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Case No. 3:15-cv-00815-WHA DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED CLASS ACTION COMPLAINTDWT 26642359v3 0058864-000022
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JANET L. GRUMER (State Bar No. 232723) [email protected] AARON N. COLBY (State Bar No. 247339) [email protected] EVELYN F. WANG (State Bar No. 273622) [email protected] DAVIS WRIGHT TREMAINE LLP 865 South Figueroa Street, Suite 2400 Los Angeles, California 90017 Telephone: (213) 633-6800 Facsimile: (213) 633-6899 Attorneys for Defendants LANDRY’S, INC., and McCORMICK & SCHMICK RESTAURANT CORP.
IN THE UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
MOUANG SAECHAO, individually and on behalf of all others similarly situated, Plaintiff, vs. LANDRY’S, INC., a Delaware corporation, and McCORMICK & SCHMICK RESTAURANT CORP, Defendants.
Case No. 3:15-cv-00815-WHA [Assigned to the Honorable William H. Alsup] DEFENDANTS LANDRY’S, INC. AND McCORMICK & SCHMICK RESTAURANT CORP.’S ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT
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Defendants Landry’s, Inc. (“Landry’s”) and McCormick & Schmick Restaurant Corp.
(“McCormick & Schmick”) (collectively, “Defendants”), by and through their attorneys, answer
the First Amended Class Action Complaint (“First Amended Complaint”) of plaintiff Mouang
Saechao (“Plaintiff”) as follows:
INTRODUCTION
1. Answering Paragraph 1 of the First Amended Complaint, McCormick & Schmick
admits that Plaintiff was formerly employed by McCormick & Schmick. McCormick &
Schmick further admits that it has a license to operate a restaurant under the name of Spenger’s
Fresh Fish Grotto located in Berkeley, California. Landry’s denies that it was ever Plaintiff’s
employer. Defendants aver that the remaining allegations in this paragraph are argument and
conclusions of law that require no answer and, to the extent that it contains allegations of fact,
they are denied.
2. Answering Paragraph 2 of the First Amended Complaint, Defendants aver that the
allegations in this paragraph are argument and conclusions of law that require no answer and, to
the extent that it contains allegations of fact, they are denied.
THE PARTIES
3. Answering Paragraph 3 of the First Amended Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of Plaintiff’s alleged
citizenship, and on that basis denies this allegation. McCormick & Schmick admits that
Plaintiff was a former employee of McCormick & Schmick in the non-exempt position of
host/banquet server at the restaurant Spenger’s Fresh Fish Grotto from November 20, 2013 to
December 1, 2014. Landry’s denies that it was ever Plaintiff’s employer.
4. Answering Paragraph 4 of the First Amended Complaint, Landry’s admits that it
is a corporation organized under the laws of the State of Delaware with its principal place of
business in Houston, Texas. Landry’s avers that the remaining allegations in this paragraph are
argument and conclusions of law that require no answer and, to the extent that it contains
allegations of fact, they are denied.
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5. Answering Paragraph 5 of the First Amended Complaint, McCormick & Schmick
admits that it is a corporation organized under the laws of the State of Delaware with its principal
place of business in Houston, Texas. McCormick & Schmick admits that it has a license to
operate a restaurant under the name of Spenger’s Fresh Fish Grotto located in Berkeley,
California. Landry’s admits that McCormick & Schmick is a wholly-owned subsidiary of
Landry’s since January 2012. Defendants aver that the remaining allegations in this paragraph
are argument and conclusions of law that require no answer and, to the extent that it contains
allegations of fact, they are denied.
6. Answering Paragraph 6 of the First Amended Complaint, McCormick & Schmick
admits that Plaintiff was formerly employed by McCormick & Schmick. Landry’s denies that it
was ever Plaintiff’s employer. Defendants aver that the remaining allegations in this paragraph
are argument and conclusions of law that require no answer and, to the extent that it contains
allegations of fact, they are denied.
JURISDICTION AND VENUE
7. Answering Paragraph 7 of the First Amended Complaint, Defendants deny that
the value in controversy exceeds the sum of $75,000. Defendants aver that the remaining
allegations in this paragraph are argument and conclusions of law that require no answer and, to
the extent that it contains allegations of fact, they are denied.
8. Answering Paragraph 8 of the First Amended Complaint, McCormick & Schmick
admits that Plaintiff was formerly employed by McCormick & Schmick in this Northern District
of California. Landry’s denies that this Court has personal jurisdiction over Landry’s. Landry’s
further denies that it has sufficient minimum contacts with California or with this judicial district.
Defendants aver that the remaining allegations in this paragraph are argument and conclusions of
law that require no answer and, to the extent that it contains allegations of fact, they are denied.
9. Answering Paragraph 9 of the First Amended Complaint, McCormick & Schmick
admits that venue is proper. Landry’s denies that venue is proper. Except as specifically
admitted, Defendants deny, generally and specifically, each and every of the allegations in this
paragraph.
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FACTUAL ALLEGATIONS
10. Answering Paragraph 10 of the First Amended Complaint, McCormick &
Schmick admits that it has a license to operate a restaurant under the name of Spenger’s Fresh
Fish Grotto. McCormick & Schmick admits that it employs individuals to work at Spenger’s
Fresh Fish Grotto, including in the non-exempt positions of server, host, banquet server,
bartender, busser, cook, and dishwasher. Except as specifically admitted, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
11. Answering Paragraph 11 of the First Amended Complaint, McCormick &
Schmick admits that Richard Villareal is employed as general manager for Spenger’s Fresh Fish
Grotto. McCormick & Schmick admits that Kevin Jones is employed as front manager for
Spenger’s Fresh Fish Grotto. Except as specifically admitted, Defendants deny, generally and
specifically, each and every allegation contained in this paragraph.
12. Answering Paragraph 12 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
13. Answering Paragraph 13 of the First Amended Complaint, McCormick &
Schmick refers to the meal period waiver signed by Plaintiff for a true and correct recitation of
the facts thereof. Except as specifically admitted, Defendants deny, generally and specifically,
each and every allegation contained in this paragraph.
14. Answering Paragraph 14 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
15. Answering Paragraph 15 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
16. Answering Paragraph 16 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
17. Answering Paragraph 17 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
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18. Answering Paragraph 18 of the First Amended Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations in this
paragraph, and on that basis deny, generally and specifically, each and every allegation in this
paragraph.
19. Answering Paragraph 19 of the First Amended Complaint, McCormick &
Schmick admits that employees working at Spenger’s Fresh Fish Grotto were on occasion
required to attend meetings during working hours and were required to be clocked-in for such
meetings. Except as specifically admitted, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in this paragraph, and on
that basis denies, generally and specifically, each and every remaining allegation in this
paragraph.
20. Answering Paragraph 20 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
21. Answering Paragraph 21 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
22. Answering Paragraph 22 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
23. Answering Paragraph 23 of the First Amended Complaint, McCormick &
Schmick admits that certain employees working at Spenger’s Fresh Fish Grotto were
occasionally scheduled to work the lunch and dinner shifts during the same day. McCormick &
Schmick further admits that employees working at Spenger’s Fresh Fish Grotto were on occasion
required to attend meetings during working hours and were required to be clocked-in for such
meetings. Except as specifically admitted, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in this paragraph, and on
that basis denies, generally and specifically, each and every remaining allegation in this
paragraph.
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24. Answering Paragraph 24 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
25. Answering Paragraph 25 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraph 24 of the First Amended
Complaint as if fully stated herein. Defendants aver that the allegations in this paragraph are
argument and conclusions of law that require no answer and, to the extent that it contains
allegations of fact, they are denied.
26. Answering Paragraph 26 of the First Amended Complaint, except as to refer to
Plaintiff’s paychecks dated December 1, 2014 and December 15, 2014 for a true and complete
recitation of the contents thereof, Defendants are without knowledge or information sufficient to
form a belief as to the truth of the allegations in this paragraph, and on that basis deny, generally
and specifically, each and every allegation in this paragraph.
27. Answering Paragraph 27 of the First Amended Complaint, except as to refer to
Plaintiff’s paychecks dated December 1, 2014 and December 15, 2014 for a true and complete
recitation of the contents thereof, Defendants deny, generally and specifically, each and every
allegation contained in this paragraph.
28. Answering Paragraph 28 of the First Amended Complaint, McCormick &
Schmick admits that certain employees took part in programs by the name of “Wow” and
“Ambassador.” Except as specifically admitted, Defendants deny, generally and specifically,
each and every allegation contained in this paragraph.
29. Answering Paragraph 29 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
30. Answering Paragraph 30 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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31. Answering Paragraph 31 of the First Amended Complaint, except as to refer to
Plaintiff’s wage statements issued by McCormick & Schmick for a true and complete recitation
of the contents thereof, Defendants aver that the allegations in this paragraph are argument and
conclusions of law that require no answer and, to the extent that it contains allegations of fact,
they are denied.
32. Answering Paragraph 32 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
33. Answering Paragraph 33 of the First Amended Complaint, McCormick &
Schmick refers to its Employee Handbook applicable to Plaintiff during her employment with
McCormick & Schmick for a true and complete recitation of the contents thereof. Defendants
aver that the remaining allegations in this paragraph are argument and conclusions of law that
require no answer and, to the extent that it contains allegations of fact, they are denied.
34. McCormick & Schmick refers to Plaintiff’s written request dated December 2,
2014 for a true and complete recitation of the contents thereof. Defendants are without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations
in this paragraph, and on that basis deny, generally and specifically, each and every remaining
allegation in this paragraph.
CLASS ALLEGATIONS
35. Answering Paragraph 35 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
36. Answering Paragraph 36 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
37. Answering Paragraph 37 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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38. Answering Paragraph 38 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
39. Answering Paragraph 39 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
40. Answering Paragraph 40 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
41. Answering Paragraph 41 of the First Amended Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations in this
paragraph, and on that basis deny, generally and specifically, each and every allegation in this
paragraph.
42. Answering Paragraph 42 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
43. Answering Paragraph 43 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
44. Answering Paragraph 44 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
LABOR CODE PRIVATE ATTORNEYS GENERAL ACT ALLEGATIONS
45. Answering Paragraph 45 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
46. Answering Paragraph 46 of the First Amended Complaint, Defendants refer to the
letter dated February 13, 2015 from Plaintiff to the Labor and Workforce Development Agency
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and to the return receipt from the Labor and Workforce Development Agency for a true and
correct recitation of the contents thereof. Defendants aver that the remaining allegations in this
paragraph are argument and conclusions of law that require no answer and, to the extent that it
contains allegations of fact, they are denied.
47. Answering Paragraph 47 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
FIRST CLAIM FOR RELIEF FAILURE TO PROVIDE MEAL PERIODS
(Wage Order No. 5-2001 ¶ 11; Cal. Lab. Code §§ 226.7, 512)
48. Answering Paragraph 48 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 47 as if fully
stated herein.
49. Answering Paragraph 49 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
50. Answering Paragraph 50 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
51. Answering Paragraph 51 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
52. Answering Paragraph 52 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
53. Answering Paragraph 53 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
54. Answering Paragraph 54 of the First Amended Complaint, Defendants aver that
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the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
SECOND CLAIM FOR RELIEF FAILURE TO PROVIDE REST PERIODS
(Wage Order No. 5-2001 ¶ 12; Cal. Lab. Code §§ 226.7)
55. Answering Paragraph 55 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 54 as if fully
stated herein.
56. Answering Paragraph 56 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
57. Answering Paragraph 57 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
58. Answering Paragraph 58 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
59. Answering Paragraph 59 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
60. Answering Paragraph 60 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
THIRD CLAIM FOR RELIEF FAILURE TO PAY FOR ALL HOURS WORKED
(Wage Order No. 5-2001 ¶¶ 4(B), 11; Cal. Lab. Code §§ 221, 223)
61. Answering Paragraph 61 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 60 as if fully
stated herein.
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62. Answering Paragraph 62 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
63. Answering Paragraph 63 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
64. Answering Paragraph 64 of the First Amended Complaint, McCormick &
Schmick admits that employees working at Spenger’s Fresh Fish Grotto were on occasion
required to attend meetings during working hours and were required to be clocked-in for such
meetings. Except as specifically admitted, Defendants deny, generally and specifically, each
and every allegation contained in this paragraph.
65. Answering Paragraph 65 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
66. Answering Paragraph 66 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
FOURTH CLAIM FOR RELIEF FAILURE TO PAY OVERTIME WAGES
(Wage Order No. 5-2001 ¶ 3; Cal. Labor Code §§ 510, 1194 et seq., 1198)
67. Answering Paragraph 67 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 66 as if fully
stated herein.
68. Answering Paragraph 68 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
69. Answering Paragraph 69 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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70. Answering Paragraph 70 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
71. Answering Paragraph 71 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
72. Answering Paragraph 72 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
73. Answering Paragraph 73 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
74. Answering Paragraph 74 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
75. Answering Paragraph 75 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
FIFTH CLAIM FOR RELIEF REPORTING TIME PAY
(Wage Order No. 5-2001 ¶ 5)
76. Answering Paragraph 76 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 75 as if fully
stated herein.
77. Answering Paragraph 77 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
78. Answering Paragraph 78 of the First Amended Complaint, Defendants deny,
generally and specifically, each and every allegation contained in this paragraph.
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79. Answering Paragraph 79 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
80. Answering Paragraph 80 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
SIXTH CLAIM FOR RELIEF SPLIT SHIFT PREMIUM PAY
(Wage Order No. 5-2001 ¶ 4)
81. Answering Paragraph 81 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 80 as if fully
stated herein.
82. Answering Paragraph 82 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
83. Answering Paragraph 83 of the First Amended Complaint, McCormick &
Schmick admits that certain employees working at Spenger’s Fresh Fish Grotto were
occasionally scheduled to work the lunch and dinner shifts during the same day. McCormick &
Schmick further admits that employees working at Spenger’s Fresh Fish Grotto were on
occasion required to attend meetings during working hours and were required to be clocked-in
for such meetings. Except as specifically admitted, Defendants deny, generally and
specifically, each and every allegation contained in this paragraph.
84. Answering Paragraph 84 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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SEVENTH CLAIM FOR RELIEF STATUTORY PENALTIES FOR VIOLATION OF RECORD KEEPING REQUIREMENTS
(Wage Order No. 5-2001 ¶ 7; Cal. Lab. Code § 226(b))
85. Answering Paragraph 85 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 84 as if fully
stated herein.
86. Answering Paragraph 86 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
87. Answering Paragraph 87 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
88. Answering Paragraph 88 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
89. Answering Paragraph 89 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
90. Answering Paragraph 90 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
91. Answering Paragraph 91 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
92. Answering Paragraph 92 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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93. Answering Paragraph 93 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
94. Answering Paragraph 94 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
EIGHTH CLAIM FOR RELIEF WAITING TIME PAY
(Cal. Lab. Code §§ 201-203, 206)
95. Answering Paragraph 95 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 94 as if fully
stated herein.
96. Answering Paragraph 96 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
97. Answering Paragraph 97 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
98. Answering Paragraph 98 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
99. Answering Paragraph 99 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
100. Answering Paragraph 100 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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101. Answering Paragraph 101 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
102. Answering Paragraph 102 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
103. Answering Paragraph 103 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
NINTH CLAIM FOR RELIEF UNJUST ENRICHMENT/CONSTRUCTIVE TRUST
(Cal. Civ. Code §§ 2223, 2224)
104. Answering Paragraph 104 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 103 as if fully
stated herein.
105. Answering Paragraph 105 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
106. Answering Paragraph 106 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
107. Answering Paragraph 107 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
108. Answering Paragraph 108 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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TENTH CLAIM FOR RELIEF VIOLATION OF UNFAIR COMPETITION LAW
(Cal. Bus. & Prof. Code § § 17200 et seq.)
109. Answering Paragraph 109 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 108 as if fully
stated herein.
110. Answering Paragraph 110 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
111. Answering Paragraph 111 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
112. Answering Paragraph 112 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
113. Answering Paragraph 113 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
114. Answering Paragraph 114 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
115. Answering Paragraph 115 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
116. Answering Paragraph 116 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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ELEVENTH CLAIM FOR RELIEF CIVIL PENALTIES
(Cal. Lab. Code §§ 2698 et seq.)
117. Answering Paragraph 117 of the First Amended Complaint, Defendants
reincorporate their responses to the allegations contained in Paragraphs 1 through 116 as if fully
stated herein.
118. Answering Paragraph 118 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
119. Answering Paragraph 119 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
120. Answering Paragraph 120 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
121. Answering Paragraph 121 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
122. Answering Paragraph 122 of the First Amended Complaint, Defendants are
without knowledge or information sufficient to form a belief as to the truth of the allegations in
this paragraph, and on that basis denies, generally and specifically, each and every allegation in
this paragraph.
123. Answering Paragraph 123 of the First Amended Complaint, Defendants aver that
the allegations in this paragraph are argument and conclusions of law that require no answer and,
to the extent that it contains allegations of fact, they are denied.
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PRAYER FOR RELIEF
Answering Plaintiff’s Prayer for Relief, Paragraphs (a)-(h), Defendants deny each and
every allegation contained in the prayer and, further, Defendants specifically deny that: Plaintiff
is entitled to any of the relief requested in the Complaint from Defendants; has been damaged by
the acts of Defendants in any amount whatsoever; is entitled to attorneys’ fees and costs; or is
entitled to injunctive relief, compensatory damages, statutory penalties, civil penalties, interest,
the imposition of a constructive trust, or restitution.
SEPARATE AND ADDITIONAL DEFENSES
By alleging the Separate and Additional Defenses set forth below, Defendants are not in
any way agreeing or conceding that they have the burden of proof or the burden of persuasion on
any of these issues.
FIRST AFFIRMATIVE DEFENSE
(Failure to State A Claim)
1. The Complaint, and each and every cause of action therein, fails to state facts
sufficient to constitute a cause, or causes, of action against Defendants.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)
2. The Complaint, and each and every cause of action therein, is barred by the
applicable statute(s) of limitations, including, without limitation, California Code of Civil
Procedure Sections §§ 337, 338, 339, 340, and California Business and Professions Code
§ 17208.
THIRD AFFIRMATIVE DEFENSE
(Laches/Waiver/Estoppel/Unclean Hands)
3. The Complaint, and each and every cause of action therein, is barred by the
equitable doctrines of laches, waiver, estoppel, and unclean hands.
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FOURTH AFFIRMATIVE DEFENSE
(Failure To Fulfill Administrative Prerequisites)
4. Plaintiff is precluded from asserting some or all of Plaintiff’s claims to the extent
that Plaintiff has failed to satisfy and exhaust the administrative prerequisites for bringing
such claims.
FIFTH AFFIRMATIVE DEFENSE
(Consent)
5. If any of the allegations in the Complaint occurred, which Defendants deny, then
each and every cause of action alleged against Defendants therein is barred because Plaintiff
consented to and approved all the acts and/or omissions about which Plaintiff now complains.
SIXTH AFFIRMATIVE DEFENSE
(Ratification)
6. The Complaint, and each and every cause of action therein, is barred by the
ratification of, acquiescence in, or consent to Defendants’ alleged conduct by Plaintiff.
SEVENTH AFFIRMATIVE DEFENSE
(Intent)
7. The Complaint, and each and every cause of action therein, is barred because
Defendants did not act with the requisite degree of intent or fault.
EIGHTH AFFIRMATIVE DEFENSE
(Fault of Plaintiff and/or Third Parties)
8. If Plaintiff sustained any damages, which Defendants deny, such damages were
proximately caused or contributed to, in whole or in part, by the acts, omissions, culpable
conduct, lack of due diligence, negligence, misconduct, and/or bad faith of Plaintiff and/or third
parties, or Plaintiff and/or third parties otherwise were at fault. Plaintiff is therefore not entitled
to any relief under the Complaint or under any cause of action purported to be alleged against
Defendants therein, or Plaintiff’s recovery, if any, should thereby be reduced in proportion to
Plaintiff’s fault, or the fault of third parties.
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NINTH AFFIRMATIVE DEFENSE
(Conduct Not Ratified)
9. If any of the alleged wrongful acts in the Complaint were committed by Defendants’
employees or by third parties not employed by Defendants, although such is not herein or hereby
admitted and is specifically denied, then such actions were committed outside the scope of
employment, and/or such conduct was unknown to, and not ratified by, Defendants, and thus
Defendants are not liable for them.
TENTH AFFIRMATIVE DEFENSE
(Lack of Employment Relationship)
10. The Complaint, and each and every cause of action contained therein, fails to state
any cause of action against Landry’s because Landry’s was not Plaintiff’s employer as a matter
of fact or law.
ELEVENTH AFFIRMATIVE DEFENSE
(Lack of Personal Jurisdiction)
11. This Court lacks personal jurisdiction over Landry’s because Landry’s is not a
resident of California and lacks sufficient minimum contacts to permit jurisdiction in this
District. For the same reasons, venue is not proper in the Northern District of California.
TWELFTHAFFIRMATIVE DEFENSE
(No Penalties)
12. The Complaint, and each and every cause of action therein, is barred in whole or in
part, on the grounds that Plaintiff is not entitled to general and other penalties under the
California Labor Code, including, but not limited to, waiting time penalties under California
Labor Code § 203. With respect to waiting time penalties under California Labor Code § 203,
Plaintiff was paid all wages owed at termination, and regardless, any alleged failure to pay all
wages due at termination was not willful and/or there existed a good faith dispute as to the
amount of compensation owed, if any, at the time of termination.
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THIRTEENTH AFFIRMATIVE DEFENSE
(No Private Right of Action)
13. The Complaint, and each and every cause of action therein, is barred in whole or in
part, on the grounds that Plaintiff does not have a private right of action under applicable sections
of the California Labor Code, and penalties other than waiting-time penalties are only available
in an action brought by an official of the Labor Department or other government agency.
FOURTEENTH AFFIRMATIVE DEFENSE
(Not “Hours Worked”)
14. Plaintiff is barred from recovery under the Complaint to the extent that Plaintiff did
not actually work the hours Plaintiff alleges.
FIFTEENTH AFFIRMATIVE DEFENSE
(Meal Periods—Waiver)
15. The Complaint, and in particular, the first, third, fourth, seventh, eighth, ninth,
tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff
agreed to waive Plaintiff’s right to any meal periods Plaintiff allegedly missed.
SIXTEENTH AFFIRMATIVE DEFENSE
(Rest Periods—Waiver)
16. The Complaint, and in particular, the second, third, fourth, seventh, eighth, ninth,
tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff
agreed to waive Plaintiff’s right to any rest periods Plaintiff allegedly missed.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Meal Periods Provided)
17. The Complaint, and in particular, the first, third, fourth, seventh, eighth, ninth,
tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff was
provided with all legally-required meal periods.
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EIGHTEENTH AFFIRMATIVE DEFENSE
(Rest Periods Provided)
18. The Complaint, and in particular, the second, third, fourth, seventh, eighth, ninth,
tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff was
provided with all legally-required rest periods.
NINETEENTH AFFIRMATIVE DEFENSE
(Unknowing or Unintentional Conduct)
19. To the extent Plaintiff has been damaged in any way under the Complaint, and in
particular under the seventh, eighth and eleventh causes of action, which Defendants deny, such
damage was not the result of Defendants’ knowing and intentional conduct.
TWENTIETH AFFIRMATIVE DEFENSE
(Failure to Comply With Labor Code § 2699.3, subd. (a)(1))
20. Plaintiff did not comply with Plaintiff’s obligation under Labor Code § 2699.3,
subd. (a)(1), which requires Plaintiff to provide the employer with written notice by certified
mail of the specific provision of Labor Code alleged to have been violated, including the facts
and theories to support the alleged violation, prior to filing a civil action pursuant to Section
2699 and 2699.5 of the Labor Code. Therefore, Plaintiff may not recover any statutory penalties.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Safe Harbor Defense)
21. Plaintiff is barred from recovering under the Complaint, and in particular, under the
tenth cause of action alleged therein, in whole or in part, under the “safe harbor defense,” which
precludes Plaintiff from stating a claim through California Business and Professions Code §
17200 et seq. when such a claim would be absolutely barred under other principles of law.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Underlying Conduct Not Wrongful)
22. Plaintiff is barred from recovering under the Complaint, and in particular, under the
tenth cause of action alleged therein, in whole or in part, because Defendant’s conduct on which
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Plaintiff premises the tenth cause of action was not, and is not, wrongful, i.e., unfair, unlawful or
fraudulent.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Monetary Damages Not Available)
23. To the extent Plaintiff seeks to obtain monetary damages, including attorney fees,
under Plaintiff’s Cause of Action for violations of California Business and Professions Code
§§ 17200 et seq., the claim is barred in its entirety by these very statutes and other legal
authority.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Improper UCL Claim)
24. Plaintiff’s Cause of Action for violations of California Business and Professions
Code §§ 17200 et seq., is barred because Defendants have not committed any act with respect to
the matters alleged in the Complaint that is “unlawful,” “unfair” or “fraudulent” within the
meaning of these statutes.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Improper UCL Representative Action)
25. Plaintiff’s Cause of Action for violations of California Business and Professions
Code §§ 17200 et seq., is barred under Proposition 64 as an improper representative action to the
extent Plaintiff is attempting to bring claims on behalf other employees without meeting
California’s class action requirements.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(No Proximate Causation)
26. Any injuries or damages allegedly suffered by Plaintiff were not proximately
caused by any acts or omissions of Defendants.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Unjust Enrichment)
27. The Complaint, and each and every cause of action therein, is barred because
Plaintiff would be unjustly enriched if Plaintiff is permitted to recover on the Complaint.
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Equitable Relief (Adequate Remedies))
28. Plaintiff is barred from asserting the request for equitable relief alleged in the
Complaint because Plaintiff has adequate remedies at law and/or the equitable relief is neither
necessary or proper.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Equitable Relief (Injunction))
29. Plaintiff is not entitled to the injunctive relief requested in the Complaint as
Plaintiff cannot obtain injunctive relief based on past conduct.
THIRTIETH AFFIRMATIVE DEFENSE
(No Recovery of Attorneys’ Fees)
30. The Complaint, and each and every cause of action therein, is barred in whole or in
part pursuant to California Code of Civil Procedure Section 1033(a) to the extent it seeks to
recover attorneys’ fees and Plaintiff’s damages, which Defendants specifically deny Plaintiff has
suffered, do not exceed $25,000.
THIRTY-FIRST AFFIRMATIVE DEFENSE
(Additional Affirmative Defenses)
31. Defendants presently have insufficient knowledge or information upon which to
form a belief as to whether it may have additional, as yet unstated, affirmative defenses
available. Defendants reserve the right to assert additional affirmative defenses in the event
discovery indicates that it would be appropriate.
//
//
//
//
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PRAYER
WHEREFORE, Defendants pray for judgment as follows:
1. That Plaintiff takes nothing by way of the Complaint;
2. That the Complaint be dismissed with prejudice and judgment entered in favor of
Defendants;
3. That Defendants be awarded its costs of suit;
4. That Defendants be awarded attorneys’ fees pursuant to statute and/or contract; and
5. For such other and further relief as the Court deems just and proper.
DATED: May 11, 2015 DAVIS WRIGHT TREMAINE LLP JANET L. GRUMER AARON N. COLBY EVELYN F. WANG By: /s/ Janet L. Grumer
Janet L. Grumer Attorneys for Defendants LANDRY’S, INC., and McCORMICK & SCHMICK RESTAURANT CORP.
Case3:15-cv-00815-WHA Document27 Filed05/11/15 Page26 of 26