Free Answer to Complaint - District Court of California - California

Case 5:07-cv-04987-JF

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RICHARD DOYLE, City Attorney (#88625) NORA FRIMANN, Chief Trial Attorney (#93249) MICHAEL R. GROVES, Sr. Deputy City Attorney (#85620) STEVEN B. DIPPELL, Sr. Deputy City Attorney (#121217) Office of the City Attorney 200 East Santa Clara Street San Jose, California 95113-1905 Telephone: (408) 535-1900 Facsimile: (408) 998-3131 Email: [email protected] Attorneys for Defendants CITY OF SAN JOSE, OFFICER DANIEL PFEIFER, OFFICER MARK NATIVIDAD, OFFICER ANTHONY WEIR, and OFFICER HIGGINS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA THOMAS VAN ZANDT, Plaintiff, vs. CITY OF SAN JOSE, OFFICERS DANIEL PFEIFER, MARK NATIVIDAD, ANTHONY WEIR, and HIGGINS, individually and as employees of the CITY OF SAN JOSE, TARGET STORES, INC., THE WESTFIELD GROUP, PROFESSIONAL SECURITY CONSULTANTS, and DOES 1-10, Inclusive, Defendants. In answer to the First Amended Complaint on file herein, Defendants, CITY OF SAN JOSE, OFFICER DANIEL PFEIFER, OFFICER MARK NATIVIDAD, OFFICER ANTHONY WEIR and OFFICER HIGGINS, respond as follows: 1. In answer to Paragraph 1 of the First Amended Complaint, these answering CASE NO.: C07-04987 JF DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS, FALSE ARREST, BATTERY, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS JURY TRIAL DEMANDED

Defendants deny each and every allegation contained therein. 2. In answer to Paragraphs 2 and 3 of the First Amended Complaint, these

answering Defendants admit the allegations contained therein. 1
DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT C07-04987 JF 455473

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3.

In answer to Paragraph 4 of the First Amended Complaint, these answering

Defendants do not have sufficient information and belief to respond to said allegations and so deny said allegations. 4. In answer to Paragraphs 5 and 20 of the First Amended Complaint, these

answering Defendants admit the allegations contained therein. 5. In answer to Paragraph 6 of the First Amended Complaint, these answering

Defendants admit that the San Jose Police Department is a department of the City of San Jose and that the San Jose Police Department operates under the laws and policies of the City. As to all of the other allegations in said paragraph, these answering Defendants deny each and every allegation contained therein. 6. In answer to Paragraphs 7 through 10 of the First Amended Complaint, these

answering Defendants admit the allegations contained therein. 7. In answer to Paragraphs 11 through 17 of the First Amended Complaint,

these answering Defendants do not have sufficient information and belief to respond to said allegations and so deny said allegations. 8. In answer to Paragraphs 18 and 19 of the First Amended Complaint, these

answering Defendants deny each and every allegation contained therein. 9. In answer to Paragraphs 21 through 29 of the First Amended Complaint,

these answering Defendants do not have sufficient information and belief to respond to said allegations and so deny said allegations. 10. In answer to Paragraph 30 of the First Amended Complaint, these answering

Defendants admit that Van Zandt requested the San Jose Police Department to respond to the scene of the incident, but these answering Defendants do not have sufficient information and belief to respond to the remainder of the allegations in said paragraph and so deny said allegations. /// /// 2
DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT C07-04987 JF 455473

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11.

In answer to Paragraphs 31 and 32 of the First Amended Complaint, these

answering Defendants do not have sufficient information and belief to respond to said allegations and so deny said allegations. 12. In answer to Paragraph 33 of the First Amended Complaint, these answering

Defendants admit that upon arriving on the scene some of the San Jose Police Officers spoke initially with the security guards for some period of time before speaking to Mr. Van Zandt. Defendants further admit that at some point during the incident Mr. Van Zandt inquired as to why police were speaking with him and he was told that he was being questioned regarding the possibility of child molestation. As to all other allegations and characterizations by Plaintiff of the facts revealed in said paragraph, these answering Defendants deny each and every allegation contained therein. 13. In answer to Paragraph 34 of the First Amended Complaint, these answering

Defendants respond as follows: As to the first sentence in said paragraph, these answering Defendants do not have sufficient information and belief to respond to said allegations and so deny said allegations; as to the second sentence of said paragraph, these answering Defendants acknowledge that at some point during the incident Plaintiff informed them that he had been assisting his son in the bathroom; as to all of the remaining allegations in said paragraph, these answering Defendants deny each and every allegation contained therein. 14. In answer to Paragraph 35 of the First Amended Complaint, these answering

Defendants admit that Plaintiff expressed the desire to be placed under shelter from the rain and that, pursuant to that request, Defendants gave Plaintiff the option to be placed in the back of a patrol car. Defendants further admit that Plaintiff was walked to the patrol car and frisked after being informed that such a frisk would have to take place if he chose to sit in the back of the police car; as to all of the other allegations and characterizations of the facts contained in said paragraph, these answering Defendants deny each and every allegation contained therein. 3
DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT C07-04987 JF 455473

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15.

In answer to Paragraph 36 of the First Amended Complaint, these answering

Defendants respond as follows: As to the first sentence of said paragraph, these answering Defendants do not have sufficient information and belief to respond to said allegations and so deny said allegations; as to the second and third sentences of said paragraph, these answering Defendants admit that Plaintiff's van was searched, as well as a purse in the van, and that Van Zandt's consent was neither requested nor obtained for the search; as to all other allegations and characterizations of the facts contained in the second and third sentences of said paragraph, these answering Defendants deny each and every allegation contained therein. 16. In answer to Paragraph 37 of the First Amended Complaint, these answering

Defendants respond as follows; as to the first sentence of said paragraph, these answering Defendants deny each and every allegation contained therein; as to the second sentence of said paragraph, these answering Defendants admit that Van Zandt was in the presence of San Jose Police Officers while they investigated the incident for approximately sixty to eighty minutes and that, at some point, the officers learned that the child, who was originally reported to have been a little girl, was actually a little boy; as to the remainder of the allegations and characterizations contained in the second sentence of said paragraph, these answering Defendants deny each and every allegation contained therein. 17. In answer to Paragraph 38 of the First Amended Complaint, these answering

Defendants admit that Plaintiff was detained, interrogated, and not able to leave the scene if he so chose for somewhere between approximately sixty to eighty minutes. As to the remainder of the allegations and characterizations of the facts in said paragraph, these answering Defendants deny each and every allegation contained therein. 18. In answer to Paragraph 39 of the First Amended Complaint, these answering

Defendants admit that Plaintiff was not Mirandized and the Plaintiff was told, because he was refusing to cooperate and answer the officers' questions, he might be arrested and taken to jail in light of the citizen's allegations against him and all of the other circumstances surrounding the incident, unless he answered the officer's questions 4
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regarding the allegation made against him by the citizen and the location of the minor. As to all of the other allegations and characterizations of the facts contained in said paragraph, these answering Defendants deny each and every allegation contained therein. 19. In answer to Paragraph 40 of the First Amended Complaint, these answering

Defendants admit that in addition to interrogating Van Zandt and searching his vehicle at some point, when Van Zandt's family was finally located, the officers questioned Van Zandt's children out of the presence of Van Zandt and his wife without seeking the consent for the questioning from either Van Zandt or his wife. As to all the other allegations and characterizations of facts in said paragraph, these answering Defendants deny each and every allegation contained therein. 20. In answer to Paragraph 41 of the First Amended Complaint, these answering

Defendants do not have sufficient information and belief to respond to said allegations and so deny said allegations. 21. In answer to Paragraphs 42 through 44 of the First Amended Complaint,

these answering Defendants deny each and every allegation contained therein. 22. In answer to Paragraph 46 of the First Amended Complaint, these answering

Defendants hereby incorporate Paragraphs 1 through 21 above. 23. In answer to Paragraphs 47 through 49 of the First Amended Complaint,

these answering Defendants deny each and every allegation contained therein. 24. In answer to Paragraphs 50, 54, 58, 63, 65, 69, 73, 78, and 82, these

answering Defendants hereby incorporate Paragraphs 1 through 24 above. 25. In answer to Paragraphs 47 through 49, 51 through 53, 55 through 57, 59

through 64, 66 through 68, 70 through 72, 74 through 77, 79 through 81, these answering Defendants deny each and every allegation contained therein. 26. In answer to Paragraph 83 of the First Amended Complaint, these answering

Defendants admit they had a duty to act reasonably under the circumstances. As to all

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other allegations and characterizations of the facts as contained in said paragraph, these answering Defendants deny each and every allegation contained therein. 27. In answer to Plaintiff's Prayer for Relief, to the extent said Prayer for Relief

contains allegations and factual claims, these answering Defendants deny each and every allegation and claim contained therein. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE, these answering Defendants allege that the First Amended Complaint fails to state a claim upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, these answering Defendants allege that any harm Plaintiff suffered was the result of negligent or otherwise wrongful conduct of persons other than these Defendants and that the conduct of persons other than these Defendants was the sole and proximate cause of the injuries and damages alleged by Plaintiff. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, these answering Defendants allege that all actions taken were undertaken in good faith and with a reasonable belief that the actions were valid, necessary, constitutionally proper and objectively reasonable for a police officer in the same circumstances, entitling the individual Defendants to the qualified immunity of good faith. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, these answering Defendants allege that they are immune from the state law causes of action pursuant to Government Code sections 800-1000. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, these answering Defendants allege they are immune from the state law causes of action pursuant to Government Code section 815.2(b) and section 820.8 granting immunity for an injury caused by the act or omission of another person.

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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, these answering Defendants allege that Plaintiff's First Amended Complaint is barred in that Plaintiff failed to comply with the claims filing provisions of Government Code §§ 900, et seq. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that Plaintiff's First Amended Complaint is barred by the applicable statutes of limitation. AS FOR AN EIGHTH AFFIRMATIVE DEFENSE, these answering Defendants allege that Plaintiff's own negligent and improper conduct was the sole and proximate cause of whatever injuries and damages Plaintiff alleges, if any injuries and damages there are. AS FOR A NINTH AFFIRMATIVE DEFENSE, these answering Defendants allege that the individual Defendants are entitled to immunity from Plaintiffs' First Amended Complaint by virtue of the provisions of Government Code of the State of California, sections 800 through 1000, including, but not limited to Sections 820.2, 820.4, 820.6, 820.8, 821, 821.6 and 822.2. AS FOR A TENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that their actions towards Plaintiff were lawful and justified under the facts of the case. AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that they are protected by the affirmative defenses provided by California Penal Code Sections 197, 834(a), 835 and 835(a). AS FOR A TWELFTH AFFIRMATIVE DEFENSE, these answering Defendants allege that the allegations made by the citizen, Plaintiff's lack of cooperation with the investigation and what Defendants learned from the security officers at the scene created an exigency which legally justified the detention and questioning of Plaintiffs, as well as the search of Plaintiff's vehicle and its contents. AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that the frisk of Plaintiff was legally justifiable and consented to by Plaintiff.

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AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that any damages or injuries suffered by Plaintiff were occasioned by his own wrongful actions. AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that Defendant City of San Jose is entitled to immunity from Plaintiff's Complaint herein by virtue of the provisions of Government Code sections 800-1000, including, but not limited to, sections 815, 815.2, 815.6, 818, 818.2, 818.8, 844.6 and 845. AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that Defendant City of San Jose is immune from a claim of exemplary or punitive damages by virtue of Government Code section 818. AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that the individual Defendants have no liability and are immune from claims of false arrest and subsequent false imprisonment pursuant to Penal Code section 847. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE, these answering Defendants allege they had reasonable cause to detain Plaintiff based on their knowledge and observations at the time of the incident alleged in the Complaint. /// /// /// /// /// /// /// /// /// /// /// 8
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WHEREFORE, these answering Defendants pray: 1. 2. 3. That Plaintiff take nothing by his Amended Complaint; That Plaintiff's First Amended Complaint be dismissed with prejudice; That Defendants be awarded their costs of suit, including attorney's fees

incurred herein; and 4. For such other and further relief as the Court deems proper.

JURY TRIAL DEMAND
These answering Defendants hereby demand a jury.

Dated: December 27, 2007

RICHARD DOYLE City Attorney By: ___________/s/_________________ MICHAEL R. GROVES Senior Deputy City Attorney Attorneys for Defendants CITY OF SAN JOSE, OFFICER PFEIFER, OFFICER NATIVIDAD, OFFICER WEIR, and OFFICER HIGGINS

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