Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02229-WQH-WMC

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John P. McCormick, Esq., SBN 38064 Konrad M. Rasmussen, Esq., SBN 157030 McCORMICK & MITCHELL 8885 Rio San Diego Drive, Suite 212 San Diego, CA 92108 Tel: (619) 235-8444 Fax: (619) 294-8447 Attorneys for Defendants CITY OF HOLTVILLE, OFFICER BARRY FORNEY and OFFICER THOMAS IP UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) CASE NO: 07 CV 2229 WQH ) (WMC) ) ) ANSWER TO COMPLAINT Plaintiff, ) ) ) v. ) ) ) CITY OF HOLTVILLE, a Public ) Entity; OFFICER BARRY FORNEY, an ) Individual; OFFICER THOMAS IP, an ) Individual; BLOSSOM VALLEY INN, ) business form unknown; TINA ) TOTEN, an Individual; NURSE DOE ) #21, an Individual; and DOES 1 ) through 100, Inclusive, ) ) Defendants. ) Defendant CITY OF HOLTVILLE, OFFICER BARRY FORNEY and OFFICER WILLIAM A. HOGUE, by and through his Guardian ad Litem CASSI DePAOLI,

21 THOMAS IP respond to plaintiff's unverified complaint for damages 22 as follows: 23 GENERAL ALLEGATIONS 24 1. 25 1 of the complaint. 26 2. 27 2 of the complaint. 28
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Defendants admit the allegations contained in paragraph

Defendants admit the allegations contained in paragraph

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3.

Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 3 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 3 of the complaint. 4. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 4 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 4 of the complaint. 5. Defendants admit the allegations contained in paragraph

5 of the complaint. 6. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 6 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 6 of the complaint. 7. Defendants generally and specifically deny the

allegations contained in paragraph 7 of the complaint. 8. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 8 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 8 of the complaint. 9. Defendants generally and specifically deny the

allegations contained in paragraph 9 of the complaint. 10. Defendants generally and specifically deny the

allegations contained in paragraph 10 of the complaint. 11. Defendants generally and specifically deny the

allegations contained in paragraph 11 of the complaint. 12. Defendants generally and specifically deny the

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allegations contained in paragraph 12 of the complaint. FACTUAL ALLEGATIONS 13. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 13 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 13 of the complaint. 14. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 14 of the complaint and on that basis generally and specifically deny each and every allegation contained in paragraph 14 of the complaint 15. Defendants generally and specifically deny the

allegations contained in paragraph 15 of the complaint. 16. These answering defendants admit on information and

belief that Officer Forney heard a popping noise and that these answering defendants appropriately summoned medical care as

reasonably required. denied. 17. Defendants

All allegations not expressly admitted are

generally

and

specifically

deny

the

allegations contained in paragraph 17 of the complaint. 18. Defendants generally and specifically deny the

allegations contained in paragraph 18 of the complaint. 19. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 19 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 19 of the complaint. 20. Defendants generally and specifically deny the

allegations contained in paragraph 20 of the complaint. ///
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FIRST CAUSE OF ACTION 42 U.S.C. §1983 Constitutional Violations: Unreasonable Search and Seizure and Excessive Force As Against Defendants CITY OF HOLTVILLE, [OFFICER DOE] FORNEY, [OFFICER DOE] IP, AND DOES 1 through 50 21. Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 20 above, as though fully set forth herein. 22. Defendants generally and specifically deny the

allegations contained in paragraph 22 of the complaint. 23. Defendants generally and specifically deny the

allegations contained in paragraph 23 of the complaint. 24. Defendants generally and specifically deny the

allegations contained in paragraph 24 of the complaint. 25. Defendants generally and specifically deny the

allegations contained in paragraph 25 of the complaint. 26. Defendants generally and specifically deny the

allegations contained in paragraph 26 of the complaint. 27. Defendants generally and specifically deny the

allegations contained in paragraph 27 of the complaint. 28. Defendants generally and specifically deny the

allegations contained in paragraph 28 of the complaint. 29. Defendants generally and specifically deny the

allegations contained in paragraph 29 of the complaint. 30. Defendants generally and specifically deny the

allegations contained in paragraph 30 of the complaint. /// /// /// ///
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SECOND CAUSE OF ACTION 42 U.S.C. §1983 Constitutional Violations: Unlawful Policies, Customs or Habits As Against Defendants CITY OF HOLTVILLE, OFFICERS FORNEY and IP And DOES 1 through 50 Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 30 above, as though fully set forth herein. 32. Defendants generally and specifically deny the

allegations contained in paragraph 32 of the complaint. 33. Defendants generally and specifically deny the

allegations contained in paragraph 33 of the complaint. 34. Defendants generally and specifically deny the

allegations contained in paragraph 34 of the complaint. THIRD CAUSE OF ACTION False Arrest As Against Defendants CITY OF HOLTVILLE, [OFFICER DOE] FORNEY, [OFFICER DOE] IP, And DOES 1 through 50 Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 34 above, as though fully set forth herein. 20 36. 21 allegations contained in paragraph 36 of the complaint. 22 37. 23 allegations contained in paragraph 37 of the complaint. 24 38. 25 allegations contained in paragraph 38 of the complaint. 26 /// 27 /// 28
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Defendants

generally

and

specifically

deny

the

Defendants

generally

and

specifically

deny

the

Defendants

generally

and

specifically

deny

the

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FOURTH CAUSE OF ACTION Assault & Battery as Against Defendants CITY OF HOLTVILLE, [OFFICER DOE] FORNEY, [OFFICER DOE] IP, And DOES 1 through 50 Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 38 above, as though fully set forth herein. 40. Defendants generally and specifically deny the

allegations contained in paragraph 40 41. Defendants generally and

of the complaint. specifically deny the

allegations contained in paragraph 41 of the complaint. 42. Defendants generally and specifically deny the

allegations contained in paragraph 42 of the complaint. FIFTH CAUSE OF ACTION Breach of Written Contract As Against Defendants BLOSSOM VALLEY INN and DOES 51 through 100, Inclusive Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 42 above, as though fully set forth herein. 44. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 44 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 44 of the complaint. 45. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 45 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 45 of the complaint. 46. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 46 of the complaint and
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on that basis defendants generally and specifically deny each and every allegation contained in paragraph 46 of the complaint. 47. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 47 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 47 of the complaint. 48. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 48 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 48 of the complaint. SIXTH CAUSE OF ACTION Breach of Implied Covenant of Good Faith and Fair dealing As Against Defendants BLOSSOM VALLEY INN and DOES 51 through 100, Inclusive 49. Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 48, above as though fully set forth herein. 50. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 50 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 50 of the complaint. 51. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 51 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 51 of the complaint. 52. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 52 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 52 of the complaint.
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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 59. 53. SEVENTH CAUSE OF ACTION General Negligence As Against Defendants CITY OF HOLTVILLE, [OFFICER DOE] FORNEY, [OFFICER DOE] IP, And DOES 1 through 50 Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 52, above as though fully set forth herein. 54. These answering defendants admit they use appropriate

skill and care in the performance of their duties. All allegations not expressly admitted are denied. 55. Defendants generally and specifically deny each and every

allegation contained in paragraph 55 of the complaint. 56. Defendants generally and specifically deny each and every

allegation contained in paragraph 56 of the complaint. 57. Defendants generally and specifically deny each and every

allegation contained in paragraph 57 of the complaint. 58. Defendants generally and specifically deny each and every

allegation contained in paragraph 58 of the complaint. EIGHTH CAUSE OF ACTION General Negligence Defendants BLOSSOM VALLEY INN, TINA TOTEN, [NURSE DOE #1] and DOES 51 through 100, Inclusive Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 58, above as though fully set forth herein. 60. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 60 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 60 of the complaint.
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61.

Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 61 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 61 of the complaint. 62. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 62 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 62 of the complaint. 63. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 63 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 63 of the complaint. 64. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 64 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 64 of the complaint. NINTH CAUSE OF ACTION Violation of the Elder Abuse and Dependent Adult Civil Protection Act As Against Defendants CITY OF HOLTVILLE, [OFFICER DOE] FORNEY, [OFFICER DOE] IP, AND DOES 1 through 50; BLOSSOM VALLEY INN, TINA TOTEN, [NURSE DOE #1] and DOES 51 through 100 65. Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 64, above as though fully set forth herein. 66. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 66 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 66 of the complaint. 67. Defendants lack sufficient information to either admit or
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deny the allegations contained in paragraph 67 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 67 of the complaint. 68. Defendants generally and specifically deny each and every

allegation contained in paragraph 68 of the complaint. 69. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 69 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 69 of the complaint. 70. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 70 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 70 of the complaint. 71. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 71 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 71 of the complaint. 72. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 72 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 72 of the complaint. 73. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 73 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 73 of the complaint. 74. Defendants generally and specifically deny each and every

allegation contained in paragraph 74 of the complaint. ///
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TENTH CAUSE OF ACTION Fraudulent Misrepresentation As Against Defendant BLOSSOM VALLEY INN and DOES 51 through 100, Inclusive Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 74, above as though fully set forth herein. 76. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 76 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 76 of the complaint. 77. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 77 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 77 of the complaint. 78. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 78 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 78 of the complaint. 79. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 79 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 79 of the complaint. 80. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 80 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 80 of the complaint. 81. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 81 of the complaint and
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on that basis defendants generally and specifically deny each and every allegation contained in paragraph 81 of the complaint. 82. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 82 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 82 of the complaint. 83. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 83 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 83 of the complaint. 84. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 84 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 84 of the complaint. 85. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 85 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 85 of the complaint. 86. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 86 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 86 of the complaint. ELEVENTH CAUSE OF ACTION Negligent Misrepresentation As Against Defendant BLOSSOM VALLEY INN and DOES 51 through 100, Inclusive 87. Defendants incorporate by reference their responses to

the allegations contained in paragraphs 1 through 86, above as though fully set forth herein.
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88.

Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 88 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 88 of the complaint. 89. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 89 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 89 of the complaint. 90. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 90 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 90 of the complaint. 91. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 91 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 91 of the complaint. 92. Defendants lack sufficient information to either admit or

deny the allegations contained in paragraph 92 of the complaint and on that basis defendants generally and specifically deny each and every allegation contained in paragraph 92 of the complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE As a First Affirmative Defense defendants assert the

complaint, and every purported cause of action therein, fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE As a Second Affirmative Defense defendants assert that

Plaintiff has waived any and all claims he may have or have had
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against Defendants. THIRD AFFIRMATIVE DEFENSE As a Third Affirmative Defense Defendants assert that

plaintiff's claims are barred by the statute of limitations. FOURTH AFFIRMATIVE DEFENSE As a Fourth claims Affirmative are barred Defense by the Defendants Doctrine assert of that

plaintiff's

Qualified

Governmental Immunity. FIFTH AFFIRMATIVE DEFENSE As a Fifth Affirmative Defense defendants assert that

defendant's officers had reasonable cause to detain and arrest plaintiff. SIXTH AFFIRMATIVE DEFENSE As a Sixth Affirmative Defense plaintiff failed to comply with the claim provisions of the California Government Tort Claims Act. SEVENTH AFFIRMATIVE DEFENSE As a Seventh Affirmative Defense defendants assert that

plaintiff's claims are barred by California Government Code §820.2 which provides immunity for discretionary acts of public employees. EIGHT AFFIRMATIVE DEFENSE As an Eight claims Affirmative are barred Defense by defendants assert that Code from

plaintiff's §815.2(b)

California a

Government entity

which

bars

liability

against

public

injuries arising from acts or omission of an employee of the public entity where the employee is immune from liability. NINTH AFFIRMATIVE DEFENSE As a Ninth Affirmative Defense defendants assert that

plaintiff has engaged in conduct with respect to the activities
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which are the subject of the complaint and by reason of said activities and conduct, is estopped from asserting any claim of damages or seeking any other relief against defendants. TENTH AFFIRMATIVE DEFENSE As a Tenth Affirmative Defense defendants assert that

plaintiff fails to state a cause of action against the City of Holtville pursuant to Monell v. Department of Social Services, 436 U.S. 658. ELEVENTH AFFIRMATIVE DEFENSE As a Eleventh Affirmative Defense defendants assert that at all times alleged in the Complaint the City of Holtville and its employees acted in good faith, without malice and within the scope of the duties of police officers of the defendant public entity. TWELFTH AFFIRMATIVE DEFENSE As a Twelfth Affirmative Defense defendants assert any damages incurred by plaintiff were directly and proximately caused or contributed to by plaintiff's own actions. THIRTEENTH AFFIRMATIVE DEFENSE As a Thirteenth Affirmative Defense defendants allege that, if they are held liable for damages to plaintiff or any other party in any amount, that defendants are only severally liable in an amount equal to their apportioned share of liability for any damage suffered by the plaintiff or any other party. The fault, if any,

of defendants should be compared with the fault of other defendants or third parties and damages, if any, should be apportioned among the defendants or other parties in direct relation to each

defendant's or party's comparative fault.

Defendants should be

obligated to pay only such damages, if any, which are directly
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attributable to their percentage of comparative fault.

To require

defendants to pay any more than their percentage of comparative fault violates the equal protection and due process clauses of the Constitution of the United States and the Constitution of the State of California. FOURTEENTH AFFIRMATIVE DEFENSE As a Fourteenth Affirmative Defense defendants assert that by virtue of plaintiff's unlawful, immoral, careless, negligent and other wrongful conduct, plaintiff should be barred from recovering against Defendants by the equitable doctrine of unclean hands. FIFTEENTH AFFIRMATIVE DEFENSE As a Fifteenth Affirmative Defense plaintiff herein is barred from any recovery for any loss, injury or damage resulting from his detention, arrest or imprisonment, as alleged in the complaint, by each herein answering defendant in that, at all material times and places alleged in the complaint, each herein answering defendant or its employee police officers had probable cause to either arrest the plaintiff for a crime or crimes and/or to use reasonable force to remove him from the place alleged, and as peace officers of the State of California were authorized to so detain, arrest and imprison the plaintiff and/or to use reasonable force to do so. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff herein is barred from any recovery from each herein answering defendant for any loss, injury or damage resulting from any force either actually employed or about which defendant warned, in that any and all such force was legal, proper, justified, and necessary both for the self defense and protection of each herein answering defendant or its employees and also in order to overcome
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plaintiff's unlawful, violent and dangerous attempts to resist a lawful detention and/or arrest. SEVENTEENTH AFFIRMATIVE DEFENSE The City of Holtville is not liable for punitive damages or other damages imposed primarily for the sake of example and by way of punishing the defendants. Government Code §818.

WHEREFORE, Defendants pray for judgment as follows: (1) (2) (3) (4) That plaintiff take nothing by way of his complaint; For costs of suit; For attorney's fees and other expenses; For such other and further relief as the court deems just

and proper.

McCORMICK & MITCHELL

s/Konrad M. Rasmussen DATED: By: John P. McCormick Konrad M. Rasmussen Attorneys for Defendants CITY OF HOLTVILLE, OFFICER BARRY FORNEY and OFFICER THOMAS IP

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