correct: I am the clerk of the above-named court and not a party to this cause, I served this Notice of Hearing by
placing copies in envelopes addressed as shown hereon and then by sealing and placing them for collection, stamping or metering with prepaid postage,
and mailing on the date stated below, in the United States mail at Alameda County, Califomia, following standard court practices.
Executed on 02/21/2019.
octal
py Dama. OAT
Deputy Clerk
Form Approved for Mandatory Use NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER Page 2 of 2
Superior Court of California, County
of Alameda
ALA ClV-100 [Rev. 07-01-2015]Superior Court of California, County of Alameda
Notice of Assignment of Judge for All Purposes
Case Number: RG19006761
Case Title: Medina VS United Parcel Service, Inc.
Date of Filing: 02/13/2019
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Pursuant to Rule 3.734 of the California Rules of Court and Title 3 Chapter 2 of the
Local Rules of the Superior Court of California, County of Alameda, this action is
hereby assigned by the Presiding Judge for all purposes to:
Judge: Evelio Grillo
Department: 15
Address: Administration Building
1221 Oak Street
Oakland CA 94612
Phone Number: (510) 267-6931
Fax Number:
Email Address: Dept.15@alameda.courts.ca.gov
Under direct calendaring, this case is assigned to a single judge for all purposes including
trial.
Please note: In this case, any challenge pursuant to Code of Civil Procedure section
170.6 must be exercised within the time period provided by law. (See Code Civ. Proc.
§§ 170.6, subd. (a)(2) and 1013.)
NOTICE OF NONAVAILABILITY OF COURT REPORTERS: Effective June 4, 2012, the
court will not provide a court reporter for civil law and motion hearings, any other hearing or
trial in civil departments, or any afternoon hearing in Department 201 (probate). Parties may
arrange and pay for the attendance of a certified shorthand reporter. In limited jurisdiction
cases, parties may request electronic recording.
Amended Local Rule 3.95 states: "Except as otherwise required by law, in general civil case
and probate departments, the services of an official court reporter are not normally
available. For civil trials, each party must serve and file a statement before the trial date
indicating whether the party requests the presence of an official court reporter."
IT IS THE DUTY OF EACH PLAINTIFF AND CROSS COMPLAINANT TO SERVE A COPY
OF THIS NOTICE IN ACCORDANCE WITH LOCAL RULES.
Page 1 of 4General Procedures
Following assignment of a civil case to a specific department, all pleadings, papers, forms,
documents and writings can be submitted for filing at either Civil Clerk’s Office, located at
the René C. Davidson Courthouse, Room 109, 1225 Fallon Street, Oakland, California,
94612, and the Hayward Hall of Justice, 24405 Amador Street, Hayward, Califomia, 94544.
All documents, with the exception of the original summons and the original civil complaint,
shall have clearly typed on the face page of each document, under the case number, the
following:
ASSIGNED FOR ALL PURPOSES TO
JUDGE Evelio Grillo
DEPARTMENT 15
All parties are expected to know and comply with the Local Rules of this Court, which are
available on the Court’s website at: http:/(www.alameda.courts.ca.qov/Pages.aspx/Local-
Rules(1) and with the Califomia Rules of Court, which are available at
www.courtinfo.ca.gov.
Parties must meet and confer to discuss the effective use of mediation or other alternative
dispute processes (ADR) prior ta the Initial Case Management Conference. The court
encourages parties to file a “Stipulation to Attend ADR and Delay Initial Case Management
Conference for 90 Days”. Plaintiff received that form in the ADR information package at the
time the complaint was filed. The court's Web site aiso contains this form and other ADR
information. If the parties do not stipulate to attend ADR, the parties must be prepared to
discuss referral to ADR at the Initial Case Management Conference.
Contacts with Dept. 15 should be by email to Dept. 145@alameda.courts.ca.gov. You must
provide copies of all email communications to each party (or their attorneys, if represented)
at the same time you send the email to the Court and you must show that you have done so
in your email. When a copy of a document must be transmitted to court staff, an email
attachment is preferable to fax. Use of an email attachment or fax, however, is not a
substitute for filing of pleadings or other documents. Inclusion of available email addresses
in the caption of all filed papers, as required by CRC 2.111(1) is required.
Parties/attorneys must confer before scheduling a hearing date. Counsel are expected to be
familiar and comply with the Statement of Professionalism and Civility, Alameda County Bar
Association www.acbanet.org.
Counsel should consider and recommend creative, efficient approaches to valuing and
resolving their case (CRC §3.724).
Schedule for Department 15
The following scheduling information is subject to change at any time, without notice.
Please contact the department at the phone number or email address noted above if
you have questions.
e Trials generally are held: Unless otherwise advised, both court and jury trials are
Mondays through Thursdays at 10:00 am through 4:30 pm; expect to be in the
courtroom from 9:00 am to 5:00 pm. Cases may "trail" a trial in progress.
« Case Management Conferences are held: Mon., Wed., Thurs. and Fri. at 9:15 am
and Tues, at 3:00 pm. Timely filed and complete case management conference
statements are required and may eliminate the need for a hearing.
Page 2 of 4« Lawand Motion matters are heard: Law & Motion hearings will be held on Tuesdays
at 3:00 p.m. and Fridays at 10:00 a.m. Email Dept. 15 for reservations. Include case
name & number, title of motion and identity of moving party. Courtesy copies shall
be delivered to the department.
« Settlement Conferences are heard: As scheduled by the Judge. Court resources are
limited, and counsel should consider other ADR alternatives. Conferences will be
specially set when deemed appropriate.
« x Parte matters are heard: The applicant must contact the clerk for a hearing date
and provide CRC 3.1203(a) notice to all parties. The applicant must appear, in
person or by phone if allowed, unless it is a stipulation for an order or otherwise
allowed under CRC 3.1207.
Law and Motion Procedures
To obtain a hearing date for a Law and Motion or ex parte matter, parties must contact the
department as follows:
* Motion Reservations
Email: Dept.15@alameda.courts.ca.gov
The parties should check the tentative rulings on the court's website and notify the
courtroom clerk and all other parties of plans to contest by 4:00 pm the day before
the hearing.
e Ex Parte Matters
Email: Dept15@alameda.courts.ca.gov
Tentative Rulings
The court may issue tentative rulings in accordance with the Local Rules. Tentative rulings
will become the Court's order unless contested in accordance with the Local Rules.
Tentative rulings will be available at:
« Website: www.alameda.courts.ca.gov/domainweb, Calendar Information for Dept. 15
e Phone: 1-866-223-2244
Dated: 02/20/2019
La S Cont
Presiding Judge,
Superior Court of California, County of Alameda
Page 3 of 4oy
a
aA AE
ATTORNEY OR PARTY WITHOUT ATTORNEY (Nemo, State Ber number, and address}: - FOR CL... _- 22118782 _
CARNEY R. SHEGERIAN, ESQ. (150461)
|— SHEGERIAN & ASSOCIATES, INC.
225 Santa Monica Blvd, Sulte 700
Santa Monica, California 90401
TELEPHONE NO; (310) 860-0770 FAX NO, (Gptionay: (310) 860-0771 FILED
ATTORNEY FOR (Name): SHAUN MEDINA . ACO!
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
smeetaooress: 1225 Fallon Street MAR 08 2019
MAILING ADDRESS:
THE SUPERIOR COURT
cryanozipcooe: Oakland, Califomia 94612 B
BRANCH NAME: y
PLAINTIFFIPETITIONER: SHAUN MEDINA : CASE NUMBER:
RG19006761
DEFENDANTRESPONDENT: UNITED PARCEL SERVICE, INC., et al.
Ret. No. oF File NO:
PROOF OF SERVICE OF SUMMONS | W113021
(Separate proof of services is required for: each party served.)
1. Atthe time of service | was af least 18 years of age and not a party to this action,
2. [served copies of:
a [7] summons
b. [7] complaint
Alternative Dispute Resolution (ADR) package
Civil Case Cover Sheet (served in complex cases only)
cross-complaint
other (specify documents): Summons And Complaint; Civil Case Cover Sheet
reap
KOOO
3. a. Party served (specify name of party as shown on documents served):
UNITED PARCEL SERVICE, INC.
xXD4 Ag Polld
b. Gd Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person
under item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a):
BECKY DEGEORGE, Authorized Agent of CSC-Lawyers Incorporating Service, Agent for Service of Process
4. Address where the party was served: 2710 Gateway Oaks Drive, Sulte 150N
Sacramento, CA 95833
5. I served the party (check proper box)
a. [3X] by personal service, | personally delivered the documents listed in item 2 to the party or person authorized to
teceive service of process for the party (1) on (data): 2/20/2019 (2) at (time): 9:14 a.m.
b. [1 by substituted service. On (date): at (time): Hef the documents listed in item 2 with or
In the presence of (name and title or relationship fo person indicated in item 3):
(1) [C7] {business) a person at least 18 years of age apparently in charge at the office or usual place of business
of the person to be served. | Informed him or her of the general nature of the Papers.
(2) [] (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual
place of abode of the party. | informed him or her of the general nature of the Papers.
(3) C4 (physicat address unknown) a person al least 18 years of age apparently in charge at the usual mailing
address of the person to be servad, other than a United States Postal Service Post office box. | informed
him or her of the general nature of the papers.
(4) [7] I thereafter maited (by first-class, postage prepaid) copies of the documents to the person to be served
at the place where the copies were left (Code Civ. Prac., § 415.20). | mailed the documents on
(date): from (city): or a declaration of mailing is attached.
©) [71 ‘attach a declaration of diligence stating actions taken first fo attempt personal service.
Page tot?
For dared for Mandatory Use PROOF OF SERVICE OF SUMMONS Caco of Ge Procedure, § 47.40
POS-010 [Rev. January t, 2007]%
“
PLAINTIFF/PETITIONER: SHAUN MEDINA . CASE NUMBER:
RG19006761
DEFENDANT/RESPONDENT; UNITED PARCEL SERVICE, INC,, et al.
5 CO by mall and acknowledgment of receipt of service. | mailed the documents listed in item 2 to the party, to the
address shown in item 4, by first-class mail, postage prepaid,
(1) an (data): (2) from (city):
(3) [[] with two copies of the Notice and Acknowledgment of Receipt and a postage-paid retum envelope addressed
tome. (Attach completed Notice and Acknowledgement of Receipt.) (Cade Civ. Proc., § 415.30.)
(4) [J to an address outside Califomia with return recelpt requested. (Code Civ. Proc., § 415.40.)
d. [_] by other means (specify means of service and authorizing cade section):
(1 Additional page describing service is attached.
6, The ‘Notice to the Person Served" (on the summons) was completed as follows:
a [1 asan individual defendant. :
b. Cc as the person sued under the fictitious name of (specify):
c CI ‘as occupant.
4. Lx} on behalf of (specify): UNITED PARCEL SERVICE, INC.
under the following Code of Civil Procedure section:
[4 416.10 (corporation) (1 415,95 (business organization, form unknown)
(71 416.20 (defunct corporation) C3 416.60 (minor)
(21 416.30 (joint stock companyfassociation) [2] 416.70 (ward or conservatee)
€) 416.40 (asscciation or partnership) © 416.90 (authorized person)
Ga) 416.50 (public entity) © 415.46 (occupant)
© other
7. Person who served papers
a. Name: Steve Glaeser
b. Address: Wheels of Justice, Inc., 52 Second Street, Third Floor, San Francisco, California 94105
c. Telephone number: (415) 546-6000
d. The fee for service was: $
@. lam:
(1) not a registered California process server.
(2) [] exempt from registration under Business and Professions Code section 22350(b),
(3) L2C] a registered California process server:
@ [£5 owner [_Jempioyee [3c] independent contractor.
(i) Registration No.: 2013-44
~~ (il) County; Sacramento
8. [3e} I dectare under penalty of perjury under the laws of the Stata of Califomia that the foregoing is true and correct,
or
9. [_] tama California sheriff or marshal and | certify that the foregoing Is true and correct.
Date: February 20, 2019
Steve Glaeser >
(NAME OF PERSON WHO SERVED PAPERGISHERIFF OR MARSHAL) * (SIGNATURE )
" Page zor
POS-D10 [Rev Jenuary 1, 2007) PROOF OF SERVICE OF SUMMONS.—
BY FAX
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28
UITTUER MENDELSON, P.C.
e TOSTAOER
Li... 20939094
LISA LIN GARCIA, Bar No. 260582
lgarcia@littler.com -
FRANCESCA LANPHER, Bar No. 299318 FI re D
flanpher@littler.com ALAMEDA GOUNTY
LITTLER MENDELSON, P.C. APR 05
333 Bush Street CEERI ue
34th Floor K OF TH,
San Francisco, CA 94104 ay ee ue fo Wy; Govar
Telephone: 415.433.1940 te oO
Fax No.: 415.399.8490 fenuly
Attorneys for Defendant
UNITED PARCEL SERVICE, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
SHAUN MEDINA, Case No. RG19006761
Plaintiff, Assigned For All Purposes To
¥ Judge Evelio Grillo, Dept. 13 -
- DEFENDANT UNITED PARCEL
UNITED PARCEL SERVICE, INC., >
VIVIAN DOE, and DOES 1 to 100, SERVICE, INC.’S ANSWER TO
inclusive, PLAINTIFF’S UNVERIFIED
COMPLAINT FOR DAMAGES
Defendants.
Complaint Filed: February 13, 2019
UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESDefendant UNITED PARCEL SERVICE, INC. (“Defendant”) hereby answers Plaintiff
SHAUN MEDINA’s (“Plaintiff”) unverified Complaint for Damages (“Complaint”), as follows:
GENERAL DENIAL
Pursuant to California Code of Civil Procedure section 431.30, Defendant generally denies
each and every allegation contained in the Complaint. In addition, Defendant denies that Plaintiff
has sustained, or wil] sustain, any loss or damage in the manner or amount alleged, or otherwise, by
reason of any act or omission, or any other conduct or absence thereof, on the part of Defendant.!
AFFIRMATIVE DEFENSES AND OTHER DEFENSES
Defendant asserts the following affirmative defenses and other defenses, which it has
designated, collectively, as “affirmative defenses.” Defendant's designation of its defenses as
“affirmative” is not intended to alter Plaintiffs burden of proof with regard to any element of the
causes of action in his Complaint. Defendant does not presently know all the facts concerning the
conduct of Plaintiff sufficient to state all affirmative defenses at this time. Defendant reserves the
tight to assert additional defenses or affirmative defenses, and will seek leave of court to amend this
Answer should it later discover facts demonstrating the existence of additional defenses or
affirmative defenses.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
1. The Complaint and each and every alleged cause of action therein fail to state facts
sufficient to constitute a cause of action upon which relief can be granted. ‘
SECOND AFFIRMATIVE DEFENSE
(Waiver)
2. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, the Complaint and each cause of action set forth
therein are barred by the ecuitable doctrine of waiver.
! The filing of this Answer does not waive Defendant’s right to transfer venue of this action to the proper court pursuant
to California Code of Civil Procedure section 396b. While Defendant is filing this Answer in Alameda County Superior
Court, Defendant maintains that San Joaquin Superior Court is the proper venue for this action and has concurrently filed
its Motion to Transfer Venue to San Joaquin Superior Court, Defendant further asserts that this case is not yet at issue
because, as of the date of filing this Answer, all Defendants in the action have not been served,
2 Case No. RG19006761
UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESTHIRD AFFIRMATIVE DEFENSE
(Estoppel)
3. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set
forth therein are barred by the equitable doctrine of estoppel.
FOURTH AFFIRMATIVE DEFENSE
{Laches)
4. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set
forth therein are barred by the equitable doctrine of laches.
FIFTH AFFIRMATIVE DEFENSE
(Unclean Hands)
5. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set
forth therein are barred by the equitable doctrine of unclean hands.
SIXTH AFFIRMATIVE DEFENSE
(Consent)
6. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set
forth therein are barred by tke doctrine of consent.
, SEVENTH AFFIRMATIVE DEFENSE
(Res Judicata and/or Collateral Estoppel)
7. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set
forth therein are barred by the doctrine of res judicata and/or collateral estoppel.
3 Case No. RG19006761
UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESw
SO mw DAD HW A
EIGHTH AFFIRMATIVE DEFENSE
(Statutes of Limitation)
8. Each purported cause of action set forth in the Complaint is barred, in whole or in
part, by the applicable statute(s) of limitation, including, without limitation, those set forth in
California Government Code sections 12960 and 12965(b) and (d), and California Code of Civil
Procedure sections 335.1, 338, 340 and/or 343.
NINTH AFFIRMATIVE DEFENSE
(Failure to Exhaust Administrative Remedies)
9. The Complaint, and each cause of action set forth therein are barred, in whole or in
part, because Plaintiff failed to exhaust his administrative remedies with the California Department
of Fair Employment and Housing and/or the Equal Employment Opportunity Commission.
TENTH AFFIRMATIVE DEFENSE
(Claims Exceed Scope of Administrative Charge(s))
10. Defendant is ‘informed and believes that further investigation and discovery will
reveal, and on that basis allege, that the Complaint and each cause of action set forth therein are
barred, in whole or in part, to the extent that Plaintiff did attempt to exhaust his administrative
remedies with the California Department of Fair Employment and Housing and/or the Equal
Employment Opportunity Commission, the causes of action asserted in the Complaint are not like or
reasonably related to the allegations of Plaintiff's charge(s) filed with the California Department of
Fair Employment and Housing and/or the Equal Employment Opportunity Commission.
ELEVENTH AFFIRMATIVE DEFENSE
(Avoidable Consequences)
11. Defendant is: informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, Plaintiff's claims are barred, in whole or in part,
by the doctrine of avoidable consequences because Defendant took all reasonable steps to comply
with the law, but Plaintiff unreasonably failed to follow Defendant’s policies and practices and failed
to use the preventative and corrective opportunities provided to him, and the reasonable adherence to
4 Case No. RG19006761
UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESLITTLER MENDELSON, P.C.
Wa ian to Sesh
rFleor
tan sage, Ex. S2071
WSS
or use of such procedures would have prevented at feast some, if not all, of the harm Plaintiff
allegedly suffered.
TWELFTH AFFIRMATIVE DEFENSE
(Managerial Privilege)
12. Without admitting any of the acts, conduct, or statements attributed to Defendant in
the Complaint, Defendant alleges that it took no inappropriate action toward Plaintiff and any
actions taken toward Plaintiff by Defendant are protected by the managerial privilege in that
Defendant’s actions with respect to Plaintiffs employment, which Plaintiff claims to be wrongful,
were undertaken and exercised with proper managerial discretion in good faith, and for proper,
lawful reasons based upon all relevant facts and circumstances known by Defendant at the time it
acted, therefore barring Plaintiff from recovery in this action.
THIRTEENTH AFFIRMATIVE DEFENSE
(Legitimate Business Reasons for Employment Decisions)
13. The Complaint and each cause of action set forth therein, or some of them, are barred,
in whole or in part, because the employment decisions about which Plaintiff complains were based
upon legitimate, non-discriminatory and non-retaliatory business reasons.
FOURTEENTH AFFIRMATIVE DEFENSE
(Defendant Acted in Good Faith and with Good Cause)
14. Defendant alleges that the Complaint and each cause of action set forth therein cannot
be maintained because good cause existed for each and every action taken by Defendant with respect
to Plaintiff's employment and Defendant acted reasonably and in good faith, at all times, based upon
all relevant facts and circumstances known by Defendant at the time it acted.
FIFTEENTH AFFIRMATIVE DEFENSE
(Mixed-Motive)
15. Defendant alleges, without admitting that Defendant engaged in any of the acts or
omissions alleged in Plaintiff's Complaint, that even if Plaintiff could establish that any of the
allegations set forth in the Complaint were motivated by a potentially illegitimate motive, that
5 Case No. RG19006761
UPS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGESLUTTLER MENDELSON, P.C,
Ho pee She
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28
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Defendant would have made the same decision and/or taken the same action even if it had not taken
the alleged illegitimate motive into account. ,
SIXTEENTH AFFIRMATIVE DEFENSE
(After-Acquired Evidence)
16. Defendant alleges that, to the extent Defendant acquires any evidence of wrongdoing
by Plaintiff during the course of this litigation that would have materially affected the terms and
conditions of Plaintiff's employment or would have resulted in Plaintiff being demoted, disciplined,
and/or terminated, such after-acquired evidence shall bar Plaintiff's claims for damages and shall
reduce such claims as provided by law.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Plaintiff's Breach of Duties)
17. Defendant alleges that the Complaint and each cause of action therein, or some of
them, are barred, in whole or in part, by Plaintiff's own breach of duties owed to Defendant under
California Labor Code sections 2853, 2854, 2856, 2857, 2858 and/or 2859.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Workers’ Compensation Exclusivity and Preemption)
18. Defendant alleges that the Complaint and each cause of action set forth therein
seeking damages for emotional and/or physical injury are preempted and barred by the exclusive
remedy provisions of the California Workers’ Compensation Act, California Labor Code section
3600, et seg., and California Labor Code section 132a, in that: (1) the injuries complained of
occurred when both Plaintiff and Defendant were subject to California Labor Code sections 3600-
3601; (2) at the time of the alleged injuries, Plaintiff was performing services incidental to his
employment and was acting within the course and scope of his employment; and (3) Plaintiff alleges
that the injuries were caused by his employment, and accordingly, this Court lacks Subject matter
jurisdiction over said claims.
6 Case No. RG19006761
UPS'S ANSWER TO PLAINTIFF*S UNVERIFIED COMPLAINT FOR DAMAGESNINETEENTH AFFIRMATIVE DEFENSE
(At-Will Employment)
19. Defendant alleges that the Complaint and each cause of action set forth therein, or
some of them, cannot be maintained against Defendant because Plaintiff has been an at-will
employee at all times during his employment with Defendant, with no entitlement to continued
employment pursuant to Section 2922 of the California Labor Code.
TWENTIETH AFFIRMATIVE DEFENSE
(Outside Course and Scope of Employment)
20. Defendant alleges, without admitting that Defendant engaged in any of the acts or
omissions alleged in Plaintiff's Complaint, that the Complaint and each cause of action set forth
therein are barred, in whole or in part, because if Plaintiff suffered any injury (which Defendant
denies), such injury was caused by the practices or instrumentalities of parties and/or unauthorized
individuals who were not within the scope and exclusive control of Defendant, nor acting within the
course and scope of their employment with Defendant.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Failure to Avoid Harm)
21. Defendant aileges, without admitting that Defendant engaged in any of the acts or
omissions alleged in Plaintiff's Complaint, the Complaint and each cause of action set forth therein,
or some of them, are barred, in whole or in part, because: (a) Defendant has exercised reasonable
care to prevent and promptly correct any alleged discriminatory and/or retaliatory behavior,
including, but not limited to, having in place appropriate policies and procedures which were
communicated to Plaintiff; (b) Plaintiff has unreasonably failed to take advantage of any
preventative or corrective opportunities provided by Defendant or to otherwise avoid harm; and
(c) Plaintiff's reasonable use of Defendant’s policies and procedures would have prevented at least
some of the purported harm of which Plaintiff now complains.
7 Case No. RG19006761
UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESA UW BW HN
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TWENTY-SECOND AFFIRMATIVE DEFENSE
(Offset)
22. Defendant alleges that any recovery to which Plaintiff might otherwise be entitled
must be offset by any unemployment benefits and/or other monies and/or benefits Plaintiff has
received or will receive.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
23. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis allege, Plaintiff failed to exercise reasonable care to
mitigate his damages, if any were suffered, and that his rights to recover against Defendant should be
reduced and/or eliminated by such a failure.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Damages Caused by Outside Factors)
24. ‘If Plaintiff has suffered any damages as alleged in his Complaint, such damages were
proximately caused by factors other than Plaintiff's employment, the actions of Defendant and/or
anyone acting on Defendant's behalf. If Plaintiff suffered any damages, such damages were
proximately or legally caused by the misconduct of Plaintiff and/or parties other than Defendant and,
accordingly, any award of damages must be reduced in whole or in part, or apportioned in proportion
to the percentage of comparative fault of Plaintiff, other parties and/or unauthorized individuals,
including both economic and non-economic damages. In the event of such apportionment,
Defendant is entitled to a separate judgment for non-economic damages in direct proportion to its
percentage of fault, if any is found, notwithstanding Defendant’s continuing denial of any fault,
pursuant to California Civil Code section 1431.2, with such percentage determined by the
comparative fault of all parties, non-parties and/or unauthorized individuals to this action, known or
unknown. To assess any greater percentage of fault and damages than its own against Defendant
would constitute a denial of equal protection of the law and due process which is guaranteed by the
United States and California Constitutions.
8 Case No. RG19006761
UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES28
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Current Employee)
25. Defendant alleges that the Complaint and each and every alleged cause of action
therein are barred because Plaintiff is a current employee of Defendant.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Plaintiff Not A Qualified Individual)
26. Defendant alleges that the Complaint and each and every alleged cause of action
therein are barred because Plaintiff, if disabled, has not been a qualified person because he could not
and cannot perform the essential functions of his job, with or without reasonable accommodation.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE -
(Undue Hardship)
27. Defendant alleges that the Complaint and each and every alleged cause of action
therein are barred, in whole or in part, because Defendant could not accommodate Plaintiff's alleged
disability without suffering undue hardship.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Health and Safety)
28. Defendant alleges that the Complaint and each and every alleged cause of action
therein are barred, in whole or in part, because Plaintiff has been unable to perform the essential
duties of his position, and/or perform the essential duties in a manner that would not endanger his
health or safety or the health or safety of others, even with reasonable accommodation. -
TWENTY-NINTH AFFIRMATIVE DEFENSE
(No Reasonable Accommodation)
29. Defendant alleges that the Complaint is barred because no reasonable accommodation
exists or existed which would have permitted Plaintiff to perform the essential duties of his position.
THIRTIETH AFFIRMATIVE DEFENSE
(Bona Fide Occupational Qualifications)
30. Defendant is informed and believes, and on that basis alleges, that the Complaint and
each and every alleged cause of action, in whole or in part, are barred because Defendant’s conduct
9 Case No. RG19006761
UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESw
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toward Plaintiff was fully justified based upon its judgment of differences in individual performance,
qualifications, skill, effort, responsibility, merit or other bona fide occupational qualifications.
THIRTY-FIRST AFFIRMATIVE DEFENSE
(No Private Right of Action)
31. Defendant alleges Plaintiff's Failure to Prevent Discrimination, Harassment, and
Retaliation in Violation of FEHA is barred, in whole or in part, because it does not exist as a private
tight of action.
THIRTY-SECOND AFFIRMATIVE DEFENSE
(Reasonable Care)
32. Defendant alleges that the Complaint and each and every alleged cause of action
therein are barred, in whole or in part, on the grounds that if any discriminatory, harassing or
retaliatory behavior occurred (which Defendant denies), Defendant exercised reasonable care to
prevent and promptly and appropriately redress all such behavior.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(No Knowledge)
33. Defendant alleges that the Complaint and each and every alleged cause of action
therein are barred, in whole or in part, because Defendant did not have knowledge of any propensity
by the alleged actor(s) to engage in the particular form of alleged wrongdoing Plaintiff alleged in the
Complaint.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Punitive Damages Unconstitutional)
34. Defendant alleges that Plaintiff is not entitled to recover punitive damages because
the imposition of such damages violates the United States and California Constitutions, in that:
(1) such damages are so punitive in purpose and effect as to constitute a criminal penalty, entitling
Defendant to rights to be given to Defendant in criminal proceedings under the United States and
California Constitutions; (2) such damages constitute an impermissible restriction on speech and a
violation of the First Amendment of the United States Constitution; (3) the imposition of such
damages would violate Defendant’s rights to due process and/or equal protection under the law,
10 Case No. RG19006761
UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESoD Oo me NIN DA HW BR WN
under the United States and California Constitutions; and/or (4) the California punitive damages
statute is unconstitutional in that it imposes an undue burden on interstate commerce.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
{Punitive Damages Not Justified)
35. Defendant alleges that without admitting to any of the acts, conduct or statements
attributed to it by Plaintiff's Complaint, Plaintiff's claims for punitive damages are barred because
the acts, conduct, or statements contained in Plaintiff's Complaint were not taken with the advance
knowledge, conscious disregard, authorization, ratification, or act of oppression, fraud, or malice on
the part of an officer, director or managing agent of Defendant.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Unauthorized Conduct)
36. Defendant alleges that the Complaint and each and every alleged cause of action
therein are barred, in whole or in part, because even assuming, arguendo, any agent of Defendant
engaged in any unlawful conduct toward Plaintiff (which Defendant denies), said conduct occurred
outside the course and scope of any employment or agency relationship with Defendant, in violation
of Defendant’s policies, and/or without the knowledge, authorization, consent, or ratification of
Defendant.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(No Entitlement to Prejudgment Interest)
37. | The Complaint fails to state a claim upon which prejudgment interest may be granted
because the damages claimed are not sufficiently certain to allow an award of prejudgment interest.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(Damages Too Speculative)
38. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges that the Complaint and each cause of action set
forth therein, or some of them, are barred because the damages Plaintiff alleges in the Complaint, if
any, are too speculative to be recoverable at law.
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THIRTY-NINTH AFFIRMATIVE DEFENSE
(Plaintiff's Claims are in Bad Faith)
39. Defendant is informed and believes that a reasonable opportunity for investigation
and discovery will reveal, and on that basis alleges, that Plaintiff's claims are unreasonable, were
filed in bad faith, and/or are frivolous and, for such reasons, justify an award of attorneys’ fees and
costs against Plaintiff and his attorneys pursuant to California law including, but not limited to
California Code of Civil Procedure section 128.5 and/or Government Code section 12965(b).
FORTIETH AFFIRMATIVE DEFENSE
(NLRB Preemption)
40. | The Complaint and each cause of action set forth therein is barred, in whole or in part,
because they are preempted by the National Labor Relations Act.
FORTY-FIRST AFFIRMATIVE DEFENSE
(Labor Management Relations Act Preemption)
41. The Complaint and each cause of action set forth therein is barred, in whole or in part,
because the terms and conditions of Plaintiff's employment were exclusively governed by a
collective bargaining agreement. Accordingly, any and all such claims for breach of contract-and
related claims are preempted by the Labor Management Relations Act.
FORTY-SECOND AFFIRMATIVE DEFENSE
(Failure to Exhaust Grievance Procedure)
42, . The Complaint and.each cause of action set forth therein is barred, in whole or in part,
because Plaintiff failed to exhaust the contractual grievance procedure in his collective bargaining
agreement.
FORTY-THIRD AFFIRMATIVE DEFENSE
(Accord and Satisfaction)
43. The Complaint and each cause of action set forth therein is barred, in whole or in part,
to the extent Plaintiff released the claims and damages sought and/or acknowledged an accord and
satisfaction of any claim asserted in the Complaint.
12 Case No. RG19006761
UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESFORTY-FOURTH AFFIRMATIVE DEFENSE
(Actions Consistent with Terms of Collective Bargaining Agreement)
44. The Complaint and each cause of action set forth therein is barred, in whole or in part,
because Defendant’s actions were consistent with the provisions of Plaintiff's collective bargaining
agreement.
RESERVATION OF ADDITIONAL DEFENSES
Defendant presently has insufficient knowledge or information upon which to form a belief
as to whether there may be additional, as yet unstated, defenses and reserves the right to assert
additional defenses or affirmative defenses in the event discovery indicates such defenses are
appropriate. toe
PRAYER FOR RELIEF
WHEREFORE, Defendant prays that: .
1. The Complaint be dismissed in its entirety with prejudice;
2. Plaintiff take nothing by way of his Complaint;
3. Defendant be awarded judgment in its favor and against Plaintiff,
4, Defendant be awarded its attorney fees and costs of suit incurred herein; and
5. The Court grant Defendant such other relief as the Court deems just and proper.
Dated: April 5, 2019 -
LISA LIN GARG
FRANCESCA LANPHER
LITTLER MENDELSON, P.C.
Attorneys for Defendant
UNITED PARCEL SERVICE, INC.
FIRM WIDE; 163096284.2 101661.1006
13 Case No. RG!9006761
UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES" ¢ eS aiteongum
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1 || LISA LIN GARCIA, Bar No. 260582
Ilgarcia@littler.com . FILED
2 || FRANCESCA LANPHER, Bar No. 299318
flanpher@littler.com ALAMEDA COUNTY
3 || LITTLER MENDELSON, P.C. APR 05 2919
333 Bush Street, 34th Floor
4 || San Francisco, CA 94104 . ane THE SUPERIO! ip court
Telephone: 415.433.1940
5 || FaxNo.: 415.399.8490 repuly
LL 6 || Attomeys for Defendant
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF ALAMEDA
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{1 || SHAUN MEDINA, Case No. RG19006761
12 Plaintiff, Assigned For All Purposes To
Judge Evelio Grillo, Dept. 13
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14 | UNITED PARCEL SERVICE, IXC., SERVICE, INC."S NOTICE OF MOTION
VIVIAN DOE, and DOES 1 to 100,
15 || inclusive, AND MOTION FOR AN ORDER TO
TRANSFER VENUE
16 Defendants.
{Code of Civil Proc. § 396b]
17
18 Complaint Filed: February 13, 2019
Date: * June 7, 2019
19 Time: 10:00 a.m.
20 Dept: 15
Reservation No.: R-2062097
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TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on June 7, 2019 at 10:00 a.m. in Department 15 of the
Alameda County Superior Court located at 1221 Oak Street, Oakland, California, 94612, Defendant
United Parcel Service, Inc. will, and hereby does, move the Court for an order transferring venue of
this action from Alameda County to San Joaquin County pursuant to California Code of Civil
Procedure section 396b and for an award to Defendant of costs and reasonable attomeys’ fees in the
amount of not less than $11,687 against Plaintiff and Plaintiff's counsel pursuant to California Code
of Civil Procedure section 396b. This motion is made on the ground that this action was commenced
in the wrong court, and therefore the transfer of venue to a proper court is mandatory pursuant to
Code of Civil Procedure section 396b.
This motion is based on this Notice of Motion and Motion; the accompanying Memorandum
of Points and Authorities; the Request for Judicial Notice; the Declaration of Francesca Lanpher; the
Declaration of LaRissa Sterling; the papers on file in this action; and such additional evidence and
oral argument as the Court deems necessary at the hearing on this motion.
Dated: April 5, 2019
4
LISA LIN GARCI
FRANCESCA LANPHER
LITTLER MENDELSON, P.C.
Attorneys for Defendant
UNITED PARCEL SERVICE, INC.
FIRMWIDE:163160153.1 101661.1006
2 Case No. RG!9006761
NOTICE OF MOTION AND MOTION TO TRANSFER VENUE1 || LISA LIN GARCIA, Bar No. 260582
Igarcia@littler.com
2 || FRANCESCA LANPHER, Bar No. 299318
flanpher@littler.com
3 || LITTLER MENDELSON, P.C. - -EILED
333 Bush Street ALAMEDA COUNTY
4 |) 34th Floor :
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16 Defendants. ORDER TO TRANSFER VENUE
17 [Code of Civil Proc. § 396b]
18 Complaint Filed: February 13, 2019
719 Date: June 7, 2019
20 Time: 10:00 a.m.
Dept: 15
21 Reservation No.: R-2062097
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I. INTRODUCTION
Plaintiff Shaun Medina (‘Plaintiff’) has filed an action in this Court against Defendants
United Parcel Service, Inc, (“UPS”) and Vivian Doe asserting claims arising out of his employment
with UPS. Throughout Plaintiff's employment, Plaintiff has worked at UPS’s facility located in San
Joaquin County; sof Alameda County. Accordingly, there can be no doubt that Plaintiff has
improperly brought this action in Alameda Superior Court and that the proper venue of this action is
San Joaquin County.
Plaintiff asserts seven causes of action under the Califomia Fair Employment and Housing
Act (“FEHA”), along with several non-FEHA claims, and asserts in his Complaint that the FEHA
special venue provision under California Government Code section 12965 governs this action.
(Complaint, {J 8-10.) Under that provision, Plaintiff may file an action in any county in which
(1) the unlawful practice is alleged to have been committed, (2) the records relevant to the practice
are maintained and administered, or (3) the aggrieved person would have worked but for the alleged
unlawful practice, Cal. Gov’t. Code § 12965(b). Plaintiff bases venue in this case on the FEHA
statute and alleges actions took place at the UPS location where Plaintiff worked in Lathrop,
Califomia. (Complaint, §{] 8-10.) However, Plaintiff incorrectly alleges that the city of Lathrop is
located in Alameda County. (/d.) In fact, the city of Lathrop is located in San Joaquin County, It
follows, as set forth in detail below, that Alameda County is not the proper venue for this action.
Accordingly, Defendant respectfully requests that the Court (1) issue an order transferring venue to
San Joaquin County pursuant to Code of Civil Procedure section 396b and (2) sanction Plaintiff's
counsel for
Preview
SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA Shaun Medina., et al, Plaintiff, Case No. RG19006761 Vs. CERTIFICATE United Parcel Service, INC, et al, Defendant, ———“‘“‘C_‘S/ FERIA AURA ACK I, CHAD FINKE, Executive Officer/Clerk of the Superior Court of the State of California, in and for the County of Alameda, which is a court of record of the State of California, having by law a seal, do hereby certify that: the attached documents are true and correct copies of each and every filing in the above entitled action. SER AIO OIC IC IC IR IKK ACCRA AA A AK IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of said Superior Court this 7th day of August, 2019. FROCK OCA ICR ICR ACK Chad Finke, Executive Officer/Clerk é (2.3. UF= COUNTY OF ALAMEDA : George E. McDonald Hall of Justice Page: 1 DOMAIN CASE SUMMARY Rundate: 08/07/2019 Case Number RG19006761 Case Title Medina VS United Parcel Service, Inc. Type General Civil Status Pending Filing Date 02/13/2019 Stage Filed Location Rene C, Davidson Alameda County Courthouse Jurisdiction Unlimited Matter Filed Date Matter Title Matter Status Disposition Type / Date 02/13/2019 Complaint - Wrongful Termination Pending Plaintiff - Shaun Medina Defendant Answered Uaited Parcel Service, Inc. Defendant Named vivian Doe RofADate —- ROfA Text. 02/13/2019 Complaint - Wrongful Termination Filed 02/13/2019 Civil Case Cover Sheet Filed for Shaun Medina 02/13/2019 Summons on Complaint Issued and Filed 02/20/2019 Initial Case Management Conference 07/02/2019 03:00 PM D- 15 02/20/2019 Notice of Assignment of Judge for All Purposes Issued 03/08/2015 Proof of Service on Complaint Ag to United Parcel Service, Inc. Filed 03/22/2019 Motion for Change of Venue (Out of County) Reservation Set for dept: 15 date: 06/07/2019 time: 04/05/2019 Answer to Complaint Filed for United Parcel Service, Inc. 04/05/2019 Motion for Change of Venue (our of County) Filed for Defendant 04/05/2019 Motion for Change of Venue (Out of County) Hearing Confirmed for 06/07/2019 10:00 AM D- 15 05/24/2019 Stipulation and Order Re: Other =x Parte Filed: 05/24/2019 Stipulation and Order Re: Other Ex Parte Routed to Judge 05/28/2019 Notice of Acknowledgment of Service Filed 05/30/2019 Stipulation and Order Re: Other Ex Parte Granted 06/31/2019 Notice of Posting of Jury Fees Filed 08/31/2019 Case Management Statement of Shaun Medina Filed 05/31/2019 Notice of Case Management Conference Filed 06/08/2019 TR - Motion for Change of Venue (Out pf County) - Dropped 06/07/2019 Civil Law and Motion. eer “Comme aed sand | Competed 06/07/2019 07/02/2019 07/02/2019 Case Management > din beSNet Ora ip rah Bt = ne 07/08/2019 Case Management~Sti siaconit 07/08/2019 07/31/2019 Case Management seagate ot ainited ND = 07/02/2019 case Management B foot Retneaeaioegi Tacos aM D- 15 sveed Service, Inc. Filed re 07/31/2019 Proof of Service Case Managejtent Stavemenc Filed Report Id : Case Reports - Register Of Actioney OM COUNTY OF ALAMEDA : George E. McDonald Hall of Justice Page: 2 DOMAIN CASE SUMMARY Rundate: 08/07/2019 Case Number RG19006761 07/31/2019 Hearing Reset to Case Management Conf Continuance 09/17/2019 03:00 PM D- 15 SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDE 4, The foregoing instru origi® VINO vraaind Tey ea Report Id : Case Reports - Register Of ActionShegerian & Associates, INc. 7 r 1 Attn: Shegerian, Carney R. 225 Santa Monica Boulevard Suite 700 L Santa Monica,CA 90401 J L 4 Superior Court of California, County of Alameda Medina : No. RG19006761 Plaintiff/Petitioner(s) VS. NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER United Parcel Service, Inc. Unlimited Jurisdiction Defendant/Respondent(s) (Abbreviated Title) TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Notice is given that a Case Management Conference has been scheduled as follows: Date: 07/02/2019 | Department: 15 udge: Evelio Grillo Time: 03:00 PM Location: Administration Building Clerk: Dameda Scott Third Floor (Clerk telephone: (510) 267-6931 1221 Oak Street, Oakland CA 94612 [E-mail: Dept.15@alameda.courts.ca.gov Internet: www.alameda.courts.ca.gov Fax: ORDERS |. Plaintiff must: a, Serve all named defendants and file proofs of service on those defendants with the court within 60 days of the filing of the complaint (Cal. Rules of Court, 3.110(b)): and b. Give notice of this conference to all other parties and file proof of service. 2. Defendant must respond as stated on the summons. 3, All parties who have appeared before the date of the conference must: a. Meet and confer, in person or by telephone as required by Cal. Rules of Court, rule 3.724; b, File and serve a completed Case Management Statement on Form CM-110 at least 15 days before the Case Management Conference (Cal. Rules of Court, rule 3.725); and. c. Post jury fees as required by Code of Civil Procedure section 631. 4. Ifyou do not follow the orders above, the court may issue an order to show cause why you should not be sanctioned under Cal. Rules of Court, rule 2.30. Sanctions may include monetary sanctions, striking pleadings or dismissal of the action. 5. You are further ordered to appear in person or through your attorney of record at the Case Management Conference noticed above. You must be thoroughly familiar with the case and fully authorized to proceed. You may be able to appear at Case Management Conferences by telephone. Contact CourtCall, an independent vendor, at least three business days before the scheduled conference. Call 1-888-882-6878, or fax a service request to (888) 882-2946, The vendor charges for this service. 6. You may file Case Management Conference Statements by E-Delivery. Submit them directly to the E- Delivery Fax Number (510) 267-5732. No fee is charged for this service. For further information, go to wit. alameda. courts.ca.gov/ff- 7. The judge may place a Tentative Case Management Order in your case’s on-line register of actions before the conference, This order may establish a discovery schedule, set a trial date or refer the case to Alternate Dispute Resolution, such as mediation or arbitration. Check the website of each assigned department for procedures regarding tentative case management orders at s»w.a/ameda.courts.ca.gov/de, Form Approved for Mandatory Use NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER Page 1 of 2 ‘Superior Court of California, County of Alameda ALA CIV-100 [Rev. 07-01-2015]CLERK'S CERTIFICATE OF MAILING 1 certify that the following is true and correct: I am the clerk of the above-named court and not a party to this cause, I served this Notice of Hearing by placing copies in envelopes addressed as shown hereon and then by sealing and placing them for collection, stamping or metering with prepaid postage, and mailing on the date stated below, in the United States mail at Alameda County, Califomia, following standard court practices. Executed on 02/21/2019. octal py Dama. OAT Deputy Clerk Form Approved for Mandatory Use NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER Page 2 of 2 Superior Court of California, County of Alameda ALA ClV-100 [Rev. 07-01-2015]Superior Court of California, County of Alameda Notice of Assignment of Judge for All Purposes Case Number: RG19006761 Case Title: Medina VS United Parcel Service, Inc. Date of Filing: 02/13/2019 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Pursuant to Rule 3.734 of the California Rules of Court and Title 3 Chapter 2 of the Local Rules of the Superior Court of California, County of Alameda, this action is hereby assigned by the Presiding Judge for all purposes to: Judge: Evelio Grillo Department: 15 Address: Administration Building 1221 Oak Street Oakland CA 94612 Phone Number: (510) 267-6931 Fax Number: Email Address: Dept.15@alameda.courts.ca.gov Under direct calendaring, this case is assigned to a single judge for all purposes including trial. Please note: In this case, any challenge pursuant to Code of Civil Procedure section 170.6 must be exercised within the time period provided by law. (See Code Civ. Proc. §§ 170.6, subd. (a)(2) and 1013.) NOTICE OF NONAVAILABILITY OF COURT REPORTERS: Effective June 4, 2012, the court will not provide a court reporter for civil law and motion hearings, any other hearing or trial in civil departments, or any afternoon hearing in Department 201 (probate). Parties may arrange and pay for the attendance of a certified shorthand reporter. In limited jurisdiction cases, parties may request electronic recording. Amended Local Rule 3.95 states: "Except as otherwise required by law, in general civil case and probate departments, the services of an official court reporter are not normally available. For civil trials, each party must serve and file a statement before the trial date indicating whether the party requests the presence of an official court reporter." IT IS THE DUTY OF EACH PLAINTIFF AND CROSS COMPLAINANT TO SERVE A COPY OF THIS NOTICE IN ACCORDANCE WITH LOCAL RULES. Page 1 of 4General Procedures Following assignment of a civil case to a specific department, all pleadings, papers, forms, documents and writings can be submitted for filing at either Civil Clerk’s Office, located at the René C. Davidson Courthouse, Room 109, 1225 Fallon Street, Oakland, California, 94612, and the Hayward Hall of Justice, 24405 Amador Street, Hayward, Califomia, 94544. All documents, with the exception of the original summons and the original civil complaint, shall have clearly typed on the face page of each document, under the case number, the following: ASSIGNED FOR ALL PURPOSES TO JUDGE Evelio Grillo DEPARTMENT 15 All parties are expected to know and comply with the Local Rules of this Court, which are available on the Court’s website at: http:/(www.alameda.courts.ca.qov/Pages.aspx/Local- Rules(1) and with the Califomia Rules of Court, which are available at www.courtinfo.ca.gov. Parties must meet and confer to discuss the effective use of mediation or other alternative dispute processes (ADR) prior ta the Initial Case Management Conference. The court encourages parties to file a “Stipulation to Attend ADR and Delay Initial Case Management Conference for 90 Days”. Plaintiff received that form in the ADR information package at the time the complaint was filed. The court's Web site aiso contains this form and other ADR information. If the parties do not stipulate to attend ADR, the parties must be prepared to discuss referral to ADR at the Initial Case Management Conference. Contacts with Dept. 15 should be by email to Dept. 145@alameda.courts.ca.gov. You must provide copies of all email communications to each party (or their attorneys, if represented) at the same time you send the email to the Court and you must show that you have done so in your email. When a copy of a document must be transmitted to court staff, an email attachment is preferable to fax. Use of an email attachment or fax, however, is not a substitute for filing of pleadings or other documents. Inclusion of available email addresses in the caption of all filed papers, as required by CRC 2.111(1) is required. Parties/attorneys must confer before scheduling a hearing date. Counsel are expected to be familiar and comply with the Statement of Professionalism and Civility, Alameda County Bar Association www.acbanet.org. Counsel should consider and recommend creative, efficient approaches to valuing and resolving their case (CRC §3.724). Schedule for Department 15 The following scheduling information is subject to change at any time, without notice. Please contact the department at the phone number or email address noted above if you have questions. e Trials generally are held: Unless otherwise advised, both court and jury trials are Mondays through Thursdays at 10:00 am through 4:30 pm; expect to be in the courtroom from 9:00 am to 5:00 pm. Cases may "trail" a trial in progress. « Case Management Conferences are held: Mon., Wed., Thurs. and Fri. at 9:15 am and Tues, at 3:00 pm. Timely filed and complete case management conference statements are required and may eliminate the need for a hearing. Page 2 of 4« Lawand Motion matters are heard: Law & Motion hearings will be held on Tuesdays at 3:00 p.m. and Fridays at 10:00 a.m. Email Dept. 15 for reservations. Include case name & number, title of motion and identity of moving party. Courtesy copies shall be delivered to the department. « Settlement Conferences are heard: As scheduled by the Judge. Court resources are limited, and counsel should consider other ADR alternatives. Conferences will be specially set when deemed appropriate. « x Parte matters are heard: The applicant must contact the clerk for a hearing date and provide CRC 3.1203(a) notice to all parties. The applicant must appear, in person or by phone if allowed, unless it is a stipulation for an order or otherwise allowed under CRC 3.1207. Law and Motion Procedures To obtain a hearing date for a Law and Motion or ex parte matter, parties must contact the department as follows: * Motion Reservations Email: Dept.15@alameda.courts.ca.gov The parties should check the tentative rulings on the court's website and notify the courtroom clerk and all other parties of plans to contest by 4:00 pm the day before the hearing. e Ex Parte Matters Email: Dept15@alameda.courts.ca.gov Tentative Rulings The court may issue tentative rulings in accordance with the Local Rules. Tentative rulings will become the Court's order unless contested in accordance with the Local Rules. Tentative rulings will be available at: « Website: www.alameda.courts.ca.gov/domainweb, Calendar Information for Dept. 15 e Phone: 1-866-223-2244 Dated: 02/20/2019 La S Cont Presiding Judge, Superior Court of California, County of Alameda Page 3 of 4oy a aA AE ATTORNEY OR PARTY WITHOUT ATTORNEY (Nemo, State Ber number, and address}: - FOR CL... _- 22118782 _ CARNEY R. SHEGERIAN, ESQ. (150461) |— SHEGERIAN & ASSOCIATES, INC. 225 Santa Monica Blvd, Sulte 700 Santa Monica, California 90401 TELEPHONE NO; (310) 860-0770 FAX NO, (Gptionay: (310) 860-0771 FILED ATTORNEY FOR (Name): SHAUN MEDINA . ACO! SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA smeetaooress: 1225 Fallon Street MAR 08 2019 MAILING ADDRESS: THE SUPERIOR COURT cryanozipcooe: Oakland, Califomia 94612 B BRANCH NAME: y PLAINTIFFIPETITIONER: SHAUN MEDINA : CASE NUMBER: RG19006761 DEFENDANTRESPONDENT: UNITED PARCEL SERVICE, INC., et al. Ret. No. oF File NO: PROOF OF SERVICE OF SUMMONS | W113021 (Separate proof of services is required for: each party served.) 1. Atthe time of service | was af least 18 years of age and not a party to this action, 2. [served copies of: a [7] summons b. [7] complaint Alternative Dispute Resolution (ADR) package Civil Case Cover Sheet (served in complex cases only) cross-complaint other (specify documents): Summons And Complaint; Civil Case Cover Sheet reap KOOO 3. a. Party served (specify name of party as shown on documents served): UNITED PARCEL SERVICE, INC. xXD4 Ag Polld b. Gd Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person under item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a): BECKY DEGEORGE, Authorized Agent of CSC-Lawyers Incorporating Service, Agent for Service of Process 4. Address where the party was served: 2710 Gateway Oaks Drive, Sulte 150N Sacramento, CA 95833 5. I served the party (check proper box) a. [3X] by personal service, | personally delivered the documents listed in item 2 to the party or person authorized to teceive service of process for the party (1) on (data): 2/20/2019 (2) at (time): 9:14 a.m. b. [1 by substituted service. On (date): at (time): Hef the documents listed in item 2 with or In the presence of (name and title or relationship fo person indicated in item 3): (1) [C7] {business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. | Informed him or her of the general nature of the Papers. (2) [] (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. | informed him or her of the general nature of the Papers. (3) C4 (physicat address unknown) a person al least 18 years of age apparently in charge at the usual mailing address of the person to be servad, other than a United States Postal Service Post office box. | informed him or her of the general nature of the papers. (4) [7] I thereafter maited (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left (Code Civ. Prac., § 415.20). | mailed the documents on (date): from (city): or a declaration of mailing is attached. ©) [71 ‘attach a declaration of diligence stating actions taken first fo attempt personal service. Page tot? For dared for Mandatory Use PROOF OF SERVICE OF SUMMONS Caco of Ge Procedure, § 47.40 POS-010 [Rev. January t, 2007]% “ PLAINTIFF/PETITIONER: SHAUN MEDINA . CASE NUMBER: RG19006761 DEFENDANT/RESPONDENT; UNITED PARCEL SERVICE, INC,, et al. 5 CO by mall and acknowledgment of receipt of service. | mailed the documents listed in item 2 to the party, to the address shown in item 4, by first-class mail, postage prepaid, (1) an (data): (2) from (city): (3) [[] with two copies of the Notice and Acknowledgment of Receipt and a postage-paid retum envelope addressed tome. (Attach completed Notice and Acknowledgement of Receipt.) (Cade Civ. Proc., § 415.30.) (4) [J to an address outside Califomia with return recelpt requested. (Code Civ. Proc., § 415.40.) d. [_] by other means (specify means of service and authorizing cade section): (1 Additional page describing service is attached. 6, The ‘Notice to the Person Served" (on the summons) was completed as follows: a [1 asan individual defendant. : b. Cc as the person sued under the fictitious name of (specify): c CI ‘as occupant. 4. Lx} on behalf of (specify): UNITED PARCEL SERVICE, INC. under the following Code of Civil Procedure section: [4 416.10 (corporation) (1 415,95 (business organization, form unknown) (71 416.20 (defunct corporation) C3 416.60 (minor) (21 416.30 (joint stock companyfassociation) [2] 416.70 (ward or conservatee) €) 416.40 (asscciation or partnership) © 416.90 (authorized person) Ga) 416.50 (public entity) © 415.46 (occupant) © other 7. Person who served papers a. Name: Steve Glaeser b. Address: Wheels of Justice, Inc., 52 Second Street, Third Floor, San Francisco, California 94105 c. Telephone number: (415) 546-6000 d. The fee for service was: $ @. lam: (1) not a registered California process server. (2) [] exempt from registration under Business and Professions Code section 22350(b), (3) L2C] a registered California process server: @ [£5 owner [_Jempioyee [3c] independent contractor. (i) Registration No.: 2013-44 ~~ (il) County; Sacramento 8. [3e} I dectare under penalty of perjury under the laws of the Stata of Califomia that the foregoing is true and correct, or 9. [_] tama California sheriff or marshal and | certify that the foregoing Is true and correct. Date: February 20, 2019 Steve Glaeser > (NAME OF PERSON WHO SERVED PAPERGISHERIFF OR MARSHAL) * (SIGNATURE ) " Page zor POS-D10 [Rev Jenuary 1, 2007) PROOF OF SERVICE OF SUMMONS.— BY FAX oD wm KN OH RB wD NNN RY NY NN NE ee ee He He ewe eH AAA FO NH = SD we HY AW RF wD NH = 28 UITTUER MENDELSON, P.C. e TOSTAOER Li... 20939094 LISA LIN GARCIA, Bar No. 260582 lgarcia@littler.com - FRANCESCA LANPHER, Bar No. 299318 FI re D flanpher@littler.com ALAMEDA GOUNTY LITTLER MENDELSON, P.C. APR 05 333 Bush Street CEERI ue 34th Floor K OF TH, San Francisco, CA 94104 ay ee ue fo Wy; Govar Telephone: 415.433.1940 te oO Fax No.: 415.399.8490 fenuly Attorneys for Defendant UNITED PARCEL SERVICE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA SHAUN MEDINA, Case No. RG19006761 Plaintiff, Assigned For All Purposes To ¥ Judge Evelio Grillo, Dept. 13 - - DEFENDANT UNITED PARCEL UNITED PARCEL SERVICE, INC., > VIVIAN DOE, and DOES 1 to 100, SERVICE, INC.’S ANSWER TO inclusive, PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES Defendants. Complaint Filed: February 13, 2019 UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESDefendant UNITED PARCEL SERVICE, INC. (“Defendant”) hereby answers Plaintiff SHAUN MEDINA’s (“Plaintiff”) unverified Complaint for Damages (“Complaint”), as follows: GENERAL DENIAL Pursuant to California Code of Civil Procedure section 431.30, Defendant generally denies each and every allegation contained in the Complaint. In addition, Defendant denies that Plaintiff has sustained, or wil] sustain, any loss or damage in the manner or amount alleged, or otherwise, by reason of any act or omission, or any other conduct or absence thereof, on the part of Defendant.! AFFIRMATIVE DEFENSES AND OTHER DEFENSES Defendant asserts the following affirmative defenses and other defenses, which it has designated, collectively, as “affirmative defenses.” Defendant's designation of its defenses as “affirmative” is not intended to alter Plaintiffs burden of proof with regard to any element of the causes of action in his Complaint. Defendant does not presently know all the facts concerning the conduct of Plaintiff sufficient to state all affirmative defenses at this time. Defendant reserves the tight to assert additional defenses or affirmative defenses, and will seek leave of court to amend this Answer should it later discover facts demonstrating the existence of additional defenses or affirmative defenses. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 1. The Complaint and each and every alleged cause of action therein fail to state facts sufficient to constitute a cause of action upon which relief can be granted. ‘ SECOND AFFIRMATIVE DEFENSE (Waiver) 2. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, the Complaint and each cause of action set forth therein are barred by the ecuitable doctrine of waiver. ! The filing of this Answer does not waive Defendant’s right to transfer venue of this action to the proper court pursuant to California Code of Civil Procedure section 396b. While Defendant is filing this Answer in Alameda County Superior Court, Defendant maintains that San Joaquin Superior Court is the proper venue for this action and has concurrently filed its Motion to Transfer Venue to San Joaquin Superior Court, Defendant further asserts that this case is not yet at issue because, as of the date of filing this Answer, all Defendants in the action have not been served, 2 Case No. RG19006761 UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESTHIRD AFFIRMATIVE DEFENSE (Estoppel) 3. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set forth therein are barred by the equitable doctrine of estoppel. FOURTH AFFIRMATIVE DEFENSE {Laches) 4. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set forth therein are barred by the equitable doctrine of laches. FIFTH AFFIRMATIVE DEFENSE (Unclean Hands) 5. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set forth therein are barred by the equitable doctrine of unclean hands. SIXTH AFFIRMATIVE DEFENSE (Consent) 6. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set forth therein are barred by tke doctrine of consent. , SEVENTH AFFIRMATIVE DEFENSE (Res Judicata and/or Collateral Estoppel) 7. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set forth therein are barred by the doctrine of res judicata and/or collateral estoppel. 3 Case No. RG19006761 UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESw SO mw DAD HW A EIGHTH AFFIRMATIVE DEFENSE (Statutes of Limitation) 8. Each purported cause of action set forth in the Complaint is barred, in whole or in part, by the applicable statute(s) of limitation, including, without limitation, those set forth in California Government Code sections 12960 and 12965(b) and (d), and California Code of Civil Procedure sections 335.1, 338, 340 and/or 343. NINTH AFFIRMATIVE DEFENSE (Failure to Exhaust Administrative Remedies) 9. The Complaint, and each cause of action set forth therein are barred, in whole or in part, because Plaintiff failed to exhaust his administrative remedies with the California Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission. TENTH AFFIRMATIVE DEFENSE (Claims Exceed Scope of Administrative Charge(s)) 10. Defendant is ‘informed and believes that further investigation and discovery will reveal, and on that basis allege, that the Complaint and each cause of action set forth therein are barred, in whole or in part, to the extent that Plaintiff did attempt to exhaust his administrative remedies with the California Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission, the causes of action asserted in the Complaint are not like or reasonably related to the allegations of Plaintiff's charge(s) filed with the California Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission. ELEVENTH AFFIRMATIVE DEFENSE (Avoidable Consequences) 11. Defendant is: informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, Plaintiff's claims are barred, in whole or in part, by the doctrine of avoidable consequences because Defendant took all reasonable steps to comply with the law, but Plaintiff unreasonably failed to follow Defendant’s policies and practices and failed to use the preventative and corrective opportunities provided to him, and the reasonable adherence to 4 Case No. RG19006761 UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESLITTLER MENDELSON, P.C. Wa ian to Sesh rFleor tan sage, Ex. S2071 WSS or use of such procedures would have prevented at feast some, if not all, of the harm Plaintiff allegedly suffered. TWELFTH AFFIRMATIVE DEFENSE (Managerial Privilege) 12. Without admitting any of the acts, conduct, or statements attributed to Defendant in the Complaint, Defendant alleges that it took no inappropriate action toward Plaintiff and any actions taken toward Plaintiff by Defendant are protected by the managerial privilege in that Defendant’s actions with respect to Plaintiffs employment, which Plaintiff claims to be wrongful, were undertaken and exercised with proper managerial discretion in good faith, and for proper, lawful reasons based upon all relevant facts and circumstances known by Defendant at the time it acted, therefore barring Plaintiff from recovery in this action. THIRTEENTH AFFIRMATIVE DEFENSE (Legitimate Business Reasons for Employment Decisions) 13. The Complaint and each cause of action set forth therein, or some of them, are barred, in whole or in part, because the employment decisions about which Plaintiff complains were based upon legitimate, non-discriminatory and non-retaliatory business reasons. FOURTEENTH AFFIRMATIVE DEFENSE (Defendant Acted in Good Faith and with Good Cause) 14. Defendant alleges that the Complaint and each cause of action set forth therein cannot be maintained because good cause existed for each and every action taken by Defendant with respect to Plaintiff's employment and Defendant acted reasonably and in good faith, at all times, based upon all relevant facts and circumstances known by Defendant at the time it acted. FIFTEENTH AFFIRMATIVE DEFENSE (Mixed-Motive) 15. Defendant alleges, without admitting that Defendant engaged in any of the acts or omissions alleged in Plaintiff's Complaint, that even if Plaintiff could establish that any of the allegations set forth in the Complaint were motivated by a potentially illegitimate motive, that 5 Case No. RG19006761 UPS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGESLUTTLER MENDELSON, P.C, Ho pee She & eC wn nw 28 ® . @ Defendant would have made the same decision and/or taken the same action even if it had not taken the alleged illegitimate motive into account. , SIXTEENTH AFFIRMATIVE DEFENSE (After-Acquired Evidence) 16. Defendant alleges that, to the extent Defendant acquires any evidence of wrongdoing by Plaintiff during the course of this litigation that would have materially affected the terms and conditions of Plaintiff's employment or would have resulted in Plaintiff being demoted, disciplined, and/or terminated, such after-acquired evidence shall bar Plaintiff's claims for damages and shall reduce such claims as provided by law. SEVENTEENTH AFFIRMATIVE DEFENSE (Plaintiff's Breach of Duties) 17. Defendant alleges that the Complaint and each cause of action therein, or some of them, are barred, in whole or in part, by Plaintiff's own breach of duties owed to Defendant under California Labor Code sections 2853, 2854, 2856, 2857, 2858 and/or 2859. EIGHTEENTH AFFIRMATIVE DEFENSE (Workers’ Compensation Exclusivity and Preemption) 18. Defendant alleges that the Complaint and each cause of action set forth therein seeking damages for emotional and/or physical injury are preempted and barred by the exclusive remedy provisions of the California Workers’ Compensation Act, California Labor Code section 3600, et seg., and California Labor Code section 132a, in that: (1) the injuries complained of occurred when both Plaintiff and Defendant were subject to California Labor Code sections 3600- 3601; (2) at the time of the alleged injuries, Plaintiff was performing services incidental to his employment and was acting within the course and scope of his employment; and (3) Plaintiff alleges that the injuries were caused by his employment, and accordingly, this Court lacks Subject matter jurisdiction over said claims. 6 Case No. RG19006761 UPS'S ANSWER TO PLAINTIFF*S UNVERIFIED COMPLAINT FOR DAMAGESNINETEENTH AFFIRMATIVE DEFENSE (At-Will Employment) 19. Defendant alleges that the Complaint and each cause of action set forth therein, or some of them, cannot be maintained against Defendant because Plaintiff has been an at-will employee at all times during his employment with Defendant, with no entitlement to continued employment pursuant to Section 2922 of the California Labor Code. TWENTIETH AFFIRMATIVE DEFENSE (Outside Course and Scope of Employment) 20. Defendant alleges, without admitting that Defendant engaged in any of the acts or omissions alleged in Plaintiff's Complaint, that the Complaint and each cause of action set forth therein are barred, in whole or in part, because if Plaintiff suffered any injury (which Defendant denies), such injury was caused by the practices or instrumentalities of parties and/or unauthorized individuals who were not within the scope and exclusive control of Defendant, nor acting within the course and scope of their employment with Defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE (Failure to Avoid Harm) 21. Defendant aileges, without admitting that Defendant engaged in any of the acts or omissions alleged in Plaintiff's Complaint, the Complaint and each cause of action set forth therein, or some of them, are barred, in whole or in part, because: (a) Defendant has exercised reasonable care to prevent and promptly correct any alleged discriminatory and/or retaliatory behavior, including, but not limited to, having in place appropriate policies and procedures which were communicated to Plaintiff; (b) Plaintiff has unreasonably failed to take advantage of any preventative or corrective opportunities provided by Defendant or to otherwise avoid harm; and (c) Plaintiff's reasonable use of Defendant’s policies and procedures would have prevented at least some of the purported harm of which Plaintiff now complains. 7 Case No. RG19006761 UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESA UW BW HN ro 10 mn 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 + LITTLER MENDELSON, P.C. i ‘man Sn Sanat TWENTY-SECOND AFFIRMATIVE DEFENSE (Offset) 22. Defendant alleges that any recovery to which Plaintiff might otherwise be entitled must be offset by any unemployment benefits and/or other monies and/or benefits Plaintiff has received or will receive. TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 23. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis allege, Plaintiff failed to exercise reasonable care to mitigate his damages, if any were suffered, and that his rights to recover against Defendant should be reduced and/or eliminated by such a failure. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Damages Caused by Outside Factors) 24. ‘If Plaintiff has suffered any damages as alleged in his Complaint, such damages were proximately caused by factors other than Plaintiff's employment, the actions of Defendant and/or anyone acting on Defendant's behalf. If Plaintiff suffered any damages, such damages were proximately or legally caused by the misconduct of Plaintiff and/or parties other than Defendant and, accordingly, any award of damages must be reduced in whole or in part, or apportioned in proportion to the percentage of comparative fault of Plaintiff, other parties and/or unauthorized individuals, including both economic and non-economic damages. In the event of such apportionment, Defendant is entitled to a separate judgment for non-economic damages in direct proportion to its percentage of fault, if any is found, notwithstanding Defendant’s continuing denial of any fault, pursuant to California Civil Code section 1431.2, with such percentage determined by the comparative fault of all parties, non-parties and/or unauthorized individuals to this action, known or unknown. To assess any greater percentage of fault and damages than its own against Defendant would constitute a denial of equal protection of the law and due process which is guaranteed by the United States and California Constitutions. 8 Case No. RG19006761 UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES28 LITILER MENDELSON, P.C. ater Sa tes ast A e200 Ps th 08 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Current Employee) 25. Defendant alleges that the Complaint and each and every alleged cause of action therein are barred because Plaintiff is a current employee of Defendant. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Plaintiff Not A Qualified Individual) 26. Defendant alleges that the Complaint and each and every alleged cause of action therein are barred because Plaintiff, if disabled, has not been a qualified person because he could not and cannot perform the essential functions of his job, with or without reasonable accommodation. TWENTY-SEVENTH AFFIRMATIVE DEFENSE - (Undue Hardship) 27. Defendant alleges that the Complaint and each and every alleged cause of action therein are barred, in whole or in part, because Defendant could not accommodate Plaintiff's alleged disability without suffering undue hardship. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Health and Safety) 28. Defendant alleges that the Complaint and each and every alleged cause of action therein are barred, in whole or in part, because Plaintiff has been unable to perform the essential duties of his position, and/or perform the essential duties in a manner that would not endanger his health or safety or the health or safety of others, even with reasonable accommodation. - TWENTY-NINTH AFFIRMATIVE DEFENSE (No Reasonable Accommodation) 29. Defendant alleges that the Complaint is barred because no reasonable accommodation exists or existed which would have permitted Plaintiff to perform the essential duties of his position. THIRTIETH AFFIRMATIVE DEFENSE (Bona Fide Occupational Qualifications) 30. Defendant is informed and believes, and on that basis alleges, that the Complaint and each and every alleged cause of action, in whole or in part, are barred because Defendant’s conduct 9 Case No. RG19006761 UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESw nn ro toward Plaintiff was fully justified based upon its judgment of differences in individual performance, qualifications, skill, effort, responsibility, merit or other bona fide occupational qualifications. THIRTY-FIRST AFFIRMATIVE DEFENSE (No Private Right of Action) 31. Defendant alleges Plaintiff's Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA is barred, in whole or in part, because it does not exist as a private tight of action. THIRTY-SECOND AFFIRMATIVE DEFENSE (Reasonable Care) 32. Defendant alleges that the Complaint and each and every alleged cause of action therein are barred, in whole or in part, on the grounds that if any discriminatory, harassing or retaliatory behavior occurred (which Defendant denies), Defendant exercised reasonable care to prevent and promptly and appropriately redress all such behavior. THIRTY-THIRD AFFIRMATIVE DEFENSE (No Knowledge) 33. Defendant alleges that the Complaint and each and every alleged cause of action therein are barred, in whole or in part, because Defendant did not have knowledge of any propensity by the alleged actor(s) to engage in the particular form of alleged wrongdoing Plaintiff alleged in the Complaint. THIRTY-FOURTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) 34. Defendant alleges that Plaintiff is not entitled to recover punitive damages because the imposition of such damages violates the United States and California Constitutions, in that: (1) such damages are so punitive in purpose and effect as to constitute a criminal penalty, entitling Defendant to rights to be given to Defendant in criminal proceedings under the United States and California Constitutions; (2) such damages constitute an impermissible restriction on speech and a violation of the First Amendment of the United States Constitution; (3) the imposition of such damages would violate Defendant’s rights to due process and/or equal protection under the law, 10 Case No. RG19006761 UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESoD Oo me NIN DA HW BR WN under the United States and California Constitutions; and/or (4) the California punitive damages statute is unconstitutional in that it imposes an undue burden on interstate commerce. THIRTY-FIFTH AFFIRMATIVE DEFENSE {Punitive Damages Not Justified) 35. Defendant alleges that without admitting to any of the acts, conduct or statements attributed to it by Plaintiff's Complaint, Plaintiff's claims for punitive damages are barred because the acts, conduct, or statements contained in Plaintiff's Complaint were not taken with the advance knowledge, conscious disregard, authorization, ratification, or act of oppression, fraud, or malice on the part of an officer, director or managing agent of Defendant. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Unauthorized Conduct) 36. Defendant alleges that the Complaint and each and every alleged cause of action therein are barred, in whole or in part, because even assuming, arguendo, any agent of Defendant engaged in any unlawful conduct toward Plaintiff (which Defendant denies), said conduct occurred outside the course and scope of any employment or agency relationship with Defendant, in violation of Defendant’s policies, and/or without the knowledge, authorization, consent, or ratification of Defendant. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (No Entitlement to Prejudgment Interest) 37. | The Complaint fails to state a claim upon which prejudgment interest may be granted because the damages claimed are not sufficiently certain to allow an award of prejudgment interest. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Damages Too Speculative) 38. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges that the Complaint and each cause of action set forth therein, or some of them, are barred because the damages Plaintiff alleges in the Complaint, if any, are too speculative to be recoverable at law. Il Case No. RG1900676t UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESoD wm KD HW RB YW NY = NM RYN NNN YD De ee ea UA A FON =F SB wea DHA RF BY = 28 LITILER MENDELSON, P.C. Ta Wes ih Sueth, Te Fie ae Angaten S300 TS rer THIRTY-NINTH AFFIRMATIVE DEFENSE (Plaintiff's Claims are in Bad Faith) 39. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that Plaintiff's claims are unreasonable, were filed in bad faith, and/or are frivolous and, for such reasons, justify an award of attorneys’ fees and costs against Plaintiff and his attorneys pursuant to California law including, but not limited to California Code of Civil Procedure section 128.5 and/or Government Code section 12965(b). FORTIETH AFFIRMATIVE DEFENSE (NLRB Preemption) 40. | The Complaint and each cause of action set forth therein is barred, in whole or in part, because they are preempted by the National Labor Relations Act. FORTY-FIRST AFFIRMATIVE DEFENSE (Labor Management Relations Act Preemption) 41. The Complaint and each cause of action set forth therein is barred, in whole or in part, because the terms and conditions of Plaintiff's employment were exclusively governed by a collective bargaining agreement. Accordingly, any and all such claims for breach of contract-and related claims are preempted by the Labor Management Relations Act. FORTY-SECOND AFFIRMATIVE DEFENSE (Failure to Exhaust Grievance Procedure) 42, . The Complaint and.each cause of action set forth therein is barred, in whole or in part, because Plaintiff failed to exhaust the contractual grievance procedure in his collective bargaining agreement. FORTY-THIRD AFFIRMATIVE DEFENSE (Accord and Satisfaction) 43. The Complaint and each cause of action set forth therein is barred, in whole or in part, to the extent Plaintiff released the claims and damages sought and/or acknowledged an accord and satisfaction of any claim asserted in the Complaint. 12 Case No. RG19006761 UPS’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGESFORTY-FOURTH AFFIRMATIVE DEFENSE (Actions Consistent with Terms of Collective Bargaining Agreement) 44. The Complaint and each cause of action set forth therein is barred, in whole or in part, because Defendant’s actions were consistent with the provisions of Plaintiff's collective bargaining agreement. RESERVATION OF ADDITIONAL DEFENSES Defendant presently has insufficient knowledge or information upon which to form a belief as to whether there may be additional, as yet unstated, defenses and reserves the right to assert additional defenses or affirmative defenses in the event discovery indicates such defenses are appropriate. toe PRAYER FOR RELIEF WHEREFORE, Defendant prays that: . 1. The Complaint be dismissed in its entirety with prejudice; 2. Plaintiff take nothing by way of his Complaint; 3. Defendant be awarded judgment in its favor and against Plaintiff, 4, Defendant be awarded its attorney fees and costs of suit incurred herein; and 5. The Court grant Defendant such other relief as the Court deems just and proper. Dated: April 5, 2019 - LISA LIN GARG FRANCESCA LANPHER LITTLER MENDELSON, P.C. Attorneys for Defendant UNITED PARCEL SERVICE, INC. FIRM WIDE; 163096284.2 101661.1006 13 Case No. RG!9006761 UPS'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR DAMAGES" ¢ eS aiteongum __-20939093. 1 || LISA LIN GARCIA, Bar No. 260582 Ilgarcia@littler.com . FILED 2 || FRANCESCA LANPHER, Bar No. 299318 flanpher@littler.com ALAMEDA COUNTY 3 || LITTLER MENDELSON, P.C. APR 05 2919 333 Bush Street, 34th Floor 4 || San Francisco, CA 94104 . ane THE SUPERIO! ip court Telephone: 415.433.1940 5 || FaxNo.: 415.399.8490 repuly LL 6 || Attomeys for Defendant > UNITED PARCEL SERVICE, INC. on’ 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF ALAMEDA 10 {1 || SHAUN MEDINA, Case No. RG19006761 12 Plaintiff, Assigned For All Purposes To Judge Evelio Grillo, Dept. 13 13 v. + DEFENDANT UNITED PARCEL 14 | UNITED PARCEL SERVICE, IXC., SERVICE, INC."S NOTICE OF MOTION VIVIAN DOE, and DOES 1 to 100, 15 || inclusive, AND MOTION FOR AN ORDER TO TRANSFER VENUE 16 Defendants. {Code of Civil Proc. § 396b] 17 18 Complaint Filed: February 13, 2019 Date: * June 7, 2019 19 Time: 10:00 a.m. 20 Dept: 15 Reservation No.: R-2062097 21 22 23 24 25 26 27 28 UTTLER MENDELSON, P.C. Pengo NOTICE OF MOTION AND MOTION TO TRANSFER VENUE28 | LITILER MENDELSON, F.C, ! 833 bh Get TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 7, 2019 at 10:00 a.m. in Department 15 of the Alameda County Superior Court located at 1221 Oak Street, Oakland, California, 94612, Defendant United Parcel Service, Inc. will, and hereby does, move the Court for an order transferring venue of this action from Alameda County to San Joaquin County pursuant to California Code of Civil Procedure section 396b and for an award to Defendant of costs and reasonable attomeys’ fees in the amount of not less than $11,687 against Plaintiff and Plaintiff's counsel pursuant to California Code of Civil Procedure section 396b. This motion is made on the ground that this action was commenced in the wrong court, and therefore the transfer of venue to a proper court is mandatory pursuant to Code of Civil Procedure section 396b. This motion is based on this Notice of Motion and Motion; the accompanying Memorandum of Points and Authorities; the Request for Judicial Notice; the Declaration of Francesca Lanpher; the Declaration of LaRissa Sterling; the papers on file in this action; and such additional evidence and oral argument as the Court deems necessary at the hearing on this motion. Dated: April 5, 2019 4 LISA LIN GARCI FRANCESCA LANPHER LITTLER MENDELSON, P.C. Attorneys for Defendant UNITED PARCEL SERVICE, INC. FIRMWIDE:163160153.1 101661.1006 2 Case No. RG!9006761 NOTICE OF MOTION AND MOTION TO TRANSFER VENUE1 || LISA LIN GARCIA, Bar No. 260582 Igarcia@littler.com 2 || FRANCESCA LANPHER, Bar No. 299318 flanpher@littler.com 3 || LITTLER MENDELSON, P.C. - -EILED 333 Bush Street ALAMEDA COUNTY 4 |) 34th Floor : San Francisco, CA 94104 APR 05 2019 +) Fei isis cp ness con ef ° os By _— *s Attorneys for Defendant Depuly Le 7 || UNITED PARCEL SERVICE, INC. > 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA m °? COUNTY OF ALAMEDA 10 J1 ||) SHAUN MEDINA, : Case No. RG19006761 12 Plaintiff, Assigned For All Purposes To B Judge Evelio Grillo, Dept. 15 Vv. 14 || UNITED PARCEL SERVICE, INC., ae NORATtOS IN SUPPORTOR VIVIAN DOE, and DOES | to 100, 15 || inclusive, DEFENDANT UNITED PARCEL . SERVICE, INC.’S MOTION FOR AN 16 Defendants. ORDER TO TRANSFER VENUE 17 [Code of Civil Proc. § 396b] 18 Complaint Filed: February 13, 2019 719 Date: June 7, 2019 20 Time: 10:00 a.m. Dept: 15 21 Reservation No.: R-2062097 22 23 24 25 26 27 28 UTTLER MENDELSON, P.C. i 20939080 > Ok © e MT . MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF MOTION TO TRANSFER VENUE28 LITILER MENDELSON, PC. Went 3 See he ton anger, Tae A grt 208 I. INTRODUCTION Plaintiff Shaun Medina (‘Plaintiff’) has filed an action in this Court against Defendants United Parcel Service, Inc, (“UPS”) and Vivian Doe asserting claims arising out of his employment with UPS. Throughout Plaintiff's employment, Plaintiff has worked at UPS’s facility located in San Joaquin County; sof Alameda County. Accordingly, there can be no doubt that Plaintiff has improperly brought this action in Alameda Superior Court and that the proper venue of this action is San Joaquin County. Plaintiff asserts seven causes of action under the Califomia Fair Employment and Housing Act (“FEHA”), along with several non-FEHA claims, and asserts in his Complaint that the FEHA special venue provision under California Government Code section 12965 governs this action. (Complaint, {J 8-10.) Under that provision, Plaintiff may file an action in any county in which (1) the unlawful practice is alleged to have been committed, (2) the records relevant to the practice are maintained and administered, or (3) the aggrieved person would have worked but for the alleged unlawful practice, Cal. Gov’t. Code § 12965(b). Plaintiff bases venue in this case on the FEHA statute and alleges actions took place at the UPS location where Plaintiff worked in Lathrop, Califomia. (Complaint, §{] 8-10.) However, Plaintiff incorrectly alleges that the city of Lathrop is located in Alameda County. (/d.) In fact, the city of Lathrop is located in San Joaquin County, It follows, as set forth in detail below, that Alameda County is not the proper venue for this action. Accordingly, Defendant respectfully requests that the Court (1) issue an order transferring venue to San Joaquin County pursuant to Code of Civil Procedure section 396b and (2) sanction Plaintiff's counsel for