Consolidated Class Action Complaint ( Complaint ) filed by Plaintiffs JAMES E. ELIAS and GENERAL DENIAL

Transcription

1

2 0 0 Defendant SYNCRHONY BANK ( Defendant ) hereby answers the Third Amended Consolidated Class Action Complaint ( Complaint ) filed by Plaintiffs JAMES E. ELIAS and JAMES P. KOZIK ( Plaintiffs ) as follows: GENERAL DENIAL. Pursuant to California Code of Civil Procedure section.0(d), Defendant denies, generally and specifically, each and every allegation and each purported cause of action contained in Plaintiffs Complaint. Defendant further denies, generally and specifically, that Plaintiffs have been damaged in any amount, or at all, by reason of any act or omission of Defendant, its employees, agents, representatives, officers, directors, or any other person acting on Defendant s behalf. Defendant further denies, generally and specifically, that Plaintiffs have suffered any injury or are entitled to any legal or equitable relief within the jurisdiction of this Court. Defendant also denies that Plaintiffs are entitled to any recovery from Defendant for the cause of action alleged against it in the Complaint.. In further answer to the Complaint, and as separate and distinct affirmative defenses, Defendant alleges as follows: FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action Upon Which Relief Can Be Granted). The Complaint, and each purported cause of action alleged therein, fails to state causes of action upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations). The entire Complaint, and all causes of action therein, are barred by the applicable statutes of limitation, including, but not limited to, California Code of Civil Procedure sections,.,,, 0, and/or. Plaintiffs are not entitled to have these statutes tolled as they were put on notice of any recording via the periodic beep tones played by Synchrony.

3 0 0 THIRD AFFIRMATIVE DEFENSE (Lack of Standing). The Complaint, and all causes of action therein, are barred in whole or in part because Plaintiffs and/or other putative class members lack standing to assert the causes of action alleged, and/or have not been injured or suffered any damages as a result of Defendant s alleged actions. FOURTH AFFIRMATIVE DEFENSE (Consent). To the extent any calls were recorded, Plaintiffs and the members of the purported class consented to the recording or monitoring of their telephone calls with Defendant, by, among other things, their account agreements with Defendant, recording/monitoring notice at the outset of calls, and/or periodic beep tones. FIFTH AFFIRMATIVE DEFENSE (Reasonableness and Good Faith). Defendant acted reasonably and in good faith at all times material herein, based on all relevant facts and circumstances known by Defendant at the time they so acted. SIXTH AFFIRMATIVE DEFENSE (Applicable Statutes Ambiguous). The applicable statutes, including but not limited to those referenced in the Complaint, are ambiguous and unclear, and do not impart any notice on Defendant or others similarly situated that their conduct would constitute violation of the statutes and thus violate due process and other law. SEVENTH AFFIRMATIVE DEFENSE (Preemption). Plaintiffs, and the putative class members, causes of action are invalid under and preempted in whole or in part by the Commerce Clause of the United States Constitution and other federal laws including, without limitation, the Communications Act of, including the WEST\0. --

4 0 0 regulations promulgated thereunder, and the Omnibus Crime Control and Safe Streets Act of, and/or other law. EIGHTH AFFIRMATIVE DEFENSE (Improper Class Action) 0. To the extent Plaintiffs purport to certify a class, Plaintiffs allegations do not give rise to class status as there is no typicality, numerosity, commonality, ascertainability or adequate representation present in this action. The class action is also neither manageable nor superior to individual actions. NINTH AFFIRMATIVE DEFENSE (Proximate Cause). The damages alleged by Plaintiffs and/or the putative class members were not proximately caused by any act or omission on the part of Defendant. TENTH AFFIRMATIVE DEFENSE (Limitation on Recoverable Damages). Plaintiffs and/or the putative class members recovery of their alleged statutory damages are limited by the applicable statutory and other ceilings or limits on recoverable damages. Recovery of statutory damages on a per person or per call basis would violate due process and other protections contained in the United States Constitution, including, but not limited to, the Eighth Amendment, and also violate the Constitution of the State of California, since there are no or minimal actual damages. ELEVENTH AFFIRMATIVE DEFENSE (Justification). At all relevant times, the acts or omissions of Defendant was legally justified and therefore Defendant cannot be liable for those acts or omissions. TWELFTH AFFIRMATIVE DEFENSE (Due Process). The application of Penal Code sections,, and. to Defendant violates due process because Defendant has no reasonable way of determining whether the person it is WEST\0. --

5 0 0 calling is using a landline, cordless or cellular telephone, and/or California cannot regulate recording that takes place outside of its borders. uncertain. THIRTEENTH AFFIRMATIVE DEFENSE (Uncertainty). The Complaint and each cause of action therein is vague, ambiguous and FOURTEENTH AFFIRMATIVE DEFENSE (Attorney s Fees Improper). The Complaint fails to state a claim for attorney s fees or set forth facts sufficient to support such a claim. Further, California Penal Code sections,,., and. do not provide for attorney s fees. FIFTEENTH AFFIRMATIVE DEFENSE (Cause in Fact). Plaintiffs statutory causes of action are barred in whole or in part because no act by Defendant was the cause of any injury, damages or loss of money or property by Plaintiffs. SIXTEENTH AFFIRMATIVE DEFENSE (Performance of Duties). Defendant has performed any and all contractual, statutory, and other duties owed to Plaintiffs, and Plaintiffs are therefore estopped from asserting any cause of action against Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE (Estoppel). The Complaint is barred, in whole or in part, because Plaintiffs are estopped by their own actions and conduct from pursuing the causes of action in the Complaint. EIGHTEENTH AFFIRMATIVE DEFENSE (Unjust Enrichment) 0. An award to Plaintiffs or the purported class would constitute unjust enrichment. WEST\0. --

6 0 0 NINETEENTH AFFIRMATIVE DEFENSE (Service Observing). To the extent any calls were recorded, any recording of telephone calls was done for purposes of quality assurance (also known as service-observing) and therefore was excepted from the restrictions imposed by Penal Code sections,, and.. TWENTIETH AFFIRMATIVE DEFENSE (Superseding Causes). Plaintiffs Complaint is barred in whole or in part because any and all violations alleged in the Complaint were the result of superseding or intervening causes arising from the acts or omissions of parties that Defendant neither controlled nor had the legal right to control, and such alleged violations were not proximately or otherwise caused by any act, omission, or other conduct of Defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE (Inapplicability of California Penal Code Sections 0 et seq.). The provisions of California Penal Code sections 0, et seq., are not applicable to the recording or monitoring of any telephone calls where the recording or monitoring took place outside the State of California. TWENTY-SECOND AFFIRMATIVE DEFENSE (Waiver). The Complaint is barred by the doctrine of waiver, as a result of the acts, conduct, and omissions of Plaintiffs and/or other putative class members, or others that are attributable to Plaintiffs and/or other putative class members. TWENTY-THIRD AFFIRMATIVE DEFENSE (No Interception or Reception and Recording of Wireless Signals). California Penal Code section. only applies where the wireless signals (radio waves) are intercepted or received and recorded. Defendant did not intercept or receive and record any wireless signals and therefore did not violate Penal Code section.. WEST\0. --

7 0 0 TWENTY-FOURTH AFFIRMATIVE DEFENSE (Lack of Intent). Defendant did not know that any particular call came from a landline, cordless or cellular telephone or whether a particular individual was located in California when the call was made. Therefore, to the extent any such calls were recorded, Defendant did not intend to record communications made on cordless or cellular telephones from individuals located in California, and did not violate California Penal Code sections, or.. In addition, Defendant believed that callers were on notice of and consented to recording, and therefore had no intent to record any particular call without notice or consent. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Mistake of Fact). Any recording without notice or consent was the result of a mistake of fact. TWENTY-SIXTH AFFIRMATIVE DEFENSE (No Injury). Plaintiffs were not injured by any recording of telephone calls because they expected that such recording may occur. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (No Use of Covered Devices). The calls at issue in this action were not made using a cellular radio telephone, a cordless telephone, or a landline telephone, and therefore are not covered by Penal Code section.. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (No Unconsented to Communications) 0. By answering the calls at issue in this action, Plaintiffs and the putative class consented to engage in the communications that occurred and, therefore, Penal Code section. does not apply. WEST\0. --

8 0 0 TWENTY-NINTH AFFIRMATIVE DEFENSE (Set Off). Any damages owed to the putative class members must be set off against the amounts that the putative class members owe Defendant. THIRTIETH AFFIRMATIVE DEFENSE (Arbitration). The members of the putative class agreed to arbitrate any disputes with Defendant individually and cannot participate in class actions. THIRTY-FIRST AFFIRMATIVE DEFENSE (Tariff Exemption). Defendant s conduct, particularly its use of beep tones, is exempted from liability under Penal Code sections, and. s tariff exemption because it complies with the tariffs of a public utility. THIRTY-SECOND AFFIRMATIVE DEFENSE (Res Judicata). Plaintiff Elias s Complaint, and each purported cause of action alleged therein, is barred by the doctrine of res judicata. Plaintiff could have brought his Sections and. claim in James Elias v. Joshua Bronstein, et al., United States District Court, Central District of California, Case No. cv-0-ghk (RZx) ( Elias I ). Elias I was a final dismissal on the merits. Plaintiff Elias knew or should have known that his March, 0 call may have been recorded due to the periodic beep tones. Additionally, Plaintiff Elias received a copy of the March, 0 call recording on or about June 0, 0, prior to judgment being entered in Elias I, therefore, Plaintiff Elias could have sought leave to add the Section. claim in Elias I. THIRTY-THIRD AFFIRMATIVE DEFENSE (Right to Raise Other Defenses). Plaintiffs and the putative class members have not set out their causes of action with sufficient particularity to permit Defendant to raise all appropriate affirmative defenses. Defendant has not knowingly or intentionally waived any applicable affirmative defenses, but WEST\0. --

9

10

11

12

13 From: Sent: Tuesday, May 0, 0 :0 PM To: Lozinski, Ann A. Subject: Multiple Documents () - Uploaded by DLA Piper LLP - Elias, et al. v. Synchrony Bank, et al., Case No. BC The following documents have been uploaded in Elias, et al. v. Synchrony Bank, et al., Case No. BC: Documents Uploaded By: DLA Piper LLP Number of Documents in Transaction: Representing: Synchrony Bank Upload Date: // Time of Upload: : PM (PST) Document Title: Defendant Synchrony Bank's Response to the Court's April 0, 0 Order Directing Further Briefing in Support of Preliminary Approval of Class Action Settlement Page Range: - 0 Document Title: Declaration of Edward D. Totino in Support of Synchrony Bank's Response to the Court's April 0, 0 Order Directing Further Briefing Page Range: 00+ Document Title: [Proposed] Order Granting Motion for Preliminary Approval of Class Settlement Page Range: - 0 Document Title: Synchrony Bank's Answer to Plaintiffs' Third Amended Class Action Complaint Page Range: - 0 To access a record, click on the document link. You will be directed to the Case Anywhere log in page. After entering your username and password, you will be taken to the requested document. If you have saved your log in information by selecting the "Remember me at this computer" option, you will be automatically logged in and directed to the record. Please allow time for larger documents to open. If your organization is no longer involved in the above-referenced matter, or if there is any other reason your organization's subscription should be terminated, please contact us immediately. It is your organization's responsibility to request removal from the case site and conclusion of your subscription for this matter. Please contact us by phone at (00) - or (0) 0- or by at support@caseanywhere.com if you have any questions.