SEYFARTH SHAW LLP Telephone: (415) 397-2823 Eric R. … · · 2017-02-18San Francisco, California...

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DEFENDANT’S ANSWER TO FIRST AMENDED COMPLAINT22262775v.1

SEYFARTH SHAW LLPMichael J. Burns (SBN 172614)[email protected] Mission Street, 31st FloorSan Francisco, California 94105-2930Telephone: (415) 397-2823Facsimile: (415) 397-8549

SEYFARTH SHAW LLPEric R. [email protected]. Joshua Salinas (SBN 282065)[email protected] Century Park East, Suite 3500Los Angeles, California 90067-3021Telephone: (310) 277-7200Facsimile: (310) 201-5219

Attorneys for DefendantBURLINGTON COAT FACTORY OFCALIFORNIA, LLC

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

JAMES HOROSNY, an individual;JENNIFER PRICE, an individual;individually and on behalf of all otherssimilarly situated,

Plaintiffs,

v.

BURLINGTON COAT FACTORY OFCALIFORNIA, LLC, a California LimitedLiability Company; and DOES 1 thorough100, inclusive,

Defendants.

Case No. 2:15-cv-05005-SJO-MRW

CLASS ACTION

[Assigned to the Hon. James S. Otero]

DEFENDANT’S ANSWER TOFIRST AMENDED COMPLAINT

Case 2:15-cv-05005-SJO-MRW Document 32 Filed 11/05/15 Page 1 of 25 Page ID #:668

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Defendant Burlington Coat Factory of California, LLC (“Defendant”), in response

to the First Amended Complaint (the “Complaint”) filed by Plaintiffs James Horosny and

Jennifer Price (“Plaintiffs”), submits its Answer.

Burlington hereby admits, denies, and alleges as follows:

ANSWER

The Complaint contains an introductory paragraph and headings, which

characterize certain allegations. Because they are not set forth in numbered paragraphs,

these allegations are not properly pleaded facts requiring a response. To the extent any

unnumbered paragraphs or headings contain factual allegations requiring a response,

Defendant specifically denies the allegations set forth therein.

JURISDICTION AND VENUE

1. Answering Paragraph 1 of the Complaint, Defendant admits that it is a

California limited liability company with its principal place of business in Burlington,

New Jersey. Defendant reserves its right to challenge the Court’s subject matter

jurisdiction throughout this litigation. Except as admitted above, Defendant denies the

allegations contained in said paragraph.

2. Answering Paragraph 2 of the Complaint, Defendant admits that Plaintiffs

have alleged claims under California Business & Professions Code §§ 17200 et seq. and

17500 et seq. and California Civil Code 8 1750, et seq. Except as admitted above,

Defendant denies the allegations contained in said paragraph.

3. Answering Paragraph 3 of the Complaint, Defendant admits that venue is

proper in this district. Defendant is without sufficient knowledge or information to form

a belief as to the truth of the allegations in said paragraph regarding Plaintiff Horosny’s

residence, and on that basis denies the allegations contained in this paragraph. Except as

admitted above, Defendant denies the allegations contained in said paragraph.

4. Answering Paragraph 4 of the Complaint, Defendant admits that this Court

has personal jurisdiction over Defendant, Defendant is a California limited liability


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company authorized to do business in the State of California and registered with the

California Secretary of State to do business, has its corporate headquarters and principal

place of business in Burlington, New Jersey, and owns and operates over 60 retail stores

in California. Except as admitted above, Answering Defendant denies the allegations

contained in said paragraph.

5. Answering Paragraph 5 of the Complaint, Defendant admits it transacts

business within the county of Los Angeles and State of California. Except as admitted

above, Defendant denies the allegations contained in said paragraph.

INTRODUCTION

6. Answering Paragraph 6 of the Complaint, Defendant is without sufficient

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

paragraph, and on that basis denies the allegations contained in said paragraph.

7. Answering Paragraph 7 of the Complaint, Defendant denies the allegations


PARTIES



paragraph regarding Plaintiff Horosny’s residence, and on that basis denies the

allegations contained in said paragraph. Defendant further denies the remaining

allegations in said paragraph.



paragraph regarding Plaintiff Price’s residence, and on that basis denies the allegations

contained in said paragraph. Defendant further denies the remaining allegations in said

paragraph.

10. Answering Paragraph 10 of the Complaint, Defendant admits that it is a

California limited liability company, organized under the laws of the State of California


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and licensed by the State of California, and has its principal place of business in

Burlington, New Jersey. Except as admitted above, Defendant denies the allegations





FACTUAL ALLEGATIONS




















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///


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contained in said paragraph. Defendant further responds that the allegations in said

paragraph call for a legal conclusion and no answer is required.
























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///


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100. Answering Paragraph 100 of the Complaint, Defendant denies the

























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PLAINTIFF’S PURCHASES






















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CLASS ACTION ALLEGATIONS


allegations contained in said paragraph. Defendant further responds that the allegations

in said paragraph call for a legal conclusion and no answer is required.













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138. Answering Paragraph 138 and its subparagraphs a. – s. of the Complaint,

Defendant denies the allegations contained in said paragraph, including each and every

subparagraph.



















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FIRST CAUSE OF ACTION

UNFAIR BUSINESS PRACTICES

159. Answering Paragraph 159 of the Complaint, Defendant incorporates by

reference its specific responses above to the specific allegations referenced in this


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paragraph as fully stated herein.



















SECOND CAUSE OF ACTION

FRAUDULENT BUSINESS PRACTICES








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THIRD CAUSE OF ACTION

UNLAWFUL BUSINESS PRACTICES



















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FOURTH CAUSE OF ACTION

FALSE ADVERTISING
















187. Answering Paragraph 187 and its subparagraphs a. – d. of the Complaint,




189. Answering Paragraph 189 and its subparagraphs a. – e. of the Complaint,






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FIFTH CAUSE OF ACTION

VIOLATION OF THE CALIFORNIA CONSUMERS LEGAL REMEDIES ACT




193. Answering Paragraph 193 and its subparagraphs a. – b. of the Complaint,

Defendant denies the allegations contained in said paragraph, including both

subparagraphs.

















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ANSWER TO PRAYER FOR RELIEF

1. Answering Paragraph 1 of the Prayer for Relief, Defendant denies the

allegations and that Plaintiffs are entitled to the requested relief contained in said

paragraph.



paragraph.



paragraph.



paragraph.



paragraph.



paragraph.



paragraph.



paragraph.

ANSWER TO DEMAND FOR JURY

To the extent a response to Plaintiffs’ jury demand is required, Defendant denies


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that Plaintiffs are entitled to a jury trial for the claims asserted in the Complaint.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

(Failure to State a Claim)

1. The Complaint, and each purported cause of action contained therein, fails to

state facts sufficient to constitute any cause of action and fails to state any claim upon

which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

(Lack of Standing)

2. The Complaint, and all purported causes of action contained therein, fails to

allege facts showing that Plaintiffs have standing to bring any of the claims included in

the Complaint.

THIRD AFFIRMATIVE DEFENSE

(Failure to Provide Notice Under Cal. Civ. Code § 1782)

3. Plaintiffs’ claims under the California Consumer Legal Remedies Act are

barred to the extent Plaintiffs failed to provide Defendant with the requisite pre-litigation

notice under California Civil Code § 1782.

FOURTH AFFIRMATIVE DEFENSE

(Other Factors Caused Alleged Harm)

4. Factors other than allegedly untrue statements of material fact, omissions of

material fact, misleading statements or other alleged actions by Defendant caused some

or all of the harm or damages alleged by Plaintiffs, to the extent there was any.

FIFTH AFFIRMATIVE DEFENSE

(No Causation)

5. Defendant is not liable to Plaintiffs, in whole or in part, because the losses

that Plaintiffs allegedly suffered were not proximately caused by any act or omission of

Defendant.


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SIXTH AFFIRMATIVE DEFENSE

(Class Action Prerequisites)

6. Plaintiffs cannot satisfy the prerequisites for class certification and,

therefore, cannot represent the interests of others.

SEVENTH AFFIRMATIVE DEFENSE

(Failure to State a Class Action)

7. The Complaint, and each claim for relief asserted therein, fails to state facts

sufficient to constitute a class action as to either Plaintiffs or Defendant.

EIGHTH AFFIRMATIVE DEFENSE

(No Injury or Harm)

8. Defendant’s alleged conduct did not cause Plaintiffs or any putative class

member harm and/or injury.

NINTH AFFIRMATIVE DEFENSE

(Lack of Subject Matter Jurisdiction)

9. Plaintiffs’ claims cannot proceed in this forum because the Court lacks

subject matter jurisdiction over Plaintiffs’ claims or, in the alternative, because the Court

should exercise discretion to decline subject matter jurisdiction over Plaintiffs’ claims.

TENTH AFFIRMATIVE DEFENSE

(No Duty to Disclose)

10. Plaintiffs’ claims are barred because Defendant was under no duty to

disclose any of the purported information Plaintiffs allege was not disclosed.

ELEVENTH AFFIRMATIVE DEFENSE

(Failure to State a Claim With Particularity)

11. Plaintiffs have failed to plead the allegations in the Complaint with sufficient

particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure.

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TWELFTH AFFIRMATIVE DEFENSE

(Safe Harbor)

12. Plaintiffs’ claims under the California Business & Professions Code section

17200 et seq. are exempted by the safe harbor provision in the California Business and

Professions Code section 17200 et seq. Plaintiffs’ claims under the California Business

& Professions Code section 17500 et seq. are exempted by the safe harbor provision in

the California Business & Professions Code section 17500 et seq.

THIRTEENTH AFFIRMATIVE DEFENSE

(Additional Defenses)

13. Defendant asserts that Plaintiffs have failed to set forth their claims with

sufficient particularity to permit Defendant to raise all separate and affirmative defenses.

For this reason, and for others, Defendant reserves the right to amend and/or supplement

the averments of its Answer to assert any and all pertinent defenses ascertained through

further investigation and discovery or otherwise. Defendant will rely on all defenses that

may become available or apparent in discovery or trial.

DEFENDANT’S PRAYER FOR RELIEF (ANSWER)

WHEREFORE, Defendant prays that the Court determine and adjudge:

1. that this suit cannot be maintained as a class action;

2. that the Complaint be dismissed on the merits;

3. that Plaintiffs take nothing by the Complaint;

4. that Defendant be awarded its costs, disbursements, attorneys’

fees, and expenses incurred herein; and

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5. that Defendant be awarded such other and further relief as the

Court may deem proper.

DATED: November 5, 2015 SEYFARTH SHAW LLP

By /s/ D. Joshua SalinasMichael J. BurnsEric R. McDonoughD. Joshua Salinas

Attorneys for DefendantBURLINGTON COAT FACTORY OFCALIFORNIA, LLC


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SEYFARTH SHAW LLP Telephone: (415) 397-2823 Eric R. … · · 2017-02-18San Francisco, California...

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