Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01109-LAB-JMA

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Christopher C. Hoffman, Bar No. 176334 [email protected] Amy L. Lessa, Bar No. 202872 [email protected] Megan Winter, Bar No. 241429 [email protected] FISHER & PHILLIPS LLP 4225 Executive Square, Suite 950 San Diego, California 92037 Telephone: (858) 597-9600 Facsimile: (858) 597-9601 Attorneys for Defendant, SUN COAST VENTURES UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

BARBARA HUBBARD, Plaintiff, v. SUN COAST VENTURES dba TACO BELL #002800; RICHARD B. ARMSTRONG CO TRUSTEE of THE ARMSTRONG REVOCABLE INTER-VIVOS TRUST DATED OCTOBER 28, 1983; JOYCE L. ARMSTRONG CO-TRUSTEE of the ARMSTRONG REVOCABLE INTER-VIVOS TRUST DATED OCTOBER 29, 1983, Defendants.

Case No. 08CV1109 LAB JMA ANSWER TO PLAINTIFF'S COMPLAINT AND NOTICE OF AFFIRMATIVE DEFENSES

Defendant, Defendant Sun Coast Ventures (identified in the Complaint as "Sun Coast Ventures dba Taco Bell #002800"), by and through its attorneys in this regard, hereby responds to the Complaint of Plaintiff, Barbara Hubbard (referred to hereafter as "Plaintiff"), and provides notice of its Affirmative Defenses as follows: I. SUMMARY 1. In answering Paragraph 1 of the Complaint, Defendant states that Paragraph 1

consists of Plaintiff's characterization of her lawsuit to which no response is required. To the extent
ANSWER TO PLAINTIFF'S COMPLAINT AND NOTICE OF AFFIRMATIVE DEFENSES Case No. 08CV1109 LAB JMA

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a response is required, Defendant states that it owns and/or operates a Taco Bell brand restaurant at 1737 Sweetwater Road, National City, CA 91950 (hereinafter referred to as the "Restaurant"), and deny each and every remaining allegation. 2. In answering Paragraph 2 of the Complaint, Defendant states that Paragraph 2

consists of Plaintiff's characterization of her lawsuit and request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. II. JURISDICTION 3. In answering Paragraph 3 of the Complaint, Defendant admits that jurisdiction is

proper in this Court, but denies any allegations of wrongdoing contained therein. 4. In answering Paragraph 4 of the Complaint, Defendant admits that this Court has

supplemental jurisdiction over Plaintiff's state law claims, but denies any allegations of wrongdoing contained therein. 5. In answering Paragraph 5 of the Complaint, Defendant states that it consists of

Plaintiff's request for declaratory relief to which no response is required. To the extent a response is required, Defendant denies that Plaintiff is entitled to any relief whatsoever. III. VENUE 6. In answering Paragraph 6 of the Complaint, Defendant admits that venue is proper in

this Court, but denies any allegations of wrongdoing contained therein. IV. PARTIES 7. In answering Paragraph 7 of the Complaint, Defendant states that it owns and/or

operates the Restaurant and that it. is a corporation. Defendant denies each and every remaining allegation contained therein, and specifically denies that "Taco Bell" owns or operates the Restaurant. 8. In answering Paragraph 8 of the Complaint, Defendant is without sufficient

information or knowledge to admit or deny the allegations and, therefore, denies each and every allegation contained therein.

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V. FACTS In answering Paragraph 9 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant states that it is without sufficient information or knowledge to admit or deny the allegations contained in Paragraph 9 and, therefore, denies each and every allegation contained therein. 10. In answering Paragraph 10 of the Complaint, Defendant is without sufficient

information or knowledge to admit or deny the allegations and, therefore, denies each and every allegation contained therein. 11. In answering Paragraph 11 of the Complaint, Defendant is without sufficient

information or knowledge to admit or deny the allegations and, therefore, denies each and every allegation contained therein. 12. In answering Paragraph 12 of the Complaint, Defendant denies each and every

allegation contained therein. 13. In answering Paragraph 13 of the Complaint, Defendant denies each and every

allegation contained therein. 14. In answering Paragraph 14 of the Complaint, Defendant denies each and every

allegation contained therein. 15. In answering Paragraph 15 of the Complaint, Defendant denies each and every

allegation contained therein. VI. FIRST CLAIM Americans with Disabilities Act of 1990 Denial of "Full and Equal" Enjoyment and Use In answering Paragraph 16 of the Complaint, Defendant incorporates its responses to

Paragraphs 1 through 15 of the Complaint as if fully set forth herein. 17. In answering Paragraph 17 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 3
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18.

In answering Paragraph 18 of the Complaint, Defendant denies each and every

allegation contained therein. Failure to Remove Architectural Barriers in an Existing Facility 19. In answering Paragraph 19 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 20. In answering Paragraph 20 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 21. In answering Paragraph 21 of the Complaint, Defendant denies each and every

allegation contained therein. 22. In answering Paragraph 22 of the Complaint, Defendant denies each and every

allegation contained therein. Failure to Make an Altered Facility Accessible 23. In answering Paragraph 23 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein. 24. In answering Paragraph 24 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 25. In answering Paragraph 25 of the Complaint, Defendant denies each and every

allegation contained therein. Failure to Make an Altered Facility Accessible 26. In answering Paragraph 26 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies 4
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each and every allegation contained therein. 27. In answering Paragraph 27 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein. 28. In answering Paragraph 28 of the Complaint, Defendant denies each and every

allegation contained therein. Failure to Modify Existing Policies and Procedures 29. In answering Paragraph 29 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 30. In answering Paragraph 30 of the Complaint, Defendant denies each and every

allegation contained therein. 31. In answering Paragraph 31 of the Complaint, Defendant states that it consists of legal

conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. 32. In answering Paragraph 32 of the Complaint, Defendant states that it consists of legal

conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. VII. SECOND CLAIM Disabled Persons Act 33. In answering Paragraph 33 of the Complaint, Defendant incorporates its responses to

Paragraphs 1 through 32 of the Complaint as if fully set forth herein. 34. In answering Paragraph 34 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced 5
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therein which speaks for itself. 35. In answering Paragraph 35 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 36. In answering Paragraph 36 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 37. In answering Paragraph 37 of the Complaint, Defendant denies each and every

allegation contained therein. 38. In answering Paragraph 38 of the Complaint, Defendant states that it consists of legal

conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. 39. In answering Paragraph 39 of the Complaint, Defendant states that it consists of legal

conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. VIII. THIRD CLAIM Unruh Civil Rights Act 40. In answering Paragraph 40 of the Complaint, Defendant incorporates its responses to

Paragraphs 1 through 39 of the Complaint as if fully set forth herein. 41. In answering Paragraph 41 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein. 42. In answering Paragraph 42 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies 6
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each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 43. In answering Paragraph 43 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 44. In answering Paragraph 44 of the Complaint, Defendant denies each and every

allegation contained therein. 45. In answering Paragraph 45 of the Complaint, Defendant denies each and every

allegation contained therein. 46. In answering Paragraph 46 of the Complaint, Defendant states that it consists of legal

conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. 47. In answering Paragraph 47 of the Complaint, Defendant states that it consists of legal

conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. IX. FOURTH CLAIM Denial of Full and Equal Access to Public facilities 48. In answering Paragraph 48 of the Complaint, Defendant incorporates its responses to

Paragraphs 1 through 47 of the Complaint as if fully set forth herein. 49. In answering Paragraph 49 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 50. In answering Paragraph 50 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies 7
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each and every allegation contained therein, except to refer to the statutory language referenced therein which speaks for itself. 51. In answering Paragraph 51 of the Complaint, Defendant states that it consists of legal

conclusions to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein. 52. In answering Paragraph 52 of the Complaint, Defendant states that it consists of legal

conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. Defendant states that the remainder of the Complaint consists of legal conclusions and Plaintiff's request for relief to which no response is required. To the extent a response is required, Defendant denies each and every allegation contained therein and that Plaintiff is entitled to any relief whatsoever. AFFIRMATIVE DEFENSES 1. Plaintiff's Complaint and each purported cause of action asserted against Defendant

therein fails to set forth facts sufficient to constitute a claim and/or state a claim upon which relief may be granted. 2. Plaintiff lacks standing to bring the causes of action asserted in her Complaint and, to

the extent she has standing to bring her Complaint, Plaintiff lacks standing to challenge any alleged barriers not specifically identified and set forth in her Complaint and/or related to her gender and/or alleged "disability" or "handicap." 3. If Defendant is responsible in any respect for any injuries or damages suffered by

Plaintiff, which Defendant expressly denies, such injuries or damages have been caused by or contributed to by others, and Defendant's proportional liability, if any, should be reduced to the extent thereof. 4. The accommodations requested by Plaintiff and/or removal of the alleged structural

barriers to access of persons with disabilities are not readily achievable, nor are alternative methods readily achievable, easily accomplishable, technically feasible, would create safety hazards, and/or 8
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result in an undue burden on Defendants and others. 5. Plaintiff's claims are barred by the doctrines of estoppel and waiver as Plaintiff failed

to take reasonable measures to learn of or use the accessible facilities at the Restaurant. Further, Plaintiff failed to request any adaptations, modifications, alterative services, or other changes to the Restaurant prior to initiating his lawsuit. 6. Plaintiff's claims are barred to the extent they were raised and/or could have been

asserted during a prior lawsuit that she brought against the restaurant (Case No. 01 CV 0713 JM (LAB). 7. Defendant did not intentionally impede or impair access to Plaintiff and allege that to

the extent any alleged discriminatory conduct occurred, which it did not, that such conduct was not intentional. 8. Plaintiff is not entitled to recover attorneys' fees under the American with Disabilities

Act ("ADA") on the grounds that Defendant had already taken measures to address the sought after relief prior to the initiation of Plaintiff's lawsuit. 9. Plaintiff's claims are barred to the extent that she is a vexatious litigant.

Defendant reserves the right to plead any additional Affirmative Defenses as they become known or available during the pendency of this litigation. CONCLUSION WHEREFORE, Defendant, Sun Coast Ventures, denies that Plaintiff is entitled to monetary, declaratory or injunctive relief or judgment in any sum whatsoever, and respectfully requests that the Court enter judgment in its favor with costs and reasonable attorneys' fees assessed against Plaintiff, as well as such other and further relief that this Court deems just and proper. FISHER & PHILLIPS LLP DATE: August 20, 2008 BY: s/Amy L. Lessa CHRISTOPHER C. HOFFMAN AMY L. LESSA MEGAN WINTER Attorneys for Defendant Sun Coast Ventures

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