Free Answer to Complaint - District Court of California - California

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MARTIN & MARTIN, LLP (StateBar No. 131397) 2 Areva D. Martin, Esq. RosaM. Kwong,Esq.(State Bar No. 12981 1) a J 3530WilshireBoulevard. Suite1650 California 90010 4 Los Angeles, Telephone:(213) 388-4747 5 Facsimile:(213)388-6655
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Attorneys for Defendant,A&B MAINTENANCE, INC.

IN THE UNITED STATESDISTRICT COURT FOR THE NORTHBRNDISTRICT OF CALIFORNIA

EMPLOYEES CALIFORNIASERVICE t 2 HEALTH & WELFARETRUSTFLIND, et al.,
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NO.: CO7-4945TEH The HonorableThelton E. Henderson

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Plaintiffs,
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A&BMAINTENANCE, INC., Defendant.

DEFENDANT A&B MAINTENANCB, INC.'S ANSWER TO COMPLAINT AND COUNTERCLAIM

AND RELATED COLINTERCLAIM

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TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD HEREIN:

INC.'SANSWER DEFENDANT A&B MAINTENANCE, TO COMPLAINTAND COUNTERCLAIM

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COMES NOW A&B MAINTENANCE, INC. ("Defendant")in answer the to Complaint of Piaintiffs CALIFORNIA SERVICE EMPLOYEES HEALTH GARCIA, &

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WELFARE TRUST FLIND ("Trust"), MIKE

Trustee, CHARLES

GILCHRIST, Trustee,RAYMOND C. NANN, Trustee,LARRY T. SMITH, Trustee ("Trustees") (collectively, "Plaintiffs"), states follows: as 1. In answering ParagraphI of the complaint, Defendantlacks sufficient

information to either admit or deny the allegationstherein and, basedthereon, denies saidallegations. 2. 3. 4. 5. Defendant admitsthe allegations Paragraph of the Complaint. in 2 Defendant admitsthe allegations Paragraph of the Complaint. in 3 Defendant admitsthe allegations Paragraph of the Complaint. in 4 Defendantdeniesthat the allegedbreaches under ERISA occurredin the

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OaklandDivision of the NorthernDistrict of the United States District Court wherethis action is filed. As for the remaining allegationsin Paragraph5 of the Complaint,

lackssufficientinformationto eitheradmit or deny and.therefore. deniessaid 2 0 Defendant
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allegations. 6. Defendant denies allegations Paragraph of the Complaint. the in 6 Defendantadmitsthat Plaintiffs' recitationof the law in Paragraph of the 7

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7.

Complaintis accurate. 8. Defendantadmitsthat Plaintiffs' recitationof the law in Paragraph of the 7

2 8 Complaintis accurate.
DEFENDANT A&B MAINTENANCE, INC.'SANSWER TO COMPLAINTAND COUNTERCLAIM

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7 of the Defendantadmits that Plaintiffs' recitationof the law in Paragraph

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Complaintis accurate. 10. 7 ParagraPh of the Defendantadmitsthat Plaintiffs' recitationof the law in

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Complaintis accurate. 11. 7 ParagraPh of the Defendantadmitsthat Plaintiffs' recitationof the law in

Complaintis accurate. by the Maintenance 12. Defendant admits it was a party to and bound effectivefrom March 1,2005 throughFebruary28,2009' Market Agreement contractors as to Defendant make contributions allegedin requires Defendantadrnitsthe Agreement 12 Paragraph of the ComPlaint' 13. complaint as they 13 in Defendantadrnitsthe allegations Paragraph of the

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effective from March I ' 2005 apply to the Maintenancecontractors Market Agreement

lackssuffrcientinforrnationto admit or deny the 1 7 throughFebruary 2g,2009.Defendant
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and termsof the Trust'splan Documents, the rules,regulations regarding,,the allegations of the Trust Agreement." and policies adoptedby the Trusteesunder the authority and policies regulations or Defendanthas never receivedrrust plan documents rules, or, for that matter'a copy adoptedby the Trusteesunderauthorityof the Trust Agreement of the Trust Agreement. 14 of the Complaintas they in 14. Defendantadmitsthe allegations Paragraph effective from March l , 2 0 0 5 apply to the Maintenancecontractors Market Agreement

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2 8 throughFebruary28, 2009'
DEFENDANTaaeNaail-rENANcEJNc.'saNTwBRtocouplatnTANDcoUNTERcLAIM

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15.

In answeringParagraph15 of the complaint, Defendantlacks sufficient

therefore,denies information to either admit or deny the allegationsstatedtherein and, saidallegations. 16. In answeringparagraph16 of the Compiaint, Defendantlacks sufficient

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denies statedtherein and, therefore, informationto either admit or deny the allegations saidallegations. 17. In answeringParagraph17 of the complaint' Defendantlacks sufficient

denies therefore, infbrrnationto either admit or deny the allegationsstatedtherein and, saidallegations. 18. lacks sufficient 1B In answeringParagraph of the complaint, Defendant

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denies statedtherein and, therefore, informationto either admit or deny the allegations saidallegations. lg. In answeringParagraph19 of the complaint, Defendantlacks sufficient

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denies statedtherein and, therefore, informationto either admit or deny the allegations

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sufficient 20 In answeringParagraph of the complaint, Defendantlacks

denies statedtherein and, therefore, informationto either admit or deny the allegations saidalleeations. 21. In answeringParagraph2l of the complaint, Defendantlacks sufficient

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denies therefore, information to either admit or deny the allegationsstatedtherein and, saidallegations.
ER TO COMPLAINTAND COUNTERCLAIM

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22.

In answeringParagraph of the Complaint, Defendantlacks sufficient 22

information to either admit or deny the allegationsstatedtherein and, therefore,denies saidallegations. 23. Defendant denies it breachedthe terms of the MaintenanceContractors

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Market Agreementeffectivefrom March 1,2005 throughFebruary28,2009. Defendant lacks sufficient informationto either admit or deny the remainderof the allegations in Paragraph of the Complaint. 23 24. Defendantdeniesit failed to timely pay the Trust contributions hours for

worked by covered employees, deniesthat it breachedthe terms of the Maintenance Market Agreement effectivefrom March l, 2005throughFebruary28,2009 Contractors and denies that it is liable for the damages, fees and costs claimed by Plaintiffs in Paragraph of the Complaint. Defendant 24 lackssufficientinformationto eitheradmit or

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1 7 deny the allegationthat it breached the Trust Agreementand, therefore,deniessaid 18

allesation.
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Defendant denies allegations Paragraph of the Complaint. the in 25 for Defendantdeniesthat it has receivednumerousdemands paymentfrom

Plaintiffs or that it owes Plaintiffs the damages allegedin the Complaint. Defendant
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admits it hasrefusedto pay the amountsdemanded Plaintiff. by 27. Defendantadmitsthat during particularperiodsrelevantto this action,not

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performedwork coveredby the Maintenance Market all of its employees Contractors

effectivefrom March 1,2005throughFebruary28,2009. 2 8 Agreement
T D E F E N D A N T & B M A I N T E N A N C EI.N C . ' S N S W E R O C O M P L A T N T N D C O U N T E R C L A I M A A A

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ANSWBRING THE FIRST CAUSE OF ACTION FOR AN ORDER THAT DEFENDANT PERMIT EXAMINATION OF BUSINESSRECORDS 28. Defendantreiterates and incorporates responses paragraphs through its to 1

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27, infra, as though set forth herein. 29. Defendantadmitsthat during particularperiodsrelevantto this action,not

all of its employees performedwork coveredby the Maintenance Market Contractors Agreement effectivefrom March 1,2005throughFebruary28,2009. 30. 31. 32. Defendant admitsthe allegations Paragraph of the Complaint. in 30 Defendant admitsthe allegations Paragraph of the Complaint. in 31 Defendant lacks sufficient information to either admit or deny the

allegations Paragraph of the Cornplaint in 32 and,therefore, denies saidallegations.
33. Defendant adrnits Plaintiffs have a risht to conduct an audit of Defendant's

1 8 businessrecords for reasonsalleged in Paragraph33 of the Complaint, but lacks l9 20 21 22
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sufficientinformationto eitheradmit or denythe remainingallegations saidparagraph in and,therefore, deniessaidallegations. ANSWERING THB SECOND CAUSE OF ACTION FOR PAYMENT OF DELINQUENT CONTRIBUTIONS 34. Defendantreiterates and incorporates responses paragraphs through its to 1

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33, infra, as thoughset forth herein.

D E F E N D A N T & B M A I N T E N A N C E , I N C . 'A N S W E R O C O M P L A I N T N D C O U N T E R C L A I M A S T A

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35.

Defendantadmits it agreedto be bound by the Maintenance Contractors

Market Agreementeffectivefrom March 1,2005 throughFebruary28,2009. Defendant lackssufficientinformationto eitheradrnitor denythe allegations Paragraph of the in 35 Complaint and, therefore,deniessaid allegations that it has never received"Trust in Agreement andPlanDocuments." 36. Defendant denies the allegationrespectingthe MaintenanceContractors

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Market Agreementeffectivefrom March 1,2005 through February28,2009, but lacks sufficient information to either admit or deny the allegationsregarding the Trust

and,therefore, deniessaidallegations. t 7 Agreement l3
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Defendant denies allegations Paragraph of the Complaint. the in 37 ANSWERING THE THIRD CAUSE OF ACTION FOR IN.IUNCTIVE RELIEF

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Defendantreiterates and incorporates responses paragraphs through its to 1

37, infra,as thoughset forth herein.
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Defendantlacks sufficient informationto admit or deny the allegations in

2 1 Paragraph of the Complaintand,therefore, 39 denies saidallegations. 22
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ANSWERING PRAYER FOR RELIEF 1. Defendant denies there is basis for an order of examinationsought by

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Plaintiff. Defendantsubmittedto Plaintiffs' audit/examination prior to Plaintiffs filing

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D E F E N D A N T & B M A I N T E N A N C EI.N C . ' S N S W E R O C O M P L A I N T N D C O U N T E R C L A I M A A T A

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2.

Defendantobjectsto, and deniesany liability for, the damages soughtfor

recoveryin subparagraphs through(g) of the Complaint. (a) 3. 4. Defendant objectsto and opposes Plaintiffs' demandfor injunctiverelief. Defendant objectsto and denies that Plaintiff is entitledto any relief. Additionally,Defendant alleges following affirmativedefenses: the FIRST AFFIRMATIVE DEFENSEOF IMPROPER VENUE 1. Plaintiffs are not entitled to maintain this claim in that the claim is

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commenced an improper in venueandis subject transfer to under28 U.S.C.A. 1404. $ SECOND AFFIRMATIVE DEFENSE OF FRAUD IN THE INDUCEMENT 2. Plaintiffsare not entitledto relief undertheir Complaintin that they induced

Defendant enterinto the Maintenance to Contractors Market AsreementeffectiveMarch 1,2005throughFebruary28,2009throughfraud,deceitand misrepresentation. THIRD AFFIRMATIVE DEFENSE OF SETOFF 3. Plaintiffs' claim is barred,shouldbe reducedor setofl'by the amountsin

contributions,in excessof its obligation under the MaintenanceContractors Market Agreementeffective March 1,2005 through February 28,2009, Defendanthas paid PlaintiffssinceMay of 2006.

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DEFENDANT A&B MAINTENANCE, INC.'SANSWERTO CONIPLAINT AND COUNTERCLAIM

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FOURTH AFFIRMATIVE DEFENSE OF FAULT OF OTHBRS 4. The damages allegedby Plaintiffshereinwere and are caused contributed or

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to by other parties, whether named and whether known to Defendant at this time. Defendant, therefore, not liable for Plaintiffs' damages, is allegedherein,or if it is found with any liability therefor, the amount in damagesshould be apportionedbetween Defendant the responsible partiesaccording their respective and percentages fault. to of praysfor Judgment follows: WHEREFORE,Defendant as 1. 2. 3. That Plaintiffstakenothingby way of their Complaint; That Judgment rendered favor of Defendant be in Plaintiffs; and against That Defendant declared prevailingparty in this actionand receivean be the

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awardof attorney'sfees,whereauthorized statue contract; by or 4. That the court provide Defendant with other and further relief as it deems

just andproper. COUNTERCLAIM Defendant A&B MAINTENANCE, INC. ("A&8") counterclaims against

Plaintiffs CALIFORNIA SERVICE EMPLOYEES HEALTH & WELFARE TRUST
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FIIND

("Trust"), MIKE

GARCIA, Trustee, CHARLES GILCHRIST, Trustee,

RAYMOND C. NANN, Trustee, (collectively, LARRY T. SMITH, Trustee("Trustees") "Plaintiffs") and allesesas follows:

DEFENDANT A&B MAINTENANCE, INC,'SANSWERTO COMPLAINTAND COUNTERCLAIM

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JURISDICTION
1. The United StatesDistrict Court is the proper jurisdiction for A&B'S

counterclairn that Plaintiffsseekto assert in their rightsunderERISA.

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VENUE
2. Venue exists in the Northern District of the United StatesDistrict Court

because is a districtwithin which Plaintiffsconductsorneof their business. it Venuein the CentralDistrict of the United States District Court is likewiseproperbecause that is where A&B conductsall of its business, (for both where all of the materialwitnesses Plaintiffsand Defendant) reside,whereall of A&B'S recordsand someof Plaintiffs' recordspertaining the claim and counterclaim kept and wherethe allegedactsand to are giving riseto this actionwouldhaveoccurred, at all. omissions if FIRST CAUSB OF ACTION FOR FRAUD AGAINST ALL PLAINTIFFS 3. A&B has beena partyto a collectivebargaining agreement with the Service

EmployeesInternationalUnion, Local 1877, since around October 2005. Plaintiffs maintainand administer ljnion members the healthand welfarebenefits. 4. In or aroundMay of 2006,David Stilwell, a representative the Trust and of

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self-described an assistant the "President" the Trust's Board of Trustees. as to of offered to discountA&B's monthly contributions the Trust from $570.20to $541 to .20 per covered ernployeein exchangefor A&B's agreeingto a new collective bargaining

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DEFENDANT A&B MAINTENANCE, INC,'SANSWER'TO COMPLAINTAND COUNTERCLAIM

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agreement with Plaintiffs. David Stilwell made the offer to A&B'S generalmanager ThomasDunn in writins. 5. upon Defendant of The offer was conditioned expeditingits acceptance the

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new agreementon or before May 15, 2006. Plaintiffs, through David Stilwell, represented A&B that the promiseddiscountwould begin with the month of May to 2006. 6. Relying on Plaintiffs' representation, in order to take advantage the and of

prornised discount,ThornasDunn did foregofurthernegotiations the terrnsfor a new of

t 2 collective bargaining agreementand executedthe MaintenanceContractorsMarket
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Agreement effectiveMarch l, 2005throughFebruary28, 2009 ("Agreement")provided throughDavid Stilwell. by Plaintiffs 7. On May 14, 2006, ThornasDunn causedthe executedAgreementto be

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to in submitted Plaintiffs' Southern Californiaheadquafters Los Angeles, California. 8. At the time that Plaintiffsmadethe aforesaid offer to A&B, throushDavid

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Stillwell,Plaintiffshad no intentionof honoringtheir offer. 9. offer to A&B exclusivelyfor the purposeof Plaintiffs made the aforesaid

by inducing A&B's execution the Agreement May 15,2006. of
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10.

Plaintiffs have continued invoicing and charging A&B for its rnonthly

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to contributions the Trust at the rateof S570.20. 11. that Plaintiffsfulfill their promiseto discount Defendant's multiple requests

have been ignored. Defendant,in an effort to carry out its 2 8 the monthly contributions
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obligationsunder the Agreement,has continuedto make contributionsto the Trust at the rateor ratescontained Plaintiffs' monthlybilling statements. in 12. Had Defendant known that Plaintiffsdid not intendto keeptheir promiseof

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a discounted contribution rate.Defendant would not haveexecuted Asreement the within the time frameurgedby Plaintiffs. 13. Plaintiffs purposefully made the aforesaidrepresentations Defendant to

knowing the representations were false and that they did not intend to carry out their promise to discount A&B'S contributionrate. Plaintiffs did so with malice and

that their fraud/deceit will hann A&B financially. Defendant entitledto an is 1 2 knowledge
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amountin damages equalto the difference betweenits contributions madesinceMay of 2006 and the contributions that it shouldhavemadehad Plaintiffsusedthe discountrate alongwith an amountin darnages to sufficient makean example Plaintiffs. of SECOND CAUSE OF ACTION FOR SETOFF AGAINST ALL DEFENDANTS 14. A&B incorporatesthe allegationsin paragraphsI through I I of the

2 1 Counterclaim thoughfully setforth herein. as 22
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Plaintiffs'refusal carrytheir promiseof the above-referenced to discounted

of toward the 24 monthly contributionproximatelyresultedin overpayments contributions
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covered employees' healthand welfarebenefits. 16. At all times relevant to the Complaint and the herein Counterclaim,

to 2 8 Plaintiffshad, and continue have,in placea policy and practiceof refundingemployers
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for overpayments what Plaintiffscall "improperpayments," saidoverpayments or if were madefor a month duringthe last 12 monthsfor which the employerwas auditedor tested by Plaintiffs. 17. Under the refundpolicy adopted Plaintiffs,A&B is entitledto offset any by

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allegedunderpayments delinquencies or againstpast overpayments madeto Plaintiffs it as a resultof Plaintiffs' refusalto cary out its promiseto discountcontributions owed by A&B. THIRD CAUSE OF ACTION FOR BREACH OF COLLECTIVE BARGAINING AGREEMENT AGAINST ALL DEFENDANTS 18. Article XX, $ A. of the Agreement states pertinent in part as follows: "Any grievance disputeconcerning interpretation or the or application this Agreement of may be submitted a as grievance, sucha grievance but neednot be considered unlessnoticein writing is servedupon the other party settingforth the natureof the grievance. When suchnotification is servedupon the otherparty,thefollowing procedure shall be observed:. .. L The Employeror his/her representative shallmeetwith

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a representative the union and attemptto resolvethe issue of in dispute;if thenthey areunableto resolvethe dispute, it shallupon request the movingparty: of 2. Be referred a committee to composed two of

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representatives designated the Union andtwo by
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representatives designated the Employer;if this by committeeis unableto resolve disputeto the the satisfaction both partieswithin five (5) days,the of moving party may: 3. Submitsgrievance an impartialarbitratorfor arbitration. to

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In the eventthe partiesare unableto agreeupon the (E-phasisadded) of Selection an arbitrator..." 19. A&B is informed and. basedon that information.believesthat on or about

February23,2007, the Union Stewardfor Local 1877members, Adolfo Gamez, filed a grievanceagainstA&8, alleging,amongother things that A&B has failed to timely or fully contribute to the health and welfare benefits of employeescovered by the Asreement. 20. A&B is further inforrnedand, basedthereon,believesthat Adolfo Garnez

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also providedPlaintiffswith a list of the employees whosebehalfcontributions on had

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Plaintiffs did not noti$r A&B regardingsaid grievance. In violationof and

with the afore-excerpted portion of the Agreement,Plaintiffs not only 2 1 contravention
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considered grievance, conducted audit of A&B business the but an recordsin August of 2007 and commenced hereinactionagainst the A&B in October2007 in response Mr. to , Gamez'grievance. Due to Plaintiffs' defectiveserviceof the Complaint,A&B did not learnof the lawsuituntil January2007. To date,A&B hasnot beenprovidedwith a copy of the grievance, it assuming is in writing.
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22.

A&B has beendeprived As a result of Plaintiffs' breachof the Agreement,

grievances of the due process handlingemployee for which was a materialconsideration offeredA&B in exchange A&B's acceptance the Agreement. for of 23. The contractualdue processrights, of which A&B has been deprived

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includes,among other things, its right to an informal meetingwith Plaintiffsto resolve the grievance, a hearing before a special committee consisting of the parties' representatives arbitration. and 24. As a proximateresult of Plaintiffs' breachof the Agreement,as set fonh

above,A&B has incurredcosts,expenses attorney'sfees in settingasidethe partial and defaultjudgment enteredagainstA&8, in responding the Cornplaintand filing the to hereinCounterclairn, which could have beenavoidedhad it had been notified of the

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and given an opportunity pursueinformalresolutionof the grievance.A&B to 1 6 grievance
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anticipates incurringadditionalcosts, and expenses attorney's feesto defenditself against the hereinComplaint.

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A&B praysas for Judgment its favor as follows: in WHEREFORE,, FIRST CAUSE OF ACTION FOR FRAUD 1. time of trial. 2. in For an amountin damages excess compensatory of damages which will For compensatory the damages, exactamountof which will be provenat the

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serveto makean exampleof Plaintiffs.

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3. proper.

just and For cost of suit hereinand any other relief which this court deems

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SECOND CAUSE OF ACTION FOR A SETOFF 1. For an amount to offset A&B's overpayment of employee benefits

contributions, exactamountof which will be provenat the time of trial. the 2. proper. THIRD CAUSE OF ACTION FOR BREACH OF COLLECTIVE BARGAINING AGREEMENT L trial. 2. 3. proper. For attorney'sfees,wheresanctioned contractor statute. by just and For cost of suit hereinand any otherrelief which this courtdeems For compensatory the damages, exact arnountto be proven at the time of just and For cost of suit hereinand any other relief which this court deems

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l6 TO COMPLAINTAND COUNTERCLAIM DEFENDANT A&B MAINTENANCE. INC.'SANSWER

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DEMAND FOR JURY TRIAL
A&B Maintenance, Inc., in its capacity as Defendant and Counter-claimant,

hereby demandsjury trial.

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Dated: February20, 2008

MARTIN & MARTIN. LLP .,+^ //) t ,-, / tl,c ' ' r r - i l l l l r , r , ( r ^ . , & . o v / " '
, ,

BY

ArevaD. Ma(in, Erq. RosaM. Kwong,Esq. Attorneys for Defendantand Counterclaimant A&B MAINTENANCE. INC.

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D E F E N D A N T A & B M A I N T E N A N C E , I N C . ' SA N S W E R T O C O M P L A I N T A N D C O U N T E R C L A I M

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employedin the Countyof Los Angeles,Stateof California. I afil over the ageof 18 and not aparty to the within action;my business address 3530 Wilshire is Boulevard, Suite1650, Los Angeles, California 90010. On Februu.y 'JD , 2008,I served foregoingdocument the described as DEFENDANT A&B MAINTENANCE, INC.'S ANSWER TO COMPLAINT ANI) COUNTERCLAIM on all interested partiesin this actionby placinga true copythereof, enclosed a sealed in envelope, addressed follows: as PhilipM. Miller, Esq. (Via E-Mail to: [email protected] U.S.Mail) and SALTZMAN & JOHNSONLC 120HowardStreet, Suite520 SanFrancisco, California94105

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BY MAIL: I am familiar with this firm's practiceof collectingand processingcorrespondence mailing. lJnder that practice it would be for depositedwith the U.S. Postal Service on that same duy with postage thereonfully prepaidat Los Angeles, California,in the ordinarycourseof business. I am aware that on motion of the party, service is presumed invalid if postalcancellation dateor postage meterdateis morethanone day after dateof depositfor mailingan affidavit. BY ELECTRONIC SERVICE: I caused deliveryof the abovedocurnent to be sentto the personat the e-rnailaddress listedabove.

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STATE I declare under penalfy of perjury under the laws of the State of California that the aboveis true and correct. FEDERAL I declarethat I am employedin the office of the memberof the bar of this court at whosedirectionthe service was macie. Executed February ') L on california. , 2008,at Los Angeles,

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D E F E N D A N T A & B M A I N T E N A N C E , I N C . ' S A N S I V E RT O C O M P L A I N T A N D C O U N T E R C L A I M

Shonte