Free Answer to Complaint - District Court of California - California

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XAVIER A.M. LAVOIPIERRE (SBN 132798) LAW OFFICE OF XAVIER A.M. LAVOIPIERRE 809 Broadway, Suite 5 P. O. Box 256 Sonoma, CA 95476-0256 Tel: (707)938-1611 Fax: (707)938-4223 Attorney for Defendants SAN RAFAEL TOUCHLESS CAR WASH PATTY SHIMEK and MIKE SMITH

UNITED STATES DISTRICT COURT IN AND FOR THE COUNTY OF ALAMEDA

REMIGIO EDMUNDO ALARCON, et al. Plaintiffs, v. SHIM, INC., et al., Defendants.

Case No. C 07-2894 MEJ ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

COME NOW the Defendants PATTY SHIMEK and MIKE SMITH, and in answer to Plaintiffs' First Amended Complaint on file herein, admit, deny and allege as follows: 1. Responding to Paragraph 1 of the First Amended Complaint, defendants are informed and

believe that the allegations contained therein are true. 2. Responding to Paragraph 2 of the First Amended Complaint, defendants are informed and

believe that the allegations contained therein are true. 3. Responding to Paragraph 3 of the First Amended Complaint, defendants admit the

allegations contained therein. /// /// Case No. C 07-2894 MEJ
ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

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4.

Responding to Paragraph 4 of the First Amended Complaint, defendants admit that Roy

Shimek, Patty Shimek and Mike Smith are general partners of San Rafael Touchless Car Wash, but deny the remaining allegations contained therein. 5. Responding to Paragraph 5 of the First Amended Complaint, defendants are informed and

believe that Berkeley Touchless Car Wash is a fictitious name once used by Canadian-American Oil Co., and now used by Shim, Inc. 6. Responding to Paragraph 3 of the Complaint, defendant admits that this Court has

personal jurisdiction as set forth in said paragraph, but denies that defendant is liable to plaintiff pursuant to any of the causes of action set forth in plaintiff's Complaint. 4. Responding to Paragraph 4 of the Complaint, defendant admits that venue is proper in

this district as set forth in said paragraph, but denies that defendant is liable to plaintiff pursuant to any of the causes of action set forth in plaintiff's Complaint. 5. Responding to Paragraph 5 of the Complaint, defendant admits that this case is subject to

district-wide assignment. Except as so admitted, defendant denies each and every allegation contained therein. For the convenience of the parties, witnesses and attorneys, defendant hereby requests that this case remain assigned to the San Francisco division. 6. Responding to Paragraph 6 of the First Amended Complaint, defendants lack sufficient

knowledge or information upon which to form a belief as to the truth or falsity of the allegations of said paragraph, and on that basis denies each and every allegation contained therein. 7. Responding to Paragraph 7 of the First Amended Complaint, defendants lack sufficient

knowledge or information upon which to form a belief as to the truth or falsity of the allegations of said paragraph, and on that basis denies each and every allegation contained therein. 8. Responding to Paragraph 8 of the First Amended Complaint, defendants admit the

allegations contained therein. 9. Responding to Paragraph 9 of the First Amended Complaint, defendants admit the

allegations contained therein. /// /// Case No. C 07-2894 MEJ
ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

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10.

Responding to Paragraph 10 of the First Amended Complaint, defendants lack sufficient

knowledge or information upon which to form a belief as to the truth or falsity of the allegations of said paragraph, and on that basis denies each and every allegation contained therein. 11. Responding to Paragraph 11 of the First Amended Complaint, defendants lack sufficient

knowledge or information upon which to form a belief as to the truth or falsity of the allegations of said paragraph, and on that basis denies each and every allegation contained therein. 12. Responding to Paragraph 12 of the First Amended Complaint, defendants lack sufficient

knowledge or information upon which to form a belief as to the truth or falsity of the allegations of said paragraph, and on that basis denies each and every allegation contained therein. 13. Responding to Paragraph 13 of the First Amended Complaint, defendants admit the

allegations contained therein. 14. Responding to Paragraph 14 of the First Amended Complaint, defendants admit the

allegations contained therein. 15. Responding to Paragraph 15 of the First Amended Complaint, defendants deny each and

every allegation contained therein. 16. Responding to Paragraph 16 of the First Amended Complaint, defendants deny each and

every allegation contained therein. 17. Responding to Paragraph 17 of the First Amended Complaint, defendants deny that all

plaintiffs were and/or are employed by all defendants. 18. Responding to Paragraph 18 of the First Amended Complaint, defendants incorporate by

reference, as though set forth fully herein, their responses to Paragraphs 1 through 17 of the First Amended Complaint. 19. Responding to Paragraph 19 of the First Amended Complaint, defendants deny each and

every allegation contained therein. 20. Responding to Paragraph 20 of the First Amended Complaint, defendants deny that the

Labor Code section or wage order apply to Plaintiffs' employment. 21. Responding to Paragraph 21 of the First Amended Complaint, defendants deny that the

Labor Code section or wage order apply to Plaintiffs' employment. Case No. C 07-2894 MEJ
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22.

Responding to Paragraph 22 of the First Amended Complaint, defendants deny that the

Labor Code section or wage order apply to Plaintiff Nilton Siguenza's employment. 23. Responding to Paragraph 23 of the First Amended Complaint, defendants deny that the

Labor Code section or wage order apply to Plaintiff Nilton Siguenza's employment. 24. Responding to Paragraph 24 of the First Amended Complaint, defendants incorporate by

reference, as though set forth fully herein, their responses to Paragraphs 1 through 17 of the First Amended Complaint. 25. Responding to Paragraph 25 of the First Amended Complaint, defendants deny that the

overtime provisions apply to Plaintiffs' employment. 26. Responding to Paragraph 26 of the First Amended Complaint, defendants lack sufficient

knowledge or information upon which to form a belief as to the truth or falsity of the allegations of said paragraph, and on that basis denies each and every allegation contained therein. 27. Responding to Paragraph 27 of the First Amended Complaint, defendants incorporate by

reference, as though set forth fully herein, their responses to Paragraphs 1 through 26 of the First Amended Complaint. 28. Responding to Paragraph 28 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court. 29. Responding to Paragraph 29 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court. 30. Responding to Paragraph 30 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court. 31. Responding to Paragraph 31 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court.

Case No. C 07-2894 MEJ
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32.

Responding to Paragraph 32 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court. 33. Responding to Paragraph 33 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court. 34. Responding to Paragraph 34 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court. 35. Responding to Paragraph 35 of the First Amended Complaint, no response is required

since this cause of action cannot be stated by Plaintiff's, as previously determined by the Alameda County Superior Court. 36. Responding to Paragraph 36 of the First Amended Complaint, defendants incorporate by

reference, as though set forth fully herein, their responses to Paragraphs 1 through 35 of the First Amended Complaint. 37. Responding to Paragraph 37 of the First Amended Complaint, defendants deny each and

every allegation contained therein. 38. Responding to Paragraph 38 of the First Amended Complaint, defendants deny each and

every allegation contained therein. 39. Responding to Paragraph 39 of the First Amended Complaint, defendants deny each and

every allegation contained therein. 40. Responding to Paragraph 40 of the First Amended Complaint, defendants incorporate by

reference, as though set forth fully herein, their responses to Paragraphs 1 through 39 of the First Amended Complaint. 41. Responding to Paragraph 41 of the First Amended Complaint, defendants deny each and

every allegation contained therein. 42. Responding to Paragraph 42 of the First Amended Complaint, defendants deny each and

every allegation contained therein. Case No. C 07-2894 MEJ
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Defendants further submit the following affirmative defenses to the First Amended Complaint:

FIRST AFFIRMATIVE DEFENSE The first amended complaint, and any purported cause of action contained therein, fails to state facts sufficient to constitute a cause of action against defendants. SECOND AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred by the applicable Statutes of Limitations, including but not limited to California Code of Civil Procedure sections 337, 338, 339, 340 and/or 343; Business and Professions Code section 17208; 29 USC section 255(a); and any other applicable provision of law. THIRD AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action against defendants are barred by the doctrine of Estoppel. FOURTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred by the doctrine of Laches. FIFTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action against defendants are barred by the doctrine of Unclean

SIXTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred because plaintiffs' damages, if any, were caused, if at all, by the fault or wrongdoing of other persons. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred because plaintiffs' damages, if any, were caused, if at all, by the fault or wrongdoing of plaintiffs themselves. EIGHTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred because plaintiffs forever waived the right, if they ever had such right, to assert such causes of action against defendants. /// /// Case No. C 07-2894 MEJ
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ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

NINTH AFFIRMATIVE DEFENSE Plaintiffs' damages, if any, should be reduced due to plaintiffs' failure to mitigate, minimize, or avoid their damages, if any. TENTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred, or recovery reduced, by plaintiffs' carelessness, recklessness and/or negligence in the matters complained of in the first amended complaint. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred in that plaintiffs have failed to exhaust their administrative remedies. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs' purported causes of action are barred since plaintiffs were not entitled to overtime compensation, in that plaintiffs were exempt employees as contemplated by the federal Fair Labor Standards Act and the California Labor Code, and by regulations and work orders promulgated pursuant thereto. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs have no standing to assert claims under Business and Professions Code section 17200, et seq. FOURTEENTH AFFIRMATIVE DEFENSE Defendants' practices complained of in the first amended complaint are not unlawful, in that defendants' acts complied with all applicable statutes and regulations. FIFTEENTH AFFIRMATIVE DEFENSE Defendants deny that they failed to pay plaintiffs wages due as alleged in plaintiffs' first amended complaint. However, if it is determined that there was such a failure on the part of defendants, the act or omission giving rise to the failure to do so was in good faith. Additionally, defendants had reasonable grounds for believing that the act or omission was not a violation of any provision of the /// ///

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federal Fair Labor Standards Act or the California Labor Code, or any regulations or work orders promulgated pursuant thereto.

Dated: June 18, 2007

LAW OFFICE OF XAVIER A.M. LAVOIPIERRE

By: Xavier A.M. Lavoipierre Attorney for Defendants SAN RAFAEL TOUCHLESS CAR WASH PATTY SHIMEK and MIKE SMITH

Case No. C 07-2894 MEJ
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1 DEMAND FOR JURY TRIAL 2 PATTY SHIMEK and MIKE SMITH hereby demand a trial by jury for all issues which are so 3 triable. 4 5 Dated: June 18, 2007 6 7 By: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. C 07-2894 MEJ
ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

LAW OFFICE OF XAVIER A.M. LAVOIPIERRE

/s/ Xavier A.M. Lavoipierre Attorney for Defendants SAN RAFAEL TOUCHLESS CAR WASH PATTY SHIMEK and MIKE SMITH

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