Free Answer to Complaint - District Court of California - California

Case 3:07-cv-05072-TEH

Document 10

Filed 11/21/2007

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A PROFESSIONAL CORPORATION

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PORTER * SC OT T
ATTORNEYS 3 5 0 U N I V E R S IT Y A V E ., S U IT E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

Terence J. Cassidy, SBN 99180 350 University Ave., Suite 200 Sacramento, California 95825 TEL: 916.929.1481 FAX: 916.927.3706

Attorneys for Defendant PAUL DESHONG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BRENT BECKWAY, Plaintiff, vs. DEPUTY PAUL DESHONG, DOES 1 throug h 12 , inclusive, SH ER IFF RODNEY K. MITCHELL, COUNTY OF LAKE SHERIFF'S DEPARTMENT and COUNTY OF LAKE, Defendants. /

Case No. C 07-5072 EMC

D EFENDANT PAUL DESH O NG 'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

Defendant PAUL DESHONG hereby submits his answer to Plaintiff's Complaint. 1. Answering paragraph 1, this answering Defendant contends that said paragraph

contains conclusions of law and not averments of fact to which an answer may be required, but insofar as an answer may be deemed required, this answering Defendant generally and specifically denies each and every allegation in said paragraph. 2. Answering paragraph 2, this answering Defendant lacks sufficient information

or knowledge to enable him to answer the allegations contained in said paragraph, and basing his denial on that ground, generally and specifically denies each and every allegation contained in said paragraph. /// 1
DEFENDANT PAUL DESHONG'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL
00544056.WPD

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Case 3:07-cv-05072-TEH

Document 10

Filed 11/21/2007

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ATTORNEYS 3 5 0 U N I V E R S IT Y A V E ., S U IT E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

3.

Answering paragraph 3, this answering Defendant admits that he was a deputy

with the County of Lake Sheriff's Department. Answering the remaining allegations contained in said paragraph, this answering Defendant generally and specifically denies each and every remaining allegation contained in said paragraph. 4. Answering paragraph 4, this answering Defendant admits that the COUNTY

OF LAKE is a governmental entity organized existing under the law of the State of California and the COUNTY OF LAKE SHERIFF'S DEPARTMENT is a subdivision of the COUNTY OF LAKE. Answering the remaining allegations contained in said paragraph, this answering Defendant generally and specifically denies each and every remaining allegation contained in said paragraph. 5. Answering paragraphs 5 and 6, this answering Defendant lacks sufficient

information or knowledge to enable him to answer the allegations contained in said paragraphs, and basing his denial on that ground, generally and specifically denies each and every allegation contained in said paragraphs. 6. Answering paragraphs 7 and 8, this answering Defendant generally and

specifically denies each and every allegation contained in said paragraphs. 7. Answering paragraphs 9, 10 and 11, this answering Defendant lacks sufficient

information or knowledge to enable him to answer the allegations contained in said paragraphs, and basing his denial on that ground, generally and specifically denies each and every allegation contained in said paragraphs. 8. Answering paragraph 12, this answering Defendant admits that they knocked

on the front door of Mr. BECKWAY's residence. This answering Defendant generally and specifically denies each and every remaining allegation contained in said paragraph. 9. Answering paragraphs 13, 14, 15, 16, 17, 18, 19 and 20 this answering

Defendant generally and specifically denies each and every allegation contained in said paragraphs. 10. Answering paragraph 21, this answering Defendant admits the allegations

contained in said paragraph. 2
DEFENDANT PAUL DESHONG'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL
00544056.WPD

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Case 3:07-cv-05072-TEH

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Filed 11/21/2007

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ATTORNEYS 3 5 0 U N I V E R S IT Y A V E ., S U IT E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

11.

Answering paragraphs 22, 23, 24, 25, 26, 27, 28 and 29, this answering

Defendant generally and specifically denies each and every allegation contained in said paragraphs. 12. Answering paragraph 30, this answering Defendant lacks sufficient information

or knowledge to enable him to answer the allegations contained in said paragraph, and basing his denial on that ground, generally and specifically denies each. FIRST CAUSE OF ACTION 42 U.S.C. §1983 13. Answering paragraph 31, this answering Defendant incorporates by reference,

as though fully set forth herein, his responses to paragraphs 1-30. 14. Answering paragraphs 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46

and 47, this answering Defendant generally and specifically denies each and every allegation contained in said paragraphs. SECOND CAUSE OF ACTION Battery 15. Answering paragraph 48, this answering Defendant incorporates by reference,

as though fully set forth herein, his responses to paragraphs 1-47. 16. Answering paragraphs 49, 50, 51, 52, 53, 54, 55 and 56, this answering

Defendant generally and specifically denies each and every allegation contained in said paragraphs. THIRD CAUSE OF ACTION False Arrest and Illegal Imprisonment 17. Answering paragraph 57, this answering Defendant incorporates by reference,

as though fully set forth herein, his responses to paragraphs 1-56. 18. Answering paragraphs 58, 59, 60, 61 and 62, this answering Defendant

generally and specifically denies each and every allegation contained in said paragraphs. FOURTH CAUSE OF ACTION Negligence 19. Answering paragraph 63, this answering Defendant incorporates by reference,

as though fully set forth herein, his responses to paragraphs 1-62. 20. Answering paragraphs 64, 65, 66, 67 and 68, this answering Defendant

generally and specifically denies each and every allegation contained in said paragraphs. 3
DEFENDANT PAUL DESHONG'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL
00544056.WPD

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Case 3:07-cv-05072-TEH

Document 10

Filed 11/21/2007

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ATTORNEYS 3 5 0 U N I V E R S IT Y A V E ., S U IT E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

FIFTH CAUSE OF ACTION Intentional Infliction of Emotional Distress 21. Answering paragraph 69, this answering Defendant incorporates by reference,

as though fully set forth herein, his responses to paragraphs 1-68. 22. Answering paragraphs 70, 71, 72, 73, 74, 75, 76 and 77, this answering

Defendant generally and specifically denies each and every allegation contained in said paragraphs. SIXTH CAUSE OF ACTION Negligent Infliction of Emotional Distress 23. Answering paragraph 78, this answering Defendant incorporates by reference,

as though fully set forth herein, his responses to paragraphs 1-77. 24. Answering paragraphs 79, 80, 81, 82, 83, 84, 85, 86 and 87, this answering

Defendant generally and specifically denies each and every allegation contained in said paragraphs. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Complaint, in its entirety and through each separately stated cause of action, fails to state claims upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE At all times mentioned in the Complaint Defendants, and each of them, were acting in good faith and entitled to the good faith qualified immunity. THIRD AFFIRMATIVE DEFENSE Plaintiff wrongfully, unlawfully and maliciously made and threatened an assault and battery upon Defendant and himself provoked the alleged affray, and Defendant used no more than reasonable and necessary force in defense of himself, his person and property. FOURTH AFFIRMATIVE DEFENSE Plaintiff acted in concert with Defendant and knowingly and willingly consented to the conduct of such Defendant in total and utter disregard for the likelihood or probability that he might be injured thereby and therefore Plaintiff's claims, and each of them, are barred by the doctrines of express or implied consent. 4
DEFENDANT PAUL DESHONG'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL
00544056.WPD

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Case 3:07-cv-05072-TEH

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Filed 11/21/2007

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FIFTH AFFIRMATIVE DEFENSE Plaintiff freely and voluntarily assumed the risk of injury and damage alleged in this action with full knowledge and appreciation of the magnitude thereof. SIXTH AFFIRMATIVE DEFENSE Plaintiff was comparatively negligent or otherwise apportionately legally responsible for the events and resulting injuries complained of herein. SEVENTH AFFIRMATIVE DEFENSE Each act or omission alleged in the Complaint falls within the immunities and defenses described in sections 815 et seq. and 900 et seq. of the Government Code. EIGHTH AFFIRMATIVE DEFENSE Plaintiff's claims, and each of them, are barred by the provisions of California Penal Code sections 834(a), 835, 835(a), 836 and 836.5. NINTH AFFIRMATIVE DEFENSE Plaintiff failed to exercise reasonable diligence so as to mitigate the damages, if any, alleged in the Complaint, and said conduct was the sole and proximate cause of said injuries. WHEREFORE, Defendant PAUL DESHONG prays for judgment as follows: 1. 2. 3. 4. That Plaintiff's actions be dismissed; That Plaintiff take nothing by way of his Complaint; That Defendant be awarded his costs of suit, including attorney fees; and For such other relief as the Court deems proper. PORTER SCOTT
A PROFESSIONAL CORPORATION

Dated: November 21, 2007

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ATTORNEYS 3 5 0 U N I V E R S IT Y A V E ., S U IT E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

/s/ Terence J. Cassidy Terence J. Cassidy Attorney for Defendant PAUL DESHONG

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DEFENDANT PAUL DESHONG'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL
00544056.WPD

www.porterscott.com

Case 3:07-cv-05072-TEH

Document 10

Filed 11/21/2007

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DEMAND FOR JURY TRIAL Defendant PAUL DESHONG hereby demands a trial by jury in the above-entitled action as provided by the Seventh Amendment to the United States Constitution and Federal Rule of Civil Procedure 38. Dated: November 21, 2007 PORTER SCOTT
A PROFESSIONAL CORPORATION

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PORTER * SC OT T
ATTORNEYS 3 5 0 U N I V E R S IT Y A V E ., S U IT E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

/s/ Terence J. Cassidy Terence J. Cassidy Attorney for Defendant PAUL DESHONG

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DEFENDANT PAUL DESHONG'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL
00544056.WPD

www.porterscott.com