Answer FiledCal. Super. - 5th Dist.July 16, 20191 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Douglas M. Larsen, No. 142852 Joseph Zimmerl, No. 310036 FISHMAN LARSEN & CALLISTER 7112 North Fresno Street, Suite 450 Fresno, California 93720 (559) 256-5000 (559) 256-5005 fax Attorneys for: Defendant, POWELL PEDIATRIC DENTISTRY CHESTNUT PARNTERSHIP, dba POWELL PEDIATRIC DENTISTRY SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO BONNIE SANDOVAL; individually, and on behalf of all other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff, vs. POWELL PEDIATRIC DENTISTRY, an unknown business entity; and DOES I through 100, inclusive. Defendants. Case No.: 19CECG02613 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT Defendant, POWELL PEDIATRIC DENTISTRY CHESTNUT PARTNERSHIP, dba POWELL PEDIATRIC DENTISTRY ("Powell"), hereby answers the First Amended Complaint ("FAC") of Plaintiff, BONNIE SANDOVAL, and alleges as follows: 1. GENERAL DENIAL Pursuant to Code of Civil Procedure section 431.30, Defendant denies, generally and specifically, each and every allegation and cause of action contained in the FAC, denies that Plaintiff is entitled to the relief prayed for in the FAC, and further denies that Plaintiff has been Defendant's Answer to First Amended Complaint E-FILED 10/16/2019 8:40 AM Superior Court of California County of Fresno By: C. York, Deputy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damaged in the amounts alleged, or is otherwise entitled to amounts alleged, any other amount, or at all. II. AFFIRMATIVE DEFENSES As separate and distinct defenses to Plaintiffs claims as set forth in her FAC, and without assuming any additional burden of proof or production. Defendant alleges the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) The FAC, and each and every cause of action, fails to state facts sufficient to constitute a cause of action against the Defendant, or at all. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) Defendant alleges that each purported cause of action set forth in the FAC is barred in whole or in part by the applicable statue(s) of limitation, including without limitation, California Code of Civil Procedure sections 338(a), 340(a), and 250(a) and (b); Business and Professions Code section 17208, and Labor Code sections 203 and 226(a); and the one-year statute of limitations applicable to claims under the Private Attorney General Act. Without limitation. Plaintiff s original Complaint was filed on or about July 16,2019. To the extent the Plaintiff seeks to pursue any causes of action for relief that were or are untimely as of July 16,2019, those causes of action for relief are barred. THIRD AFFIRMATIVE DEFENSE (Failure of Plaintiff) Defendant alleges that, at all times and places alleged in the FAC, Plaintiff failed to exercise ordinary and reasonable care and was a proximate cause of some or all of her alleged damages, if any; therefore, her recovery, if any, should be barred or reduced according to law. /// /// /// Defendant's Answer to First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTH AFFIRMATIVE DEFENSE (Fault of Others) Defendant alleges that if it is subject to any liability to Plaintiff, it will be due in whole or in part to the acts and/or omissions of third parties; therefore, any recovery obtained by Plaintiff should be barred or reduced according to law. FIFTH AFFIRMATIVE DEFENSE (Laches) Defendant alleges that Plaintiff has delayed an unreasonable amount of time in bringing this action, which delay has been prejudicial to Defendant. SIXTH AFFIRMATIVE DEFENSE (Estoppel) Defendant alleges that the FAC, and each and every cause of action, is barred by the doctrine of estoppel. SEVENTH AFFIRMATIVE DEFENSE (Waiver) Defendant alleges that the FAC, and each and every cause of action, is barred by the doctrine of waiver. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands) Defendant alleges that the FAC, and each and every cause of action, is barred by the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Superseding Cause) While continuing to deny the allegations of the FAC, Defendant provisionally and conditionally alleges that if Plaintiff has suffered injuries or damages, which Defendant denies, then any and all recovery against Defendant is barred by the principles of independent, intervening acts which supersede any and all alleged grounds of liability against Defendant. Defendant's Answer to First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) Defendant alleges that the FAC and each purported cause of action are barred and that the damages, if any, must be reduced by the virtue of Plaintiff s failure to mitigate those damages. ELEVENTH AFFIRMATIVE DEFENSE (No Willful Failure to Pay) Defendant alleges that its wrongful actions, if any, were not intentional, willful or malicious. TWELFTH AFFIRMATIVE DEFENSE (After-Acquired Evidence) Defendant alleges that the FAC, and each of its causes of action, is barred, in whole or in party, by the after-acquired evidence doctrine. THIRTEENTH AFFIRMATIVE DEFENSE (Allowable Acts) Defendant alleges that the FAC and each purported cause of action are barred because Plaintiff consented to, acquiesced or welcomed the conduct of which she now complains. FOURTEENTH AFFIRMATIVE DEFENSE (Exhaustion of Administrative Remedies) Defendant alleges that the FAC and each purported cause of action are barred because Plaintiff failed to exhaust administrative remedies, including those required by Labor Code Sections 2699, et seq. FIFTEENTH AFFIRMATIVE DEFENSE (Exceeds Scope of Administrative Charge) All causes of actions stated in the FAC, are barred to the extent that Plaintiffs allegations exceed the scope of any administrative charge she may have filed as to Defendant. /// /// /// Defendant's Answer to First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Payment) Plaintiffs claims are barred because Plaintiff has been paid and/or received all wages due her by virtue of her employment. SEVENTEENTH AFFIRMATIVE DEFENSE (No Loss Or Unjust Enrichment) Plaintiff has not suffered any losses and Defendant has not been unjustly enriched as a result of any action or inaction by Defendant or its agents. EIGHTEENTH AFFIRMATIVE DEFENSE (Actions Not Compensable) Plaintiff was to work between specific hours and was not authorized to work outside those hours without permission. Plaintiffs claim for wage payments is barred because any alleged work performed was outside the portion of the day authorized by Defendant or known by Defendant which made it non-compensable. NINETEENTH AFFIRMATIVE DEFENSE (De Minimis) Defendant asserts that any insubstantial, irregular, or insignificant periods of recorded working time beyond the scheduled working hours of Plaintiff, are irregular or brief in duration and Defendant is not reasonably required to compensate Plaintiff for it. (Troester v. Starbucks Corp. (2018) 5 Cal. 5th 829, 848.) TWENTIETH AFFIRMATIVE DEFENSE (Class Action - Standing) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that Plaintiff lacks standing to assert the legal rights or interests of others. /// /// /// Defendant's Answer to First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-FIRST AFFIRMATIVE DEFENSE (Class Action - Lack of Predominance) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, the types of claims alleged by Plaintiff on behalf of himself and/or the alleged putative group she purports to represent are matters in which individual questions dominate and thus are not appropriate for class treatment. TWENTY-SECOND AFFIRMATIVE DEFENSE (Class Action - Lack of Commonality) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that Plaintiff is not similarly situated to other potential members of the alleged putative group she purports to represent and is an inadequate representative of the alleged putative class and subclasses. TWENTY-THIRD AFFIRMATIVE DEFENSE (Class Action - Lack of Typicality) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that certain of the interests of the alleged putative class are in conflict with the interests of all or certain subgroups of the members of the putative class. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Class Action - Lack of Superiority) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that Plaintiff has not shown and cannot show that class treatment of the purported causes of action in her FAG is superior to other methods of adjudicating the controversy. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Class Action - Lack of Manageability) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the FAG and each purported cause of action 6 Defendant's Answer to First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged therein, cannot proceed as a purported class or collective action because of difficulties likely to be encountered that render the action unmanageable. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Not Adequate Representative) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that Plaintiff is not an adequate representative of the putative group she purports to represent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Putative Groups' Interests in Conflict) Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that certain interests of the putative group are in conflict with the interests of all or certain subgroups of the members of the putative group. WHEREFORE, the Defendant prays: 1. Plaintiffs FAG herein be dismissed in its entirety with prejudice; 2. Plaintiff to take nothing by way of her FAC; 3. Defendant be awarded attorney's fees; 4. Judgment be entered in favor of Defendant and against Plaintiff; 5. For costs of suit incurred herein; and 6. For such other and further relief that the Court may deem just and proper. Dated: October 15, 2019 FISHMAN, LARSEN & CALLISTER BY: Douglas Larsen Joseph Zimmerl Attorneys for Defendant, POWELL PEDIATRIC DENTISTRY CHESTNUT PARTNERSHIP, dba POWELL PEDIATRIC DENTISTRY Defendant's Answer to First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE COP §§ 1011, 1013, 1013a, 2015.5; FRCP 5(b) I am employed in the County of Fresno, State of California. 1 am over the age of 18 and not a party to the within action; my business address is 7112 N. Fresno Street, Suite 450, Fresno, California 93720. On October 15,2019,1 served the document described as Defendant's Answer to First Amended Complaint on the interested parties in this action Q by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: ̂ by placing Q] the original a true copy thereof enclosed in sealed envelopes addressed as follows: Romina Keshishyan, Esq. RK LEGAL, PC 655 N. Central Ave., Suite 1700 Glendale, California 91203 Telephone: 1-323-744-4124 romina@,rklegalpc.com ^ BY MAIL n I deposited such envelope in the mail at Fresno, California. The envelope was mailed with postage thereon fully prepaid. ^ As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Fresno, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one-day after date of deposit for mailing in affidavit. I I (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee(s) as shown above. I 1 (BY FAX) I caused the above- referenced document to be transmitted by fax to the addressee(s) at the fax number(s) shown. I I (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to be given to a courier service for delivery to the addressee(s). Executed on October 15, 2019, at Fresno, California. ^ (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. I I (Federal) I declare under penalty of perjury under the laws of the United States of America that the above is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Sylvm Casaus