Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00907-DMS-AJB

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William T. Earley, State Bar No. 144877 Liseanne R. Kelly, State Bar No. 211782 LUCE, FORWARD, HAMILTON & SCRIPPS LLP 600 West Broadway, Suite 2600 San Diego, California 92101-3372 Telephone No.: 619.236.1414 Fax No.: 619.232.8311 Attorneys for Pacific Hospitality Group, Inc., Brian Harkins, Luis Barrios, Rodrigo Garcia, Robert Snee, Emy Eufracio, Greg Brownen, Fred Grand, and William McWethy

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SAN DIEGO DIVISION DICKEY GAINES, Plaintiff, v. PACIFIC HOSPITALITY GROUP INC., BEST WESTERN HACIENDA HOTEL, BRIAN HARKINS, LUIS BARRIOS, RODRIGO GARCIA, ROBERT SNEE, EMY EUFRACIO, GREG BROWNEN, FRED GRAND, WILLIAM McWETHY, JOHN DOES, Defendants. Case No. 08 CV 00907 DMS AJB DEFENDANT WILLIAM MC WETHY'S ANSWER TO PLAINTIFF'S CIVIL COMPLAINT AND JURY DEMAND Complaint Filed: May 22, 2008

Defendant William McWethy ("Defendant"), hereby responds to plaintiff's Civil Complaint and Jury Demand filed in the United States District Court, Southern District of California, San Diego Division. 1. Answering the allegations of paragraph 1, Defendant is informed and believes that this

is an accurate description of the nature of plaintiff's lawsuit. 2. Answering the allegations of paragraph 2, Defendant is informed and believes that the

Court has jurisdiction and venue is proper. 3. Answering the allegations of paragraph 3, Defendant admits that plaintiff was

employed as a Landscaper in the Landscaping Department at the Best Western Hacienda Hotel, 4041 1
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Harney Street, San Diego, California 92110, and that plaintiff acted as a crew leader in Landscaping. Defendant denies that plaintiff was driven from his employment. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis denies the remaining allegations therein. 4. Answering the allegations of paragraph 4, Defendant admits that Pacific Hospitality

Group Inc, is a California Corporation located at 11250 El Camino Real, Suite 100, San Diego, California, duly incorporated on December 4, 2003, No. C2437645. Except as expressly admitted, Defendant denies the remaining factual allegations in paragraph 4. 5. Answering the allegations of paragraph 5, Defendant admits that Best Western

Hacienda Hotel is located at 4041 Harney Street, San Diego, California 92110 and that the hotel is managed by Luis Barrios. Defendant denies that Best Western Hacienda Hotel is a subsidiary of Pacific Hospitality Group as Best Western Hacienda Hotel is not a legal entity. Except as expressly admitted, Defendant denies the remaining factual allegations in paragraph 5. 6. Answering the allegations of paragraph 6, Defendant admits that Brian Harkins is a

white male and is the CFO for Pacific Hospitality Group. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the remaining allegations. 7. Answering the allegations of paragraph 7, Defendant admits that Luis Barrios is the

General Manager of the Best Western Hacienda Hotel. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the remaining allegations. 8. Answering the allegations of paragraph 8, admits that Mr. Garica is Hispanic and is the

Director of Landscaping. As to the remaining allegations, Defendant has no personal knowledge regarding these allegatio ns contained therein and on that basis lacks knowledge or information sufficient to admit or deny the remaining allegations. 9. Answering the allegations of paragraph 9, Defendant admits that Mr. Snee is a white

male and is employed in accounting. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis lacks knowledge or 2
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information sufficient to admit or deny the remaining allegations. 10. Answering the allegations of paragraph 10, Defe ndant admits that Ms. Eufracio is

Hispanic and is the Head of Housekeeping. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the remaining allegations. 11. Answering the allegations of paragraph 11, Defendant admits that Mr. Brownen is a

white male and was employed in Engineering. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the remaining allegations. 12. Answering the allegations of paragraph 12, Defendant admits that Mr. Grand is the

President of Pacific Hospitality Group. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the remaining allegations. 13. Answering the allegations of paragraph 13, Defendant admits that he is a citizen of the

United States and is a white male. Defendant further admits that he is an owner of Harney Hospitality LP which owns the hotel and that he has decision- making authority over hotel operations. As to the remaining allegations, except as expressly admitted, Defendant denies the remaining factual allegations. 14. Answering the allegations of paragraph 14, Defendant is unable to admit or deny legal

allegations or conclusions of law regarding plaintiff's claims, as said allegations are not allegations of fact to which an admission or denial is required by the Federal Rules of Civil Procedure. With respect to any factual allegations in paragraph 14, Defendant denies each and every allegation of said paragraph. 15. Answering the allegations of paragraph 15, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 16. 17. Answering the allegations of paragraph 16, Defendant denies the allegations therein. Answering the allegations of paragraph 17, Defendant has no personal knowledge 3
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regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 18. Answering the allegations of paragraph 18, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 19. Answering the allegations of paragraph 19, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 20. Answering the allegations of paragraph 20, Defendant denies each and every factual

allegation of the paragraph. 21. Answering the allegations of paragraph 21, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 22. 23. Answering the allegations of paragraph 22, Defendant admits the allegations therein. Answering the allegations of paragraph 23, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 24. Answering the allegations of paragraph 24, Defendant admits that the handbook has a

provision forbidding retaliation for complaints of harassment. As to the remaining allegations, Defendant has no personal knowledge regarding these allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the remaining allegations. 25. Answering the allegations of paragraph 25, Defendant admits the employee handbook

sets forth codes of conduct. 26. Answering the allegations of paragraph 26, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 27. Answering the allegations of paragraph 27, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient 4
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to admit or deny the allegations. 28. 29. Answering the allegations of paragraph 28, Defendant admits the allegations therein. Answering the allegations of paragraph 29, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 30. Answering the allegations of paragraph 30, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 31. Answering the allegations of paragraph 31, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 32. Answering the allegations of paragraph 32, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 33. Answering the allegations of paragraph 33, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 34. Answering the allegations of paragraph 34, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 35. Answering the allegations of paragraph 35, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 36. Answering the allegations of paragraph 36, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 37. Answering the allegations of paragraph 37, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient 5
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to admit or deny the allegations. 38. Answering the allegations of paragraph 38, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 39. Answering the allegations of paragraph 39, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 40. Answering the allegations of paragraph 40, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 41. Answering the allegations of paragraph 41, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 42. Answering the allegations of paragraph 42, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 43. Answering the allegations of paragraph 43, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 44. Answering the allegations of paragraph 44, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 45. Answering the allegations of paragraph 45, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 46. Answering the allegations of paragraph 46, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 6
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47.

Answering the allegations of paragraph 47, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 48. Answering the allegations of paragraph 48, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 49. Answering the allegations of paragraph 49, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 50. Answering the allegations of paragraph 50, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 51. Answering the allegations of paragraph 51, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 52. Answering the allegations of paragraph 52, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 53. Answering the allegations of paragraph 53, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 54. Answering the allegations of paragraph 54, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 55. Answering the allegations of paragraph 55, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 56. Answering the allegations of paragraph 56, Defendant has no personal knowledge 7
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regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 57. Answering the allegations of paragraph 57, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 58. Answering the allegations of paragraph 58, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 59. Answering the allegations of paragraph 59, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 60. Answering the allegations of paragraph 60, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 61. Answering the allegations of paragraph 61, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allega tions. 62. Answering the allegations of paragraph 62, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 63. Answering the allegations of paragraph 63, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 64. Answering the allegations of paragraph 64, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 65. Answering the allegations of paragraph 65, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient 8
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to admit or deny the allegations. 66. Answering the allegations of paragraph 66, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 67. 68. Answering the allegations of paragraph 67, Defendant denies the allegations therein. Answering the allegations of paragraph 68, Defendant admits there is a policy

prohibiting unlawful discrimination and harassment. Defendant denies the remaining allegations. 69. 70. Answering the allegations of paragraph 69, Defendant admits the allegations therein. Answering the allegations of paragraph 70, Defendant has no personal knowledge

regarding the allega tions contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 71. Answering the allegations of paragraph 71, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 72. Answering the allegations of paragraph 72, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 73. Answering the allegations of paragraph 73, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 74. Answering the allegations of paragraph 74, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 75. Answering the allegations of paragraph 75, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 76. Answering the allegations of paragraph 76, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient 9
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to admit or deny the allegations. 77. Answering the allegations of paragraph 77, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 78. Answering the allegations of paragraph 78, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 79. Answering the allegations of paragraph 79, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 80. Answering the allegations of paragraph 80, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 81. Answering the allegations of paragraph 81, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 82. Answering the allegations of paragraph 82, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 83. Answering the allegations of paragraph 83, Defendant has no personal knowledge

regarding the a llegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 84. Answering the allegations of paragraph 84, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 85. Answering the allegations of paragraph 85, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 10
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86.

Answering the allegations of paragraph 86, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 87. Answering the allegations of paragraph 87, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 88. Answering the allegations of paragraph 88, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 89. Answering the allegations of paragraph 89, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 90. Answering the allegations of paragraph 90, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 91. Answering the allegations of paragraph 91, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks kno wledge or information sufficient to admit or deny the allegations. 92. Answering the allegations of paragraph 92, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 93. Answering the allegations of paragraph 93, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 94. Answering the allegations of paragraph 94, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 95. Answering the allegations of paragraph 95, Defendant has no personal knowledge 11
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regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 96. Answering the allegations of paragraph 96, Defendant is unable to admit or deny legal

allegations or conclusions of law regarding plaintiff's claims, as said allegations are not allegations of fact to which an admission or denial is required by the Federal Rules of Civil Procedure. Defendant lacks knowledge or information sufficient to admit or deny such allegations, and on that basis, Defendant denies the remaining factual allegations. 97. Answering the allegations of paragraph 97, Defendant is unable to admit or deny legal

allegations or conclusions of law regarding plaintiff's claims, as said a llegations are not allegations of fact to which an admission or denial is required by the Federal Rules of Civil Procedure. Defendant lacks knowledge or information sufficient to admit or deny such allegations, and on that basis, Defendant denies the rema ining factual allegations. 98. Answering the allegations of paragraph 98, Defendant is unable to admit or deny legal

allegations or conclusions of law regarding plaintiff's claims, as said allegations are not allegations of fact to which an admission or denial is required by the Federal Rules of Civil Procedure. Defendant lacks knowledge or information sufficient to admit or deny such allegations, and on that basis, Defendant denies the remaining factual allegations. 99. Answering the allegations of paragraph 99, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 100. Answering the allegations of paragraph 100, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 101. Answering the allegations of paragraph 101, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 102. Answering the allegations of paragraph 102, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient 12
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to admit or deny the allegations. 103. Answering the allegations of paragraph 103, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 104. Answering the allegations of paragraph 104, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 105. Answering the allegations of paragraph 105, Defendant admits that there is a

communications and grievances policy. 106. Answering the allegations of paragraph 106, Defendant admits that a portion of the

grievance process involves filing a written complaint with the General Manager which may then be appealed to the corporate office. 107. Answering the allegations of paragraph 107, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 108. Answering the allegations of paragraph 108, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 109. Answering the allegations of paragraph 109, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 110. Answering the allegations of paragraph 110, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 111. Answering the allegations of paragraph 111, Defendant has no personal knowledge

regarding the a llegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 112. Answering the allegations of paragraph 112, Defendant admits the allegations therein. 13
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113.

Answering the allegations of paragraph 113, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 114. Answering the allegations of paragraph 114, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 115. Answering the allegations of paragraph 115, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 116. Answering the allegations of paragraph 116, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 117. Answering the allegations of paragraph 117, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 118. Answering the allegations of paragraph 118, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 119. Answering the allegations of paragraph 119, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 120. Answering the allegations of paragraph 120, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 121. Answering the allegations of paragraph 121, Defendant has no personal knowledge

regarding the a llegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 122. Answering the allegations of paragraph 122, Defendant has no personal knowledge 14
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regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 123. Answering the allegations of paragraph 123, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or informatio n sufficient to admit or deny the allegations. 124. Answering the allegations of paragraph 124, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 125. Answering the allegations of paragraph 125, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 126. Answering the allegations of paragraph 126, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 127. Answering the allegations of paragraph 127, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 128. Answering the allegations of paragraph 128, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 129. Answering the allegations of paragraph 129, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 130. Answering the allegations of paragraph 130, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 131. Answering the allegations of paragraph 131, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient 15
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to admit or deny the allegations. 132. Answering the allegations of paragraph 132, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 133. Answering the allegations of paragraph 133, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 134. Answering the allegations of paragraph 134, admits that a 13 page fax from plaintiff

was received on November 1, 2007. Defendant denies the remaining factual allegations. 135. Answering the allegations of paragraph 135, Defendant admits the allegations on

information and belief. 136. Answering the allegations of paragraph 136, Defendant admits the allegations on

information and belief. 137. Answering the allegations of paragraph 137, Defendant is informed and believes that

plaintiff sent a four page letter to Fred Grand dated November 8, 2007 wherein plaintiff disagreed with the characterization of his resignation. 138. Answering the allegations of paragraph 138, Defendant is informed and believes that

plaintiff disagreed with Mr. Harkins overseeing the investigation and so stated in his letter. 139. Answering the allegations of paragraph 139, Defendant is informed and believes that

plaintiff refused to participate in the investigation. Defendant denies all remaining allegations. 140. Answering the allegations of paragraph 140, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 141. Answering the allegations of paragraph 141, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 142. Answering the allegations of paragraph 142, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient 16
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to admit or deny the allegations. 143. Answering the allegations of paragraph 143, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 144. Answering the allegations of paragraph 144, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 145. Answering the allegations of paragraph 145, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 146. Answering the allegations of paragraph 146, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 147. Answering the allegations of paragraph 147, Defendant has no personal knowledge

regarding the allegations contained therein and o n that basis lacks knowledge or information sufficient to admit or deny the allegations. 148. Answering the allegations of paragraph 148, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 149. Answering the allegations of paragraph 149, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 150. Answering the allegations of paragraph 150, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 151. Answering the allegations of paragraph 151, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 17
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152.

Answering the allegations of paragraph 152, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 153. Answering the allegations of paragraph 153, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 154. Answering the allegations of paragraph 154, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 155. Answering the allegations of paragraph 155, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 156. Answering the allegations of paragraph 156, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 157. Answering the allegations of paragraph 157, Defendant is informed and believes that

this allegation is true. 158. Answering the allegations of paragraph 158, plaintiff references the subject of a

confidential mediation in violation of the mediation rules. As such, Defendant is unable to admit or deny the allegation. 159. Answering the allegations of paragraph 159, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 160. Answering the allegations of paragraph 160, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 161. Answering the allegations of paragraph 161, Defendant is unable to admit or deny legal

allegations or conclusions of law regarding plaintiff's claims, as said allegations are not allegations of 18
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fact to which an admission or denial is required by the Federal Rules of Civil Procedure. As to the remaining allegations in paragraph, except as expressly admitted Defendant denies the remaining factual allegations. 162. Answering the allegations of paragraph 162, Defendant is unable to admit or deny legal

allegations or conclusions of law regarding plaintiff's claims, as said allegations are not allegations of fact to which an admission or denial is required by the Federal Rules of Civil Procedure. 163. Answering the allegations of paragraph 163, Defendant is unable to admit or deny legal

allegations or conclusions of law regarding plaintiff's claims, as said allegations are not allegations of fact to which an admission or denial is required by the Federal Rules of Civil Procedure. Defendant denies each and every factual allegation of the paragraph. 164. Answering the allegations of paragraph 164, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or information sufficient to admit or deny the allegations. 165. Answering the allegations of paragraph 165, Defendant denies each and every factual

allegation of the paragraph. 166. Answering the allegations of paragraph 166, Defendant has no personal knowledge

regarding the allegations contained therein and on that basis lacks knowledge or informa tion sufficient to admit or deny the allegations. 167. Answering the allegations of paragraph 167, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-166. 168. Answering the allegations of paragraph 168, Defendant denies each and every

allegation of the paragraph. 169. Answering the allegations of paragraph 169, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 169. 170. Answering the allegations of paragraph 170, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 170. 19
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171.

Answering the allegations of paragraph 171, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-170. 172. Answering the allegations of paragraph 172, Defendant denies each and every

allegation of the paragraph. 173. Answering the allegations of paragraph 173, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 173. 174. Answering the allegations of paragraph 174, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 174. 175. Answering the allegations of paragraph 175, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-174. 176. Answering the allegations of paragraph 176, Defendant denies each and every

allegation of the paragraph 176. 177. Answering the allegations of paragraph 177, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 177. 178. Answering the allegations of paragraph 178, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 178. 179. Answering the allegations of paragraph 179, Defendant incorporates by reference its

responses to Paragraph 1-178. 180. Answering the allegations of paragraph 180, Defendant denies each and every

allegation of the paragraph 180. 181. Answering the allegations of paragraph 181, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 181. 182. Answering the allegations of paragraph 182, Defendant admits that plaintiff is suing 20
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defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 182. 183. Answering the allegations of paragraph 183, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-183. 184. Answering the allegations of paragraph 184, Defendant denies each and every

allegation of the paragraph 184. 185. Answering the allegations of paragraph 185, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 185. 186. Answering the allegations of paragraph 186, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 186. 187. Answering the allegations of paragraph 187, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-186. 188. Answering the allegations of paragraph 188, Defendant denies each and every

allegation of the paragraph 188. 189. Answering the allegations of paragraph 189, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 189. 190. Answering the allegations of paragraph 190, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 190. 191. Answering the allegations of paragraph 191, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-190. 192. Answering the allegations of paragraph 192, Defendant denies each and every

allegation of the paragraph 192. 193. Answering the allegations of paragraph 193, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that 21
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plaintiff suffered damages and denies the remaining factual allegations in paragraph 193. 194. Answering the allegations of paragraph 194, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-192. 195. Answering the allegations of paragraph 195, Defendant denies each and every

allegation of the paragraph 195. 196. Answering the allegations of paragraph 196, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 196. 197. Answering the allegations of paragraph 197, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 197. 198. Answering the allegations of paragraph 198, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-198. 199. Answering the allegations of paragraph 199, Defendant denies each and every

allegation of the paragraph 199. 200. Answering the allegations of paragraph 200, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 200. 201. Answering the allegations of paragraph 201, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 201. 202. Answering the allegations of paragraph 202, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-201. 203. Answering the allegations of paragraph 203, Defendant denies each and every

allegation of the paragraph 203. 204. Answering the allegations of paragraph 204, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 204. 22
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205.

Answering the allegations of paragraph 205, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-204. 206. Answering the allegations of paragraph 206, Defendant denies each and every

allegation of the paragraph 206. 207. Answering the allegations of paragraph 207, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 207. 208. Answering the allegations of paragraph 208, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-207. 209. Answering the allegations of paragraph 209, Defendant denies each and every

allegation of the paragraph 209. 210. Answering the allegations of paragraph 210, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 210. 211. Answering the allegations of paragraph 211, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-210. 212. Answering the allegations of paragraph 212, Defendant denies each and every

allegation of the paragraph 212. 213. Answering the allegations of paragraph 213, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 213. 214. Answering the allegations of paragraph 214, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-213. 215. Answering the allegations of paragraph 215, Defendant denies each and every

allegation of the paragraph 215. 216. Answering the allegations of paragraph 216, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 216. 23
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217.

Answering the allegations of paragraph 217, Defendant re-alleges and incorporates by

reference its responses to paragraphs 1-216. 218. Answering the allegations of paragraph 218, Defendant denies each and every

allegation of the paragraph 218. 219. Answering the allegations of paragraph 219, Defendant admits that plaintiff is suing

defendants and seeking damages as claimed. Except as expressly admitted, Defendant denies that plaintiff suffered damages and denies the remaining factual allegations in paragraph 219. WITHOUT WAIVING ANY OF THE FOREGOING, ANSWERING DEFENDANT, FOR ITS AFFIRMATIVE DEFENSES TO THE COMPLAINT, ALLEGES AS FOLLOWS: The following separate affirmative defenses are asserted to the Complaint, and to each purported claim therein brought against Defendant. 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 rests with plaintiff. Moreover, nothing stated herein is intended or shall be construed as an admission that any particular issue or subject matter is relevant to plaintiff's allegations. AFFIRMATIVE DEFENSES TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF As separate affirmative defenses to the Complaint, and to each purported cause of action therein, Defendant alleges: FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) The Complaint fails to state facts sufficient to constitute a cause or causes of action against this answering Defendant. SECOND AFFIRMATIVE DEFENSE (Uncertainty) The Complaint is vague, uncertain, ambiguous and unintelligible.

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THIRD AFFIRMATIVE DEFENSE (Failure to Identify Specific Statutory/Constitutional Provisions) Some or all of the claims for damages in the Complaint are barred in that plaintiff has failed to identify, with the requisite degree of specificity, any statutory and/or constitutional provision which has been expressly violated by any act of Defendant. FOURTH AFFIRMATIVE DEFENSE (Statutes of Limitation) Defendant is informed and believes and thereon alleges that the Complaint, and each cause of action therein, is barred by each and every applicable statute of limitations, including, but not limited to, California Code of C ivil Procedure sections 335.1, 338(a), 339(1), 340(a), 340(c), 343, California Government Code section 12960 and 12965(a) and (b), and 28 USC § 1658(a). FIFTH AFFIRMATIVE DEFENSE (Failure to Commence Suit Timely) Some or all of the claims for damages in the Complaint are barred in that plaintiff failed to timely file his claims after receiving notice from the Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission. SIXTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiff is estopped by his own conduct and omissions from asserting any claims, damages or seeking other relief from Defendant. SEVENTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff, by his actions and/or omissions, knowingly, voluntarily and willingly waived any rights he might otherwise have had against Defendant. EIGHTH AFFIRMATIVE DEFENSE (Laches) Some or all of the causes of actions in the Complaint are barred by the doctrine of laches.

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NINTH AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiff has not been damaged. However, to the extent plaintiff proves otherwise, plaintiff has failed to take adequate steps to minimize, alter, reduce or otherwise diminish his damages, if any, with respect to the matters alleged in the Complaint, and by reason of the foregoing, plaintiff is barred from the recovery of damages, or damages should be dismissed based on plaintiff's failure to mitigate. TENTH AFFIRMATIVE DEFENSE (Failure to Exhaust Administrative Remedies) Some or all of the claims for damages in the Complaint are barred in that plaintiff failed to timely or properly exhaust his administrative remedies, including without limiting, remedies under the California Fair Employment Housing Act, Title VII of the Civil Rights Act of 1964, and/or the California Labor Code. ELEVENTH AFFIRMATIVE DEFENSE (Exclusive Statutory Remedy) Some or all of the claims for damages in the Complaint are barred in that plaintiff's exclusive remedy is statutory under Government Code sections 12940 et seq., and there is no common law remedy or other statutory remedy available to plaintiff. TWELFTH AFFIRMATIVE DEFENSE (Workers' Compensation Preemption) Some or all of the claims for damages in the Complaint are barred by the provisions of the California Labor Code sections 3200 et seq., the Workers' Compensation laws, which provide plaintiff's exclusive remedy. THIRTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) Defendant is informed and believes and thereon alleges that plaintiff, by his own conduct, acts, and/or omissions, is barred by his unclean hands and shared fault from all legal and equitable relief requested in the Complaint. /// 26
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FOURTEENTH AFFIRMATIVE DEFENSE (At Will Employment) Some or all of the claims for damages in the Complaint are barred in that plaintiff's employment relationship with defendant was for an unspecified period of time, and was at will pursuant to California Labor Code section 2922. FIFTEENTH AFFIRMATIVE DEFENSE (Comparative Fault) Plaintiff is barred, in whole or in part, by his own fault from any legal or equitable relief against Defendant. SIXTEENTH AFFIRMATIVE DEFENSE (Contributory Fault) The loss, if any, allegedly sustained by plaintiff was proximately caused or contributed to by the negligence, improper conduct or intervening acts of plaintiff. SEVENTEENTH AFFIRMATIVE DEFENSE (Apportionment) Defendant is not legally responsible for any damages claimed by plaintiff. If, however, defendant is found to be le gally responsible, Defendant's legal responsibility is not the sole and proximate cause of any injury, and damages awarded to plaintiff, if any, should be apportioned according to the respective fault and legal responsibility of all parties, persons and entities, and/or the agents, servants and employees who contributed to and/or caused said incidents according to proof presented at the time of trial. EIGHTEENTH AFFIRMATIVE DEFENSE (No Discrimination or Retaliation) Some or all of the claims for damages in plaintiff's Complaint are barred in that defendant's actions in connection with the matter alleged were done in a non discriminatory and non retaliatory manner. /// /// 27
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NINETEENTH AFFIRMATIVE DEFENSE (Valid Business Purposes) Plaintiff's claims are barred for the reason that the alleged conduct of Defendant was at all times undertaken in the good faith exercise of a valid business purpose. TWENTIETH AFFIRMATIVE DEFENSE (Managerial Privilege or Immunity) Some or all of the claims in the complaint are barred by the doctrine of managerial privilege or immunity. TWENTY-FIRST AFFIRMATIVE DEFENSE (Conduct Privileged) Some or all of the claims for damages in the Complaint are barred in that Defendant's actions in connection with the matters alleged were done in good faith and based on its legitimate economic interest and within the course and scope of its authority and were, therefore, privileged. TWENTY-SECOND AFFIRMATIVE DEFENSE (Constitutional Privilege) Some or all of the claims for damages in the Complaint are barred because the statements and/or acts complained of are privileged under the constitution of the United States and the constitution of the State of California. TWENTY-THIRD AFFIRMATIVE DEFENSE (Conduct Justified) All decisions and actions regarding plaintiff's employment with Defendant were done in the exercise of proper managerial discretion, in good faith, and based on legitimate reasons. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Defendant's Full Performance) Defendant is informed and believes and thereon alleges that he has performed and fully discharged any and all obligations and legal duties to plaintiff pertinent to the matters alleged in plaintiff's Complaint. /// 28
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TWENTY-FIFTH AFFIRMATIVE DEFENSE (No Punitive/Exemplary Damages) Under the applicable law and the facts of this case, plaintiff is not entitled to punitive/exemplary damages. Moreover, punitive/exemplary damages such as those claimed by plaintiff are unconstitutional under the California Constitution and the United States Constitution. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Not Entitled to Attorneys' Fees) The Complaint, and each cause of action contained therein, fails to allege any facts or any legal theory sufficient to entitle plaintiff to recover attorneys' fees in this action. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Lack of Causation) None of the acts, conduct and/or omissions attributed to defendant in the Complaint may be regarded as the actual or proximate cause of any damages plaintiff seeks to recover. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (McWethy Not Plaintiff's Employer) Some or all of the claims for damages in the Complaint are barred because Defendant was not plaintiff's employer. TWENTY-NINTH AFFIRMATIVE DEFENSE (No Conspiracy) Some or all of plaintiff's claims fail in that some or all of the defendants who allegedly conspired with Pacific Hospitality Group, Inc. were agents or employees of Pacific Hospitality Group, Inc. THIRTIETH AFFIRMATIVE DEFENSE (Consent) Plaintiff consented to and approved all or some of the acts and omissions about which plaintiff now complains. Accordingly, plaintiff is barred from pursuing this action. /// /// 29
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