Michael M. Edelstein v. Google Inc.

Filing 7

REPORT ON THE DETERMINATION OF AN ACTION Regarding a Copyright. (Closing) (gk) ** PURSUANT TO THE NOTICE OF CLERICAL ERROR FILED 4/1/2010 8 , THIS ENTRY WAS MADE WITH THE WRONG EVENT, SEE DOCUMENT NUMBER 9 FOR THE CORRECT ENTRY ** Modified on 4/1/2010 (gk).

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW LO S A N G E L E S

MORGAN, LEWIS & BOCKIUS LLP JOHN S. BATTENFELD (SBN 119513) 300 South Grand Avenue, 22nd Floor Los Angeles, CA 90071-3132 Tel: [phone] Fax: [phone] Email: [e-mail] MORGAN, LEWIS & BOCKIUS LLP DARREN J. CAMPBELL, SBN 223088 5 Park Plaza, Suite 1750 Irvine, California 92614 Tele: 949-399-7000 Fax: [phone] email: [e-mail] Attorneys for Defendant BDO SEIDMAN, LLP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

NAM NGUYEN, Plaintiff, vs. BDO SEIDMAN, LLP, a Limited Liability Partnership; and DOES 110, inclusive, Defendant.

Case No. SACV07-1352 JVS (MLGx) Hon. James V. Selna CLASS ACTION DEFENDANTS BDO SEIDMAN, LLP'S ANSWER TO PLAINTIFF'S COMPLAINT

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(SACV07-1352 JVS (MLGx)) ANSWER TO COMPLAINT

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MORGAN, LEWIS & BOCKIUS LLP
A T T O R N E Y S A T LAW LO S A N G E L E S

Defendant BDO SEIDMAN, LLP ("BDO"), through its undersigned counsel, answer the factual allegations of Plaintiff Nam Nguyen's ("Plaintiff") Complaint as follows: INTRODUCTION 1. Answering Paragraph 1 of the Complaint, BDO does not believe that the paragraph alleges any facts. To the extent that the paragraph makes any factual allegation against BDO, BDO denies such allegations. 2. Answering Paragraph 2 of the Complaint, BDO does not believe that the paragraph alleges any facts. To the extent that the paragraph makes any factual allegation against BDO, BDO denies such allegations. 3. Answering Paragraph 3 of the Complaint, BDO does not believe that the paragraph alleges any facts. To the extent that the paragraph makes any factual allegation against BDO, BDO denies such allegations. PARTIES 4. Answering Paragraph 4 of the Complaint, BDO lacks information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 4, and on that basis, denies the allegations. In further answering Paragraph 4 of the Complaint, BDO admits that Plaintiff worked for BDO from June 17, 2002 through November 15, 2004 as an accountant. BDO does not have sufficient information to admit or deny whether Plaintiff held an "advanced degree in accountancy," was licensed as an accountant by a state or federal agency, or if Plaintiff had tested for or received the designation "Certified Public Accountant" or "CPA" from the State of California within the past four years, and thereupon denies this allegation. Except as expressly admitted, BDO denies all remaining allegations in Paragraph 4 of the Complaint. 5. Answering Paragraph 5 of the Complaint, BDO admits that it is a Limited Liability Partnership organized under the laws of the State of New York and it is authorized to conduct business in the State of California. Except as
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(SACV07-1352 JVS (MLGx)) ANSWER TO COMPLAINT

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expressly admitted, BDO denies all remaining allegations in Paragraph 5 of the Complaint. 6. 7. Answering Paragraph 6 of the Complaint, BDO denies each and every Answering Paragraph 7 of the Complaint, BDO denies each and every JURISDICTION AND VENUE 8. Answering Paragraph 8 of the Complaint, BDO admits that it is a Limited Liability Partnership organized under the laws of the State of Delaware and that its principal place of business is Chicago. BDO further avers that the allegations set forth in Paragraph 8 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations that are not expressly admitted. 9. Answering Paragraph 9 of the Complaint, BDO avers that the allegations set forth are conclusions of law, to which no answer is required. BDO denies all factual allegations. FACTUAL ALLEGATIONS 10. Answering Paragraph 10 of the Complaint, BDO admits that Plaintiff worked for BDO from June 17, 2002 through November 15, 2004 as an accountant. BDO does not have sufficient information to admit or deny whether Plaintiff held an "advanced degree in accounting" or if Plaintiff had received the designation "Certified Public Accountant" or "CPA" from the State of California within the past four years, and thereupon denies this allegation. BDO further avers that the allegations set forth in Paragraph 10 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations that are not expressly admitted. 11. Answering Paragraph 11 of the Complaint, BDO denies each and
(SACV07-1352 JVS (MLGx)) ANSWER TO COMPLAINT

allegation contained in Paragraph 6. allegation contained in Paragraph 7.

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every allegation contained in Paragraph 11.
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12. 13. 14. 15.

Answering Paragraph 12 of the Complaint, BDO denies each and Answering Paragraph 13 of the Complaint, BDO denies each and Answering Paragraph 14 of the Complaint, BDO denies each and Answering Paragraph 15 of the Complaint, BDO denies each and CLASS ALLEGATIONS

every allegation contained in Paragraph 12. every allegation contained in Paragraph 13. every allegation contained in Paragraph 14. every allegation contained in Paragraph 15. 16. Answering Paragraph 16 of the Complaint, BDO avers that the

allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 17. Answering Paragraph 17 of the Complaint, BDO avers that the allegations set forth in Paragraph 17 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 18. 19. Answering Paragraph 18 of the Complaint, BDO denies each and Answering Paragraph 19 of the Complaint, BDO avers that the every allegation contained in Paragraph 18. allegations set forth in Paragraph 19 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 20. Answering Paragraph 20 of the Complaint, BDO avers that the allegations set forth in Paragraph 20 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations.
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21.

Answering Paragraph 21 of the Complaint, including all subparts,

BDO avers that the allegations set forth in Paragraph 21 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 22. Answering Paragraph 22 of the Complaint, including all subparts, BDO avers that the allegations set forth in Paragraph 22 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 23. 24. Answering Paragraph 23 of the Complaint, BDO denies each and Answering Paragraph 24 of the Complaint, BDO avers that the every allegation contained in Paragraph 23. allegations set forth in Paragraph 24 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 25. Answering Paragraph 25 of the Complaint, BDO avers that the allegations set forth in Paragraph 25 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 26. Answering Paragraph 26 of the Complaint, BDO avers that the allegations set forth in Paragraph 26 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 27. Answering Paragraph 27 of the Complaint, BDO avers that the allegations set forth in Paragraph 27 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 28. Answering Paragraph 28 of the Complaint, including all subparts,
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BDO denies each and every allegation contained in Paragraph 28.
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29. 30.

Answering Paragraph 29 of the Complaint, including all subparts, Answering Paragraph 30 of the Complaint, BDO avers that the

BDO denies each and every allegation contained in Paragraph 29. allegations set forth in Paragraph 30 are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. First Cause Of Action Against BDO 31. 32. Answering Paragraph 31 of the Complaint, BDO incorporates herein Answering Paragraph 32 of the Complaint, BDO avers that the its responses to all prior paragraphs of the Complaint. allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 33. Answering Paragraph 33 of the Complaint, BDO avers that the allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 34. 35. Answering Paragraph 34 of the Complaint, BDO denies each and Answering Paragraph 35 of the Complaint, BDO avers that the every allegation contained in Paragraph 34. allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 36. Answering Paragraph 36 of the Complaint, BDO denies each and Second Cause of Action Against BDO 37. Answering Paragraph 37 of the Complaint, BDO incorporates herein
(SACV07-1352 JVS (MLGx)) ANSWER TO COMPLAINT

every allegation contained in Paragraph 36.

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its responses to all prior paragraphs of the Complaint.
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38.

Answering Paragraph 38 of the Complaint, BDO avers that the

allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies any such allegations. 39. 40. Answering Paragraph 39 of the Complaint, BDO denies each and Answering Paragraph 40 of the Complaint, BDO avers that the every allegation contained in Paragraph 39. allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 41. 42. Answering Paragraph 41 of the Complaint, BDO denies each and Answering Paragraph 42 of the Complaint, BDO avers that the every allegation contained in Paragraph 41. allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 43. Answering Paragraph 43 of the Complaint, BDO admits that Plaintiff purports to seek the relief set forth in Paragraph 43. However, BDO denies that Plaintiff is entitled to the relief set forth in Paragraph 43 or to any relief based on any of the allegations set forth in the Complaint. Third Cause Of Action Against BDO 44. 45. Answering Paragraph 44 of the Complaint, BDO incorporates herein Answering Paragraph 45 of the Complaint, BDO avers that the its responses to all prior paragraphs of the Complaint. allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations.
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46. 47.

Answering Paragraph 46 of the Complaint, BDO denies each and Answering Paragraph 47 of the Complaint, BDO avers that the

every allegation contained in Paragraph 46. allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 48. Answering Paragraph 48 of the Complaint, BDO avers that the allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 49. Answering Paragraph 49 of the Complaint, BDO admits that Plaintiff purports to seek the relief set forth in Paragraph 49. However, BDO denies that Plaintiff is entitled to the relief set forth in Paragraph 49 or to any relief based on any of the allegations set forth in the Complaint. Fourth Cause Of Action Against BDO 50. 51. 52. 53. Answering Paragraph 50 of the Complaint, BDO incorporates herein Answering Paragraph 51 of the Complaint, BDO denies each and Answering Paragraph 52 of the Complaint, BDO denies each and Answering Paragraph 53 of the Complaint, BDO avers that the its responses to all prior paragraphs of the Complaint. every allegation contained in Paragraph 51. every allegation contained in Paragraph 52. allegations set forth are conclusions of law to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 54. Answering Paragraph 54 of the Complaint, BDO avers that the allegations set forth are conclusions of law, to which no answer is required. To the
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extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 55. Answering Paragraph 55 of the Complaint, BDO admits that Plaintiff purports to seek the relief set forth in Paragraph 55. However, BDO denies that Plaintiff is entitled to the relief set forth in Paragraph 55 or to any relief based on any of the allegations set forth in the Complaint. Fifth Cause Of Action Against BDO 56. 57. Answering Paragraph 56 of the Complaint, BDO incorporates herein Answering Paragraph 57 of the Complaint, BDO lacks information its responses to all prior paragraphs of the Complaint. sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 57, and on that basis, denies the allegations. 58. Answering Paragraph 58 of the Complaint, BDO avers that the allegations set forth are conclusions of law, to which no answer is required. To the extent any such allegations are not deemed to be conclusions of law, BDO denies such allegations. 59. Answering Paragraph 59 of the Complaint, BDO denies each and Sixth Cause Of Action Against BDO 60. 61. 62. 63. Answering Paragraph 60 of the Complaint, BDO incorporates herein Answering Paragraph 61 of the Complaint, BDO denies each and Answering Paragraph 62 of the Complaint, BDO denies each and Answering Paragraph 63 of the Complaint, BDO denies each and its responses to all prior paragraphs of the Complaint. every allegation contained in Paragraph 61. every allegation contained in Paragraph 62. every allegation contained in Paragraph 63.
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every allegation contained in Paragraph 59.

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64. 65. 66.

Answering Paragraph 64 of the Complaint, BDO denies each and Answering Paragraph 65 of the Complaint, BDO denies each and Answering Paragraph 66 of the Complaint, BDO denies each and PRAYER FOR RELIEF

every allegation contained in Paragraph 64. every allegation contained in Paragraph 65. every allegation of Paragraph 66. BDO denies that Plaintiff is entitled to any of the relief sought against BDO in the Prayer, or to any relief whatsoever, on Plaintiff's behalf individually or on behalf of the alleged putative class members he purports to represent, the existence of which is expressly denied. DEFENSES BDO has not completed its investigation on the facts of this case, has not completed discovery in this matter, and has not completed its preparation for trial. The defenses stated herein are based on BDO's knowledge, information, and belief at this time, and BDO specifically reserves the right to modify, amend, or supplement any defense contained herein at any time. Without conceding that it bears the burden of proof or persuasion as to any one of them, BDO asserts the following separate defenses to the Complaint: FIRST DEFENSE (Failure to State a Cause of Action) 1. The Complaint fails to state facts sufficient to state claims upon which SECOND DEFENSE (Lack of Standing) 2. The named Plaintiff fails to satisfy the prerequisites for class certification and, therefore, lacks standing and cannot represent the interest of others as to each purported claim.
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relief can be granted against BDO.

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THIRD DEFENSE (Uncertainty) 3. Plaintiff's claims, and the claims of each putative member of each purported class as set forth in the Complaint, are barred in whole or in part because the Complaint is uncertain in that the purported class definitions are ambiguous or conclusory. FOURTH DEFENSE (Conduct Reasonable and In Good Faith/Not Willful) 4. BDO contends that if BDO is found to have failed to pay Plaintiff, or any putative member of the purported class defined in the Complaint, any amount due, which allegations BDO denies, BDO acted at all times on the basis of a good faith and reasonable belief that they had complied fully with California wage and hour laws. Consequently, Defendant's conduct was not willful within the meaning of Labor Code Section 203. FIFTH DEFENSE (Failure to Exhaust Internal and Administrative Remedies/Preconditions) 5. The claims of Plaintiff and each putative member of the class Plaintiff purports to represent are barred to the extent that Plaintiff has failed to exhaust his internal and/or administrative remedies. SIXTH DEFENSE (Statute of Limitations) 6. Plaintiff's claims are barred or limited by the applicable statute(s) of limitations, including but not limited to, California Code of Civil Procedure Sections 338, 339, 340 and Labor Code Section 203, and California Business and Professions Code Section 17208.

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SEVENTH DEFENSE (Lack of Standing) 7. Plaintiff lacks standing under the California Labor Code to bring some EIGHTH DEFENSE (Lack of Standing) 8. Plaintiff fails to satisfy the prerequisites for class action certification and, therefore, lacks standing and cannot represent the interests of others as to each of the purported causes of action. NINTH DEFENSE (Not Appropriate for Class Action) 9. The types of claims alleged by the named Plaintiff on behalf of himself and the alleged class, the existence of which are expressly denied, are matters in which individual questions predominate and/or the superior method of adjudication for Plaintiff's claims are not appropriate for class action treatment. TENTH DEFENSE (Numerosity) 10. The Complaint fails to the extent it asserts a class action, because the putative class Plaintiff purports to represent, the existence of which are expressly denied, lacks numerosity. ELEVENTH DEFENSE (Claims Not Common or Typical) 11. The claims alleged by the named Plaintiff are neither common to nor typical of those, if any, of the alleged class Plaintiff purports to represent. or all of the claims alleged against BDO.

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TWELFTH DEFENSE (Inadequate Representatives) 12. The Complaint fails to the extent it asserts a class action, because neither Plaintiff nor Plaintiff's counsel will fairly and adequately represent the purported classes. THIRTEENTH DEFENSE (Superiority) 13. A class claim under California Business and Professions Code Section 17200 is not maintainable for, among other reasons, failure to satisfy the requirement of superiority. FOURTEENTH DEFENSE (Failure to Mitigate) 14. Plaintiff's monetary claims are barred, in whole or in part, because he FIFTEENTH DEFENSE (Adequate Remedy at Law) 15. Plaintiff is not entitled to a recovery of equitable relief, including any relief requested pursuant to California Business and Professions Code Section 17200, because of the existence of an adequate remedy at law. SIXTEENTH DEFENSE (Laches) 16. The Complaint, including the averment of damages purportedly stated SEVENTEENTH DEFENSE (Estoppel) 17. The Complaint is barred in whole or in part by Plaintiff's own conduct, actions, and inactions, which amount to and constitute an estoppel of any relief sought thereby.
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has not appropriately or adequately mitigated his damages, if any.

therein, are barred in whole or in part by the doctrine of laches.

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EIGHTEENTH DEFENSE (Unclean Hands) 18. Plaintiff's claims are barred in whole or in part by the doctrine of NINETEENTH DEFENSE (Waiver of Claims) 19. released. TWENTIETH DEFENSE (Excessive Fines) 20. An award of penalties and/or punitive damages under the circumstances of this case would constitute an excessive fine and otherwise would be in violation of BDO's due process and other rights under the United States and California Constitutions. TWENTY-FIRST DEFENSE (Action Unconstitutional) 21. Certification of a class, based upon the facts and circumstances of this case, would constitute a denial of BDO's right to due process under the Fourteenth Amendment of the United States Constitution, and the California Constitution. TWENTY-SECOND DEFENSE (Exclusive Remedy Doctrine) 22. Plaintiff's claims for punitive and exemplary damages are barred by TWENTY-THIRD DEFENSE (California Law Overtime and Minimum Wage Exemption) 23. Plaintiff and the class he purports to represent are exempt from the
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unclean hands.

The claims of Plaintiff and of the purported class are barred in whole

or in part because such claims have been waived, discharged, abandoned, and/or

the exclusive remedy doctrine.

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overtime, meal and rest period and time reporting requirements under the California
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Labor Code and the applicable Industrial Welfare Commission wage order or wage orders promulgated under the California Labor Code, including but not limited to, the exemptions set forth in Sections 1(A)(2) and (A)(3) of the applicable wage order or wage orders, such as the "administrative" exemption and the exemption for "professionals." To the extent that Plaintiff or each putative member of each purported subclass defined in the Complaint perform or performed additional exempt duties, the rules and interpretive guidance applicable to those exemptions may apply to such person. RESERVATION OF RIGHTS BDO reserves the right to assert such additional defenses that may appear and prove applicable during the course of this litigation. WHEREFORE, BDO prays for judgment that: 1. action; 2. 3. 4. 5. //// //// //// //// //// //// ////
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The Court deny Plaintiff's request to certify this action as a class Plaintiff takes nothing by reason of the Complaint on file herein, and Judgment be entered in favor of BDO and against Plaintiff on all BDO be awarded its costs of suit incurred herein; BDO be awarded its attorneys' fees incurred by this action pursuant to

that said Complaint be dismissed with prejudice; causes of action;

California Labor Code Section 218.5; and,

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6.

The Court award BDO such other and further relief as it deems just and

proper. Dated: January 23, 2008 MORGAN, LEWIS & BOCKIUS LLP JOHN S. BATTENFELD DARREN J. CAMPBELL

By s/John S. Battenfeld John S. Battenfeld Attorneys for Defendant BDO SEIDMAN, LLP

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