Free Answer to Amended Complaint - District Court of California - California

Case 3:07-cv-02129-BTM-AJB

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MAYER BROWN LLP JOHN NADOLENCO (SBN 181128) [email protected] BRONWYN F. POLLOCK (SBN 210912) [email protected] 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 Attorneys For Defendant COURTYARD HOLDINGS, LP UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA OUTERBRIDGE ACCESS ASSOCIATION, SUING ON BEHALF OF DIANE CROSS; and DIANE CROSS, An Individual, Plaintiffs, v. MARIE CALLENDER'S PIE SHOPS, INC. d.b.a. MARIE CALLENDER'S #254; COURTYARD HOLDINGS, LP; AND DOES 1 THROUGH 10, Inclusive, Defendants. CASE NO. 07 CV 2129 BTM (AJB) ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT Honorable Barry T. Moskowitz

ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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Case 3:07-cv-02129-BTM-AJB

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Defendant Courtyard Holdings, LP ("Courtyard") hereby answers the First Amended Class Action Complaint (the "Complaint") of Plaintiffs Outerbridge Access Association, Suing on Behalf of Diane Cross, and Diane Cross (jointly, "Plaintiffs") as follows: PRELIMINARY STATEMENT The Complaint contains allegations concerning parties other than Courtyard. Unless otherwise specifically indicated, Courtyard denies knowledge or information sufficient to form a belief as to the truth of any of the allegations concerning the conduct or knowledge of any party other than the Courtyard. ANSWER INTRODUCTION1 1. Courtyard admits that Plaintiffs purport to sue on behalf of

Outerbridge Access Association and its members and Diane Cross. Courtyard denies that it has discriminated against individuals with disabilities. Courtyard is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 1 of the Complaint, and on that basis denies those allegations. JURISDICTION AND VENUE 2. The allegations contained in Paragraph 2 of the Complaint are legal

conclusions to which a response is not required. To the extent Paragraph 2 of the Complaint alleges facts, Courtyard denies the allegations. SUPPLEMENTAL JURISDICTION 3. The allegations contained in Paragraph 3 of the Complaint are legal

conclusions to which a response is not required. To the extent Paragraph 3 of the Complaint alleges facts, Courtyard denies the allegations.
1

The headings and subheadings contained herein are taken verbatim from Plaintiffs' Complaint. To the extent such headings constitute allegations of wrongdoing against Courtyard, they are denied. -2ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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NAMED DEFENDANTS AND NAMED PLAINTIFF 4. Courtyard admits that it is the owner and lessor of certain real

property located at 11122 and 11134 Rancho Carmel Drive, San Diego, California 92128 and that its tenants at the property include Marie Callender Pie Shops, Inc. and Pacific Bagels, LLC. Courtyard is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 4 of the Complaint, and on that basis denies the remaining allegations contained in Paragraph 4 of the Complaint. 5. Courtyard admits that Plaintiffs' Complaint states that it uses the

words Plaintiff, Plaintiffs, Plaintiff's Member and Plaintiff's Members to refer to Outerbridge Access Association, suing on behalf of Diane Cross and Diane Cross, an Individual. 6. Courtyard denies that it is or was a subsidiary, parent entity,

employer, employee, or agent of Marie Callender's Pie Shops, Inc. d.b.a. Marie Callender's #254, Pacific Bagels, LLC d.b.a. Brueggars Bagels, or any other defendant. Courtyard is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 6 of the Complaint, and on that basis denies those allegations. 7. Courtyard admits that it is the owner and lessor of certain real

property located at 11122 and 11134 Rancho Carmel Drive, San Diego, California 92128 and that its tenants at the property include Marie Callender Pie Shops, Inc. and Pacific Bagels, LLC. Courtyard is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 7 of the Complaint, and on that basis denies the remaining allegations contained in Paragraph 7 of the Complaint.

-3ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)

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STATEWIDE CLASS ACTION ALLEGATIONS UNDER FED. R. CIV. P. 23(b) AS TO ALL DEFENDANTS 8. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 8 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 8 of the Complaint are legal conclusions, no response is required. 9. Courtyard admits that it is the owner and lessor of certain real

property located at 11122 and 11134 Rancho Carmel Drive, San Diego, California 92128 and that its tenants at the property include Marie Callender Pie Shops, Inc. and Pacific Bagels, LLC. Courtyard is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 9 of the Complaint, and on that basis denies those allegations. 10. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 10 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 10 of the Complaint are legal conclusions, no response is required. 11. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 11 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 11 of the Complaint are legal conclusions, no response is required. CONCISE SET OF FACTS 12. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 12 of the Complaint, and on that basis denies those allegations. 13. Courtyard admits that it is the owner and lessor of certain real

property located at 11122 and 11134 Rancho Carmel Drive, San Diego, California 92128 and that its tenants at the property include Marie Callender Pie Shops, Inc.
-4ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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and Pacific Bagels, LLC. Courtyard is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 13 of the Complaint, and on that basis denies those allegations. 14. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 14 of the Complaint, and on that basis denies those allegations. 15. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 15 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 15 of the Complaint are legal conclusions, no response is required. 16. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 16 of the Complaint, and on that basis denies those allegations. 17. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 17 of the Complaint, and on that basis denies those allegations. 18. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 18 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 18 of the Complaint are legal conclusions, no response is required. 19. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 19 of the Complaint, and on that basis denies those allegations. 20. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 20 of the Complaint, and on that basis denies those allegations.

-5ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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21.

Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 21 of the Complaint, and on that basis denies those allegations. 22. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 22 of the Complaint, and on that basis denies those allegations. 23. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 23 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 23 of the Complaint are legal conclusions, no response is required. 24. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 24 of the Complaint, and on that basis denies those allegations. 25. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 25 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 25 of the Complaint are legal conclusions, no response is required. 26. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 26 of the Complaint, and on that basis denies those allegations. NOTICE 27. The allegations contained in Paragraph 27 of the Complaint are legal

conclusions to which a response is not required. To the extent Paragraph 27 of the Complaint alleges facts, Courtyard denies the allegations.

-6ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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WHAT CLAIMS ARE PLAINTIFFS ALLEGING AGAINST EACH NAMED DEFENDANT 28. No allegations are made in Paragraph 28 of the Complaint; to the

extent that allegations were implied, Courtyard denies all allegations. 29. Complaint. DISCRIMINATORY PRACTICES IN PUBLIC ACCOMMODATIONS FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS ­ Claims Under the Americans with Disabilities Act of 1990 CLAIM I AGAINST ALL DEFENDANTS: Denial Of Full And Equal Access 30. Courtyard is without sufficient knowledge or information to form a Courtyard denies the allegations contained in Paragraph 29 of the

belief as to the truth of the allegations in Paragraph 30 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 30 of the Complaint are legal conclusions, no response is required. 31. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 31 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 31 of the Complaint are legal conclusions, no response is required. CLAIM II AGAINST ALL DEFENDANTS: Failure To Make Alterations In Such A Manner That The Altered Portions Of The Facility Are Readily Accessible And Usable By Individuals With Disabilities 32. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 32 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 32 of the Complaint are legal conclusions, no response is required. 33. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 33 of the Complaint, and on
-7ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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that basis denies those allegations. To the extent the allegations contained in Paragraph 33 of the Complaint are legal conclusions, no response is required. 34. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 34 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 34 of the Complaint are legal conclusions, no response is required. 35. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 35 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 35 of the Complaint are legal conclusions, no response is required. CLAIM III AGAINST ALL DEFENDANTS: Failure To Remove Architectural Barriers 36. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 36 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 36 of the Complaint are legal conclusions, no response is required. CLAIM IV AGAINST ALL DEFENDANTS: Failure To Modify Practices, Policies And Procedures 37. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 37 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 37 of the Complaint are legal conclusions, no response is required. 38. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 38 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 38 of the Complaint are legal conclusions, no response is required.

-8ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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39.

Courtyard admits that Plaintiffs pray for the relief requested but

denies that Plaintiffs are entitled to any relief, and otherwise denies the allegations in Paragraph 39 of the Complaint. SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS--CLAIMS UNDER CALIFORNIA ACCESSIBILITY LAWS CLAIM I: Denial Of Full And Equal Access 40. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 40 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 40 of the Complaint are legal conclusions, no response is required. 41. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 41 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 41 of the Complaint are legal conclusions, no response is required. CLAIM II: Failure to Modify Practices, Policies And Procedures 42. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 42 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 42 of the Complaint are legal conclusions, no response is required. CLAIM III: Violation Of The Unruh Act 43. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 43 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 43 of the Complaint are legal conclusions, no response is required. 44. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 44 of the Complaint, and on

-9ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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that basis denies those allegations. To the extent the allegations contained in Paragraph 44 of the Complaint are legal conclusions, no response is required. 45. Courtyard admits that Plaintiffs pray for the relief requested but

denies Plaintiffs are entitled to any relief, and otherwise denies the allegations in Paragraph 45 of the Complaint. Treble Damages Pursuant To Claims I, II, III Under The California Accessibility Laws 46. Courtyard is without sufficient knowledge or information to form a

belief as to the truth of the allegations in Paragraph 46 of the Complaint, and on that basis denies those allegations. To the extent the allegations contained in Paragraph 46 of the Complaint are legal conclusions, no response is required. Courtyard further denies that Plaintiffs are entitled to an award of treble damages. 47. Complaint. 48. Courtyard admits that Plaintiffs pray for the relief requested but Courtyard denies the allegations contained in Paragraph 47 of the

denies Plaintiffs are entitled to any relief, and otherwise denies the allegations in Paragraph 48 of the Complaint. 49. Courtyard admits that Plaintiffs pray for the relief requested but

denies Plaintiffs are entitled to any relief, and otherwise denies the allegations in Paragraph 49 of the Complaint. DEMAND FOR JUDGMENT FOR RELIEF: 1. Courtyard admits that Plaintiffs seek the requested relief and denies

that Plaintiffs are entitled to any such relief. 2. To the extent not expressly admitted above, Courtyard denies each

and every allegation contained in the Complaint. /// ///
-10ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)
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AFFIRMATIVE DEFENSES Without admitting any of Plaintiffs' allegations or conceding the burden of proof on any issue found to be an element of any of Plaintiffs' causes of action rather than an element of any affirmative defense, Courtyard alleges the following separate and independent affirmative defenses: FIRST AFFIRMATIVE DEFENSE 1. Each cause of action asserted in the Complaint fails to allege facts

sufficient to state a cause of action against Courtyard. SECOND AFFIRMATIVE DEFENSE 2. Plaintiffs have waived any and all claims that they may have or may

have had against Courtyard. THIRD AFFIRMATIVE DEFENSE 3. Plaintiffs' claims are barred by the equitable doctrine of estoppel. FOURTH AFFIRMATIVE DEFENSE 4. Plaintiffs' claims are barred by the equitable doctrine of laches. FIFTH AFFIRMATIVE DEFENSE 5. Plaintiffs' claims are barred, in whole or in part, by the applicable

statutes of limitations. SIXTH AFFIRMATIVE DEFENSE 6. Plaintiffs failed to properly mitigate the damages they seek and are

thereby precluded from recovering those damages which could have reasonably been avoided by the exercise of due care on Plaintiffs' part. SEVENTH AFFIRMATIVE DEFENSE 7. Plaintiffs voluntarily, with full knowledge of the matters referred to in

the Complaint assumed any and all of the risks, hazards, and perils of the circumstances referred to in the Complaint and therefore assumed the risk of any injuries or damages sustained by Plaintiffs, if any at all.
-11ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)

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EIGHTH AFFIRMATIVE DEFENSE 8. The incident(s) alleged by Plaintiffs were caused by the negligence

and/or fault of other persons, corporations and/or entities and/or non-parties to this action, whether named or not named as parties, and Courtyard's liability, if any, should be reduced accordingly or eliminated. NINTH AFFIRMATIVE DEFENSE 9. Plaintiffs' claims are barred, in whole or in part, by the doctrine of

unclean hands. TENTH AFFIRMATIVE DEFENSE 10. On information and belief, this action is barred by the doctrines of res

judicata and collateral estoppel. ELEVENTH AFFIRMATIVE DEFENSE 11. Courtyard's alleged actions, if done at all, are justified and/or

privileged since, at all relevant times herein, Courtyard acted in accordance with its corporate and administrative policies. TWELFTH AFFIRMATIVE DEFENSE 12. Courtyard's alleged actions, if done at all, are justified and/or

privileged since, at all relevant times herein, Courtyard acted in accordance with the applicable laws, including, without limitation, the applicable laws of the United States of America and of the State of California. THIRTEENTH AFFIRMATIVE DEFENSE 13. Courtyard avers as an affirmative defense that it intends to rely upon

such other defenses as may become legally available hereafter or become apparent during discovery proceedings in this case and hereby reserves the right to amend its answer to assert any such defenses. /// ///
-12ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)

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PRAYER WHEREFORE Courtyard prays as follows: 1. That Plaintiffs take nothing by reason of their Complaint, and that

judgment be entered for Courtyard; 2. costs; 3. For other such relief as the Court deems proper. MAYER BROWN LLP JOHN NADOLENCO BRONWYN F. POLLOCK That Courtyard be awarded reasonable attorneys' fees, expenses and

Dated: February 4, 2008

By: s/ Bronwyn F. Pollock Bronwyn F. Pollock Attorneys for Defendant COURTYARD HOLDINGS, LP E-mail: [email protected]

-13ANSWER OF DEFENDANT COURTYARD HOLDINGS, LP TO PLAINTIFFS' FIRST AMENDED COMPLAINT; CASE NO. 07 CV 2129 BTM (AJB)