R. BRIAN DIXON, Bar No LITTLER MENDELSON, P.C.

Transcription

1 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: 0 R. BRIAN DIXON, Bar No. 0 bdixon@littler.com Bush Street, th Floor San Francisco, CA 0 Telephone:..0 Facsimile:..0 DOUGLAS A. WICKHAM, Bar No. dwickham@littler.com RADHA D.S. KULKARNI, Bar No. rkulkarni@littler.com, Telephone:..00 Facsimile:.. Attorneys for Defendant BMC WEST, LLC SERGIO GALICIA GONZALEZ, an individual, appearing on behalf of himself and all others similarly situated, v. Plaintiff, BMC WEST, LLC, a Delaware limited liability company, Defendant. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. :-cv-000-jgb (DTBx) DEFENDANT BMC WEST, LLC S ANSWER TO PLAINTIFF S SERGIO GALICIA GONZALEZ FIRST AMENDED COMPLAINT Complaint Filed: January,..00

2 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: Defendant BMC West, LLC ( BMC or Defendant ), by and through its attorneys, hereby answers the First Amended Complaint of Sergio Galicia Gonzalez ( FAC ), named Plaintiff herein, as follows:. Answering Paragraph of the FAC, BMC admits that Plaintiff is a former non-exempt employee of Defendant who worked at Defendant s manufacturing and distribution facility at Golf Center Parkway, Indio, California. Except as expressly admitted herein, BMC is without sufficient knowledge or information regarding the remaining allegations contained in Paragraph and denies those allegations on that basis.. Answering Paragraph of the FAC, BMC admits that BMC West Corporation was a Delaware corporation and its principal place of business was located at Park Blvd., Boise, Idaho, BMC West Corporation was converted into BMC West LLC in accordance with Delaware law, and BMC West Corporation and BMC West LLC have done and/or did business in the Central District of California. The remainder of the averments in this Paragraph call for legal conclusions as to which no response is required. Except as expressly admitted herein, Defendant denies each of the allegations in this paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal conclusions for which no response is required. Except as expressly admitted herein, Defendant denies each of the allegations in this paragraph.. Answering Paragraph of the FAC, this Paragraph contains legal conclusions regarding the amount in controversy and personal jurisdiction of Defendant to which no response is required. Without admitting such factual or legal conclusions, BMC does not contest personal jurisdiction in this case. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC admits that it employed persons and conducted business operations in California manufacturing and selling

3 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: building materials and construction services. To the extent that this Paragraph contains legal conclusions, no response to such conclusions is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph. 0. Answering Paragraph 0 of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph 0.. Answering Paragraph of the FAC, BMC admits that it employed Plaintiff. To the extent that this Paragraph calls for legal conclusions, no response to such conclusions is required. BMC is without sufficient knowledge or information regarding the remaining allegations contained in Paragraph and denies those allegations in their entirety on that basis. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph..

4 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: Answering Paragraph of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for legal.

5 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph. 0. Answering Paragraph 0 of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph..

6 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph. 0. Answering Paragraph 0 of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, BMC incorporates by reference each of its responses to Paragraphs through above as if fully set forth herein.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for a legal conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for a legal.

7 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: conclusion to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in Paragraph.. Answering Paragraph of the FAC, this Paragraph calls for legal conclusions for which no response is required. BMC is without sufficient knowledge or information regarding the remaining allegations contained in Paragraph and denies those allegations in their entirety on that basis. 0. Answering Plaintiff s Prayer for Relief, this calls for legal conclusions to which no response is required. Except as expressly admitted herein, BMC denies each and every allegation contained in the Prayer for Relief in the FAC. DEFENSES Without waiving or excusing the burden of proof of the named Plaintiff and/or the putative class members or admitting that Defendant has any burden of proof, Defendant asserts the following defenses: FIRST DEFENSE (Failure to State a Claim). Defendant alleges that the FAC and each claim for relief set forth therein, or some of them, fails to state sufficient facts to constitute a claim for relief against Defendant. SECOND DEFENSE (Unclean Hands). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiff s FAC and each claim alleged therein, or some of them, are barred, in whole or in part, by the doctrine of unclean hands. THIRD DEFENSE (Waiver and Release). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiff s FAC,.

8 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: and each claim alleged therein, or some of them, are barred, in whole or in part, by the doctrine of waiver and/or release. FOURTH DEFENSE (Estoppel). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that Plaintiff s FAC, and each claim alleged therein, or some of them, are barred, in whole or in part, by the doctrine of estoppel. Defendant reserves the right to amend its answer upon further investigation and discovery of facts supporting this defense. FIFTH DEFENSE (Laches). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the FAC and each claim for relief set forth therein, or some of them, are barred, in whole or in part, by the doctrine of laches. Defendant reserves the right to amend its answer upon further investigation and discovery of facts supporting this defense. SIXTH DEFENSE (Consent). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the FAC and each claim for relief set forth therein, or some of them, are barred by the equitable doctrine of consent. Defendant reserves the right to amend its answer upon further investigation and discovery of facts supporting this defense. SEVENTH DEFENSE (Preemption). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the FAC and each claim for relief set forth therein, or some of them, are barred, in whole or in part,.

9 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: insofar as such claims are preempted by, among other federal statutes, the Federal Motor Carrier Safety Improvement Act, the Federal Motor Carrier Safety Act, the Federal Aviation Administration Authorization Act, the Surface Transportation Assistance Act of, the National Labor Relations Act, the Labor Management Relations Act, and all other applicable federal statutes and regulations, and thus this Court lacks subject matter jurisdiction over all such claims. Defendant reserves the right to amend its answer upon further investigation and discovery of facts supporting this defense EIGHTH DEFENSE (Lack of Standing). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the FAC and each claim for relief set forth therein, or some of them, are barred because the named Plaintiff lacks standing as a representative of the proposed class and does not adequately represent the putative class members. NINTH DEFENSE (Claims Not Suitable for Class, Collective or Private Attorney General Act Treatment). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the FAC and each claim for relief set forth therein, or some of them, are barred because Plaintiff has failed to and cannot satisfy the requirements for the maintenance of a class, representative, or collective action, or a private attorney general action, including, and without limitation, ascertainability, predominance, adequacy of representation (of both the proposed class representative and proposed class counsel), and superiority, and/or the existence of aggrieved employees, and further alleges that public policy considerations do not favor such a certification, collective action treatment, or private attorney general treatment..

10 Case :-cv-000-jgb-rao Document Filed 0/0/ Page 0 of Page ID #: TENTH DEFENSE (Satisfaction of Claims) 0. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that any monies owed to Plaintiff and/or the putative class he seeks to represent have been paid in full and any obligations Defendant may have owed to Plaintiff and/or the putative class he seeks to represent have been paid or otherwise satisfied. ELEVENTH DEFENSE (Labor Code Section No Injury). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that the FAC and each claim for relief set forth therein, or some of them, are barred because Plaintiff and/or the putative class they seek to represent have not suffered any injury from any alleged failure by Defendant to comply with California Labor Code Section. TWELFTH DEFENSE (Good Faith; No Intentional or Willful Act or Omission). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that the FAC and each claim for relief set forth therein, or some of them, fail to state a claim for penalties under the California Labor Code because () there was and is a bona fide, good faith dispute as to Defendant s obligations under any applicable Labor Code provisions, including, without limitation, Labor Code section and ; and () Defendant did not willfully or intentionally violate Labor Code sections and. Moreover, Defendant is informed and believes that further investigation and discovery will reveal and, on that basis, alleges that any violation of the Labor Code or any applicable Wage Order promulgated by the Industrial Welfare Commission was an act or omission made in good faith, and Defendant had reasonable grounds for believing that its wage payment practices complied with applicable law, such that any act or.

11 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: omission was not a violation of the Labor Code and/or any Wage Order promulgated by the Industrial Welfare Commission. THIRTEENTH DEFENSE (Statute of Limitations). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that Plaintiffs FAC, and each claim for relief set forth therein, or some of them, are barred by the applicable statutes of limitations, including, but not limited to, those set forth in California Code of Civil Procedure Sections, (a), 0(a) and, California Labor Code Section (b) and California Business and Professions Code Section. FOURTEENTH DEFENSE (Meal and Rest Break Premiums and/or PAGA Penalties Barred). Defendant alleges that assuming arguendo that Plaintiff and/or the putative class he seeks to represent did not take required meal periods and/or rest breaks, Plaintiff and/or the putative class he seeks to represent are not entitled to a premium payment or civil penalties the Private Attorney General Act and/or Labor Code section predicated on alleged violations of Labor Code sections. and and/or the applicable Wage Order of the Industrial Welfare Commission because they () voluntarily failed to take meal periods and/or rest breaks that were provided or allowed in compliance with California law, () voluntarily waived and/or relinquished their right to meal periods and/or rest breaks as provided or allowed under California Labor Code Section (a) and/or the applicable Wage Order of the Industrial Welfare Commission, and/or () Defendant did not engage in any act or omission to prevent or prohibit Plaintiffs and the putative class from taking meal periods and rest breaks that were provided or allowed in accordance with applicable law and Company policy. // 0.

12 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: FIFTEENTH DEFENSE (Bona Fide Dispute). Defendant alleges that the FAC and each claim therein, or some of them, fails to state a claim for penalties under the California Labor Code in that there was a bona fide, good faith dispute as to Defendant s obligations under any applicable Labor Code provisions. SIXTEENTH DEFENSE (Good Faith). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that any violation of the Labor Code or a Wage Order of the Industrial Welfare Commission was an act or omission made in good faith, and Defendant had reasonable grounds for believing that its wage payment practices complied with applicable laws and that any act or omission was not a violation of the Labor Code or the applicable Wage Order of the Industrial Welfare Commission so that Plaintiff and/or the putative class he seeks to represent is not entitled to any damages in excess of any wages/overtime which might be found to be due. SEVENTEENTH DEFENSE (Purported Violations De Minimis). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiff s FAC and each cause of action therein, or some of them, are barred in whole or in part because even assuming, arguendo, that Plaintiff and/or the putative class members may be able to prove the existence of alleged violations of the California Labor Code and/or the applicable Wage Order of the Industrial Welfare Commission, such alleged violations, if any, are de minimis, and therefore Plaintiff and the putative class is not entitled to any additional compensation. //.

13 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: EIGHTEENTH DEFENSE (Avoidable Consequences). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiff s FAC and each claim therein, or some of them, are barred in whole or in part because Plaintiff s and the putative class claims for damages and/or penalties, if any, are barred and/or limited by the doctrine of avoidable consequences. See Department of Health Services v. Superior Court, Cal. th 0 (0). NINETEENTH DEFENSE (Entitlement to Credit or Setoff). Defendant alleges that, assuming Plaintiff and/or the putative class he seeks to represent are entitled to any unpaid wages, Defendant is entitled to a credit or setoff. This credit or setoff includes, but is not limited to, amounts erroneously overpaid to Plaintiff and/or the putative class they seek to represent. The claims of Plaintiff and/or the putative class he seeks to represent are barred because Plaintiff and/or the putative class he seeks to represent would be unjustly enriched if they prevailed on any of said claims. TWENTIETH DEFENSE (Breach of Duty). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiffs FAC, and each of the claims set forth therein, or some of them, is barred by Plaintiff s own breach of duties owed to Defendant under California Labor Code Sections,,, and/or. TWENTY-FIRST DEFENSE (Excessive Fines/Penalties). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that the FAC, and.

14 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: each of the claims set forth therein, or some of them, are barred because, as applied in this putative class action, an award of civil penalties would result in the imposition of excessive fines or penalties in violation of the Eighth Amendment to the United States Constitution and Article I, Section of the California Constitution. See, e.g., People ex rel Lockyer v. R.J. Reynolds Tobacco Co., Cal. th 0 (0). TWENTY-SECOND DEFENSE (Unconstitutionality of Multiple Penalties). Defendant alleges that multiple individual penalties would deprive Defendant of its fundamental constitutional rights to due process. TWENTY-THIRD DEFENSE (Violation of Due Process). Defendant alleges that certification of a class, 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 and the California Constitution. TWENTY-FOURTH DEFENSE (Claims Unconstitutionally Vague and Ambiguous). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiff s FAC, and each of the claims set forth therein, or some of them, are barred because the applicable Wage Orders of the Industrial Welfare Commission and California Business and Professions Code Section 0, et seq,, 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 DEFENSE (Penalties Violate Substantive and Procedural Due Process). Defendant alleges that, as applied to this putative class action, employment of civil penalties would violate Defendant s procedural and substantive.

15 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: due process rights (vis-à-vis the Fourteenth Amendment of the United States Constitution and the Due Process and Equal Protection Clauses in Article of the California Constitution). See State Farm Mutual Automobile Insurance Company v. Campbell, U.S. 0 (0) or People ex. rel. Lockyer v. R.J. Reynolds, Cal. th 0 (0). TWENTY-SIXTH DEFENSE (Unfair Business Practices Claim Violates Due Process). Defendant alleges that prosecution of this action under Business and Professions Code 0 et seq., as applied to the facts and circumstances of this case, constitutes a denial of due process rights under the fourteenth amendment to the United States Constitution and Article I, of the California Constitutions. That violation is both procedural, by imposing a procedure that would render it impossible for Defendant to defend its interests and property, and substantive, by imposing remedies constitutionally disproportionate to the wrongs committed. See People ex rel Lockyer v. R.J. Reynolds Tobacco Company, Cal. th 0 (0). TWENTY-SEVENTH DEFENSE (Bus. & Prof. Code Section 0 Compliance with Obligations). Defendant alleges that Plaintiff s claims are barred in whole or in part because of Defendant s compliance with all applicable laws, statutes and regulations, said compliance affording Defendant a safe harbor to any claim under Business and Professions Code Section 0, et seq. TWENTY-EIGHTH DEFENSE (Bus. & Prof. Code Section 0 No Penalties). Defendant alleges that Plaintiff and/or the putative class he seeks to represent cannot recover penalties, such as those under California Labor Code Sections,, and., pursuant to California Business and Professions Code Section 0, et seq. //.

16 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: TWENTY-NINTH DEFENSE (No Knowledge of Work). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis alleges, that Plaintiff s FAC and each of the claims therein, or some of them, are barred in whole or in part because if Plaintiff or any putative class member worked hours for which compensation was not paid, Defendant had no knowledge, or reason to know, of such work and such overtime work was undertaken without the direction, consent or permission of Defendant. THIRTIETH DEFENSE (No Injury) 0. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that the Complaint, and each of the claims set forth therein, or some of them, are barred because Plaintiff lacks standing to sue under California Business and Professions Code Section 0 and as they have not suffered any injury in fact or lost money or property as a result of any allegedly unlawful business practice of Defendant. THIRTY-FIRST DEFENSE (Plaintiff s Claims Moot). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that Plaintiff s FAC and each of the claims therein, or some of them, are barred in whole or in part because Plaintiff s claim for alleged violations of California Business and Professions Code Section 0, et seq., is barred because, to the extent that Plaintiff s FAC seeks to enjoin Defendant from engaging in unfair or otherwise unlawful business practices, if any, such claims are moot because, assuming arguendo that Defendant engaged in such business practices, Defendant has since discontinued, modified and/or corrected their policies and practices and they no longer engage in the alleged.

17 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: conduct. SECOND DEFENSE (Other Remedies Barred). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that the FAC, and each cause of action set forth therein, or some of them, are barred because Plaintiff and the putative class he seeks to represent has failed to state a claim for an award of liquidated damages, costs or attorneys fees under California Labor Code sections.,, and., Code of Civil Procedure section 0., California Business and Professions Code section 0, et seq., or any other basis. THIRTY-THIRD DEFENSE (Prejudgment Interest). Defendant alleges that Plaintiff s FAC fails to properly state a claim upon which prejudgment interest may be awarded, as the damages claimed are not sufficiently certain to allow an award of prejudgment interest. THIRTY-FOURTH DEFENSE (Unjust Enrichment). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that Plaintiff s FAC, and each of the claims set forth therein, or some of them, are barred because Plaintiff and the putative class he seeks to represent did not incur any damages or losses, and any award of such alleged damages and/or losses would unjustly enrich them. THIRTY-FIFTH DEFENSE (Failure to Exhaust; Standing; Failure to Identify Aggrieved Employees). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that Plaintiff s and/or any allegedly aggrieved employees purported claims under the Private Attorney General Act are barred because () Plaintiff lacks standing to bring claims.

18 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: for civil penalties on behalf of others because he is not an aggrieved employee within the meaning of the Private Attorneys General Act; () Plaintiff failed to timely or adequately exhaust his administrative remedies under the Private Attorney General Act; and () Plaintiff failed to identify any other allegedly aggrieved employees in their administrative exhaustion letter to the Labor and Workforce Development Agency or in this action. THIRTY-SIXTH DEFENSE (Initial Violation). Defendant alleges that, insofar as Defendant has never received an adverse judgment against it in a court of law, with respect to any of Plaintiff s Labor Code claims, any civil penalties awarded to Plaintiff under PAGA must be limited to those penalties applicable to an initial violation. THIRTY-SEVENTH DEFENSE (PAGA Claims Not Subject to Representative Action). Defendant alleges that Plaintiff s and/or any allegedly aggrieved employees purported claims under the Private Attorney General Act cannot be tried on a representative basis because such () a determination requires complex factual issues, () penalties could not be calculated on a representative basis, () any penalties that might be proved would not be identical for all allegedly aggrieved current or former employees, () trying such a representative action would be unmanageable and () would be contrary to the legislative intent of the Private Attorney General Act. THIRTY-EIGHTH DEFENSE (No Multiple Recoveries/Stacking of PAGA Penalties). Defendant alleges that Plaintiff and/or any other allegedly aggrieved employees are not entitled to multiple recoveries or stacking of civil penalties under the Private Attorney General Act for the same alleged violations. /// ///.

19 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: THIRTY-NINTH DEFENSE (Offset/Set-off). Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that the FAC, and each cause of action set forth therein, or some of them, are subject to the doctrines of set-off, offset and/or recoupment on the part of Defendant. FORTIETH DEFENSE (Claims Asserted in Bad Faith; Attorneys Fees) 0. Defendant alleges that a reasonable opportunity for investigation and discovery will reveal and, on that basis, alleges that Plaintiff s claims are unreasonable and/or were filed in bad faith and/or are frivolous and, for that reason, justify an award of attorneys fees and costs against Plaintiff and his attorneys. PRESERVATION OF RIGHT TO AMEND TO ADD ADDITIONAL DEFENSES Defendant does not presently know all of the facts regarding the conduct of Plaintiffs and/or the putative class they seek to represent sufficient to allow them to state all defenses at this time. Defendant is informed and believes, however, that further investigation and discovery will reveal that they may have additional defenses available of which it is not fully aware at the present time. Defendant reserves the right to amend this Answer to assert said additional defenses should it later discover facts demonstrating the existence and applicability of same. PRAYER FOR RELIEF WHEREFORE, Defendant prays that:. The FAC be dismissed in its entirety with prejudice;. Plaintiff takes nothing by way of their FAC;. Defendant be awarded judgment in its favor and against Plaintiff;. Defendant be awarded its costs of suit and reasonable attorneys.

20 Case :-cv-000-jgb-rao Document Filed 0/0/ Page of Page ID #: deems proper. fees incurred herein; and. The Court grants Defendant such other and further relief as it Dated: June, Firmwide: /s/ Radha D.S. Kulkarni R. BRIAN DIXON DOUGLAS A. WICKHAM RADHA D.S. KULKARNI Attorneys for Defendant BMC WEST, LLC