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Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 1 of 10 Page ID #:51

1 Daniel B Chammas, Bar No. 204825 [email protected] 2 Hilda Aguilar, Bar No. 276459 [email protected] 3 FORD & IIARRISON LLP 350 South Grand Avenue, Suite 2300 4 Los Angeles, CA 90071 Telephone: 213-237-2400 5 Facsimile: 213-237-2401 6 Attorneys for Defendant QUEST DIAGNOSTICS CLINICAL 7 LABORATORIES, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF LOS ANGELES 10 11 FE PALOMIQUE, an individual, CASE NO. BC656483 12 Plaintiff, [Assigned for all purposes to the Hon. Ruth Ann Kwan, Dept. 72] 13 v. DEFENDANT QUEST DIAGNOSTICS 14 QUEST DIAGNOSTICS CLINICAL CLINICAL LABORATORIES, INC.'S LABORATORIES, INC., a Delaware ANSWER TO PLAINTIFF FE 15 corporation dba QUEST DIAGNOSTICS; PALOMIQUE'S UNVERIFIED and DOES 1-50, inclusive, 16 Defendants. Action filed: April 4, 2017 17 Trial date: Not set 18 19 Defendant QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC. ("Defendant") 20 hereby answers the unverified Complaint of Plaintiff FE PALOMIQUE as follows: 21 GENERAL DENIAL 22 Pursuant to the provisions of Code of section 431.30(d), Defendant

23 denies, both generally and specifically, each and every allegation, matter or fact contained in 24 Plaintiff's Complaint and the whole thereon, and further denies that Plaintiff has been injured or 25 damaged in any sum whatsoever or is entitled to any relief in any form, whether legal or 26 equitable, from Defendant. 27 / / / 28 / / / FORD & HARRISON LLP /CASE No. BC656483 ATTORNEYS AT LAW DEFENDANT'S ANSWER TO COMPLAINT LOS ANGELES DOCUMENT PRINTED ON RECYCLED PAPER Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 2 of 10 Page ID #:52

1 AFFIRMATIVE DEFENSES

2 Without assuming the or persuasion, Defendant is informed and believes 3 and on that ground alleges that Plaintiff's Complaint is subject to the following affirmative 4 defenses: 5 FIRST AFFIRMATIVE 6 (Facts Insufficient to State Any )

7 1. The Complaint as a whole, and each purported cause of action alleged therein, fails 8 to state facts sufficient to constitute any cause of action against Defendant upon which relief may 9 be granted. 10 SECOND AFFIRMATIVE DEFENSE 11 () 12 2. The Complaint as a whole, and each purported cause of action alleged and remedy 13 sought therein, is barred in whole or in part by the applicable statute of limitations, including but

14 not limited to California Code of Civil Procedure sections 337, 337.1, 338, 339, 340 and 343, as 15 well as California Business and Professions Code section 17208. 16 THIRD AFFIRMATIVE DEFENSE 17 (Lack of Standing) 18 3. Plaintiff's Complaint, and each purported cause of action and/or form of recovery 19 contained therein, is barred to the extent that Plaintiff lacks standing to assert any of the causes of 20 action and/or form of recovery contained in the Complaint because Plaintiff has not suffered any 21 injury-in-fact or for which Plaintiff does not have a private right of action. 22 FOURTH AFFIRMATIVE DEFENSE 23 (Waiver)

24 4. The Complaint, and each purported cause of action alleged therein, is barred on the 25 ground that Plaintiff has expressly and/or impliedly waived the right to assert such causes of 26 action by virtue of her verbal and/or written expressions or conduct. 27 / / / 28 / / /

FORD & HARRISON - 2 - L LP /CASE No. BC656483 ATIONNLYS AT LAW DEFENDANT'S ANSWER TO COMPLAINT LIM ANGELES DOCUMENT PRINTED ON RECYCLED PAPER Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 3 of 10 Page ID #:53

1 FIFTH AFFIRMATIVE DEFENSE 2 ()

3 5. By virtue of her conduct, Plaintiff must be estopped from asserting any of the 4 causes of action in the Complaint against Defendant. 5 SIXTH AFFIRMATIVE DEFENSE 6 (Laches)

7 6. Plaintiff is barred from proceeding with this action on the ground that Plaintiff is 8 guilty of laches in failing to timely commence this action, which has prejudiced Defendant in its 9 ability to discover adequate witnesses, testimony, facts, and to support Defendant's 10 defenses. 11 SEVENTH AFFIRMATIVE DEFENSE 12 (Unclean Hands) 13 7. Defendant is informed and believes and thereon alleges that Plaintiff, by her own 14 conduct, is guilty of unclean hands, which completely bars or reduces recovery, if any, to which 15 she may be entitled, all in accordance with proof at trial. 16 EIGHTH AFFIRMATIVE DEFENSE

17 () 18 8. The Complaint, and each purported cause of action alleged therein, is barred on the 19 ground that at all times alleged in the Complaint, Plaintiff expressly or impliedly assented to, 20 ratified, or concurred with the conduct alleged to be unlawful. 21 NINTH AFFIRMATIVE DEFENSE 22 (Failure to Exhaust Administrative Remedies)

23 9. Plaintiff failed to exhaust available administrative remedies and is therefore 24 precluded from obtaining any relief under the alleged causes of action in the complaint. 25 TENTH AFFIRMATIVE DEFENSE 26 (Federal and/or State Preemption) 27 10. Plaintiff's Complaint, and each claim contained therein, is barred to the extent that 28 Plaintiff's claims are preempted by federal and/or state law.

FORD & HARRISON - 3 - LLP /CAsE No. BC656483 ATTORNEYS At LAW DEFENDANT'S ANSWER TO COMPLAINT LOS A tICKIES DOCUMENT PRINTED ON RECYCLED PAPER

Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 4 of 10 Page ID #:54

1 ELEVENTH AFFIRMATIVE DEFENSE 2 (Good Faith) 3 11. All actions taken by Defendant with respect to Plaintiff, at all times relevant to this 4 action, were taken in good faith for legitimate non-discriminatory reasons. 5 TWELFTH AFFIRMATIVE DEFENSE 6 (Unconstitutional) 7 12. Plaintiff's cause of action for penalties is barred because it is unconstitutionally 8 vague and overbroad as applied to the facts and circumstances of this case. 9 THIRTEENTH AFFIRMATIVE DEFENSE 10 (No Authorization, Adoption, or Ratification) 11 13. Defendant alleges the Complaint, and each purported cause of action contained 12 therein, or some of them, are barred because assuming arguendo that Plaintiff engaged in any of 13 the acts alleged in the Complaint, such actions were committed outside the course and scope of 14 employment, were not authorized, adopted or ratified by Defendant, and/or Defendant did not 15 know, nor should they have known, of such conduct. 16 FOURTEENTH AFFIRMATIVE DEFENSE 17 (Offset) 18 14. Defendant alleges that it has suffered damages by reason of Plaintiff's conduct, 19 and Defendant has a right to offset its damages against the damages, if any, of Plaintiff. 20 FIFTEENTH AFFIRMATIVE DEFENSE 21 (Failure to Mitigate) 22 15. Without admitting any facts pled by Plaintiff, Defendant alleges that if Plaintiff 23 sustained any loss, injury or damages either as alleged in the Complaint or at all, which 24 Defendant expressly denies, the same were directly and proximately caused and/or exacerbated 25 by Plaintiff's own conduct, promises and representations to Defendant, and failure to take actions 26 to mitigate these losses, injuries, or damages. 27 / / / 28 / / /

FORD & HARRISON - 4 - LLP /CAsE No. 8C656483 Alloi

1 SIXTEENTH AFFIRMATIVE DEFENSE 2 (Speculative Damages and/or Penalties) 3 16. Plaintiff is precluded from recovering the damages alleged in the Complaint 4 because those damages and/or penalties are too vague, ambiguous, excessive, unreasonable, 5 uncertain and speculative to permit recovery. 6 SEVENTEENTH AFFIRMATIVE DEFENSE

7 (Defendant Exercised Reasonable Care to Prevent and 8 Promptly Correct ) 9 17. Without admitting any facts pled by Plaintiff, Defendant asserted that Plaintiffs 10 claims fail because Defendant exercised reasonable care to prevent and promptly correct the 11 alleged harassment and because Plaintiff failed to reasonably take advantage of the corrective 12 opportunities provided by the Defendant. 13 EIGHTEENTH AFFIRMATIVE DEFENSE 14 (Essential Lawful Part of Business Operations) 15 18. Defendant alleges the Complaint, and each purported cause of action contained 16 therein, is barred because the alleged conduct, if true, would be an essential lawful part of 17 Defendant's business operations and/or consistent with industry practice. 18 NINTEENTH AFFIRMATIVE DEFENSE

19 (After-Acquired Evidence) 20 19. Defendant alleges the Complaint, and each purported cause of action contained 21 therein, or some of them, are barred and/or relief may be limited due to after-acquired evidence of 22 Plaintiffs on-the-job and employment-related misconduct.

23 TWENTIETH AFFIRMATIVE DEFENSE 24 (Reasonable Care) 25 20. Defendant alleges the Complaint, and each purported cause of action contained 26 therein, is barred because Defendant exercised reasonable care to prevent and correct promptly 27 any alleged discrimination and Plaintiff unreasonably failed to take advantage of any preventative 28 or corrective opportunities provided by Defendant or to avoid harm otherwise.

FORD de HARRISON - 5 - LLP /CAsE No. 8C656483 ATTORNEYS AT LAW DEFENDANT'S ANSWER TO COMPLAINT LOS A EMI ES DOCUMENT PRINTED ON RECYCLED PAPER Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 6 of 10 Page ID #:56

1 TWENTY-FIRST AFFIRMATIVE DEFENSE 2 (Legitimate Business Reason) 3 21. Defendant alleges the Complaint, and each purported cause of action contained 4 therein, is barred because Defendant had legitimate business reasons, which were not a pretext for 5 retaliation, for taking certain employment action. 6 TWENTY-SECOND AFFIRMATIVE DEFENSE 7 (Mixed Motive) 8 22. As Defendant allege the Complaint, and each purported cause of action contained 9 therein, is barred because in the event that Plaintiff proves any wrongful acts by Defendant, the 10 adverse employment actions about which Plaintiff complains would have been the same even if 11 the alleged wrongful motive played no role. 12 TWENTY-THIRD AFFIRMATIVE DEFENSE 13 (Failure to Show Intent or Willfulness)

14 23. Plaintiff's claims for penalties, including, but not limited to penalties under 15 California Labor Code Sections 203 are barred in whole or in part, because Plaintiff has not 16 alleged, and cannot allege, facts demonstrating, that Defendant's conduct was willful, intentional 17 or harmful. Without admitting any facts pled in the Complaint, Defendant alleges that it engaged 18 in lawful conduct that was with cause and justification, and Defendant is not liable for any 19 purported injuries or claims which Plaintiff now declares. 20 TWENTY-FOURTH AFFIRMATIVE DEFENSE 21 (No Severe Emotional Distress) 22 24. The alleged acts of Defendant were not outrageous, intentional, or reckless, and

23 Plaintiff did not suffer severe emotional distress as a result of Defendant's alleged acts. 24 TWENTY-FIFTH AFFIRMATIVE DEFENSE 25 (No Punitive Damages) 26 25. Defendant alleges that Plaintiff is not entitled to recover the punitive damages in 27 her Complaint as an award of punitive damages would violate Defendant's rights under the 28 Constitution of the United States of America and under the Constitution of the State of California,

FORD & HARRISON - 6 - 1.1.P /CAsE No. BC656483 ATTORNErs AT LAW DEFENDANTS ANSWER TO COMPLAINT Los ANGEI ES DOCUMENT PRINTED ON RECYCLED PAPER Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 7 of 10 Page ID #:57

1 including Defendant's rights to (1) procedural due process under the Fourteenth Amendment of 2 the United States Constitution and the Constitution of the State of California; (2) protection for

3 "excessive fines" as provided in the Eighth Amendment of the United States Constitution and 4 Article I, Section 17 of the Constitution of the State of California; and (3) substantive due process 5 provided in the Fifth and Fourteenth Amendments of the United States of America Constitution 6 and the Constitution of the State of California. 7 TWENTY-SIXTH AFFIRMATIVE DEFENSE 8 (Avoidable Consequences Doctrine)

9 26. Defendant alleges the Complaint, and each and every cause of action alleged 10 therein, is barred on the ground that, without admitting that it engaged in any of the acts or

11 conduct attributed to it in the Complaint, that Plaintiff's claims and damages are barred in whole 12 or in part by Plaintiff's failure to take reasonable and necessary steps to avoid the harm and/or 13 consequences she allegedly suffered. Plaintiff is barred from recovering any damages that she 14 could have avoided with reasonable effort by, inter alia, taking advantage of the Defendant's 15 internal complaint procedures. 16 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 17 (Pre-Existing Condition)

18 27. To the extent Plaintiff suffered any symptoms of mental or emotional distress or 19 injury, they were the result of pre-existing psychological disorders or alternative concurrent 20 causes, and not the result of any act or omission of Defendant. 21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 22 (Undue Burden)

23 28. Defendant alleges the accommodation(s) sought by Plaintiff for her alleged 24 disability and/or medical condition would impose an undue hardship on Defendant in that such an

25 accommodation would be burdensome and unduly affect the operations of the Company. 26 / / / 27 / / / 28 / / /

FORD & HARRISON - 7 - LLP /CAsE No. BC656483 AlliTIMETS AT LAW DEFENDANTS ANSWER TO COMPLAINT LOS MUM FS DOCUMENT PRINTED ON RECYCLED PAPER

Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 8 of 10 Page ID #:58

1 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 (Release) 3 29. The Complaint, and each purported cause of action alleged therein, is barred on the 4 ground that Plaintiff released and waived any and all claims she may have against Defendant. 5 THIRTIETH AFFIRMATIVE DEFENSE 6 (Third Parties) 7 30. Defendant alleges that the Complaint, and each purported cause of action 8 contained therein, is barred in whole or in part because any injuries or damages allegedly 9 sustained by Plaintiff were not the result of any acts, omissions or other conduct of Defendant. 10 Further, any alleged injuries were caused in part or in whole by third parties or intervening 11 occurrences. 12 THIRTY-FIRST AFFIRMATIVE DEFENSE 13 (Lack of Knowledge) 14 31. Defendant alleges that the Complaint, and each purported cause of action 15 contained therein, is barred in whole or in part and limited by its lack of actual or constructive 16 knowledge. Plaintiff did not inform Defendant of any alleged discrimination, failure to engage in 17 the interactive process, retaliation, failure to prevent, emotional distress, or wrongful termination 18 prior to filing a . Plaintiff; therefore, did not provide Defendant with an opportunity to 19 correct any alleged violations and provide the appropriate remedy, if any, to Plaintiff prior to the 20 time the Complaint was filed. 21 THIRTY-SECOND AFFIRMATIVE DEFENSE 22 (Incorrect Employer) 23 32. Any recovery by Plaintiff is barred as against Defendant because it was not an 24 employer of Plaintiff nor did it employ any persons that allegedly engaged in any offensive or 25 unlawful conduct as alleged by Plaintiff. 26 / / / 27 / / / 28 / / /

FORD & HARRISON - 8 - LLP /CAsE No. BC656483 ATTORNETS AT LAW DEFENDANT'S ANSWER TO COMPLAINT LtIS AMIN IS DOCUMENT PRINTED ON RECYCLED PAPER Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 9 of 10 Page ID #:59

1 THIRTY-THIRD AFFIRMATIVE DEFENSE 2 (Business )

3 33. Any recovery on Plaintiff's Complaint is barred on the ground that every action 4 taken with respect to Plaintiff was done out of business necessity. 5 RESERVATION OF RIGHTS 6 Defendant reserves the right to amend or add any additional defenses or counterclaims

7 which may become known during the course of . 8 WHEREFORE, Defendant prays as follows: 9 1. That Plaintiff takes nothing by way of her Complaint; 10 2. That Defendant recover attorneys' fees, expert fees and investigator fees; 11 3. That Defendant recover costs of suit herein; and 12 4. That the Court award such other and further relief as it deems appropriate. 13

14 Dated: May 16, 2017 Respectfully submitted, 15 FORD & HARRISON LLP 16 By: 17 Da lel B Chammas Hilda Aguilar 18 Attorneys for Defendant QUEST DIAGNOSTICS CLINICAL 19 LABORATORIES, INC. 20 21 22

23 24 25 26 27 28

FORD & HARRISON - 9 - LLP /CAsE No. BC656483 ATTOkNEIS AT LAW DEFENDANTS ANSWER TO COMPLAINT Los A ticsiss DOCUMENT PRINTED ON RECYCLED PAPER Case 2:17-cv-03743-AB-JPR Document 1-8 Filed 05/17/17 Page 10 of 10 Page ID #:60

1 PROOF OF SERVICE

2 I, Anne Moreno, declare:

3 I am a citizen of the United States and employed in Los Angeles County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address 4 is 350 South Grand Avenue, Suite 2300, Los Angeles, California 90071. On May 16, 2017, I served a copy of the within document(s): 5 DEFENDANT QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC.'S 6 ANSWER TO PLAINTIFF FE PALOMIQUE'S UNVERIFIED COMPLAINT

7 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set 8 forth below. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited 9 with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on of the party served, 10 service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 11 by placing the document(s) listed above in a sealed FedEx Overnight envelope and 12 affixing a pre-paid air bill, and causing the envelope to be delivered to a FedEx agent for delivery. 13 by personally delivering the document(s) listed above to the person(s) at the 14 address(es) set forth below.

15 Sean M. Kneafsey, Esq. Jeremy Pasternak, Esq. Joyce J. Choi, Esq. Law Offices of Jeremy Pasternak 16 The Kneafsey Finn, Inc. 445 Bush Street, Sixth Floor 800 Wilshire Blvd., Suite 710 San Francisco, CA 94108 17 Los Angeles, CA 90017 Telephone: (415) 693-0300 Telephone: (213) 892-1200 Facsimile: (415) 693-0393 18 Facsimile: (213) 892-1208 Email: Email: [email protected] [email protected] 19 [email protected] Attorneys for Plaintiff 20 FE PALOMIQUE 21 I declare under penalty of under the laws of the State of California that the above is true and correct. 22 Executed on May 16, 2017, at Los Angeles, California. 23 LexO 24 94114—Anne Moreno 25 26 27 28

FORD & HARRISON LLP /CASE No. BC656483 ATTORNEYS AT LAW DEFENDANT'S ANSWER TO COMPLAINT LOS AMIN TS DOCUMENT PRINTED ON RECYCLED PAPER