Larry Boecken Jr v. Gallo Glass Company

Filing 90

STIPULATION and ORDER Granting Defendant Gallo Glass Company Leave to File First Amended Answer, signed by Judge Oliver W. Wanger on 6/1/2011. (Attachments: # 1 Exhibit A - Defendant Gallo Glass Company's First Amended Answer to Plaintiff's Complaint and Demand for Jury Trial)(Gaumnitz, R)

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NANCY L. ABELL (SB# 088785)
[e-mail]
PAUL, HASTINGS, JANOFSKY & WALKER LLP
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: [phone]
Facsimile: [phone]

EXHIBIT A

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Attorneys for Defendant
GALLO GLASS COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY BOECKEN, JR.,

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CASE NO. 1:05-CV-90 OWW

Plaintiff,

DEFENDANT GALLO GLASS
COMPANY’S FIRST AMENDED ANSWER
TO PLAINTIFF’S COMPLAINT AND
DEMAND FOR JURY TRIAL

vs.
GALLO GLASS COMPANY, and DOES
1 through 50, inclusive,

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Defendants.
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COMES NOW Defendant GALLO GLASS COMPANY and answers Plaintiff Complaint
on file herein by admitting, denying or alleging as follows:

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GENERAL ALLEGATIONS
1.

In answer to paragraph 1 of Plaintiff’s Complaint, to the extent it contains legal

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conclusions, no admission or denial is required. Except as so limited, GALLO GLASS

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COMPANY denies each and every allegation contained therein.

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2.

In answer to paragraph 2 of Plaintiff’s Complaint, to the extent it contains legal

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conclusions, no admission or denial is required. Except as so limited, GALLO GLASS

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COMPANY denies each and every allegation contained therein.

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CASE NO. 1:05-CV-00090 OWW DLB

DEFENDANT’S FIRST AM. ANSWER

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In answer to paragraph 3 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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admits that GALLO GLASS COMPANY is a corporation duly organized and existing under the

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laws of Nevada and is authorized to and is doing business in Modesto, County of Stanislaus,

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California. Except as so limited, GALLO GLASS COMPANY denies each and every allegation

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contained therein.

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4.

In answer to paragraph 4 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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admits that Plaintiff LARRY BOECKEN, JR., was at all times material herein employed by

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Defendant GALLO GLASS COMPANY in Modesto, County of Stanislaus, California. GALLO

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GLASS COMPANY denies all remaining allegations contained therein.

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5.

In answer to paragraph 5 of Plaintiff’s Complaint, GALLO GLASS COMPANY

admits the allegations contained therein.
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In answer to paragraph 6 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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admits that Plaintiff was hired and employed by Defendant GALLO GLASS COMPANY in

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Modesto, County of Stanislaus, California, but denies that he was employed for a period in excess

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of fourteen (14) years.

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7.

In answer to paragraph 7 of Plaintiff’s Complaint, to the extent that it contains

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legal conclusions, no admission or denial is required. GALLO GLASS COMPANY admits that

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on or about November 4, 2003, it interviewed Plaintiff in the presence of Plaintiff’s union

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representative about suspected fraudulent use of FMLA leave. GALLO GLASS COMPANY also

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admits that there was a second meeting with Plaintiff and his union representative on or about

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November 17, 2003, wherein Plaintiff was informed that he would be terminated for fraudulent

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use of FMLA leave. GALLO GLASS COMPANY also admits that it was in possession of a

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videotape evidencing Plaintiff’s fraudulent use of FMLA leave. Except as expressly admitted,

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GALLO GLASS COMPANY denies the remaining allegations contained therein.

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8.

In answer to paragraph 8 of Plaintiff’s Complaint, GALLO GLASS COMPANY

denies each and every allegation contained therein.
9.

In answer to paragraph 9 of Plaintiff’s Complaint, GALLO GLASS COMPANY

admits that Plaintiff was terminated from his employment at GALLO GLASS COMPANY for
Case No. 1:05-cv-00090 OWW DLB

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DEFENDANT’S FIRST AM. ANSWER

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fraudulent use of FMLA leave. GALLO GLASS COMPANY is without specific knowledge or

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information to admit or deny the remaining allegations contained therein and therefore, denies

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same.

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10.

In answer to paragraph 10 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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is without specific knowledge or information to admit or deny the allegations contained therein

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and, therefore, denies same.

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FIRST CAUSE OF ACTION

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(Violation of FMLA)

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11.

In answer in paragraph 11 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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incorporates herein by reference, as if fully set forth herein, each and every admission, denial and

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limitation in paragraphs 1 through 10, inclusive, of this Answer.

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12.

In answer to paragraph 12 of Plaintiff’s Complaint, to the extent that it contains

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legal conclusions, no admission or denial is required. Except as so limited, GALLO GLASS

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COMPANY denies each and every allegation contained therein.

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13.

In answer to paragraph 13 of Plaintiffs Complaint, GALLO GLASS COMPANY

denies each and every allegation contained therein.
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In answer to paragraph 14 of Plaintiff’s Complaint, GALLO GLASS COMPANY

denies each and every allegation contained therein.
15.

In answer to paragraph 15 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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denies each and every allegation contained therein and specifically denies that Plaintiff has been

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caused to suffer damage as a result of GALLO GLASS COMPANY’S action in any amount.

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In answer to paragraph 16 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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denies each and every allegation contained therein and specifically denies that Plaintiff has been

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caused to suffer damage in any amount as a result of GALLO GLASS COMPANY’S actions.

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17.

In answer to paragraph 17 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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is without specific knowledge or information to admit or deny the allegations contained therein

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and, therefore, denies same.

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DEFENDANT’S FIRST AM. ANSWER

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SECOND CAUSE OF ACTION

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(Discrimination)

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In answer to paragraph 18 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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incorporates herein by reference, as though fully set forth herein, each and every admission,

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denial and limitation in paragraphs 1 through 11, inclusive of this Answer.

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19.

In answer to paragraph 19 of Plaintiff’s Complaint, to the extent that it contains

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legal conclusions, no admission or denial is required. Except as so limited, GALLO GLASS

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COMPANY denies each and every remaining allegation contained therein.

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In answer to paragraph 20 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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denies each and every allegation contained therein and specifically denies that Plaintiff has been

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caused to suffer damage in any amount as a result of GALLO GLASS COMPANY’s actions.

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In answer to paragraph 21 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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denies each and every allegation contained therein and specifically denies that Plaintiff has been

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caused to suffer damage in any amount as a result of GALLO GLASS COMPANY’s actions.

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In answer to paragraph 22 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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denies each and every allegation contained therein and specifically denies that Plaintiff has been

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caused to suffer damage in any amount as a result of GALLO GLASS COMPANY’s actions.

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23.

In answer to paragraph 20 of Plaintiff’s Complaint, GALLO GLASS COMPANY

denies each and every allegation contained therein.
24.

In answer to paragraph 24 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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is without specific knowledge or information to admit or deny the allegations contained therein

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and, therefore, denies same.

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THIRD CAUSE OF ACTION

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(Termination in Violation of Public Policy)

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25.

In answer to paragraph 25 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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incorporates herein by reference, as though fully set forth herein, each and every admission,

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denial and limitation in paragraphs 1 through 12, inclusive of this Answer.

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Case No. 1:05-cv-00090 OWW DLB

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DEFENDANT’S FIRST AM. ANSWER

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26.

In answer to paragraph 26 of Plaintiff’s Complaint, to the extent it contains legal

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conclusions, no admission or denial is required. Except as so limited, GALLO GLASS

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COMPANY denies each and every allegation contained therein.

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27.

In answer to paragraph 27 of Plaintiff’s Complaint, GALLO GLASS COMPANY

denies each and every allegation contained therein.
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In answer to paragraph 28 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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denies each and every allegation contained therein and specifically denies that Plaintiff has been

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caused to suffer damage in any amount as a result of GALLO GLASS COMPANY’s actions.

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29.

In answer to paragraph 29 of Plaintiff’s Complaint, GALLO GLASS COMPANY

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denies each and every allegation contained therein and specifically denies that Plaintiff has been

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caused to suffer damage in any amount as a result of GALLO GLASS COMPANY’s actions.

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denies each and every allegation contained therein.

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In answer to paragraph 30 of Plaintiff’s Complaint, GALLO GLASS COMPANY

FIRST AFFIRMATIVE DEFENSE
31.

As and for a First Affirmative Defense, Defendant GALLO GLASS COMPANY

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asserts that Plaintiff’s Complaint and each and every cause of action therein stated, fails to state a

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claim upon which relief may be granted against Defendant GALLO CLASS COMPANY.

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SECOND AFFIRMATIVE DEFENSE,
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As and for a Second Affirmative Defense, Defendant GALLO GLASS

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COMPANY asserts that if and to the extent allegations in Plaintiff’s Complaint attempt to enlarge

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upon the facts and contentions set forth in Plaintiff’s claim filed with the Department of Fair

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Employment and Housing, the Complaint fails to state a claim upon which relief can be granted

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due to Plaintiff’s failure to exhaust his administrative remedies.

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THIRD AFFIRMATIVE DEFENSE
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As and for a Third Affirmative Defense, Defendant GALLO GLASS COMPANY

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asserts that at all times mentioned herein, Defendant acted in good faith and with a reasonable

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belief as to the legalities of the things and matters attributed to Defendant GALLO GLASS

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COMPANY, including, but not limited to, a good faith reasonable belief that Plaintiff had
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DEFENDANT’S FIRST AM. ANSWER

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fraudulently used FMLA leave, and that as a consequence thereof, no liability should he imposed

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on Defendant GALLO GLASS COMPANY.

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FOURTH AFFIRMATIVE DEFENSE
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As and for a Fourth Affirmative Defense, Defendant GALLO GLASS COMPANY

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expressly denies that any actions affecting the terms and/or conditions of Plaintiff’s employment

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were motivated by Plaintiff’s sexual orientation or perceived sexual orientation. However, if it

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should be found that Plaintiff’s sexual orientation or perceived sexual orientation was a

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motivating factor for any employment action, which is expressly denied, Defendant GALLO

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GLASS COMPANY submits that it would have taken the same employment action in the absence

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of consideration of Plaintiff’s sexual orientation or perceived sexual orientation.

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FIFTH AFFIRMATIVE DEFENSE
35.

As and for a Fifth Affirmative Defense, Defendant GALLO GLASS COMPANY

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alleges that all acts of Defendant GALLO GLASS COMPANY affecting the terms and/or

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conditions of Plaintiff’s employment were done in good faith and motivated by legitimate, non-

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retaliatory, non-discriminative reasons and/or as a result of business necessity.

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SIXTH AFFIRMATIVE DEFENSE
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asserts that Plaintiff’s damages, if any, should be reduced by Plaintiff’s interim earnings.

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As and for a Sixth Affirmative Defense, Defendant GALLO GLASS COMPANY

SEVENTH AFFIRMATIVE DEFENSE
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As and for a Seventh Affirmative Defense, Defendant GALLO GLASS

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COMPANY asserts that any award of back pay on behalf of Plaintiff should be denied or abated

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for any period or periods Plaintiff was unable to work.

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EIGHTH AFFIRMATIVE DEFENSE
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As and for an Eighth Affirmative Defense, Defendant GALLO GLASS

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COMPANY asserts that all or part of Plaintiff’s damages are barred by the Doctrine of After

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Acquired Evidence and Plaintiff’s damages should be reduced accordingly.

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DEFENDANT’S FIRST AM. ANSWER

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NINTH AFFIRMATIVE DEFENSE
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As and for a Ninth Affirmative Defense, Defendant GALLO GLASS COMPANY

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asserts that all times herein mentioned Plaintiff was an “at-will” employee subject to termination,

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with or without cause, and with or without notice.

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TENTH AFFIRMATIVE DEFENSE
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As and for a Tenth Affirmative Defense, Defendant GALLO GLASS COMPANY

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expressly denies than any actions affecting the terms and/or conditions of Plaintiff’s employment

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were on account of any protected status under state or federal law, specifically including but not

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limited to California Fair Employment and Housing Act.

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ELEVENTH AFFIRMATIVE DEFENSE
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As and for an Eleventh Affirmative Defense, Defendant GALLO GLASS

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COMPANY alleges that the punitive damages sought by Plaintiff are a violation of the Due

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Process and Equal Protection Clauses of United States and California Constitutions.

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TWELFTH AFFIRMATIVE DEFENSE
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As and for a Twelfth Affirmative Defense, Defendant GALLO GLASS

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COMPANY asserts that Plaintiff lacks standing to pursue his claims before this Court. This

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lawsuit was filed in November 2004. On August 21, 2008, Plaintiff filed a Voluntary Petition for

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bankruptcy under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for

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the Eastern District of California, Case No. 08-15050-B-7. This lawsuit and the claims therein

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were not listed in Plaintiff’s sworn Statement of Financial Affairs, filed with the United States

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Bankruptcy Court or any other filing with the Bankruptcy Court while his Petition was pending.

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On or about December 30, 2008, the United States Bankruptcy Court granted Plaintiff a discharge

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under section 727 of title 11, United States Code. Plaintiff’s claims are the property of the

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bankruptcy estate, and Plaintiff has no standing to pursue them in this Court.

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THIRTEENTH AFFIRMATIVE DEFENSE
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As for a Thirteenth Affirmative Defense, Defendant GALLO GLASS COMPANY

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asserts that Plaintiff’s claims are barred by the doctrine of judicial estoppel. This lawsuit was

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filed in November 2004. On August 21, 2008, Plaintiff filed a Voluntary Petition for bankruptcy

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DEFENDANT’S FIRST AM. ANSWER

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under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern

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District of California, Case No. 08-15050-B-7. This lawsuit and the claims therein were not

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listed in Plaintiff’s sworn Statement of Financial Affairs, filed with the United States Bankruptcy

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Court or any other filing with the Bankruptcy Court while his Petition was pending. On or about

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December 30, 2008, the United States Bankruptcy Court granted Plaintiff a discharge under

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section 727 of title 11, United States Code. Plaintiff is judicially estopped from pursuing all

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claims, including all claims asserted in this lawsuit, that he failed to disclose to the Bankruptcy

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Court before it granted him a discharge under section 727.

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WHEREFORE, Defendant GALLO GLASS COMPANY prays judgment as follows:

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1.

That the Complaint of Plaintiff against Defendant herein be dismissed;

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2.

That Plaintiff take nothing by reason of the Complaint;

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That Plaintiff be granted no relief in this action;

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4.

That Defendant have judgment against Plaintiffs;

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6.

That Defendant recover costs of suit incurred herein;

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That Defendant recover reasonable attorneys’ fees; and,

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For such other relief as the Court may deem just and proper.

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Dated: May 20, 2011

NANCY L. ABELL
PAUL, HASTINGS, JANOFSKY & WALKER LLP

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By:

/s/

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Nancy L. Abell
NANCY L. ABELL

Attorneys for Defendant
GALLO GLASS COMPANY

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Case No. 1:05-cv-00090 OWW DLB

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DEFENDANT’S FIRST AM. ANSWER

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DEMAND FOR JURY TRIAL
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Defendant GALLO GLASS COMPANY hereby demands a trial by jury in the
aforementioned action.

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Dated: May 20, 2011

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NANCY L. ABELL
PAUL, HASTINGS, JANOFSKY & WALKER LLP

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By:

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/s/

Nancy L. Abell
NANCY L. ABELL

Attorneys for Defendant
GALLO GLASS COMPANY

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Case No. 1:05-cv-00090 OWW DLB

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DEFENDANT’S FIRST AM. ANSWER