Case No. 132929 09-28-15 City's Answer to Complaint

8/17/2019 Case No. 132929 09-28-15 City's Answer to Complaint

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1 Vincent P. Hurley 111215

Ryan

M.

Thompson 292281

2

LAW

OFFICES OF VINCENT P. HURLEY

A

P r o f e ~ s i o n a l

Corporation

3 28 Seascape Village

Aptos, California 95003

4 Telephone: (831) 661-4800

Facsimile: (831) 661-4804

Attorneys for Defendants

FILE

SEP 8

2 15

TERESA A RISI

cL RK e ~ o R couRT

DEPUT

Y

6

CITY

OF CARMEL-BY-THE-SEA and

LUKE

E. POWELL

7

8

10

SUPERIOR COURT OF

THE

STATE OF CALIFORNIA

COUNTY

OF

MONTEREY

11

JENNIFER

DA

SILVA, )

12

Plaintiff, )

13

vs

. )

.

14

CITY

OF CARMEL-BY-THE-SEA; )

LUKE

E. POWELL, individually and

in

)

1S

his official capacity as a Police Officer )

for the CITY

OF

CARMEL-BY-THE- )

16

SEA, COUNTY OF MONTEREY; )

MONTEREY COUNTY SHERIFF'S )

17

OFFICE,

and

DOES 1 through 50, )

inclusive, )

18

)

19

20

Defendants. )

Case

No

. M132929

ANS\VER OF DEFENDANTS

CITY

OF CARMEL BY-THE-SEA

AND SERGEANT LUKE E. POWELL

TO

COMPLAINT OF PLAINTIFF

JENNIFER DA SILVA

21 Defendants CARMEL BY-THE-SEA and SERGEANT LUKE E. POWELL answer the

22 allegattons contamed in the unverified complaint

of

Plaintiff JENNIFER D_\ SILVA.

23 Defendants deny generally and singularly, specifically and individually, each and e

v-ery

24 allegation

in Plaintiffs

complaint

as

it pertains to these answering

D e f ~ n d a n t s

Defendants

25 allege that because Plaintiff has drafted

her

complaint in conclusory tenns, these answering

26 Defendants carmot fully anticipate all affirmatiYe defenses that may be applicable to the within

27 action. Accordingly, these answering Defendants hereby reserve the right to add additional

28

affirmative defenses to the extent such affirmative defenses are applicable to the within action.

1

Deft. Cit

;

of

Carm

e l and Sg

t.

Powe

ll

s

Answer to Cmplt. Case No. M1329: 9



FIRST F F I ~ f T I V E DEFENSE

2

Plaintiffs

complaint fails to state facts sufficient to constitute a cause ofaction against

3

these answering Defendants.

4

SECOND AFFIRMATIVE DEFENSE

Plainti ffs complaint fails to state facts sufficient to state a cause ofaction against these

answering Defendants for any violation

of

civil rights that resulted from any official policy,

7 custom or practice of these answering Defendants.

8

THIRD AFFIRMATIVE DEFENSE

9 CITY OF CARMEL BY-THE-SEA is a public entity, and therefore not liable for

10

exemplary or punitive damages

in

any sum, or at all.

11 FOURTH AFFI&\1ATIVE DEFENSE

12

These answering Defendants are immune from liability for any claim based on the laws

13 of the State ofCalifornia pursuant to the California Government Code, including but not limited

14 to California GoYemment Code sections 815, 815.2, 815.4, 815.6, 818, 818 2, 818 8, 8: 0, 820.2,

15

820.25, 820.4, 820.6, 820.8, 821, 821.6, 821.8, and 822.2.

16

FIFTH AFFIRMATIVE DEFENS:g

17 At the time of the subject incident, Defendant Luke E. Powell was not, nor has even been

18 an official policymaker of the City ofCarrnel-b}-the-Sea.

19 SIXTH AFFIR\ fATIVE DEFENSE

:20 To the extent Plaintiff's complaint contains California tort claims and facts not fairly

21 reflected in the public entity claim of Plaintiff, said causes of action a ~ e d upon such facts are

barred.

23

_EYENTJI R v J ~ T I V E

DF:fJ

:

NS£

24 Any injury or damage to Plaintiff arose out of a la\\<ful arrest, and as such, Defendants are

25 immune from liability under the pro\ isions ofCalifornia Penal Code sections 833, 835, 836,

26 836.5, and 142.

27

28

2

Deft. City

of Canne

l and Sg

t.

PoweJr s Answer

to

Cmplt. Case No. M I

32929



I EIGHTH AFFIRMATIVE

DEFENSE

2 To the extent Plaintif f s complaint contains California tort claims and facts not fairly

3 reflected in the public entity claim of Plaintiff, said causes of action failed to abide by the terms

4 of the California Tort Claims Act.

5 NINTH AFFIRMATIVE DEFEN

SE

6 The actions ofDefendant, Luke E. Powell, were objectively reasonable in light of the

7 facts and circumstances

known to

him, and his conduct did not -violate clearly established

8 statutory

or

constitutional rights ofwhich a reasonable person would ha\e

known

, and he is

9 therefore immune from liability pursuant to the principles

of

qualified immunity.

10 TENTH AFFIRMATIVE DEFENSE

Defendants

and

Defendants employees and subordinates acted with reasonable force

12 under the totality of

the

circumstances.

3 ELEVENTH AFFIRMATIVE DEFENSE

14 The training program

of

these answering Defendants was adequate to train officers to

5

properly handle usual

and

recurring situations that they would encounter, and these answering

16 Defendants did not act with deliberate indifference wit regard to the need to adequately train

7

officers.

18

TWELFTH AFFIRMATIVE DEFENSE

19 These answering Defendants have not deprived Plainti ff

of

any right, privilege, or

20 immunity guaranteed by the Constitution

or

laws of the United States

or

the State ofCalifornia.

2 THIRTEENTH

AfFIRMATIVE

DEFENSE

22

The

acts

or

m ~ s o n s set forth in the Complaint, eYen ifprov

en

true, constitute mere

23 negligence

and

were neither intentional, vallful, and/or grossly negligent and as a consequence,

24 fail to state a claim for

relief

for -violation

of ciYil

rights.

25

26

27

28

3

Deft. C

it

y of C

ar

mel and Sgt. Powell s

An<;wer

to Cmplt. Case No. M

l

2929



1 FOURTEENTH AFFIRMATIVE DEFENSE

2 Plaintiff failed to mitigate

his

damages,

if

any, and such failure caused, contributed to,

3 aggravated and/or increased said damages. These answering Defendants are not liable for

4 Plaintiff s unmitigated damages.

5 FIFTEENTH AFFIRM<\ TIVE DEFENSE

6 Defendants employees and subordinates had the authority to detain Plaintiff for

7 questioning

or

other limited investigation and were lawfully carrying out that authority.

8 SIXTEENTH AFFIRMATIVE DEFENSE

9 The force used by Defendants employees and subordinates was reasonably

n e c e ~

10

under the circumstances and was that force a reasonable law enforcement officer would have

11

used under the same or similar circumstances.

12 SEVENTEENTH AFFIRMATIVE DEFENSE

13 These answering Defendants are not liable under the First, Fourth or Fourteenth

1-l

Amendments under the principals

of

vicarious liability for conduct ofemployees.

15 EIGHTEENTH AFFIRMATIVE DEFENSE

16

Plaintiff s special damages, if any there were, 8hould be reduced to the actual amount

17

paid to health care providers

n

the past for services reasonably related to Plaintiff s injuries.

18 NINETEENTH AFFIRMATIVE DEFENSE

19

Plaintiff s prayer for injunctive relief fails to satisfy the requirements ofArticle III

of

the

20 United States Constitution that there

is

an actual case or contro\ ersy sufficient to invoke powers

21

of

the Courts for injunctive relief.

22 TVv ENTIETH AFFIRMATIVE DEFENSE

23 Plaintiff s state law causes

of

action are untimely under the statutory framework

of

the

24 California Tort Claims Act, specifically California Government Code section 946.6(f).

25

TWENTY FIRST AFFIRMATIVE DEFENSE

26

These answering Defendants seizure

of

Plaintiff was a lawful.

27

28

Det

l

City

of C

ar

mel and Sg

t.

Powe

lr

s Answer to

Cmp

lt.

Case No . M13292 9





1 PRAYER

2

WHE

REFORE, Defendants pray that Plaintiff take nothing by reason

of

he complaint;

3 and that Defendants be awarded its costs

of

suit, that Defendants be awarded all reasonable

4 attorneys fees as permitted by law, and for such other and further reliefas the Court may deem

5

proper.

6

7

8

11

12

13

14

15

16

17

IS

19

2

21

23

24

25

27

28

Dated:

S e p t e m b e r l ~

2015

Deft City

ofCaJ

mel

and

< gt

Po ell's

.\.1swer to Crnplt.

LAW

OFFICES OF VINCENT P. HURLEY

A Professional Corporation

By: T

_

RYAN M ---;.=H=o=MP: =s=o=N . ;; -

Attorneys for Defendants CITY OF

CARMEL-BY-THE-SEA and

LUKE

E. PO WELL

6

Case No. M

132929



CASE NAME: Da Silva v

Carmel

Monterey County Superior

Court

Case No. M 132929

PROOF OF SERVICE

2 I, Marcy Brenkwitz, declare as follows: I am employed in the County of Santa Cruz,

3

State of California.

I m over

the age of eighteen years and

not

a party

to

the within action.

My

4 business address is 28

Seascape

Village, A p t o s ~ California 95003.

5 On September 24, 2015, I served the following document:

6 Answer

of

Defendants City

of

Carmel-By-The-Sea

and

Sergeant Luke E. Powell to

Complaint

of

Plaintiff Jennifer Da

Sib

·a

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

on the interested parties to said action b} the following means.

X (BY MAIL) By placmg a true copy of he above-referenced document(s)

enclosed m a sealed em-elope \\ lth postage thereon fully ptepaid, in the United States

mad

at

Aptos, California, addressed as

shown

below.

--=--=--- (BY

HAND-DELIVERX}

B} delivering a

true

copy thereof, enclosed

in

a

sealed envelope,

to

the address(es) shown below.

(BY OVERNIGHT DELIVER\ ) By placing a true copy thereof, enclosed

m a sealed envelope. w1th delh.ery charges to be billed to the Law Offices of Vincent

P. Hurley,

to

be delivered by Umted States Postal Setvice Express Mail (Overnight),

to

the

address(es) shown below.

(BY

FACSIMILE TRA.NSMISSION)

By

transmitting a true copy

thereof

by facsimile transmiss10n from facsimile

number

(831) 661-4804 to the interested

parties to said action at

the

facstmtle number(cs) shown below, each

of whom

ptevioucsly authmiz.ed, in wnting, facsinule service of documents in this action.

---,--->.::(B=-- Y E-MAIL)

I

caused the document to be sent to the person(s) t the e-mail

address(

es)

li

sted

below

, each

of

whom

previously

authonzed

electronic sen.·

ice

of

documents

in

this action. I dtd

not

recei...-e, \\ithin a reasonable time after the

transmission. any electronic message or other indication that the transmission was

unsuccessful.

I declare under penalty

of

perjury under

the

laws

of the

State of California that the

foregoing is true and correct.

Executed

on

September

24,2015,

at Aptos, California. 7

..:/};

~ t ~ t t _ r; ~ · · 4 t

V

:.farcy Brenl » itz

NAMES(S)

AND ADDRESS

OR FAX NUMBER(S) OF EACH PARTY SERVED:

Andrew

B.

Kreeft

Laura

L.

Frankhn

Bohnen. Rosenthal Kreeft

717 Munras· Ave., Suite 200

P.O . Box 1111

Monterey, CA 93942-1 111

fel: (831) 649-0551

Fax: (831) 649-0272

Attorneys for Plaintiff

JENNlFER DA

SILVA

Documents

Case No. 132929 09-28-15 City's Answer to Complaint