Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 29, 202110 Conor J. Dale (State Bar No. 274123) Corina C. Gallardo (State Bar No. 331466) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, California 94111-4615 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 E-mail:Conor.Dale 'acksonlewis.com E-mail:Coring,Gallardo 'acksonlewis.com Attorneys for Defendants PETER W. ROSS OD AND LAWRENCE K. WAN OD, INC. DBA FAMILY EYE CARE CENTER OPTOMETRY and PETER ROSS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 12 13 14 15 16 17 18 MICHELLE GARCIA, Plaintiffs, vs. FAMILY EYE CARE CENTER, PETER ROSS, LARRY WAN and DOES 1-30, Inclusive, Defendants. Case No. 21CV381436 DEFENDANTS'NSWER TO PLAINTIFF'S COMPLAINT Complaint Filed: 03/29/2021 Trial Date: Not Set 19 20 21 22 23 24 25 26 28 Defendants PETER W. ROSS OD AND LAWRENCE K. WAN OD, INC. DBA FAMILY EYE CARE CENTER OPTOMETRY, erroneously sued as FAMILY EYE CARE CENTER ("Family Eye Care Center") and PETER ROSS ("Ross" ) (collectively, "Defendants" ) hereby answer Plaintiff MICHELLE GARCIA's ("Plaintiff") Complaint as follows: GENERAL DENIAL Pursuant to California Code of Civil Procedure Section 431.30(d), Defendants deny, generally and specifically, each and every allegation contained in Plaintiff's Complaint. AFFIRMATIVE DEFENSES By way of affirmative defenses to the allegations of the Complaint herein, Defendants allege as follows: Defendants'nswer to Plaintiff's Complaint Case No. 21CV381436 Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/7/2021 11:41 AM Reviewed By: L Del Mundo Case #21CV381436 Envelope: 6594288 FIRST AFFIRMATIVE DEFENSE Plaintiff's Complaint as a whole, and each purported claim alleged therein, fails to state facts sufficient to constitute a cause of action for which relief may be granted. SECOND AFFIRMATIVE DEFENSE 10 12 Any recovery on Plaintiff's Complaint, and each purported cause of action alleged therein, is barred in whole or in part because Plaintiff was employed at-will pursuant to Labor Code $ 2922, and she cannot establish an exception to the at-will doctrine. THIRD AFFIRMATIVE DEFENSE Plaintiff's Complaint, and each cause of action contained therein is barred in whole or part by the applicable statutes of limitation including, but not limited to, California Code of Civ. Proc. $ 335.1. FOURTH AFFIRMATIVE DEFENSE 13 14 15 16 17 Defendants are informed and believe, and thereon allege, that any recovery on Plaintiff's Complaint, or on each purported claim alleged therein, is barred in that Plaintiff failed to use ordinary care and diligence in the performance of her duties and failed to comply substantially with the reasonable directions of her employer. FIFTH AFFIRMATIVE DEFENSE 18 19 20 21 Plaintiff is barred in whole or in part from recovering any damages, or any recovery must be reduced, by virtue of Plaintiff's failure to exercise reasonable diligence to mitigate her alleged damages. SIXTH AFFIRMATIVE DEFENSE 22 23 24 25 Plaintiff's Complaint, and each purported cause of action alleged therein, is barred in whole or in part to the extent Plaintiff is estopped by her own conduct from establishing and/or recovering under any of those claims. SEVENTH AFFIRMATIVE DEFENSE 26 Plaintiff's Complaint, and each purported claim alleged therein, is barred or Plaintiff's 27 alleged damages are limited or reduced by the doctrine of after-acquired evidence. Defendants'nswer to Plaintiff's Complaint Case No. 21CV381436 EIGHTH AFFIRMATIVE DEFENSE Plaintiff's right to recover against Defendants, if any, is reduced by the extent to which the acts, occurrences or damages alleged in the Complaint were proximately caused by the acts of Plaintiff or the acts or omissions of another third party. NINTH AFFIRMATIVE DEFENSE Defendants are relieved of any liability whatsoever as to Plaintiff's claims for damages to the extent Plaintiff seeks redress for physical and emotional injuries arising from preexisting physical or mental conditions. TENTH AFFIRMATIVE DEFENSE 10 Plaintiff's causes of action are preempted in whole or in part by the exclusive remedy provisions of the State Workers'ompensation Act (Labor Code Section 3600 et. seq.) 12 ELEVENTH AFFIRMATIVE DEFENSE 13 14 15 16 Plaintiff's third and fifth causes of action are barred to the extent the alleged desired accommodation sought by Plaintiff would impose an undue hardship on Family Eye Care Center's business operations, pursuant to Govt. Code sections 12940(a)(1) and 12940(m). TWELFTH AFFIRMATIVE DEFENSE 17 18 19 20 21 22 23 24 25 26 Plaintiff's Complaint, and each purported cause of action alleged therein, is barred because, to the extent that any actions of Defendants could be construed as unlawful discrimination, or retaliation (all of which Defendants unequivocally deny), Family Eye Care Center exercised reasonable care to prevent such conduct and would have taken immediate and appropriate corrective action to remedy and stop any such alleged misconduct if Plaintiff had informed Family Eye Care Center about the alleged misconduct. However, Plaintiff failed to utilize the preventive or corrective remedies provided by Family Fye Care Center to prevent and to otherwise avoid such harm. Plaintiff's claims are therefore barred in whole or limited in part by the doctrine of avoidable consequences. THIRTEENTH AFFIRMATIVE DEFENSE 27 Plaintiff's damages, if any, are to be reduced by all income received by Plaintiff subsequent to her separation from employment. Such income shall include, without limitation, Defendants'nswer to Plaintiff's Complaint Case N o. 21C V3 81436 all earned income, state disability payments, social security disability payments, private disability insurance benefits, Medi-Cal and Medicare benefits, and any other monies paid to Plaintiff in compensation for services rendered under any federal, state or local program or from any private insurance company, FOURTEENTH AFFIRMATIVE DE&FE&NSE 10 12 Plaintiff's Complaint as a whole, and each purported claim alleged therein, is barred in whole or in part by the doctrine of laches and unclean hands. FIFTEE&NTH AFFIRMATIVE DE&FENSI&; Plaintiff's request for compensatory damages is barred to the extent that Plaintiff cannot recover compensatory damages for her causes of action in the absence of physical injury. Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800. SIXTEENTH AFFIRMATIVE DE&FENSE 13 14 15 16 17 18 19 Plaintiff's request for economic damages and any other form of monetary relief is barred in whole or in part because, even assuming arguendo that Family Eye Care Center's actions were motivated in part by a discriminatory, retaliatory or any other improper reason (which Family Eye Care Center unequivocally denies), Family Eye Care Center would have made the same employment decisions with regard to Plaintiff in any case for legitimate, non-discriminatory and non-retaliatory business reasons. ADDITIONAL AFFIRMATIVE& DE&FENSES 20 21 22 23 24 Because Plaintiff's Complaint is couched in broad and conclusory terms, Defendants cannot fully anticipate all defenses that may be applicable to this action. Accordingly, Defendants hereby reserves the right to assert additional defenses, if and to the extent that such defenses are applicable. PRAYER 25 WHEREFORE&, Defendants pray for judgment as follows: 26 27 That Plaintiff take nothing by her Complaint; That the Complaint be dismissed in its entirety with prejudice; 28 Defendants'nswer to Plaintiff's Complaint Case No. 21CV381436 3. That Plaintiff be denied each and every demand and prayer for relief contained in the Complaint; For costs of suit incurred herein, including reasonable attorneys'ees; and For such other and further relief as the Court deems just and equitable. Dated: June 7, 2021 JACKSON LEWIS P.C. 10 By: /s/Conor Dale Conor J. Dale Corina C. Gallardo Attorneys for Defendants FAMILY EYE CARE CENTER and PETER ROSS 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants'nswer to Plaintiff s Complaint Case No. 21CV381436 PROOF OF SERVICE I, Lauretta Adams, declare that I am employed with the law firm of Jackson Lewis P.C., whose address is 50 California Street, 9th Floor, San Francisco, California 94111-4615; I am over the age of eighteen (18) years and am not a party to this action. On June 7, 2021, I served the attached document(s): DEFENDANTS'NSWER TO PLAINTIFF'S COMPLAINT in this action by placing a true and correct copy thereof, enclosed in a sealed envelope(s), addressed as follows: 10 Noel D. Hibbard, Esq. Law Offices of Noel Hibbard 2099 Lincoln Ave., Suite 202 San Jose, CA 95125 Tel.: (408) 294 9100 Fax: (408) 228 8979 Attorneys for Plaintiff MICHELLE GARCIA 12 13 14 15 16 17 18 19 20 21 22 [XJ BY MAIL:United States Postal Service by placing sealed envelopes with the postage thereon fully prepaid, placed for collection and mailing on this date, following ordinary business practices, in the United States mail at San Francisco, California. [( ) Couvtesy copy by (e-mailJ.JJ BY HAND DELIVERY: I caused such envelope to be delivered by hand to the above address. BY OVERNIGHT DELIVERY: I caused such envelope to be delivered to the above address within 24 hours by overnight delivery service. BY ELECTRONIC TRANSMISSION: I caused such document(s) to be electronically transmitted to the above email address (by written agreement, confirming e-mail dated September 10, 2020). BY ELECTRONIC TRANSMISSION: I caused such document to be electronically transmitted to the above email address pursuant to Temporary emergency rule A-'12 of the California Court's Judicial Mandate regarding electronic service of documents due to Covid 19. 23 24 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 25 Executed on June 7, 2021, at San Francisco, California. 27 28 4832-8048-1773, v. 1 J&~:(rAX! Z:7!:;: )-I F! ~.i---'"-i..ij.- Lauretta Adams PROOF OF SERVICE Case No. 21CV381436