Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00484-H-RBB

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LAW OFFICES 600 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-7689 (714) 427-7000

Brian Mills (#216078) SNELL & WILMER L.L.P. 600 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626-7689 Telephone: (714) 427-7000 Facsimile: (714) 427-7799 Attorneys for Defendant Northgate Gonzalez, LLC d/b/a Northgate Supermarket #27

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BARBARA HUBBARD, Plaintiff, vs. NORTHGATE GONZALEZ, LLC dba NORTHGATE SUPERMARKET #27; LOS ALTOS -- TUCSON, LLC; BIG ROCK PALERMO, LLC; BIG ROCK, LLC, Defendants. DEFENDANT NORTHGATE GONZALES, LLC'S ANSWER TO PLAINTIFF BARBARA HUBBARD'S COMPLAINT CASE NO. 08-CV-484-H-RBB

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DATE OF FILING: March 14, 2008

Defendant Northgate Gonzalez, LLC d/b/a Northgate Supermarket #27 ("Northgate"), for itself alone, hereby answers plaintiff Barbara Hubbard's ("Plaintiff") complaint ("Complaint") as follows: 1. In response to summary paragraph 1 of the Complaint, Northgate

denies each and every material allegation contained therein. 2. In response to summary paragraph 2 of the Complaint, Northgate

denies each and every material allegation contained therein. 3. Paragraph 3 contains jurisdiction allegations to which no response is

required. To the extent a response is required, Northgate denies each and every allegation contained therein.
8756625.1 DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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4.

Paragraph 4 contains jurisdiction allegations to which no response is

required. To the extent a response is required, Northgate denies each and every allegation contained therein. 5. Paragraph 5 contains jurisdiction allegations to which no response is

required. To the extent a response is required, Northgate denies each and every allegation contained therein. 6. Paragraph 6 contains venue allegations to which no response is

required. To the extent a response is required, Northgate only admits that the conduct set forth in the complaint allegedly occurred in Chula Vista, California and, thus, venue is proper in the Southern District of California. 7. In response to paragraph 7 of the Complaint, Northgate admits that it is

a corporation, which operates and leases a store located at 1058 3rd Ave, Chula Visa, California 91911. Northgate denies the remaining allegations. 8. In response to paragraph 8 of the Complaint, Northgate lacks

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knowledge or information sufficient to admit or deny such allegations, and on that basis denies the same. 9. In response to paragraph 9 of the Complaint, Northgate admits the

allegations contained therein. 10. In response to paragraph 10 of the Complaint, Northgate denies that it

interfered with or denied Plaintiff's ability to use and enjoy the goods, services, privileges, and accommodations at the Northgate store. Northgate lacks knowledge or information sufficient to admit or deny the remaining allegations, and on that basis denies the same. 11. In response to paragraph 11 of the Complaint, Northgate lacks

knowledge or information sufficient to admit or deny such allegations, and on that basis denies the same. 12. In response to paragraph 12 of the Complaint, Northgate lacks

knowledge or information sufficient to admit or deny such allegations, and on that
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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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LAW OFFICES 600 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-7689 (714) 427-7000

basis denies the same. 13. In response to paragraph 13 of the Complaint, Northgate lacks

knowledge or information sufficient to admit or deny such allegations, and on that basis denies the same. 14. In response to paragraph 14 of the Complaint, Northgate denies each

and every material allegation contained therein. Northgate avers that it did not operate the store at the time of Plaintiff's alleged visits. 15. In response to paragraph 15 of the Complaint, Northgate denies that it Northgate lacks knowledge or information

is not in the midst of a remodel.

sufficient to admit or deny such allegations, and on that basis denies the same. 16. In response to paragraph 16 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 15 of the Complaint, as if fully set forth herein. 17. In response to paragraph 17 of the Complaint, Northgate alleges that

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the referenced statute speaks for itself. 18. In response to paragraph 18 of the Complaint, Northgate denies each

and every material allegation contained therein. Northgate avers that it did not operate the store at the time of Plaintiff's alleged visits. 19. In response to paragraph 19 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 20. In response to paragraph 20 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 21. In response to paragraph 21 of the Complaint, Northgate lacks

knowledge or information sufficient to admit or deny such allegations, and on that basis denies the same. 22. In response to paragraph 22 of the Complaint, Northgate lacks

knowledge or information sufficient to admit or deny such allegations, and on that basis denies the same.
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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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23.

In response to paragraph 23 of the Complaint, Northgate admits that

the store was designed and constructed after January 26, 1992. Northgate alleges that the referenced statute speaks for itself. 24. In response to paragraph 24 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 25. In response to paragraph 25 of the Complaint, Northgate denies each

and every material allegation contained therein. 26. In response to paragraph 26 of the Complaint, Northgate lacks

knowledge or information sufficient to admit or deny such allegations, and on that basis denies the same. 27. In response to paragraph 27 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 28. In response to paragraph 28 of the Complaint, Northgate denies each

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and every material allegation contained therein. 29. In response to paragraph 29 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 30. In response to paragraph 30 of the Complaint, Northgate denies each

and every material allegation contained therein. 31. In response to paragraph 31 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 30 of the Complaint and on that basis denies Plaintiff's claims for relief and damages. 32. In response to paragraph 32 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 31 of the Complaint and on that basis denies Plaintiff's claims for relief and damages. 33. In response to paragraph 33 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 32 of the Complaint. 34. In response to paragraph 34 of the Complaint, Northgate alleges that

the referenced statute speaks for itself.
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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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35.

In response to paragraph 35 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 36. In response to paragraph 36 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 37. In response to paragraph 37 of the Complaint, Northgate denies each

and every material allegation contained therein. 38. In response to paragraph 38 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 37 of the Complaint and on that basis denies Plaintiff's claims for relief and damages. 39. In response to paragraph 39 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 38 of the Complaint and on that basis denies Plaintiff's claims for relief and damages. 40. In response to paragraph 40 of the Complaint, Northgate incorporates

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its responses to paragraphs 1 through 39 of the Complaint, as if fully set forth herein. 41. In response to paragraph 41 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 42. In response to paragraph 42 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 43. In response to paragraph 43 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 44. In response to paragraph 44 of the Complaint, Northgate denies each

and every material allegation contained therein. 45. In response to paragraph 45 of the Complaint, Northgate denies each

and every material allegation contained therein. 46. In response to paragraph 46 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 45 of the Complaint and on that basis denies Plaintiff's claims for relief and damages.
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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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LAW OFFICES 600 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-7689 (714) 427-7000

47.

In response to paragraph 47 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 46 of the Complaint and on that basis denies Plaintiff's claims for relief and damages. 48. In response to paragraph 48 of the Complaint, Northgate incorporates

its responses to paragraphs 1 through 47 of the Complaint, as if fully set forth herein. 49. In response to paragraph 49 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 50. In response to paragraph 50 of the Complaint, Northgate alleges that

the referenced statute speaks for itself. 51. In response to paragraph 51 of the Complaint, Northgate admits that

the store is a public accommodation. Northgate lacks knowledge or information sufficient to admit or deny the remaining allegations, and on that basis denies the same. 52. In response to paragraph 52 of the Complaint, Northgate incorporates

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its responses to paragraphs 1 through 51 of the Complaint and on that basis denies Plaintiff's claims for relief and damages.

In response to Plaintiff's prayer for relief, Northgate incorporates its responses to paragraphs 1 through 52 of the Complaint and on that basis denies Plaintiff's claims for relief and damages.

AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief) The Complaint, and each and every purported claim for relief therein, fails to state facts sufficient to constitute a claim for relief against Northgate.

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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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SECOND AFFIRMATIVE DEFENSE (Defendant's Full Performance) Northgate is informed and believes, and thereon alleges, that it has performed and fully discharged any and all obligations and legal duties to Plaintiff pertinent to the matters alleged in the Complaint.

THIRD AFFIRMATIVE DEFENSE (Waiver, Estoppel, Excuse and Mistake) Northgate is informed and believes, and thereon alleges, that some or all of Plaintiff's claims are barred under the principles of waiver, estoppel, excuse and/or mistake.

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FOURTH AFFIRMATIVE DEFENSE (Laches and Unreasonable Delay) The Complaint, and each and every purported claim for relief therein, is barred under the principles of laches and unreasonable delay.

FIFTH AFFIRMATIVE DEFENSE (Unclean Hands) The Complaint, and each and every purported claim for relief therein, is barred as a result of Plaintiff's unclean hands.

SIXTH AFFIRMATIVE DEFENSE (Privilege/Justification) Some or all of the claims for damages in the Complaint are barred in that all decisions and actions of Northgate with respect to the subject matter of this lawsuit were undertaken in good faith, in the absence of malicious intent, and constituted a lawful, proper, and justified means to further its legitimate economic interests.
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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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SEVENTH AFFIRMATIVE DEFENSE (Readily Achievable) Some or all of the claims in the Complaint are barred in that the relief Plaintiff requests is not readily achievable.

EIGHTH AFFIRMATIVE DEFENSE (Structurally Impracticable) Some or all of the claims in the Complaint are barred in that the relief Plaintiff requests would be structurally impracticable.

NINTH AFFIRMATIVE DEFENSE (Undue Burden) Some or all of Plaintiff's claims are barred because the relief Plaintiff requests is unreasonable, would impose an undue burden and/or fundamentally alter the property and/or the nature of the goods or services provided by Northgate.

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TENTH AFFIRMATIVE DEFENSE (Unconstitutional) Some or all of Plaintiff's claims are barred because they are predicated on unconstitutionally vague and/or overly broad interpretations of regulations or laws or, alternatively, the applicable regulations or laws themselves are unconstitutionally vague and/or overbroad.

ELEVENTH AFFIRMATIVE DEFENSE (Due Process) Some or all of Plaintiff's claims are barred by public policy and due process considerations because the property and the building constructed thereon was constructed relying in good faith upon the law, and applicable state regulations,
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pronouncements from federal and state agencies, and/or state and local approvals. Granting some or all of the relief Plaintiff requests would be inequitable and would violate public policy and due process under state and/or federal constitutions.

TWELFTH AFFIRMATIVE DEFENSE (Mootness) Some or all of the claims in the Complaint are moot in that Northgate is and/or has been in compliance with the laws, statutes, and regulations governing treatment of individuals with a substantial physical and/or mental limitation.

THIRTEENTH AFFIRMATIVE DEFENSE (Standing) Plaintiff lacks standing to assert some or all of the claims alleged in the Complaint.

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FOURTEENTH AFFIRMATIVE DEFENSE (Safety) Some or all of the modifications proposed by Plaintiff may jeopardize the health and/or safety of customers.

FIFTEENTH AFFIRMATIVE DEFENSE (Justification) Some or all of Northgate's actions in this matter were taken in reliance upon the standards and guidelines of the ADA and/or state law and regulations and were reasonably prudent under the circumstances. /// /// ///
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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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SIXTEENTH AFFIRMATIVE DEFENSE (Lack of Proximate Cause) No act or omission of Northgate was the proximate cause of Plaintiff's damages, if any. In the alternative, Plaintiff's alleged damages, if any, were proximately caused by the conduct of Plaintiff and/or persons or entities other than Northgate. Plaintiff's damages, if any, must be reduced in proportion to the amount attributable to the conduct of Plaintiff and/or persons or entities other than Northgate up to and including 100%. Northgate further alleges that if Plaintiff recovers, then pursuant to Civil Code sections 1431.2, et seq., it is not liable for any non-economic damages that are not directly proportional to Northgate's percentage of fault.

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SEVENTEENTH AFFIRMATIVE DEFENSE (Not Entitled to Attorneys' Fees) The Complaint, and each cause of action contained therein, fails to allege facts sufficient to entitle Plaintiff to recover attorneys' fees against Northgate.

EIGHTEENTH AFFIRMATIVE DEFENSE (Absence of Control) Northgate is an improper party in this matter in that it does not and did not have sufficient control concerning the actions of other parties in this matter.

NINETEENTH AFFIRMATIVE DEFENSE (Field Tolerances) Some or all of Plaintiff's claims are barred because the alleged violations are within the conventional building industry tolerances for field conditions. /// ///
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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT

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TWENTIETH AFFIRMATIVE DEFENSE (Additional Affirmative Defenses) Northgate currently has insufficient information upon which to form a belief as to whether it may have additional, as yet unstated, affirmative defenses available. Northgate reserves the right to assert additional affirmative defenses in the event discovery indicates they would be appropriate.

WHEREFORE, Northgate prays for judgment as follows: 1. 2. 3. 4. That all relief requested in the Complaint be denied; That Plaintiff takes nothing by virtue of this action; For costs of suit and attorneys' fees incurred herein; and For such other and further relief as the Court may deem proper.

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8756625.1

Dated: May 1, 2008

SNELL & WILMER L.L.P.

By:

s/Brian Mills Brian Mills Attorneys for Defendant Northgate Gonzalez, LLC d/b/a Northgate Supermarket #27

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DEFENDANT 'S ANSWER TO PLAINTIFF'S COMPLAINT