AnswerCal. Super. - 3rd Dist.November 25, 2019B Y 3 5 G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 Ww W b d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARK S. POSARD (SBN: 208790) Fm pee BRIAN P. MASCHLER (SBN: 111824) Sune. ) JUDITH A. CREGAN (SBN: 208779) see ume ct Of, California GORDON REES SCULLY MANSUKHANI, LLP . sanGer 3 Park Center Drive, Suite 200 JAN 21 2020 Sacramento, CA 95825 cee Telephone: (916) 830-6566 ___ Yake Chaiters Facsimile: (916) 920-4402 Executive Officer & Clerk @ mposard@grsm.com * 5. Kouvdos, Deputy ¢ bmaschler@grsm.com jcregan@grsm.com Attorneys for Defendant CIK POWER DISTRIBUTORS, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF PLACER JERAMIE GILES. an individual, on behalf ) CASE Noseyfbos4085 of himself and others similarly situated, ) ) ANSWER TO COMPLAINT Plaintiff, ) vs. Complaint filed: November 25, 2019 CIK POWER DISTRIBUTORS, LLC; and ) DOES | to 50, inclusive, Defendants. Defendant, C.IL.K. POWER DISTRIBUTORS, LLC (“CIK” or “Defendant”), hereby pleads its Answer to the unverified Complaint filed by Plaintiff, JERAMIE GILES (“Plaintiff”), as follows: GENERAL DENIAL Pursuant to California Code of Civil Procedure Section 431.30(d), Defendant generally and specifically denies each and every allegation contained in the unverified Complaint and each and every alleged cause of action therein, and further denies that Plaintiff is entitled to any of the relief requested, that Defendant or any of its officers, agents or employees committed any wrongful conduct or omission, whether alleged or otherwise, and that conduct or omissions of Defendant caused any injury or damage to Plaintiff in the sum or manner alleged, or in any other sum or manner, or at all. -|- Answer to Complaint B Y F A X G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Defendant further alleges the following separate and affirmative defenses to each and every cause of action alleged in the Complaint. By alleging the defenses set forth below, Defendant does not thereby agree or admit that it has the burden of proof, persuasion, or production with respect to any elements of any defense, or that Plaintiffs have properly asserted any cause of action against Defendant. L (FAILURE TO STATE A CLAIM) As a first, separate and distinct affirmative defense, Defendant alleges that the Complaint fails to allege facts sufficient to constitute a claim for relief against Defendant. I. (LACK OF STANDING) As a second, separate and distinct affirmative defense, Defendant alleges that Plaintiff lacks standing and/or capacity to assert or pursue the claims alleged in the Complaint, or to obtain the relief sought. HL. (FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES) As a third, separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause or action contained therein are barred to the extent Plaintiff failed to exhaust appropriate administrative remedies and procedures, including, without limitation, the California Labor Code, Defendant’s own internal policies and procedures. IV. (PRIVILEGED ACTIONS) As a fourth, separate and distinct affirmative defense, Defendant alleges that the conduct set forth in the Complaint, if and to the extent it occurred, was privileged and done with a good faith belief it was correct and no action may be taken against Defendant on account of such conduct, if any. HI an Answer to Complaint B Y F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 1 14 15 16 17 18 19 20 21 22 Z3 24 25 26 Ze 28 V. (STATUTE OF LIMITATIONS) As a fifth, separate and distinct affirmative defense, Defendant alleges that each claim alleged in the Complaint is barred by all applicable California statutes of limitations, including, but not limited to the statute of limitations contained in Code of Civil Procedure sections, 337, 338, 339, and 343, and the applicable sections of the California Labor Code, and Business and Professions Cost sections 17200, and 17208. VI. (JUSTIFIED CONDUCT) As an sixth, separate and distinct affirmative defense, Defendant is informed and believes and thereon alleges that at all times material to the events alleged in the Complaint, Defendant’s conduct was justified. VIL. (NO INTENTIONAL KNOWING OR WILLFUL VIOLATION) As a seventh, separate and distinct affirmative defense, Defendant alleges that any alleged violation of the California wage laws, including the California Labor Code and Industrial Wage Orders, which Defendant denies occurred, was not intentional, knowing or willful and would have resulted from excusable error notwithstanding the maintenance of procedures reasonably adopted to avoid such error. Therefore, no liability or penalty is properly assessed against Defendant. VII. (AVOIDABLE CONSEQUENCES) As an eighth, separate and distinct affirmative defense, Defendant alleges that Plaintiff unreasonably failed to make use of employer-provided remedies, policies and procedures designed to prevent and eliminate the harm alleged by Plaintiff and it is more likely than not that at least some of Plaintiffs damages would have been avoided by the reasonable use of these internal procedures. HII -3- Answer to Complaint B Y F A X G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IX. (LACK OF CAUSATION) As a ninth, separate and distinct affirmative defense, Defendant alleges that Plaintiff's damages, if any, were not a result of or caused by any acts or omissions of Defendant or its agents or employees, and therefore, Plaintiff is barred from asserting any cause of action against Defendant. X. (DEFENDANT ACTED IN GOOD FAITH) As a tenth, separate and distinct affirmative defense, Defendant alleges that Defendant’s compensation of Plaintiff has been pursuant to a good faith belief that its pay practices are in conformity with both federal and state wage laws. Defendant also alleges that activities undertaken with respect to Plaintiff, if any, were privileged or otherwise justified, as such activities were proper, fair and legitimate business activities and/or due to business related reasons which were neither arbitrary, capricious nor unlawful. XI. (ILL-DEFINED CLASS) As an eleventh, separate and affirmative defense, Defendant alleges that the putative class alleged in the Complaint is inadequately defined and not administratively ascertainable. XI. (PLAINTIFF NOT SIMILARLY SITUATED WITH PUTATIVE MEMBERS OF ALLEGED CLASSES) As a twelfth, separate and distinct affirmative defense, Defendant alleges that Plaintiff is not similarly situated with members of the putative class he purports to represent. Therefore, this action is not properly certified or maintained as a class action. /I/ HII /I/ /I/ -4- Answer to Complaint BY FA X Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 13 14 15 16 17 18 19 20, 21 22 23 24 25 26 27 28 XII. (NOT SUITABLE CLASS REPRESENTATIVE) As a thirteenth, separate and affirmative defense, Dependent alleges that Plaintiff is not a suitable class representative of the alleged class he purports to represent. Therefore, Plaintiff cannot satisfy the prerequisites to a class action. XIV. (NO TYPICALITY) As a fourteenth, separate and distinct affirmative defense, Defendant alleges that the claims of the named Plaintiff are not typical of the claims of the members of the putative class alleged in the Complaint. Therefore, this action is not properly certified or maintained as a class action. XV. (NO NUMEROSITY) As a fifteenth, separate and distinct affirmative defense, Defendant alleges that the putative class alleged in the Complaint is not so numerous that joinder of all members is impracticable; therefore, Plaintiffs cannot meet the prerequisites to a class action set forth in section 382 of the California Code of Civil Procedure. XVI. (NO COMMONALITY) As a sixteenth, separate and distinct affirmative defense, Defendant alleges that there are not questions of law or fact common to the putative class alleged in the Complaint; therefore, Plaintiff cannot meet this prerequisite to maintaining a class action. XVII. (PREDOMINANCE OF INDIVIDUALIZED QUESTIONS) As a seventeenth, separate and distinct affirmative defense, Defendant alleges that individualized questions of fact and law predominate over any purported common questions in this action. Therefore, Plaintiff cannot meet the prerequisites to a class action. /// -5- Answer to Complaint BY F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 il 12 13 14 15 16 17 18 19 20 21 a9 23 24 25 26 27 28 XVIII. (INDIVIDUALIZED ASSESSMENT) As an eighteenth, separate and distinct affirmative defense, Defendant alleges that Plaintiff is barred from obtaining relief pursuant to his cause of action for violation of California Business and Professions Code section 17200, et seg. because California law does not permit representative actions where liability can only be determined through fact-intensive individualized assessments of alleged wage and hour violations. XIX. (CONFLICT OF INTEREST BETWEEN PLAINTIFF AND PUTATIVE CLASS) As a nineteenth, separate and affirmative defense, Defendant alleges that Plaintiff is not a proper class representative in that his interests are in conflict with other putative members of the alleged class. XX. (DIFFICULTIES OF PROPOSED CLASS ACTION) As a twentieth, separate and distinct affirmative defense, Defendant alleges that this case is not properly maintained as a class action because of the difficulties likely to be encountered in the management of a class action. XXI. (NO QUESTION OF COMMON OR GENERAL INTEREST) As a twenty-first, separate and distinct affirmative defense, Defendant alleges that the Complaint does not raise any question of common or general interest suitable for class treatment under California Code of Civil Procedure § 382. XXII. (CLASS ACTION NOT SUPERIOR) As a twenty-second, separate and affirmative defense, Defendant alleges that the class action procedure is not a superior method for handling or resolving this purported controversy. Therefore, no class may properly be certified or maintained in this case. HII -6- Answer to Complaint BY F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 i 28 XXIII. (RELIANCE ON PLAINTIFF’S REPORTS) As a twenty-third, separate and distinct affirmative defense, Defendant alleges that Plaintiff did not accurately report the hours for which he seeks alleged unpaid wages, overtime, meal periods, and/or rest breaks, and/or penalties; therefore, Plaintiff is barred from seeking to recover any such amounts from Defendant. XXIV. (PROVISION OF MEAL PERIODS AND/OR REST BREAKS) As a twenty-fourth, separate and distinct affirmative defense, Defendant alleges it made Plaintiff aware of his rights to and encouraged Plaintiff to take meal periods and/or rest breaks, and did not require Plaintiff to work during meal periods and/or rest breaks, and accordingly, is not liable if Plaintiff failed to take such meal periods and/or rest breaks. XXV. (GOOD FAITH DISPUTE) As a twenty-fifth, separate and distinct affirmative defense, Defendant alleges there exists a good faith dispute as to whether any further compensation is actually due to Plaintiff and, if so, the amount thereof. Therefore, penalties are not warranted. XXVI. (PAYMENT IN FULL) As a twenty-sixth, separate and distinct affirmative defense, Defendant alleges Plaintiff has been paid in full all monies and other consideration due, or claimed to be due. XXVIL. (REASONABLE WAGES/QUANTUM MERUIT) As a twenty-seventh, separate and distinct affirmative defense, Defendant alleges that the actual wages paid to Plaintiff were reasonable, appropriate, and commensurate with the services and work actually performed. HII HII Ph Answer to Complaint BY F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 ra 28 XXVIII. (FAILURE TO MAKE DEMAND FOR WAGES DUE) As a twenty-eighth, separate and distinct affirmative defense, Defendant alleges that Plaintiff did not make a prompt and timely demand for wages due pursuant to California Labor Code section 216(a) and is therefore barred from recovering any alleged unpaid wages, penalties, or other remuneration from Defendant pursuant to such code section. XXIX. (COMPLIANCE WITH LAW / DE MINIMIS) As a twenty-ninth, separate and distinct affirmative defense, Defendant alleges that any recovery on Plaintiff's Complaint, or any cause of action contained therein, may be barred by Defendant’s compliance or substantial compliance with all applicable laws underlying Plaintiff's claims and the purported Labor Code violations, if any, were de minimis. XXX. (NO REPRESENTATIVE BASIS) As a thirtieth, separate and distinct affirmative defense, Defendant alleges that the civil penalties that Plaintiff seeks cannot be determined on a representative basis. XXXI. (UNJUST PENALTIES) As a thirty-first, separate and distinct affirmative defense, Defendant alleges that any penalties awarded against it would be unjust, arbitrary, oppressive or confiscatory. XXXII. (ALL DEFENSES ASSERTED AGAINST CLASS) As a thirty-second, separate and distinct affirmative defense, Defendant opposes class certification and disputes the propriety of class treatment. If the Court certifies a class in this case over Defendant’s objections, then Defendant asserts the affirmative defenses set forth herein against each and every member of the certified class. /// /II -8- Answer to Complaint BY F A X G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 3 P a r k Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XXXII. (PLAINTIFFS’ OWN CONDUCT) As a thirty-third, separate and distinct affirmative defense, Defendant alleges that any damages sustained by Plaintiff were either wholly or, in part, caused by Plaintiff's own actions, inactions, or delay in acting, and said conduct and omissions bar Plaintiff's claims alleged in this action. XXXIV. (BREACH OF STATUTORY OBLIGATIONS) As a thirty-fourth, separate and distinct affirmative defense, Plaintiff's Complaint and all purported causes of action alleged therein are barred by Plaintiff's breach of his statutory obligations as an employee under the California Labor Code. XXXV. (FAILURE TO MITIGATE) As a thirty-fifth, separate and distinct affirmative defense, Defendant alleges that Plaintiff failed to mitigate his damages, barring Plaintiff from recovery in this action. XXXVI. (UNCLEAN HANDS) As a thirty-sixth, separate and distinct affirmative defense, Defendant alleges that Plaintiff's claims and requests for relief are barred under the doctrine of unclean hands. XXXVII. (ESTOPPEL/WAIVER/LACHES) As a thirty-seventh, separate and distinct affirmative defense, Defendant allege that Plaintiff is estopped from asserting, and has waived any right to assert, any claims against Defendant under the doctrines of waiver, estoppel, and laches by virtue of his acts, failures to act, conduct, representations, admissions, and the like. /I/ /// //I -9- Answer to Complaint B Y F A X G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 3 P a r k Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 24 28 XXXVIIL (OFFSET) As a thirty-eighth, separate and distinct affirmative defense, Defendant is informed and believes and thereon allege that the Complaint is barred as against Defendant as the amounts claimed are overstated or are subject to offset. XXXIX. (ADDITIONAL DEFENSES) As a thirty-ninth, separate and distinct affirmative defense, Defendant reserves the right to allege other affirmative defenses as they may arise during the course of discovery. PRAYER FOR RELIEF WHEREFORE, Defendant prays for judgment as follows: 1. 2 as and 4. Dated: January 21, 2020 That this action be dismissed in its entirety, with prejudice. That judgment be entered in favor of Defendant and against Plaintiff. That Defendant be awarded its costs of suit and attorneys’ fees incurred herein; For such and other further relief as this Court may deem just and proper. GORDON REES SCULLY MANSUKHANI, LLP By: LaDy Le Lapp (jadith A. Cregan Mark S. Posard Brian P. Maschler Attorney for Defendant CIK POWER DISTRIBUTORS, LLC -10- Answer to Complaint B Y F A X G o r d o n Re es Sc ul ly M a n s u k h a n i , LL P 3 Pa rk Ce nt er Dr iv e, Su it e 20 0 S a c r a m e n t o , C A 95 82 5 10 11 12 13 14 15 16 17 18 19 20 21 29 23 24 25 26 27 28 Re: Jeramie Giles v. CIK Power Distributors, LLC, et al. PLACER County Superior Court Case No. PROOF OF SERVICE [am a citizen of the United States. My business address is 3 Parkcenter Drive, Suite 200, Sacramento, California 95825. I am employed in the City and County of Sacramento where this service occurs. I am over the age of 18 years and not a party to the within action. I am readily familiar with my employer’s normal business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. On the below date, following ordinary business practice, I served a true copy of the foregoing document(s) described as: ANSWER TO COMPLAINT [X]_ MAIL: I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at Sacramento, California to the offices of the addressee(s) listed below: [] PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand this date to the offices of the addressee(s). [ ] OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered to an overnight delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served. [ ] BY FACSIMILE: by transmitting by facsimile to the number(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date before 5:00 p.m. Darren M. Cohen KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Ste. 1200 Encino, CA 91436 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 21, 2020, at Sacramento, California. F. Sey nitt EILEEN SCHMITT -l1- Answer to Complaint BY F A X
