Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00105-L-NLS

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Filed 02/19/2008

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R o b e r t W. Zickert, Esq. S t a t e B a r No. 1 0 6 5 1 0 LAW O F F I C E O F ROBERT W . ZICKERT 4 4 4 West "C" S t r e e t , S u i t e 2 0 0 San Diego, C a l i f o r n i a 92101 T e l e p h o n e : ( 6 1 9 ) 685-6888 F a c s i m i l e : (619) 544-1961 r z i c k e r t @ a o l . corn Attorney for Defendants, STONECREST GAS & WASH, I N C . STONECREST PLAZA, LLC and

U N I T E D S T A T E S D I S T R I C T COURT SOUTHERN D I S T R I C T O F C A L I F O R N I A

C H R I S KOHLER, Plaintiff,

v.

) ) ) ) ) )

CASE NO.

08-CV-0105

L NLS

STONECREST GAS & WASH, I N C . d b a ) ) STONECREST S H E L L ; STONECREST PLAZA, L L C ; BARRY JAY STONE; ) STONECREST SQUARE AUTO CENTER, ) LLC; VINCENT MANNO, TRUSTEE of ) t h e VINCENT D. MANNO TRUST ) AGREEMENT DATED A P R I L 2 3 , 1 9 9 1 ; ) CAROL ANN CARLETON, TRUSTEE of ) t h e CAROL A . CARLETON TRUST ) AGREEMENT DATED MAY 2 , 1 9 9 1 ; ) FILOMENA R . BUCKINGHAM, T R U S T E E ) of t h e CAROL A . CARLETON TRUST ) AGREEMENT DATED MAY 2 , 1 9 9 1 ; ) AMELIA M . LUCAS, TRUSTEE of t h e ) CAROL A . CARLETON TRUST ) AGREEMENT DATED MAY 2 , 1 9 9 1 ; ) CAROL ANN CARLETON, TRUSTEE of ) t h e FILOMENA R . BUCKINGHAM ) TRUST AGREEMENT DATED MAY 2 , ) 1 9 9 1 ; FILOMENA R . BUCKINGHAM, ) TRUSTEE o f t h e FILOMENA R . ) BUCKINGHAM TRUST AGREEMENT 1 DATED MAY 2 , 1 9 9 1 ; AMELIA M . ) LUCAS, TRUSTEE of t h e FILOMENA ) R . BUCKINGHAM TRUST AGREEMENT ) DATED MAY 2 , 1 9 9 1 ; C A R O L A N N ) CARLETON, TRUSTEE of t h e ) FILOMENA R . BUCKINGHAM TRUST ) AGREEMENT DATED MAY 2 , 1 9 9 1 ; )

DEFENDANTS, STONECREST GAS & WASH, I N C . dba STONECREST S H E L L AND STONECREST PLAZA, L L C ' S , ANSWER T O THE C I V I L COMPLAINT

ANSWER TO CIVIL COMPLAINT

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FILOMENA R. BUCKINGHAM, TRUSTEE) of the AMELIA M. LUCAS TRUST ) AGREEMENT DATED MAY 2, 1991; ) AMELIA M. LUCAS, TRUSTEE of the) AMELIA M. LUCAS TRUST AGREEMENT) ) DATED MAY 2, 1991; LARRY M. LUCAS, TRUSTEE of the LUCAS ) FAMILY TRUST U/D/T DATED ) JANUARY 22, 1991; AMELIA M. ) LUCAS, TRUSTEE of the LUCAS ) FAMILY TRUST U/D/T DATED JANUARY 22, 1991, Defendants.
~

~

) ) -)

-

~

COME

NOW

Defendants, SHELL and

STONECREST

GAS

&

WASH, and

INC.

dba

STONECREST themselves Plaintiff's

STONECREST

PLAZA,

LLC,

severing

from the other defendants and

in answer to the and each claim

Civil Complaint on file herein,

contained therein, admit, deny and allege as follows.
I.

GENERAL ("Summarvff ALLEGATIONS )

1.

In

response

to paragraphs

1

and

2 of

the

General

Allegations contained in the Civil Complaint, these answering Defendants deny each and every allegation contained therein.
11. JURISDICTION

2.

In response to paragraphs

3, 4 and 5 of the Civil

Complaint, these answering Defendants admit that the Court has original jurisdiction of this matter.
111.

VENUE

3.

In response to paragraph 6 of the Civil Complaint, these

answering Defendants admit each and every allegation contained therein.

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IV.

PARTIES

4. these

In response to paragraphs 7 and 8 of the Civil Complaint, answering Defendants deny the allegations contained

therein.
V. FACTS

6.

In response to paragraph 9 of the Civil Complaint, these Defendants admit that the building, structure,

I I

answering

facility, complex, property, land, development and/or surrounding business complex identified in paragraph 1 of the Civil Complaint as "the Gas Station" is open to the public. 7. In response to paragraphs 13, 14 and 15 of the Civil these answering Defendants deny the allegations

Complaint,

contained therein. 8. In response to paragraphs 10, 11 and 12 of the Civil

Complaint, these answering Defendants deny having sufficient knowledge and information to form a belief as to

those
allegations and, as such, hereby deny said allegations.
CLAIMS VI. FIRSTCLAIM: AMERICANS WITH DISABILITIES ACT OF 1990 Denial of "Full and Equal" Enjoyment and Use
9.

I

In response to paragraph 16 of the Civil Complaint, these

answering Defendants reallege and incorporate their responses to the General ("Summary") Allegations, Jurisdiction, Venue, Parties and Facts, Sections I through V of the Civil Complaint,

and
paragraphs 1-8 above, as though set forth in full herein. 10. These answering Defendants deny having sufficient

I
I
I
!,

knowledge and information to form a belief as to the allegations contained in paragraphs 17 and 18 of the Civil Complaint, and, as
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ANSWER CIVILCOMPLAINT TO

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such, hereby deny said allegations.
Failure to Remove Architectural Barriers in Existinq Facility

11.

These

answering

Defendants

deny

having

sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 19, 20, 21 and 22 of the Civil Complaint, and, as such, hereby deny said allegations.
Failure to Desisn and Construct an Accessible Facility

12.

These

answering

Defendants

deny

having

sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 23, 24 and 25 of the Civil Complaint, and, as such, hereby deny said allegations.
Failure to Desisn and Construct an Accessible Facility

13.

These

answering

Defendants

deny

having

sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 23, 24 and 25 of the Civil Complaint, and, as such, hereby deny said allegations.
Failure to Make an Altered Facilitv Accessible

14.

These

answering

Defendants

deny

having

sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 26, 27 and 28 of the Civil Complaint, and, as such, hereby deny said allegations.
Failure to Modifv Existinff Policies and Procedures

15.

These

answering

Defendants

deny

having

sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 29, 30, 31 and 32 of the Civil Complaint, and, as such, hereby deny said allegations.

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_ ANSWER TO C I V I L COMPLAINT _ -

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VII.

SECOND CLAIM: DISABLED PERSONS ACT

16.

In response to paragraph 33 of the Civil Complaint, these

answering Defendants reallege and incorporate their responses to the General ("Summary") Allegations, Jurisdiction, Venue, Parties and Facts, and First Claim, Sections I through VI of the Civil Complaint, and paragraphs 1-15 above, as though set forth in full herein. 17. These answering Defendants deny having sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 34, 35, 36, 37, 38 and 39 of the Civil Complaint, and, as such, hereby deny said allegations.
VIII. THIRD CLAIM: UNRUH CIVIL RIGHTS ACT

18.

In response to paragraph 40 of the Civil Complaint, these

answering Defendants reallege and incorporate their responses to the General ("Summary") Allegations, Jurisdiction, Venue, Parties and Facts, First Claim and Second Claim, Sections I through VII of the Civil Complaint, and paragraphs 1-17 above, as though set forth in full herein. 19. These answering Defendants deny having sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 41, 42, 43, 44, 45, 46 and 47 of the Civil Complaint, and, as such, hereby deny said allegations.
IX. FOURTH CLAIM: DENIAL OF FULL AND EQUAL ACCESS TO PUBLIC FACILITIES

20.

In response to paragraph 48 of the Civil Complaint, these

answering Defendants reallege and incorporate their responses to the General ("Summary") Allegations, Jurisdiction, Venue, Parties and Facts, First Claim, Second Claim and Third Claim, Sections I

ANSWERTO CIVIL COMPLAINT

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through VIII of the Civil Complaint, and paragraphs 1-19 above, as though set forth in full herein. 21. These answering Defendants deny having sufficient

knowledge and information to form a belief as to the allegations contained in paragraphs 49, 50, 51 and 52 of the Civil Complaint, and, as such, hereby deny said allegations.
AFFIRMATIVE DEFENSES

These answering Defendants affirmatively allege as follows:
-

FIRST AFFIRMATIVE DEFENSE

As a first separate and affirmative defense to the Plaintiff's Civil Complaint, these answering Defendants allege that the Civil Complaint on file herein fails to state a claim upon which relief can be granted against these answering Defendants.
SECOND AFFIRMATIVE DEFENSE

As

a

second

separate

and

affirmative

defense

to

the

Plaintiff's Civil Complaint, these answering Defendants allege that the Civil Complaint on file herein is barred by the

applicable statute of limitations, including, but not limited to, Code of Civil Procedure section 338. THIRD AFFIRMATIVE DEFENSE As a third separate and affirmative defense to the Plaintiff's Civil Complaint, these answering Defendants alleges that they did not engage in discriminatory conduct based on the alleged

disability of an individual which deprived said individual of full and equal enjoyment of goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation.

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ANSWER TO CIVILCOMPLAINT

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FOURTH AFFIRMATIVE DEFENSE As a fourth separate and affirmative defense to the

Plaintiff's Civil Complaint, these answering Defendants allege that if any violations exist, which these answering Defendants adamantly deny, taking any steps to remedy said violations could only be accomplished with significant difficulty and expense thereby resulting in
§

an

"undue burden"

to

these

answering

Defendants [42 USC

12182 (b)(2)(A)(iii)]

.

FIFTH AFFIRMATIVE DEFENSE As a fifth separate and affirmative defense to the Plaintiff's Civil Complaint, these answering Defendants allege that if any violations exist, which these answering Defendants adamantly deny, when balancing the economic concerns of the businesses, STONECREST GAS
&

WASH, INC. and STONECREST PLAZA, LLC, with the rights of the removal of said violations are not "readily

individual, the

achievable" [42 USC §I2182 (b)(2)(A)(iv)]

.

SIXTH AFFIRMATIVE DEFENSE As a sixth separate and affirmative defense to the Plaintiff Is Civil Complaint, these answering Defendants allege that less accessibility is permitted for retrofitted structures than is required for construction or alterations commencing after January 26, 1992. SEVENTH AFFIRMATIVE DEFENSE As a seventh separate and affirmative defense to the

Plaintiff's Civil Complaint, these answering Defendants allege that the Plaintiff has failed to exhaust all State Court

Administrative Remedies as required by 42 U. S.C. S2000 a-3 (a), thereby subjecting the Civil Complaint to a Motion to Dismiss.
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ANSWERTO CIVIL COMPLAINT

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EIGHTH AFFIRMATIVE DEFENSE

As

an

eighth

separate

and

affirmative

defense

to

the

Plaintiff's Civil Complaint, these answering Defendants allege that they employed good faith efforts to comply with the

Americans With Disabilities Act.
NINTH AFFIRMATIVE DEFENSE

As a ninth separate and affirmative defense to the Plaintiff's Civil Complaint, these answering Defendants allege that the Plaintiff and Plaintiff's counsel are barred from relief sought in the Civil Complaint by the doctrine of unclean hands.
TENTH AFFIRMATIVE DEFENSE

As a tenth separate and affirmative defense to the Plaintiff's Civil Complaint, these answering Defendants allege that there has been no violation of the Unruh Civil Rights Act, in that the Act does not require any construction, alteration, repair (structural or otherwise) or modification of any sort whatsoever to any existing establishment or building or any other structure (Civil Code section 51).
ELEVENTH AFFIRMATIVE DEFENSE

As

an

eleventh

separate

and

affirmative defense

to

the

Plaintiff's Civil Complaint, these answering Defendants allege that at the time and place of the alleged failure to make the facility accessible, any resultant injuries sustained by the Plaintiff, if any, or damages, if any, were proximately

contributed to and caused by the failure of the Plaintiff to exercise proper and/or ordinary care, caution or prudence on his own behalf at the time of said incident, and said failure on Plaintiff's part bars or diminished Plaintiff's recovery herein.

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TWELFTH AFFIRMATIVE DEFENSE

As

a

twelfth

separate

and

affirmative

defense

to

the

Plaintiff's Civil Complaint, these answering Defendants allege that at all times mentioned herein, Plaintiff failed to use reasonable care to reduce and minimize as much as reasonably possible his damages, if any, and that said failure was the direct and proximate cause of any and all damage sustained by Plaintiff, if any, and therefore, these answering Defendants are not liable to the Plaintiff for damages.
THIRTEENTH AFFIRMATIVE DEFENSE

As

a

thirteenth

separate and

affirmative defense to the

Plaintiff's Civil Complaint, these answering Defendants allege that if Plaintiff suffered or sustained any damages alleged in the Civil Complaint, those damages were proximately caused and contributed to by persons other than these answering Defendants, and liability for all responsible parties, named or unnamed, should be apportioned according to the relative degrees of fault and the liability of these answering Defendants should be reduced accordingly.
FOURTEENTH AFFIRMATIVE DEFENSE

As a fourteenth separate and affirmative defense to the Plaintiff's Civil Complaint, these answering Defendants allege and asserts the Fair Responsibility Act of 1986, codified at Civil Code section 1431-1431.5, limits specified damages

recoverable by Plaintiff against this answering Defendant to that portion of Plaintiff's damages which are attributable to these answering Defendants' percentage of fault or liability, if any.

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FIFTEENTH AFFIRMATIVE DEFENSE As a fifteenth Civil separate and Complaint, affirmative defense to the

Plaintiff's

these answering

Defendants are

informed and believe and based thereon allege that Plaintiff has no standing to file this lawsuit, as he is not a resident of San Diego County. SIXTEENTH AFFIRMATIVE DEFENSE These answering Defendants presently have insufficient

knowledge or information upon which to form a belief as to whether they may have additional, as yet unstated affirmative defenses. These answering Defendants herein expressly reserve

the right to amend their Answer, upon application to the Court or stipulation of the parties, to assert additional affirmative defenses in the event discovery indicates it would be

appropriate. WHEREFORE, these answering Defendant pray for judgment against Plaintiff herein as follows: (1) That the Plaintiff take nothing by reason of his Civil Complaint; (2) For equitable contribution by any Defendants or CounterDefendants, and each of them, on the basis of an

apportionment of their respective degrees of legally responsible conduct toward satisfaction of any award or judgment obtained by the Plaintiff;
(3) That

these

answering

Defendants

be

awarded

their

attorney's fees and costs of suit incurred herein; and

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(4)

For such other and further relief as the court may deem just and proper.

DATED: February 19, 2008

LAW OFFICE OF ROBERT W. ZICKERT

Attorney for W WA C STONECREST GAS & N STONECREST PLAZA, LLC CERTIFICATE O F SERVICE

. and

I hereby certify that a copy of the foregoing DEFENDANTS, STONECREST GAS & WASH, INC. dba STONECREST SHELL AND STONECREST PLAZA, L L C r S ,ANSWER TO THE CIVIL COMPLAINT was this date served upon all counsel of record by placing a copy of the same in the United States Mail, postage prepaid, and sent to their last known address as follows: Lynn Hubbard, 111, Esq. Scott Lynn J. Hubbard, IV, Esq. Disabled Advocacy Group, APLC 12 Williamsburg Lane Chico, CA 95926 Telephone: (530) 895-3252 Facsimile: (530) 894-8244 Attorneys for Plaintiff, CHRIS KOHLER

Executed at San Diego, California this lgthday of February, 2008.
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