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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet Jun-22-2012 3:30 pm
Case Number: CGC-11-513645 Filing Date: Jun-22-2012 3:25 Filed by: ROSSALY DELAVEGA Juke Box: 001 image: 03663011 ANSWER
CYNTHIA SANDERS VS. AT&T et al
001C0366301 1
Instructions:
Please place this sheet on top of the document to be scanned.
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VAUINGAS saVGaiD iVud 1 LSMI-
MILLER Law Group A PROFESSIONAL CORPORATION
—
Katherine L. Kettler (SBN 231586) kik@millerlawqroup.com
CALIFORNIA
|| Noah Levin (SBN 263069) nal@millerlawgroup.com 3}|MILLER LAW GROUP A Professional Corporation 4||111 Sutter Street, Suite 700 San Francisco, CA 94104 ;—~.. 5|] Tel. (415) 464-4300 “ a ||Pax (418) 464-4338 ISS Attorneys for Defendants AT&T CORP., ~~ 7||PACIFIC BELL TELEPHONE COMPANY bw and PACIFIC BELL DIRECTORY iy ° S) ° ~ 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO || CYNTHIA SANDERS, an individual, Case No.: CGC-11-513645 Plaintiff, DEFENDANT PACIFIC BELL DIRECTORY’S ANSWER TO PLAINTIFF’S v. FIRST AMENDED COMPLAINT || AT&T; AT&T Corp.; PACIFIC BELL TELEPHONE COMPANY; PACIFIC BELL Complaint filed: August 24, 2011 || DIRECTORY and DOES 4-10, First Amended Complaint filed: Nov. 4, 2011 Defendants.
Defendant PACIFIC BELL DIRECTORY (“Defendant”) hereby answers the ||First Amended Complaint (“Complaint”) of Plaintiff CYNTHIA SANDERS (‘Plaintiff’) as || follows:
Pursuant to Section 431.30(d) of the California Code of Civil Procedure, || Defendant hereby answers the Complaint filed by Plaintiff by generally denying each and
N oo
every allegation contained therein. Defendant further denies that Plaintiff has been
DEFENDANT PACIFIC BELL DIRECTORY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Case No.: CGC-11-513645
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damaged in any sum whatsoever, or that Plaintiff is entitled to the relief requested or to any other relief, or that Plaintiff has sustained any injury, damage, or loss by reason of any act, omission, or negligence on the part of Defendant, or by reason of any act, omission, or negligence on the part of any of Defendant's agents, servants, or employees. Defendant further denies that it is liable to Plaintiff under any theory, including, without limitation, the theories of liability asserted in the Complaint.
AFFIRMATIVE DEFENSES
Defendant alleges the affirmative defenses set forth herein as to each and every cause of action and claim for relief asserted in the Complaint unless specified otherwise. By pleading these affirmative defenses, Defendant does not assume the burden of proving any fact, issue, or element of a cause of action where such burden belongs to Plaintiff.
The Complaint is vague, ambiguous, indefinite and uncertain. Therefore, Defendant reserves the right to amend or supplement the affirmative defenses asserted herein, and to present evidence supportive of different or additional defenses, upon ascertaining the specific nature of the claims asserted by Plaintiff against Defendant.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
Plaintiffs Complaint, and/or each purported cause of action therein, fails to state a claim upon which relief can be granted.
2 DEFENDANT PACIFIC BELL DIRECTORY’S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Case No.: CGC-11-513645
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SECOND AFFIRMATIVE DEFENSE
(Failure to Exhaust Administrative Remedies) With regard to Plaintiff's First through Fourth causes of action, Defendant is informed and believes and thereon alleges that Plaintiff failed to exhaust statutory administrative remedies with the California Department of Fair Employment and Housing and/or the United States Equal Employment Opportunity Commission, and/or Plaintiff's Causes of Action rely on allegations which were not contained in a timely complaint filed with the California Department of Fair Employment and Housing and/or the United States Equal Employment Opportunity Commission. See Cal. Gov't Code §§ 12960, 12965; see also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724. The Court lacks subject matter jurisdiction over any discrimination and/or retaliation claims and allegations in the Complaint which were not contained in a timely administrative charge filed by Plaintiff against Defendant with the California Department of Fair Employment and Housing and/or the United States Equal Employment Opportunity Commission.
THIRD AFFIRMATIVE DEFENSE
(Federal Labor Management Relations Act and National Labor Relations Act Preemption) Plaintiff's claims are barred and should be dismissed to the extent they are preempted by the federal Labor Management Relations Act, 29 U.S.C. § 185, and/or the National Labor Relations Act, 29 U.S.C. § 161, and to the extent this Court otherwise lacks subject matter jurisdiction. Defendant is informed and believes and thereon alleges that resolution of Plaintiffs claims (as set forth in each Cause of Action) are substantially dependent on an analysis of the terms and conditions of the collective bargaining agreement(s) that governed Plaintiff's employment and are therefore preempted by Section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a)).
3 DEFENDANT PACIFIC BELL DIRECTORY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Case No.: CGC-11-513645
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A PROFRSSIONAL CORPORATION
CALIFORNIA
MILLER Law Group oO oO N OO oO FF WD LY
FOURTH AFFIRMATIVE DEFENSE
(Failure to Exhaust the Grievance-Arbitration Procedure under the Collective Bargaining Agreement) Defendant is informed and believes and thereon alleges that Plaintiff's claims are barred by Plaintiff's failure to exhaust the grievance-arbitration procedures contained in the collective bargaining agreement governing Plaintiffs employment, and/or Plaintiff's failure to file a timely suit under Section 301 of the Labor Management Relations Act (29 U.S.C. §§ 160(b), 185).
FIFTH AFFIRMATIVE DEFENSE
(Statute of Limitations) Plaintiff's claims are barred, in whole or in part, by the applicable statutes of limitations including, but not limited to, those limitations set forth in California Code of Civil Procedure §§ 335.1, 338, 339(1) and 343, California Government Code §§ 12960 and 12965(b), Section 301 of the Labor Management Relations Act (29 U.S.C. § 185), 29 U.S.C. § 160(b) and 29 U.S.C. § 2617(c)(1) (as well as any other statutes that might include applicable time bars).
SIXTH AFFIRMATIVE DEFENSE
(Equitable Doctrines of Waiver, Estoppe!, Unclean Hands and Laches) Plaintiff's claims are barred, in whole or in part, by the equitable doctrines of waiver, laches, unclean hands, and/or estoppel.
DEFENDANT PACIFIC BELL DIRECTORY’S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Case No.: CGC-11-513645
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SEVENTH AFFIRMATIVE DEFENSE
(Workers’ Compensation Preemption) Defendant alleges that if Plaintiff has suffered any physical and/or emotional injury related to her work for Defendant, her exclusive remedy for such injury is provided by California Labor Code section 3600, et seq.
EIGHTH AFFIRMATIVE DEFENSE
(Failure to Mitigate) Defendant is informed and believes and thereon alleges that Plaintiff has failed to mitigate or attempt to mitigate her damages, if in fact any damages have been or will be sustained, and any recovery by Plaintiff must be diminished or barred by reason thereof. The following allegations are likely to have evidentiary support after a reasonable opportunity for further investigation and/or discovery: To the extent Plaintiff is seeking to recover jost wages, Plaintiff could, by diligence, have mitigated any alleged damages. Plaintiff failed and refused to act with sufficient diligence to mitigate such damages.
NINTH AFFIRMATIVE DEFENSE
(ERISA Preemption Under Section 514(a)) Plaintiffs Complaint is preempted by federal law under the Employment Retirement Income Security Act (‘ERISA’), 29 U.S.C. § 1001, ef seq., to the extent Plaintiff contends Defendant’s employment-related decisions were unlawfully based on or affected by determinations of eligibility for benefits under a plan regulated by ERISA or were motivated by determinations of eligibility for benefits under a plan regulated by ERISA or were motivated by a desire to prevent or otherwise interfere with the attainment of such 5 DEFENDANT PACIFIC BELL DIRECTORY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Case No.: CGC-11-513645
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benefits under a plan regulated by ERISA, including, but not limited to, any applicable shortterm disability plan or long-term disability plan.
TENTH AFFIRMATIVE DEFENSE
(ERISA Preemption Under Section 503(a)) Plaintiffs Complaint is preempted by federal law under ERISA, 29 U.S.C. § 1001, et seq., to the extent Plaintiff seeks to recover “benefits” in this action, including any employee benefits allegedly due or the clarification of rights to such benefits under a plan regulated by ERISA, including, but not limited to, any applicable short-term disability plan or long-term disability plan.
ELEVENTH AFFIRMATIVE DEFENSE
(Avoidable Consequences) Plaintiffs claims are barred, in whole or in part, because Defendant had in place and implemented in good faith, policies, procedures and other measures that were reasonably designed to prevent workplace discrimination and _ retaliation, Plaintiff unreasonably failed to invoke those measures or to take other corrective action regarding any perceived discrimination or retaliation, and, to the extent Plaintiff suffered any harm (which Defendant denies), the reasonable use of such policies, procedures and other measures would have prevented some or all of that harm.
TWELFTH AFFIRMATIVE DEFENSE
(Failure to State a Claim — Punitive Damages) Plaintiff's claim for punitive damages fails to state a claim under California Civil Code § 3294 because neither Defendant, nor its officers, directors or managing agents 6 DEFENDANT PACIFIC BELL DIRECTORY'S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Case No.: CGC-11-513645
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engaged in any wrongful conduct vis-a-vis Plaintiff. To the extent any of the wrongful conduct Plaintiff alleges in her Complaint occurred, these acts were neither performed nor ratified by Defendant's managing agents, directors, or officers. See White v. Ultramar, Inc.
(1999) 21 Cal.4th 563.
WHEREFORE, Defendant demands judgment in its favor, costs of suit, and attorneys’ fees, and all other proper relief.
Dated: June 22, 2012 MILLER LAW GROUP A Professignal Corporation dia Katherine L. Kettler Attorneys for Defendant PACIFIC BELL DIRECTORY
By:
4846-9486-9007, v. 1 7 DEFENDANT PACIFIC BELL DIRECTORY'S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Case No.: CGC-11-513645
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PROOF OF SERVICE
I, Tracy Wilson, declare that | am employed at Miller Law Group, A Professional Corporation, whose address is 111 Sutter Street, Suite 700, San Francisco, CA 94104; | am over the age of eighteen (18) years and am not a party to this action. On the below date, by the method noted below, | served the following document(s):
DEFENDANT PACIFIC BELL DIRECTORY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT on the interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope addressed as follows:
Spencer F. Smith, Esq. Attorney for Plaintiff: Cynthia Sanders Dow W. Patten, Esq.
Smith Patten 353 Sacramento Street, Suite 1120 San Francisco, CA 94111 Tel: (415) 402-0084 Fax: (415) 520-0104 X] BY MAIL: By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the ordinary course of business for collection and mailing on this date at Miller Law Group, 111 Sutter Street, San Francisco, California. | declare that | am readily familiar with the business practice of Miller Law Group for collection and processing of correspondence for mailing with the United States Postal Service and that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business.
x i declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on June 22, 2012 at San celine iL, Nos dA [ Trae Wilson — 1 PROOF OF SERVICE San Francisco County Court Case No. CGC-11-513645
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