Mariana Salgado vs L&F Incorporated

Complaint Information

Michael J.F. Smith, #109426 John L. Migliazzo, #272066

Michael J.F. Smith, A Professional Corporation

1391 West Shaw Avenue, Suite D Fresno, California 93711

E-FILED

6/20/2018 11:12 AM

FRESNO COUNTY SUPERIOR COURT

By: A. Ramos, Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO

MARIANA SALGADO, an individual; and GILBERTO DIAZ, an individual;

Plaintiffs, V.

L & F INCORPORATED DBA ARSENIO’S

MEXICAN FOOD, a California Corporation; LUCIA LOPEZ, an individual; FRANCISCO SOLIS, an individual, and DOES 1-50;

Defendants.

L & FL & F INCORPORATED DBA

ARSENIO’S MEXICAN FOOD, a California Corporation; LUCIA LOPEZ, an individual, FRANCISCO SOLIS, an individual;

Cross-Complainants, V. MARIANA SALGADO, an individual; GILBERTO DIAZ, an individual; and ROES

51-70 inclusive

Cross-Defendants

Case No.: 18CECGO01162

ANSWER TO CROSS-COMPLAINT

Cross-Defendants, Mariana Salgado and Gilberto Diaz, individually, (hereinafter “Cross Defendants) hereby answer the Cross-Complaint of L & F Incorporated, Lucia Lopez, an Francisco Solis (hereinafter “Cross-Complainants™), and respond as follows:

GENERAL DENIAL

Pursuant to the provisions of California Code of Civil Procedure, specifically section 431.30 thereof, Cross-Defendants generally deny each and every allegation contained in the Cross Complaint, and the whole thereof, and each and every allegation of each and every cause of action alleged therein, and further expressly deny that as a direct or proximate result of any acts or omissions on the part of answering Cross-Detendants, Cross-Complainants herein sustained or suffered injury or damage in the amount alleged in the complaint, or in any amount at all, or that Cross-Complainants have suffered injury or damage for any reason in the sums alleged in the Cross Complaint, or in any other sum or sums, or at all.

AFFIRMATIVE DEFENSES

As further, separate and affirmative defenses to the Cross-Complaint, these responding

Cross-Defendants allege as follows:

FIRST AFFIRMATIVE DEFENSE

(Failure to State a Cause of Action)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that Cross-Complainants have failed to allege facts sufficient to constitute a cause or causes of action against these responding Cross-Defendants.

SECOND AFFIRMATIVE DEFENSE

(Unclean Hands)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross-

Defendants allege that each and every cause of action alleged in the Cross-Complaint is barred

by the doctrine of unclean hands.

THIRD AFFIRMATIVE DEFENSE

(Failure to Mitigate)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that Cross-Claimants have failed to take reasonable or adequate steps to mitigate, alter, reduce, or otherwise diminish the damages, if any, suffered by them, and thus, is barred from any recovery for such damages, if any were sustained, with respect to the matters in dispute.

FOURTH AFFIRMATIVE DEFENSE

(Own Actions)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that Cross-Complainants, by reason of their own acts, conduct, and/or omissions, have waived the right to seek and/or secure any relief against these responding Cross- Defendants.

FIFTH AFFIRMATIVE DEFENSE

(Statute of Limitations)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that each and every purported cause of action is barred by the applicable statutes of limitation.

SIXTH AFFIRMATIVE DEFENSE

(No Attorneys’ Fees)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that the Cross-Complaint, and each cause of action therein, fails to state a cause of action for the recovery of attorneys’ fees and/or costs with respect to these responding Cross-Defendants.

SEVENTH AFFIRMATIVE DEFENSE

(Good Faith)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that the acts and conduct of these responding Cross-Defendants were justified under the applicable statutes, and, thus, Cross-Complainants are not entitled to damages against these responding Cross-Defendants

EIGHTH AFFIRMATIVE DEFENSE

(Laches)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that each and every cause of action alleged in the Cross-Complaint is barred by the doctrine of laches.

NINTH AFFIRMATIVE DEFENSE

(Intervening Third Parties)

As a separate and affirmative defense to the Cross-Complaint, these responding Cross- Defendants allege that if Cross-Complainants have been damaged, said damages are the result of the active and primary negligence or fault of parties other than these responding Cross- Defendants, for which those responding Cross-Defendants have no responsibility, and that these responding Cross-Defendants are entitled to total and/or partial equitable and/or implied comparative indemnity and contribution.

TENTH AFFIRMATIVE DEFENSE

(Equitable estoppel)

The Cross-Complaint and each purported cause of action therein is barred because each

Plaintiff is equitably estopped form proceeding on the claims purportedly set forth therein.

ELEVENTH AFFIRMATIVE DEFENSE

(Estoppel/Waiver/Ratification)

The Cross-Complaint is barred by the doctrines of estoppel, waiver, and ratification.

TWELFTH AFFIRMATIVE DEFENSE

(Failure to Exhaust Administrative Remedies)

The Cross-Complaint and each of its purported causes of action are barred in whole or in part because Cross-Complaints did not properly exhaust administrative remedies prior to filing the Cross-Complaint.

THIRTEENTH AFFIRMATIVE DEFENSE

(Acts or Omissions of Third Parties)

The acts or omissions complained of by Cross-Complainants, if any, were caused solely by one or more acts of a third party or parties other than an employee or agent of answering Cross-Defendants.

FOURTEENTH AFFIRMATIVE DEFENSE

(Failure of Performance)

Cross-Complainants failed to perform as agreed and his claims are barred because his employment was terminated for cause.

FIFTEENTH AFFIRMATIVE DEFENSE

(Lack of Standing)

Cross-Complainants lack standing to sue Cross-Defendants.

RESERVATION OF ADDITIONAL DEFENSES

Cross-Defendants allege that because the Cross-Complaint has conclusory allegations, all affirmative defenses that may be applicable cannot be fully anticipated. Accordingly, the right to assert additional affirmative defenses, if and to the extent that such affirmative defenses are applicable, are reserved. Cross-Defendants reserve the right to amend this Answer should Cross- Defendant later discover facts that support the existence of new or additional affirmative defenses, or if there should be a change in the law that supports a new or additional affirmative

defense.

defense. WHEREFORE, these Answering Cross-Defendants pray for judgment as follows:

WHEREFORE, these Answering Cross-Defendants pray for judgment as follows:

1. That each of Cross-Complainants’ causes of action be denied;

2. That Cross-Complainants’ take nothing by way of their Complaint;

3. That these responding Cross-Defendants be awarded their costs of suit and attorneys’ fees herein;

4. That these responding Cross-Defendants be awarded such other and further relief

as the Court deems just and proper.

Dated: June 30 2018 MICHAEL J. F. SMITH,

A PROFESSIONAL CORPORATION

By: lz ; ’Z»/ (

/ John L. Migliazzo, Attorney for Cross-Defendants

PROOF OF SERVICE

My business address is 1391 West Shaw Avenue, Suite D, Fresno, California 93711. 1 am employed in Fresno County, California. I am over the age of 18 years and am not a party to this case.

On the date indicated below, I served the foregoing document(s) described as: ANSWER TO CROSS-COMPLAINT on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

Tracy Agrall, Esq.

John W. Phillips, Esq. WILD, CARTER & TIPTON 246 W. Shaw Ave.

Fresno, CA 93704

[ ] @BYMAIL) I am readily familiar with the business’ practice for collection an processing of correspondence for mailing, and that correspondence, with postage thereo fully prepaid, will be deposited with the United States Postal Service in the ordina course of business, at Fresno, California.

[ ] (BYPERSONAL SERVICE) I caused delivery of such envelope(s), by hand, to th office(s) of the addressee(s).

[ 1| (BY ELECTRONIC MAIL) I caused such documents to be scanned into PDF forma

and sent via electronic mail to the electronic mail addressee(s) of the addressee(s designated.

[ 1 (BYFACSIMILE) I caused the above-referenced document to be delivered b facsimile to the facsimile number(s) of the addressee(s).

[ ] (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to b

delivered to an overnight courier service for delivery to the addressee(s).

EXECUTED ON June 22 , 2018, at Fresno, California.

[X] (STATE) I declare under penalty of perjury under the laws of the State of Californi

that the foregoing is true and correct.

AMENDED PROOF OF SERVICE

My business address is 1391 West Shaw Avenue, Suite D, Fresno, California 93711. 1 am employed in Fresno County, California. I am over the age of 18 years and am not a party to this case.

On the date indicated below, I served the foregoing document(s) described as: ANSWER TO CROSS-COMPLAINT on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

Tracy Agrall, Esq.

John W. Phillips, Esq. WILD, CARTER & TIPTON 246 W. Shaw Ave,

Fresno, CA 93704

[X] (BYMAIL) I am readily familiar with the business’ practice for collection an processing of correspondence for mailing, and that correspondence, with postage thereo fully prepaid, will be deposited with the United States Postal Service in the ordina course of business, at Fresno, California.

| 1 (BY PERSONAL SERVICE) I caused delivery of such envelope(s), by hand, to th office(s) of the addressee(s).

[X] (BY ELECTRONIC MAIL) I caused such documents to be scanned into PDF forma

and sent via electronic mail to the electronic mail addressee(s) of the addressee(s designated.

[ 1] (BYFACSIMILE) I caused the above-referenced document to be delivered b facsimile to the facsimile number(s) of the addressee(s).

[ 1T (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to b

delivered to an overnight courier service for delivery to the addressee(s).

EXECUTED ON June 2 , 2018, at Fresno, California.

[X] (STATE) I declare under penalty of perjury under the laws of the State of Californi

that the foregoing is true and correct.