Free Answer to Complaint - District Court of California - California

Case 4:07-cv-04894-SBA

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Kimberly E. Colwell, Esq. (SBN: 127604) [email protected] Tricia L. Hynes, Esq. (SBN: 212550) [email protected] MEYERS, NAVE, RIBACK, SILVER & WILSON 555 12th Street, Suite 1500 Oakland, CA 94607 Telephone: (510) 808-2000 Facsimile: (510) 444-1108 Attorneys for Defendants PAUL ACCORNERO and JOHN SILVA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, Plaintiffs, v. SETH MCMULLEN, PAUL ACCORNERO and JOHN SILVA, Defendants. COMES NOW OFFICER PAUL ACCORNERO and OFFICER JOHN SILVA (hereinafter "Defendants") who answers Plaintiffs' Complaint as follows: INTRODUCTION 1. In answer to paragraph 1, Defendants admit the date and time of the incident described Case No: C07-4894 SBA DEFENDANTS OFFICER PAUL ACCORNERO'S AND OFFICER JOHN SILVA'S ANSWER TO COMPLAINT AND REQUEST FOR JURY TRIAL

in plaintiff's complaint, Defendants deny the remaining allegations of the Complaint. JURISDICTION 2. matter. 3. matter. 4. In answer to paragraph 4, Defendants admit that this Court has pendant jurisdiction In answer to paragraph 3, Defendants admit that this Court has jurisdiction over this In answer to paragraph 2, Defendants admit that this Court has jurisdiction over this

over the state claims alleged in this matter.

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VENUE 5. In answer to paragraph 5, Defendants admit that this Court has venue over this matter. PARTIES 6. In answer to paragraph 6, Defendants deny the information contained therein based on

a lack of information and belief. 7. In answer to paragraph 7, Defendants deny the information contained therein based on

a lack of information and belief. 8. In answer to paragraph 8, Defendants are unable to admit or deny the information

contained therein based on a lack of information and belief. 9. In answer to paragraph 9, Defendants are unable to admit or deny the information

contained therein based on a lack of information and belief. 10. In answer to paragraph 10, Defendants admit the information contained therein on

information and belief. 11. defendants. STATEMENT OF FACTS 12. In answer to paragraph 12, Defendants deny the information contained therein based In answer to paragraph 11, Defendants admit the named individuals are referred to as

on a lack of information and belief. 13. In answer to paragraph 13, Defendants deny the information contained therein based

on a lack of information and belief. 14. In answer to paragraph 14, Defendants deny the information contained therein based

on a information and belief. 15. In answer to paragraph 15, Defendants deny the information contained therein based

on information and belief. 16. In answer to paragraph 16, Defendants deny the information contained therein based

on information and belief. 17. In answer to paragraph 17, Defendants deny the information contained therein based

on information and belief.

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18.

In answer to paragraph 18, Defendants deny the information contained therein based

on information and belief. 19. In answer to paragraph 19, Defendants deny the information contained therein based

on information and belief. 20. In answer to paragraph 20, Defendants deny the information contained therein based

on a lack of information and belief. 21. In answer to paragraph 21, Defendants deny the information contained therein based

on a lack of information and belief. 22. In answer to paragraph 22, Defendants deny the information contained therein based

on information and belief. 23. In answer to paragraph 23, Defendants deny the information contained therein based

on a lack of information and belief. 24. In answer to paragraph 24, Defendants deny the information contained therein based

on a lack of information and belief. 25. In answer to paragraph 25, Defendants deny the info rmation contained therein based

on a lack of information and belief. 26. In answer to paragraph 26, Defendants deny the information contained therein based

on a lack of information and belief. 27. In answer to paragraph 27, Defendants deny the information contained therein based

on information and belief. 28. In answer to paragraph 28, Defendants deny the information contained therein based

on information and belief. 29. on In answer to paragraph 29, Defendants deny the information contained therein based

information and belief. 30. In answer to paragraph 30, Defendants deny the information contained therein based

on /// ///

information and belief.

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31.

In answer to paragraph 31, Defendants deny the information contained therein based

on information and belief. 32. In answer to paragraph 32, Defendants deny the information contained therein based

on information and belief. 33. In answer to paragraph 33, Defendants deny the information contained therein based

on information and belief. 34. In answer to paragraph 34, Defendants deny the information contained therein based

on a lack of information and belief. INJURIES AND DAMAGES 35. 36. 37. 38. 39. 40. 41. In answer to paragraph 35, Defendants deny the information contained therein. In answer to paragraph 36, Defendants deny the information contained therein. In answer to paragraph 37, Defendants deny the information contained therein. In answer to paragraph 38, Defendants deny the information contained therein. In answer to paragraph 39, Defendants deny the information contained therein. In answer to paragraph 40, Defendants deny the information contained therein. In answer to paragraph 41, Defendants deny the information contained therein. FIRST CAUSE OF ACTION (42 U.S.C. Section 1983) 42. In answer to paragraph 42 Defendants reallege their answers to paragraphs 1 through

41 with the same force and effect as if they were herein set out in full. 43. (a ­ d) In answer to paragraph 43, subparts a through d, Defendants deny the

information contained therein. 44. (a-d) In answer to paragraph 44, subparts a through d, Defendants deny the

information contained therein. 45. In answer to paragraph 45, Defendants deny the information contained therein. JURY DEMAND 46. /// In answer to paragraph 46, Defendants request a trial by jury.

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PRAYER FOR RELIEF 47. 47. (1-4) In answer to paragraph 47, subparts 1 through 4, Defendants deny each and

every allegation contained therein. FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Defendants and each of them, at all times, acted in good faith, without malice and within the scope and course of their employment, and under the reasonable belief that their actions were lawful. Accordingly, Defendants and each of them are entitled to qualified immunity herein. THIRD AFFIRMATIVE DEFENSE To the extent that the Plaintiffs' claims are founded upon principals of negligence, Plaintiffs themselves were negligent in and about the matters referred to in their Complaint. Such negligence bars or diminishes Plaintiffs' recovery against Defendants. FOURTH AFFIRMATIVE DEFENSE Defendants are immune from liability pursuant to the provisions of California Government Code Sections 820.2 and 815.2. FIFTH AFFIRMATIVE DEFENSE Defendants are immune from liability pursuant to the provisions of California Government Code Sections 820.4 and 815.2. SIXTH AFFIRMATIVE DEFENSE Plaintiffs' prayer for exemplary damages is precluded under California Government Code Section 818. SEVENTH AFFIRMATIVE DEFENSE Defendants are immune from liability pursuant to California Government Code Sections 818.8 and 815.2. EIGHTH AFFIRMATIVE DEFENSE Defendants are immune from liability pursuant to California Government Code Sections 820.8 and 815.2.

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NINTH AFFIRMATIVE DEFENSE Defendants are immune from liability pursuant to California Government Code Sections 821.6 and 815.2. TENTH AFFIRMATIVE DEFENSE Defendants are immune from liability pursuant to California Government Code Sections 822.2 and 815.2. ELEVENTH AFFIRMATIVE DEFENSE Defendants allege that they had probable cause to believe that their actions toward the Plaintiffs were lawful. TWELFTH AFFIRMATIVE DEFENSE Defendants are immune from the claims contained in Plaintiffs' Complaint pursuant to the provisions of California Penal Code Section 835. THIRTEENTH AFFIRMATIVE DEFENSE Defendants are immune from the claims contained in Plaintiffs' Complaint pursuant to the provisions of California Penal Code Section 835(a). FOURTEENTH AFFIRMATIVE DEFENSE Defendants are immune from the claims contained in Plaintiffs' Complaint pursuant to the provisions of California Penal Code Section 836. FIFTEENTH AFFIRMATIVE DEFENSE Defendants are immune from the claims contained in Plaintiffs' Complaint pursuant to the provisions of California Penal Code Section 836.5. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiffs' claims against Defendants under 42 U.S.C. § 1983 are contrary to law, in that they are founded upon the doctrine of respondeat superior. Neither a municipality nor its officers, supervisors, or policymakers can be held liable under 42 U.S.C. § 1983 under a respondeat superior theory. (Monell v. Department of Social Services, 436 U.S. 658, 691 (1978).) /// ///

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SEVENTEENTH AFFIRMATIVE DEFENSE Defendants are informed and believe and thereby allege that Plaintiffs' alleged that damages or injuries, if any, were aggravated by the failure of Plaintiffs and/or other individuals to use reasonable diligence to mitigate those injuries or damages. EIGHTEENTH AFFIRMATIVE DEFENSE Defendants allege that Defendants took reasonable precautions with regard to protecting against any risk of injury complained of by Plaintiffs. NINETEENTH AFFIRMATIVE DEFENSE Defendants allege that the Plaintiffs had the express knowledge of the risks and hazards set forth in the Complaint, as well as the magnitude of the risks and hazards and thereafter knowingly and willingly assumed those risks. TWENTIETH AFFIRMATIVE DEFENSE Defendants allege that Plaintiffs have waived their right to maintain the action filed in the Complaint. TWENTY-FIRST AFFIRMATIVE DEFENSE Defendants allege that Plaintiffs are barred by the principal of estoppel from maintaining the action filed in this case. TWENTY-SECOND AFFIRMATIVE DEFENSE Defendants and each of them allege that they were privileged to detain Plaintiffs at the time and place alleged. TWENTY-THIRD AFFIRMATIVE DEFENSE Defendants allege that the Complaint, and each cause of action thereof, fail to state facts sufficient constitute an award of attorneys' fees against these Defendants. TWENTY-FOURTH AFFIRMATIVE DEFENSE Defendants allege that Plaintiffs were comparatively at fault in the manner and style as set forth in the case of Li v. Yellow Cab Company (1975) 13 Cal. 3d 804, and these Defendants pray that any and all damages sustained by said Plaintiffs be reduced by the percentage of their negligence. ///

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TWENTY-FIFTH AFFIRMATIVE DEFENSE Defendants allege that Plaintiffs are guilty of willful misconduct which contributed to the happening of the incident which resulted in their alleged injuries. JURY DEMAND Defendants hereby demand trial by jury. PRAYER WHEREFORE, Defendants pray as follows: 1. That Plaintiffs takes nothing by reason of their Complaint and judgment be rendered in

favor of Defendants including but not limited to the named Defendants herein; 2. 3. That Defendants be awarded their costs incurred in the defense of this action; For such other relief as the Court deems proper.

Dated: October 22, 2007

Respectfully submitted, MEYERS, NAVE, RIBACK, SILVER & WILSON

By:
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/s/ Kimberly E. Colwell Attorneys for Defendant s PAUL ACCORNERO and JOHN SILVA

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