DAVIS WRIGHT TREMAINE LLP - Phillips, Erlewine, …€™s avers that the remaining allegations in...

Case No. 3:15-cv-00815-WHA DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED CLASS ACTION COMPLAINTDWT 26642359v3 0058864-000022

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JANET L. GRUMER (State Bar No. 232723) [email protected] AARON N. COLBY (State Bar No. 247339) [email protected] EVELYN F. WANG (State Bar No. 273622) [email protected] DAVIS WRIGHT TREMAINE LLP 865 South Figueroa Street, Suite 2400 Los Angeles, California 90017 Telephone: (213) 633-6800 Facsimile: (213) 633-6899 Attorneys for Defendants LANDRY’S, INC., and McCORMICK & SCHMICK RESTAURANT CORP.

IN THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

MOUANG SAECHAO, individually and on behalf of all others similarly situated, Plaintiff, vs. LANDRY’S, INC., a Delaware corporation, and McCORMICK & SCHMICK RESTAURANT CORP, Defendants.

Case No. 3:15-cv-00815-WHA [Assigned to the Honorable William H. Alsup] DEFENDANTS LANDRY’S, INC. AND McCORMICK & SCHMICK RESTAURANT CORP.’S ANSWER TO PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT

Case3:15-cv-00815-WHA Document27 Filed05/11/15 Page1 of 26

Case No. 3:15-cv-00815-WHA DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED CLASS ACTION COMPLAINT – 1 DWT 26642359v3 0058864-000022

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Defendants Landry’s, Inc. (“Landry’s”) and McCormick & Schmick Restaurant Corp.

(“McCormick & Schmick”) (collectively, “Defendants”), by and through their attorneys, answer

the First Amended Class Action Complaint (“First Amended Complaint”) of plaintiff Mouang

Saechao (“Plaintiff”) as follows:

INTRODUCTION

1. Answering Paragraph 1 of the First Amended Complaint, McCormick & Schmick

admits that Plaintiff was formerly employed by McCormick & Schmick. McCormick &

Schmick further admits that it has a license to operate a restaurant under the name of Spenger’s

Fresh Fish Grotto located in Berkeley, California. Landry’s denies that it was ever Plaintiff’s

employer. Defendants aver that the remaining allegations in this paragraph are argument and

conclusions of law that require no answer and, to the extent that it contains allegations of fact,

they are denied.

2. Answering Paragraph 2 of the First Amended Complaint, Defendants aver that the

allegations in this paragraph are argument and conclusions of law that require no answer and, to

the extent that it contains allegations of fact, they are denied.

THE PARTIES

3. Answering Paragraph 3 of the First Amended Complaint, Defendants are without

knowledge or information sufficient to form a belief as to the truth of Plaintiff’s alleged

citizenship, and on that basis denies this allegation. McCormick & Schmick admits that

Plaintiff was a former employee of McCormick & Schmick in the non-exempt position of

host/banquet server at the restaurant Spenger’s Fresh Fish Grotto from November 20, 2013 to

December 1, 2014. Landry’s denies that it was ever Plaintiff’s employer.

4. Answering Paragraph 4 of the First Amended Complaint, Landry’s admits that it

is a corporation organized under the laws of the State of Delaware with its principal place of

business in Houston, Texas. Landry’s avers that the remaining allegations in this paragraph are

argument and conclusions of law that require no answer and, to the extent that it contains

allegations of fact, they are denied.



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admits that it is a corporation organized under the laws of the State of Delaware with its principal

place of business in Houston, Texas. McCormick & Schmick admits that it has a license to

operate a restaurant under the name of Spenger’s Fresh Fish Grotto located in Berkeley,

California. Landry’s admits that McCormick & Schmick is a wholly-owned subsidiary of

Landry’s since January 2012. Defendants aver that the remaining allegations in this paragraph

are argument and conclusions of law that require no answer and, to the extent that it contains



admits that Plaintiff was formerly employed by McCormick & Schmick. Landry’s denies that it

was ever Plaintiff’s employer. Defendants aver that the remaining allegations in this paragraph

are argument and conclusions of law that require no answer and, to the extent that it contains


JURISDICTION AND VENUE

7. Answering Paragraph 7 of the First Amended Complaint, Defendants deny that

the value in controversy exceeds the sum of $75,000. Defendants aver that the remaining

allegations in this paragraph are argument and conclusions of law that require no answer and, to

the extent that it contains allegations of fact, they are denied.


admits that Plaintiff was formerly employed by McCormick & Schmick in this Northern District

of California. Landry’s denies that this Court has personal jurisdiction over Landry’s. Landry’s

further denies that it has sufficient minimum contacts with California or with this judicial district.

Defendants aver that the remaining allegations in this paragraph are argument and conclusions of

law that require no answer and, to the extent that it contains allegations of fact, they are denied.


admits that venue is proper. Landry’s denies that venue is proper. Except as specifically

admitted, Defendants deny, generally and specifically, each and every of the allegations in this

paragraph.



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FACTUAL ALLEGATIONS

10. Answering Paragraph 10 of the First Amended Complaint, McCormick &

Schmick admits that it has a license to operate a restaurant under the name of Spenger’s Fresh

Fish Grotto. McCormick & Schmick admits that it employs individuals to work at Spenger’s

Fresh Fish Grotto, including in the non-exempt positions of server, host, banquet server,

bartender, busser, cook, and dishwasher. Except as specifically admitted, Defendants deny,

generally and specifically, each and every allegation contained in this paragraph.


Schmick admits that Richard Villareal is employed as general manager for Spenger’s Fresh Fish

Grotto. McCormick & Schmick admits that Kevin Jones is employed as front manager for

Spenger’s Fresh Fish Grotto. Except as specifically admitted, Defendants deny, generally and

specifically, each and every allegation contained in this paragraph.

12. Answering Paragraph 12 of the First Amended Complaint, Defendants aver that

the allegations in this paragraph are argument and conclusions of law that require no answer and,

to the extent that it contains allegations of fact, they are denied.


Schmick refers to the meal period waiver signed by Plaintiff for a true and correct recitation of

the facts thereof. Except as specifically admitted, Defendants deny, generally and specifically,

each and every allegation contained in this paragraph.

14. Answering Paragraph 14 of the First Amended Complaint, Defendants deny,










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

paragraph, and on that basis deny, generally and specifically, each and every allegation in this

paragraph.


Schmick admits that employees working at Spenger’s Fresh Fish Grotto were on occasion

required to attend meetings during working hours and were required to be clocked-in for such

meetings. Except as specifically admitted, Defendants are without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations in this paragraph, and on

that basis denies, generally and specifically, each and every remaining allegation in this

paragraph.










Schmick admits that certain employees working at Spenger’s Fresh Fish Grotto were

occasionally scheduled to work the lunch and dinner shifts during the same day. McCormick &

Schmick further admits that employees working at Spenger’s Fresh Fish Grotto were on occasion


meetings. Except as specifically admitted, Defendants are without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations in this paragraph, and on

that basis denies, generally and specifically, each and every remaining allegation in this

paragraph.



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25. Answering Paragraph 25 of the First Amended Complaint, Defendants

reincorporate their responses to the allegations contained in Paragraph 24 of the First Amended

Complaint as if fully stated herein. Defendants aver that the allegations in this paragraph are

argument and conclusions of law that require no answer and, to the extent that it contains


26. Answering Paragraph 26 of the First Amended Complaint, except as to refer to

Plaintiff’s paychecks dated December 1, 2014 and December 15, 2014 for a true and complete

recitation of the contents thereof, Defendants are without knowledge or information sufficient to

form a belief as to the truth of the allegations in this paragraph, and on that basis deny, generally

and specifically, each and every allegation in this paragraph.


Plaintiff’s paychecks dated December 1, 2014 and December 15, 2014 for a true and complete

recitation of the contents thereof, Defendants deny, generally and specifically, each and every

allegation contained in this paragraph.


Schmick admits that certain employees took part in programs by the name of “Wow” and

“Ambassador.” Except as specifically admitted, Defendants deny, generally and specifically,

each and every allegation contained in this paragraph.









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Plaintiff’s wage statements issued by McCormick & Schmick for a true and complete recitation

of the contents thereof, Defendants aver that the allegations in this paragraph are argument and

conclusions of law that require no answer and, to the extent that it contains allegations of fact,

they are denied.





Schmick refers to its Employee Handbook applicable to Plaintiff during her employment with

McCormick & Schmick for a true and complete recitation of the contents thereof. Defendants

aver that the remaining allegations in this paragraph are argument and conclusions of law that

require no answer and, to the extent that it contains allegations of fact, they are denied.

34. McCormick & Schmick refers to Plaintiff’s written request dated December 2,

2014 for a true and complete recitation of the contents thereof. Defendants are without

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

in this paragraph, and on that basis deny, generally and specifically, each and every remaining

allegation in this paragraph.

CLASS ALLEGATIONS












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

paragraph, and on that basis deny, generally and specifically, each and every allegation in this

paragraph.










LABOR CODE PRIVATE ATTORNEYS GENERAL ACT ALLEGATIONS




46. Answering Paragraph 46 of the First Amended Complaint, Defendants refer to the

letter dated February 13, 2015 from Plaintiff to the Labor and Workforce Development Agency



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and to the return receipt from the Labor and Workforce Development Agency for a true and

correct recitation of the contents thereof. Defendants aver that the remaining allegations in this

paragraph are argument and conclusions of law that require no answer and, to the extent that it

contains allegations of fact, they are denied.




FIRST CLAIM FOR RELIEF FAILURE TO PROVIDE MEAL PERIODS

(Wage Order No. 5-2001 ¶ 11; Cal. Lab. Code §§ 226.7, 512)


reincorporate their responses to the allegations contained in Paragraphs 1 through 47 as if fully

stated herein.



















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SECOND CLAIM FOR RELIEF FAILURE TO PROVIDE REST PERIODS

(Wage Order No. 5-2001 ¶ 12; Cal. Lab. Code §§ 226.7)



stated herein.















THIRD CLAIM FOR RELIEF FAILURE TO PAY FOR ALL HOURS WORKED

(Wage Order No. 5-2001 ¶¶ 4(B), 11; Cal. Lab. Code §§ 221, 223)



stated herein.



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Schmick admits that employees working at Spenger’s Fresh Fish Grotto were on occasion


meetings. Except as specifically admitted, Defendants deny, generally and specifically, each

and every allegation contained in this paragraph.






FOURTH CLAIM FOR RELIEF FAILURE TO PAY OVERTIME WAGES

(Wage Order No. 5-2001 ¶ 3; Cal. Labor Code §§ 510, 1194 et seq., 1198)



stated herein.









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FIFTH CLAIM FOR RELIEF REPORTING TIME PAY

(Wage Order No. 5-2001 ¶ 5)



stated herein.








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SIXTH CLAIM FOR RELIEF SPLIT SHIFT PREMIUM PAY

(Wage Order No. 5-2001 ¶ 4)



stated herein.





Schmick admits that certain employees working at Spenger’s Fresh Fish Grotto were

occasionally scheduled to work the lunch and dinner shifts during the same day. McCormick &

Schmick further admits that employees working at Spenger’s Fresh Fish Grotto were on

occasion required to attend meetings during working hours and were required to be clocked-in

for such meetings. Except as specifically admitted, Defendants deny, generally and

specifically, each and every allegation contained in this paragraph.






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SEVENTH CLAIM FOR RELIEF STATUTORY PENALTIES FOR VIOLATION OF RECORD KEEPING REQUIREMENTS

(Wage Order No. 5-2001 ¶ 7; Cal. Lab. Code § 226(b))



stated herein.
























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EIGHTH CLAIM FOR RELIEF WAITING TIME PAY

(Cal. Lab. Code §§ 201-203, 206)



stated herein.


















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NINTH CLAIM FOR RELIEF UNJUST ENRICHMENT/CONSTRUCTIVE TRUST

(Cal. Civ. Code §§ 2223, 2224)



stated herein.















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TENTH CLAIM FOR RELIEF VIOLATION OF UNFAIR COMPETITION LAW

(Cal. Bus. & Prof. Code § § 17200 et seq.)



stated herein.
























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ELEVENTH CLAIM FOR RELIEF CIVIL PENALTIES

(Cal. Lab. Code §§ 2698 et seq.)



stated herein.













122. Answering Paragraph 122 of the First Amended Complaint, Defendants are

without knowledge or information sufficient to form a belief as to the truth of the allegations in

this paragraph, and on that basis denies, generally and specifically, each and every allegation in

this paragraph.






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PRAYER FOR RELIEF

Answering Plaintiff’s Prayer for Relief, Paragraphs (a)-(h), Defendants deny each and

every allegation contained in the prayer and, further, Defendants specifically deny that: Plaintiff

is entitled to any of the relief requested in the Complaint from Defendants; has been damaged by

the acts of Defendants in any amount whatsoever; is entitled to attorneys’ fees and costs; or is

entitled to injunctive relief, compensatory damages, statutory penalties, civil penalties, interest,

the imposition of a constructive trust, or restitution.

SEPARATE AND ADDITIONAL DEFENSES

By alleging the Separate and Additional Defenses set forth below, Defendants are not in

any way agreeing or conceding that they have the burden of proof or the burden of persuasion on

any of these issues.

FIRST AFFIRMATIVE DEFENSE

(Failure to State A Claim)

1. The Complaint, and each and every cause of action therein, fails to state facts

sufficient to constitute a cause, or causes, of action against Defendants.

SECOND AFFIRMATIVE DEFENSE

(Statute of Limitations)

2. The Complaint, and each and every cause of action therein, is barred by the

applicable statute(s) of limitations, including, without limitation, California Code of Civil

Procedure Sections §§ 337, 338, 339, 340, and California Business and Professions Code

§ 17208.

THIRD AFFIRMATIVE DEFENSE

(Laches/Waiver/Estoppel/Unclean Hands)


equitable doctrines of laches, waiver, estoppel, and unclean hands.



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FOURTH AFFIRMATIVE DEFENSE

(Failure To Fulfill Administrative Prerequisites)

4. Plaintiff is precluded from asserting some or all of Plaintiff’s claims to the extent

that Plaintiff has failed to satisfy and exhaust the administrative prerequisites for bringing

such claims.

FIFTH AFFIRMATIVE DEFENSE

(Consent)

5. If any of the allegations in the Complaint occurred, which Defendants deny, then

each and every cause of action alleged against Defendants therein is barred because Plaintiff

consented to and approved all the acts and/or omissions about which Plaintiff now complains.

SIXTH AFFIRMATIVE DEFENSE

(Ratification)


ratification of, acquiescence in, or consent to Defendants’ alleged conduct by Plaintiff.

SEVENTH AFFIRMATIVE DEFENSE

(Intent)

7. The Complaint, and each and every cause of action therein, is barred because

Defendants did not act with the requisite degree of intent or fault.

EIGHTH AFFIRMATIVE DEFENSE

(Fault of Plaintiff and/or Third Parties)

8. If Plaintiff sustained any damages, which Defendants deny, such damages were

proximately caused or contributed to, in whole or in part, by the acts, omissions, culpable

conduct, lack of due diligence, negligence, misconduct, and/or bad faith of Plaintiff and/or third

parties, or Plaintiff and/or third parties otherwise were at fault. Plaintiff is therefore not entitled

to any relief under the Complaint or under any cause of action purported to be alleged against

Defendants therein, or Plaintiff’s recovery, if any, should thereby be reduced in proportion to

Plaintiff’s fault, or the fault of third parties.



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NINTH AFFIRMATIVE DEFENSE

(Conduct Not Ratified)

9. If any of the alleged wrongful acts in the Complaint were committed by Defendants’

employees or by third parties not employed by Defendants, although such is not herein or hereby

admitted and is specifically denied, then such actions were committed outside the scope of

employment, and/or such conduct was unknown to, and not ratified by, Defendants, and thus

Defendants are not liable for them.

TENTH AFFIRMATIVE DEFENSE

(Lack of Employment Relationship)

10. The Complaint, and each and every cause of action contained therein, fails to state

any cause of action against Landry’s because Landry’s was not Plaintiff’s employer as a matter

of fact or law.

ELEVENTH AFFIRMATIVE DEFENSE

(Lack of Personal Jurisdiction)

11. This Court lacks personal jurisdiction over Landry’s because Landry’s is not a

resident of California and lacks sufficient minimum contacts to permit jurisdiction in this

District. For the same reasons, venue is not proper in the Northern District of California.

TWELFTHAFFIRMATIVE DEFENSE

(No Penalties)

12. The Complaint, and each and every cause of action therein, is barred in whole or in

part, on the grounds that Plaintiff is not entitled to general and other penalties under the

California Labor Code, including, but not limited to, waiting time penalties under California

Labor Code § 203. With respect to waiting time penalties under California Labor Code § 203,

Plaintiff was paid all wages owed at termination, and regardless, any alleged failure to pay all

wages due at termination was not willful and/or there existed a good faith dispute as to the

amount of compensation owed, if any, at the time of termination.



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THIRTEENTH AFFIRMATIVE DEFENSE

(No Private Right of Action)


part, on the grounds that Plaintiff does not have a private right of action under applicable sections

of the California Labor Code, and penalties other than waiting-time penalties are only available

in an action brought by an official of the Labor Department or other government agency.

FOURTEENTH AFFIRMATIVE DEFENSE

(Not “Hours Worked”)

14. Plaintiff is barred from recovery under the Complaint to the extent that Plaintiff did

not actually work the hours Plaintiff alleges.

FIFTEENTH AFFIRMATIVE DEFENSE

(Meal Periods—Waiver)

15. The Complaint, and in particular, the first, third, fourth, seventh, eighth, ninth,

tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff

agreed to waive Plaintiff’s right to any meal periods Plaintiff allegedly missed.

SIXTEENTH AFFIRMATIVE DEFENSE

(Rest Periods—Waiver)

16. The Complaint, and in particular, the second, third, fourth, seventh, eighth, ninth,

tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff

agreed to waive Plaintiff’s right to any rest periods Plaintiff allegedly missed.

SEVENTEENTH AFFIRMATIVE DEFENSE

(Meal Periods Provided)

17. The Complaint, and in particular, the first, third, fourth, seventh, eighth, ninth,

tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff was

provided with all legally-required meal periods.



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EIGHTEENTH AFFIRMATIVE DEFENSE

(Rest Periods Provided)

18. The Complaint, and in particular, the second, third, fourth, seventh, eighth, ninth,

tenth, and eleventh causes of action alleged therein, are barred on the grounds that Plaintiff was

provided with all legally-required rest periods.

NINETEENTH AFFIRMATIVE DEFENSE

(Unknowing or Unintentional Conduct)

19. To the extent Plaintiff has been damaged in any way under the Complaint, and in

particular under the seventh, eighth and eleventh causes of action, which Defendants deny, such

damage was not the result of Defendants’ knowing and intentional conduct.

TWENTIETH AFFIRMATIVE DEFENSE

(Failure to Comply With Labor Code § 2699.3, subd. (a)(1))

20. Plaintiff did not comply with Plaintiff’s obligation under Labor Code § 2699.3,

subd. (a)(1), which requires Plaintiff to provide the employer with written notice by certified

mail of the specific provision of Labor Code alleged to have been violated, including the facts

and theories to support the alleged violation, prior to filing a civil action pursuant to Section

2699 and 2699.5 of the Labor Code. Therefore, Plaintiff may not recover any statutory penalties.

TWENTY-FIRST AFFIRMATIVE DEFENSE

(Safe Harbor Defense)

21. Plaintiff is barred from recovering under the Complaint, and in particular, under the

tenth cause of action alleged therein, in whole or in part, under the “safe harbor defense,” which

precludes Plaintiff from stating a claim through California Business and Professions Code §

17200 et seq. when such a claim would be absolutely barred under other principles of law.

TWENTY-SECOND AFFIRMATIVE DEFENSE

(Underlying Conduct Not Wrongful)

22. Plaintiff is barred from recovering under the Complaint, and in particular, under the

tenth cause of action alleged therein, in whole or in part, because Defendant’s conduct on which



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Plaintiff premises the tenth cause of action was not, and is not, wrongful, i.e., unfair, unlawful or

fraudulent.

TWENTY-THIRD AFFIRMATIVE DEFENSE

(Monetary Damages Not Available)

23. To the extent Plaintiff seeks to obtain monetary damages, including attorney fees,

under Plaintiff’s Cause of Action for violations of California Business and Professions Code

§§ 17200 et seq., the claim is barred in its entirety by these very statutes and other legal

authority.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

(Improper UCL Claim)

24. Plaintiff’s Cause of Action for violations of California Business and Professions

Code §§ 17200 et seq., is barred because Defendants have not committed any act with respect to

the matters alleged in the Complaint that is “unlawful,” “unfair” or “fraudulent” within the

meaning of these statutes.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Improper UCL Representative Action)

25. Plaintiff’s Cause of Action for violations of California Business and Professions

Code §§ 17200 et seq., is barred under Proposition 64 as an improper representative action to the

extent Plaintiff is attempting to bring claims on behalf other employees without meeting

California’s class action requirements.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

(No Proximate Causation)

26. Any injuries or damages allegedly suffered by Plaintiff were not proximately

caused by any acts or omissions of Defendants.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

(Unjust Enrichment)

27. The Complaint, and each and every cause of action therein, is barred because

Plaintiff would be unjustly enriched if Plaintiff is permitted to recover on the Complaint.



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TWENTY-EIGHTH AFFIRMATIVE DEFENSE

(Equitable Relief (Adequate Remedies))

28. Plaintiff is barred from asserting the request for equitable relief alleged in the

Complaint because Plaintiff has adequate remedies at law and/or the equitable relief is neither

necessary or proper.

TWENTY-NINTH AFFIRMATIVE DEFENSE

(Equitable Relief (Injunction))

29. Plaintiff is not entitled to the injunctive relief requested in the Complaint as

Plaintiff cannot obtain injunctive relief based on past conduct.

THIRTIETH AFFIRMATIVE DEFENSE

(No Recovery of Attorneys’ Fees)


part pursuant to California Code of Civil Procedure Section 1033(a) to the extent it seeks to

recover attorneys’ fees and Plaintiff’s damages, which Defendants specifically deny Plaintiff has

suffered, do not exceed $25,000.

THIRTY-FIRST AFFIRMATIVE DEFENSE

(Additional Affirmative Defenses)

31. Defendants presently have insufficient knowledge or information upon which to

form a belief as to whether it may have additional, as yet unstated, affirmative defenses

available. Defendants reserve the right to assert additional affirmative defenses in the event

discovery indicates that it would be appropriate.

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PRAYER

WHEREFORE, Defendants pray for judgment as follows:

1. That Plaintiff takes nothing by way of the Complaint;

2. That the Complaint be dismissed with prejudice and judgment entered in favor of

Defendants;

3. That Defendants be awarded its costs of suit;

4. That Defendants be awarded attorneys’ fees pursuant to statute and/or contract; and

5. For such other and further relief as the Court deems just and proper.

DATED: May 11, 2015 DAVIS WRIGHT TREMAINE LLP JANET L. GRUMER AARON N. COLBY EVELYN F. WANG By: /s/ Janet L. Grumer

Janet L. Grumer Attorneys for Defendants LANDRY’S, INC., and McCORMICK & SCHMICK RESTAURANT CORP.


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