Answer Response No FeeCal. Super. - 6th Dist.April 2, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV379043 Santa Clara - Civil COLLIN D. COOK (SBN 251606) E'ec"°"'°a"y F"°d E-Mail: ccook@fisherphillips.com by SUpenor court Of CA! ADAM SLOUSTCHER (SBN 291657) County 0f Santa Clara, E-Mail: asloustcher@fishrphillips.com on 8/27/2021 1:19 PM HAYLEE SAATHOFF (SBN 323267) Reviewed By: R. Walker E-Mail: hsaathoff@fisherphillips.com case #21 cv379043 FISHER & PHILLIPS LLP Envelope: 71 55259 One Embarcadero Center, Suite 2050 San Francisco, California 941 11 Telephone: (4 1 5) 490-9000 Facsimile: (415) 490-9001 Attorneys for Defendant Boardwalk Cars, Inc. dba Boardwalk Nissan erroneously named as Boardwalk Auto Center, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - COMPLEX JASON AMYX, individually and 0n behalf 0f CASE NO.: 21CV379043 all others similarly situated, [Unlimited Civil Jurisdiction] Plaintiff, Assignedfor allpurposes t0 the Honorable Sunil R. Kulkarni, Dept. 1 V. DEFENDANT BOARDWALK CARS, INC. BOARDWALK AUTO CENTER, INC.; and DBA BOARDWALK NISSAN’S ANSWER DOES 1 through 20, inclusive, TO PLAINTIFF’S FIRST AMENDED COMPLAINT Defendants. FAC Filed: July 26, 2021 Trial Date: None Set Defendant, Boardwalk Cars, Inc. dba Boardwalk Nissan erroneously named as Boardwalk Auto Center, Inc. (“Defendant”) responds to Plaintiff s complaint as follows: GENERAL DENIAL Pursuant to California Code 0f Civil Procedure section 43 1.30(d), Defendant denies, both generally and specifically, each and every allegation 0f Plaintiff s Complaint, and the whole Complaint, including each and every cause 0f action, and further specifically denies that Plaintiff has been damaged in any sum 0r sums or at all. /// 1 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN‘S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further answering the Complaint, including each and every cause 0f action contained in it, Defendant denies that Plaintiff has suffered or Will sustain any injury, damage, 0r loss by reason of any action, conduct, error 0r omission 0n Defendant’s part. In addition t0 this general denial, pursuant t0 California Code of Civil Procedure section 43 1 .30(g), Defendant asserts the following affirmative defenses to the Complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 1. Plaintiff‘s complaint, and each and every cause of action therein, fails to state facts sufficient t0 constitute any cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE 2. This court lacks subject matter jurisdiction because all disputes arising out 0f 0r related t0 Plaintiffs employment are subject to Plaintiff‘s agreement to submit such disputes to binding contractual arbitration, and any contrary state laws operating t0 defeat such arbitration are preempted by the Federal Arbitration Act, 9 U.S.C. sections 1 et seq. THIRD AFFIRMATIVE DEFENSE 3. The originally named Defendant in this action, Boardwalk Auto Center, Inc., did not employ Plaintiff for any purpose or in any capacity. FOURTH AFFIRMATIVE DEFENSE 4. Plaintiff’s complaint, and each and every cause of action therein, is barred by the applicable statute 0f limitations, including, but not limited t0, California Code 0f Civil Procedure sections 338, subdivision (a) and 340, subdivision (a), and California Labor Code section 2699.3. FIFTH AFFIRMATIVE DEFENSE 5. Any recovery on Plaintiff s Complaint, 0r any cause of action contained therein, is barred in whole or in part by Plaintiff s failure to mitigate his damages. SIXTH AFFIRMATIVE DEFENSE 6. Defendant’s actions did not Violate a public policy 0r statute 0f the State of California. /// /// 2 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTH AFFIRMATIVE DEFENSE 7. Plaintiff s Complaint, and each cause 0faction contained therein, is barred by the doctrine 0f waiver. EIGHTH AFFIRMATIVE DEFENSE 8. Plaintiff s Complaint, and each cause 0faction contained therein, is barred by the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE 9. Plaintiff is guilty 0f undue delay in filing and prosecuting this suit, and accordingly, this action is barred by laches. TENTH AFFIRMATIVE DEFENSE 10. Plaintiff s claims are barred under the doctrine 0f collateral estoppel and res judicata. ELEVENTH AFFIRMATIVE DEFENSE 11. Defendant was acting in good faith and had reasonable grounds for believing that its method 0f compensating Plaintiff was lawful. TWELFTH AFFIRMATIVE DEFENSE 12. The alleged acts of the ‘DOE” Defendants of Which Plaintiff complains were all undertaken outside the scope 0f their agency and/or contractual relationship, if any, With Defendant and without the knowledge or consent of Defendant, and Defendant may not be held liable for such acts. THIRTEENTH AFFIRMATIVE DEFENSE 13. Plaintiff’s demand for penalties pursuant to California’s Private Attorney General Act, Labor Code section 2698 et seq., fails on the ground that Plaintiff has not satisfied the statutory prerequisites for relief. FOURTEENTH AFFIRMATIVE DEFENSE 14. Plaintiff failed to exhaust his internal and administrative remedies, including, but not limited t0, such notice and exhaustion 0f remedies that is required as a condition precedent t0 maintenance of this action under the Labor Code section 2699.3, which failure bars his recovery, if any, against Defendant. /// 3 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTEENTH AFFIRMATIVE DEFENSE 15. Plaintiff is not an adequate representative t0 serve as the named Plaintiff for other allegedly aggrieved employees. SIXTEENTH AFFIRMATIVE DEFENSE 16. The causes 0f action are barred, in whole 0r in part, because Plaintiff lacks the necessary standing to pursue the claims asserted. SEVENTEENTH AFFIRMATIVE DEFENSE 17. Plaintiff s claims cannot proceed as a representative action pursuant to the PAGA because Plaintiff is not an “aggrieved employee.” EIGHTEENTH AFFIRMATIVE DEFENSE 18_ The purported cause of action under PAGA is barred to the extent that Plaintiff seeks t0 act as a Private Attorney General with respect to claims based on events which occurred after his date 0f separation. NINETEENTH AFFIRMATIVE DEFENSE 19. Any penalties available to Plaintiff under PAGA are subject to equitable reduction pursuant t0 California Labor Code section 2699(e)(2), on the ground that awarding the maximum available penalty would be unjust, arbitrary, oppressive, and confiscatory. TWENTIETH AFFIRMATIVE DEFENSE 20. Defendant is informed and believes that further investigation and discovery Will reveal, and on that basis alleges, that Plaintiff failed t0 provide the Labor and Workforce Development Agency (“LWDA”) with sufficient notice ofhis claims, the names 0fthe “aggrieved employees” on Whose behalf he intends t0 seek penalties, and/or the facts underlying their claims t0 permit the LWDA to make a reasoned determination regarding whether t0 investigate, and thus Plaintiffs notice was deficient and the Court lacks jurisdiction over their claims for Violation ofPAGA. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. The relief requested by Plaintiff pursuant t0 California Labor Code section 2699 et seq. violated Defendant’s constitutional rights under provisions of the United States and California Constitutions, including but not limited t0 the due process clauses 0f the Fifth and Fourteenth 4 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amendments to the United States Constitution. Moreover, t0 the extent the claim 0f the Plaintiff and the representative group he purports t0 represent seeks t0 recover civil penalties that are disproportionate to the actual harm suffered, if any, including but not limited to civil penalties under Labor Code section 2699 et seq., an award of civil penalties under the circumstances 0f this case would constitute an excessive fine and otherwise would be in Violation of Defendant’s due process and other rights under the United States and California Constitutions. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. Plaintiff s claims under PAGA fail on manageability grounds. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. Plaintiff” s Complaint, and each and every cause of action alleged therein, is barred t0 the extent Plaintiff, and similarly situated employees, have executed a legally enforceable compromise and/or release of the claims asserted in the Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE 24. Plaintiff was paid all wages due him on a timely basis. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. Plaintiff’ s claims against Defendant are barred t0 the extent that Plaintiff failed t0 provide Defendant With accurate and/or timely information regarding his hours worked. TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. Plaintiffwas paid all wages due 0n a timely basis as required by sections 201 and 202 of the Labor Code. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. Plaintiff’s claims for waiting time penalties pursuant t0 Labor Code section 203 are barred because Defendant did not willfully withhold wages over Which there was no good faith dispute and in fact, acted at all times With the good faith belief that Plaintiff was compensated as required by law. /// /// /// 5 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. Plaintiff” s claim alleging that Plaintiff is owed unpaid wages, penalties, and other compensation based 0n Defendant’s alleged failure t0 pay for all time worked lacks merit to the extent that work performed by Plaintiff was not authorized, suffered, or permitted by Defendant and/or was performed Without Defendant’s knowledge and/or control, as set forth by applicable law. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. Defendant’s conduct toward Plaintiff, and other similarly situated employees, including with regard t0 compensation, provision 0fmeal and rest periods, and furnishing ofwage statements, was at all times justified and undertaken in a good faith belief that Defendant was in full compliance with the law. At all times Defendant was acting in good faith and had reasonable grounds for believing that its acts and/or omissions, including with regard t0 compensation of Plaintiff, were lawful, and were not Violations of any provision 0f the Labor Code relating to minimum wage, or 0f an order 0f the California Industrial Welfare Commission. THIRTIETH AFFIRMATIVE DEFENSE 30. Any unpaid work time was de minimis and not compensable damage. THIRTY-FIRST AFFIRMATIVE DEFENSE 31. Plaintiff’s request for restitution is barred to the extent that Plaintiff had an adequate remedy at law including monetary damages, interest, and an award 0f attorneys’ fees and costs. THIRTY-SECOND AFFIRMATIVE DEFENSE 32. Plaintiff and the aggrieved employees were reimbursed for all necessary and reasonable expenses as required by California law. THIRTY-THIRD AFFIRMATIVE DEFENSE 33. Defendant lacked knowledge that Plaintiff and/or the aggrieved employees had incurred any necessary and reasonable business expenses which required reimbursement under California law. THIRTY-FOURTH AFFIRMATIVE DEFENSE 34. Plaintiff, and other similarly situated employees, were provided With accurate wage statements in compliance with California Industrial Welfare Commissions Wage Orders and the California Labor Code. 6 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-FIFTH AFFIRMATIVE DEFENSE 35. Plaintiff’s claims for penalties for alleged Violations of Labor Code section 226(a) are barred because Plaintiff cannot show that Plaintiff, and other similarly situated employees, were injured by any wage statements furnished by Defendant. THIRTY-SIXTH AFFIRMATIVE DEFENSE 36. Plaintiff” s claims for penalties pursuant to Labor Code section 226(6) are barred because Defendant did not knowingly and intentionally fail t0 comply With Labor Code § 226(a), 0r any statute or regulation of similar effect. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 37. Plaintiff’ s claim for statutory penalties pursuant t0 California Labor Code section 226 is barred because Defendant at all times acted With the good faith belief that it was in compliance with the requirements of Labor Code section 226. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 38. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, 0r untimely meal periods because any instances were a result of Plaintiff s own decisions and/or Plaintiff’ s failure t0 follow Defendant’s lawful policies and/or instructions With regard t0 such meal periods. THIRTY-NINTH AFFIRMATIVE DEFENSE 39. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, 0r untimely rest periods because any instances were a result 0f Plaintiff’s own decisions and/or Plaintiffs failure t0 follow Defendant’s lawful policies and/or instructions With regard t0 such rest periods. FORTIETH AFFIRMATIVE DEFENSE 40. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, or untimely meal periods because Defendant had no actual 01' constructive knowledge 0f such instances. /// /// 7 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-FIRST AFFIRMATIVE DEFENSE 41. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, or untimely rest periods because Defendant had n0 actual 0r constructive knowledge of such instances. FORTY-SECOND AFFIRMATIVE DEFENSE 42. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, 0r untimely meal periods because Plaintiff’s unilateral choice to decline t0 exercise Plaintiff” s right t0 take the legally required meal periods provided t0 Plaintiff and/or Plaintiff’ s failure to timely obtain a remedy by complaining and/or taking reasonable measures t0 complain about any alleged impediments t0 such enjoyment of the legally required meal periods contemporaneously with the occurrence 0f such impediments (0fwhich Defendant had no actual 0r constructive knowledge), utterly disqualify and bar Plaintiff from establishing a meal period Violation. FORTY-THIRD AFFIRMATIVE DEFENSE 43. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, or untimely rest periods because Plaintiff” s unilateral choice t0 decline t0 exercise Plaintiff’ s right t0 take the legally required rest periods provided t0 Plaintiff and/or Plaintiff’s failure to timely obtain a remedy by complaining and/or taking reasonable measures to complain about any alleged impediments to such enjoyment of the legally required rest periods contemporaneously with the occurrence 0f such impediments (0f Which Defendant had n0 actual 0r constructive knowledge), utterly disqualify and bar Plaintiff from establishing a rest period Violation. FORTY-FOURTH AFFIRMATIVE DEFENSE 44. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, 0r untimely meal periods to the extent that Plaintiff and the purported aggrieved employees were relieved of duty at times and during circumstances required by law and nonetheless chose unilaterally t0 continue working during such times. /// /// /// 8 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-FIFTH AFFIRMATIVE DEFENSE 45. Defendant is not liable for wage premiums 0r penalties related t0 missed, skipped, short, interrupted, incomplete, 0r untimely rest periods t0 the extent that Plaintiff and the purported aggrieved employees were relieved of duty at times and during circumstances required by law and nonetheless chose unilaterally t0 continue working during such times. FORTY-SIXTH AFFIRMATIVE DEFENSE 46. Defendant expressly reserves the right t0 amend, supplement, alter, 0r change its Answer and affirmative defenses upon revelation 0f more definitive facts by Plaintiff and upon Defendant’s undertaking 0f discovery and investigation of this matter. Accordingly, the right t0 assert additional affirmative defenses, ifand t0 the extent that such affirmative defenses are applicable, is hereby reserved. WHEREFORE, this answering Defendant prays as follows: 1. That Plaintiff take nothing by his complaint for damages; 2. That Plaintiff” s complaint herein be dismissed in its entirety With prejudice; 3. That Defendant recover its costs of suit herein, including its reasonable attorneys’ fees; and 4. That the court award such other and further relief as it deems appropriate. DATE: August 27, 2021 FISHER & PHILLIPS LLP By: M‘\ COLLIN D. COOK ADAM SLOUSTCHER HAYLEE SAATHOFF Attorneys for Defendant Boardwalk Cars, Inc. dba Boardwalk Nissan erroneously named as Boardwalk Auto Center, Inc. 9 BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO FIRST AMENDED COMPLAINT FP 414935121 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE (CCP §§1013(a) and 2015.5) I, the undersigned, am at least 18 years 01d and not a party t0 this action. I am employed in the County of San Francisco With the law offices of Fisher & Phillips LLP and its business address is One Embarcadero Center, Suite 2050, San Francisco, California 941 1 1. On August 27, 2021, I served the following document(s) DEFENDANT BOARDWALK CARS, INC. DBA BOARDWALK NISSAN’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 0n the person(s) listed below by placingD the originalg a true copy thereof enclosed in sealed envelope(s) addressed as follows. AEGIS LAW FIRM, PC Attorneysfor Plaintiff K h'fHaS 1 aque Telephone: (949) 379-6250Samuel A. Wong . . _ Jessica L. Campbell Facs1mlle. (949) 379-6251 ' Email: Krlsty R: COHIIOHY _ _ khaque@aegislawfirm.com 9811 Irvme Center Drlve, Sulte 100 swongaaaegislawfirmcom Irvine, CA 92618 icampbell@aegislawfirm.com kconnollv@aegislawfirm.com D [by MAIL] - I enclosed the document(s) in a sealed envelope or package addressed to the person(s) whose address(es) are listed above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With this business’ s practice for collecting and processing correspondence for mailing. On the same day that correspondence ls placed for collection and mailing, it is deposited 1n the ordinary course 0f business with the United States Postal Service in San Francisco California, in a sealed envelope With postage fully prepaid. U [by FAX] - Based 0n an agreement of the parties t0 accept service by fax transmission, I faxed the document(s) to the person(s) at fax number(s) listed above from fax number (415) 490-9001. The fax reported n0 errors. A copy of the transmission report is attached. U [by OVERNIGHT DELIVERY] - I enclosed the document(s) in an envelope 0r package provided by an overnight delivery carrier and addressed to the person(s) at the address(es) listed above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box 0f the overnight carrier. E [by ELECTRONIC SERVICE] - Pursuant to Code of Civil Procedure 1010.6(e)(1), I electronically served the document(s) t0 the person(s) at the electronic service address(es) listed above. I declare under penalty 0f perjury, under the laws of the State of California, that the foregoing is true and correct. Executed August 27, 2021, at San Diego, California. Margarita Eleria-Perez Byfiw /// Print Name \Signature 1 PROOF OF SERVICE FP 414935121