Answer Amended Complaint

Cal. Super. - 6th Dist.March 2, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV379038 Santa Clara - Civil YOUNGER & ASSOCIATES TIMOTHY M. YOUNGER, Bar N0. 150527 MIGUEL G. DEL ROSARIO, Bar N0. 236026 KELVIN LIBAN, SBN: 276814 10681 Foothill Boulevard; Suite 280 Rancho Cucamonga, California 91730 Telephone: (909) 980-0630 Facsimile: (909) 948-8674 Email: gen@y0ungerassociates.net Attorneys for Defendant MARIE TUITE D Harris Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/9/2021 3:57 PM Reviewed By: D Harris Case #21 CV379038 Envelope: 7024849 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA STEPHEN O’BRIEN, an individual Plaintiff, V. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY; MARIE TUITE, an individual, and DOES 1 through 25, inclusive, Defendants. CASE NO.: 21CV379038 ANSWER OF DEFENDANT MARIE TUITE TO FIRST AMENDED COMPLAINT [FEE EXEMPT PURSUANT TO GOVERNMENT CODE § 6103] Complaint Filed: March 2, 2021 FAC Filed: July 6, 2021 Trial Date: None Set ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants MARIE TUITE (hereinafter "Defendant"), for herself and for n0 other Defendants, hereby answers the First Amended Complaint (hereinafter "Complaint") of Plaintiff STEPHEN O’BRIEN as follows: 1. Pursuant t0 California Code 0fCivil Procedure Section 43 1 .30(d), answering Defendant denies each and every allegation contained in the Complaint and each cause 0f action thereof; denies that Defendant is liable under the theories 0r in the manner set forth in the Complaint; denies that Plaintiff was damaged as a result 0f the alleged conduct 0f Defendant as set forth in the Complaint and each cause 0f the action thereof. 2. Defendant additionally denies that Plaintiffwas damaged in any sum whatsoever from any act, omission, 0r fault 0n part 0f Defendant, whether negligent, careless, unlawful, by breach 0f warranty, 0r any nature alleged 0r otherwise, and denies that Defendant, 0r any agent, servant, employee, officer 0r trustee 0f Defendant was in any way negligent, careless, reckless, wanton, 0r breached any warranty, express 0r implied. Defendant further denies that Plaintiff is entitled t0 the relief requested in the Complaint, 0r t0 any reliefwhatsoever, including without limitation actual damages against these answering Defendant. AFFIRMATIVE DEFENSES For its affirmative defenses, Defendant alleges as follows: FIRST AFFIRMATIVE DEFENSE (Failure t0 State a Cause 0f Action) 3. Defendant alleges that the Complaint, and each and every separate cause 0f action therein, fails t0 state facts sufficient t0 constitute any cause 0f action against Defendant. SECOND AFFIRMATIVE DEFENSE (Comparative Fault) 4. The alleged incident and damages complained 0fby Plaintiff, if there actually were any, were proximately caused by the conduct and/or other fault 0r acts 0f firms, persons, corporations, 0r entities other than Defendant, and that said conduct and/or other fault comparatively reduces the percentage 0f any liability attributable t0 Defendant, if it should be found that Defendant was liable 0r otherwise at fault, which Defendant expressly denies. 1 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD AFFIRMATIVE DEFENSE (Statute 0f Limitations) 5. Defendant alleges that the Complaint, and each and every separate cause 0f action therein, is barred by the by the applicable statute 0f limitations, including, but not limited t0 Code Civ. Proc. §§ 335.1, 338, 340, 342 and/or 343; as well as Gov’t. Code §§ 911.2, 945.4, 945.6, 950, 950.2, and 950.6. FOURTH AFFIRMATIVE DEFENSE (Apportionment 0f Damages) 6. Defendant alleges that, if she is found liable to Plaintiff, which Defendant expressly denies, and other parties in this action are also liable, that as a result, the damages sustained by Plaintiff, if any, must be apportioned among the parties found liable, based 0n the principles 0f comparative fault, pursuant t0 Civil Code § 1431 et seq., and all other applicable law. FIFTH AFFIRMATIVE DEFENSE (Failure t0 Mitigate Damages - In General) 7. Defendant alleges that Plaintiff, with full knowledge 0f the alleged damages, if actually suffered, failed t0 mitigate such damages. SIXTH AFFIRMATIVE DEFENSE (Laches) 8. Each and every cause 0f action alleged in the Complaint is barred in whole or in part by the defense 0f laches, as Plaintiff and/or Plaintiff‘s agents acting on Plaintiff‘s behalf unreasonably and inexcusably delayed in asserting Plaintiff‘s claims and in bringing, filing, and serving the Complaint, causing substantial prejudice t0 Defendant. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) 9. Plaintiff is estopped from asserting each and every allegation contained in the Complaint, and in each and every alleged cause 0f action contained therein, by reason 0f the acts, omissions, representations, and courses 0f conduct 0f Plaintiff and his agents, including without 2 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 limitation, the failure t0 timely notify Defendant 0f Plaintiff‘s claims, upon which Defendant reasonably relied t0 his prejudice and detriment in defending against Plaintiff‘s untimely suit. EIGHTH AFFIRMATIVE DEFENSE (Waiver) 10. Plaintiff has expressly and impliedly waived all claims arising from the allegations 0f the Complaint, and from each and every alleged cause 0f action contained therein, by reason 0f the acts, omissions, representations, and courses 0f conduct 0f Plaintiff and his agents. NINTH AFFIRMATIVE DEFENSE (Unclean Hands) 11. Each and every cause 0f action alleged in the Complaint is barred by the doctrine of unclean hands. TENTH AFFIRMATIVE DEFENSE (Plaintiff in Pari Delicto) 12. Plaintiff is barred from any and all recovery under the Complaint in that Plaintiff voluntarily participated in and/or approved 0f the alleged unlawful acts, conduct, and/or incidents 0n which his present suit against Defendant is based, so as t0 be equally in the wrong (in pari delicto). ELEVENTH AFFIRMATIVE DEFENSE (Contribution) 13. Defendant is informed and believes, and upon such information and belief, alleges that Plaintiff, other party-litigants, and/or third parties not yet a party t0 this action, were careless and negligent, and that this carelessness and negligence proximately contributed t0 the claimed incident 0r alleged damages, if there were any. TWELFTH AFFIRMATIVE DEFENSE (Indemnification) 14. Defendant contends that, if she is held liable for the events and occurrences as set forth in the Complaint, said liability will be based solely 0n a derivative form 0f liability, not 3 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 resulting from the affirmative conduct 0f Defendant, but, instead, arising only from an obligation imposed by law. As such, Defendant will be entitled, and is entitled t0, complete and total implied indemnity from other party-litigants, and/or other third parties not yet a party t0 this action, whose actions are the direct and proximate cause 0f Plaintiff‘s injuries 0r damages, if any. THIRTEENTH AFFIRMATIVE DEFENSE (Uncertain and Ambiguous Claims) 15 Plaintiff‘s Complaint, and each and every cause 0f action asserted therein, is uncertain, ambiguous, and unintelligible in that the material allegations 0f the Complaint are left t0 surmise 0r otherwise fail t0 sufficiently the basis 0f Plaintiff‘s claims and damages against Defendant. FOURTEENTH AFFIRMATIVE DEFENSE (Judicial Estoppel) 16. Plaintiff‘s Complaint is barred, in whole 0r in part, by the equitable doctrine 0f judicial estoppel. FIFTEENTH AFFIRMATIVE DEFENSE (Collateral Estoppel) 17. Plaintiff‘s Complaint is barred, in whole 0r in part, by the equitable doctrine 0f collateral estoppel. SIXTEENTH AFFIRMATIVE DEFENSE (Res Judicata) 18. Plaintiff‘s Complaint is barred, in whole 0r in part, by the doctrine 0f resjudicata. SEVENTEENTH AFFIRMATIVE DEFENSE (Privilege) 19. Plaintiff‘s Complaint is barred, in whole 0r in part, as Defendant's conduct was absolutely 0r qualifiedly privileged under California Civil Code § 47. /// /// /// 4 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTEENTH AFFIRMATIVE DEFENSE (Merger/Bar) 20. Plaintiff‘s Complaint is barred, in whole 0r in part, by the doctrine 0f merger and bar. NINETEENTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 21. Each and every cause 0f action alleged in the Complaint, is barred in whole or in part, by the defense 0f accord and satisfaction. TWENTIETH AFFIRMATIVE DEFENSE (Failure t0 Exhaust Remedies) 22. Plaintiff has failed t0 exhaust required contractual, administrative, judicial and quasi-judicial remedies, including but not limited t0 those required by University policies and procedures, the California Government Claims Act, and the filing 0f a writ 0f administrative mandamus, all 0fwhich are conditions precedent t0 assertion 0f such claims in a civil damage action and, as a result 0f that failure, some 0r all 0f his Complaint is barred. TWENTY FIRST AFFIRMATIVE DEFENSE (Managerial Immunity) 23. Plaintiff‘s Complaint is barred, in whole 0r in part, as Defendant's actions were privileged and protected under applicable provisions 0f federal, state, and/or common-law. TWENTY SECOND AFFIRMATIVE DEFENSE (Constitutional Free Speech) 24. The Complaint is barred, in whole 0r in part, because the conduct attributed t0 Defendant, even if true, which Defendant expressly denies, is protected as free speech under the First Amendment t0 the United State Constitution, as well as Article 1, Section 2 0f the California Constitution. /// /// /// 5 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY THIRD AFFIRMATIVE DEFENSE (Failure t0 d0 Equity) 25. Plaintiff is barred, in whole or in part, from any recovery in that Plaintiff‘s action rests 0n equitable grounds but Plaintiff has failed and/or refused t0 complete performance 0f his own obligations under the law 0r in equity so as t0 not be entitled t0 such equitable relief. TWENTY FOURTH AFFIRMATIVE DEFENSE (Sovereign Immunity) 26. Defendant was, at all relevant times, a public employee acting in good faith, and without malice, in the exercise 0f the discretion vested in her; and, as such, she is immune from liability for the matters alleged in Plaintiff‘s Complaint by Virtue 0f immunities provided pursuant t0 the Eleventh Amendment t0 the United States Constitution and also Gov’t. Code §§ 810, et seq., including, but not limited t0, Gov’t. Code §§ 815, 815.2, 8.15.4, 818, 818.4, 818.8, 820.2, 820.4, 820.6, 820.8, 820.9, 821, 821.2, 821.6, 822.2, 950, 950.2 and 950.6. TWENTY FIFTH AFFIRMATIVE DEFENSE (Valid Exercise 0f Discretion) 27. The Complaint, and each and every cause 0f action stated therein, is barred in that, as a matter 0f law, Defendant, as a public employee, cannot be held liable for any injury or damages, if any there were, resulting from an exercise 0f discretion vested in a public employee, whether 0r not such discretion be abused. (Gov’t. Code §§ 815.2, 820.2.) TWENTY SIXTH AFFIRMATIVE DEFENSE (No Mandatory Duty) 28. Defendant did not owe any mandatory 0r legal duty t0 Plaintiff; however, without admitting t0 0f such a duty, if such duty did exist, Defendant nonetheless acted with reasonable diligence in the discharge 0f any duty there may have been owed t0 Plaintiff. TWENTY SEVENTH AFFIRMATIVE DEFENSE (Failure t0 Exhaust Remedies) 29. Plaintiff did not exhaust her required and available contractual, administrative, judicial and quasi-judicial remedies, including but not limited t0 those required by University 6 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 policies and internal grievance procedures and/or the California Tort Claims Act, all 0fwhich are conditions precedent t0 assertion 0f such claims in a civil damage action and, as a result 0f that failure, the Court has n0 subject matter jurisdiction over Plaintiffs suit, and, some, if not or all, 0f Plaintiff‘s present causes 0f action asserted in the Complaint are barred. TWENTY EIGHTH AFFIRMATIVE DEFENSE (Failure t0 File a Claim) 30. Plaintiff failed t0 precede the action with a claim as required under Gov’t. Code §§ 945.4, 91 1.2, 905.2, and 950.2, and, as such the Court has n0 subject matter jurisdiction over each 0f the causes against asserted by Plaintiff in his suit, and Plaintiff‘s Complaint is barred, in whole 0r in part. TWENTY NINTH AFFIRMATIVE DEFENSE (Failure t0 Comply with Governmental Tort Claims Act) 3 1. Plaintiff‘s Complaint, and each and every cause 0f action asserted therein, is barred, in whole 0r in part, because Plaintiff has failed t0 comply with the pre-litigation governmental claims filing requirements 0f the California Governmental Claims Act. THIRTIETH AFFIRMATIVE DEFENSE (Outside the Scope 0f Governmental Claim) 32. Plaintiff‘s Complaint is barred, in whole 0r in part, t0 the extent that the allegations 0f the Complaint were not included within, 0r else an attempt t0 enlarge upon, the scope 0f the facts and contentions asserted in Plaintiffs governmental claim presented t0 the California State University, if any such was claim was filed and presented, which answering Defendant expressly denies. Accordingly, Plaintiff‘s Complaint fails t0 state a cause 0f action and is barred by Gov’t. Code §§ 905.2, 91 1.2 and 950.2. THIRTY FIRST AFFIRMATIVE DEFENSE (Untimely Acts Barred) 33. Plaintiff‘s causes 0f action, are barred, in whole 0r in part, because Plaintiff is not entitled t0 any relief bases 0n any conduct 0f Defendant occurring more than six months before the filing of a pre-requisite claim with the appropriate governmental agency(ies). 7 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY SECOND AFFIRMATIVE DEFENSE (Respondeat Superior Liability is Prohibited) 34. The California Government Claims Act bars Vicarious liability for any act 0r omission 0f any other person, including but not limited t0 the alleged misconduct as described in Plaintiffs Complaint, by way 0f respondeat superior 0r otherwise. (Gov’t. Code §§ 815.2, 820.8.) THIRTY THIRD AFFIRMATIVE DEFENSE (Due Care) 35. Plaintiff is barred from any and all recovery in that the conduct attributed t0 Defendant in the Complaint, if done at all, was done in the execution and enforcement 0f the law while exercising due care. THIRTY FOURTH AFFIRMATIVE DEFENSE (Acts were Justified) 36. Plaintiff is barred from any and all recovery in that the acts and course 0f conduct attributed t0 Defendant by Plaintiff in the Complaint were justified and privileged under provisions 0f California Law, and Defendant engaged in said conduct, and performed said acts, in good faith reliance 0f said provisions 0f law. THIRTY FIFTH AFFIRMATIVE DEFENSE (Acts were in Good Faith) 37. Plaintiff is barred from any and all recovery in that, insofar as Plaintiff‘s basis for such recovery is Defendant's approval 0r review 0f determinations and actions 0f any subordinate, such review and approval was done within the scope 0f Defendant's discretion, with due care, and with a reasonable and good faith belief that such actions were in accordance with the Constitution 0f California and/or the United States, and all applicable Federal and State laws. THIRTY SIXTH AFFIRMATIVE DEFENSE (Not a Substantial Factor) 38. Plaintiff is barred from any and all recovery in that n0 conduct 0n the part 0f Defendant was a substantial factor in bringing about the alleged damages claimed in Plaintiffs Complaint. 8 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY SEVENTH AFFIRMATIVE DEFENSE (Superseding Cause) 39. Each and every cause 0f action asserted by Plaintiff against Defendant is barred because the matters alleged in the Complaint are attributable t0 an unforeseeable, superseding, and intervening cause rather than any 0f the allegedly wrongful acts attributed by Plaintiff t0 Defendant. THIRTY EIGHTH AFFIRMATIVE DEFENSE (No Proximate Cause) 40. Each cause 0f action asserted by Plaintiff against Defendant is barred because the allegedly wrongful acts attributed t0 Defendant by Plaintiff in the Complaint were not the legal, actual, proximate 0r moving cause of Plaintiffs injuries, if any. THIRTY NINTH AFFIRMATIVE DEFENSE (Lack 0f Damages) 41. Plaintiff is barred from any and all recovery in that Plaintiff has not suffered any injuries 0r damages as a result 0f the alleged wrongful acts attributed t0 Defendant by Plaintiff in the Complaint. FORTIETH AFFIRMATIVE DEFENSE (No Intentional Conduct) 42. The Complaint is barred, in whole 0r in part, in that the allegedly wrongful conduct attributed t0 Defendant by Plaintiffwas neither intentionally or knowingly directed against Plaintiff, nor devised, calculated 0r perceived t0 injure him in any way; nor did Defendant have any knowledge that the other persons about whom Plaintiff complains could not be trusted t0 act properly without additional supervision. FORTY FIRST AFFIRMATIVE DEFENSE (Consent) 43. Plaintiff is barred from any and all recovery because Plaintiffs consented t0 some and/or all 0f the allegedly wrongful conduct Plaintiffs attribute t0 Defendant in his Complaint. /// 9 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY SECOND AFFIRMATIVE DEFENSE (Ratification) 44. Plaintiff is barred from any and all recovery as Plaintiff knew and approved 0f, and/or ratified, some 0r all 0f the allegedly wrongful conduct Plaintiff attributes t0 Defendant in his Complaint. FORTY THIRD AFFIRMATIVE DEFENSE (Committed N0 Wrongful Act) 45. Plaintiff is are barred from any and all recovery in that Defendant never agreed, 0r otherwise cooperated 0r shared a common purpose, with any other party 0r entity t0 commit a wrongful act against Plaintiff. FORTY FOURTH AFFIRMATIVE DEFENSE (No Outrageous Conduct) 46. Plaintiff is barred from any and all recovery in that any and all actions taken by the Defendant with respect Plaintiffwere not outrageous, and Plaintiff did not suffer any serious mental anguish, humiliation, 0r severe emotional distress. FORTY FIFTH AFFIRMATIVE DEFENSE (N0 Liability) 47. Plaintiff is barred from any and all recovery in that, under California law, there is no liability for any injury 0r damages, if any there were, caused by a misrepresentation by any public employee, whether such misrepresentation was negligent 0r intentional 0r not. (Gov’t. Code §§ 818.8, 822.2.) FORTY SIXTH AFFIRMATIVE DEFENSE (Limitation on Unreasonable Damages) 48. Defendant alleges that the amount 0f damages prayed for by Plaintiff in his Complaint far exceeds the reasonable value 0f the injuries purportedly sustained by Plaintiff thereby limiting the amount due and owing to Plaintiff, if any. /// /// 10 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY SEVENTH AFFIRMATIVE DEFENSE (No Fiduciary Duty) 49. There exists n0 fiduciary duty as between Defendant and Plaintiff, and therefore each and every cause 0f action Plaintiff asserts against Defendant in his Complaint is barred. FORTY EIGHTH AFFIRMATIVE DEFENSE (Legitimate Business Reasons) 50. Plaintiff is barred from any and all recovery in that, at all relevant times, each allegedly wrongful action and/or omission purportedly t0 have been taken by Defendant against Plaintiff in the Complaint was, in fact, undertaken for legitimate, non-retaliatory business reasons. FORTY NINTH AFFIRMATIVE DEFENSE (Business Necessity and Job Relatedness) 5 1. Plaintiff‘s Complaint is barred, in whole 0r in part, because each allegedly wrongful action and/or omission purportedly t0 have been taken by Defendant against Plaintiff in the Complaint was, in fact, undertaken based solely 0n business necessity and job relatedness. FIFTIETH AFFIRMATIVE DEFENSE (No Causal Connection) 52. Plaintiff‘s Complaint is barred, in whole 0r in part, in light 0f Plaintiff‘s failure t0 establish, through a preponderance 0f the evidence, that a causal nexus exists between his alleged protected activities and the purported wrongful action and/or omission attributed t0 Defendant in the Complaint. FIFTY FIRST AFFIRMATIVE DEFENSE (No Confidential Relationship) 53. There exists n0 confidential relationship as between Plaintiff and Defendant, and therefore each and every cause 0f action Plaintiff asserts against Defendant in his Complaint is barred. /// /// 11 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTY SECOND AFFIRMATIVE DEFENSE (Avoidable Consequences) 54. Defendant alleges that she took reasonable steps t0 prevent and correct workplace harassment and Violence, and that Plaintiff unreasonably failed t0 use the preventative and corrective measures that Defendant provides. Reasonable use 0f Defendant's procedures would have prevented all 0r at least some 0f the harm that the Plaintiff alleges he sustained. Thus, Plaintiff‘s recoverable damages should be reduced and/or eliminated under the doctrine 0f avoidable consequences. FIFTY THIRD AFFIRMATIVE DEFENSE (Employment Actions were Legitimate) 55. Assuming, arguendo, that there was a Violation 0f law 0n the part 0f Defendant, which answering Defendant expressly denies, nonetheless, Plaintiff‘s claims remain barred, in whole 0r in part, as a matter 0f law, including, inter alia, pursuant t0 Labor Code § 1102.6, because even without any said impermissible factor, all employment actions taken concerning Plaintiff would still have been taken due t0 work performance reasons and/or other legitimate, nonprohibited, and/or independent reason(s). FIFTY FOURTH AFFIRMATIVE DEFENSE (After Acquired Evidence) 56. Defendant alleges that, t0 the extent that any evidence is later discovered and acquired, that Plaintiff engaged in any wrongdoing, 0r otherwise failed t0 comply with his legal and statutory obligations as a employee, and which evidence would have, therefore, operated t0 adversely affect the terms and conditions 0f Plaintiff‘s employment, 0r else would have resulted in Plaintiff either being demoted, disciplined, 0r terminated, then, by Virtue 0f such after-acquired evidence, any and all 0f Plaintiff‘s claims 0f liability 0r damages are barred 0r reduced t0 the fullest extent provided by law. /// /// /// 12 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTY FIFTH AFFIRMATIVE DEFENSE (Lack 0f Oppression, Fraud 0r Malice) 57. Plaintiff is not entitled t0 recover any penalty 0r liquidated damages 0r any punitive 0r exemplary damages, and any allegations with respect thereto should be stricken, because Plaintiff has failed t0 plead, and cannot prove facts sufficient t0 support, allegations 0f oppression, fraud and/or malice as required by Civil Code § 3294. FIFTY SIXTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) 58. Plaintiff is not entitled t0 recover any penalty 0r liquidated damages 0r any punitive 0r exemplary damages because, among other reasons, an award 0f punitive 0r exemplary damages in general, 0r any such award as applied t0 the facts 0f this specific action, will Violate Defendant's due process and equal protection rights under provisions 0f the Constitutions 0f the United States and California and under the laws 0f the State 0f California. FIFTY SEVENTH AFFIRMATIVE DEFENSE (Right t0 Attorney's Fees and Defense Costs ) 59. This action was filed and is maintained without reasonable cause and without a good faith belief that there is a justifiable controversy under the facts and law t0 warrant the filing of the complaint, as such, Defendant is entitled t0 recover costs, including reasonable attorneys' fees, upon prevailing 0n summary judgment, judgment before presentation 0f defense evidence, directed verdict, 0r nonsuit. (Code Civ. Proc. § 1038.) FIFTY EIGHTH AFFIRMATIVE DEFENSE (Frivolous Action) 60. Plaintiff‘s claims against Defendant are frivolous and without foundation in fact. Furthermore, this lawsuit is being pursued by Plaintiff in bad faith and for vexatious reasons and for the purpose 0f harassing Defendant. Accordingly, Defendant is entitled t0 recover her attorneys' fees and the appropriate costs and expenses in defending this action. (Code Civ. Proc. § 128.7). /// 13 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTY NINTH AFFIRMATIVE DEFENSE (Reservation 0f Rights) 61. Defendant reserves the right t0 allege further affirmative defenses, as they may become known through the course 0f discovery. PRAYER FOR RELIEF WHEREFORE, this answering Defendant prays: 1. That Plaintiff takes nothing by his Complaint; 2. That the instant Complaint is dismissed with prejudice and that judgment is awarded in favor 0f Defendant; 3. For costs 0f suit incurred herein; 4. For such other and further relief as this Court deems just and proper. DATED: August 9, 2021 YOUNGER & ASSOCIATES ByWM QQW Timofl M. Youlfier Miguel G. Del Rosario Attorneys for Defendant Marie Tuite 14 ANSWER OF DEFENDANT MARIE TUITE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am a resident 0f the State 0f California, over the age 0f eighteen years, and not a party t0 the within action. My business address is Younger & Associates, located at 10681 Foothill Boulevard, Suite 280, Rancho Cucamonga, California 91730. On August 9, 2021, I served the herein described document(s): ANSWER OF DEFENDANT MARIE TUITE TO FIRST AMENDED COMPLAINT D FACSIMEE - by transmitting Via facsimile the document(s) listed above t0 the fax number(s) set forth 0n the attached Telecommunications Cover Page(s) 0n this date before 5:00 p.111. D MAE - by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Rancho Cucamonga, California addressed as set forth below. D PERSONAL SERVICE - by personally delivering the document(s) listed above t0 the person(s) at the address(es) set forth below. D OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid, and depositing in a collection box for next day delivery t0 the person(s) at the address(es) set forth below Via. ELECTRONIC SERVICE - by electronically transmitting the document(s) listed above t0 the person(s) at the electronic service address(es) set forth below pursuant t0 Code ofCivil Procedure Section 1010.6. My electronic address is gen@youngerassoiates.net. SEE SERVICE LIST 1am readily familiar with the firm's practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service 0n that same day with postage thereon fully prepaid in the ordinary course 0f business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date 0r postage meter date is more than one day after date 0f deposit for mailing in affidavit. I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. Executed 0n August 9, 2021, at Rancho Cucamonga, California. r5 Miguel del Rosario 1 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 w Niall P. McCarthy, Esq. Tamarah P. Prevost, Esq. Bethany M. Hill C0thcett,Esq. PITRE & MCCARTHY San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Email: nmccarthy@cpmlegal.com tprevost@cpmlegal.com bhill@cpmlegal.com Christopher G. Boscia, Esq. BOSCIA LEGAL 1960 The Alameda, Suite 185 San Jose, CA 95 126 Telephone: (408) 753-6224 Email: chris@boscialegal.com Attorneys for Plaintiff Stephen A. O'Brien Apalla U. Chopra, Esq. Adam J Kart, Esq. O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Email: achopra@0mm.com akarr@0mm.com Attorneys for Defendant Board 0f Trustees 0f the California State University 2 PROOF OF SERVICE