ELIZABETH STAGGS WILSON, Bar No. 183160 LITTLER … · 2015-01-28 · information to form a belief...

LITTLER MENDELSON, P.C. 633 West 5th Street

63rd Floor Los Angeles, CA 90071

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DEFENDANT'S ANSWER TO COMPLAINT (NO. 3:14-CV-3238-JSC) .

ELIZABETH STAGGS WILSON, Bar No. 183160 [email protected] LITTLER MENDELSON, P.C. 633 West 5th Street 63rd Floor Los Angeles, California 90071 Telephone: 213.443.4300 Facsimile: 213.443.4299 SHANNON R. BOYCE, Bar No. 229041 [email protected] FATEMEH MASHOUF, Bar No. 288667 [email protected] LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107

Attorneys for Defendant PEAK CAMPUS MANAGEMENT, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NICHOLAS SELBE, DANIEL GHYCZY, MAKAELA O'CONNELL, and ANNIYA LOUIS on behalf of themselves and others similarly situated,

Plaintiffs,

v.

PEAK CAMPUS MANAGEMENT, LLC,

Defendant.

Case No. 3:14-cv-3238-MMC

FLSA COLLECTIVE ACTION CLASS ACTION COMPLAINT

DEFENDANT PEAK CAMPUS MANAGEMENT, LLC'S ANSWER TO PLAINTIFFS' COMPLAINT

Case3:14-cv-03238-MMC Document17 Filed09/04/14 Page1 of 30



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DEFENDANT'S ANSWER TO COMPLAINT (NO. 3:14-CV-3238-JSC) 1.

Defendant PEAK CAMPUS MANAGEMENT, LLC (thereinafter

“Defendant”) answers Plaintiffs NICHOLAS SELBE, DANIEL GHYCZY,

MAKAELA O'CONNELL, and ANNIYA LOUIS on behalf of themselves and others

similarly situated (“Plaintiffs”) Complaint as set forth below:

INTRODUCTION AND CERTAIN DEFINITIONS

1. In answering Paragraph 1 of the Complaint, Defendant admits that

the Complaint purports to state claims against Defendant for violation of federal and

state wage and hour laws by and on behalf of former and current employees of

Defendant. Defendant also admits that Plaintiffs purports to define “Covered

Employees” in the manner stated. Except as admitted, Defendant denies each and

every remaining allegation contained therein.

2. In answering Paragraph 2 of the Complaint, Defendant admits that

Defendant required certain Covered Employees to reside in a building managed by

Defendant as a condition of employment. Defendant denies the remainder of the

paragraph on the grounds that it contains conclusions of law or legal principles

asserted by Plaintiffs, and such conclusions are not allegations of fact to which an

admission or denial is required by the Federal Rules of Civil Procedure.

3. Answering Paragraph 3 of the Complaint, Defendant admits that

Plaintiffs purport to define “Covered Employees,” “Covered Positions,” and “All-

Stars” in the manner stated. Except as otherwise admitted, Defendant denies each and

every allegation and/or inference contained therein. To the extent Paragraph 3 of the

Complaint contains conclusions of law or legal principles asserted by Plaintiffs, such

conclusions 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 allegation

and/or inference contained therein.

4. Answering paragraph 4 of the Complaint, said paragraph consists

of conclusions of law or legal principles asserted by Plaintiffs that are not allegations

of fact to which an admission or denial is required by the Federal Rules of Civil




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Procedure. Defendant denies each and every allegation and/or inference contained

therein.

JURISDICTION AND VENUE


this Court has original federal question jurisdiction under the Fair Labor Standards

Act (“FLSA”) and supplemental jurisdiction over the existing state law claims.

Defendant is without sufficient knowledge or information to form a belief as to the

truth of the assertion that this Court has supplemental jurisdiction over state law

claims not yet discovered, and on that basis denies such an allegation. To the extent

Paragraph 5 of the Complaint contains conclusions of law or legal principles asserted

by Plaintiffs, such conclusions 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 allegation and/or inference contained therein.

6. Answering Paragraph 6 of the Complaint, Defendant admits that it

manages student apartment communities and has employees in this District.

Defendant denies that the events and omissions giving rise to the claims alleged in the

Complaint occurred in this District or that Covered Employees, as defined by

Plaintiffs, were employed in this District. Defendant admits that it conducts and has

conducted commercial business activities in this District. Except as otherwise

admitted, Defendant denies each and every allegation and/or inference contained

therein. To the extent Paragraph 6 of the Complaint contains conclusions of law or

legal principles asserted by Plaintiffs, such conclusions 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 allegation and/or inference contained therein.

PARTIES

7. Answering Paragraph 7 of the Complaint, Defendant admits that its

headquarters are in Atlanta, Georgia and that Defendant manages apartment

communities that are marketed to and intended primarily for college and university




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students. Defendant admits that Defendant’s website indicates that Defendant

manages properties in twenty-three states, including California. Defendant denies that

it is a Georgia limited liability company.


Plaintiff Nicholas Selbe was employed by Defendant at University Gateway

Apartments in Los Angeles, California from approximately October 2012 until May

2013 as a Leasing All-Star. Defendant is without sufficient knowledge or information

to form a belief as to the truth of Nicholas Selbe’s residence, and on that basis denies

the allegations contained therein. To the extent paragraph 8 of the Complaint contains

conclusions of law or legal principles asserted by Plaintiffs, such conclusions 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 allegation and/or inference

contained therein.


Plaintiff Daniel Ghyczy was employed by Defendant at University Gateway

Apartments in Los Angeles, California from approximately October 2012 until May

2013 as a Leasing All-Star. Defendant is without sufficient knowledge or information

to form a belief as to the truth of Daniel Ghyczy’s residence, and on that basis denies

the allegations contained therein. To the extent paragraph 8 of the Complaint contains




contained therein.


Plaintiff Makaela O’Connell was employed by Defendant at University Gateway

Apartments in Los Angeles, California from approximately February 2013 until

December 2013 as a Leasing All-Star. Defendant is without sufficient knowledge or

information to form a belief as to the truth of Makaela O’Connell’s residence, and on




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that basis denies the allegations contained therein. To the extent paragraph 8 of the






Plaintiff Anniya Louis was employed by Defendant at University Gateway

Apartments in Los Angeles, California from approximately October 2013 until

December 2013 as a Leasing All-Star. Defendant is without sufficient knowledge or

information to form a belief as to the truth of Anniya Louis’ residence, and on that

basis denies the allegations contained therein. To the extent paragraph 8 of the





FACTS

12. Answering paragraph 12 of the Complaint, Defendant admits that

Defendant manages apartment properties marketed to and primarily for college and

university students in approximately twenty-three states, including California.


at some of the properties managed by Defendant, Defendant employs individuals who

are typically college and university students, in positions known as “All Stars.”

Except as otherwise admitted, Defendant denies each and every allegation and/or

inference contained therein.


All-Stars perform leasing and/or other clerical work, market the property to future

residents, and may also plan and execute parties, events, and competitions for

residents. To the extent that Defendant is able to understand Plaintiffs’ allegation that




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“All-Stars fill a role similar to a ‘resident advisor’ at a college or university,”

Defendant denies that all All-Stars fill such a role. Except as otherwise admitted,



All-Stars are required to work a set number of hours per week. Defendant is without

sufficient knowledge or information to form a belief as to the average weekly hours

required of All-Stars and on that basis denies the allegations contained therein.


inference contained therein.

16. Answering paragraph 16 of the Complaint, Defendant denies that

all All-Stars within the proposed class are required to live on-site in a property

managed by Defendant as a condition of employment.


it leases residential communities it manages on behalf of the owner(s) of the

applicable property. Defendant admits that some of the leases are for single bedrooms

which can be occupied by one or more people. Defendant admits that the leases are

sometimes called “Exclusive Bed Space.” Except as otherwise admitted, Defendant

denies each and every allegation and/or inference contained therein. To the extent

paragraph 17 of the Complaint contains conclusions of law or legal principles asserted

by Plaintiffs, especially with the use of the term “agent,” such conclusions are not



contained therein.


all All-Stars within the proposed class are required to live on-site or to have a signed

lease on file with Defendant. To the extent paragraph 18 of the Complaint contains






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contained therein.


all All-Stars within the proposed class are required to sign a lease for lodging or reside

on the premises as a condition of employment.


certain All-Stars were generally not required to remit payment for lodging in exchange

for hours worked. Except as otherwise admitted, Defendant denies each and every

allegation and/or inference contained therein.


it provided lodging to certain All-Stars within the proposed class in exchange for the

All-Star working a set number of hours per week. Except as otherwise admitted,



it generally valued the lodging provided to certain All-Stars within the proposed class

through their leases at the market rent for the applicable bedroom. To the extent






the practice of certain All-Stars within the proposed class definition working a

required number of hours in exchange for lodging is generally referred to as “work for

rent.” Except as otherwise admitted, Defendant denies each and every allegation

and/or inference contained therein. To the extent paragraph 23 of the Complaint

contains conclusions of law or legal principles asserted by Plaintiffs, such conclusions

are not allegations of fact to which an admission or denial is required by the Federal




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Rules of Civil Procedure. Defendant denies each and every allegation and/or inference

contained therein.


when certain All-Stars within the proposed class were unable or failed to work the

required number of hours, they are required to “make up” hours during a different

workweek or remit payment to Defendant in order to make up the difference to pay

the full market rent of lodging.


all All-Stars within the proposed class do not receive cash wages for working the

required number of hours. To the extent paragraph 25 of the Complaint contains




contained therein.


there is a lodging credit applied against wages as it relates to the compensation for

certain All-Stars within the proposed class. Defendant denies that no pay stubs are

ever given or that wages are never indicated on pay stubs. Except as otherwise

admitted, Defendant denies each and every allegation and/or inference contained

therein. To the extent paragraph 26 of the Complaint contains conclusions of law or

legal principles asserted by Plaintiffs, such conclusions are not allegations of fact to

which an admission or denial is required by the Federal Rules of Civil Procedure.



it does not report any amount on account of lodging as wages or income to the

applicable federal, state, and local taxing authorities or to the Social Security

Administration.




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it has issued some IRS Form W-2’s indicating that the lodging provided does not

constitute wages or income to All-Stars.


IRS Form W-3s have been submitted on its behalf indicating that the lodging provided

does not constitute wages or income to All-Stars.


all All-Stars within the proposed class are not given an option of receiving cash

wages. Defendant denies that all All-Stars within the proposed class are required to

live on-site in a property managed by Defendant as a condition of employment, or that

the residency requirement cannot be separated from the position. To the extent







managed by Defendant as a condition of employment. Defendant further denies the

remainder of the allegations in Paragraph 31. To the extent paragraph 31 of the









therein.




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therein.





therein.



managed by Defendant as a condition of employment. To the extent paragraph 35 of

the Complaint contains conclusions of law or legal principles asserted by Plaintiffs,

such conclusions 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 allegation






therein.





therein.




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therein.

a) Answering Paragraph 38(a) of the Complaint, said paragraph

consists of conclusions of law or legal principles asserted by

Plaintiffs that 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 allegation and/or inference

contained therein.

b) Answering Paragraph 38(b) of the Complaint, said paragraph





contained therein.

c) Answering Paragraph 38(c) of the Complaint, said paragraph





contained therein.

d) Answering Paragraph 38(d) of the Complaint, said paragraph







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contained therein.

e) Answering Paragraph 38(e) of the Complaint, said paragraph





contained therein.





therein.


some of the “Covered Employees,” as defined by Plaintiffs, were employed in

California and elsewhere within the United States. Except as otherwise admitted,

Defendant denies each and every allegation and/or inference contained therein. To the

extent paragraph 40 of the Complaint contains conclusions of law or legal principles

asserted by Plaintiffs, such conclusions are not allegations of fact to which an






therein.

FLSA COLLECTIVE ACTION ALLEGATIONS


Plaintiffs purport to bring the First Claim for Relief, for violation of the FLSA, as a




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collective action pursuant to FLSA § 16(b), 29 U.S.C. §216(b), on behalf of all

Covered Employees employed by Defendant on or after the date that is three years

before the filing of the Complaint in this case. Defendant admits that Plaintiffs

purports to define “FLSA Collective Plaintiffs” in the manner stated. Except as

otherwise admitted, Defendant denies each and every allegation and/or inference

contained therein. To the extent paragraph 42 of the Complaint contains conclusions

of law or legal principles asserted by Plaintiffs, such conclusions are not allegations of

fact to which an admission or denial is required by the Federal Rules of Civil

Procedure.


Plaintiffs purport to attach Plaintiffs’ Consent to Joint Collective Action to sue under

29 U.S.C. § 216 as Exhibit A. Except as otherwise admitted, Defendant denies each

and every allegation and/or inference contained therein. To the extent paragraph 43 of



by the Federal Rules of Civil Procedure.

44. Answering paragraph 44 of the Complaint, Defendant denies the

allegations therein. To the extent paragraph 44 of the Complaint contains conclusions




therein.





therein.




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RULE 23 CLASS ALLEGATIONS - CALIFORNIA


Plaintiffs purport to bring the second, third, fourth, and fifth claims for relief pursuant

to the Federal Rules of Civil Procedure Rule 23, on behalf of all persons who were,

are, or will be employed by Defendant in California on or after the date that is 4 years

before the filing of the Complaint in this case. Defendant admits that Plaintiffs

purport to define “Class Period” in the manner stated. Except as otherwise admitted,

Defendant denies each and every allegation and/or inference contained therein. To the





Plaintiffs purports to define “Covered Positions” and “California Class” in the manner

stated and Plaintiffs seek to represent the proposed class, as stated by Plaintiffs.


inference contained therein. To the extent paragraph 47 of the Complaint contains



Civil Procedure.






therein.







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therein.

50. Answering paragraph 50 of the Complaint, Defendant is without

sufficient knowledge or information to form a belief as to the truth of the allegations

contained in said paragraph, and on that basis denies the allegations contained therein.

To the extent paragraph 50 of the Complaint contains conclusions of law or legal

principles asserted by Plaintiffs, such conclusions 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 allegation and/or inference contained therein.






therein.





therein.






therein.




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a) In response to Paragraph 53(a) of the Complaint, said paragraph





contained therein.

b) In response to Paragraph 53(b) of the Complaint, said paragraph





contained therein.

c) In response to Paragraph 53(c) of the Complaint, said paragraph





contained therein.

d) In response to Paragraph 53(d) of the Complaint, said paragraph





contained therein.

e) In response to Paragraph 53(e) of the Complaint, said paragraph







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contained therein.

FIRST CLAIM FOR RELIEF

FLSA Minimum Wage

29 U.S.C. §§ 201, et seq.

54. Answering paragraph 54 of the Complaint, Defendant incorporates

by reference its answers to all previous paragraphs. To the extent the allegations

contained in Paragraph 54 of the Complaint only incorporate by reference these

paragraphs no further response is required.


at all relevant times, Defendant has had gross operating revenues in excess of

$500,000. Except as otherwise admitted, Paragraph 55 of the Complaint consists of

conclusions of law or legal principles asserted by Plaintiffs that are not allegations of



therein.


allegations therein to the extent Defendant did not require all “FLSA Collective

Plaintiffs,” as that term is defined by Plaintiffs, to reside in a building managed by

Defendant as a condition of employment during the relevant statutory period.

57. Answering paragraph 57 of the Complaint, Defendant denies each











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Plaintiffs purport to seek damages as identified in paragraph 61. To the extent






Plaintiffs purport to seek the damages as identified in paragraph 62. To the extent








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SECOND CLAIM FOR RELIEF

California Minimum Wage and Wage Credit Provisions

Cal. Wage Order No. 5; Cal. Labor Code §§ 1182.12,

1182.13, 1194, 1194.2 & 1194.5


by reference its answers to all previous paragraphs. To the extent the allegations

contained in Paragraph 63 of the Complaint only incorporate by reference these

paragraphs, no further response is required.





therein.



















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Plaintiffs purport to seek damages as identified in paragraph 68. To the extent





THIRD CLAIM FOR RELIEF

California Waiting Period Penalties

Cal. Labor Code §§ 201-203


by reference all previous paragraphs. To the extent the allegations contained in

Paragraph 69 of the Complaint only incorporate by reference these paragraphs no

further response is required.

70. Answering paragraph 70 of the Complaint, said paragraph contains




therein.


there was a lodging credit applied against wages as it relates to the compensation for

certain All-Stars within the proposed class, but denies that that any wages were

knowingly or intentionally withheld. To the extent Paragraph 71 of the Complaint

contains conclusions of law or legal principles asserted by Plaintiffs that are not





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contained therein.













FOURTH CLAIM FOR RELIEF

Failure to Furnish Accurate Wage Statements

Cal. Wage Order No. 5 and Cal. Labor Code §§ 226





75. Answering paragraph 75 of the Complaint, Defendant denies that it

failed to keep accurate information with respect to total wages paid each payroll

period to the “California Class,” as that term is defined by Plaintiffs, or that Defendant

failed to furnish itemized wage statements showing gross wages earned and hours

worked to the “California Class.” To the extent paragraph 75 of the Complaint

contains conclusions of law or legal principles asserted by Plaintiffs, such conclusions

are not allegations of fact to which an admission or denial is required by the Federal




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Rules of Civil Procedure. Defendant denies each and every allegation and/or inference

contained therein.







FIFTH CLAIM FOR RELIEF

California Unfair Competition Law

Cal. Bus. & Prof. Code § 17200, et seq.









therein.





therein.







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therein.





therein.





therein.


Plaintiffs and the California Class seek to recover attorneys’ fees and costs. To the



admission or denial is required by the Federal Rules of Civil Procedure. Defendant

denies each and every allegation and/or inference contained therein.


Plaintiffs and the California Class seek restitution as enumerated in paragraph 84 of

the Complaint. To the extent paragraph 84 of the Complaint contains conclusions of

law or legal principles asserted by Plaintiffs, such conclusions are not allegations of



therein.

RELIEF REQUESTED

85. No answer is required to Plaintiffs’ Prayer for Relief, which

merely sets forth the type of relief sought by Plaintiffs. To the extent an answer is




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required, however, Defendant denies, generally and specifically, each and every

allegation and purported entitlement to relief set forth under Plaintiffs’ heading,

“Relief Requested.”

AFFIRMATIVE DEFENSES

Defendant asserts the following affirmative defenses. In so doing,

Defendant does not concede that it has the burden of production or proof as to any

affirmative defense asserted below. Further, Defendant does not presently know all

the factors concerning the conduct of Plaintiffs and/or the putative class they seek to

represent sufficient to state all affirmative defenses at this time. Accordingly,

Defendant will seek leave of this Court to amend this Answer should it later discover

facts demonstrating the existence of additional affirmative defenses.

SEPARATE AND AFFIRMATIVE DEFENSE

(Unclean Hands)

1. As a separate and distinct affirmative defense, Defendant alleges

that all or portions of the claims of Plaintiffs and/or members of the putative class

Plaintiffs purport to represent are barred, in whole or in part, by the doctrine of

unclean hands. Without limiting Defendant’s reliance on this affirmative defense, to

the extent Plaintiffs and/or members of the putative class Plaintiffs purport to

represent are seeking compensation for time or expenses which they willfully failed to

report or raise concerns regarding, their claims are barred by the doctrine of unclean

hands. As Plaintiffs provide factual background for their Complaint, Defendant

reserves the right to further amend this affirmative defense.


(Estoppel)


that all or portions of the claims of Plaintiffs and/or members of the putative class

Plaintiffs purport to represent are barred, in whole or in part, by the doctrine of

estoppel. Without limiting Defendant’s reliance on this affirmative defense, to the




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extent Plaintiffs and/or members of the putative class Plaintiffs purport to represent

are seeking compensation for time or expenses which they willfully failed to report or

raise concerns regarding, their claims are estopped. As Plaintiffs provide factual

background for their Complaint, Defendant reserves the right to further amend this

affirmative defense.


(Unjust Enrichment)

3. As a separate and affirmative defense, Defendant alleges that

Plaintiffs and/or members of the members of the putative class members they seek to

represent would be unjustly enriched if allowed to recover on the Complaint. Without

limiting Defendant’s reliance on this affirmative defense, to the extent that Plaintiffs

and/or members of the putative class Plaintiffs purport to represent, inter alia,

received lodging for hours worked, the value of said lodging (in whole or in part) must

be offset against any amounts claimed owed. As Plaintiffs provide factual background

for their Complaint, Defendant reserves the right to further amend this affirmative

defense.


(Class Action – Standing)


that Plaintiffs lack standing to assert the legal rights or interests of others. To the

extent that Plaintiffs and their counsel seek to represent each and every person who

performed similar job duties to All-Stars and Community Advisors (regardless of

position title or job duties), Defendant contends that Plaintiffs and their counsel

cannot adequately do so, as she worked in a different location, under a different

employing entity, under a different supervisor, and in a different position from

numerous of others they seek to represent.




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(Statute of Limitations)

5. As a separate and affirmative defense, Defendant alleges that the

claims of Plaintiffs and/or members of the putative class members they seek to

represent are barred by the applicable statutes of limitations, including but not limited

to, 29 U.S.C. section 255, California Code of Civil Procedure sections 312, 338 and

340 and/or California Business & Professions Code section 17208.


(Bona Fide Dispute)


that the Complaint fails to state a claim for penalties under the California Labor Code

in that (1) there was a bona fide, good faith dispute as to Defendant’ obligations under

any applicable Labor Code provisions, including, without limitation, Labor Code

section 203, and (2) Defendant did not willfully violate Labor Code section 203.


(Good Faith)


that the Complaint and each cause of action set forth therein cannot be maintained

because, without admitting that any violation took place, Defendant alleges that any

violation of the Fair Labor Standards Act, California Labor Code, or of a Wage Order

of the Industrial Welfare Commission was an act or omission made in good faith, and

that in any participation in such acts, Defendant had reasonable grounds for believing

that the act or omission was not a violation of the Fair Labor Standards Act, California

Labor Code, or any Wage Order of the Industrial Welfare Commission.


(Avoidable Consequences)

8. As a separate and distinct affirmative defense, Defendant is

informed and believes that further investigation and discovery will reveal, and on that




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basis alleges, that the damages and/or penalties, if any, are barred and/or limited

pursuant to the doctrine of avoidable consequences. Defendant will amend its answer

to assert further facts in support of this affirmative defense as they become known in

discovery. See Department of Health Services v. Superior Court, 31 Cal. 4th 1026

(2003).


(Claims Discharged)


that the Complaint and each cause of action set forth therein, or some of them, are

barred because all of a portion of the wages, overtime premiums, interest, attorneys’

fees, penalties and/or other relief sought by Plaintiffs on their own behalf and/or on

behalf of the putative class members were, or will be before the conclusion of this

action, paid or collected, and therefore, Plaintiffs’ claims and/or the claims of the

putative class members have been partially or completely discharged.


(Accord and Satisfaction)



barred by the doctrine of accord and satisfaction, to the extent that some, or all,

members of the putative class members Plaintiffs seek to represent have received, or

will receive, compensation for any alleged outstanding wages, penalties, and/or

damages purportedly due.


(Business & Professions Code § 17200 Violates Due Process)

11. As a separate and distinct affirmative defense, Defendant asserts


barred because Business and Professions Code section 17200, et seq., is

unconstitutionally vague and overbroad as applied to the facts and circumstances of




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this case, and Plaintiffs’ Complaint is barred because the prosecution of this action by

Plaintiffs as representatives of persons allegedly similarly situated would constitute a

denial of Defendant’s due process rights, both procedural and substantive, in violation

of the Fourteenth Amendment of the United States Constitution and the Constitution

and laws of the State of California. See, e.g., People ex rel Lockyer v. R.J. Reynolds

Tobacco Co., 37 Cal. 4th 707 (2005).


(Violation of Due Process)



barred because the certification of a class, as applied to the facts and circumstances of

this case, would constitute a denial of Defendant’s due process rights and to a trial by

jury, both substantive and procedural, in violation of the Due Process and Equal

Protection clauses of the Fourteenth Amendment of the United States Constitution and

the Due Process and Equal Protection Clauses of Article I, Section 7 of the California

Constitution. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408

(2003); People ex rel Lockyer v. R.J. Reynolds Tobacco Co., 37 Cal. 4th 707 (2005).


(Excessive Fines)



barred because, as applied in this putative class/collective action, an award of civil

penalties would result in the imposition of excessive fines in violation of the Eighth

Amendment to the United States Constitution and Article I, Section 7 of the California

Constitution. People ex rel Lockyer v. R.J. Reynolds Tobacco Co., 37 Cal. 4th 707

(2005).




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(Multiple Penalties Unconstitutional)


that the claims in the Complaint that seek the imposition of multiple penalties and/or

liquidated damages for the same basic wrongs are unconstitutional in that such relief

violates the Due Process clauses of the Constitutions of both the United States and the

State of California.


(Adequate Remedy at Law)


that Plaintiffs and the purported class members are not entitled to equitable relief

insofar as they have an adequate remedy at law.


(Relevant Credits)


that Plaintiffs’ claims are bared in whole or in part to the extent that the work

performed falls within exemptions, exclusions, exceptions, or credits provided for in

Section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207, the California Labor

Code, and/or relevant Wage Order authority.


(Claims Subject to Arbitration)

17. As a separate and affirmative defense, Defendants allege that

Plaintiffs’ claims are barred in whole or in part because some or all of those with

whom they are allegedly “similarly situated” entered into an agreement to submit all

employment related claims to binding arbitration.


(Claims Subject to Arbitration on Individual Basis)

18. Plaintiffs’ claims are barred in whole or in part because some or all




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of the alleged putative class entered into an agreement to submit all employment

related claims to binding arbitration, which included a valid class action waiver

provision. See AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011).


(Right to Assert Additional Defenses)

19. As a separate and affirmative defense, Defendant alleges that

Plaintiffs’ Complaint does not describe the claims or facts being alleged with sufficient

particularity to permit Defendant to ascertain what other defenses may exist. Defendant

will rely on any and all further defenses that become available or appear during

discovery in this action and specifically reserves the right to amend their Answer for

purposes of asserting such additional defenses.

WHEREFORE, Defendant prays that:

1. Plaintiffs’ Complaint be dismissed in its entirety with prejudice;

2. Plaintiffs and the putative class members take nothing by this

action;

3. Judgment be entered in Defendant’s favor and against Plaintiffs

and the putative class members;

4. Defendant be awarded its costs of suit and attorneys’ fees incurred

herein; and

5. Defendant be awarded such other and further relief as the Court

deems just and proper. Dated: September 4, 2014

/s/ Shannon R. Boyce ELIZABETH STAGGS WILSON LITTLER MENDELSON, P.C. Attorneys for Defendant PEAK CAMPUS MANAGEMENT, LLC

Firmwide:128528804.3 068943.1006


ELIZABETH STAGGS WILSON, Bar No. 183160 LITTLER … · 2015-01-28 · information to form a belief...

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