Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01215-IEG-JMA

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Filed 07/31/2008

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STEPHEN J. SCHULTZ, SBN 90187

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MARK T. BENNETT, SBN 89061 E-Mail: [email protected]

MARKS, GOLIA & FINCH, LLP
ATTORNEYS AT LAW 3900 HARNEY STREET ­ FIRST FLOOR

SAN DIEGO, CALIFORNIA 92110-2825
TELEPHONE: (619) 293-7000 FACSIMILE: (619) 293-7362

Attorneys for Defendant Sodexo America, LLC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

SYLVIA M. ORTIZ, Plaintiff, v. SODEXO, INC., a Delaware corporation, Defendant.

CASE NO: 08 CV 1215 IEG JMA DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT FOR DAMAGES Date Filed: July 8, 2008 Trial Date: None Set

Defendant Sodexo America, LLC, which is referred to in the Complaint for Damages ("Complaint") as Sodexo, Inc., ("Sodexo")1 answers the Complaint and states as follows: FIRST CLAIM Sodexo denies that it has violated its statutory duties under California Code § 12940 et seq. 1. Upon information and belief, Sodexo admits the allegations

contained in paragraph 1 of the Complaint. ///
Sodexo America, LLC is a subsidiary of Sodexo, Inc. and is the contracting entity that manages Sodexo's contract at Sharp Grossmont Hospital. ____________________________________________________________________________ DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT FOR DAMAGES CASE NO: 08 CV 1215 IEG JMA

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2.

Sodexo America, LLC admits that it is a Delaware single member

limited liability company and admits that its principal place of business is in Maryland as alleged in paragraph 2 of the Complaint. 3. Complaint. 4. Sodexo admits that, in August 2007, plaintiff was a Sodexo Sodexo denies the allegations contained in paragraph 3 of the

employee working in San Diego County. Sodexo also admits that the period of plaintiff's employment by Sodexo was from on or about July 31, 2006 until on or about September 7, 2007. Sodexo admits that plaintiff's employment ended on or about September 7, 2007. Except as specifically admitted herein, Sodexo denies the allegations contained in paragraph 4 of the Complaint. 5. Complaint. 6. Upon information and belief, Sodexo admits that plaintiff filed a Sodexo denies the allegations contained in paragraph 5 of the

Complaint for Discrimination with the Department of Fair Employment and Housing and that that case is closed. Except as specifically admitted, Sodexo denies the allegations contained in paragraph 6 of the Complaint. 7. Complaint. 8. Complaint. 9. Sodexo is without knowledge or information sufficient to form a Sodexo denies the allegations contained in paragraph 8 of the Sodexo denies the allegations contained in paragraph 7 of the

belief as to whether plaintiff has incurred and/or will continue to incur attorneys' fees and expenses and on that basis denies those allegations. Sodexo denies that it has violated the California Government Code and further denies that plaintiff is entitled to recover attorneys' fees and costs from Sodexo. Except as specifically
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admitted, Sodexo denies each and every allegation contained in paragraph 9 of the Complaint. 10. Complaint. SECOND CLAIM 11. Sodexo incorporates by reference its responses to paragraphs 1 and 2 Sodexo denies the allegations contained in paragraph 10 of the

of the Complaint by reference. 12. Complaint. 13. Sodexo admits that plaintiff was employed by Sodexo in Sodexo denies the allegations contained in paragraph 12 of the

August 2007. Sodexo admits that plaintiff's employment ended on or about September 7, 2007. Except as specifically admitted, Sodexo denies the allegations contained in paragraph 13 of the Complaint. 14. Complaint. 15. Sodexo is without sufficient information to admit or deny whether Sodexo denies the allegations contained in paragraph 14 of the

plaintiff has incurred and/or will continue to incur attorneys' fees and expenses. Sodexo denies that it has violated the California Labor Code and further denies that plaintiff is entitled to recover attorneys' fees from Sodexo. Except as specifically admitted, Sodexo denies the allegations contained in paragraph 15 of the Complaint. 16. Sodexo denies that plaintiff is entitled to any of the damages or other

relief identified on page 5 of her Complaint. WHEREFORE, Sodexo, having answered the Complaint prays as follows: /// ///
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That the Complaint be dismissed with prejudice, that Sodexo be awarded its costs, including reasonable attorneys' fees, and that the Court awards such other and further relief as it deems just and proper. AFFIRMATIVE DEFENSES Sodexo, without admitting any of the allegations of the Complaint, asserts the following affirmative defenses:
1.

Any claim for employee benefits is completely preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.;

2. 3.

Plaintiff fails to state any claim upon which relief can be granted; Plaintiff's claims are barred by the failure to exhaust all state and federal administrative remedies;

4.

Plaintiff is estopped by her conduct from receiving any relief against Sodexo;

5.

Plaintiff has waived and/or released any right to recovery against Sodexo;

6.

Plaintiff's claims are barred by all applicable state and federal statutes of limitations;

7. 8.

Plaintiff's claims are barred by laches; Plaintiff's claims are barred because any employment was terminable at-will with or without cause;

9.

If it is found that plaintiff was terminated by Sodexo and that plaintiff was not employed at-will, plaintiff's claims are barred on the grounds that any decision was made in good faith based upon good and reasonable cause which was acquired before, during, or after plaintiff's employment;

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10.

Plaintiff's claims are barred because Sodexo's alleged conduct was privileged, excused, and/or justified;

11.

Plaintiff's claims are barred on the grounds that plaintiff has or had unclean hands;

12.

Plaintiff's claims are barred or reduced by the breach of her statutory obligations and by her misrepresentations;

13.

Plaintiff's claims are barred or reduced by contributory negligence or fault and/or comparative negligence or fault;

14.

Plaintiff's claims are barred by the exclusive remedy under the California Workers' Compensation Act in that her alleged injuries involve compensable injuries which occurred, if at all, when plaintiff was subject to the compensation provisions of the California Workers' Compensation Act;

15.

Plaintiff's claims are barred, in whole or in part, by her failure to mitigate damages;

16.

Plaintiff has been paid and/or received all sums and benefits due by virtue of plaintiff's employment;

17.

Plaintiff's claims are barred by the business necessity/job relatedness defense;

18. 19. 20.

Plaintiff's claims are barred by the avoidable consequences doctrine; Plaintiff's claims are barred because Sodexo did not act willfully. Plaintiff's claims are barred as plaintiff's gender/religion was not a motivating factor in any employment decisions involving her; and

21.

Defendant reserves the right to amend the Answer to assert additional defenses as the claims of plaintiff become more fully disclosed during the course of the litigation.

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WHEREFORE, Sodexo, having asserted its affirmative defenses, prays as follows: That the Complaint be dismissed with prejudice, that Sodexo be awarded its costs, including reasonable attorneys' fees, and that the Court award such other and further relief as it deems just and proper. DATED: July 31, 2008 Respectfully submitted, MARKS, GOLIA & FINCH, LLP

/S/ Mark T. Bennett, Esq. MARK T. BENNETT Attorneys for Defendant Sodexo America, LLC E-Mail: [email protected]

By:

860.034/mtb302.bdp

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that this document has been filed electronically on this 31st of July 2008 and is available for viewing and downloading to the ECF registered counsel of record: Via Electronic Service/ECF: Sean T. O'Bryan, Esq. Attorney for Sylvia M. Ortiz [email protected] DATED: July 31, 2008 MARKS, GOLIA & FINCH, LLP By: /S/ Mark T. Bennett, Esq. MARK T. BENNETT Attorneys for Defendant Sodexo America, LLC E-Mail: [email protected]

____________________________________________________________________________ DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT FOR DAMAGES CASE NO: 08 CV 1215 IEG JMA