Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02125-W-AJB

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MAZZARELLA CALDARELLI Michael D. Fabiano (SBN 167058) 550 West C Street, Suite 700 San Diego, California 92101 (619) 238-4900 Telephone (619) 238-4959 Facsimile [email protected]

LLP

Attorneys for Defendant PETCO ANIMAL SUPPLIES STORES, INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff, ) ) vs. ) ) PETCO ANIMAL SUPPLIES STORES, INC., ) dba PETCO #927; JONES-HORAKH LLC; ) JANET P. HORAKH, TRUSTEE OF THE ) JANET P. HORAKH LIVING TRUST ) DATED MARCH 8, 1995, ) ) Defendants. ) )

CHRIS KOHLER,

Case No.: '07 CV 2125 W (AJB) ANSWER OF PETCO ANIMAL SUPPLIES STORES, INC. TO COMPLAINT

PETCO'S ANSWER TO COMPLAINT

NO. '07 CV 2125 W (AJB)

Case 3:07-cv-02125-W-AJB

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Defendant PETCO Animal Supplies Stores, Inc. ("PETCO") (incorrectly identified by Plaintiff as "PETCO ANIMAL SUPPLIES STORES, INC. dba PETCO #927"), for itself and no other defendants, responds to the complaint of Chris Kohler ("Plaintiff") as follows: 1. 2. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought. 3. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 4. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 5. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 6. PETCO admits that the PETCO store and the parking lot and common areas

that are the subjects of this lawsuit are located at 3875 Mission Avenue in Oceanside, California, and that this is within the Southern District of California. Except as so admitted, the allegations of this paragraph are legal contentions that do not require admission or denial. 7. PETCO admits that it is a Delaware corporation and that PETCO operates the

PETCO store at 3875 Mission Avenue in Oceanside, California, and that PETCO leases the space in which said PETCO store is located. Except as so admitted, PETCO denies each and every allegation of this paragraph. 8. PETCO is without knowledge or information sufficient to form a belief as to

the allegations of this paragraph, and on that basis PETCO denies each and every allegation of this paragraph. 9. PETCO admits that it is the operator of the PETCO store at 3875 Mission

Avenue in Oceanside, California. Except as so admitted, the allegations of this paragraph are legal contentions that do not require admission or denial. 10. 11. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph. -1PETCO'S ANSWER TO COMPLAINT NO. '07 CV 2125 W (AJB)

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12. 13. 14. 15. 16. 17.

PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph. PETCO incorporates herein its responses to paragraphs 1-15. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 18. 19. PETCO denies each and every allegation of this paragraph. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 20. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 21. 22. 23. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 24. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 25. 26. PETCO denies each and every allegation of this paragraph. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 27. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 28. 29. PETCO denies each and every allegation of this paragraph. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 30. PETCO denies each and every allegation of this paragraph.

-2PETCO'S ANSWER TO COMPLAINT NO. '07 CV 2125 W (AJB)

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31.

PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought. 32. PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought. 33. 34. PETCO incorporates herein its responses to paragraphs 1-32. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 35. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 36. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 37. 38. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought. 39. PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought. 40. 41. PETCO incorporates herein its responses to paragraphs 1-39. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 42. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 43. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 44. 45. 46. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph. PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought.

-3PETCO'S ANSWER TO COMPLAINT NO. '07 CV 2125 W (AJB)

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47.

PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought. 48. 49. PETCO incorporates herein its responses to paragraphs 1-47. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 50. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 51. PETCO states that the allegations of this paragraph are legal contentions that

do not require admission or denial. 52. PETCO denies each and every allegation of this paragraph, and PETCO also

denies that Plaintiff is entitled to any of the relief sought. AFFIRMATIVE DEFENSES PETCO currently has insufficient information available as to whether PETCO has additional, as yet unstated, affirmative defenses beyond those stated hereinbelow. PETCO reserves the right to assert additional affirmative defenses in the event that investigation or discovery indicates that such defenses would be appropriate. FIRST AFFIRMATIVE DEFENSE The complaint, and each and every purported cause of action therein, fail to state facts sufficient to constitute a cause of action against PETCO. SECOND AFFIRMATIVE DEFENSE PETCO is informed and believes, and on that basis alleges, that Plaintiff's claims are barred, in whole or in part, by applicable statutes of limitation, including but not limited to California Code of Civil Procedure sections 337, 338, 339, 340, and 343. THIRD AFFIRMATIVE DEFENSE Without admitting the allegations of the complaint, PETCO alleges that any and all architectural barriers at this PETCO store and the parking and common areas on the same parcel have been removed, and that goods, services, facilities, privileges, advantages and/or accommodations are provided on an equal and unrestricted basis. -4PETCO'S ANSWER TO COMPLAINT NO. '07 CV 2125 W (AJB)

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FOURTH AFFIRMATIVE DEFENSE If Plaintiff suffered any loss or damage, such loss or damage was proximately caused in whole or in part by Plaintiff's own failure to mitigate any alleged damages. Therefore, Plaintiff's claims must be reduced, diminished or defeated by such amounts as should have been mitigated. FIFTH AFFIRMATIVE DEFENSE The alleged conduct of PETCO was excused, justified and/or privileged. SIXTH AFFIRMATIVE DEFENSE The damages allegedly suffered by Plaintiff, if any, are the direct and proximate result of the acts or omissions of other persons, and not of PETCO. SEVENTH AFFIRMATIVE DEFENSE Plaintiff failed to exercise ordinary care, caution or prudence to avoid the injuries and damages alleged, if any. Therefore, any resulting damages to Plaintiff were proximately caused by Plaintiff's own conduct, and any recovery by Plaintiff must be reduced or barred entirely by the proportion of damages caused by Plaintiff's own conduct. EIGHTH AFFIRMATIVE DEFENSE PETCO did not authorize, ratify, acquiesce in or have knowledge of any action by other persons constituting discrimination as alleged by Plaintiff. NINTH AFFIRMATIVE DEFENSE PETCO is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of unclean hands. TENTH AFFIRMATIVE DEFENSE PETCO is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of laches. ELEVENTH AFFIRMATIVE DEFENSE PETCO is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of waiver.

-5PETCO'S ANSWER TO COMPLAINT NO. '07 CV 2125 W (AJB)

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TWELFTH AFFIRMATIVE DEFENSE PETCO is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of estoppel. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff's alleged injuries, if any, took place upon and were caused by facilities and programs not under the control or ownership of PETCO, but under the control or ownership of other persons. FOURTEENTH AFFIRMATIVE DEFENSE PETCO has taken all steps readily achievable to comply with the ADA and with state laws of comparable effect to remove any barriers to access, to make the subject facilities, programs and services accessible, or to provide reasonable and satisfactory alternatives. FIFTEENTH AFFIRMATIVE DEFENSE PETCO is informed and believes, and on that basis alleges, that Plaintiff lacks standing to sue PETCO on one or more of the claims for relief alleged in the complaint. PRAYER FOR RELIEF WHEREFORE, PETCO prays for judgment against Plaintiff as follows: 1. That Plaintiff takes nothing whatsoever by way of the complaint; 2. For an award of costs and attorneys' fees to the fullest extent allowed by applicable law; and 3. For such other and further relief as the Court deems just and proper. Dated: December 20, 2007 MAZZARELLA CALDARELLI
LLP

By: /s/ Michael D. Fabiano MICHAEL D. FABIANO Attorneys for Defendant PETCO ANIMAL SUPPLIES STORES, INC.

-6PETCO'S ANSWER TO COMPLAINT NO. '07 CV 2125 W (AJB)