Document 21
Filed 08/27/2008
Page 1 of 17
1 JOHN L. BARBER SB# 160317 E-Mail: barbmibbslaw.com 2 MELISSA T. 0 NSKY SB# 227451 E-Mail: omanskfl~bbsfaw.com 3 LEWIS BRISBO S ISGAARD & SMITH LLP 221 North Figueroa Street, Suite 1200 4 Los AngeleS~ California 90012 Telephone: 213) 250-1800 5 FacsImile: ( 13) 250-7900 6 Attorneys for Defendant LONGS DRUG STORES CALIFORNIA, INC. 7 8 9 10
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
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CASE NO. 07CV 2302IEG (BLM)
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14 LONGS DRUG STORES CALIFORNIA, INC. dba LONGS 15 DRUGS STORE #55; LONGS DRUG STORE, INC. 16 Defendants. 17 ______________ 18 19 20 21 22 23 24 25 26 27 28 1.
) ACTION FILED: December 7,2007
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COMES NOW DEFENDANT, LONGS DRUG STORES CALIFORNIA, INC. ("Defendant"), and hereby answers Plaintiffs Complaint ("Complaint") by admitting, denying and alleging as follows: I. SUMMARY In answer to Paragraph 1 of the Complaint, Defendant need not address
Plaintiff's summary of the action. To the extent that any averment in Paragraph I is deemed to require a response, Defendant denies each and every allegation contained therein. 2. In answer to Paragraph 2 of the Complaint, Defendant need not address
Plaintiff s summary of the action. To the extent that any averment in Paragraph 2 is
48]8-7211-3922.1
-1COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 2 of 17
I
deemed to require a response, Defendant denies each and every allegation contained
2 therein. 3 4 3. II. JURISDICTION In answer to paragraph 3 of the Complaint, Defendant admits the
5 allegations contained therein. 6 4. In answer to paragraph 4 of the Complaint, Defendant denies each and
7 every allegation contained therein. On February 25,2008 the Court dismissed 8 Plaintiffs 9 5. state claims for lack of supplemental jurisdiction. In answer to paragraph 5 of the Complaint, Defendant admits the
10 allegations contained therein.
11
III. VENUE 6. In answer to paragraph 6 of the Complaint, Defendant admits the
12
13 allegations contained therein. IV. PARTIES
7.
17 8.
In answer to paragraph 7 of the Complaint, Defendant admits the
In answer to paragraph 8 of the Complaint, Defendant lacks
18 sufficient knowledge or information on which to form a belief as to the allegations 19 asserted in this paragraph and on that basis, denies each and every allegation 20 21 22 23 24 25 26 27 28 9. contained therein. V. FACTS In answer to paragraph 9 of the Complaint, Defendant admits the
allegations contained therein. 10. In answer to paragraph 10 of the Complaint, Defendant denies each and
every allegation contained therein. 11. In answer to paragraph 11 of the Complaint, Defendant denies each and
every allegation contained therein. 12.
4818-7211-3922.1
In answer to paragraph 12 of the Complaint, Defendant denies each and
-2COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 3 of 17
1 every allegation contained therein. 2 13. In answer to paragraph 13 of Complaint, Defendant denies each and
3 every allegation contained therein. 4 14. In answer to paragraph 14 of the Complaint, Defendant denies each and
5 every allegation contained therein. 6 15. In answer to paragraph 15 of the Complaint, Defendant denies each and
7 every allegation contained therein. 8 9 10
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VI. FIRST CLAIM Americans with Disabilities Act of 1990 Denial of "Full and Equal" Enjoyment and Use 16. In answer to paragraph 16 of the Complaint, Defendant reasserts its
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12 responses to paragraph 1 through 15 of the Complaint as though set forth fully 13 herein. 14 17. In answer to paragraph 17 of the Complaint, Defendant states that the
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15 referenced statute speaks for itself and, therefore, requires no response. To the extent 16 that any averment in paragraph 17 is deemed to require a response, Defendant denies 17 each and every allegation contained therein. 18 18. In answer to paragraph 18 of the Complaint, Defendant denies each and
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19 every allegation contained therein 20 21 22 23 24 25 26 27 28 19. Failure to Remove Architectural Barriers in an Existing Facility In answer to paragraph 19 of the Complaint, Defendant states that the
referenced statute speaks for itself and, therefore, requires no response. To the extent that any averment in paragraph is deemed to require a response, Defendant denies each and every allegation contained therein. 20. In answer to paragraph 20 of the Complaint, Defendant states that the
referenced statute speaks for itself and, therefore, requires no response. To the extent that any averment in paragraph is deemed to require a response, Defendant denies each and every allegation contained therein.
4818-7211-3922.!
-3COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 4 of 17
1
21.
In answer to paragraph 21 of the Complaint, Defendant denies each and
2 every allegation contained therein. -3 22. In answer to paragraph 22 of the Complaint, Defendant denies each and
4 every allegation contained therein. 5 6 23. Failure to Design and Construct an Accessible Facility In answer to paragraph 23 of the Complaint, Defendant denies each and
7 every allegation contained therein. 8 24. In answer to paragraph 24 of the Complaint, Defendant states that the
9 referenced statute speaks for itself and, therefore, requires no response. To the extent 10 that any averment in paragraph 24 is deemed to require a response, Defendant denies ~
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11 each and every allegation contained therein. 12 25. In answer to paragraph 25 of the Complaint, Defendant denies each and
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Failure to Make an Altered Facility Accessible 26. In answer to paragraph 26 of the Complaint, Defendant denies each and
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16 every allegation contained therein. 17 27. In answer to paragraph 27 of the Complaint, Defendant states that the
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18 referenced statute speaks for itself and, therefore, requires no response. To the extent 19 that any averment in paragraph 27 is deemed to require a response, Defendant denies 20 each and every allegation contained therein. 21 28. In answer to paragraph 28 of the Complaint, Defendant denies each and
22 every allegation contained therein. 23 24 29. Failure to Modify Existing Policies and Procedures In answer to paragraph 29 of the Complaint, Defendant states that
25 referenced statute speaks for itself and, therefore, requires no response. To the extent 26 that any averment in paragraph 29 is deemed to require a response, Defendant denies 27 each and every allegation contained therein. 28 30.
4818-721]-3922.1
In answer to paragraph 30 of the Complaint, Defendant denies each and
-4COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 5 of 17
1 every allegation contained therein. 2 31. In answer to paragraph 31 of the Complaint, Defendant need not address
3 Plaintiff's prayer for relief. To the extent that any averment in paragraph 31 is 4 deemed to require a response, Defendant denies each and every allegation contained 5 therein. 6 32. In answer to paragraph 32 of the Complaint, Defendant need not address
7 Plaintiff's prayer for relief. To the extent that any averment in paragraph 32 is 8 deemed to require a response, Defendant denies each and every allegation contained 9 therein. 10
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VII. SECOND CLAIM Disabled Person Act 33. In answer to paragraph 33 of the Complaint, Defendant reasserts its
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responses to paragraphs I through 32 of the Complaint as though set forth fully
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16 referenced statute speaks for itself and, therefore, requires no response. To the extent 17 that any averment in paragraph 34 is deemed to require a response, Defendant denies 18 each and every allegation contained therein. 19 20 21 22 23 24 25 26 27 28 35. In answer to paragraph 35 of the Complaint, Defendant states that the
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referenced statute speaks for itself and, therefore, requires no response. To the extent that any averment in paragraph 35 is deemed to require a response, Defendant denies each and every allegation contained therein. 36. In answer to paragraph 36 of the Complaint, Defendant states that the
referenced statute speaks for itself and, therefore, requires no response. To the extent that any averment in paragraph 36 is deemed to require a response, Defendant denies each and every allegation contained therein. 37. In answer to paragraph 37 of the Complaint, Defendant denies each and
every allegation contained therein.
48]8-72]]-3922.1
-5COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC. 'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 6 of 17
1
38.
In answer to paragraph 38 of the Complaint, Defendant need not address
2 Plaintiffs prayer for relief. To the extent that any averment in paragraph 38 is 3 deemed to acquire a response, Defendant denies each and every allegation contained 4 therein. 5 39. In answer to paragraph 39 of the Complaint, Defendant need not address
6 Plaintiffs prayer for relief. To the extent that any averment in paragraph 39 is 7 deemed to acquire a response, Defendant denies each and every allegation contained 8 therein. 9 10
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responses to paragraphs 1 through 39 of the Complaint as though set forth fully
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17 each and every allegation contained therein. 18 42. In answer to paragraph 42 of the Complaint, Defendant states that the
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19 referenced statute speaks for itself and, therefore, requires no response. To the extent 20 21 22 23 24 25 26 27 28 that any averment in paragraph 42 is deemed to require a response, Defendant denies each and every allegation contained therein. 43. In answer to paragraph 43 of the Complaint, Defendant states that the
referenced statute speaks for itself and, therefore, requires no response. To the extent that any averment in paragraph 43 is deemed to require a response, Defendant denies each and every allegation contained therein. 44. In answer to paragraph 44 of the Complaint, Defendant denies each and
every allegation contained therein. 45.
48[8-7211-3922.1
In answer to paragraph 45 of the Complaint, Defendant denies each and
-6COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 7 of 17
1 every allegation contained therein. 2 46. In answer to paragraph 46 of the Complaint, Defendant denies each and
3 every allegation contained therein. 4 47. In answer to paragraph 47 of the Complaint, Defendant need not address
5 plaintiff's prayer for relief. To the extent that any averment in paragraph 47 is 6 deemed to require a response, Defendant denies each and every allegation contained 7 therein. 8 9 10
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IX. FOURTH CLAIM Denial of Full and Equal Access to Public Facilities 48. In answer to paragraph 48 of the Complaint, Defendant reasserts its
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In answer to paragraph 49 of the Complaint, Defendant states that the
14 referenced statute speaks for itself and, therefore, requires no response. To the extent 15 that any averment in paragraph 49 is deemed to require a response, Defendant denies 16 each and every allegation contained therein. 17 50. In answer to paragraph 50 of the Complaint, Defendant states that the
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18 referenced statute speaks for itself and, therefore, requires no response. To the extent 19 that any averment in paragraph 50 is deemed to require a response, Defendant denies 20 21 22 each and every allegation contained therein. 51. In answer to paragraph 51 of the Complaint, Defendant denies each and
every allegation contained therein. 52. In answer to paragraph 51 of the Complaint, Defendant denies each and
23
24
every allegation contained therein.
25
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PRAYER FOR RELIEF
26
27 28
Defendant need not address Plaintiff's prayer for relief. To the extent that any averment in Plaintiff's prayer is deemed to require a response, Defendant denies each and every allegation contained therein.
4818-7211-3922.1
-7COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 8 of 17
1 2 3 4
53.
AFFIRMATIVE
DEFENSES DEFENSE
FIRST SEPARATE AND AFFIRMATIVE
(Failure to Comply with Civil Code § 51) Plaintiff has failed to state a cause of action for violation of the Unruh
5 Civil Rights Act because Plaintiff has failed to comply with Civil Code section 51. 6 7 8
-54. SECOND SEPARATE AND AFFIRMATIVE (Failure to State a Claim) Plaintiffs Complaint and each and every claim contained therein fails to DEFENSE
9 state facts sufficient to state a claim upon which relief may be granted. 10
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THIRD
SEPARATE AND AFFIRMATIVE
DEFENSE
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(Breach of Agreement, Covenant or Duty) 55. Plaintiffs Complaint is barred in its entirety by the fact that Plaintiff
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13 breached any agreement, contract, covenant or duty which might be found to exist. 14 15 16
56. FOURTH SEPARATE AND AFFIRMATIVE (Not Subject to Civil Code § 51) Defendant is not subject to the provisions of the Unruh Civil Rights Act, DEFENSE
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17 Civil Code sections 51, et seq., for the conduct alleged in Plaintiffs complaint. 18 19 20
57. FIFTH SEPARATE AND AFFIRMATIVE (Proximate Cause) In the event that Defendant is in some manner found legally responsible DEFENSE
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21 for damages allegedly sustained by Plaintiff, and such damages were proximately 22 caused or contributed to by Plaintiff and/or third parties, Defendant should be 23 indemnified by Plaintiff and/or such third parties. This defense is alleged in the 24 alternative and does not admit any of the allegations contained in the Complaint. 25 26 27
58. SIXTH SEPARATE AND AFFIRMATIVE (Conduct was Privileged) Defendant's conduct with regard to the Plaintiff was privileged, justified DEFENSE
28 and in good faith.
4818-7211-3922.1
-8COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 9 of 17
1
SEVENTH SEPARATE AND AFFIRMATIVE . (Intentional 59. and/or Negligent Conduct)
DEFENSE
2 3
Defendant alleges that Plaintiff's damages, if any, were caused by
4 Plaintiff's own intentional or negligent acts, thus barring or limiting Plaintiff's right 5 of recovery. 6 7 8 60. EiGHTH SEPARATE AND AFFIRMATIVE (Failure to Mitigate Damages) Defendant alleges upon information and belief that Plaintiff has failed to DEFENSE
9 act reasonably to mitigate any damages that he has alleged in this action. 10 11 12 61. NINTH SEPARATE AND AFFIRMATIVE (Statute of Limitations) Defendant is informed and believes and thereon alleges that Plaintiff's DEFENSE
claims as contained in the Complaint are barred by the applicable statutes of 14 limitations. TENTH SEPARATE AND AFFIRMATIVE (Waiver) 17 62. Defendant is informed and believes and thereon alleges that Plaintiff has DEFENSE
18 waived any and all claims that he may have had or has against Defendant arising 19 from the transactions and occurrences contained in the Complaint.
20
21 22 23 24 63.
ELEVENTH
SEPARATE AND AFFIRMATIVE (Estoppel)
DEFENSE
Defendant is informed and believes and thereon alleges that Plaintiff is
estopped by his own conduct from asserting any and all claims he may have or has against Defendant arising from the transactions and occurrences contained in the
25 Complaint.
26
TWELFTH SEPARATE AND AFFIRMATIVE (Doctrine of Laches) DEFENSE
27
28 64.
4818-7211-3922.1
Defendant is informed and believes and thereon alleges that Plaintiff's
-9COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 10 of 17
1 Complaint is barred, in its entirety, by the Doctrine of Laches. 2 3 4 65.
THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE (Unclean Hands)
Defendant is informed and believes and thereon alleges that Plaintiff s
5 Complaint is barred, in its entirety, by the Doctrine ofUnc1ean Hands. 6 7
FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE (Contributory Negligence)
66. Defendant alleges based upon information and belief that any and all
8
9 events and happenings, injuries and damages, if any, referred to in said Complaint, 10 were proximately caused and contributed to by the negligence and fault of Plaintiff,
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12 places referred to, and therefore, Plaintiff is completely barred from recovery herein, 13 or in the alternative, under the doctrine of pure comparative negligence and fault, 14 said acts of Plaintiff reduces Plaintiff s right to recovery herein by the amount which 15 such acts contributed to said incidents. 16 17 18 67.
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FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE (Assumption of Risk)
Defendant alleges based upon information and belief that Plaintiff freely
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19 and voluntarily assumed the risk of injury and daniage alleged in this action with full 20 21 22 23 24 25 26 27 28 68. knowledge and appreciation of the magnitude thereof.
SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE (Compliance with the ADA)
Defendant has had in place at all times, or currently has in place, a plan
for compliance with the Americans With Disabilities Act of 1990 ("ADA"); its plan is being continuously implemented; continual progress towards full compliance with the ADA is being made under the Defendant's plan; and the Defendant is in substantial compliance with the ADA. ///
4818-7211-3922.1
-10COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 11 of 17
1 2 3
SEVENTEENTH
SEPARATE AND AFFIRMATIVE (No Reasonable Modifications)
DEFENSE
69.
Defendant alleges based upon information and belief that the
4 modifications set forth in Plaintiffs Complaint are not "reasonable modifications" in 5 the policies, practices, or procedures to the extent necessary to afford foods, services, 6 facilities, privileges, advantages, or accommodations to Plaintiff because such 7 modifications would injure the fmancial operations and/or effectiveness of 8 Defendant's services and facility. See 42 U.S.C. § 12.182(b)(2)(A)(ii)(1994). 9 10
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EIGHTEENTH
SEPARATE AND AFFIRMATIVE (No Discriminatory Conduct)
DEFENSE
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Defendant has not engaged in a pattern of discriminatory conduct that
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12 violates the Fourteenth Amendment to the United States Constitution. NINETEENTH SEPARATE AND AFFIRMATIVE (Lack of Standing) 71. Defendant alleges based upon information and belief that Plaintiff lacks DEFENSE
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16 standing to assert a claim under the ADA because Plaintiff has not suffered a 17 threatened or actual distinct and palpable injury, there is no causal connection 18 between the injury and Defendant's challenged conduct, and/or there is no 19 substantial likelihood that the relief sought by Plaintiff will prevent or redress the 20 21 22 23 24 25 26 27 28 72.
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TWENTIETH
SEPARATE AND AFFIRMATIVE (Alternative Methods)
DEFENSE
Defendant alleges based upon information and belief that they and other
third parties (i.e., tenant, landlord, etc.) provide persons with disabilities alternatives to barrier removal by providing access to goods by alternative methods such as customer services and sales assistance. /// ///
48] 8-72] 1-3922.]
-11COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 12 of 17
1 2 3
TWENTY-FIRST
SEPARATE AND AFFIRMATIVE
DEFENSE
(Isolated and/or Temporary Interruptions) 73. Defendant alleges based upon information and belief that Defendant was
4 privileged and or justified for the alleged conduct, if any, because the alleged barriers 5 were isolated and!or temporary interruptions in service or access due to maintenance 6 and! or repairs. 7 8 9 74. TWENTY-SECOND SEPARATE AND AFFIRMATIVE (Consent) Plaintiff, at all relevant times, gave his consent, express or implied, to the DEFENSE
10 alleged acts, omissions, and/or conduct of Defendant.
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DEFENSE
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14 alleged in the Complaint, they did so because the Plaintiff poses a direct threat to his 15 health or safety or the health or safety of other individuals at the facility. 16 17 18 76. TWENTY-FOURTH SEPARATE AND AFFIRMATIVE (Good Faith Belief) The Complaint is barred, in whole or in part, because any actions taken DEFENSE
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19 with respect to Plaintiff were based on honest, reasonable, and good faith beliefs in 20 21 22 23 24 25 26 27 28 78.
4818-7211-3922.1
the facts as known and understood at the time. TWENTY-FIFTH SEPARATE AND AFFIRMATIVE (Good Cause) 77. Plaintiff's Complaint, and each and every claim contained therein, is DEFENSE
barred, in whole or in part, because Defendant's activities undertaken with respect to Plaintiff, if any, were based upon good cause. TWENTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
(Lack of Basis for Attorneys' Fees/Costs) Plaintiff's Complaint, and each and every claim set forth therein, fails to -12COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC. 'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 13 of 17
1 set forth facts to constitute a basis for recovery of attorneys' fees and costs.
2 3
4
TWENTY-SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE (After-Acquired Evidence)
79. Defendant is informed and believes and thereon alleges that the
5 Complaint is limited or subject to an absolute bar as to recoverable damages based 6 on after-acquired evidence the Defendant has presently and/or may acquire during 7 the course of this litigation.
8 9
10
TWENTY-EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE (No Private Right of Action)
80. Plaintiff lacks standing to assert a claim for denial of accessible
11 sanitary facilities in violation of California Health & Safety Code §§ 19955 et seq., 12 because there is no private right of action thereunder. California Health & Safety
TWENTY-NINTH AFFIRMATIVE DEFENSE (No Standing for Ba.rriers Not Affecting Plaintiff's Gender or Disability)
81. Plaintiff lacks standing to seek relief for barriers not affecting his own
gender or disability.
THIRTIETH AFFIRMATIVE DEFENSE 19 20
21 22 23 82.
(Premises Were Not Altered or Modified After the Effective Date of Title III of ADA)
On information and belief, the premises owned and/or leased by
Defendant was not altered or modified after January 26, 1992. 14 V.S.C. § 12183(a); 34 Code Fed. Regs. § 36.402.
24 25
26 27 28 83.
THIRTY-FIRST AFFIRMATIVE DEFENSE (Failure to Plead with Certainty and Particularity)
The allegations of the Complaint, and each purported cause of action
contained therein, are not pled with sufficient particularity and are uncertain, vague, ambiguous and unintelligible.
4818-7211-3922.1
-13ANSWER TO PLAINTIFF'S COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INe.'s
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 14 of 17
1 2 3 84.
THIRTY-SECOND AFFIRMATIVE DEFENSE (No Basis For Attorneys' Fees) Pursuant to Jerry Doran v. Del Taco, Inc. 2005 WL 1389270, Plaintiff is
4 not entitled to recover attorneys' fees or costs, as he failed to allow Defendant an 5 opportunity to remediate any barriers alleged to exist at the subject facility. 6 7 8 85. THIRTY-THIRD AFFIRMATIVE DEFENSE (No Discriminatory Conduct) Defendant has not engaged in a pattern of discriminatory conduct that
9 violates the Fourteenth Amendment to the United States Constitution. 10
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THIRTY-FOURTH AFFIRMATIVE DEFENSE (Not readily achievable) 86. Some or all of the barrier removal proposed by Plaintiff are not readily
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13 achievable. THIRTY-FIFTH AFFIRMATIVE DEFENSE (Premises Constructed Prior to Effective Date of Title III of ADA) 87. On information and belief, the premises owned and/or leased by
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17 Defendant was designed and constructed for first occupancy prior to the effective 18 date of Title III of the ADA. 19 20 21 88. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Unintentional Conduct / Violation) Plaintiff has failed to state a cause of action for violation of the Unruh
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22 Civil Rights Act because, to the extent that any violation existed, such violation was 23 unintentional. This defense is plead in the alternative and does not admit that any 24 violation existed. 25 26 27 89. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Supplemental Jurisdiction Improper) Supplemental jurisdiction of the state law claims is improper as it is
28 based on new andlor complicated issues of state law.
4818-7211-3922.1
-14COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 15 of 17
1 2 3 90.
THIRTY-EIGHTH
AFFIRMATIVE
DEFENSE
(Maximum Extent Feasible) Plaintiffs Complaint, and each and every claim contained therein, is
4 barred, in whole or in part, because Defendant has made the public accommodation 5 at issue accessible to disabled customers to the maximum extent feasible. 6 7 8 91. THIRTY-NINTH AFFIRMATIVE DEFENSE
(Dimensional Tolerances) Plaintiff s Complaint, and each and every claim contained therein, is
9 barred, in whole or in part, because, to the extent any architectural barriers alleged by 10 Plaintiff exist, such barriers are within permissible state and federal dimensional 11 tolerances. This defense is plead in the alternative and does not admit that any 12 violation existed. FORTIETH AFFIRMATIVE DEFENSE
(Unknown Defenses) 92. Defendant presently has insufficient knowledge or information on
which to form a belief as to whether it may have additional as yet unstated defenses available. Defendant reserves herein the right to assert additional defenses in the event discovery indicates that they would be appropriate. 19 20 21 PRAYER WHEREFORE, Defendant prays as follows: 1. 2. 3. 4. Plaintiff take nothing by the Complaint; Judgment be rendered in favor of Defendant; Defendant be awarded costs of suit; Defendant be awarded its attorneys' fees incurred in the defense of this action; and 5. Defendant be awarded whatever further relief the Court deems just and proper. ///
48] 8-721 ]-3922.]
22
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-15COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 16 of 17
1
DEMAND FOR JURY Defendant hereby demands a jury pursuant to FRCP 38(b) on all issues raised
2
3 in the Complaint of Plaintiff A. J. OLIVER. 4 5 DATED: August 6 7 8 9 10
II.
..I ..I
1:Q" 2008
JOHN L. BARBER MELISSA T. OMANSKY LEWIS BRISBOIS BISGAARD & SMITH LLP
BYV'YY\ ~
John L. Barber Melissa T. Oman Attol}1~s for Defen ant LO STORES CALIFORNIA, C.
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4818-7211-3922.1
-16COMPLAINT
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC. 'S ANSWER TO PLAINTIFF'S
Case 3:07-cv-02302-IEG-BLM
Document 21
Filed 08/27/2008
Page 17 of 17
1 2 3
FEDERAL COURT PROOF OF SERVICE Oliver v. Longs Drug Stores California, Inc., et al. - File No. 21149-250 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over 4 the age of 18 and not a pat1Yto the within action. My business address is 221 North Figueroa Street, Suite 1200, Los Angeles, California 90012.
5.
On August 2.7 , 2008, I served the followiJ:!Kdocument described as 6 DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT on all interested parties in this action by placing 7 rXl a true copy [ ] the original thereof enclosed in sealed envelopes addressed as follows: 8 Lynn Hubbard, III, ESSl. 9 ScottLynn Hubbard, IV, Esq. Law Offices ofLynn Hubbard 10 12 Williamsburg Lane Chico, California 95926 11 Tel.: (530) 895-3252 Fax: (530) 894-8244 12 [X] (BY COURT'S CM/ECF SYSTEM) Pursuant to Local Rule I electronically 13 filed the documents with the Clerk of the Court using the CM/ECF system, which sent notification of that filing to the persons listed above. (BY PERSONAL SERVICE) I delivered the foregoing envelope by hand to the offices of the addressee. 16 [ ] 17 18 19 20 21 (STATE) I declare under. penalty of perjury under the laws of the State of California that the above IS true and correct.
[XX] (FEDERAL) I declare that I am employed in the office ofa member of the bar of this Court at whose direction the service was made. Executed August
Q, 2008, at Los Angeles, California.
22
23 24 25 26 27 28
4818-7211-3922.1
~/5(~
ROSARIO B. CORALES
DEFENDANT LONGS DRUG STORES CALIFORNIA, INC.'S ANSWER TO PLAINTIFF'S
COMPLAINT
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