Free Answer to Complaint - District Court of California - California

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GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791) MICHAEL DRURY (SBN 177993) 3161 Michelson Drive, Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 Email: [email protected]; [email protected] Attorneys for Defendant, FOOD 4 LESS OF CALIFORNIA, INC. (erroneously sued as Ralphs Grocery Company dba Food 4 Less #780) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA A.J. Oliver, Plaintiff, vs. RALPH'S GROCERY COMPANY dba FOOD 4 LESS #780; CYPRESS CREEK CO., LP dba PTC INVESTMENTS COMPANY, Defendants. DEFENDANT FOOD 4 LESS OF CALIFORNIA, INC.'S ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL CASE NO. 07 CV 2301 JLS POR

ANSWER TO COMPLAINT
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COMES NOW, Defendant FOOD 4 LESS OF CALIFORNIA, INC. I. SUMMARY 1. In response to Paragraph 1 of the Complaint, Defendant is without sufficient

2 ("Defendant"), in answering the Complaint on file herein and alleges as follows: 3 4

5 knowledge or information to form a belief as to the truth of the allegations therein, and on 6 that basis denies each and every allegation in this paragraph. 7

2.

In response to Paragraph 2 of the Complaint, the allegations purport to

8 summarize the Complaint to which no response is required. To the extent a response is 9 deemed required, Defendant is without sufficient knowledge or information to form a 10 belief as to the truth of the allegations therein, and on that basis denies each and every 11 allegation in this paragraph. 12 13

II. JURISDICTION 3. In response to Paragraph 3 of the Complaint, Defendant admits only that

14 original jurisdiction in this Court would appear to be appropriate for the alleged 15 violations of the Americans With Disabilities Act (ADA) claims. 16

4. 5.

In response to Paragraph 4 of the Complaint, Defendant states that In response to Paragraph 5 of the Complaint, Defendant admits only that

17 supplemental jurisdiction in this Court may be appropriate pursuant to 28 U.S.C. § 1367. 18

19 plaintiff's allegations/claims appear to be authorized pursuant to 28 U.S.C. §§ 2201 and 20 2202. 21 22

III. VENUE 6. In response to Paragraph 6 of the Complaint, Defendant admits only that IV. PARTIES 7. 8. Responding to Paragraph 7 of the Complaint, Food 4 Less admits that it Responding to Paragraph 8 of the Complaint, Food 4 Less lacks the
1

23 venue in this Court would appear to be proper pursuant to 28 U.S.C. §§ 1391(b) and (c). 24 25

26 operates a store located at 660 Palomar Street in Chula Vista California. 27 28 information and knowledge necessary to form a belief as to Plaintiff's allegations, and on ANSWER TO COMPLAINT Case No. 07 CV-2301 JLS POR

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1 that basis denies all the allegations in this paragraph. 2 3

V. FACTS 9. 10. 11. 12. 13. 14. 15. Responding to Paragraph 9 of the Complaint, Defendant admits only that the Responding to Paragraph 10 of the Complaint, Defendant denies all the Responding to Paragraph 11 of the Complaint, Defendant denies all the Responding to Paragraph 12 of the Complaint, Defendant denies all the Responding to Paragraph 13 of the Complaint, Defendant denies all the Responding to Paragraph 14 of the Complaint, Defendant denies all the Responding to Paragraph 15 of the Complaint Defendant denies all the

4 store is a retail establishment and that it is open to the public. 5

6 allegations therein. 7

8 allegations therein. 9

10 allegations therein. 11

12 allegations therein. 13

14 allegations therein. 15

16 allegations therein and further states that the store is currently in the process of being 17 remodeled. 18 19

VI. FIRST CLAIM 16. 17. Responding to Paragraph 16 of the Complaint, Defendant realleges and Responding to Paragraph 17 of the Complaint, the Americans With

20 reincorporates herein paragraphs 1 through 15 of this Answer as set forth above. 21

22 Disabilities Act speaks for itself. Defendant denies Plaintiff's characterization of the Act 23 to the extent that such characterization is inconsistent with the provisions of the Act. 24

18. 19.

Responding to Paragraph 18 of the Complaint, Defendant denies all the Responding to Paragraph 19 of the Complaint, the Americans With

25 allegations therein. 26 27 Disabilities Act speaks for itself. Defendant denies Plaintiff's characterization of the Act 28 to the extent that such characterization is inconsistent with the provisions of the Act. ANSWER TO COMPLAINT 2 Case No. 07 CV-2301 JLS POR

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20.

Responding to Paragraph 20 of the Complaint, the Americans With

2 Disabilities Act speaks for itself. Defendant denies Plaintiff's characterization of the Act 3 to the extent that such characterization is inconsistent with the provisions of the Act. 4

21. 22. 23.

Responding to Paragraph 21 of the Complaint, Defendant denies all the Responding to Paragraph 22 of the Complaint, Defendant denies all the Responding to Paragraph 23 of the Complaint, Defendant lacks the

5 allegations therein. 6

7 allegations therein. 8

9 information and knowledge necessary to form a belief as to Plaintiff's allegations, and on 10 that basis denies the allegations. 11

24.

Responding to Paragraph 24 of the Complaint, the Americans With

12 Disabilities Act speaks for itself. Defendant denies Plaintiff's characterization of the Act 13 to the extent that such characterization is inconsistent with the provisions of the Act. 14

25. 26.

Responding to Paragraph 25 of the Complaint, Defendant denies all the Responding to Paragraph 26 of the Complaint, Defendant lacks the

15 allegations alleged therein. 16

17 information and knowledge necessary to form a belief as to Plaintiff's allegations, and on 18 that basis denies the allegations. 19

27.

Responding to Paragraph 27 of the Complaint, the Americans With

20 Disabilities Act speaks for itself. Defendant denies Plaintiff's characterization of the Act 21 to the extent that such characterization is inconsistent with the provisions of the Act. 22

28. 29.

Responding to Paragraph 28 of the Complaint, Defendant denies all of the Responding to Paragraph 29 of the Complaint, the Americans With

23 allegations therein. 24

25 Disabilities Act speaks for itself. Defendant denies Plaintiff's characterization of the Act 26 to the extent that such characterization is inconsistent with the provisions of the Act. 27

30.

Responding to Paragraph 30 of the Complaint, Defendant denies all of the
3

28 allegations therein. ANSWER TO COMPLAINT Case No. 07 CV-2301 JLS POR

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31.

Responding to Paragraph 31 of the Complaint, Defendant acknowledges that

2 Plaintiff "seeks" certain relief, but denies that he is entitled to any such relief and denies 3 the remaining allegations in this paragraph. 4

32.

Responding to Paragraph 32 of the Complaint, Defendant acknowledges that

5 Plaintiff "seeks" certain relief, but denies that he is entitled to any such relief and denies 6 the remaining allegations in this paragraph. 7 8 9

VII. SECOND CLAIM Disabled Persons Act 33. 34. Responding to Paragraph 33 of the Complaint, Defendant realleges and Responding to Paragraph 34 of the Complaint, Civil Code §§ 54, et seq.

10 reincorporates herein paragraphs 1 through 32 of this Answer as set forth above. 11

12 speak for themselves. Defendant denies Plaintiff's characterization of these sections to 13 the extent such characterization is inconsistent with the provisions of these sections. 14

35.

Responding to Paragraph 35 of the Complaint, Civil Code §§ 54, et seq.

15 speak for themselves. Defendant denies Plaintiff's characterization of these sections to 16 the extent such characterization is inconsistent with the provisions of these sections. 17

36.

Responding to Paragraph 36 of the Complaint, Civil Code §§ 54, et seq.

18 speak for themselves. Defendant denies Plaintiff's characterization of these sections to 19 the extent such characterization is inconsistent with the provisions of these sections. 20

37. 38.

Responding to Paragraph 37 of the Complaint, Defendant denies all of the Responding to Paragraph 38 of the Complaint, Defendant acknowledges that

21 allegations therein. 22

23 Plaintiff "seeks" certain relief, but denies that he is entitled to any such relief and denies 24 the remaining allegations in this paragraph. 25

39.

Responding to Paragraph 39 of the Complaint, Defendant acknowledges that

26 Plaintiff "seeks" certain relief, but denies that he is entitled to any such relief and denies 27 the remaining allegations in this paragraph. 28 ANSWER TO COMPLAINT 4 Case No. 07 CV-2301 JLS POR

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VIII. THIRD CLAIM Unruh Civil Rights Act 40. 41. Responding to Paragraph 40 of the Complaint, Defendant realleges and Responding to Paragraph 41 of the Complaint, the Unruh Civil Rights Act

4 reincorporates herein paragraphs 1 through 39 of this Answer as set forth above. 5

6 speaks for itself. Defendant denies Plaintiff's characterization of the Act to the extent 7 such characterization is inconsistent with the provisions of the Act. 8

42.

Responding to Paragraph 42 of the Complaint, the Unruh Civil Rights Act

9 speaks for itself. Defendant denies Plaintiff's characterization of the Act to the extent 10 such characterization is inconsistent with the provisions of the Act. 11

43.

Responding to Paragraph 43 of the Complaint, the Unruh Civil Rights Act

12 speaks for itself. Defendant denies Plaintiff's characterization of the Act to the extent 13 such characterization is inconsistent with the provisions of the Act. 14

44. 45. 46. 47.

Responding to Paragraph 44 of the Complaint, Defendant denies all the Responding to Paragraph 45 of the Complaint, Defendant denies all the Responding to Paragraph 46 of the Complaint, Defendant denies all the Responding to Paragraph 47 of the Complaint, Defendant acknowledges that

15 allegations therein. 16

17 allegations therein. 18

19 allegations therein. 20

21 Plaintiff "seeks" certain relief, but denies that he is entitled to any such relief and denies 22 the remaining allegations in this paragraph. 23 24 25

IX. FOURTH CLAIM Denial of Full and Equal Access to Public Facilities 48. 49. Responding to Paragraph 48 of the Complaint, Defendant realleges and Responding to Paragraph 49 of the Complaint, Health & Safety Code §§
5

26 reincorporates herein paragraphs 1 through 47 of this Answer as set forth above. 27 28 19955, et seq. speak for themselves. Defendant denies Plaintiff's characterization of ANSWER TO COMPLAINT Case No. 07 CV-2301 JLS POR

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1 these sections to the extent such characterization is inconsistent with the provisions of 2 these sections. 3

50.

Responding to Paragraph 50 of the Complaint, Health & Safety Code §§

4 19955, et seq. speak for themselves. Defendant denies Plaintiff's characterization of 5 these sections to the extent such characterization is inconsistent with the provisions of 6 these sections. 7

51.

Responding to Paragraph 51 of the Complaint, Defendant admits only that

8 the subject store is a "public accommodation," but denies all remaining allegations 9 contained in this paragraph. 10

52.

Responding to Paragraph 52 of the Complaint, Defendant acknowledges that

11 Plaintiff "seeks" certain relief, but denies that he is entitled to any such relief and denies 12 the remaining allegations in this paragraph. 13 14 15

AFFIRMATIVE DEFENSES For a further answer to Plaintiff's Complaint and by way of affirmative defenses, FIRST AFFIRMATIVE DEFENSE As a First Affirmative Defense to the Complaint and each cause of action alleged

16 Defendant alleges as follows: 17 18

19 therein, it is alleged that the Complaint and said causes of action fail to state a claim upon 20 which relief may be granted. 21 22

SECOND AFFIRMATIVE DEFENSE As a Second Affirmative Defense to the Complaint and each cause of action

23 alleged therein, it is alleged that plaintiff failed, subsequent to the occurrence described 24 in the Complaint, to properly mitigate his damages, if any, and thereby is precluded from 25 recovering those damages which could have reasonably been avoided by the exercise of 26 due care on his part. 27 28 ANSWER TO COMPLAINT 6 Case No. 07 CV-2301 JLS POR

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THIRD AFFIRMATIVE DEFENSE As a Third Affirmative Defense to the Complaint and each cause of action alleged

3 therein, it is alleged that plaintiff voluntarily and with full knowledge of the matters 4 referred to in the Complaint assumed any and all of the risk, hazards, and perils of the 5 circumstances referred to in the Complaint and, therefore, assumed the risk of any 6 injuries or damages sustained by said plaintiff, if any at all. 7 8

FOURTH AFFIRMATIVE DEFENSE As a Fourth Affirmative Defense to the Complaint and each cause of action alleged

9 therein, it is alleged that this incident(s) was caused by the negligence and/or fault of 10 other persons, corporations, and entities, whether named or not named in the Complaint, 11 and that Defendant's liability, if any, should be reduced accordingly. 12 13

FIFTH AFFIRMATIVE DEFENSE As a Fifth Affirmative Defense to the Complaint and each cause of action alleged

14 therein, it is alleged that said Complaint is barred by the Statute of Limitations; including 15 but not limited to, §§ 335.1, 337.1, 338, 339, 340, and 343 of the California Code of Civil 16 Procedure. 17 18

SIXTH AFFIRMATIVE DEFENSE As a Sixth Affirmative Defense to the Complaint and each cause of action alleged

19 therein, it is alleged that if any injuries or damages were sustained by plaintiff, those 20 injuries and damages were proximately caused and contributed to by plaintiff himself. 21 Any recovery to which plaintiff is entitled, if any, should be reduced by the amount 22 proportionate to the amount by which plaintiff's fault contributed to the damages plaintiff 23 alleges he sustained. 24 25

SEVENTH AFFIRMATIVE DEFENSE As a Seventh Affirmative Defense to the Complaint and each cause of action

26 alleged therein, it is alleged that in the event Defendant prevails in this action, Defendant 27 shall be entitled to recover reasonable attorneys' fees for the defense of this matter under 28 the provisions of the ADA and California Civil Code Sections 51, 52 and 54. ANSWER TO COMPLAINT 7 Case No. 07 CV-2301 JLS POR

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EIGHTH AFFIRMATIVE DEFENSE As an Eighth Affirmative Defense to the Complaint and each cause of action

3 alleged therein, it is alleged that Defendant's conduct was privileged because it was 4 undertaken pursuant to the terms of the applicable laws, regulations, orders, and 5 approvals relating to building construction and/or fire safety and public safety. 6 7

NINTH AFFIRMATIVE DEFENSE As a Ninth Affirmative Defense, it is alleged that plaintiff's Complaint and each

8 cause of action alleged therein, is barred by reason of the issuance by local building 9 authorities of appropriate building permits and Certificates of Occupancy for said 10 facilities. 11 12

TENTH AFFIRMATIVE DEFENSE As a Tenth Affirmative Defense, it is alleged that any and all injuries or damages,

13 if any, suffered by plaintiff were caused, in whole or in part, by other persons or entities 14 for whose acts or omissions Defendant has no responsibility. 15 16

ELEVENTH AFFIRMATIVE DEFENSE As an Eleventh Affirmative Defense, it is alleged that the Complaint and each

17 cause of action alleged therein, is barred by reason of Defendant's good faith reliance 18 upon the advice of architects with respect to said facilities. 19 20

TWELFTH AFFIRMATIVE DEFENSE As a Twelfth Affirmative Defense, it is alleged that the Complaint and each cause

21 of action alleged therein is barred because the relief demanded in plaintiff's complaint 22 would, if granted result in a fundamental alteration of Defendant's services. 23 24

THIRTEENTH AFFIRMATIVE DEFENSE As a Thirteenth Affirmative Defense to the Complaint and each cause of action

25 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, because 26 of their failure to name indispensable parties pursuant to Fed. R. Civ. P., Rule 19. 27 28 ANSWER TO COMPLAINT 8 Case No. 07 CV-2301 JLS POR

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FOURTEENTH AFFIRMATIVE DEFENSE As a Fourteenth Affirmative Defense to the Complaint and each cause of action

3 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, by the 4 equitable doctrine of waiver. 5 6

FIFTEENTH AFFIRMATIVE DEFENSE As a Fifteenth Affirmative Defense to the Complaint and each cause of action

7 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, by the 8 doctrine of equitable estoppel. 9 10

SIXTEENTH AFFIRMATIVE DEFENSE As a Sixteenth Affirmative Defense to the Complaint and each cause of action

11 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, by the 12 doctrine of judicial estoppel. 13 14

SEVENTEENTH AFFIRMATIVE DEFENSE As a Seventeenth Affirmative Defense to the Complaint and each cause of action

15 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, by the 16 doctrine of laches. 17 18

EIGHTEENTH AFFIRMATIVE DEFENSE As an Eighteenth Affirmative Defense to the Complaint and each cause of action

19 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, because 20 Defendant was justified in acting as it did, in that Defendant acted in good faith and in 21 the lawful exercise of their legitimate rights in connection with all matters alleged in the 22 Complaint. 23 24

NINETEENTH AFFIRMATIVE DEFENSE As a Nineteenth Affirmative Defense to the Complaint and each cause of action

25 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, because 26 the laws that plaintiff seeks to enforce are unconstitutionally vague and/or 27 unconstitutionally overbroad 28 ANSWER TO COMPLAINT 9 Case No. 07 CV-2301 JLS POR

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TWENTIETH AFFIRMATIVE DEFENSE As a Twentieth Affirmative Defense to the Complaint and each cause of action

3 alleged therein, it is alleged that plaintiff's claims are barred, in whole or in part, because 4 Defendant relied in good faith on the law as it existed at the time of the construction of 5 the facilities at issue. 6 7

TWENTY FIRST AFFIRMATIVE DEFENSE As a Twenty First Affirmative Defense to the Complaint and each cause of action

8 alleged therein, it is alleged that Plaintiff's claims are barred in whole or in part by the 9 doctrine of unclean hands. 10 11

TWENTY SECOND AFFIRMATIVE DEFENSE As a Twenty Second Affirmative Defense to the Complaint and each cause of

12 action, it is alleged that plaintiff's claims are barred as a matter of law because plaintiff 13 lacks standing to seek the relief he requests. 14 15

TWENTY THIRD AFFIRMATIVE DEFENSE As a further, separate and distinct Twenty Third Affirmative Defense to the

16 Complaint and each cause of action alleged therein, it is alleged that the features 17 identified in the Complaint substantially comply with the applicable law and are within 18 "dimensional tolerances." 19 20

TWENTY FOURTH AFFIRMATIVE DEFENSE As a Twenty Fourth Affirmative Defense to the Complaint and each cause of

21 action alleged therein, it is alleged that plaintiff's claims are barred as a matter of law 22 because plaintiff failed to provide any notice to Defendant regarding the alleged 23 accessibility issues prior to filing this lawsuit. 24 25

TWENTY FIFTH AFFIRMATIVE DEFENSE As a Twenty Fifth Affirmative Defense to the Complaint and each cause of action

26 alleged therein, it is alleged that plaintiffs' claims for damages under the Unruh Act are 27 barred as a matter of law because plaintiff cannot meet his burden of establishing 28 intentional conduct on the part of Defendant. ANSWER TO COMPLAINT
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TWENTY SIXTH AFFIRMATIVE DEFENSE As a Twenty Sixth Affirmative Defense to the Complaint and each cause of action

3 alleged therein, it is alleged that any allegedly wrongful acts or omissions performed by 4 Defendant or its agents, if there were any, do not subject Defendant to liability because 5 the removal of alleged architectural barriers was not readily achievable. 6 7

TWENTY SEVENTH AFFIRMATIVE DEFENSE As a Twenty Seventh Affirmative Defense to the Complaint and each cause of

8 action alleged therein, Defendant reserves the right to amend this Answer to assert 9 additional affirmative defenses as such additional defenses are discovered during the 10 course of this case. 11 12

TWENTY EIGHTH AFFIRMATIVE DEFENSE As a Twenty Eighth Affirmative Defense to the Complaint and each cause of

13 action alleged therein, pursuant to 42 U.S.C. § 12182(b)(3), Defendant is not required to 14 permit Plaintiff to participate in or benefit from the goods, services, facilities, privileges, 15 advantages and/or accommodations where Plaintiff poses a direct threat to the health and 16 safety of Plaintiff and others. 17 18 19 20 21 22 23 DATED: January 14, 2008 24 25 26 27 28 ANSWER TO COMPLAINT
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WHEREFORE, Defendant prays: 1. 2. 3. 4. That the Complaint be dismissed with prejudice; That Plaintiff take nothing by way of his Complaint; That Defendant recover its cost of suit, including attorneys' fees; and, For such other and further relief as the Court deems just and equitable. GREENBERG TRAURIG, LLP By /s/ Michael Drury Gregory F. Hurley Michael Drury Attorneys for Defendant FOOD 4 LESS OF CALIFORNIA, INC.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER TO COMPLAINT
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DEMAND FOR JURY TRIAL Defendant hereby demands a trial by jury.

DATED: January 14, 2008

GREENBERG TRAURIG, LLP By /s/ Michael Drury Gregory F. Hurley Michael Drury Attorneys for Defendant FOOD 4 LESS OF CALIFORNIA, INC.

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PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

I am employed in the aforesaid county, State of California; I am over the age of 18 years and not a party to the within action; my business address is 3161 Michelson Drive, 4 Suite 1000, Irvine, California 92612.
3 5

On the below date, I served: DEFENDANT RALPH'S GROCERY COMPANY'S ANSWER TO COMPLAINT on the interested parties in this action by 6 placing the true copy thereof, enclosed in a sealed envelope, postage prepaid, addressed 7 as follows:
8 Lynn Hubbard, III 10 Chico, CA 95926 9 12 Williamsburg Lane

Law Offices of Lynn Hubbard

Telephone: (530) 895-3252 11 Fax: (530) 894-8244
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 1 Case No. 07 CV-2301 JLS POR /s/ Michael Drury Signature

(BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM) In accordance with the electronic filing procedures of this Court, service has been effected on the aforesaid party(s) above, whose counsel of record is a registered participant of CM/ECF, via electronic service through the CM/ECF system. (FEDERAL) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed at the office of a member of the bar of this Court and at whose direction the service was made. Executed on January 14, 2008, at Irvine, California.

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