notice to state court and adverse party of removal of civil action to

Cal. Super. - 1st Dist.September 21, 2021

4834-9769-2410.1 / 069962-1005 NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 Jody A. Landry, Bar No. 125743 jlandry@littler.com Heidi Hegewald, Bar No. 326834 hhegewald@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, California 92101.3577 Telephone: 619.232.0441 Fax No.: 619.232.4302 Attorneys for Defendants DELUXE CORPORATION (erroneously named DELUXE CORPORATION, INC.) AND DELUXE SMALL BUSINESS SALES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PAVEL SAFANIEV, an individual, Plaintiff, v. DELUXE CORPORATION, INC., a Minnesota Corporation; DELUXE SMALL BUSINESS SALES, INC., a Minnesota Corporation; and DOES 1 through 50 inclusive, Defendants. Case No. CGC-21-591151 NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT ASSIGNED FOR ALL PURPOSES TO JUDGE SAMUEL K. FENG / DEPT. 610 Complaint Filed: April 20, 2021 TO THE CLERK OF THE ABOVE-ENTITLED COURT, PLAINTIFF PAVEL SAFANIEV AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 21, 2021, Defendants DELUXE CORPORATION and DELUXE SMALL BUSINESS SALES, INC. filed in the United States District Court for the Northern District of California a Notice to Federal Court of Removal of Civil Action from State Court Pursuant to 28 U.S.C. §§ 1331, 1332 and 1441(b) (“Notice of Removal”), a copy of which is attached hereto with its exhibits as Exhibit A. / / / ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/21/2021 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 4834-9769-2410.1 / 069962-1005 2 NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 PLEASE TAKE FURTHER NOTICE that pursuant to 28 U.S.C. section 1446, the filing of said Notice of Removal of action in federal court, together with the filing of a copy of said Notice to State Court and Adverse Party of Removal of Civil Action to Federal Court with the Clerk of this state court, effects the removal of this action, and the state court may therefore proceed no further unless and until the case is remanded. Dated: September 21, 2021 LITTLER MENDELSON, P.C. Jody A. Landry Heidi E. Hegewald Attorneys for Defendants DELUXE CORPORATION (erroneously named DELUXE CORPORATION, INC.) AND DELUXE SMALL BUSINESS SALES, INC. EXHIBIT A DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 Jody A. Landry, Bar No. 125743 jlandry@littler.com Heidi Hegewald, Bar No. 326834 hhegewald@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, California 92101.3577 Telephone: 619.232.0441 Fax No.: 619.232.4302 Attorneys for Defendants DELUXE CORPORATION (erroneously named DELUXE CORPORATION, INC.) AND DELUXE SMALL BUSINESS SALES, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PAVEL SAFANIEV, an individual, Plaintiff, v. DELUXE CORPORATION, INC., a Minnesota corporation; DELUXE SMALL BUSINESS SALES, INC., a Minnesota Corporation; and DOES 1 through 50 inclusive, Defendants. Case No. [San Francisco County Superior Court Case No. CGC-21-591151] DEFENDANTS DELUXE CORPORATION AND DELUXE SMALL BUSINESS SALES, INC.’S NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT PURSUANT TO 28 U.S.C. §§ 1332, 1441 AND 1446 Trial Date: Not Set Complaint Filed: April 20, 2021 Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 1 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 2 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, PLAINTIFF, AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendants DELUXE CORPORATION and DELUXE SMALL BUSINESS SALES, INC. (“Defendants”) hereby remove the state court action described herein, filed in the Superior Court in the State of California for the County of San Francisco, Case No. CGC-21-591151, to the United States District Court for the Northern District of California, pursuant to 28 U.S.C. sections 1332(a), 1441, and 1446. I. JURISDICTION AND VENUE ARE PROPER 1. This Court has original jurisdiction under 28 U.S.C. section 1332(a)(1) (“Section 1332”) and this case may be removed pursuant to the provisions of 28 U.S.C. section 1441(a), in that it is a civil action wherein the amount in controversy for the named Plaintiff exceeds the sum of seventy-five thousand dollars ($75,000.00), exclusive of interest and costs, and it is between “citizens of different States.” As set forth below, this case meets all of Section 1332’s requirements for removal and is timely and properly removed by the filing of this Notice. 2. The employment action was filed in the Superior Court of California for the County of San Francisco. Accordingly, venue properly lies in the United States District Court for the Northern District of California pursuant to 28 U.S.C. sections 84(c), 1391, and 1446. II. PLEADINGS, PROCESSES AND ORDERS 3. On or about April 20, 2021, Plaintiff filed his Complaint in the Superior Court of the State of California for the County of San Francisco entitled Pavel Safaniev, an individual, v. Deluxe Corporation Inc.., a Minnesota corporation; Deluxe Small Business Sales, Inc., a Minnesota corporation; and DOES 1 through 50 inclusive, Case No. CGC-21-591151 (the “Complaint”). (See Exhibit (“Ex.”) A; See also Declaration Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 2 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 3 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 of Heidi Hegewald (“Hegewald Decl.”), ¶ 2.) 4. The Complaint asserts the following causes of action: (1) discrimination on the basis of disability or perceived disability and failure to engage in the interactive process in violation of FEHA; failure to prevent discrimination and harassment; harassment on the basis of disability; (2) breach of express oral contract not to terminate employment without good cause; (3) breach of implied-in-fact contract not to terminate employment without good cause; (4) negligent hiring, supervision, and retention; (5) failure to provide leave in violation of the CFRA; (6) failure to prevent retaliation in violation of the CFRA; (7) wrongful termination; and (8) intentional infliction of emotional distress. The allegations of the Complaint are incorporated into this notice by reference without admitting the truth of any of them. Plaintiff asserts these eight causes of action against “All Defendants.” (Ex. A, Complaint generally.) 5. On August 31, 2021, Defendant Deluxe Corporation (“Deluxe Corporation”) was served with the Complaint, along with copies of the Civil Case Cover Sheet and Summons, and Notice of Case Assignment through Deluxe Corporation’s registered agent for service of process, CSC. (See Ex. A and B; See also Hegewald Decl., ¶ 3.) 6. On August 31, 2021, Defendant Deluxe Small Business Sales, Inc. (“Deluxe Sales”) was served with the Complaint, along with copies of the Civil Case Cover Sheet and Summons, and Notice of Case Assignment through Deluxe Sales’ registered agent for service of process, CSC. (See Ex. A and C; See also Hegewald Decl., ¶ 4.) 7. On September 20, 2021, Defendants filed an Answer to the Complaint in state court. (See Ex. D; See also Hegewald Decl., ¶ 5.) 8. To Defendants’ knowledge, no further process, pleadings, or orders related to this case have been filed in the San Francisco County Superior Court or served by any party other than as described above. (Hegewald Decl., ¶ 6.) Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 3 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 4 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 III. TIMELINESS OF REMOVAL 9. This Notice of Removal is timely in that it has been filed within thirty (30) days of Defendants’ first receipt of the Summons and Complaint, on or about August 31, 2021, and within one year of the filing of the Complaint on April 20, 2021. See 28 U.S.C. § 1446(b). IV. COMPLETE DIVERSITY OF CITIZENSHIP EXISTS BETWEEN PLAINTIFF AND ALL DEFENDANTS 10. Section 1332(a) provides, in relevant part, as follows: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between - (1) citizens of different States[.] 11. This action is a civil action over which this Court has original jurisdiction based on diversity of citizenship pursuant to Section 1332(a), and is one which may be removed to this Court by Defendants pursuant to 28 U.S.C. section 1441(b) because it is a civil action between citizens of different States and the amount in controversy exceeds $75,000, exclusive of interest and costs, as set forth below. 12. Citizenship of a natural person is established by domicile. A person’s domicile is established by physical presence and his or her intent to remain. A. Plaintiff is a Citizen of California 13. For diversity purposes, a person is a “citizen” of the state in which he or she is domiciled. 28 U.S.C. § 1332(a)(1) (an individual is a citizen of the state in which she or he is domiciled). A person’s domicile is the place he or she resides with the intention to remain, or to which he or she intends to return. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Citizenship is determined at the time the lawsuit is filed. See Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088 (9th Cir. 1983); see also LeBlanc v. Cleveland, 248 F.3d 95, 100 (2d Cir. 2001); see also Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir. 1991). Furthermore, allegations of Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 4 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 5 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 residency in a state court complaint can create a rebuttable presumption of domicile supporting diversity of citizenship. Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986). Plaintiff was at the time of the filing of this action a resident and citizen of the State of California. (Complaint, ¶ 5.) Accordingly, Plaintiff admits that he is a citizen of the State of California. B. None of the Defendants are Citizens of California 14. For diversity purposes, a corporation is a citizen of its state of incorporation and the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1). A corporation’s principal place of business refers to its nerve center or, in other words, the location where the corporation’s high-level officers direct, control and coordinate the corporation’s activities and, in practice, where the corporation maintains its headquarters. See Hertz Corp. v. Friend, 559 U.S. 77, 80-81, 92-95 (2010); see also Breitman v. May Co. California, 37 F.3d 562, 564 (9th Cir. 1994) (corporation is a citizen of state in which its corporate headquarters are located and where its executive and administrative functions are performed). Except in unusual circumstances, a corporation’s corporate headquarters is in its “nerve center.” Id. 1. Defendant Deluxe Corporation is a Citizen of Minnesota 15. Deluxe Corporation is, and was at the time this action was commenced, a corporation organized and formed under the laws of the State of Minnesota, with its principal place of business in Minneapolis, Minnesota. (See Declaration of Petra Ott (“Ott Decl.”), ¶ 3.) Deluxe Corporation’s headquarters, including its administrative and executive offices, are located in Minneapolis, Minnesota. (Id.) The majority of Deluxe Corporation’s corporate functions are located in Minneapolis, Minnesota. (Id.) Deluxe Corporation’s executive and administrative support functions that are important to its day-to-day operations are conducted in its Minneapolis, Minnesota location. (Id.) Additionally, the majority of Deluxe Corporation’s management team and executives are located in Minneapolis, Minnesota. (Id.) Minneapolis, Minnesota is therefore Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 5 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 6 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 Deluxe Corporation’s principal place of business. 16. Plaintiff is a citizen of California, and Defendant Deluxe Corporation is a citizen of Minnesota. Accordingly, Deluxe Corporation is a citizen of a different State than that of Plaintiff. 2. Defendant Deluxe Sales is a Citizen of Minnesota 17. Deluxe Sales is, and was at the time this action was commenced, incorporated in the State of Minnesota, with its principal place of business in Minneapolis, Minnesota. (Ott Decl., ¶ 4.) Deluxe Sales’ headquarters, including its administrative and executive offices, are located in Minneapolis, Minnesota. (Id.) The majority of Deluxe Sales’ corporate functions are located in Minneapolis, Minnesota. (Id.) Deluxe Sales’ executive and administrative support functions that are important to its day-to-day operations are conducted in its Minneapolis, Minnesota location. (Id.) Additionally, the majority of Deluxe Sales’ management team and executives are located in Minneapolis, Minnesota. (Id.) Minneapolis, Minnesota is therefore Deluxe Sales’ principal place of business. 18. Plaintiff is a citizen of California and Defendant Deluxe Sales’ is a citizen of Minnesota. Accordingly, Deluxe Sales is a citizen of a different State than that of Plaintiff. C. Doe Defendants’ Citizenship Must be Disregarded 19. Defendants Does 1 through 50 are fictitious. The Complaint does not set forth the identity of or any allegations against these Defendants as individuals. Their citizenship should be disregarded for the purposes of determining diversity jurisdiction. 28 U.S.C. § 1441(a); see also Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1213 (9th Cir. 1980). / / / / / / / / / Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 6 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 7 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 V. THE AMOUNT IN CONTROVERSY EXCEEDS $75,0001 20. For purposes of determining whether the minimum amount in controversy has been satisfied, the Court must presume that Plaintiff will prevail on each and every one of his claims. Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D. Cal. 2002). “[T]he amount in controversy is not limited to damages incurred prior to removal,” such as “wages a plaintiff-employee would have earned before removal (as opposed to after removal)” but instead “encompasses all relief a court may grant on that complaint if the plaintiff is victorious.” Chavez v. JPMorgan Chase & Co. 888 F. 3d. 413, 414-415 (9th Cir. 2018). Defendants need only to establish by a preponderance of evidence that Plaintiff’s claims exceed the jurisdictional minimum. Singer v. State Farm Mut. Auto Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). By demonstrating that the actual amount in controversy placed at issue by Plaintiff exceeds the $75,000 threshold, Defendants do not concede the validity of Plaintiff’s claims, the legal bases for the damages calculations, or the likelihood that Plaintiff will recover anything. 21. The U.S. Supreme Court has affirmed that the notice of removal need only contain a “short and plain statement of the grounds for removal.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 551 (Dec. 15, 2014) (citing 28 U.S.C. §1446(a)). Moreover, Defendants need not submit evidence to support their notice of removal. Id. at 553. Defendants need to only plausibly allege that the amount in controversy exceeds $75,000. Id. (“the defendant’s amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court”). However, even if an evidentiary showing were required, Defendants only need to show by a preponderance of the evidence that the amount-in-controversy requirement has 1 The alleged damages calculations contained herein are for purposes of removal only. Defendants expressly deny that Plaintiff is entitled to any relief whatsoever, and Defendants expressly reserve the right to challenge Plaintiff’s alleged damages in this case. Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 7 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 8 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 been met. Id. at 554. Importantly, the Court instructed that there is no anti-removal presumption. Ibid. While the number and types of Plaintiff’s claims clearly demonstrate that the amount in controversy is exceeded, out of an abundance of caution, Defendants provide greater detail, infra, that clearly establishes that the amount in controversy placed at issue by Plaintiff exceeds $75,000. A. Plaintiff Seeks Well Over $75,000 in Economic Damages 22. It can be reasonably ascertained from the pleadings and the prayer for relief that the amount in controversy does, in fact, exceed $75,000. Plaintiff seeks recovery of lost past and future income and employment benefits, and also claims to have sustained and continues to sustain substantial losses of earnings and other employment benefits. (Complaint, ¶ 20, 38, 48, 52, 56, 74, 88, Prayer (“Prayer.”) ¶ 1.) 23. Deluxe Sales employed Plaintiff from June 2013 through his separation, on May 3, 2019. (Ott Decl., ¶ 6.) At the time that Plaintiff’s employment was terminated on May 3, 2019, Plaintiff earned a semi-monthly salary of $5,070.62. (Id.) This base compensation equals an annual income of $121,695. (Id.) Defendants anticipate a trial date in this matter in or around June 2022. Although Defendants deny Plaintiff is entitled to recover any damages, assuming, arguendo, if Plaintiff were to recover back wages from the time of his alleged termination in May 2019 (Complaint, ¶ 18), until he filed this lawsuit, his back pay for that one year would be over $120,000. If we look until the date of the trial, thus approximately three years, then the potential back pay would be approximately $365,085, based on Plaintiff’s annual income at the time his employment was terminated. B. Plaintiff Additionally Seeks Non-Economic Damages, Attorneys’ Fees and Punitive Damages 24. Emotional Distress Damages: In addition to economic damages, Plaintiff alleges he suffered emotional distress as a result of Defendants’ alleged unlawful conduct. (Complaint ¶¶ 21, 39, 75, 81, 88, 89; Prayer ¶ 1.) An award of emotional distress damages alone can reasonably be anticipated to be far in excess of the Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 8 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 9 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 jurisdictional minimum. See Simmons v. PCR Tech., 209 F.Supp.2d 1029, 1034 (N.D. Cal. 2002) (citing case in which an award for pain and suffering in an employment discrimination case totaled $3.5 million, and recognizing that “emotional distress damages in a successful employment discrimination case may be substantial”). 25. In order to establish the amount of emotional distress damages in controversy, a defendant may introduce evidence of jury verdicts in cases involving analogous facts. See Rivera v. Costco Wholesale Corp., 2008 U.S. Dist. LEXIS 58610, *10 (N.D. Cal. 2008) (citing Simmons, 209 F.Supp.2d at 1033); see also Cain v. Hartford Life & Acc. Ins. Co., 890 F.Supp.2d 1246, 1250 (C.D. Cal. 2012) (“Cain seeks to recover emotional distress from Hartford, which must be considered in this [amount in controversy] analysis.”); Richmond v. Allstate Ins. Co., 897 F.Supp. 447, 450 (S.D. Cal. 1995) (“The vagueness of plaintiffs’ pleadings with regard to emotional distress damages should not preclude this Court from noting that these damages are potentially substantial.”); see also Plata v. Target Corp., 2016 WL 6237798, *3 (C.D. Cal. 2016) (finding it possible that plaintiff could obtain $25,000 in emotional distress damages for a wrongful termination claim where plaintiff had $0 estimated economic losses). Emotional distress damage awards for FEHA discrimination cases are often well in excess of $75,000, standing alone. See, e.g., Sullivan v. Save Mart Supermarkets, et al., 2017 Jury Verdicts LEXIS 12578 (Cal. Super. Ct. 2017) ($425,000 in emotional distress damages in a FEHA pregnancy discrimination suit with similar allegations to the instant case); Massey v. City of Long Beach, JVR No. 1509220063, 2015 WL 5578119 (Cal. Sup. Ct. 2015) (awarding $520,119 in damages for pain and suffering in FEHA discrimination case); Gomez v. Magco Drilling JVR No. 1510280054 (Cal. Sup. 2015); Beasley v. E. Coast Foods, Inc., JVR No. 1509250073, 2015 WL 5678367 (Cal. Sup. Ct. 2015) (awarding $1,500,000 in compensatory damages for pain and suffering in FEHA race discrimination case); Ko v. The Square Grp., JVR No. 1503030036, 2014 WL 8108413 (Cal. Sup. 2014) (awarding $125,000 for pain and suffering in a FEHA Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 9 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 10 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 disability discrimination case); see also Simmons, 209 F.Supp.2d at 1034 (collecting cases). 26. In a suit with similar allegations as the present case, the plaintiff was awarded $50,000 for emotional distress damages. Matyka v. Federal Express Corp. 27 Trials Digest 3d 43, 1999 WL 1566772 (Cal. Sup. Ct. 1999). There, the plaintiff alleged violations under the CFRA and breach of implied contract when the plaintiff’s employment was terminated for excessive absences. The plaintiff suffered from a health condition that required her to miss many days from work. The plaintiff claimed her termination was in retaliation and violation of the CFRA. The jury awarded her $50,000 in emotional distress damages. For purposes of evaluating the amount in controversy on Plaintiff’s claims, and based on the foregoing jury verdicts, a conservative estimate of the emotional distress damages is at least $50,000. 27. Attorneys’ Fees: Plaintiff also seeks an award of attorneys’ fees and costs pursuant to all applicable provisions of law. (Complaint, ¶¶ 40, 53; Prayer, ¶ 4.) “[W]here an underlying statute authorizes an award of attorneys’ fees, either with mandatory or discretionary language, such fees may be included in the amount in controversy.” Id. at 1034 (citing Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998)); Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d. 785, 788 (9th Cir. 2018) (the amount in controversy includes future attorneys’ fees recoverable by statute); Brady v. Mercedes-Benz USA, Inc., 243 F.Supp.2d 1004, 1010-11 (N.D. Cal. 2002) (in deciding the amount in controversy issue, court may estimate the amount of reasonable attorneys’ fees likely to be recovered by plaintiff if he were to prevail). Attorneys’ fees are recoverable as a matter of right to the prevailing party under FEHA. Cal. Gov’t. Code § 12965. While Plaintiff’s attorneys’ fees cannot be calculated precisely, it is reasonable to assume that they could exceed a damages award. See Simmons, 209 F. Supp. 2d at 1035 (“The court notes that in its twenty-plus years’ experience, attorneys’ fees in individual discrimination cases often exceed the damages.”); Beaty v. BET Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 10 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 11 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 Holdings, Inc., 222 F.3d 607 (9th Cir. 2000) (recognizing that award of attorneys’ fees of $376,520 may be appropriate in FEHA where compensatory damages were only $30,000, but remanding to district court to clarify whether court had properly exercised its discretion to consider reducing the fee award). 28. Other California courts have upheld large attorneys’ fees awards in FEHA cases. See also Flannery v. Prentice, 26 Cal. 4th 572 (2001) (affirming award of attorneys’ fees and costs of $891,042); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470 (9th Cir. 1995) (affirming $724,380 attorneys’ fee award in FEHA age discrimination case where plaintiffs’ damages awards were significantly less). As a result, Plaintiff’s demand for attorneys’ fees further increases the amount in controversy, which is already significantly above the required $75,000 threshold. 29. Punitive Damages: Plaintiff also seeks punitive damages. (Complaint, ¶¶ 41, 61, 66, 76, 90; Prayer, ¶ 2.) The Court must take into account punitive damages for purposes of determining the amount in controversy where such damages are recoverable under state law. Davenport v. Mut. Benefit Health and Accident Ass’n, 325 F.2d 785, 787 (9th Cir. 1963); Brady, 243 F.Supp.2d at 1009. California law does not provide any specific monetary limit on the amount of punitive damages that may be awarded under Civil Code section 3294. Boyle v. Lorimar Prods., Inc., 13 F.3d 1357, 1360 (9th Cir. 1994). Additionally, employment discrimination cases have the potential for large punitive damages awards. Simmons, 209 F.Supp.2d at 1033; Roby v. McKesson Corp., 47 Cal. 4th 686, 719-720 (2009) (punitive damages award of $1,905,000). Punitive damages may be significant even when no compensatory damages are awarded. Moore v. JMK Golf LLC, 25 Trials Digest 16th 15, 2013 WL 3149228 (Cal. Sup. Ct. 2013) ($150,000 punitive damage award in a FEHA pregnancy discrimination leave case); Torres v. BE Aerospace, Inc., JVR No. 1606300035, 2016 WL 3552983 (Cal. Sup. Ct. 2013) ($7,000,000 punitive damage award in FEHA gender discrimination suit). Although Defendants vigorously deny Plaintiff’s allegations, if Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 11 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 12 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 Plaintiff were to prevail on his punitive damages claim, that claim alone could exceed the jurisdictional minimum. 30. Plaintiff also seeks such open-ended relief as “such further relief that the Court may deem just and proper.” (Complaint; Prayer, ¶ 6.) Although uncertain in amount, these additional damages claims only serve to increase the amount in controversy. See Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 551 (2014) (“When the plaintiff’s complaint does not state the amount in controversy, the defendant’s notice of removal may do so.”). 31. Based upon the pleadings, it does not appear to a “legal certainty that the claim is really for less than” the amount in controversy minimum. Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938)). Thus, Defendants have carried their burden of demonstrating by a preponderance of the evidence that the amount in controversy in this matter clearly exceeds the jurisdictional minimum of $75,000. 32. Summary of Amount In Controversy 33. In sum, although Defendants do not concede Plaintiff’s claims have any merit, when the relief sought by Plaintiff is taken as a whole, the amount in controversy for Plaintiff’s claims more likely than not far exceeds the $75,000 jurisdiction requirement, without even considering attorneys’ fees, interests, costs and claimed punitive damages. Thus, this Court has original jurisdiction over the claims asserted by Plaintiff in this action based on diversity of citizenship jurisdiction under 28 U.S.C. sections 1332(a)(1) and 1441(a). Plaintiff’s Claim Amount in Controversy Back Pay $120,000 to 365,085 Emotional Distress $50,000.00 Total $170,000 to 415,085 + attorneys’ fees + punitive damages Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 12 of 13 DEFENDANTS’ NOTICE TO FEDERAL COURT OF REMOVAL OF CIVIL ACTION FROM STATE COURT 13 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 VI. NOTICE OF REMOVAL TO PLAINTIFF AND STATE COURT 34. Contemporaneously with the filing of this Notice of Removal in the United States District Court for the Northern District of California, counsel for Defendants is serving written notice of the filing on Plaintiff’s counsel of record. (Hegewald Decl., ¶ 7.) In addition, a copy of the Notice of Removal will be filed with the Clerk of the Superior Court of the State of California for the County of San Francisco. (Hegewald Decl., ¶ 8.) Because Defendants have demonstrated satisfaction of all diversity of citizenship requirements under Section 1332 and have and/or will provide proper notice of removal, Defendants hereby remove this action from the Superior Court of the State of California, County of San Francisco, to the United States District Court for the Northern District of California. Dated: September 21, 2021 LITTLER MENDELSON, P.C. /s/ Heidi E. Hegewald Jody A. Landry Heidi E. Hegewald Attorneys for Defendants DELUXE CORPORATION (erroneously named DELUXE CORPORATION, INC.) AND DELUXE SMALL BUSINESS SALES, INC. and DELUXE SMALL BUSINESS SALES, INC. 4846-7786-4954.2 / 069962-1005 Case 3:21-cv-07333-LB Document 1 Filed 09/21/21 Page 13 of 13 EXHIBIT A Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 1 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 2 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 3 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 4 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 5 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 6 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 7 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 8 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 9 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 10 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 11 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 12 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 13 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 14 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 15 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 16 of 38 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 17 of 38 EXHIBIT B Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 18 of 38 Notice of Service of Process null / ALL Transmittal Number: 23720514 Date Processed: 09/02/2021 Primary Contact: Debbie Cramlet Deluxe Corporation 801 Marquette Ave Minneapolis, MN 55402-2807 Electronic copy provided to: Melissa Wisher Entity: Deluxe Corporation Entity ID Number 3216157 Entity Served: Deluxe Corporation, Inc. Title of Action: Pavel Safaniev vs. Deluxe Corporation, Inc. Document(s) Type: Summons/Complaint Nature of Action: Discrimination Court/Agency: San Francisco County Superior Court, CA Case/Reference No: CGC-21-591151 Jurisdiction Served: California Date Served on CSC: 08/31/2021 Answer or Appearance Due: 30 Days Originally Served On: CSC How Served: Personal Service Sender Information: Ilya Fii,Mus 415-426-3580 Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action. To avoid potential delay, please do not send your response to CSC 251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | sop@cscglobal.com Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 19 of 38 EXHIBIT C Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 20 of 38 NOTICE OF SERVICE OF PROCESS Transmittal Number: 23717388 (Click the Transmittal Number to view your SOP) Pursuant to client instructions, we are forwarding this summary and Notice of Service of Process. Entity: Deluxe Small Business Sales, Inc. Entity I.D. Number: 3216161 Entity Served: Deluxe Small Business Sales, Inc Title of Action: Pavel Safaniev vs. Deluxe Corporation, Inc Document(s) type: Summons/Complaint Nature of Action: Discrimination Court/Agency: San Francisco County Superior Court, California Case/Reference No: CGC-21-591151 Jurisdiction Served: California Date Served on CSC: 08/31/2021 Answer or Appearance Due:30 Days Originally Served On: CSC How Served: Personal Service Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 21 of 38 EXHIBIT D Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 22 of 38 4836-0712-3451.1 / 069962-1013 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 Jody A. Landry, Bar No. 125743 jlandry@littler.com Heidi Hegewald, Bar No. 326834 hhegewald@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, California 92101.3577 Telephone: 619.232.0441 Fax No.: 619.232.4302 Attorneys for Defendants DELUXE CORPORATION (erroneously named DELUXE CORPORATION, INC.) AND DELUXE SMALL BUSINESS SALES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PAVEL SAFANIEV, an individual, Plaintiff, v. DELUXE CORPORATION, INC., a Minnesota Corporation; DELUXE SMALL BUSINESS SALES, INC., a Minnesota Corporation; and DOES 1 through 50 inclusive, Defendants. Case No. CGC-21-591151 ANSWER TO COMPLAINT ASSIGNED FOR ALL PURPOSES TO JUDGE Samuel K. Feng Courtroom 610 Complaint Filed: April 20, 2021 Defendants Deluxe Corporation and Deluxe Small Business Sales, Inc. (“Defendants”) hereby answer the Complaint (“Complaint”) filed by Plaintiff PAVEL SAFANIEV (“Plaintiff” or “Safaniev”) as follows: GENERAL DENIAL Pursuant to the provisions of the California Code of Civil Procedure section 431.30(d), Defendants deny generally and specifically each and every allegation contained in the Complaint. In addition, Defendants deny that Plaintiff has sustained, or will sustain, any loss or damage in the manner or amount alleged, or otherwise, by reason of any act or omission, or any other conduct or absence thereof on the part of Defendants. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/20/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 23 of 38 4836-0712-3451.1 / 069962-1013 2 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 AFFIRMATIVE DEFENSES Defendants further assert the following affirmative defenses to the Complaint and each claim therein. By asserting the defenses, Defendants do not concede that they have the burden of production or proof as to any affirmative defense asserted below. Defendants do not presently know all of the factors concerning the conduct of Plaintiff sufficient to state all affirmative defenses at this time. Defendants will seek leave of this Court to amend this Answer should they later discover facts demonstrating the existence of additional affirmative defenses. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) As a separate and distinct affirmative defense, Defendants assert that the Complaint and each cause of action set forth therein fail to state facts sufficient to constitute a cause of action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE (Unclean Hands) As a separate and distinct affirmative defense, Defendants are informed and believe that further investigation and discovery will reveal, and on that basis alleges, that the Complaint and each cause of action set forth therein, or some of them, are barred, in whole or in part, by the equitable doctrine of unclean hands. THIRD AFFIRMATIVE DEFENSE (Statutes of Limitation) As a separate and distinct affirmative defense, Defendants allege that the Complaint and each cause of action set forth therein are barred, in whole or in part, by the applicable statutes of limitation, including but not limited to Government Code sections 12960 and 12965 and Code of Civil Procedure section 335.1. FOURTH AFFIRMATIVE DEFENSE (Failure to Exhaust Administrative Remedies) As a separate and distinct affirmative defense, Defendants allege that the Complaint and each cause of action set forth therein are barred, in whole or in part, because Plaintiff failed to Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 24 of 38 4836-0712-3451.1 / 069962-1013 3 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 exhaust his administrative remedies with the California Department of Fair Employment and Housing (“DFEH”). FIFTH AFFIRMATIVE DEFENSE (Claims Exceed Scope of Administrative Charges) As a separate and distinct affirmative defense, Defendants allege that the Complaint and each cause of action set forth therein are barred, in whole or in part, because, assuming arguendo that Plaintiff did attempt to exhaust his administrative remedies with the California DFEH, the causes of action asserted in the Complaint exceed the scope of any potential Charges filed with the DFEH. SIXTH AFFIRMATIVE DEFENSE (Managerial Immunity) As a separate and affirmative defense, Defendants allege that the Complaint and each cause of action set forth therein are barred, in whole or in part, because Defendants’ conduct (and the conduct of any of its officers, managers or employees while acting in the course and scope of their employment) is protected by the managerial privilege in that all actions taken with respect to Plaintiff’s employment were undertaken and exercised with proper managerial discretion in good faith, and for proper, lawful reasons. SEVENTH AFFIRMATIVE DEFENSE (No Unlawful Policy) As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s alleged damages were not proximately caused by any unlawful policy, custom, practice and/or procedure promulgated and/or tolerated by Defendants. EIGHTH AFFIRMATIVE DEFENSE (Legitimate Business Reasons for Decisions) As a separate and distinct affirmative defense, Defendants allege that the Complaint and each cause of action set forth therein, or some of them, are barred, in whole or in part, because the decisions about which Plaintiff complains were based upon legitimate, non-discriminatory and non- retaliatory business reasons. / / / Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 25 of 38 4836-0712-3451.1 / 069962-1013 4 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 NINTH AFFIRMATIVE DEFENSE (Defendants Acted in Good Faith and with Good Cause) As a separate and distinct affirmative defense, Defendants allege, without admitting that Defendants engaged in any of the acts or omissions alleged in Plaintiff’s Complaint, that the Complaint and each cause of action set forth therein cannot be maintained because good cause existed for each and every action taken by Defendants with respect to Plaintiff and Defendants acted reasonably and in good faith, at all times, based upon all relevant facts and circumstances known by Defendants at the time it acted. TENTH AFFIRMATIVE DEFENSE (Same Decision/Mixed Motive) As a separate and distinct affirmative defense, Defendants allege the Complaint and each cause of action set forth therein cannot be maintained against Defendants because, although Defendants deny having any discriminatory or retaliatory animus toward Plaintiff, to the extent that Plaintiff suffered an adverse employment action motivated in part by discrimination or retaliation or Plaintiff can establish that any of the allegations set forth in his Complaint were motivated by a discriminatory or retaliatory motive, all acts or omissions allegedly attributed to Defendants also were motivated by nondiscriminatory or non-retaliatory reasons and such reasons alone would have induced Defendants to have taken the same action or make the same adverse employment decision(s). ELEVENTH AFFIRMATIVE DEFENSE (After-Acquired Evidence) As a separate and distinct affirmative defense, Defendants allege that, to the extent Defendants acquire any evidence of wrongdoing by Plaintiff during the course of this litigation that would have materially affected the terms and conditions of Plaintiff’s employment or would have resulted in Plaintiff being demoted, disciplined, and/or terminated, such after-acquired evidence shall bar Plaintiff’s claims on liability or damages and shall reduce such claims as provided by law. / / / / / / / / / Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 26 of 38 4836-0712-3451.1 / 069962-1013 5 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 TWELFTH AFFIRMATIVE DEFENSE (Deluxe Corporation not Plaintiff’s employer) As a separate and distinct affirmative defense, Defendant Deluxe Corporation alleges that all of Plaintiff’s claims are barred against it as it was not Plaintiff’s employer. THIRTEENTH AFFIRMATIVE DEFENSE (Plaintiff’s Breach of Duties) As a separate and distinct affirmative defense, Defendants allege that the Complaint and each cause of action therein are barred, in whole or in part, by Plaintiff’s own breach of duties owed to Defendant under California Labor Code sections 2856 as he failed to comply or substantially comply with all directions of Defendant concerning his job duties. FOURTEENTH AFFIRMATIVE DEFENSE (No Cognizable Damage or Harm) As a separate and distinct defense, Defendants allege that Plaintiff’s claims for wrongful termination in violation of public policy and/or retaliation are barred in whole or in part because Plaintiff has not suffered any cognizable damage or other harm as a result of any alleged violation of public policy. FIFTEENTH AFFIRMATIVE DEFENSE (At-Will Employment) As a separate and distinct affirmative defense, Defendants allege that the second and third causes of action in the Complaint cannot be maintained because Plaintiff was an at-will employee at all times, with no entitlement to continued employment pursuant to Section 2922 of the California Labor Code. SIXTEENTH AFFIRMATIVE DEFENSE (Outside Course and Scope of Employment) As a separate and distinct affirmative defense, Defendants allege that the Complaint, and each cause of action set forth therein, cannot be maintained because, to the extent that any employees of Defendants took the actions alleged, such actions were committed outside the course and scope of such employees’ employment, were not authorized, adopted or ratified by Defendants, Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 27 of 38 4836-0712-3451.1 / 069962-1013 6 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 and/or Defendants did not know of nor should Defendants have known of such conduct. SEVENTEENTH AFFIRMATIVE DEFENSE (Reasonable Care to Prevent and Correct Discrimination) As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s Complaint, and each cause of action alleged therein, is barred, in whole or in part, because, at all relevant times, Defendants acted in good faith and exercised reasonable care to prevent and promptly correct any harassing, discriminatory, retaliatory or otherwise unlawful behavior, thereby satisfying any legal obligations Defendants had to Plaintiff, if any. EIGHTEENTH AFFIRMATIVE DEFENSE (Avoidable Consequences) Defendants allege that the Complaint and each cause of action set forth therein, or some of them, are barred, in whole or in part, by the doctrine of avoidable consequences. State Dept. of Health Serv. v. Super. Ct., 31 Cal. 4th 1026 (2003), including but not limited to because (a) Defendants exercised reasonable care to prevent and promptly correct any alleged discriminatory, harassing, and/or retaliatory behavior, (b) Defendants maintained open door policies with complaint procedures and (c) Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by Defendants or to otherwise avoid harm. NINETEENTH AFFIRMATIVE DEFENSE (Substantial Compliance) As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s claims are barred, in whole or in part, because Defendants substantially complied with all applicable laws, statutes, and regulations. TWENTIETH AFFIRMATIVE DEFENSE (Not a Qualified Individual) As a separate and distinct affirmative defense, Defendants are informed and believe that a reasonable opportunity for investigation and discovery will reveal, and on that basis allege, that Plaintiff’s claims for disability discrimination, failure to prevent discrimination, failure to accommodate, failure to engage in the interactive process, harassment, retaliation, wrongful Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 28 of 38 4836-0712-3451.1 / 069962-1013 7 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 termination, and related claims, are barred, in whole or in part, to the extent he was not a qualified person with a disability as defined by relevant law, nor was he regarded as a qualified person with a disability. TWENTY -FIRST AFFIRMATIVE DEFENSE (Failure to Request Reasonable Accommodation) As a separate and distinct affirmative defense, Defendants are informed and believe that a reasonable opportunity for investigation and discovery will reveal, and on that basis allege, that Plaintiff’s claims for disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, harassment, retaliation, wrongful termination, and related claims, are barred, in whole or in part, because, to the extent that the Court may find that Plaintiff does have a disability that limits a major life activity and that Defendants had an obligation to reasonably accommodate such a disability, Plaintiff failed to request a reasonable accommodation for his alleged physical disability. TWENTY-SECOND AFFIRMATIVE DEFENSE (No Reasonable Accommodation Existed) As a separate and distinct affirmative defense, Defendants allege that the Complaint and each cause of action set forth therein is barred because, to the extent that the Court may find that Plaintiff does have a disability that limits a major life activity and that Defendants had an obligation to reasonably accommodate such a disability, no reasonable accommodation existed which would have permitted Plaintiff to perform the essential functions of his position. TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure to Engage in Interactive Process) As a separate and distinct affirmative defense, Defendants allege that the Complaint, and each cause of action set forth therein, or some of them, are barred because to the extent that the Court may find that Plaintiff did have a disability that limited a major life activity and that Defendants had an obligation to reasonably accommodate such a disability, Plaintiff failed to engage in the interactive process reasonably and in good faith. / / / Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 29 of 38 4836-0712-3451.1 / 069962-1013 8 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 TWENTY -FOURTH AFFIRMATIVE DEFENSE (Inability to Perform Essential Functions of Job) As a separate and distinct affirmative defense, Defendants are informed and believe that further investigation and discovery will reveal, and on that basis alleges, that each cause of action set forth therein, is barred because Plaintiff could not perform the essential functions of his job, with or without reasonable accommodation. TWENTY -FIFTH AFFIRMATIVE DEFENSE (Reasonable Accommodations Provided) As a separate and distinct affirmative defense, Defendants are informed and believe that a reasonable opportunity for investigation and discovery will reveal, and on that basis allege, that Plaintiff was provided reasonable accommodations for Plaintiff to perform the essential functions of his job. TWENTY -SIXTH AFFIRMATIVE DEFENSE (Undue Hardship) As a separate and distinct affirmative defense, Defendants allege that the Complaint and each cause of action set forth therein, or some of them, are barred in whole or in part because an accommodation of Plaintiff’s alleged disability would have imposed an undue hardship on Defendants. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Offset) As a separate and distinct affirmative defense, Defendants allege that if Plaintiff is judged to be entitled to any recovery, any award to Plaintiff must be offset by all sums received by Plaintiff from any source, including but not limited to, disability payments, unemployment insurance, private insurance, state disability insurance, Social Security disability payments, workers’ compensation payments, and/or other monies and/or benefits Plaintiff has received or will receive. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) As a separate and distinct affirmative defense, Defendants allege that Plaintiff is barred from obtaining any recovery by reason of his failure to mitigate his alleged damages, if any, or, Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 30 of 38 4836-0712-3451.1 / 069962-1013 9 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 alternatively, any damages or other relief awarded to Plaintiff must be reduced or limited to the extent of such failure to mitigate. TWENTY-NINTH AFFIRMATIVE DEFENSE (Workers Compensation Preemption) As a separate and distinct affirmative defense, Defendants allege that Plaintiff’s fourth cause of action for negligence is preempted by the California Workers Compensation Act. THIRTIETH AFFIRMATIVE DEFENSE (Speculative Damages) As a separate and distinct affirmative defense, Plaintiff’s claims for damages are precluded to the extent that such damages are speculative. THIRTY -FIRST AFFIRMATIVE DEFENSE (Punitive Damages Barred) As a separate and distinct affirmative defense, Defendants allege that Defendants’ good faith efforts to prevent discrimination, retaliation, and any other unlawful acts bars any award for punitive damages or exemplary damages as set forth in Kolstad v. Am. Dental Assn., 527 U.S. 526 (1999). THIRTY -SECOND AFFIRMATIVE DEFENSE (Failure to State Facts Sufficient to Constitute Punitive Damages) As a separate and distinct affirmative defense, Defendants allege that (1) Plaintiff fails to state facts sufficient to state a claim for punitive and/or exemplary damages under California Civil Code section 3294; and (2) Defendants committed no acts justifying an award of punitive and/or exemplary damages. THIRTY-THIRD AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) As a separate and distinct affirmative defense, Defendants allege that Plaintiff is not entitled to recover punitive damages because the imposition of such damages violates the United States and California Constitutions, in that: (1) such damages are so punitive in purpose and effect as to constitute a criminal penalty, entitling Defendants to rights to be given to a defendant in criminal Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 31 of 38 4836-0712-3451.1 / 069962-1013 10 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 proceedings under the United States and California Constitutions; (2) such damages constitute an impermissible restriction on speech and a violation of the First Amendment of the United States Constitution; (3) the imposition of such damages would violate Defendant’s rights to due process and/or equal protection under the law, under the United States and California Constitutions; and/or (4) the California punitive damages statute is unconstitutional in that it imposes an undue burden on interstate commerce. THIRTY -FOURTH AFFIRMATIVE DEFENSE (No Knowledge Justifying Punitive Damages) As a separate and distinct defense, Defendants allege that without admitting to any of the acts, conduct or statements attributed to it by Plaintiff’s Complaint, Plaintiff’s claims for punitive damages are barred because the acts, conduct or statements contained in Plaintiff’s Complaint were not taken with the advance knowledge, conscious disregard, authorization, ratification or act of oppression, fraud or malice on the part of an officer, director or managing agent of Defendants. THIRTY -FIFTH AFFIRMATIVE DEFENSE (No Entitlement to Prejudgment Interest) As a separate and distinct affirmative defense, Defendants allege that the Complaint fails to state a claim upon which prejudgment interest may be granted because the damages claimed are not sufficiently certain to allow an award of prejudgment interest. THIRTY -SIXTH AFFIRMATIVE DEFENSE (Failure to State a Claim for Attorneys’ Fees and Costs) As a separate and distinct defense, Plaintiff’s Complaint fails to state a claim sufficient to constitute a claim for which attorneys’ fees and costs may be awarded. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (No Protected Activity) As a separate and distinct defense, Defendants allege that Plaintiff’s harassment and failure to prevent retaliation claims are barred because Plaintiff never engaged in protected activity. Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 32 of 38 4836-0712-3451.1 / 069962-1013 11 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 THIRTY-EIGHTH AFFIRMATIVE DEFENSE (No Violation of Public Policy) As a separate and distinct defense, Defendants allege that Plaintiff’s Complaint and each cause of action set forth therein, or some of them, are barred because Defendants’ conduct did not contravene any established public policy or exceed the inherent risks of employment. THIRTY-NINTH AFFIRMATIVE DEFENSE (Alleged Emotional Distress Caused by Outside Factors) As a separate and distinct defense, Defendants allege that if Plaintiff has suffered any emotional distress as alleged in his Complaint, such emotional distress was proximately caused by factors other than Plaintiff’s employment, the actions of Defendants, and/or anyone acting on Defendants’ behalf. FORTIETH AFFIRMATIVE DEFENSE (Not Eligible for CFRA) As a separate and distinct defense, Defendants allege that Plaintiff’s claim for unlawful denial of leave in violation of the CFRA fails, in whole or in part, because Plaintiff was not eligible for leave under the CFRA. ADDITIONAL DEFENSES Defendants respectively reserve the right to amend this Answer should they later discover facts demonstrating the existence of new and/or additional affirmative defenses. PRAYER FOR RELIEF WHEREFORE, Defendants request that the Court: 1. Enter judgment in Defendants’ favor on Plaintiff’s Complaint; 2. Dismiss Plaintiff’s Complaint with prejudice and award Plaintiff nothing by way of his Complaint; 3. Award Defendants all recoverable costs associated with the defense of this action; 4. Award Defendants their reasonable attorneys’ fees associated with the defense of this action; and / / / Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 33 of 38 4836-0712-3451.1 / 069962-1013 12 ANSWER 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 LITTLER MENDELSON, P.C. 5 0 1 W . B r o a d w a y , S u i t e 9 0 0 S a n D i e g o , C A 9 2 1 0 1 . 3 5 7 7 6 1 9 . 2 3 2 . 0 4 4 1 5. Award Defendants such other relief as the Court deems just and proper under the circumstances. Dated: September 20, 2021 LITTLER MENDELSON, P.C. Jody A. Landry Heidi Hegewald Attorneys for Defendants DELUXE CORPORATION (erroneously named DELUXE CORPORATION, INC.) AND DELUXE SMALL BUSINESS SALES, INC. Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 34 of 38 POS-040 Page 1 of 4 Form Approved for Optional Use Judicial Council of California POS-040 [Rev. July 1, 2011] PROOF OF SERVICE-CIVIL (Proof of Service) Code of Civil Procedure., §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 2.260, 2.306 www.courts.ca.gov American LegalNet, Inc. www.FormsWorkFlow.com ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY Jody A. Landry, SBN 125743; Heidi E. Hegewald, SBN 326834 LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101-3577 TELEPHONE NO.: (619) 232-0441 FAX NO. (Optional): (619) 232-4302 E-MAIL ADDRESS (Optional): jlandry@littler.com; hhegewald@littler.com ATTORNEY FOR (Name): Defs. Deluxe Corporation, Inc., et al. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO STREET ADDRESS: 400 McAllister Street MAILING ADDRESS: 400 McAllister Street CITY AND ZIP CODE: San Francisco, CA 94102 BRANCH NAME: PLAINTIFF/PETITIONER: Pavel Safaniev DEFENDANT/RESPONDENT: Deluxe Corporation, Inc., et al. CASE NUMBER: CGC-21-591151 PROOF OF SERVICE-CIVIL Check method of service (only one): By Personal Service By Mail By Overnight Delivery By Messenger Service By Fax By Electronic Service JUDGE: DEPT.: 610 (Do not use this proof of service to show service of a Summons and complaint.) 1. At the time of service I was over 18 years of age and not a party to this action. 2. My residence or business address is: 501 W. Broadway, Suite 900, San Diego, CA 92101-3577. 3. The fax number or electronic service address from which I served the documents is (complete if service was by fax or electronic service): mruvalcaba@littler.com 4. On (date): September 20, 2021 I served the following documents (specify): SEE ATTACHED POS-040(D) The documents are listed in the Attachment to Proof of Service-Civil (Documents Served) (form POS-040(D)). 5. I served the documents on the person or persons below, as follows: a. Name of person served: Ilya Filmus, Esq. b. (Complete if service was by personal service, mail, overnight delivery, or messenger service.) Business or residential address where person was served: Infinity Law Group LLP, 3450 Geary Blvd., Ste. 210, San Francisco, CA 94118 c. (Complete if service was by fax or electronic service.) (1) Fax number or electronic service address where person was served: Ilya Filmus - ifilmus@infinitylawca.com (2) Time of service: The names, addresses, and other applicable information about persons served is on the Attachment to Proof of Service-Civil (Persons Served) (form POS-040(P)). 6. The documents were served by the following means (specify): MAIL a. By personal service. I personally delivered the documents to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and six in the evening. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/20/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 35 of 38 POS-040 Page 2 of 4 POS-040 [Rev. July 1, 2011] PROOF OF SERVICE-CIVIL (Proof of Service) American LegalNet, Inc. www.FormsWorkFlow.com CASE NAME Pavel Safaniev v. Deluxe Corporation, et al. CASE NUMBER: CGC-21-591151 6. b. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 5 and (specify one): (1) deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (2) 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 is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at (city and state): San Diego, CA c. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 5. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. d. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.) e. By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. f. By electronic service. Based on a court order or an agreement of the parties to accept electronic service, I caused the documents to be sent to the persons at the electronic service addresses listed in item 5. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: September 20, 2021 Orin Turner  (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) (If item 6d above is checked, the declaration below must be completed or a separate declaration from a messenger must be attached.) DECLARATION OF MESSENGER By personal service. I personally delivered the envelope or package received from the declarant above to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package, which was clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and six in the evening. At the time of service, I was over 18 years of age. I am not a party to the above-referenced legal proceeding. I served the envelope or package, as stated above, on (date): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date:  (NAME OF DECLARANT) (SIGNATURE OF DECLARANT) Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 36 of 38 American LegalNet, Inc. www.FormsWorkFlow.com POS-040(D) SHORT TITLE: Pavel Safaniev v. Deluxe Corporation, et al. CASE NUMBER: CGC-21-591151 ATTACHMENT TO PROOF OF SERVICE- CIVIL (DOCUMENTS SERVED) (This Attachment is for use with form POS-040) The documents that were served are as follows (describe each document specifically): ANSWER TO COMPLAINT Form Approved for Optional Use Judicial Council of California POS-040(D) [New January 1, 2005] ATTACHMENT TO PROOF OF SERVICE-CIVIL (DOCUMENTS SERVED (Proof of Service) Page 3 of 4 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 37 of 38 American LegalNet, Inc. www.FormsWorkFlow.com POS-040(P) SHORT TITLE: Pavel Safaniev v. Deluxe Corporation, et al. CASE NUMBER: CGC-21-591151 ATTACHMENT TO PROOF OF SERVICE-CIVIL (PERSONS SERVED) (This attachment is for use with form POS-040.) NAMES, ADDRESSES, AND OTHER APPLICABLE INFORMATION ABOUT PERSONS SERVED: Name of Person Served (If the person served is an attorney, the party or parties represented should also be stated.) Where Served (Provide business or residential address where service was made by personal service, mail, overnight delivery, or messenger service. For other means of service, provide fax number or electronic service address, as applicable.) Time of Service (Complete for service by fax transmission or electronic service.) Ilya Filmus, Esq. Attorney for Plaintiff Pavel Safaniev Ilya Filmus, Esq. Infinity Law Group LLP 3450 Geary Blvd., Ste. 210 San Francisco, CA 94118 Tel: (415) 426-3580 Fax: (415) 426-3581 Time: Time: Time: Time: Time: Time: Time: Time: Time: Time: Form Approved for Optional Use Judicial Council of California POS-040(P) [Rev. July 1, 2011] ATTACHMENT TO PROOF OF SERVICE-CIVIL (PERSONS SERVED) (Proof of Service) Page 4 of 4 www.courts.ca.gov 4845-7932-3130.1 / 069962-1005 Case 3:21-cv-07333-LB Document 1-1 Filed 09/21/21 Page 38 of 38