ATKINSON, ANDELSON, LOYA, RUUD & ROMO

1 2 3 4 5 6 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Corporation Steven D. Atkinson State Bar No. 59094 Joanna L. Blake State Bar No. 198...
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ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Corporation Steven D. Atkinson State Bar No. 59094 Joanna L. Blake State Bar No. 198799 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333 Attorneys for Defendant WESTERN UNIVERSITY OF HEALTH SCIENCES

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF LOS ANGELES, EAST DISTRICT

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SINCLAIR HUGH, an individual,

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Plaintiff,

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v.

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WESTERN UNIVERSITY OF HEALTH SCIENCES, a California non-profit corporation, and DOES 1 through 50 inclusive,

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CASE NO.

KC041824 O

JUDGE: HONORABLE PETER J. MEEKA, DEPT. O VERIFIED ANSWER OF DEFENDANT WESTERN UNIVERSITY OF HEALTH SCIENCES TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

Defendants.

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Defendant WESTERN UNIVERSITY OF HEALTH SCIENCES (“Western University”),

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for itself alone and no other party, files this Answer to the Verified Complaint filed by Plaintiff

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SINCLAIR HUGH (“Hugh”).

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Western University rejects as totally without factual basis the allegation that Hugh was

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terminated because of the false and misleading statements he made to the IRS and the state

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Attorney General’s office. Hugh was terminated because he took other actions that violated

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University policies and ignored sound management practices. His employment was terminated

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because his other actions (not his contact with government agencies) made him unfit to continue to

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serve as head of human resource functions for Western University.

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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Following a thorough investigation, culminating in a review of relevant information by its

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Board of Trustees, Western University determined that Hugh breached his management

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responsibilities by: (a) failing to report alleged violations of law to his supervisor; (b) sharing

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confidential and private information, including confidential salary information, with subordinate

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employees and others both inside and outside the University; and (c) disseminating private and

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confidential information, thus exposing Western University to potential liability from non-

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governmental third parties. Western University determined that Hugh’s conduct constituted a

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serious breach of confidentiality, a serious breach of Hugh’s management responsibilities, and

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demonstrated a serious lack of judgment. For those reasons, and those reasons alone, Western

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University terminated Hugh’s employment.

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Western University answers Hugh’s Verified Complaint as follows:

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1.

To the extent the allegations in paragraph 1 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University admits

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that Hugh was employed in the County of Los Angeles, State of California within this judicial

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district, pursuant to an “Agreement of Employment.”

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information and belief with which to admit or deny the remaining allegations contained in

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paragraph 1, and on that basis, Western University denies each and every, all and singular,

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generally and specifically, said allegations.

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2.

Western University lacks sufficient

Western University admits the allegations contained in paragraph 2 of Hugh’s

Verified Complaint. 3.

Western University lacks sufficient information and belief with which to admit or

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deny the allegations contained in paragraph 3 of Hugh’s Verified Complaint, and on that basis,

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Western University denies each and every, all and singular, generally and specifically, the

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allegations contained therein.

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4.

Western University lacks sufficient information and belief with which to admit or

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deny the allegations contained in paragraph 4 of Hugh’s Verified Complaint, and on that basis,

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Western University denies each and every, all and singular, generally and specifically, the

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allegations contained therein.

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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FIRST CAUSE OF ACTION

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TERMINATION IN VIOLATION OF PUBLIC POLICY

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A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

Western University repleads and incorporates herein by this reference, as though

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fully set forth, each and every admission, denial and allegation made in this answer in response to

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the paragraphs incorporated by reference into paragraph 5 of Hugh’s Verified Complaint.

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ATKINSON, ANDELSON, LOYA, RUUD & ROMO

5.

6.

Western University admits that from July 1, 1999 until May 2, 2003, Hugh was

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employed by Western University, pursuant to successive one-year written “Agreement[s] of

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Employment,” as Western University’s Director of Human Resources.

Western University

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further admits that Hugh was responsible for managing and overseeing all human resources

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functions and activities of Western University. Western University lacks sufficient information

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and belief with which to admit or deny the remaining allegations contained in paragraph 6 of

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Hugh’s Verified Complaint, and on that basis, Western University denies each and every, all and

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singular, generally and specifically, said allegations.

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7.

Western University lacks sufficient information and belief with which to admit or

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deny the allegations contained in paragraph 7 of Hugh’s Verified Complaint, and on that basis,

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Western University denies each and every, all and singular, generally and specifically, the

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allegations contained therein.

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8.

Western University admits that, on or about April 11, 2003, Western University

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placed Hugh on paid administrative leave pending an investigation into Hugh’s apparent breach of

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management responsibilities. Save and except as expressly admitted herein, Western University

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denies each and every, all and singular, generally and specifically, the allegations contained in

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paragraph 8 of Hugh’s Verified Complaint.

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9.

Western University admits Western University terminated Hugh on May 2, 2003

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following a thorough investigation during which Western University found that (a) Hugh failed to

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report alleged violations of law to his supervisor, (b) Hugh shared confidential and private

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information regarding Western University and current and former employees of Western

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University, including but not limited to confidential salary information, with Hugh’s subordinate

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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employees and others both inside and outside the University who were not governmental agencies,

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and (c) Hugh’s behavior exposed Western University to potential liability from non-governmental

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third parties due to the disclosure of private information, including but not limited to current and

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former employee salary information; Western University considered Hugh’s conduct to be a

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breach of confidentiality, a breach of Hugh’s management responsibilities, and demonstrative of a

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serious lack of judgment. Save and except as expressly admitted herein, Western University denies

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each and every, all and singular, generally and specifically, the allegations contained in paragraph 9

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of Hugh’s Verified Complaint.

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10.

To the extent the allegations in paragraph 10 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University lacks

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sufficient information and belief with which to admit or deny the remaining allegations contained in

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paragraph 10, and on that basis, Western University denies each and every, all and singular,

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generally and specifically, said allegations.

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11.

To the extent the allegations in paragraph 11 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University repleads

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

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denial and allegation made in response to Paragraphs 7 and 10. Western University admits

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Western University terminated Hugh on May 2, 2003 following a thorough investigation during

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which Western University found that (a) Hugh failed to report alleged violations of law to his

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supervisor, (b) Hugh shared confidential and private information regarding Western University and

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current and former employees of Western University, including but not limited to confidential

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salary information, with Hugh’s subordinate employees and others both inside and outside the

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University who were not governmental agencies, and (c) Hugh’s behavior exposed Western

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University to potential liability from non-governmental third parties due to the disclosure of

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private information, including but not limited to current and former employee salary information;

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Western University considered Hugh’s conduct to be a breach of confidentiality, a breach of

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Hugh’s management responsibilities, and demonstrative of a serious lack of judgment. Save and

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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except as expressly admitted herein, Western University denies each and every, all and singular,

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generally and specifically, the remaining allegations contained in paragraph 11.

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A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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12.

Western University denies each and every, all and singular, generally and

specifically, the allegations contained in paragraph 12 of Hugh’s Verified Complaint. 13.

Western University admits that Western University placed Hugh on paid

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administrative leave pending an investigation into Hugh’s conduct, such as sharing his complaints

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with subordinates and third parties, that Western University considered demonstrated a breach of

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Hugh’s management responsibilities.

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terminated Hugh’s employment following a thorough investigation during which Western

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University found that (a) Hugh failed to report alleged violations of law to his supervisor, (b)

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Hugh shared confidential and private information regarding Western University and current and

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former employees of Western University, including but not limited to confidential salary

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information, with Hugh’s subordinate employees and others both inside and outside the

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University who were not governmental agencies, and (c) Hugh’s behavior exposed Western

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University to potential liability from non-governmental third parties due to the disclosure of

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private information, including but not limited to current and former employee salary information;

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Western University considered Hugh’s conduct to be a breach of confidentiality, a breach of

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Hugh’s management responsibilities, and demonstrative of a serious lack of judgment. Western

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University further admits that it filed a lawsuit against Hugh in this Court for libel, trade libel,

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slander, intentional interference with prospective economic advantage and conspiracy. Save and

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except as expressly admitted herein, Western University denies each and every, all and singular,

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generally and specifically, the remaining allegations contained in paragraph 13 of Hugh’s Verified

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Complaint.

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14.

Western University admits that Western University

To the extent the allegations in paragraph 14 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University admits

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that no action was taken to alter the decision reflected in the termination letter to Hugh dated May

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2, 2003. Save and except as expressly admitted herein, Western University denies each and every,

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all and singular, generally and specifically, the remaining allegations contained in paragraph 14.

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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SECOND CAUSE OF ACTION

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VIOLATION OF LABOR CODE §1102.5

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A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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15.

Western University repleads and incorporates herein by this reference, as though

fully set forth, each and every admission, denial and allegation made in this answer in response to the paragraphs incorporated by reference into paragraph 15 of Hugh’s Verified Complaint. 16.

To the extent the allegations in paragraph 16 of Hugh’s Verified Complaint

constitute legal argument or legal conclusions, no answer is required. Western University admits the remaining allegations contained in paragraph 16. 17.

To the extent the allegations in paragraph 17 of Hugh’s Verified Complaint

constitute legal argument or legal conclusions, no answer is required. Western University repleads and incorporates herein by this reference, as though fully set forth, each and every admission, denial and allegation made in response to Paragraphs 13 and 14. Western University denies each and every, all and singular, generally and specifically, the remaining allegations contained in paragraph 17. 18.

Western University repleads and incorporates herein by this reference, as though

fully set forth, each and every admission, denial and allegation made in response to Paragraph 11 and 12. Western University denies each and every, all and singular, generally and specifically, the remaining allegations contained in paragraph 18 of Hugh’s Verified Complaint. 19.

Western University repleads and incorporates herein by this reference, as though

fully set forth, each and every admission, denial and allegation made in response to Paragraphs 13 and 14. Western University denies each and every, all and singular, generally and specifically, the remaining allegations contained in paragraph 19 of Hugh’s Verified Complaint. 20.

Western University repleads and incorporates herein by this reference, as though

fully set forth, each and every admission, denial and allegation made in response to Paragraphs 13 and 14. Western University denies each and every, all and singular, generally and specifically, the remaining allegations contained in paragraph 20 of Hugh’s Verified Complaint.

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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21.

specifically, the allegations contained in paragraph 21 of Hugh’s Verified Complaint. 22.

THIRD CAUSE OF ACTION

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

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A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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Western University denies each and every, all and singular, generally and

specifically, the allegations contained in paragraph 22 of Hugh’s Verified Complaint.

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Western University denies each and every, all and singular, generally and

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Western University repleads and incorporates herein by this reference, as though

fully set forth, each and every admission, denial and allegation made in this answer in response to the paragraphs incorporated by reference into paragraph 23 of Hugh’s Verified Complaint. 24.

To the extent the allegations in paragraph 24 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University repleads

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

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denial and allegation made in response to Paragraphs 13 and 14. Western University denies each

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and every, all and singular, generally and specifically, the remaining allegations contained in

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paragraph 24.

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25.

To the extent the allegations in paragraph 25 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University denies

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each and every, all and singular, generally and specifically, the remaining allegations contained in

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paragraph 25.

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26.

To the extent the allegations in paragraph 26 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University denies

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each and every, all and singular, generally and specifically, the remaining allegations contained in

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paragraph 26.

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27.

Western University lacks sufficient information and belief with which to admit or

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deny that Hugh has suffered and is suffering severe and extreme emotional distress, and on that

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basis, Western University denies said allegation, generally and specifically. Western University

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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denies each and every, all and singular, generally and specifically, the remaining allegations

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contained in paragraph 27 of Hugh’s Verified Complaint.

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A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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28.

Western University denies each and every, all and singular, generally and

specifically, the allegations contained in paragraph 28 of Hugh’s Verified Complaint. 29.

Western University denies each and every, all and singular, generally and

specifically, the contained in paragraph 29 of Hugh’s Verified Complaint. 30.

Western University repleads and incorporates herein by this reference, as though

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fully set forth, each and every admission, denial and allegation made in response to Paragraphs 13

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and 14. Western University denies each and every, all and singular, generally and specifically, the

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allegations contained in paragraph 30 of Hugh’s Verified Complaint. 31.

Western University repleads and incorporates herein by this reference, as though

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fully set forth, each and every admission, denial and allegation made in response to Paragraphs 13

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and 14. Western University denies each and every, all and singular, generally and specifically, the

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remaining allegations contained in paragraph 31 of Hugh’s Verified Complaint.

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32.

specifically, the allegations contained in paragraph 32 of Hugh’s Verified Complaint. 33.

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Western University denies each and every, all and singular, generally and

specifically, the allegations contained in paragraph 33 of Hugh’s Verified Complaint.

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Western University denies each and every, all and singular, generally and

FOURTH CAUSE OF ACTION BREACH OF EXPRESS CONTRACT OF CONTINUED EMPLOYMENT 34.

Western University repleads and incorporates herein by this reference, as though

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fully set forth, each and every admission, denial and allegation made in this answer in response to

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the paragraphs incorporated by reference into paragraph 34 of Hugh’s Verified Complaint.

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35.

Western University admits that Hugh and Western University entered into a series

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of one-year written “Agreement[s] of Employment.” Western University further admits that

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Hugh’s “Agreement of Employment” with Western University had a term that expired on June 30,

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2003. Western University admits that the document annexed to the complaint and marked as

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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Exhibit C is a copy of the “Agreement of Employment” between Hugh and Western University

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effective July 1, 2002. On information and belief, Western University denies that, pursuant to

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Western University’s written policies, Hugh would receive ninety days of additional

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compensation should Western University choose not to renew Hugh’s contract without notice.

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Save and except as expressly admitted or denied herein or denied herein based on information and

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belief, Western University denies each and every, all and singular, generally and specifically, the

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remaining allegations contained in paragraph 35 of Hugh’s Verified Complaint.

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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36.

Western University denies that Hugh at all times fulfilled his duties and conditions

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under the “Agreement of Employment,” in that following a thorough investigation Western

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University found that (a) Hugh failed to report alleged violations of law to his supervisor, (b)

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Hugh shared confidential and private information regarding Western University and current and

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former employees of Western University, including but not limited to confidential salary

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information, with Hugh’s subordinate employees and others both inside and outside the

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University who were not governmental agencies, and (c) Hugh’s behavior exposed Western

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University to potential liability from non-governmental third parties due to the disclosure of

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private information, including but not limited to current and former employee salary information;

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Western University considered Hugh’s conduct to be a breach of confidentiality, a breach of

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Hugh’s management responsibilities, and demonstrative of a serious lack of judgment. Western

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University lacks sufficient information and belief with which to admit or deny the remaining

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allegations contained in paragraph 36 of Hugh’s Verified Complaint, and on that basis, Western

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University denies each and every, all and singular, generally and specifically, said allegations.

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37.

Western University admits that Western University terminated Hugh’s

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employment on or about May 2, 2003 following a thorough investigation during which Western

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University found that (a) Hugh failed to report alleged violations of law to his supervisor, (b)

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Hugh shared confidential and private information regarding Western University and current and

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former employees of Western University, including but not limited to confidential salary

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information, with Hugh’s subordinate employees and others both inside and outside the

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University who were not governmental agencies, and (c) Hugh’s behavior exposed Western

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

1

University to potential liability from non-governmental third parties due to the disclosure of

2

private information, including but not limited to current and former employee salary information;

3

Western University considered Hugh’s conduct to be a breach of confidentiality, a breach of

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Hugh’s management responsibilities, and demonstrative of a serious lack of judgment. Save and

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except as expressly admitted herein, Western University denies each and every, all and singular,

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generally and specifically, the remaining allegations contained in paragraph 37 of Hugh’s Verified

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Complaint.

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38.

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specifically, the allegations contained in paragraph 38 of Hugh’s Verified Complaint.

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Western University denies each and every, all and singular, generally and

FIFTH CAUSE OF ACTION BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 39.

Western University repleads and incorporates herein by this reference, as though

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fully set forth, each and every admission, denial and allegation made in this answer in response to

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the paragraphs incorporated by reference into paragraph 39 of Hugh’s Verified Complaint.

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40.

To the extent the allegations in paragraph 40 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University denies

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each and every, all and singular, generally and specifically, the remaining allegations contained in

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paragraph 40.

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41.

Western University denies that Hugh performed all the duties and conditions under

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the “Agreement of Employment, ” in that following a thorough investigation Western University

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found that (a) Hugh failed to report alleged violations of law to his supervisor, (b) Hugh shared

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confidential and private information regarding Western University and current and former

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employees of Western University, including but not limited to confidential salary information,

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with Hugh’s subordinate employees and others both inside and outside the University who were

26

not governmental agencies, and (c) Hugh’s behavior exposed Western University to potential

27

liability from non-governmental third parties due to the disclosure of private information, including

28

but not limited to current and former employee salary information; Western University considered

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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Hugh’s conduct to be a breach of confidentiality, a breach of Hugh’s management responsibilities,

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and demonstrative of a serious lack of judgment.

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42.

specifically, the allegations contained in paragraph 42 of Hugh’s Verified Complaint.

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A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

Western University denies each and every, all and singular, generally and

43.

To the extent the allegations in paragraph 43 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University admits

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Western University terminated Hugh following a thorough investigation during which Western

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University found that (a) Hugh failed to report alleged violations of law to his supervisor, (b)

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Hugh shared confidential and private information regarding Western University and current and

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former employees of Western University, including but not limited to confidential salary

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information, with Hugh’s subordinate employees and others both inside and outside the

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University who were not governmental agencies, and (c) Hugh’s behavior exposed Western

13

University to potential liability from non-governmental third parties due to the disclosure of

14

private information, including but not limited to current and former employee salary information;

15

Western University considered Hugh’s conduct to be a breach of confidentiality, a breach of

16

Hugh’s management responsibilities, and demonstrative of a serious lack of judgment. Save and

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except as expressly admitted herein, Western University denies each and every, all and singular,

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generally and specifically, the remaining allegations contained in paragraph 43.

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44.

To the extent the allegations in paragraph 44 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. Western University denies

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each and every, all and singular, generally and specifically, the remaining allegations contained in

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paragraph 44.

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45.

Western University denies each and every, all and singular, generally and

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specifically, the allegations contained in paragraph 45 of Hugh’s Verified Complaint.

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///

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///

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///

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///

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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SIXTH CAUSE OF ACTION

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FAILURE TO PAY WAGES [LABOR CODE §§ 201, 202, 218, 218.5]

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A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

Western University repleads and incorporates herein by this reference, as though

5

fully set forth, each and every admission, denial and allegation made in this answer in response to

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the paragraphs incorporated by reference into paragraph 46 of Hugh’s Verified Complaint.

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ATKINSON, ANDELSON, LOYA, RUUD & ROMO

46.

47.

To the extent the allegations in paragraph 47 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. On information and belief,

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Western University denies each and every, all and singular, generally and specifically, the

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remaining allegations contained in paragraph 47. 48.

Western University admits that Hugh was terminated on May 2, 2003 following a

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thorough investigation during which Western University found that (a) Hugh failed to report

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alleged violations of law to his supervisor, (b) Hugh shared confidential and private information

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regarding Western University and current and former employees of Western University, including

15

but not limited to confidential salary information, with Hugh’s subordinate employees and others

16

both inside and outside the University who were not governmental agencies, and (c) Hugh’s

17

behavior exposed Western University to potential liability from non-governmental third parties

18

due to the disclosure of private information, including but not limited to current and former

19

employee salary information; Western University considered Hugh’s conduct to be a breach of

20

confidentiality, a breach of Hugh’s management responsibilities, and demonstrative of a serious

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lack of judgment.

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49.

To the extent the allegations in paragraph 49 of Hugh’s Verified Complaint

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constitute legal argument or legal conclusions, no answer is required. On information and belief,

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Western University admits that it did not pay Hugh through June 30 nor did Western University

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give Hugh ninety days pay. Save and except as expressly admitted herein, Western University

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denies each and every, all and singular, generally and specifically, the remaining allegations

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contained in paragraph 49.

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VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

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50.

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constitute legal argument or legal conclusions, no answer is required. On information and belief,

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Western University denies each and every, all and singular, generally and specifically, the

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remaining allegations contained in paragraph 50.

5

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

To the extent the allegations in paragraph 50 of Hugh’s Verified Complaint

51.

On information and belief, Western University denies that any sums are due Hugh

6

under the terms of the “Agreement of Employment” and Western University’s written policy and

7

on that basis, Western University denies both generally and specifically the allegations contained

8

in paragraph 51 of Hugh’s Verified Complaint.

9

52.

To the extent the allegations in paragraph 52 of Hugh’s Verified Complaint

10

constitute legal argument or legal conclusions, no answer is required. On information and belief,

11

Western University denies each and every, all and singular, generally and specifically, the

12

remaining allegations contained in paragraph 52.

13

53.

Western University admits that, pursuant to Labor Code §218.5, Hugh requests

14

that the Court award Hugh reasonable attorney fees and costs incurred by Hugh in this action.

15

Save and except as expressly admitted herein, Western University denies each and every, all and

16

singular, generally and specifically, the remaining allegations contained in paragraph 53 of Hugh’s

17

Verified Complaint.

18

54.

To the extent the allegations in paragraph 54 of Hugh’s Verified Complaint

19

constitute legal argument or legal conclusions, no answer is required. On information and belief,

20

Western University denies each and every, all and singular, generally and specifically, the

21

remaining allegations contained in paragraph 54.

22

55.

To the extent the allegations in paragraph 55 of Hugh’s Verified Complaint

23

constitute legal argument or legal conclusions, no answer is required. On information and belief,

24

Western University denies each and every, all and singular, generally and specifically, the

25

remaining allegations contained in paragraph 55.

26

///

27

///

28

///

29 08227.014/419940v1

30

-13-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1 2 3

AFFIRMATIVE DEFENSES For its affirmative defenses, Western University alleges as follows:

4 5

FIRST AFFIRMATIVE DEFENSE 56.

As a first, separate and distinct affirmative defense, Western University alleges that

6

the Verified Complaint, and each of its purported causes of action, fails to state facts sufficient to

7

constitute a cause of action against Western University.

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 9 10

SECOND AFFIRMATIVE DEFENSE 57.

As a second, separate and distinct affirmative defense, Western University alleges

11

that the liability, if any, of Western University, with respect to the Verified Complaint herein,

12

which liability is expressly denied by Western University, arose wholly or in part by reason of the

13

acts, errors, omissions, and/or negligence of Hugh, or Hugh’s breach or breaches of obligations to

14

Western University, and, as such, Hugh is entitled to no relief whatsoever from Western

15

University.

16 17 18

THIRD AFFIRMATIVE DEFENSE 58.

As a third, separate and distinct affirmative defense, Western University alleges

19

that the injuries and damages, if any, sustained by Hugh as alleged in the Verified Complaint

20

herein, were proximately caused by the acts, errors, omissions, negligence and/or breaches of

21

obligation of individuals or entities other than Western University and, as such, Western

22

University is not responsible for any such injuries or damages.

23 24 25

FOURTH AFFIRMATIVE DEFENSE 59.

As a fourth, separate and distinct affirmative defense, Western University alleges

26

that Western University has suffered damage by reason of Hugh’s conduct and, therefore, has the

27

right to offset any amount of money owed or due to Hugh by way of said damage.

28 29 08227.014/419940v1

30

-14-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1 2

FIFTH AFFIRMATIVE DEFENSE 60.

As a fifth, separate and distinct affirmative defense, Western University alleges that

3

Hugh, by reason of his acts, omissions, representations, and courses of conduct which indicate a

4

waiver of any claim against Western University, is barred from any recovery herein by the doctrine

5

of waiver.

6 7

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8

SIXTH AFFIRMATIVE DEFENSE 61.

As a sixth, separate and distinct affirmative defense, Western University is

9

informed and believes, and based on that information and belief alleges, that the damages, if any,

10

sustained by Hugh, were caused by the acts, omissions, or negligence of Hugh, and any damages

11

awarded to Hugh should be diminished in proportion to that amount attributed to Hugh.

12 13 14

SEVENTH AFFIRMATIVE DEFENSE 62.

As a seventh, separate and distinct affirmative defense, Western University alleges

15

that Hugh, by reason of his acts, omissions, representations, and courses of conduct by which

16

Western University was led to rely to its detriment, is barred from any recovery herein by virtue

17

of the doctrine of estoppel.

18 19 20

EIGHTH AFFIRMATIVE DEFENSE 63.

As an eighth, separate and distinct affirmative defense, Western University alleges

21

that if any equitable relief is claimed to be owed to the Hugh as a result of the Verified Complaint

22

on file herein, it is barred as a result of Hugh’s own unclean hands.

23 24 25

NINTH AFFIRMATIVE DEFENSE 64.

As a ninth, separate and distinct affirmative defense, Western University alleges

26

that if any equitable relief is claimed to be owed to the Hugh as a result of the Verified Complaint

27

on file herein, it is barred as a result of the doctrine of laches.

28 29 08227.014/419940v1

30

-15-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1 2

TENTH AFFIRMATIVE DEFENSE 65.

As a tenth, separate and distinct affirmative defense, Western University is

3

informed and believes, and based on that information and belief alleges, that Hugh failed and has

4

failed to mitigate damages by failing to take such actions as are reasonably necessary to minimize

5

any loss which may have, or in the future may be, sustained.

6 7

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8

ELEVENTH AFFIRMATIVE DEFENSE 66.

As an eleventh, separate and distinct affirmative defense, Western University is

9

informed and believes, and based upon such information and belief alleges, that the relief prayed

10

for in the Verified Complaint is barred by the applicable statute of limitations, specifically,

11

California Civil Procedure Code §§ 336-349; California Labor Code § 203 and any other applicable

12

statutes of limitations and any other requirements relative to the giving of notice to the filing of

13

actions.

14 15 16

TWELFTH AFFIRMATIVE DEFENSE 67.

As a twelfth, separate and distinct affirmative defense, Western University is

17

informed and believes, and based upon such information and belief alleges, that the damages, if any,

18

sustained by Hugh, were caused by acts, omissions, or negligence of third parties other than

19

Western University, and any damage awarded to Hugh should be diminished and proportioned to

20

that amount attributed to said third parties.

21 22 23

THIRTEENTH AFFIRMATIVE DEFENSE 68.

As a thirteenth, separate and distinct affirmative defense, Western University

24

alleges that the Verified Complaint, and each of its causes of action, are frivolous as to Western

25

University, and Western University is entitled to recover attorneys’ fees incurred in defending this

26

action pursuant to California Civil Procedure Code § 128.7, and other applicable laws.

27 28 29 08227.014/419940v1

30

-16-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1 2

FOURTEENTH AFFIRMATIVE DEFENSE 69.

As a fourteenth, separate and distinct affirmative defense, Western University

3

alleges that to the extent that Hugh’s Verified Complaint, or any cause of action therein, alleges

4

physical or emotional injury, any recovery by Hugh for these injuries is barred by the exclusivity

5

of remedy of the California Workers’ Compensation Act, Labor Code § 3200, et. seq.

6 7

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8

FIFTEENTH AFFIRMATIVE DEFENSE 70.

As a fifteenth, separate and distinct affirmative defense, Western University is

9

informed and believes, and based thereon alleges, that any recovery on the Verified Complaint, or

10

any purported cause of action alleged therein, is barred because Western University’s disputed

11

conduct was privileged and/or justified.

12 13 14

SIXTEENTH AFFIRMATIVE DEFENSE 71.

As a sixteenth, separate and distinct affirmative defense, Western University alleges

15

that it is not liable for any of the alleged actions since Hugh consented to the actions set forth in

16

the Verified Complaint.

17 18 19

SEVENTEENTH AFFIRMATIVE DEFENSE 72.

As a seventeenth, separate and distinct affirmative defense, Western University

20

alleges that Hugh has not pled conduct sufficient to justify the imposition of punitive damages

21

against Western University.

22 23 24

EIGHTEENTH AFFIRMATIVE DEFENSE 73.

As an eighteenth, separate and distinct affirmative defense, Western University

25

alleges that if the trier of fact should find that any agent of Western University engaged in any

26

allegedly unlawful conduct, then such conduct by the agent of Western University was done

27

outside the course and scope of such agent’s authority. Accordingly, Hugh is barred from

28

asserting any cause of action against Western University based on said allegedly unlawful conduct.

29 08227.014/419940v1

30

-17-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1 2

NINETEENTH AFFIRMATIVE DEFENSE 74.

As a nineteenth, separate and distinct affirmative defense, Western University

3

alleges that as to each and every contract alleged in Hugh’s Verified Complaint and any purported

4

cause of action thereon, Hugh has failed to fulfill conditions precedent to the enforcement of any

5

contract.

6 7

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8

TWENTIETH AFFIRMATIVE DEFENSE 75.

As a twentieth, separate and distinct affirmative defense, Western University

9

alleges that as to each and every contract alleged in Hugh’s Verified Complaint and any purported

10

cause of action thereon, Hugh committed a prior breach thereof, excusing any duty of further

11

performance by Western University.

12 13 14 15

TWENTY-FIRST AFFIRMATIVE DEFENSE 76.

As a twenty-first, separate and distinct affirmative defense, Western University

alleges that Hugh’s employment was at-will.

16 17 18

TWENTY-SECOND AFFIRMATIVE DEFENSE 77.

As a twenty-second, separate and distinct affirmative defense, Western University

19

is informed and believes, and on that information and belief alleges, that the terms and/or

20

conditions of any agreement or contract entered into between Hugh and Western University are

21

not specifically set forth and cannot be ascertained and thus, bar or diminish Hugh’s recovery.

22 23 24

TWENTY-THIRD AFFIRMATIVE DEFENSE 78.

As a twenty-third, separate and distinct affirmative defense, Western University is

25

informed and believes, and on that information and belief alleges, that to the extent Hugh seeks

26

recovery herein based upon any alleged oral modification or agreement, said recovery is barred by

27

reason of the parole evidence rule.

28 29 08227.014/419940v1

30

-18-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1

TWENTY-FOURTH AFFIRMATIVE DEFENSE

2

79.

As a twenty-fourth, separate and distinct affirmative defense, Western University

3

is informed and believes, and on that information and belief alleges, that Hugh’s Verified Complaint

4

is barred by the Statute of Frauds.

5 6

TWENTY-FIFTH AFFIRMATIVE DEFENSE

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

7

80.

As a twenty-fifth, separate and distinct affirmative defense, Western University is

8

informed and believes, and on that information and belief alleges, that if it is determined that

9

Western University has failed to perform one or more of its obligations under any contract or

10

agreement described in the Verified Complaint, performance of each obligation was excused due to

11

impossibility or impracticability in each instance.

12 13

TWENTY-SIXTH AFFIRMATIVE DEFENSE

14

81.

As a twenty-sixth, separate and distinct affirmative defense, Western University

15

alleges that any adverse action that Hugh allegedly suffered was based on a legitimate business

16

reason.

17 18 19

TWENTY-SEVENTH AFFIRMATIVE DEFENSE 82.

As a twenty-seventh, separate and distinct affirmative defense, Western University

20

is informed and believes and thereon alleges that Hugh’s claims are barred by the doctrine of after

21

acquired evidence.

22 23 24

TWENTY-EIGHTH AFFIRMATIVE DEFENSE 83.

As a twenty-eighth, separate and distinct affirmative defense, Western University

25

is informed and believes that any remedy sought by Hugh must be reduced as a result of the

26

doctrine of after acquired evidence.

27 28 29 08227.014/419940v1

30

-19-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1

TWENTY-NINTH AFFIRMATIVE DEFENSE

2

84.

As a twenty-ninth, separate and distinct affirmative defense, Western University is

3

informed and believes and thereon alleges that Western University did not willfully or intentionally

4

fail or refuse to pay any sum owing to Hugh.

5 6

THIRTIETH AFFIRMATIVE DEFENSE

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

7

85.

As a thirtieth, separate and distinct affirmative defense, Western University alleges

8

that the claims alleged in the Verified Complaint against Western University are barred by the

9

doctrine of in pari delicto.

10 11

THIRTY-FIRST AFFIRMATIVE DEFENSE

12

86.

As a thirty-first, separate and distinct affirmative defense, Western University

13

alleges that the actions of Hugh are arbitrary and capricious and violate implied-by-law duties of

14

good faith and fair dealing.

15 16

THIRTY-SECOND AFFIRMATIVE DEFENSE

17

87.

As a thirty-second, separate and distinct affirmative defense, Western University

18

alleges that as between Hugh and Western University, the equities do not preponderate in favor of

19

Hugh, and accordingly, Hugh is barred from any recovery herein.

20 21

THIRTY-THIRD AFFIRMATIVE DEFENSE

22

88.

As a thirty-third, separate and distinct affirmative defense, Western University

23

alleges that it is not liable to any Hugh for any monetary damages alleged in the Verified

24

Complaint.

25

///

26

///

27

///

28

///

29 08227.014/419940v1

30

-20-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1

THIRTY-FOURTH AFFIRMATIVE DEFENSE

2

89.

As a thirty-fourth, separate and distinct affirmative defense, Western University

3

alleges that its conduct was not the cause in fact or the proximate cause of any of the damages or

4

potential damages alleged by Hugh.

5 6

THIRTY-FIFTH AFFIRMATIVE DEFENSE

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

7

90.

As a thirty-fifth, separate and distinct affirmative defense, Western University

8

alleges that the allegations of the Verified Complaint allege allegations non-existent, not contracted

9

for, and outside of any agreement of the parties and, accordingly, Hugh is limited or barred to any

10

recovery herein.

11 12

THIRTY-SIXTH AFFIRMATIVE DEFENSE

13

91.

As a thirty-sixth, separate and distinct affirmative defense, Western University

14

alleges that at the time and places mentioned in Hugh’s Verified Complaint, Hugh did commit

15

willful misconduct in and about the matters and things alleged in Hugh’s Verified Complaint, which

16

said willful misconduct concurred in point of time with the alleged misconduct of Western

17

University, if any there may have been, and proximately caused and contributed to whatever

18

injury and/or damage Hugh may have sustained, if any.

19 20

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

21

92.

As a thirty-seventh, separate and distinct affirmative defense, Western University

22

alleges that it presently has insufficient knowledge or information upon which to form a belief as

23

to whether it may have additional, as yet unstated, affirmative defenses available.

24

University reserves herein the right to assert additional defenses in the event that discovery

25

indicates that they would be appropriate.

26

///

27

///

28

///

29 08227.014/419940v1

30

-21-

Western

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1

WHEREFORE, Western University prays for judgment against Hugh as follows:

2

1.

That Hugh take nothing by his Verified Complaint;

3

2.

For reasonable attorneys’ fees;

4

3.

For costs of suit incurred herein; and

5

4.

For such other and further relief the Court deems just and proper.

6 7

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 9 10 11 12

DATED: June 13, 2003

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

By:

Joanna L. Blake Attorneys for Defendant WESTERN UNIVERSITY OF HEALTH SCIENCES

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

08227.014/419940v1

30

-22-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1 2

VERIFICATION STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

3 4

I have read the foregoing VERIFIED ANSWER OF DEFENDANT WESTERN

5

UNIVERSITY OF HEALTH SCIENCES TO PLAINTIFF’S VERIFIED COMPLAINT FOR

6

DAMAGES and know its contents.

7

I am an officer of Western University of Health Sciences, a party to this action, and am

8

authorized to make this verification for and on its behalf, and I make this verification for that

9

reason.

10 11

[ ] I am informed and believe and on that ground allege that the matters stated in the foregoing document are true.

12

[X] The matters stated in the foregoing document are true of my own knowledge except as

13

to those matters which are stated on information and belief, and as to those matters I believe them

14

to be true.

15 16 17

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June ____, 2003 at _____________________, California.

18 19 20 21

GEORGE CHARNEY, DO Executive Vice President of Academic Affairs/ C h i e f A c a d e m i c Officer Western University of Health Sciences

22 23 24 25 26 27 28 29 08227.014/419940v1

30

-23-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES

1

PROOF OF SERVICE 1013A(3) CCP

2 3

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

4

I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party of the within action; my business address is: 17871 Park Plaza Drive, Suite 200, Cerritos, California 90703.

5 6 7

A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 17871 Park Plaza Drive, Suite 200 Cerritos, California 90703-8597 Telephone: (562) 653-3200 • (714) 826-5480 Facsimile: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 9 10 11 12 13 14

On June 13, 2003, I served the foregoing document described as: VERIFIED ANSWER OF DEFENDANT WESTERN UNIVERSITY OF HEALTH SCIENCES TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES on all interested parties in this action: by placing true copies thereof enclosed in sealed envelopes addressed as stated on the attached Mailing List: by placing follows:

the original

a true copy thereof enclosed in sealed envelopes addressed as

Russell J. Thomas, Jr., Esq. THOMAS & ASSOCIATES 2532 Dupont Drive Irvine, CA 92612 I deposited such envelope in the mail at

, California.

15

The envelope was mailed with postage thereon fully prepaid.

16

As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under the practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Cerritos, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit.

17 18 19 20

Executed on June 13, 2003, at Cerritos, California.

21

(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. Executed on at , California.

22

(STATE) I declare under penalty of perjury under the laws of the State of California and of my own personal knowledge that the above is true and correct.

23 24

FLORENCE M. HANSEN

___________________________________

25 26 27 28 29 08227.014/419940v1

30

-24-

VERIFIED ANSWER OF DEFENDANT TO PLAINTIFF’S VERIFIED COMPLAINT FOR DAMAGES