Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00509-BTM-NLS

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RICHARD M. BARNETT, Esq. Attorney at Law #65132 105 West F Street, 4th Floor San Diego, CA 92101 Telephone: (6l9) 231-1182 Attorney for Claimant YESSICA HERNANDEZ

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

) ) Plaintiff, ) ) v. ) ) $19,211.00 IN U.S. CURRENCY, ) ) ONE 2000 MERCEDES BENZ S430 ) CA LICENSE NO. 5WKL002, VIN ) WDBNG70J4YA075758 ITS TOOLS ) AND APPURTENANCES, ) ) Defendants. ) ) ____________________________________)

Case No. 08-CV-0509-BTM(POR) ANSWER TO COMPLAINT FOR FORFEITURE AND DEMAND FOR JURY TRIAL

COMES NOW the Claimant, YESSICA HERNANDEZ, and in answer to Plaintiff's Complaint for Forfeiture, hereby responds, alleges, and otherwise pleads as follows: 1. Claimant denies each and every allegation set forth in Paragraph 1. of the Complaint

for Forfeiture in the conjunctive as well as the disjunctive. 2. Claimant denies each and every allegation set forth in Paragraph 2. of the Complaint

for Forfeiture in the conjunctive as well as the disjunctive. 3. Answering Paragraph 3. of the Complaint, Claimant has no information or

belief sufficient to enable her to answer the allegations contained therein, and basing her denial on that ground, denies each and every allegation contained therein in the conjunctive as well as the disjunctive.

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Count 1 $19,211.00 IN U.S. CURRENCY Answering Paragraph 4. of the Complaint, Claimant hereby incorporates her

4 responses to Paragraphs 1-3 herein as if fully repeated herein. 5 5. Claimant denies each and every allegation set forth in Paragraph 5. of the

6 Complaint for Forfeiture in the conjunctive as well as the disjunctive 7 6. Claimant denies each and every allegation set forth in Paragraph 6. of the

8 Complaint for Forfeiture in the conjunctive as well as the disjunctive. 9 7. Claimant denies each and every allegation set forth in Paragraph 7. of the Complaint

10 for Forfeiture in the conjunctive as well as the disjunctive. 11 8. Answering Paragraph 8. of the Complaint, Claimant has no information or

12 belief sufficient to enable her to answer the allegations contained therein, and basing her denial on 13 that ground, denies each and every allegation contained therein in the conjunctive as well as the 14 disjunctive. 15 16 17 9. Count 2 ONE 2000 MERCEDES BENZ S430 Answering Paragraph 9. of the Complaint, Claimant hereby incorporates her

18 responses to Paragraphs 1-3 herein as if fully repeated herein. 19 10. Claimant denies each and every allegation set forth in Paragraph 10. of the

20 Complaint for Forfeiture in the conjunctive as well as the disjunctive. 21 11. Claimant denies each and every allegation set forth in Paragraph 11. of the

22 Complaint for Forfeiture in the conjunctive as well as the disjunctive. 23 12. Claimant denies each and every allegation set forth in Paragraph 12. of the

24 Complaint for Forfeiture in the conjunctive as well as the disjunctive. 25 13. Claimant denies each and every allegation set forth in Paragraph 13. of the

26 Complaint for Forfeiture in the conjunctive as well as the disjunctive. 27 14. Answering Paragraph 14. of the Complaint, Claimant has no information

28 or belief sufficient to enable her to answer the allegations contained therein, and basing her denial on 2

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1 that ground, denies each and every allegation contained therein in the conjunctive as well as the 2 disjunctive. 3 15. Answering Paragraph 15. of the Complaint, Claimant has no information

4 or belief sufficient to enable her to answer the allegations contained therein, and basing her denial on 5 that ground, denies each and every allegation contained therein in the conjunctive as well as the 6 disjunctive. 7 8 9 AFFIRMATIVE DEFENSE(S) FIRST AFFIRMATIVE DEFENSE For a further and separate answer to the Complaint, Claimant alleges the subject Complaint as

10 pled fails to state facts sufficient to constitute a cause of action against the defendant properties. 11 12 SECOND AFFIRMATIVE DEFENSE For a further and separate answer to the Complaint, Claimant alleges plaintiff lacked probable

13 cause for the institution of the forfeiture action. 14 15 THIRD AFFIRMATIVE DEFENSE For a further and separate answer to the Complaint, Claimant alleges that the forfeiture in this

16 case is disproportionate, and is a violation of the Eighth Amendment to the United States 17 Constitution. 18 19 FOURTH AFFIRMATIVE DEFENSE For a further and separate answer to the Complaint, Claimant allege Claimant's ownership

20 interest (legal and/or beneficial) is not forfeitable in the property by reason that any and all acts or 21 omissions alleged as the basis for forfeiture have been committed or omitted without the knowledge 22 or consent of Claimant (i.e. Claimant was and is what is commonly referred to as an innocent owner). 23 24 25 26 27 28 FIFTH AFFIRMATIVE DEFENSE For a further and separate answer to the Complaint, Claimant alleges that the searches which led to the seizure of the defendant currency and vehicle violated the Fourth Amendment to the United States Constitution. JURY DEMAND Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and general federal law,

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Claimant demands a trial by jury in connection with the subject action. WHEREFORE, claimant prays for judgment as follows: l. That the Complaint be dismissed with prejudice; 2. That the subject properties be returned to Claimant; 3. For reasonable attorney's fees herein and costs of suit; and 4. For such other and further relief as the Court may deem just.

DATED: March 28, 2008 /s/ Richard M. Barnett RICHARD M. BARNETT, ESQ. [email protected] Attorney for Claimant YESSICA HERNANDEZ

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CERTIFICATE OF SERVICE I, RICHARD M. BARNETT, do hereby state: That I am a citizen of the United States, over the age of eighteen years, and not a party to the within action. That my business address is 105 West F Street, 4th Floor, San Diego, California. That on March 28, 2008, I have caused service of Answer to Complaint for Forfeiture on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies said party: 1. David McNees, Special Assistant U.S. Attorney, Attorney for Plaintiff. I declare under penalty of perjury that the foregoing is true and correct. Executed on the 28th day of March, 2008, at San Diego, California.

/s/ Richard M. Barnett RICHARD M. BARNETT

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