Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01029-WQH-POR

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DANIEL E. CARDENSWARTZ [SBN 1697491 dgardenswartz@swssl aw. com SOLOMON WARD SEIDENWURM & SMITH, 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (61 9) 231-0303 Facsimile: (ó19) 231 -4755

LLP

Attorneys for Defendants PLAZA SQUARE, LTD, et al.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CAT]FORNIA

NONI COTTI,
Plaintiff,

CASE NO. 08cv1029

WQH

(POR)

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ANSWER TO COMPLAINT FOR DISCRIMINATORY PRACTICES IN PUBTIC

ACCOMMODATIONS
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PLAZA SQUARE, LTD.; HONEYBEE FOODS CORP; DBA JOLLIBEE; WINC BIZ INC DBA WINCS N THINCS; CHRIS CHRIS ENTERPRISES DBA LITTLE CAESARS; SANC K. LEE DBA BASKINROBBINS ICE CREAM; SATHAPHONE

Notice of Removal filed 6/09/08

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KHAMPHAU & QUAN LIOU KHAMPHAU AKA MICHAEL WONC & SENC DEVANE DBA PLAZA COIN LAUNDRY; EMILIA T, HERNANDEZ DMD; KEDDINCTON & KALRA OPTEOMERISTS APC DBA EYE CARE OPTOMETRY ASSOCIATE; ANNABELLÊ MATTOX DBA ANABEL HAIR AFFAIR: H & R BLOCK INC; LOAN NCUYEN DBA CHARLENES NAIL; KIM PHAT JEWELRY AND REPAIR CORP; CIFTS AND FAVORS; HOLLYWOOD MUSIC; MOMMY AND ME; DR BRADFORD EMERY; and DOES 1 THROUCH 10, lnclusive,
Defendants.

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WINC BIZ INC DBA WINCS N THINCS; CHRIS CHRIS

ENTERPRISES

DBA LITTLE

CAESARS; SANC K. LEE DBA BASKIN-ROBBINS ICE CREAM; EMILIA T. HERNANDEZ

Case 3:08-cv-01029-WQH-POR

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DMD; KEDDINCTON & KALRA OPTEOMERISTS APC DBA

EYE CARE OPTOMETRY

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ASSOCIATE; ANNABELLE MATTOX DBA ANABEL HAIR AFFAIR; H & R BLOCK INC;

LOAN NCUYEN DBA CHARLENES NAIL; KIM PHAT JEWELRY AND REPAIR CORP;
HOLLYWOOD MUSIC; MOMMY AND ME; DR BRADFORD EMERY ("Defendants")
severing themselves from all other defendants, answer Plaintiff NONI COTTI's ("Plaintiff")

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Complaint for Discriminatory Practices in Public Accommodations [42 U.S.C. 12182(a) et.
Seq.; Civil Code 51,

52,54,54 1,54

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("Complaint") and allege as follows:

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NAMED DEFENDANTS AND NAMED PLAINTIFFS

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1. 2. 3. 4.

Defendants deny each and every allegation contained in paragraph 1 of the

Comolaint for lack of information or belief.
Defendants affirmatively aver that no response is required to paragraph 2 of

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Plaintiff's Comolaint.
Defendants deny each and every allegation contained in paragraph 3 ofthe

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Complaint for lack of information or belief.
Defendants deny each and every allegation contained in paragraph 4 ofthe

Complaint for lack of information or belief.
CONCISE SET OF FACTS

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5. 6.

Defendants deny each and every allegation contained in paragraph 5 of the

Complaint for lack of information or belief.
Defendants deny each and every allegation contained in paragraph 6 of the

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Comolaint for lack of information or belief. Defendants further allege that the allegations contained in th¡s paragraph call for a legal conclusion and are denied on that basis. Title lll of the ADA and the California Civil and Administrative Codes speak for themselves.

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7.

Defendants deny each and every allegation contained in paragraph 7 of the

Comolaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. Title lll
of the ADA and the California Civil and Administrative Codes speak for themselves.

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8.

Defendants deny each and every allegation contained in paragraph

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ofthe

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Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis.

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9.

Defendants deny each and every allegation contained in paragraph g ofthe

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Complaint for lack of information or belief. Title 28, part 36.303 of the Code of Federal
Regulations speaks for itself.

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1o. 11.

Defendants deny each and every allegation contained in paragraph 10 of the

Comolaint for lack of information or belief.
Defendants deny each and every allegation contained in paragraph 11of the

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Complaint for lack of information or belief. Defendants further allege that they are currently
engaged in the process of investigating Plaintiff's allegations contained in this paragraph and cannot admit or deny, and, on that basis, must therefore deny the allegations.

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12. 13.

Defendants deny each and every allegation contained in paragraph '12 ofthe

Complaint for lack of information or belief.
Defendants deny each and every allegation contained in paragraph 13 of the

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Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. Title lll
of the ADA and the California Civil and Administrative Codes speak for themselves.

14.

Defendants deny each and every allegation contained in paragraph 14 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. Title lll of the ADA and the California Civil and Administrative Codes speak for themselves.

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15. 16.

Defendants deny each and every allegation contained in paragraph 15 of the

Complaint for lack of information or belief.
Defendants deny each and every allegation contained in paragraph 16 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained ín this paragraph call for a legal conclusion and are denied on that basis.

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DISCRIMINATORY

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WHAT CLAIMS PTAINTIFF IS ALLEGINC AGAINST EACH NAMED DEFENDANT

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17. 18.

Defendants affirmatively aver that no response is required to paragraph 17 of

Plaintiff's Comolaint. Defendants deny each and every allegation contained in paragraph 18 of the

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Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. Title lll of the ADA speaks for itself.

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19.

Defendants deny each and every allegation contained in paragraph 19 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S 12182 speaks for itself.

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20.

Defendants deny each and every allegation contained in paragraph 20 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S 12182 speaks for itself.
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Defendants deny each and every allegation contained in paragraph 21 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S 12182 speaks for itself.

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22.

Defendants deny each and every allegation contained in paragraph 22 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis.

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23.

Defendants deny each and every allegation contained in paragraph 23 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S i2182 speaks for itself.

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24.

Defendants deny each and every allegation contained in paragraph 24 of The

Complaint for lack of information or belief. Defendants further allege that the allegations

CES

IN PUBLIC ACCOMMODATIONS

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contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S 12182 speaks for itself.

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25.

Defendants deny each and every allegation contained in paragraph 25 of the

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Comolaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis 42

U.S.C.S 12'lS2andNiecev. Fitzner,922F.Supp. 1208(1 996) speakforthemselves.

26.

Defendants deny each and every allegation contained in paragraph 26 of the

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Complaint for lack of information or belief. Defendants further allege that the allegations contained in th¡s paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S 12182 speaks for itself.

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Defendants deny each and every allegation contained in paragraph 27 of The

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Complaint for lack of information or belief. Defendants further allege that the allegat¡ons contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S 12182 and Doran v. 7-Eleven, /nc. U.S.App.LEXlS 26143 (9'h Cir. 2007) speak for
themselves.

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28.

Defendants deny each and every allegation contained in paragraph 28 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. S 1 21 83 speaks for itself.

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29.

Defendants deny each and every allegation contained in paragraph 29 of the

Comolaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. The California Accessibility Laws speak for themselves.

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30.

Defendants deny each and every allegation contained in paragraph 30 ofthe

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. California Civil Code sections 54 and 54.1 speak for themselves
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Defendants deny each and every allegation contained in paragraph 31 of the

ANSWER

NT FOR D

Y PRACTI

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Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. California Civil Code section 54.1 speaks for itself.

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32.

Defendants deny each and every allegation contained in paragraph 32 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. 42
U.S.C. SS 121s2(bX2XAX¡v) and 12183(a)(2) and California Civil Code SS 51, 52, and 54.1
speak for themselves.

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33.

Defendants deny each and every allegation contained in paragraph 33 of the

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Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that bas¡s.

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34.

Defendants deny each and every allegation contained in paragraph 34 of the

Complaint for lack of information or belief. Defendants further allege that the allegations contained in this paragraph call for a legal conclusion and are denied on that basis. Title lll
of the ADA and the California Civil and Administrative Codes speak for themselves. AFFIRMATIVE DEFENSES

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35.

Defendants assert the following separate defenses to the claims for relief set

forth in the Complaint.
FIRST AFFIRMATIVE DEFENSE

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(Avoidable Consequences)

36.

Defendants are informed and believe and on that basis allege that they took

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reasonable steps to prevent and correct any barriers to access, if any, while Plaintiff unreasonably failed to use the preventative and corrective measures provided by Defendants, and unreasonably failed to take action that would have prevented or corrected

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the barriers she allegedly encountered. Had Plaintiff made reasonable use of Defendants'
procedures, they would have prevented the harm she allegedly suffered. By reason of the

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foregoing, Plaintiff is barred in whole or in part from recovering damages herein.

DISCRIMINATORY

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SECON D AFFIRMATIVE DEFENSE

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(Failure to State a Claim)

37.
Defendants.

Plaintiff failed to state a claim upon which relief can be granted against

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THIRD AFFIRMATIVE DEFENSE
(Standing)

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Plaintiff lacks standing and/or is not a member of the class intended to be

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protected by the applicable law. FOURTH AFFIRMATIVE DEFENSE
(Estoppel)

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39.

Plaintiff has engaged in conduct and activities by reason of which Plaintiff

is

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estopped to assert any claim against Defendants.
FIFTH AFFIRMATIVE DEFENSE

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(Waiver) 40. Plaintiff has waived any claim against Defendants.
SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages)
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Plaintiff has failed to take reasonable or adequate steps to mitigate, alter,

reduce or otherwise diminish the damages or injuries, if any, suffered by Plaintiff. Therefore,

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Plaintiff is barred from any recovery for such damages or injuries, if any.
SEVENTH AIFIRMATIVE DEFENSE

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42.

(Unclean Hands) Plaintiff's claims are barred under the doctrine of unclean hands.
EIGHTH AFFIRMAT¡VE DEFENSE

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(Unjust Enrichment)

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Plaintiff would be unjustly enriched by any recovery against Defendants.

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FOR DISCRIMINA

OMMODATIONS

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NINTH AFFIRMATIVE

DEFENSE

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(ln Pari Delicto)
44.

Plaintiff's request for relief is baned under the doctrine in pari delicto.
TENTH AFFIRMATIVE DEFENSE

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(Comparative Negligence)

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45.

Defendants are informed and believe and on that basis allege that Plaintiff's

alleged damages, if any, were wholly or partly contributed to and proximately caused by the

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conduct and activities of Plaintiff or others, including their negligence and carelessness. Plaintiff's recovery, if any, is diminished proportionately or completely to the extent that Plaintiff's loss is attributable to Plaintiff's own negligence or other fault, or to the negligence or fault of others.
ELEVENTH AFFIRMATIVE DEFENSE

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(Comparative Fault: Other Defendants or Third Parties)

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46.

All events and happenings alleged in the Complaint and the resulting injuries

and damages, if any, were proximately caused by the negligent, wrongful and tortious

conduct of other defendants or unknown third parties. Therefore, any recovery received by Plaintiff in this matter should be barred or, in the alternative, diminished in an amount that in direct proportion to the extent of comparative fault of the other defendants or unknown
is

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third oarties.
TWETFTH AFFIRMATIVE DEFENSE

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(Superceding Cause)

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Defendants are informed and believe and on that basis allege that Plaintiff's

Complaint is barred because any alleged acts or omissions of Defendants were superseded
by the acts or omissions of others, including Plaintiff and her agents or employees, which were the sole proximate cause of the injury, damage or loss to Plaintiff, thereby barring or

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diminishing Pla¡ntiffs recovery in this action.

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TH IRTEENTH AFFIRMATIVE DEFENSE

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(Laches)

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Plaintiff is barred from any recovery under the doctrine of laches.
FOURTEENTH AFFI RMATIVE DEFENSE
(Statue of Limitations)

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49.

Plaintiff's claims are barred by the applicable statute of limitations.
FIFTEENTH AFFIRMATIVE DEFENSE

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0ustification and Privilege)

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Any alleged acts or omissions by Defendants were undertaken in good faith,

w¡thout malice, for non-discriminatory reasons and in accordance with Defendants' legal
rights, in order to further and protect the legitimate business interests of Defendants, and were thus.iustified and privileged. As a result, Plaintiff is barred from recovering damages for each of her claims alleged in the Complaint.
SIXTEENTH AFFI RMATIVE DEFENSE

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(No Entitlement to Punitive Damages)

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Plaintiff is precluded from recovering punitive damages from Defendants

under California Civil Code S 3294.
SEVENTEENTH AFFIRMATIVE DEFENSE

(Unconstitutionality)

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52.

Plaintiff has failed to state a claim upon which punitive or exemplary damages

may be awarded, since the impos¡tion of liability upon Defendants for anything other than actual damages would constitute a violation of Defendants' rights under the United States and Cal ifornia Constitut¡ons. E¡GHTEENTH AFFIRMATIVE DEFENSE

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(Compliance With Laws)

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53.

Plaintiff's Complaint and each count therein, are barred because Defendants

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complied with all applicable laws, regulations and code requirements that were in effect at
the time the events about which Plaintiff complains allegedly occurred.

DISCRIMINATORY

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NINETEENTH AFFIRMAT¡VE DEFENSE

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(Assumption of Risk)

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54.

The Complaint, and each count therein, fails and is baned in whole or in part

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because any purported damages or losses suffered by Plaintiff were caused by a risk which

Plaintiff knowingly and voluntarily assumed.
TWENTIETH AFFIRMATIVE DEFENSE

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(Conditions Precedent)

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55.
Drecedent.

Plaintiff's Complaint and each count therein are barred for Plaintiff's failure to

properly exhaust the appropriate remedies and/or perform the necessary conditions

TWENTY-FIRST AFFIRMATIVE DEFENSE

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(Additional Affirmative Defenses)

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form a belief

Defendants presently have insufficient knowledge or information on which to
as

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to whether they may have additional affirmative defenses available.

Defendants reserve the right to assert additional affirmative defenses in the event discovery

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or further analysis indicates that additional unknown or unstated affirmative defenses would
be applicable.
PRAYER

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WHEREFORE, Defendants pray for judgment against Plaintiff as follows:

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1. 2. 3. 4.

That Plaintiff takes nothing by way of her Complaint;
That judgment be entered in favor of Defendants;

That Defendants be awarded their costs of suit incurred herein; and
For such other and further relief as the Court deems just and proper

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s/Dan iel E. Cardenswartz

DATED: June 16,2008
26 LTD, et al.

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Case 3:08-cv-01029-WQH-POR

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CERTIFICATE OF SERVICE VIA CM/ECF SYSTEM

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l, herby certify that on June 16,2008,1 electronically filed the following document(s):
ANSWER TO COMPLAINT FOR DISCRIMINATORY PRACTICES IN PUBLIC

ACCOMMODATIONS
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with the Clerk of the United States District Court for the Southern District of California, using the CM/ECF System. The Court's CM/ECF System will send an e-mair notification of the foregoing filing to the following parties and counsel of record who are registered with the Court's CÀ,VECF System:
Theodore A. Pinnock, Esq. Pinnock & Wakefield 3033 Fifth Avenue, Suite 410 San Diego, CA92103 theodorepinnock@pinnockwakefieldlaw Tel: (619) 858-3671 Fax: (61 9) 858-3646 Attorneys for Plaintiff NONI COTTI
Pursuant to the CM/ECF System, registration as a CM/ECF user constitutes consent to electronic service through the Court's transmission facilities.
I declare under penalty of perjury under the laws of the Un¡ted States of America that the foregoing is true and correct, and that I executed this Certificate of Service on June 16, 2008, at San Diego, California.

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Pamela Blanton

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