SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO

Transcription

1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP PAUL S. COWIE, Cal. Bar No. 01 MICHAEL H. GIACINTI, Cal. Bar No. Lytton Avenue Palo Alto, California 01-1 Telephone: Facsimile: fltftt ID0RS MAY 1 01 Dfput} Clert SHEPPARD, MULLIN, RICHTER & HAMPTON LLP CASSIDY M. ENGLISH, Cal. Bar No. cenglish@sheppardmullin.com South Hope Street, rd Floor Los Angeles, California Telephone:.0.10 Facsimile:.0. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP MICHAEL T. CAMPBELL, Cal. Bar No. mcampbell@sheppardmullin.com 1 Avenue of the Stars, Suite 100 Los Angeles, California 00-0 Telephone:..00 Facsimile:..01 m 1 01 Attorneys for Defendant DICK'S SPORTING GOODS, INC. RECEIVl _ DEPT SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO JIMMY GREER, individually, and on behalf of others similarly situated, Plaintiff, Case No DEFENDANT'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT DICK'S SPORTING GOODS, INC., a Delaware corporation; and DOES 1 through 0, inclusive, Defendants. Defendant Dick's Sporting Goods, Inc. hereby answers Plaintiff Jimmy Greer's unverified complaint as follows: SMRH:0. DEFENDANT'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT

2 GENERAL DENIAL Pursuant to the provisions of Section 1.0 of the Code of Civil Procedure, Defendant generally denies all the allegations of Plaintiff s unverified Complaint, and further denies that Plaintiff has been damaged in any amount, or at all. Defendant also specifically denies that it is liable to Plaintiff, or any member of the purported class asserted, for the sum or sums alleged or for any other amount whatsoever. ADDITIONAL DEFENSES In further answer to Plaintiff s Complaint, Defendant alleges the following additional defenses. In asserting these defenses, Defendant does not assume the burden of proof as to matters that, pursuant to law, are Plaintiff s burden to prove. 1 1 FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 1. The Complaint fails to allege facts sufficient to constitute a cause of action SECOND AFFIRMATIVE DEFENSE (Statute of Limitations). The Complaint, and each purported cause of action alleged therein, is barred by applicable statutes of limitations, including but not limited to Code of Civil Procedure Sections,,, 0, and ; and Business and Professions Code Section 10. THIRD AFFIRMATIVE DEFENSE (Failure to Exhaust Administrative Remedies). The Complaint, and each purported cause of action alleged therein, is barred because Plaintiff and the alleged class members failed to pursue administrative remedies with the California Division of Labor Standards Enforcement and/or the Labor and Workforce Development Agency. Plaintiff and the alleged class members should be ordered to pursue their SMRH:0. -1-

3 administrative remedies with the California Division of Labor Standards Enforcement, which has primary jurisdiction over their claims. FOURTH AFFIRMATIVE DEFENSE (Non-Certifiable Class). Defendant is informed and believes, and based upon such information and belief alleges, that the Complaint does not state facts sufficient to certify a class pursuant to Code of Civil Procedure Section, and that this action is not properly brought as a class action. 1 FIFTH AFFIRMATIVE DEFENSE (Lack of Specificity). Plaintiff s claim of unfair business practices in violation of Business & Professions Code Sections 100, et seq., is barred because it fails to plead specific facts capable of stating a claim for unfair business practices SIXTH AFFIRMATIVE DEFENSE (Lack of Standing). Defendant is informed and believes, and based upon such information and belief alleges, that Plaintiff lacks standing to assert the Complaint or any purported cause of action alleged therein. 1 SEVENTH AFFIRMATIVE DEFENSE (Primary Jurisdiction Doctrine). The Complaint, and each purported cause of action alleged therein, should be abated in the Court's discretion, and Plaintiff must pursue his administrative remedies with the Division of Labor Standards Enforcement and/or the Labor and Workforce Development Agency, which have primary jurisdiction over Plaintiff s claims. SMRH:0. --

4 EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands). Defendant is informed and believes, and based upon such information and belief alleges, that Plaintiff s Complaint, and each cause of action therein, is barred by the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Laches). Defendant is informed and believes, and based upon such information and belief alleges, that the Complaint, and each and every claim therein, is barred by the doctrine of laches, in that Plaintiff unreasonably delayed in bringing the action TENTH AFFIRMATIVE DEFENSE (Estoppel). Defendant is informed and believes, and based upon such information and belief alleges, that Plaintiff s claims are barred for the reason that, by his actions, Plaintiff is estopped from bringing any cause of action ELEVENTH AFFIRMATIVE DEFENSE (Waiver). Defendant is informed and believes, and based upon such information and belief alleges, that by his conduct, Plaintiff has waived some or all of the causes of action asserted in the Complaint. TWELFTH AFFIRMATIVE DEFENSE (No Loss/Unjust Enrichment). Plaintiff has not suffered any loss and Defendant has not been unjustly enriched as a result of any action or inaction of Defendant or its agents. Hence, Plaintiff is not entitled to any SMRH:0. --

5 restitution. THIRTEENTH AFFIRMATIVE DEFENSE (No Willful Failure to Pay). Assuming, arguendo, that Defendant failed to pay Plaintiff or the proposed class members all wages, Defendant cannot be held liable under Labor Code Section 0 because Defendant maintains a good faith defense in fact or law. 1 FOURTEENTH AFFIRMATIVE DEFENSE (Good Faith Dispute) 1. The Complaint, and each purported cause of action alleged therein, including, but not limited to, Plaintiff and the alleged class members claims under Labor Code Section 0, are barred in whole or in part because any alleged failure to pay wages was based on a good faith dispute regarding the applicable law or facts FIFTEENTH AFFIRMATIVE DEFENSE (Adequacy of Remedy at Law) 1. Plaintiff s claims for equitable relief fail because Plaintiff may pursue adequate legal remedies. 0 1 SIXTEENTH AFFIRMATIVE DEFENSE (Consent) 1. Defendant is informed and believes, and based upon such information and belief alleges, that Plaintiff s claims against Defendant are barred, in whole or in part, because any alleged actions made by Defendant were consented to by Plaintiff. SMRH:0. --

6 SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Comply With Employer Instructions) 1. Plaintiff s claims are barred, in whole or in part, to the extent Plaintiff failed to comply with all the directions of his employer concerning the services for which he was engaged. (Lab. Code ). EIGHTEENTH AFFIRMATIVE DEFENSE (No Suffering or Permitting Work) 1. Plaintiff s claims for unpaid wages are barred to the extent that he performed work without notifying Defendant and Defendant was not otherwise aware the work was being done. 1 1 NINETEENTH AFFIRMATIVE DEFENSE (Excessive Penalties Unconstitutional) 1. The penalties claimed by Plaintiff in this case are excessive and thus violate Defendant s rights under the state and federal Constitutions TWENTIETH AFFIRMATIVE DEFENSE (De Minimis Activities) 0. Any time that Plaintiff or the putative class members worked for which they were not compensated, if any, was de minimis and therefore not compensable. 1 TWENTY-FIRST AFFIRMATIVE DEFENSE (Representative Action) 1. The Complaint does not state facts sufficient to permit Plaintiff to proceed on behalf of others in a representative capacity under the Business and Professions Code sections 100, et seq., or other means. SMRH:0. --

7 TWENTY-SECOND AFFIRMATIVE DEFENSE (No Predicate Violation of Law). Defendant alleges that certification of a class, and the prosecution of a representative action on behalf of the general public under California Business and Professions Code section 100 et seq., as applied to the facts and circumstances of this case, would constitute a denial of Defendant s due process rights, both substantive and procedural, in violation of the Fourteenth Amendment to the United States Constitution. Defendant reserves the right to amend its answer upon further investigation and discovery of facts supporting this defense TWENTY-THIRD AFFIRMATIVE DEFENSE (Violation of Due Process). Defendant alleges that Plaintiff and the putative class cannot establish a predicate violation of law by Defendant sufficient to maintain a cause of action pursuant to Business and Professions Code Sections 100 et seq. Further, Plaintiff s claims for Violation of Business and Professions Code Sections 100 et seq. are barred to the extent they are based upon the purported violation of a statute or regulation that is of purely regulatory import, or otherwise does not define unlawful conduct TWENTY-FOURTH AFFIRMATIVE DEFENSE (Unconstitutional Wage Order). Defendant alleges that the Complaint and each cause of action therein, or some of them, are barred because the applicable wage orders of the Industrial Welfare Commission are unconstitutionally vague and ambiguous and violate Defendant s rights under the United States Constitution and the California Constitution as to, among other things, due process of law. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Res Judicata and Collateral Estoppel). Defendant is informed and believes, and based upon such information and belief SMRH:0. --

8 alleges, that Plaintiff and/or putative class members claims, and each of them, are barred by the doctrines of collateral estoppel and/or res judicata. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Setoff, Offset, Recoupment). Some or all of the purported causes of action in the Complaint are subject to setoff, offset, or recoupment. 1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Settlement/Release). Defendant is informed and believes, and based upon such information and belief alleges, that some or all of the purported causes of action in the Complaint are barred, in whole or in part, to the extent that Plaintiff and/or any member of the proposed class have settled and/or released any or all alleged claims against Defendant RESERVATION OF RIGHT TO AMEND ANSWER Defendant hereby gives notice that it intends to rely on such other and further defenses as may become available during discovery in this action and reserves the right to amend the Answer to assert any such defenses. 0 1 // // // // SMRH:0. --

9 PRAYER WHEREFORE, Defendant prays as follows: 1. That Plaintiff take nothing by his Complaint;. That judgment be entered in favor of Defendant and against Plaintiff on all causes of action;. That Defendant recover costs of suit herein;. That Defendant recover reasonable attorneys' fees incurred herein, pursuant to all applicable law including, but not limited to, Labor Code section 1.; and. That the Court award such other and further relief as it deems just and proper. Dated: May,01 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By PAUL S. COWIE MICHAEL H. GIACINTI CASSIDY M. ENGLISH MICHAEL T. CAMPBELL Attorneys for Defendant DICK'S SPORTING GOODS. INC. SMRH: DEFENDANT'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT

10 PROOF OF SERVICE STATE OF CALIFORNIA. COUNTY OF LOS ANGELES At the time of service, I was over 1 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 1 Avenue of the Stars, Suite 100, Los Angeles, CA On May, 01,1 served true copies of the following document(s) described as DEFENDANT'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT on the interested parties in this action as follows: Robert J. Drexler, Jr. Stan Karas Katherine Kehr Jonathan Lee Capstone Law APC 10 Century Park East, Suite 0 Los Aneeles. CA 00 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the firm's practice for collecting and processing correspondence for mailing. On the same day that the 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. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct SMRH:0. DEFENDANT'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT