Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02303-DMS-RBB

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ALISOND. ALPERT,BarNo. 199257 BESTBEST& KRIEGERLLP l5th 655WestBroadway, Floor SanDiego,California 92101 (61 Telephone: 9) 525-1300 (61 Telecopier: 9) 233-6118 for Attorneys Defendant LAKHA PROPERTIES SAN DIEGO.LLC

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V.

UNITED STATES DISTRICTCOURT DISTRICTOF CALIFORNIA SOUTHERN

BARBARA HUBBARD, Plaintiff.

Case 07CV2303DMS RBB No. Judge: Hon.DanaM. Sabraw LAKHA PROPERTIES SAN DIEGO,LLC'S ANSWERTO COMPLAINT Complaint Filed: December 7,2007 Trial Date: Not Set

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HOMETOWNBUFFET,INC. dba HOMETOWNBUFFET#0703; LAKHA PROPERTIES SAN DIEGO. LLC,
Defendants.

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LAKHA PROPERTIES DIEGO,LLC'S SAN ANSWERTO COMPLAINT Case 07CV2303DMS RBB No.

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Defendant Lakha PropertiesSan Diego, LLC answersthe Complaint filed by Plaintiff hereinas follows: SUMMARY l. Answering Paragraphl, Defendantadmits the location of Hometown Buffet and

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that this action involves that subject property. Except as expresslyadmitted, Defendant lacks sufficient information and belief to enable it to answer and/or this paragraph calls for legal conclusionswhich require no answer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegation containedtherein. 2. Answering Paragraph2, Defendant admits the location of Hometown Buffet and

that this action involves that subject property. Except as expressly admitted, Defendant lacks sufficient information and belief to enable it to answer and/or this paragraph calls for legal conclusions which require no answer,and to the extent an answeris required,Defendantdenies generallyand specificallyeachand every allegationcontainedtherein. JURISDICTION 3. Answering Paragraph3, Defendant denies each and every allegation contained

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therein, except Defendant admits that if Plaintiffls Complaint stated a claim against Defendant, jurisdiction would be properin this Court. 4. Answering Paragraph4, Defendant denies each and every allegation contained

therein, except Defendant admits that if Plaintiff s Complaint stated a claim against Defendant, jurisdiction would be properin this Court. 5. Answering Paragraph 5, Defendant denies each and every allegation contained

therein, except Defendant admits that if Plaintiffls Complaint stated a claim againstDefendant, jurisdiction would be properin this Court.

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VENUE 6. Answering Paragraph6, Defendant denies each and every allegation contained

therein, except Defendant admits that if Plaintiff s Complaint stated a claim against Defendant, venuewould be proper in this Court.

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PARTIES 7. Answering Paragraph7, Defendantadmits that this action involves a Hometown

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Buffet Restaurantlocated at 5881 University Ave, San Diego, CA 92115 (the "Restaurant"). or the Defendantspecificallydeniesthat it owns, operates manages Restaurant.Defendantadmits that it is the lessor of the property on which the Restaurantis located. Except as expressly admitted or denied, Defendant lacks sufficient information and belief to enable it to answer, and basing its denial thereon,deniesgenerallyand specifically each and every allegationcontained therein. 8. Answering Paragraph 8, Defendant lacks sufficient information and belief to

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enableit to answerand/or this paragraphcalls for legal conclusionswhich require no answer, and is to the extent an ans\ryer required,Defendantdeniesgenerallyand specifically each and every allegation containedtherein. FACTS 9. Answering Paragraph 9, Defendant admits that the Restaurant is a public

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accommodation facility serving food and drinks. Except as expresslyadmitted,this paragraph or calls for legal conclusions which require no answer, and to the extent an answer is required, therein. Defendantdeniesgenerallyand specificallyeachand every allegationcontained 10. Answering Paragraph10, Defendantdenies that any barriers exist which would

interferewith or preventthe use and enjoymentof the goods,servicesor facilities which it offers. Except as expressly denied, Defendant lacks sufficient information and belief to enable it to answer and/or this paragraph calls for legal conclusions which require no answer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegationcontained therein. ll. Answering Paragraph11, Defendantdenies that any barriers exist which would

interferewith or preventthe use and enjoymentof the goods,servicesor facilities which it offers. Except as expresslydenied, Defendant lacks sufficient information and belief to enable it to answer and/or this paragraph calls for legal conclusions which require no answer, and to the

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extent an answer is required, Defendant denies generally and specifically each and every allegation contained therein. 12. Answering Paragraph12, Defendantdeniesthat any barriers exist which would

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interferc with or preventthe use and enjoymentof the goods,servicesor facilities which it offers. Except as expresslydenied, Defendant lacks suff,rcientinformation and belief to enable it to answer andlor this.paragraphcalls for legal conclusionswhich require no ans\ryer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegationcontained therein. 13. Answering Paragraph 13, Defendant denies that it knew of any inaccessible

elements and areas which would deny accessto the physically disabled or that its facilities violated state and federal law, and thereby also deniesthat it refused to remove any barriers. Except as expresslydenied, Defendant lacks sufficient information and belief to enable it to answer and/or this paragraph calls for legal conclusions which require no answer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegationcontained therein. 14. Answering Paragraph 14, Defendant denies that it knew of any inaccessible

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elements and areas which would deny accessto the physically disabled or that its facilities violated state and federal law, and thereby also denies that it intentionally failed to alter its property to comply with accessibilitystandards. Except as expresslydenied, Defendantlacks sufficient information and belief to enable it to answer and./orthis paragraph calls for legal conclusionswhich require no answer,and to the extent an answeris required,Defendantdenies generallyand specificallyeachand every allegationcontained therein. 15. Answering Paragraph 15, Defendant denies that it knew of any inaccessible

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elements and areas which would deny accessto the physically disabled or that its facilities violated stateand federal law, and thereby also deniesthat it intentionally failed to comply with buildings standards, building plans and permits, or applicableaccessibilitystandards.Except as expressly denied, Defendant lacks sufficient information and belief to enable it to answer and/or

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which requireno answer,and to the extentan answeris this paragraph calls for legal conclusions therein. required,Defendantdeniesgenerallyand specificallyeachand every allegationcontained FIRST CLAIM FOR RELIEF (Violation of the Americans with Disabilities Act of 1990) 16. Answering Paragraph 16, Defendant realleges and incorporatesby reference

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herein, as if set forth in full, its answersset forth in ParagraphsI through 15, above. 17. Answering Paragraph17, this paragraphcalls for legal conclusionswhich require

no answer, and to the extent an answer is required, Defendant denies generally and specifically therein. eachand every allegationcontained 18. 18, Answering Paragraph Defendantdeniesthat it hasviolated the Americanswith

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Disabilities Act ("ADA") or any other law. Except as expresslydenied,this paragraphcalls for legal conclusions which require no answer, and to the extent an answer is required, Defendant therein. deniesgenerallyand specificallyeachand every allegationcontained 19. Answering Paragraph19, this paragraphcalls for legal conclusionswhich require

no answer,and to the extent an ans\¡Íer required,Defendantdeniesgenerallyand specifically is each and every allegation containedtherein. 20. Answering Paragraph this paragraphcalls for legal conclusionswhich require 20,

no answer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegation containedtherein. 21. Answering Paragraph21, Defendantdeniesthat it has violated the ADA or any

which requireno calls for legal conclusions other law. Except as expressly denied,this paragraph each answer,and to the extent an answeris required,Defendantdeniesgenerallyand specif,rcally and every allegationcontained therein. 22. Answering Paragraph22, Defendant deniesthat it has violated the ADA or any

other law. Except as expressly denied,this paragraph calls for legal conclusions which requireno answer, and to the extent an answeris required, Defendant denies generally and specifically each and every allegationcontained therein.

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23.

Answering Paragraph23, Defendant admits the Restaurantwas constructed after

1992. Except as admitted, this paragraphcalls for legal conclusionswhich require no answer,and to the extent an answeris required,Defendantdeniesgenerallyand specifically each and every allegationcontainedtherein. 24. Answering Paragraph this paragraphcalls for legal conclusionswhich require 24,

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no answer,and to the extent an answeris required,Defendantdeniesgenerallyand specifically eachand every allegation containedtherein.

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25.

Answering Paragraph25, Defendantdeniesthat it has violated the ADA or any

other law. Except as expresslydenied,this paragraph calls for legal conclusions which requireno answer,and to the extent an answeris rèquired,Defendantdeniesgenerallyand specificallyeach and every allegationcontainedtherein. 26. Answering Paragraph26, Defendant denies that it knew of any inaccessible

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elements and areas which would deny accessto the physically disabled or that its facilities

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violated state and federal law. Except as expresslydenied, Defendant lacks suffrcient information and belief to enableit to answerand/orthis paragraph calls for legal conclusions which requireno answer,and to the extent an answeris required,Defendantdeniesgenerallyand specif,rcally each and every allegation containedtherein. 27. Answering Paragraph this paragraphcalls for legal conclusionswhich require 27,

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no answer,and to the extent an answeris required,Defendantdeniesgenerallyand specifically eachand every allegation containedtherein. 28. Answering Paragraph Defendantdeniesthat it alteredits facilities in a manner 28,

that violated the ADA or any other applicablelaw. Except as expresslydenied,Defendantlacks sufficient information and belief to enable it to answer and/or this paragraphcalls for legal conclusions which require no answer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegation containedtherein. 29. Answering Paragraph this paragraphcalls for legal conclusionswhich require 29,

no answer, and to the extent an answer is required, Defendant denies generally and specifically eachand every allegation containedtherein.
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30.

Answering Paragraph30, Defendant denies that it failed to make reasonable

modificationsin policies, practicesor procedures where necessary afford access facilities. to to Except as expresslydenied, Defendant lacks sufficient information and belief to enable it to answer and/or this paragraphcalls for legal conclusionswhich require no answer, and to the extent an ans\iler is required, Defendant denies generally and specifically each and every allegation containedtherein. 31. Answering Paragraph this paragraph 31, calls for legal conclusionswhich require

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no answer,and to the extent an answeris required,Defendantdenies generallyand specifically eachand every allegationcontained therein. 32. Answering Paragraph this paragraph 32, calls for legal conclusions which require

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no ans\ryer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegation containedtherein. SECOND CLAIM FOR RELIEF (Disabled PersonsAct) 33. Answering Paragraph 33, Defendant realleges and incorporatesby reference

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herein, as if set forth in full, its answersset forth in Paragraphs1 through 32, above. 34. Answering Paragraph34, this paragraph calls for legal conclusions which require

no answer,and to the extent an answeris required,Defendantdeniesgenerallyand specifically eachand every allegation containedtherein. 35. Answering Paragraph35, this paragraph calls for legal conclusionswhich require

no answer, and to the extent an answer is required, Defendant denies generally and specifically eachand every allegation containedtherein. 36. Answering Paragraph36, this parugraph calls for legal conclusionswhich require

no answer,and to the extent an ans\ryer required,Defendantdeniesgenerallyand specifically is each and every allegation containedtherein. 37. Answering Paragraph37, Defendantdenies generally and specifically each and

every allegation containedtherein.

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38.

Answering Paragraph38, Defendant denies that it has violated the Disabled Except as expressly denied, this paragraphcalls for legal

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Persons Act or any other law.

conclusions which require no answer, and to the extent an answer is required, Defendant denies generallyand specificallyeachand every allegationcontained therein. 39. Answering Paragraph39, Defendant denies that it has violated the Disabled Except as expressly denied, this paragraph calls for legal

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Persons Act or any other law.

conclusions which require no answer, and to the extent an answer is required, Defendant denies generallyand specificallyeachand every allegationcontained therein. THIRD CLAIM FOR RELIEF (Unruh Civil Rights Act) 40. Answering Paragraph 40, Defendant realleges and incorporates by reference

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herein, as if set forth in full, its answersset forth in Paragraphs1 through 39, above. 41. Answering Paragraph this paragraph 41, calls for legal conclusionswhich require

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no answer, and to the extent an answer is required, Defendant denies generally and specifically therein. eachand every allegationcontained 42. 42,this paragraphcalls for legal conclusionswhich require Answering Paragraph

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no answer, and to the extent an answer is required, Defendant denies generally and specifically each and every allegation containedtherein. 43. Answering Paragraph this paragraph 43, calls for legal conclusionswhich require

no answer,and to the extent an answeris required,Defendantdeniesgenerallyand specifrcally eachand every allegationcontained therein. 44. Answering Parcgraph44, Defendant denies generally and specifically each and

every allegation containedtherein. 45. Answering Paragraph45, Defendant denies generally and specifically each and

every allegation containedtherein. 46. Answering Paragraph46, Defendant denies that it has violated the Unruh Act or

any other law. Except as expresslydenied, this paragraphcalls for legal conclusionswhich

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require no answer, and to the extent an answer is required, Defendant denies generally and therein. specificallyeachand every allegationcontained 47. Answering Paragraph Defendantdeniesthat it has violated the Unruh Act, the 47,

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ADA or any other law. Except as expresslydenied, this paragraphcalls for legal conclusions which require no answer, and to the extent an answer is required, Defendant denies generally and therein. specificallyeachand every allegationcontained FOURTH CLAIMFOR RELIEF: DAMAGES FOR DENIAL OF FULL AND EQUAL ACCESS TO A PUBLIC (Unruh Civil Rights Act) 48. Answering Paragraph48, Defendant realleges and incorporatesby reference

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herein, as if set forth in full, its answersset forth in ParagraphsI through 47, above. 49. 49, Answering Paragraph this paragraphcalls for legal conclusionswhich require

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no answer,and to the extent an answeris required,Defendantdeniesgenerallyand specifrcally each and every allegation containedtherein. 50. Answering Paragraph this paragraphcalls for legal conclusionswhich require 50,

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no answer,and to the extent an answeris required,Defendantdeniesgenerallyand specif,rcally therein. eachand every allegationcontained

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51. was constructedafter Answering Paragraph51, Defendantadmits the Restaurant

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1970. Except as expresslyadmitted,this paragraphcalls for legal conclusionswhich require no

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answer,and to the extentan answeris required,Defendantdeniesgenerallyand specificallyeach

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and every allegation containedtherein.

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52. Answering Paragraph Defendantdeniesthat it has violated Health and Safety 52,

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answer is required, Defendant denies generally and specifically each and every allegation Code $$ 19955, 19959 or Govemment Code $ 4450, or any other law. Except as expressly denied,this paragraphcalls for legal conclusionswhich require no answer,and to the extent an

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containedtherein.

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53. Answering the Prayerfor Relief, Defendantdeniesthat it has violated any laws or

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that Plaintiff is entitled to any relief. Except as expresslydenied,this paragraphcalls for legal

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conclusionswhich require no answer,and to the extent an answeris required,Defendantdenies generallyand specif,rcally eachand every allegationcontainedtherein AFFIRMATIVE DEFENSES TO EACH AND EVERY CLAIM DEFENSE

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FIRST AFFIRMATIVE

The Complaint fails to statefacts sufficient to constitute a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE

The Complaint fails to statea claim upon which injunctive relief can be granted. THIRD AFFIRMATIVE DEFENSE

The Complaint fails to set forth a caseor controversy as required by Federal law. FOURTH AFFIRMATIVE DEFENSE

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Plaintiff lacks standingto assertthe claims therein as required by Federal law. FIFTH AFFIRMATIVE DEFENSE

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Plaintiff lacks standingto assert complaint and eachpurportedclaim for relief alleged the

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Plaintiff cannot show ittjury in fact as to such allegedviolations. SIXTH AFFIRMATIVE DEFENSE

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Plaintiff lacks standingto asserta separate claim againstDefendantpursuantto California Health and SafetyCode Section19955(a). SEVENTH AFFIRMATIVE DEFENSE

Plaintiffls claims arebarredby the applicablestatutes limitation. of EIGHTH AFFIRMATIVE DEFENSE

PlaintifÎs claims are barred by Plaintiffls failure to exhaust required administrative

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remedies.

NINTH AFFIRMATIVE DEFENSE Plaintiff s Complaint, each purported and claimfor relief alleged therein, barred the are by doctrine laches. of

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TENTH AFFIRMATIVE DEFENSE Plaintiffls Complaint,and eachpurportedclaim for relief allegedtherein,are barredby the doctrineof estoppel. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff s Complaint,and eachpurportedclaim for relief allegedtherein,are barredby the doctrineof uncleanhands. T\ryELFTH AFFIRMATIVE DEFENSE

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Plaintiffs Complaint, and each purported claim for relief alleged therein, are barred because Defendantfully performed all contractual,statutory,and other duties owed to Plaintiff underapplicablelaw. THIRTEENTH AFFIRMATIVE DEFENSE

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Plaintiffs Complaint, and each purported claim for relief alleged therein, are barred because, the extent that Plaintiff allegesDefendanthas obligationsunder Stateor Federallaw to to remove barriers at the Restaurant, alleged obligationsexceedthe scopeof the legislated the authority. FOURTEENTH AFFIRMATIVE DEFENSE

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Plaintiffs Complaint, and each purported claim for relief alleged therein, are barred becauselocal building authoritiesissuedappropriate permits and Certificatesof Occupancyfor the Restaurant, and Defendanthad a right to rely on the issuance the permits as establishing of compliancewith all applicablelaws, regulations, ordersand approvals. FIFTEENTH AFFIRMATIVE DEFENSE

Plaintiffls Complaint, and each purported claim for relief alleged therein, are barred because appropriate accessibility changes have been made and continue to be made at the Restaurantto the extent such changesare readily achievable. To the extent that any changeshave not been made that Plaintiff contends should have been made, those changesare not required under applicable law and are not readily achievable.

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SIXTEENTH AFFIRMATIVE

DEFENSE

Plaintiffs Complaint, and each purported claim for relief alleged therein, are barred because,to the extent that alterationshave not been made to the Restaurantthat Plaintiff contends should have been made, those changes were not required under applicable law, and any requirementto make those changeswould impose an undue burden. SEVENTEENTH AFFIRMATIVE DEFENSE

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Plaintiff has demanded modifications to the Restaurant that are either not readily achievable, technically infeasible, not required, would create an undue hardship on Defendant, would fundamentally alter the way Defendant provides its goods and services,or would qeate a risk to the health and safetv of Plaintiff and others. EIGHTEENTH AFFIRMATIVE DEFENSE

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Plaintiffs Complaint, and each purported claim for relief alleged therein, are barred because Defendant acted reasonably, honestly, in good faith, and without the intent to discriminate at all material times basedon all relevant facts and circumstancesknown by it at the time it acted. NINETEENTH AFFIRMATIVE DEFENSE

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Plaintiff is barred from obtaining relief under California Civil Code sections51, et seq. becausenothing therein may be construedto require any construction,alteration, repair, structural or otherwise, or modification of any sort whatsoever, to any existing establishment,facility, building, improvement, or any other structure. TWENTIETH AFFIRMATIVE DEFENSE

The claim for relief allegedin Plaintiffls Complaint under California Civil Code sections Defendant'sconductis applicablealike to all persons. 51, et seq.is barredbecause TWENTY.FIRST AFFIRMATIVE DEFENSE

Plaintiffls Complaint, and each purported claim for relief alleged therein, are barred because Plaintiff is not a memberof the classof individualsthat the Americanswith Disabilities Act or California's disability access statutes designed protect. are to

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T\ryENTY-SECOND AFFIRMATIVE

DEFENSE

Defendant alleges that the cost of some or all of the modifications to the Restaurantthat in Plaintiff seeksin this action is disproportionate terms of both cost and scopeto that of any alterationsmade within the statutoryperiod, if any. T\ilENTY.THIRD AFFIRMATIVE DEFENSE

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Plaintiffls Complaint, and each purported claim for relief alleged therein, are barred persons. because Plaintiff hasthe sameaccess the Restaurant non-disabled to as TWENTY-FOURTH AFFIRMATIVE DEFENSE

Defendant allegesthat the goods and servicesas provided at the Restaurantto the public, including Plaintiff, are accessibleto and usable by persons with disabilities as required under federaland statelaw, including without limitation, the Americanswith Disabilities AcT,42U.S.C. SectionsI2I0l, et seq.,the Unruh Act, California Civil Code sections51, et seq.,the Blind and Other Physically Disabled PersonsAct, California Civil Code sections54, et seq., Health and SafetyCode Part 5.5, and all other disability access statutes, rules and regulations. TWENTY.FIFTH AFFIRMATIVE DEFENSE

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Plaintiffls Complaint, and each purported claim for relief alleged therein, are barred because the Restaurant was maintained in a safe condition at all times, with all possible dangerous conditionseliminated,and Defendanthad no knowledgeof any dangerous conditions. TWENTY.SIXTH AFFIRMATIVE DEFENSE

Defendant has complied with all Federal and State statutesand regulations referencedin the Complaint and has not violatedany legal provisions. T\ryENTY.SEVENTH AFFIRMATIVE DEFENSE

The Complaint fails to allege with specificity any acts or omissions by Defendant which proximately causedor would causedamages,if any, to Plaintiff. T\ryENTY.EIGHTH AFFIRMATIVE DEFENSE

Plaintiff failed to properly mitigate the damagesPlaintiff seeks,and is therebyprecluded from recoveringthosedamages, which could have reasonably beenavoidedby the exercise due of care.
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T\ryENTY.NINTH AFFIRMATIVE

DEFENSE

Plaintiff voluntarily, with full knowledge of the matters referred to in the Complaint, assumed any and all risks, hazards and perils of the circumstancesreferred to in Plaintiffls by Complaintand thereforeassumed risk of any injuries or damages the sustained Plaintiff, if any at all. THIRTIETH AFFIRMATIVE DEFENSE

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The incident(s),if any, allegedby Plaintiff was causedby the negligenceand./or fault of

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other persons,corporationsor entities and non-partiesto this action, and as such Defendant's liability, if any, shouldbe reducedaccordingly. THIRTY.FIRST AFFIRMATIVE DEFENSE

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Plaintiff s injuries or damages, any, were contributedto and/or proximately causedby if the negligenceof the Plaintiff, in that Plaintiff failed to exerciseordinary care for his own safety underthe circumstances, therebybarringPlaintiff from any recovery. THIRTY.SECOND AFFIRMATIVE DEFENSE

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Plaintiff failed to allege with specificity any acts or omissions by Defendant which proximately causedor which would causedamages, any, to Plaintiff. if THIRTY.THIRD AFFIRMATIVE DEFENSE

Defendant presently has insufficient knowledge or insuffrcient information upon which to form a belief as to whether it may have additional, yet unasserted,affrrmative defenses. Defendant therefore reserves the right to assert additional affrrmative defenses in the event discovery indicates it would be appropriate. WHEREFORE, Defendantprays as follows: L 2. 3. 4. That Plaintiff take nothing by way of this action; That the Complaint and actionbe dismissed with prejudice; That Defendanthavejudgment againstPlaintiff; That Defendant recover its costs of suit herein incurred, includine reasonable

attorneys'fees;and

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LAKHA PROPERTIES DIEGO,LLC'S SAN ANSWER COMPLAINT TO Case 07CV2303DMS RBB No.

Case 3:07-cv-02303-DMS-RBB

Document 6

Filed 01/07/2008

Page 15 of 16

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just For suchotherandfurtherreliefasthe Courtdeems andproper. Respectfully submitted, BESTBEST& KRIEGERLLP

Dated:January 7,2008
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4 5 6 7 8 9 10 By: /s/ Alison D. Aloert ALISON D. ALPERT Attorneysfor Defendant LAKHA PROPERTIES SAN DIEGO. LLC

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LAKHA PROPERTIES DIEGO,LLC'S SAN ANSWER COMPLAINT TO No. Case 07CY2303DMS RBB

Case 3:07-cv-02303-DMS-RBB

Document 6

Filed 01/07/2008

Page 16 of 16

I 2

CERTIFICATE OF SERVICE The undersignedhereby certifies that all counselof record who are deemedto have

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consented electronicserviceare being servedwith a copy of this documentvia the court's CMto

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ECF systemper FederalRule of Civil Procedure 5(bX2XD). Any other counselof recordswill be

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servedby facsimiletransmission andlor first classmail this Jthdayof January,2008.

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LAKHA PROPERTIES DIEGO.LLC'S SAN ANSWER COMPLAINT TO Case 07CV2303DMS RBB No.