Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00891-JAH-POR

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MICHAEL J. AGUIRRE, City Attorney DONALD F. SHANAHAN, Deputy City Attorney California State Bar No. 49777 Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101-4100 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 Attorneys for Defendants City of San Diego, San Diego Police Department, William Lansdowne and Franklin White

Exempt from fees per Gov't code 6103 To the benefit of the City of San Diego

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. 08cv0891 JAH (POR) DEFENDANTS CITY OF SAN DIEGO, SAN DIEGO POLICE DEPARTMENT, WILLIAM LANSDOWNE AND FRANKLIN WHITE'S ANSWER TO PLAINTIFF'S COMPLAINT

JOHNNY SILVA, a individual and minor, by ) 11 and through his guardian ad litem, LUIS SILVA, ) ) Plaintiff, ) 12 ) v. ) 13 ) 14 FRANKLIN WHITE, an individual, WILLIAM ) LANSDOWNE, an individual, SAN DIEGO ) ) 15 POLICE DEPARTMENT, CITY OF SAN DIEGO, and DOES 1 - 20, ) ) 16 Defendants. ) ) 17 18 19 20 21 22 23 24 25 26 27 28 1.

Defendants, City of San Diego, San Diego Police Department, William Lansdowne and Franklin White, severing themselves from any other party, answer Plaintiff's Complaint for Damages, as follows: I GENERAL ALLEGATIONS These answering Defendants allege that the allegations contained in Paragraphs 1,

2, and 3 contain legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. To the extent an answer is required, said allegation is denied. 2. These answering Defendants have insufficient information to admit or deny the

allegations contained in Paragraphs 4, 5, 6, and 7, and therefore, deny the same. /// 1
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. 9.

3.

These answering Defendants admit the allegations contained in Paragraphs 8, and

4.

These answering Defendants have insufficient information to admit or deny the

allegations contained in Paragraph 10, and therefore, deny the same. II FACTS 5. In answer to Paragraph 11, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 10 of Plaintiff's Complaint. 6. These answering Defendants have insufficient information to admit or deny the

allegations contained in Paragraphs 13, 15, 16, 17, 19, and 20, and therefore, deny the same. 7. These answering Defendants admit the substantial truth of the allegations

contained in Paragraphs 12, 14, and 21. 8. These answering Defendants deny the allegations contained in Paragraphs 18 and

FIRST CAUSE OF ACTION (Civil Rights Action (42 U.S.C. § 1983) Excessive Force against Defendant White and DOES 1-20) 9. In answer to Paragraph 23, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 22 of Plaintiff's Complaint. 10. These answering Defendants allege that the allegations contained in Paragraph 24

contain legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. To the extent an answer is required, said allegation is denied. 11. These answering Defendants allege that the allegations contained in Paragraphs 25

and 26 contain legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. To the extent an answer is required, said allegation is denied. /// 2
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36, 37.

12.

These answering Defendants deny the allegations contained in Paragraphs 27, 28,

29, 30, 31, 32, and 33. SECOND CAUSE OF ACTION (Assault and Battery against Defendant White and DOES 1-20) 13. In answer to Paragraph 34, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 33 of Plaintiff's Complaint. 14. These answering Defendants deny the allegations contained in Paragraphs 35, and

THIRD CAUSE OF ACTION (Civil Rights Action (42 U.S.C. § 1983) Against Defendants LANSDOWNE, CITY OF SAN DIEGO AND THE DEPARTMENT and DOES 1-20 For Failure to Properly Screen and Hire) 15. In answer to Paragraph 38, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 37 of Plaintiff's Complaint. 16. These answering Defendants deny the allegations contained in Paragraphs 39, 40,

41, 42, 43, and 44. FOURTH CAUSE OF ACTION (Civil Rights Action (42 U.S.C. § 1983) For Failure to Properly Train Against Defendants LANSDOWNE, CITY OF SAN DIEGO AND THE DEPARTMENT and DOES 1-20) 17. In answer to Paragraph 45, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 44 of Plaintiff's Complaint. 18. These answering Defendants deny the allegations contained in Paragraphs 46, 47,

48, 49, 50 and 51. /// /// 3
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 68. /// /// 23. and 64. 21. 19.

FIFTH CAUSE OF ACTION (Civil Rights Action (42 U.S.C. § 1983) For Failure to Supervise and Discipline Against Defendants LANSDOWNE, CITY OF SAN DIEGO AND THE DEPARTMENT and DOES 1-20) In answer to Paragraph 52, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 51 of Plaintiff's Complaint. 20. These answering Defendants deny the allegations contained in Paragraphs 53, 54,

55, 56, 57, 58, 59, and 60. SIXTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress against All Defendants) In answer to Paragraph 61, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 60 of Plaintiff's Complaint. 22. These answering Defendants deny the allegations contained in Paragraphs 62, 63,

SEVENTH CAUSE OF ACTION (Negligence against All Defendants) In answer to Paragraph 65, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 64 of Plaintiff's Complaint. 24. These answering Defendants allege that the allegations contained in Paragraph 66

contain legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. To the extent an answer is required, said allegation is denied. 25. These answering Defendants deny the allegations contained in Paragraphs 67 and

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and 84. /// /// /// /// 31. 28. 71. 26.

EIGHTH CAUSE OF ACTION (Negligent Infliction of Emotional Distress against All Defendants) In answer to Paragraph 69, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 68 of Plaintiff's Complaint. 27. These answering Defendants deny the allegations contained in Paragraphs 70 and

NINTH CAUSE OF ACTION (California Civil Rights Violation (Section 52.1) against All Defendants) In answer to Paragraph 72, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 71 of Plaintiff's Complaint. 29. These answering Defendants allege that the allegations contained in Paragraphs 73

and 74 contain legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. To the extent an answer is required, said allegation is denied. 30. These answering Defendants deny the allegations contained in Paragraphs 75, 76,

77, 78, 79, and 80. TENTH CAUSE OF ACTION (Violation of Fourteenth Amendment Right to Due Process) In answer to Paragraph 81, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 80 of Plaintiff's Complaint. 32. These answering Defendants deny the allegations contained in Paragraphs 82, 83,

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ELEVENTH CAUSE OF ACTION (Injunctive Relief) In answer to Paragraph 85, these answering Defendants incorporate by reference

each and every admission, denial and allegation of their answer to all of Paragraphs 1 through 84 of Plaintiff's Complaint. 34. These answering Defendants deny the allegations contained in Paragraphs 86 and

AFFIRMATIVE DEFENSES As separate, distinct and affirmative defenses to the Complaint on file herein, and to each cause of action, these answering defendants allege as follows: I Plaintiff's Complaint fails to state facts sufficient to constitute a cause of action against these answering defendants. II Defendant, City of San Diego, its agents and employees, and the Defendant police officer acted in good faith and with a reasonable belief that his conduct was lawful and necessary. III Defendant, City of San Diego, is immune from liability in that a public entity is not liable for an injury arising out of its acts or omissions or of a public employee, in the absence of a statute declaring such liability, pursuant to Government Code section 815.2(b). IV An employee is not liable for his acts or omissions, while exercising due care, in the execution or enforcement of any law. (Gov' Code §§ 820.4 and 815.2.) t. V Any employee of the City is not liable for an injury resulting form an act or omission of the employee where such act or omission was the result of discretion vested in the employee. (Gov'Code §§ 815.2.b and 820.2.) t /// 6
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VI Public employees are not liable for an injury caused by the act or omission of another person. (Gov'Code § 820.8.) t VII Defendant, City of San Diego, and its agents and employees are not liable for punitive damages. (Gov'Code § 818.) t VIII Defendant, City of San Diego, its agents and employees, and the Defendant police officer are not liable for injuries resulting from acts or omissions which were an exercise of discretion in the absence of a statute declaring such liability. IX Defendant, City of San Diego, its agents and employees, and the Defendant police officer are not liable while acting within the scope of their duties for injuries resulting from judicial or administrative proceedings. X Defendant, City of San Diego, its agents and employees, and the Defendant police officer are not liable for the execution or enforcement of the California Penal Code where due care is exercised. XI Defendant, City of San Diego, its agents and employees, and the Defendant police officer are not liable for violation of the plaintiffs' civil rights in that the alleged wrongful acts were not under color of any statute, ordinance, regulation, custom or usage of the City of San Diego. X The conduct in question did not constitute a violation of a federally protected right. XI Defendants acted reasonably and within the course and scope of his employment at all times, and is therefore entitled to qualified immunity. /// 7
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XII Ms. Rachel Silva was negligent in and about the matters alleged in the Complaint and said carelessness on her proximately contributed to the happening of the alleged incident, injuries and damages complained of, if any such exist. XIII Defendant, City of San Diego, its agents and employees, and the Defendant police officer were at all times alleged in the Complaint performing duties required by law under conditions required by law. XIV Any and all acts of the defendant, City of San Diego, its agents and employees, and the Defendant police officers at or near the time alleged in the Complaint were reasonable and said defendants had reasonable cause to act in the manner they did. XV At the time of the initial contact, the Defendant police officers were acting within the scope of their employment and had probable cause to believe that Rachel Silva was engaging in, or had just engaged in, a prohibited activity. During the contact, the Defendant police officer was acting within the scope of his employment and had probable cause to believe that said person had committed a felony. XVI The facts alleged in the Complaint, and each cause of action therein, do not constitute a cause of action against these answering defendants, in that Plaintiffs failed to comply with the claims presentation requirements set forth in Government Code section 901, et seq. XVII Defendant, City of San Diego, its agents and employees and defendant police officers are not liable for violation of Plaintiffs' civil rights in that the alleged wrongful acts were not under color of any statute, ordinance, regulation, custom or usage of the City of San Diego. /// /// 8
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 7, 2008

XVIII Defendant cannot be held vicariously liable or liable on a theory of respondeat superior for the alleged actions of others. WHEREFORE, these answering defendants pray judgment as follows: 1. Plaintiff take nothing by his Complaint; 2. Defendants receive their costs of suit incurred herein; and 3. Such other relief as the court deems proper.

MICHAEL J. AGUIRRE, City Attorney By /s/ Donald F. Shanahan Donald F. Shanahan Deputy City Attorney

Attorneys for Defendants City of San Diego, San Diego Police Department, William Lansdowne and Franklin White

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHNNY SILVA, etc. Plaintiff, v.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No.: 08cv0891 JAH (POR) DECLARATION OF SERVICE

CITY OF SAN DIEGO, et al., Defendants. I, the undersigned, declare under penalty of perjury that I am over the age of eighteen years and not a party to this action; and that I served the individuals on the service list attached hereto the following documents: DEFENDANTS CITY OF SAN DIEGO, SAN DIEGO POLICE DEPARTMENT, WILLIAM LANSDOWNE AND FRANKLIN WHITE'S ANSWER TO PLAINTIFF'S COMPLAINT, in the following manner: (Check one) 1) By personally serving the individual named by personally delivering the copies to the offices of the addressee. Time of delivery: ___________ a.m./p.m. 2)___ By leaving, during usual office hours, copies in the office of the person served with the person who apparently was in charge and thereafter mailing copies (first class mail, postage prepaid) to the person served at the place where the copies were left. 3) XX By electronic filing, I served each of the above referenced documents by E filing, in accordance with the rules governing the electronic filing of documents in the United States District Court for the Southern District of California, as to the following parties: Eugene Iredale [email protected], [email protected]

Executed: July 7, 2008, at San Diego, California.

SHELLEY CARTER

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