1017-00004 · Entities. Aurelius Global Media Group · Pleadings/Class Action

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES — CENTRAL DISTRICT

MARISOL FUENTES, DEREK HALLORAN, and YESENIA PADILLA, individually and on behalf of all others similarly situated,

Plaintiffs,

AURELIUS MEDIA AMERICAS INC., a Delaware corporation; and DOES 1 through 50, inclusive,

Defendant.

DEFENDANT AURELIUS MEDIA AMERICAS INC.'S ANSWER TO CONSOLIDATED COMPLAINT

Filed: February 17, 2023

Defendant Aurelius Media Americas Inc. ("AMA" or "Defendant"), by and through its attorneys of record, Calderwood & Harkness LLP, hereby answers the Consolidated Complaint ("Complaint") filed by Plaintiffs Marisol Fuentes, Derek Halloran, and Yesenia Padilla ("Plaintiffs"), individually and on behalf of all others similarly situated, as follows:

GENERAL DENIAL

1. Pursuant to California Code of Civil Procedure Section 431.30(d), Defendant Aurelius Media Americas Inc. generally denies each and every allegation contained in the Consolidated Complaint filed by Plaintiffs Marisol Fuentes, Derek Halloran, and Yesenia Padilla, including but not limited to each and every allegation set forth in each purported cause of action contained therein. Defendant denies that it has violated any provision of the California Labor Code, any applicable Industrial Welfare Commission ("IWC") Wage Order, the California Business and Professions Code, or any other federal, state, or local statute, regulation, or ordinance as alleged in the Complaint, or at all.

2. Defendant specifically denies that any Plaintiff or any putative class member has been damaged in any amount or in any manner whatsoever as a result of any act or omission of Defendant. Defendant further specifically denies that any Plaintiff or any putative class member has suffered any injury in fact, has lost money or property, or has been subjected to any unlawful, unfair, or fraudulent business practice by Defendant.

3. Defendant denies that Plaintiffs or any putative class member is entitled to any relief whatsoever, whether in the form of damages, restitution, penalties, injunctive relief, declaratory relief, attorneys' fees, costs, or any other form of relief sought in the Complaint or otherwise.

AFFIRMATIVE DEFENSES

Without assuming the burden of proof on any issue as to which Defendant would not otherwise bear such burden at trial or on any dispositive motion, and without waiving any objections, defenses, or other rights that may be available to Defendant, including but not limited to any and all objections as to the sufficiency of the Complaint under applicable pleading standards, and reserving the right to amend, supplement, or modify these affirmative defenses as warranted by further factual investigation and discovery, Defendant Aurelius Media Americas Inc. asserts the following affirmative defenses to the Consolidated Complaint:

FIRST AFFIRMATIVE DEFENSE

(Failure to State a Claim — As to All Causes of Action).

4. The Consolidated Complaint, and each and every cause of action alleged therein, fails to state facts sufficient to constitute a cause of action against Defendant within the meaning of California Code of Civil Procedure Section 430.10(e). The Complaint is replete with conclusory allegations that, even if accepted as true, do not give rise to any cognizable legal theory or legal right to relief against Defendant. To the extent any cause of action depends upon the existence of a uniform, company-wide policy or practice of denying meal periods, rest periods, overtime compensation, minimum wages, or accurate wage statements, the Complaint fails to allege the existence of any such policy or practice with the requisite specificity. Each cause of action in the Complaint is therefore subject to demurrer, and Defendant preserves its right to seek dismissal on this basis at any stage of these proceedings.

SECOND AFFIRMATIVE DEFENSE

(Statute of Limitations — As to All Causes of Action).

5. Plaintiffs' claims, and those of each and every putative class member, are barred in whole or in part by the applicable statutes of limitations, including but not limited to the following:

(a) California Code of Civil Procedure Section 338, which establishes a three-year statute of limitations for claims based on a liability created by statute, including claims for statutory penalties for meal period violations (Cal. Lab. Code § 226.7), rest period violations (Cal. Lab. Code § 226.7), overtime violations (Cal. Lab. Code §§ 510, 1194), minimum wage violations (Cal. Lab. Code §§ 1194, 1197), and wage statement violations (Cal. Lab. Code § 226);

(b) California Code of Civil Procedure Section 340, which establishes a one-year statute of limitations for claims based on penalties or forfeitures, applicable to Plaintiffs' claims for waiting time penalties under California Labor Code Section 203;

(c) California Business and Professions Code Section 17208, which establishes a four-year statute of limitations for claims brought under the Unfair Competition Law ("UCL"), California Business and Professions Code Section 17200 et seq.;

(d) California Labor Code Section 2699.3(d), as applicable to Plaintiffs' claims under the Private Attorneys General Act ("PAGA"), California Labor Code Section 2698 et seq., which provides a one-year statute of limitations for PAGA claims, subject to tolling during the LWDA notice period.

6. The Complaint alleges a putative class period running from November 1, 2018 to the present. To the extent that any claims or the claims of any putative class member accrued prior to the applicable limitations period as measured from the filing dates of the respective complaints (November 1, 2022 for Fuentes and November 15, 2022 for Halloran and Padilla), such claims are time-barred and must be dismissed. Specifically, claims for statutory penalties that accrued prior to November 1, 2019 (three-year period), UCL claims that accrued prior to November 1, 2018 (four-year period), and PAGA claims that accrued prior to November 1, 2021 (one-year period, subject to tolling), are barred by the applicable statutes of limitations. Defendant further contends that no tolling doctrine operates to extend any applicable limitations period.

THIRD AFFIRMATIVE DEFENSE

(Compliance with Law — As to All Causes of Action).

7. At all times relevant to this action, Defendant maintained and implemented lawful policies and practices regarding meal periods, rest periods, overtime compensation, minimum wage payments, wage statement issuance, and all other terms and conditions of employment at issue in the Complaint. Defendant complied with all applicable provisions of the California Labor Code, the applicable IWC Wage Orders (including, without limitation, IWC Wage Order No. 12-2001, as amended, governing the Motion Picture Industry), the applicable provisions of the California Code of Regulations, and all other applicable federal, state, and local laws and regulations governing the employment of its non-exempt workforce in California.

8. Without limitation, Defendant specifically alleges the following:

(a) AMA maintained a written Meal and Rest Break Policy (Policy No. HR-2019-004, as revised November 2020 and again in March 2022), which was distributed to all non-exempt employees at the time of hire and was made available at all times through AMA's internal employee portal ("AMAConnect"). The policy expressly informed employees of their right to receive a thirty-minute uninterrupted duty-free meal period for every work period exceeding five hours, and a second thirty-minute meal period for every work period exceeding ten hours, as well as a ten-minute paid rest period for every four hours worked or major fraction thereof, consistent with IWC Wage Order No. 12.

(b) AMA utilized the NovaPay Solutions "TimeTrack Pro" electronic timekeeping system for all non-exempt employees across all seven of its California production facilities. The TimeTrack Pro system included built-in mechanisms for employees to clock in and out for meal periods and to self-report, in real time, any missed, shortened, late, or interrupted meal periods through an electronic attestation prompt that appeared when an employee clocked back in from a meal period of fewer than thirty minutes or when an employee did not clock out for a meal period at all. The system automatically generated meal period premium pay for any reported non-compliant meal period.

(c) AMA's supervisors, production managers, and human resources personnel were trained, through annual compliance training sessions conducted by AMA's Director of Human Resources and outside employment counsel, to ensure that meal and rest periods were provided in accordance with applicable law and company policy, and that no employee was discouraged, impeded, or otherwise prevented from taking meal or rest breaks.

(d) AMA's payroll records, maintained through the NovaPay Solutions platform, accurately recorded all hours worked, all meal period entries, all overtime hours, all premium payments, and all other compensation paid to non-exempt employees, and AMA issued wage statements to all employees that complied in all respects with the requirements of California Labor Code Section 226.

FOURTH AFFIRMATIVE DEFENSE

(Good Faith — As to All Causes of Action Seeking Penalties).

9. At all times relevant to this action, Defendant acted in good faith and with a reasonable, good faith belief that its compensation policies, timekeeping practices, meal and rest break policies, and all other employment practices at issue in this matter complied fully with all applicable provisions of California law. Defendant's policies and practices were developed in consultation with experienced employment counsel and were regularly reviewed and updated to reflect developments in the law.

10. Defendant's good faith constitutes a defense to, and warrants the elimination or reduction of, certain penalty claims asserted in the Complaint, including but not limited to:

(a) Claims for PAGA penalties under California Labor Code Section 2699(e)(2), which authorizes the Court to exercise its discretion to reduce PAGA penalties where the employer acted in good faith and the full statutory penalty would be unjust, arbitrary, oppressive, or confiscatory;

(b) Claims for waiting time penalties under California Labor Code Section 203, as to which an employer's good faith dispute regarding the existence of any wages owed constitutes a complete defense to liability. AMA's reasonable and good faith belief that all final wages were timely and accurately paid to each departing employee precludes the imposition of waiting time penalties.

FIFTH AFFIRMATIVE DEFENSE

(Waiver, Estoppel, and Laches — As to All Causes of Action).

11. Plaintiffs' claims, and those of the putative class, are barred in whole or in part by the doctrines of waiver, estoppel, and/or laches. Plaintiffs and the putative class members voluntarily waived, relinquished, or otherwise forfeited their right to assert the claims set forth in the Complaint through their own conduct, including but not limited to the following:

(a) Plaintiffs' and putative class members' voluntary waiver of meal periods and/or rest periods, where such meal periods and/or rest periods were made available and offered by Defendant but were not taken by the employee for reasons personal to the employee, or were waived by the employee in writing as permitted by applicable law for meal periods during shifts of six hours or fewer;

(b) Plaintiffs' and putative class members' failure to utilize AMA's established reporting mechanisms — including the TimeTrack Pro electronic attestation system, direct supervisor notification, and human resources reporting channels — to report any alleged missed, shortened, or interrupted meal or rest periods, or any alleged off-the-clock work, or any alleged wage statement inaccuracy, at or near the time of the alleged occurrence;

(c) Plaintiffs' unreasonable delay in asserting their claims, which has resulted in prejudice to Defendant, including the loss of relevant evidence, the departure of key supervisory witnesses, and the degradation of contemporaneous records.

12. As the California Supreme Court held in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040, an employer's obligation under California law is to provide meal and rest periods — that is, to make them available and not to impede or discourage employees from taking them — and not to ensure that each employee actually takes every such break. To the extent that Plaintiffs or putative class members voluntarily chose not to take meal or rest periods that were provided and made available by Defendant, Defendant is not liable for any resulting failure to take such breaks.

SIXTH AFFIRMATIVE DEFENSE

(Offset and Recoupment — As to All Causes of Action).

13. To the extent that any Plaintiff or any putative class member has received payment for meal period premium pay, rest period premium pay, overtime compensation, or any other form of compensation or premium that Plaintiffs allege was owed but not paid, any recovery to which such Plaintiff or putative class member may be entitled in this action is subject to offset, credit, and recoupment for such prior payments. Defendant is entitled to a dollar-for-dollar credit against any judgment or award for any amounts previously paid to Plaintiffs or putative class members that relate to the same underlying wage obligations at issue in this litigation. AMA's payroll records reflect that meal period premiums were paid in numerous instances to non-exempt employees during the putative class period through the automated premium-pay function of the TimeTrack Pro system, and such payments must be credited against any recovery.

SEVENTH AFFIRMATIVE DEFENSE

(De Minimis Doctrine — As to Claims for Off-the-Clock Work).

14. Plaintiffs' claims for alleged off-the-clock work, to the extent they involve trivial, uncertain, or de minimis amounts of time that are difficult or impracticable to record, are not compensable. The de minimis doctrine precludes liability for work activities that involve only seconds or minutes of time beyond the scheduled shift that are administratively impracticable to capture in a timekeeping system.

15. Defendant acknowledges the California Supreme Court's decision in Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, which held that the federal de minimis doctrine does not apply in the same manner under California law and that California's Labor Code and Wage Orders do not permit employers to require employees to routinely work for minutes off the clock without compensation. However, the Troester Court expressly declined to decide whether there are "circumstances where the de minimis doctrine remains applicable in California wage and hour cases" and noted that "there may be some instances where the time is so minute or irregular that it is unreasonable to expect the time to be recorded." Id. at 840. To the extent Plaintiffs' off-the-clock claims involve such minute or irregular amounts of time — for example, the brief seconds required to complete an electronic clock-out process, or momentary post-shift communications — the de minimis doctrine applies and bars recovery.

EIGHTH AFFIRMATIVE DEFENSE

(Lack of Standing Under the UCL — As to the UCL Cause of Action).

16. Plaintiffs lack standing to bring claims under California Business and Professions Code Section 17200 et seq. (the Unfair Competition Law) because Plaintiffs have not suffered an "injury in fact" and have not "lost money or property as a result of" any alleged unfair competition by Defendant, as required by California Business and Professions Code Section 17204, as amended by Proposition 64 (approved by voters on November 2, 2004).

17. To the extent Plaintiffs seek restitution or injunctive relief under the UCL on behalf of themselves or the putative class, Plaintiffs must demonstrate that they personally suffered economic injury that was caused by — and not merely incidental to — the specific unfair business practice challenged in the Complaint. Conclusory allegations of wage underpayment, without particularized proof of actual economic loss attributable to the challenged practices, are insufficient to establish UCL standing. See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322-323. To the extent Plaintiffs cannot make such a showing, their UCL cause of action must be dismissed for lack of standing.

NINTH AFFIRMATIVE DEFENSE

(No Class Certification — As to All Class Claims).

18. Plaintiffs' claims are not appropriate for class treatment and class certification should be denied because Plaintiffs cannot satisfy the requirements of California Code of Civil Procedure Section 382 and the standards articulated in Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th 1004, and their progeny. Specifically:

(a) Predominance: Common questions of law and fact do not predominate over individual questions. The resolution of Plaintiffs' meal period, rest period, overtime, and off-the-clock claims will require individualized inquiries into each putative class member's specific work schedule, job duties, production assignment, supervisory relationships, and personal meal and rest break experiences. Whether each individual employee was "provided" a meal or rest break within the meaning of Brinker cannot be resolved on a class-wide basis.

(b) Typicality: The named Plaintiffs are not typical of the putative class. The Consolidated Complaint alleges a class of "all current and former non-exempt employees" of AMA in California during the class period, yet the named Plaintiffs worked in specific roles (Plaintiff Fuentes as a Production Assistant, Plaintiff Halloran as a Camera Operator, and Plaintiff Padilla as a Post-Production Coordinator) at specific facilities, under specific supervisors, and on specific productions. Their experiences are not representative of the experiences of all putative class members across AMA's diverse production operations.

(c) Adequacy: The named Plaintiffs are not adequate class representatives because their individual claims and circumstances are subject to unique defenses that may conflict with or distract from the claims of the putative class as a whole, including individualized issues of waiver, voluntary choice not to take breaks, and receipt of premium payments.

(d) Superiority: A class action is not a superior method of adjudicating the claims at issue. Given the highly individualized nature of the factual inquiries necessary to resolve the meal period, rest period, overtime, and off-the-clock claims, individual proceedings or, at most, representative proceedings under PAGA would be more efficient and more fair than class treatment.

TENTH AFFIRMATIVE DEFENSE

(Individual Variation — As to All Class Claims).

19. The claims of the putative class members are subject to substantial individual variations in working conditions, production schedules, job duties, supervisory structures, and meal and rest break practices across Defendant's seven California production facilities and fourteen distinct show or production units, which preclude class-wide adjudication and render class treatment unmanageable.

20. AMA's California production facilities during the putative class period included:

(a) 8500 Sunset Boulevard, Suite 1400, West Hollywood, California 90069 — corporate headquarters and post-production facility;

(b) 4024 Penmark Strategy Partners Avenue, Studio City, California 91604 — Stage A and Stage B, dedicated to unscripted programming;

(d) 3800 West Alameda Avenue, Burbank, California 91505 — live events and field production;

(e) 1438 North Gower Street, Hollywood, California 90028 — scripted development;

(f) 2120 Colorado Avenue, Santa Monica, California 90404 — e-commerce studio production;

(g) 888 North Sepulveda Boulevard, El Segundo, California 90245 — post-production annex.

21. During the putative class period, AMA operated fourteen distinct production and show units across these facilities, each governed by IWC Wage Order No. 12 but subject to varying production schedules, call times, crew sizes, union and non-union staffing mixes, location shoot requirements, and operational practices. Each show unit maintained its own Unit Production Manager responsible for daily scheduling decisions, including the timing and duration of meal breaks, the availability of craft services, and the deployment of second meal penalties. The variations among these fourteen show units are so extensive that they preclude any finding of common proof or a uniform policy or practice applicable to the class as a whole.

22. Individualized inquiry is necessary to determine, for each putative class member, whether such class member received compliant meal and rest periods, whether such class member was required to perform off-the-clock work, whether such class member's overtime was accurately calculated and paid, and whether such class member received accurate and compliant wage statements. These individualized inquiries cannot be resolved through common proof and render class treatment inappropriate.

ELEVENTH AFFIRMATIVE DEFENSE

(No PAGA Standing — As to All PAGA Claims).

23. To the extent Plaintiffs assert claims under the Private Attorneys General Act, California Labor Code Sections 2698 through 2699.8, Plaintiffs' PAGA claims are barred because Plaintiffs failed to comply with the mandatory pre-suit administrative notice and exhaustion requirements of California Labor Code Section 2699.3.

24. Upon information and belief, Plaintiff Fuentes filed a PAGA notice with the California Labor and Workforce Development Agency ("LWDA") on September 15, 2022. Pursuant to California Labor Code Section 2699.3(a)(2), the LWDA had sixty-five (65) calendar days from the postmark date of the notice within which to notify the employee and employer of its intent to investigate the alleged violations. Sixty-five calendar days from September 15, 2022 is November 19, 2022. The original Fuentes complaint, however, was filed on November 1, 2022 — eighteen days before the expiration of the mandatory 65-day waiting period.

25. Because the original complaint was filed before the LWDA's statutory response period expired, Plaintiff Fuentes failed to exhaust administrative remedies as required by Section 2699.3, and her PAGA claims (and, by extension, the PAGA claims of the consolidated action) are procedurally barred. The LWDA took no action by the response deadline, which does not cure the deficiency of the premature filing. See Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 836-837 (holding that compliance with PAGA's pre-filing requirements is mandatory, not permissive).

TWELFTH AFFIRMATIVE DEFENSE

(PAGA Penalty Reduction — As to All PAGA Claims).

26. To the extent that any PAGA civil penalties are assessed against Defendant, the Court should exercise its discretion under California Labor Code Section 2699(e)(2) to reduce any such penalties below the maximum statutory amount. Under Section 2699(e)(2), the Court may award a lesser amount than the maximum civil penalty if, "based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory."

27. In their PAGA notice dated September 15, 2022, Plaintiffs estimated potential PAGA penalties of approximately $12.2 million. An award of PAGA penalties in that amount — or any amount approaching that figure — would be grossly disproportionate to the nature and extent of any violations alleged, would be unjust and confiscatory in light of Defendant's good faith efforts to comply with applicable law, would not serve the remedial purposes of PAGA, and would constitute an impermissible windfall. The Court should therefore exercise its discretion to impose substantially reduced penalties, if any penalties are warranted at all, consistent with the purposes of the statute and the equities of this case. See Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1213-1214.

THIRTEENTH AFFIRMATIVE DEFENSE

(Reservation of Rights).

28. Defendant has not yet completed its investigation and analysis of all facts and circumstances relevant to this action. Discovery has not yet commenced. Defendant therefore reserves the right to assert additional affirmative defenses, and to amend or supplement the affirmative defenses set forth herein, as they become known through the course of discovery, further factual investigation, additional legal research, or otherwise, consistent with applicable law and the rules of this Court.

PRAYER

WHEREFORE, Defendant Aurelius Media Americas Inc. respectfully prays for judgment as follows:

1. That Plaintiffs Marisol Fuentes, Derek Halloran, and Yesenia Padilla take nothing by reason of the Consolidated Complaint, and that judgment be entered in favor of Defendant and against Plaintiffs on all causes of action alleged therein;

2. That the putative class not be certified, or, if certified, that any class certification be subsequently decertified;

3. That Plaintiffs' PAGA claims be dismissed for failure to comply with mandatory pre-suit exhaustion requirements, or, in the alternative, that any PAGA penalties be reduced to the minimum amount permitted by law;

4. For costs of suit incurred herein;

5. For such other and further relief as this Court may deem just and proper.

Dated: February 17, 2023

CALDERWOOD & HARKNESS LLP

By: /s/ Renata Vasquez

Renata Vasquez (SBN 224578) Devon Archer (SBN 301462) 777 South Flower Street, Suite 4200 Los Angeles, California 90017 Telephone: (213) 555-7200 Facsimile: (213) 555-7201

Email: rvasquez@calderwoodharkness.com

Email: darcher@calderwoodharkness.com

Attorneys for Defendant AURELIUS MEDIA AMERICAS INC.

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Calderwood & Harkness LLP, 777 South Flower Street, Suite 4200, Los Angeles, California 90017.

On February 17, 2023, I served the foregoing document described as DEFENDANT AURELIUS MEDIA AMERICAS INC.'S ANSWER TO CONSOLIDATED COMPLAINT on the interested parties in this action by transmitting a true copy via electronic mail to the email addresses set forth below:

Marco Castellano, Esq. Diane Salas, Esq. Trevor Kim, Esq. Castellano Byrne & Salas LLP 11755 Wilshire Boulevard, Suite 900 Los Angeles, California 90025 Attorneys for Plaintiffs Marisol Fuentes and Yesenia Padilla

Sandra Higuera, Esq. Veltrano Employment Law Group PC 350 South Grand Avenue, Suite 2800 Los Angeles, California 90071 Attorneys for Plaintiff Derek Halloran

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on February 17, 2023, at Los Angeles, California.

________________________________________

Kira Thornton

Lead Case No.:	22STCV38214
Consolidated with:	22STCV39501
Assigned for all purposes to:	Hon. Raymond Escobedo, Dept. 34

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
MARISOL FUENTES, DEREK HALLORAN, and YESENIA PADILLA, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
AURELIUS MEDIA AMERICAS INC., a Delaware corporation; and DOES 1 through 50, inclusive,
Defendant.
DEFENDANT AURELIUS MEDIA AMERICAS INC.'S ANSWER TO CONSOLIDATED COMPLAINT
Filed: February 17, 2023
Defendant Aurelius Media Americas Inc. ("AMA" or "Defendant"), by and through its attorneys of record, Calderwood & Harkness LLP, hereby answers the Consolidated Complaint ("Complaint") filed by Plaintiffs Marisol Fuentes, Derek Halloran, and Yesenia Padilla ("Plaintiffs"), individually and on behalf of all others similarly situated, as follows:
GENERAL DENIAL
1.  Pursuant to California Code of Civil Procedure Section 431.30(d), Defendant Aurelius Media Americas Inc. generally denies each and every allegation contained in the Consolidated Complaint filed by Plaintiffs Marisol Fuentes, Derek Halloran, and Yesenia Padilla, including but not limited to each and every allegation set forth in each purported cause of action contained therein. Defendant denies that it has violated any provision of the California Labor Code, any applicable Industrial Welfare Commission ("IWC") Wage Order, the California Business and Professions Code, or any other federal, state, or local statute, regulation, or ordinance as alleged in the Complaint, or at all.
2.  Defendant specifically denies that any Plaintiff or any putative class member has been damaged in any amount or in any manner whatsoever as a result of any act or omission of Defendant. Defendant further specifically denies that any Plaintiff or any putative class member has suffered any injury in fact, has lost money or property, or has been subjected to any unlawful, unfair, or fraudulent business practice by Defendant.
3.  Defendant denies that Plaintiffs or any putative class member is entitled to any relief whatsoever, whether in the form of damages, restitution, penalties, injunctive relief, declaratory relief, attorneys' fees, costs, or any other form of relief sought in the Complaint or otherwise.
AFFIRMATIVE DEFENSES
Without assuming the burden of proof on any issue as to which Defendant would not otherwise bear such burden at trial or on any dispositive motion, and without waiving any objections, defenses, or other rights that may be available to Defendant, including but not limited to any and all objections as to the sufficiency of the Complaint under applicable pleading standards, and reserving the right to amend, supplement, or modify these affirmative defenses as warranted by further factual investigation and discovery, Defendant Aurelius Media Americas Inc. asserts the following affirmative defenses to the Consolidated Complaint:
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim — As to All Causes of Action).  
4.  The Consolidated Complaint, and each and every cause of action alleged therein, fails to state facts sufficient to constitute a cause of action against Defendant within the meaning of California Code of Civil Procedure Section 430.10(e). The Complaint is replete with conclusory allegations that, even if accepted as true, do not give rise to any cognizable legal theory or legal right to relief against Defendant. To the extent any cause of action depends upon the existence of a uniform, company-wide policy or practice of denying meal periods, rest periods, overtime compensation, minimum wages, or accurate wage statements, the Complaint fails to allege the existence of any such policy or practice with the requisite specificity. Each cause of action in the Complaint is therefore subject to demurrer, and Defendant preserves its right to seek dismissal on this basis at any stage of these proceedings.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations — As to All Causes of Action).  
5.  Plaintiffs' claims, and those of each and every putative class member, are barred in whole or in part by the applicable statutes of limitations, including but not limited to the following:
(a) California Code of Civil Procedure Section 338, which establishes a three-year statute of limitations for claims based on a liability created by statute, including claims for statutory penalties for meal period violations (Cal. Lab. Code § 226.7), rest period violations (Cal. Lab. Code § 226.7), overtime violations (Cal. Lab. Code §§ 510, 1194), minimum wage violations (Cal. Lab. Code §§ 1194, 1197), and wage statement violations (Cal. Lab. Code § 226);
(b) California Code of Civil Procedure Section 340, which establishes a one-year statute of limitations for claims based on penalties or forfeitures, applicable to Plaintiffs' claims for waiting time penalties under California Labor Code Section 203;
(c) California Business and Professions Code Section 17208, which establishes a four-year statute of limitations for claims brought under the Unfair Competition Law ("UCL"), California Business and Professions Code Section 17200 et seq.;
(d) California Labor Code Section 2699.3(d), as applicable to Plaintiffs' claims under the Private Attorneys General Act ("PAGA"), California Labor Code Section 2698 et seq., which provides a one-year statute of limitations for PAGA claims, subject to tolling during the LWDA notice period.
6.  The Complaint alleges a putative class period running from November 1, 2018 to the present. To the extent that any claims or the claims of any putative class member accrued prior to the applicable limitations period as measured from the filing dates of the respective complaints (November 1, 2022 for Fuentes and November 15, 2022 for Halloran and Padilla), such claims are time-barred and must be dismissed. Specifically, claims for statutory penalties that accrued prior to November 1, 2019 (three-year period), UCL claims that accrued prior to November 1, 2018 (four-year period), and PAGA claims that accrued prior to November 1, 2021 (one-year period, subject to tolling), are barred by the applicable statutes of limitations. Defendant further contends that no tolling doctrine operates to extend any applicable limitations period.
THIRD AFFIRMATIVE DEFENSE
(Compliance with Law — As to All Causes of Action).  
7.  At all times relevant to this action, Defendant maintained and implemented lawful policies and practices regarding meal periods, rest periods, overtime compensation, minimum wage payments, wage statement issuance, and all other terms and conditions of employment at issue in the Complaint. Defendant complied with all applicable provisions of the California Labor Code, the applicable IWC Wage Orders (including, without limitation, IWC Wage Order No. 12-2001, as amended, governing the Motion Picture Industry), the applicable provisions of the California Code of Regulations, and all other applicable federal, state, and local laws and regulations governing the employment of its non-exempt workforce in California.
8.  Without limitation, Defendant specifically alleges the following:
(a) AMA maintained a written Meal and Rest Break Policy (Policy No. HR-2019-004, as revised November 2020 and again in March 2022), which was distributed to all non-exempt employees at the time of hire and was made available at all times through AMA's internal employee portal ("AMAConnect"). The policy expressly informed employees of their right to receive a thirty-minute uninterrupted duty-free meal period for every work period exceeding five hours, and a second thirty-minute meal period for every work period exceeding ten hours, as well as a ten-minute paid rest period for every four hours worked or major fraction thereof, consistent with IWC Wage Order No. 12.
(b) AMA utilized the NovaPay Solutions "TimeTrack Pro" electronic timekeeping system for all non-exempt employees across all seven of its California production facilities. The TimeTrack Pro system included built-in mechanisms for employees to clock in and out for meal periods and to self-report, in real time, any missed, shortened, late, or interrupted meal periods through an electronic attestation prompt that appeared when an employee clocked back in from a meal period of fewer than thirty minutes or when an employee did not clock out for a meal period at all. The system automatically generated meal period premium pay for any reported non-compliant meal period.
(c) AMA's supervisors, production managers, and human resources personnel were trained, through annual compliance training sessions conducted by AMA's Director of Human Resources and outside employment counsel, to ensure that meal and rest periods were provided in accordance with applicable law and company policy, and that no employee was discouraged, impeded, or otherwise prevented from taking meal or rest breaks.
(d) AMA's payroll records, maintained through the NovaPay Solutions platform, accurately recorded all hours worked, all meal period entries, all overtime hours, all premium payments, and all other compensation paid to non-exempt employees, and AMA issued wage statements to all employees that complied in all respects with the requirements of California Labor Code Section 226.
FOURTH AFFIRMATIVE DEFENSE
(Good Faith — As to All Causes of Action Seeking Penalties).  
9.  At all times relevant to this action, Defendant acted in good faith and with a reasonable, good faith belief that its compensation policies, timekeeping practices, meal and rest break policies, and all other employment practices at issue in this matter complied fully with all applicable provisions of California law. Defendant's policies and practices were developed in consultation with experienced employment counsel and were regularly reviewed and updated to reflect developments in the law.
10.  Defendant's good faith constitutes a defense to, and warrants the elimination or reduction of, certain penalty claims asserted in the Complaint, including but not limited to:
(a) Claims for PAGA penalties under California Labor Code Section 2699(e)(2), which authorizes the Court to exercise its discretion to reduce PAGA penalties where the employer acted in good faith and the full statutory penalty would be unjust, arbitrary, oppressive, or confiscatory;
(b) Claims for waiting time penalties under California Labor Code Section 203, as to which an employer's good faith dispute regarding the existence of any wages owed constitutes a complete defense to liability. AMA's reasonable and good faith belief that all final wages were timely and accurately paid to each departing employee precludes the imposition of waiting time penalties.
FIFTH AFFIRMATIVE DEFENSE
(Waiver, Estoppel, and Laches — As to All Causes of Action).  
11.  Plaintiffs' claims, and those of the putative class, are barred in whole or in part by the doctrines of waiver, estoppel, and/or laches. Plaintiffs and the putative class members voluntarily waived, relinquished, or otherwise forfeited their right to assert the claims set forth in the Complaint through their own conduct, including but not limited to the following:
(a) Plaintiffs' and putative class members' voluntary waiver of meal periods and/or rest periods, where such meal periods and/or rest periods were made available and offered by Defendant but were not taken by the employee for reasons personal to the employee, or were waived by the employee in writing as permitted by applicable law for meal periods during shifts of six hours or fewer;
(b) Plaintiffs' and putative class members' failure to utilize AMA's established reporting mechanisms — including the TimeTrack Pro electronic attestation system, direct supervisor notification, and human resources reporting channels — to report any alleged missed, shortened, or interrupted meal or rest periods, or any alleged off-the-clock work, or any alleged wage statement inaccuracy, at or near the time of the alleged occurrence;
(c) Plaintiffs' unreasonable delay in asserting their claims, which has resulted in prejudice to Defendant, including the loss of relevant evidence, the departure of key supervisory witnesses, and the degradation of contemporaneous records.
12.  As the California Supreme Court held in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040, an employer's obligation under California law is to provide meal and rest periods — that is, to make them available and not to impede or discourage employees from taking them — and not to ensure that each employee actually takes every such break. To the extent that Plaintiffs or putative class members voluntarily chose not to take meal or rest periods that were provided and made available by Defendant, Defendant is not liable for any resulting failure to take such breaks.
SIXTH AFFIRMATIVE DEFENSE
(Offset and Recoupment — As to All Causes of Action).  
13.  To the extent that any Plaintiff or any putative class member has received payment for meal period premium pay, rest period premium pay, overtime compensation, or any other form of compensation or premium that Plaintiffs allege was owed but not paid, any recovery to which such Plaintiff or putative class member may be entitled in this action is subject to offset, credit, and recoupment for such prior payments. Defendant is entitled to a dollar-for-dollar credit against any judgment or award for any amounts previously paid to Plaintiffs or putative class members that relate to the same underlying wage obligations at issue in this litigation. AMA's payroll records reflect that meal period premiums were paid in numerous instances to non-exempt employees during the putative class period through the automated premium-pay function of the TimeTrack Pro system, and such payments must be credited against any recovery.
SEVENTH AFFIRMATIVE DEFENSE
(De Minimis Doctrine — As to Claims for Off-the-Clock Work).  
14.  Plaintiffs' claims for alleged off-the-clock work, to the extent they involve trivial, uncertain, or de minimis amounts of time that are difficult or impracticable to record, are not compensable. The de minimis doctrine precludes liability for work activities that involve only seconds or minutes of time beyond the scheduled shift that are administratively impracticable to capture in a timekeeping system.
15.  Defendant acknowledges the California Supreme Court's decision in Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, which held that the federal de minimis doctrine does not apply in the same manner under California law and that California's Labor Code and Wage Orders do not permit employers to require employees to routinely work for minutes off the clock without compensation. However, the Troester Court expressly declined to decide whether there are "circumstances where the de minimis doctrine remains applicable in California wage and hour cases" and noted that "there may be some instances where the time is so minute or irregular that it is unreasonable to expect the time to be recorded." Id. at 840. To the extent Plaintiffs' off-the-clock claims involve such minute or irregular amounts of time — for example, the brief seconds required to complete an electronic clock-out process, or momentary post-shift communications — the de minimis doctrine applies and bars recovery.
EIGHTH AFFIRMATIVE DEFENSE
(Lack of Standing Under the UCL — As to the UCL Cause of Action).  
16.  Plaintiffs lack standing to bring claims under California Business and Professions Code Section 17200 et seq. (the Unfair Competition Law) because Plaintiffs have not suffered an "injury in fact" and have not "lost money or property as a result of" any alleged unfair competition by Defendant, as required by California Business and Professions Code Section 17204, as amended by Proposition 64 (approved by voters on November 2, 2004).
17.  To the extent Plaintiffs seek restitution or injunctive relief under the UCL on behalf of themselves or the putative class, Plaintiffs must demonstrate that they personally suffered economic injury that was caused by — and not merely incidental to — the specific unfair business practice challenged in the Complaint. Conclusory allegations of wage underpayment, without particularized proof of actual economic loss attributable to the challenged practices, are insufficient to establish UCL standing. See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322-323. To the extent Plaintiffs cannot make such a showing, their UCL cause of action must be dismissed for lack of standing.
NINTH AFFIRMATIVE DEFENSE
(No Class Certification — As to All Class Claims).  
18.  Plaintiffs' claims are not appropriate for class treatment and class certification should be denied because Plaintiffs cannot satisfy the requirements of California Code of Civil Procedure Section 382 and the standards articulated in Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th 1004, and their progeny. Specifically:
(a) Predominance: Common questions of law and fact do not predominate over individual questions. The resolution of Plaintiffs' meal period, rest period, overtime, and off-the-clock claims will require individualized inquiries into each putative class member's specific work schedule, job duties, production assignment, supervisory relationships, and personal meal and rest break experiences. Whether each individual employee was "provided" a meal or rest break within the meaning of Brinker cannot be resolved on a class-wide basis.
(b) Typicality: The named Plaintiffs are not typical of the putative class. The Consolidated Complaint alleges a class of "all current and former non-exempt employees" of AMA in California during the class period, yet the named Plaintiffs worked in specific roles (Plaintiff Fuentes as a Production Assistant, Plaintiff Halloran as a Camera Operator, and Plaintiff Padilla as a Post-Production Coordinator) at specific facilities, under specific supervisors, and on specific productions. Their experiences are not representative of the experiences of all putative class members across AMA's diverse production operations.
(c) Adequacy: The named Plaintiffs are not adequate class representatives because their individual claims and circumstances are subject to unique defenses that may conflict with or distract from the claims of the putative class as a whole, including individualized issues of waiver, voluntary choice not to take breaks, and receipt of premium payments.
(d) Superiority: A class action is not a superior method of adjudicating the claims at issue. Given the highly individualized nature of the factual inquiries necessary to resolve the meal period, rest period, overtime, and off-the-clock claims, individual proceedings or, at most, representative proceedings under PAGA would be more efficient and more fair than class treatment.
TENTH AFFIRMATIVE DEFENSE
(Individual Variation — As to All Class Claims).  
19.  The claims of the putative class members are subject to substantial individual variations in working conditions, production schedules, job duties, supervisory structures, and meal and rest break practices across Defendant's seven California production facilities and fourteen distinct show or production units, which preclude class-wide adjudication and render class treatment unmanageable.
20.  AMA's California production facilities during the putative class period included:
(a) 8500 Sunset Boulevard, Suite 1400, West Hollywood, California 90069 — corporate headquarters and post-production facility;
(b) 4024 Penmark Strategy Partners Avenue, Studio City, California 91604 — Stage A and Stage B, dedicated to unscripted programming;
(c) 15301 Ventura Boulevard, Suite 300, Sherman Oaks, California 91403 — digital content creation and distribution;
(d) 3800 West Alameda Avenue, Burbank, California 91505 — live events and field production;
(e) 1438 North Gower Street, Hollywood, California 90028 — scripted development;
(f) 2120 Colorado Avenue, Santa Monica, California 90404 — e-commerce studio production;
(g) 888 North Sepulveda Boulevard, El Segundo, California 90245 — post-production annex.
21.  During the putative class period, AMA operated fourteen distinct production and show units across these facilities, each governed by IWC Wage Order No. 12 but subject to varying production schedules, call times, crew sizes, union and non-union staffing mixes, location shoot requirements, and operational practices. Each show unit maintained its own Unit Production Manager responsible for daily scheduling decisions, including the timing and duration of meal breaks, the availability of craft services, and the deployment of second meal penalties. The variations among these fourteen show units are so extensive that they preclude any finding of common proof or a uniform policy or practice applicable to the class as a whole.
22.  Individualized inquiry is necessary to determine, for each putative class member, whether such class member received compliant meal and rest periods, whether such class member was required to perform off-the-clock work, whether such class member's overtime was accurately calculated and paid, and whether such class member received accurate and compliant wage statements. These individualized inquiries cannot be resolved through common proof and render class treatment inappropriate.
ELEVENTH AFFIRMATIVE DEFENSE
(No PAGA Standing — As to All PAGA Claims).  
23.  To the extent Plaintiffs assert claims under the Private Attorneys General Act, California Labor Code Sections 2698 through 2699.8, Plaintiffs' PAGA claims are barred because Plaintiffs failed to comply with the mandatory pre-suit administrative notice and exhaustion requirements of California Labor Code Section 2699.3.
24.  Upon information and belief, Plaintiff Fuentes filed a PAGA notice with the California Labor and Workforce Development Agency ("LWDA") on September 15, 2022. Pursuant to California Labor Code Section 2699.3(a)(2), the LWDA had sixty-five (65) calendar days from the postmark date of the notice within which to notify the employee and employer of its intent to investigate the alleged violations. Sixty-five calendar days from September 15, 2022 is November 19, 2022. The original Fuentes complaint, however, was filed on November 1, 2022 — eighteen days before the expiration of the mandatory 65-day waiting period.
25.  Because the original complaint was filed before the LWDA's statutory response period expired, Plaintiff Fuentes failed to exhaust administrative remedies as required by Section 2699.3, and her PAGA claims (and, by extension, the PAGA claims of the consolidated action) are procedurally barred. The LWDA took no action by the response deadline, which does not cure the deficiency of the premature filing. See Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 836-837 (holding that compliance with PAGA's pre-filing requirements is mandatory, not permissive).
TWELFTH AFFIRMATIVE DEFENSE
(PAGA Penalty Reduction — As to All PAGA Claims).  
26.  To the extent that any PAGA civil penalties are assessed against Defendant, the Court should exercise its discretion under California Labor Code Section 2699(e)(2) to reduce any such penalties below the maximum statutory amount. Under Section 2699(e)(2), the Court may award a lesser amount than the maximum civil penalty if, "based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory."
27.  In their PAGA notice dated September 15, 2022, Plaintiffs estimated potential PAGA penalties of approximately $12.2 million. An award of PAGA penalties in that amount — or any amount approaching that figure — would be grossly disproportionate to the nature and extent of any violations alleged, would be unjust and confiscatory in light of Defendant's good faith efforts to comply with applicable law, would not serve the remedial purposes of PAGA, and would constitute an impermissible windfall. The Court should therefore exercise its discretion to impose substantially reduced penalties, if any penalties are warranted at all, consistent with the purposes of the statute and the equities of this case. See Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1213-1214.
THIRTEENTH AFFIRMATIVE DEFENSE
(Reservation of Rights).  
28.  Defendant has not yet completed its investigation and analysis of all facts and circumstances relevant to this action. Discovery has not yet commenced. Defendant therefore reserves the right to assert additional affirmative defenses, and to amend or supplement the affirmative defenses set forth herein, as they become known through the course of discovery, further factual investigation, additional legal research, or otherwise, consistent with applicable law and the rules of this Court.
PRAYER
WHEREFORE, Defendant Aurelius Media Americas Inc. respectfully prays for judgment as follows:
1.  That Plaintiffs Marisol Fuentes, Derek Halloran, and Yesenia Padilla take nothing by reason of the Consolidated Complaint, and that judgment be entered in favor of Defendant and against Plaintiffs on all causes of action alleged therein;
2.  That the putative class not be certified, or, if certified, that any class certification be subsequently decertified;
3.  That Plaintiffs' PAGA claims be dismissed for failure to comply with mandatory pre-suit exhaustion requirements, or, in the alternative, that any PAGA penalties be reduced to the minimum amount permitted by law;
4.  For costs of suit incurred herein;
5.  For such other and further relief as this Court may deem just and proper.
Dated: February 17, 2023
CALDERWOOD & HARKNESS LLP
By: /s/ Renata Vasquez
Renata Vasquez (SBN 224578) Devon Archer (SBN 301462) 777 South Flower Street, Suite 4200 Los Angeles, California 90017 Telephone: (213) 555-7200 Facsimile: (213) 555-7201
Email: rvasquez@calderwoodharkness.com
Email: darcher@calderwoodharkness.com
Attorneys for Defendant AURELIUS MEDIA AMERICAS INC.
PROOF OF SERVICE
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Calderwood & Harkness LLP, 777 South Flower Street, Suite 4200, Los Angeles, California 90017.
On February 17, 2023, I served the foregoing document described as DEFENDANT AURELIUS MEDIA AMERICAS INC.'S ANSWER TO CONSOLIDATED COMPLAINT on the interested parties in this action by transmitting a true copy via electronic mail to the email addresses set forth below:
Marco Castellano, Esq. Diane Salas, Esq. Trevor Kim, Esq. Castellano Byrne & Salas LLP 11755 Wilshire Boulevard, Suite 900 Los Angeles, California 90025 Attorneys for Plaintiffs Marisol Fuentes and Yesenia Padilla
Sandra Higuera, Esq. Veltrano Employment Law Group PC 350 South Grand Avenue, Suite 2800 Los Angeles, California 90071 Attorneys for Plaintiff Derek Halloran
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on February 17, 2023, at Los Angeles, California.
________________________________________
Kira Thornton
Lead Case No.: | 22STCV38214
Consolidated with: | 22STCV39501
Assigned for all purposes to: | Hon. Raymond Escobedo, Dept. 34

SUPERIOR COURT OF THE STATE OF CALIFORNIA

DEFENDANT AURELIUS MEDIA AMERICAS INC.'S ANSWER TO CONSOLIDATED COMPLAINT

GENERAL DENIAL

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

SECOND AFFIRMATIVE DEFENSE

THIRD AFFIRMATIVE DEFENSE

FOURTH AFFIRMATIVE DEFENSE

FIFTH AFFIRMATIVE DEFENSE

SIXTH AFFIRMATIVE DEFENSE

SEVENTH AFFIRMATIVE DEFENSE

EIGHTH AFFIRMATIVE DEFENSE

NINTH AFFIRMATIVE DEFENSE

TENTH AFFIRMATIVE DEFENSE

ELEVENTH AFFIRMATIVE DEFENSE

TWELFTH AFFIRMATIVE DEFENSE

THIRTEENTH AFFIRMATIVE DEFENSE

CALDERWOOD & HARKNESS LLP

PROOF OF SERVICE

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

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