Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 11, 2019

Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/7/2019 11:39 AM Reviewed By: S. Alvarez Case #19CV344290 Envelope: 2852476 fia §§B¥b§ Phillip J. Griego (SBN 76616) LAW OFFICE OF PHILLIP J. GRIEGO 95 South Market Street, Suite 500 San Jose, CA 95 1 l3 Tel. 408-293-6341 Fax 408-865-7936 E: phil@griegolaw.com Attorney for Defendants Look Auto Body, LLC, Blake Volgenau IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LUIS RODRIGUEZ, an individual, Case Number: 19CV344290 Plaintiff, DEFENDANTS’ ANSWER TO V. UNVERIFIED COMPLAINT OF PLAINTIFF LUIS RODRIGUEZ LOOK AUTO BODY LLC, BLAKE VOLGENAU, an individual, inclusive, Defendants. TO: LUIS RODRIGUEZ and his ATTORNEYS OF RECORD: DEFENDANTS LOOK AUTO BODY, LLC and BLAKE VOLGENAU, an individual, (“Defendants”) COME NOW in answer to the Unverified Complaint (“Complaint”) filed on behalf of LUIS RODRIGUEZ (“Plaintiff’) and allege as follows: GENERAL DENIAL Pursuant to California Code 0f Civil Procedure section 43 l .30(d), Defendants, severing themselves from its unserved and/or unnamed co-defendants, and for its Answer to the Complaint hereby generally denies each and every allegation contained therein, and the whole thereof, pursuant to section 431.30 ofthe California Code 0f Civil Procedure. AFFIRMATIVE DEFENSES Without waiving or excusing Plaintiffs burden of proof, or admitting that Defendants has DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT CASE #19CV344290 1 [\J umm-hm 10 11 14 16 17 18 EB glfiRb} any burden of proof, as separate and distinct affirmative defenses to Plaintiffs Complaint, Defendants allege as follows. FIRST AFFIRMATIVE DEFENSE As a first separate and affirmative defense to the unverified complaint, Defendants allege the unverified Complaint fails to state a claim or cause 0f action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE As a second separate and affirmative defense t0 the unverified complaint, Defendants allege the plaintiffs claims for damages are barred or reduced to the extent that he failed to properly mitigate his alleged damages by failing t0 report all his time worked, and all his missed lunch and rest breaks, and any failure to comply With Labor Code Section 226, and any failure to pay minimum wage for any time worked. THIRD AFFIRMATIVE DEFENSE As a third separate and affirmative defense to the unverified complaint, Defendants allege that the plaintiff has waited an unreasonably long time t0 file this lawsuit, and the Defendant's ability t0 defend this lawsuit has been severely prejudiced due t0 this unreasonable delay by denying him 0r his access to documents or other physical evidence; witnesses; a reasonably fresh recollection of the events giving rise to this lawsuit. FOURTH AFFIRMATIVE DEFENSE As a fourth separate and affirmative defense to the unverified complaint, Defendants allege that Plaintiff is estopped from bringing this complaint because he affirmatively represented to the Defendants the hours he worked and that he took rest and meal breaks. The Defendants reasonably relied upon this representation to his or his detfiment and now asks the court to decide this case as if this representation were true. FIFTH AFFIRMATIVE DEFENSE As a fifth separate and affirmative defense to the unverified complaint, Defendants allege the Plaintiff has waited more than 2 years from the date of breach or last action of the Defendants before filing this suit, and recovery is therefore barred under Code 0f Civil Procedure §339. SIXTH AFFIRMATIVE DEFENSE DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT CASE #19CV344290 2 N Qmmpm 10 11 14 16 17 18 E8 §§B€b¥ As a sixth separate and affirmative defense to the unverified complaint, Defendants allege that Plaintiff failed to report t0 Defendants that he worked overtime, had missed rest breaks or lunch periods, was not paid for time worked and was owed minimum wage. Therefore, as a matter of law, Defendants could not have suffered or permitted Plaintiff to work for time they knew nothing about. SEVENTH AFFIRMATIVE DEFENSE As a seventh separate and affirmative defense to the unvérifled complaint, Defendants allege that in the event the court finds Defendants did Violate any California labor laws, the violations were neither “knowing nor intentional” but rather isolated and unintentional payroll errors due t0 clerical or inadvertent mistakes. The Defendants further allege that any act or omission giving rise to this action was in good faith and that the Defendants had reasonable grounds for believing that their acts or omissions were not a Violation of any provision of the Labor Code relating t0 minimum wage, or an order of the commission. EIGHTH AFFIRMATIVE DEFENSE As an eighth separate and affirmative defense to the unverified complaint, Defendants allege the plaintiff may not pursue waiting time penalties as an unfair competition claim under Business and Professions Code §17200. N]NTH AFFIRMATIVE DEFENSE As a ninth separate and affirmative defense to the unverified complaint, Defendants allege that Defendants provided Plaintiff the opportunity to take rest and lunch breaks and the plaintiff chose not to take them and Was paid for all time worked. PRAYER WHEREFORE, Defendants requests judgment as follows: 1. That Plaintiffs take nothing by reason of his Complaint; 2. That judgment be entered in favor of Defendants and against Plaintiff; 3. That Defendants recover their attomeys’ fees and costs of suit; and 4. That the Court award Defendants such other and/or further relief as the Court deems just and proper. DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT CASE #19CV344290 3 §§B§b§ JURY DEMAND Defendants demand a jury 0n all issues triable to a jury. Dated: /‘;//L€ , 2019 By: Rm M2 Phillip J Griego Attorney for Defendants Look Auto Body, LLC, Blake Volgenau DEFENDANTS’ ANSWER TO UN VERIFIED COMPLAINT CASE #19CV344290 4 QQUIh 00 10 11 14 16 17 18 BEG 885188§83B Phillip J. Griego (SBN 76616) LAW OFFICE OF PHILLIP J. GRIEGO 95 South Market Street, Suite 500 San Jose, CA 95113 Tel. 408-293-6341 Fax 408-865-7936 E: phil@griegolaw.com Attorney for Defendants Look Auto Body, LLC, Blake Volgenau IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LUIS RODRIGUEZ, an individual, Plaintiff, V. LOOK AUTO BODY LLC, BLAKE VOLGENAU, an individual, inclusive, Defendants. Case Number: 19CV344290 PROOF OF SERVICE FOR DEFENDANTS ANSWER TO COMPLAINT Date action filed: March 11, 2019 DEFENDANTS OFFER OF COMPROMISE TO PLAINTIFF 19CV344290 \OOOVGU‘It-POJNH NNNNNNNNNHHHHHHHHHr-A OOVIONU1+AUJNHO©OOVO~U1$OJNHO PROOF OF SERVICE I, the undersigned, hereby declare that: I am over the age of eighteen and not a party t0 the within cause. I am employed With The Law Office of Phillip J. Griego at 95 South Market Street, Suite 500, San Jose, California, 951 13, County of Santa Clara. I am rcadily familiar with this firm’s practice of collection and processing of correspondence for mailing, hand delivery, overnight mail/courier and facsimile transmission. On April 26, 2019, I served: ° DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT OF PLAINTIFF LUIS RODRIGUEZ upon the following interested party(s) in said cause: Noel D. Hibbard Law Offices 0f Noel D. Hibbard 639 Tully Road, Suite G San Jose, CA 95111 VIA MAIL (CCP $5 1013(a). 2015.5) LXJ By placing a true copy thereof in a sealed envelope(s), addressed as above, and by depositing a true copy thereof that same day in the United States Mail in San Jose, California, with postage thereon fully prepaid, following ordinary business practices. VIA EXPRESS MAIL/COURIER (CCP SS 1013(c). 2015.5) [ X l By placing a true copy thereof in a sealed envelope(s), addressed as above, and on that date placing such for collection for express mail delivery by providing a true copy thereof With an authorized courier and/or express mail carrier, with delivery fees paid or provided, for delivery on the following business day, following ordinary business practices. VIA FACSIMILE (CCP SS 1013(6), 2015.5. CRC 2008. FRCP Rule 5(e)) L_j By arranging for the transmission(s) 0f a true copy thereof from facsimile number (408)293- 1959 to the facsimile number(s) noted above, prior to 5. 00 p. m., that same day, 1n the ordinary course of business. The transmission report confirms transmission was complete and without error. The parties have agreed to service by facsimile. VIA HAND-DELIVERY (CCP $8 1011, 2015.5) [4 By placing a true copy thereof in a sealed envelope(s), addressed as above, and causing same to be hand-served by either an employee of my firm or a retained courier, with delivery fees paid or provided, for delivery that same day, in the ordinary course of business. I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of California. Executed 0n April 26, 2019, at San Jose, California. AM Mi?“ M Ger? Colbath PROOF OF SERVICE CASE NUIVIBER 19CV344290