Free Answer to Complaint - District Court of California - California

Case 3:08-cv-00082-IEG-RBB

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MAZZARELLA CALDARELLI Michael D. Fabiano (SBN 167058) 550 West C Street, Suite 700 San Diego, California 92101 (619) 238-4900 Telephone (619) 238-4959 Facsimile [email protected] Attorneys for Defendant THE VONS COMPANIES, INC.

LLP

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CHRIS KOHLER,

) Case No.: '08 CV 0082 IEG (RBB) ) Plaintiff, ) ANSWER OF THE VONS COMPANIES, ) INC. TO COMPLAINT vs. ) ) THE VONS COMPANIES, INC., dba VONS ) #2360, ) ) Defendant. ) ) ) ) )

VONS' ANSWER TO COMPLAINT

NO. '08 CV 0082 IEG (RBB)

Case 3:08-cv-00082-IEG-RBB

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Defendant The Vons Companies, Inc. ("Vons") (incorrectly identified by Plaintiff as "The Vons Companies, Inc. dba Vons #2360"), for itself and no other defendants, responds to the complaint of Chris Kohler ("Plaintiff") as follows: 1. 2. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. 3. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 4. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 5. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 6. Vons admits that the Vons store and the parking lot and common areas

identified in Plaintiff's complaint are located at 845 College Boulevard in Oceanside, California, and that this is within the Southern District of California. Except as so admitted, the allegations of this paragraph are legal contentions that do not require admission or denial. 7. Vons admits that it is a Michigan corporation and that Vons operates the Vons

store at 845 College Boulevard in Oceanside, California identified in Plaintiff's complaint. Except as so admitted, Vons denies each and every allegation of this paragraph. 8. Vons is without knowledge or information sufficient to form a belief as to the

allegations of this paragraph, and on that basis Vons denies each and every allegation of this paragraph. 9. Vons admits that it is the operator of the Vons store at 845 College Boulevard

in Oceanside, California. Except as so admitted, the allegations of this paragraph are legal contentions that do not require admission or denial. 10. 11. 12. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph. -1VONS' ANSWER TO COMPLAINT NO. '08 CV 0082 IEG (RBB)

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13. 14. 15. 16. 17.

Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph. Vons incorporates herein its responses to paragraphs 1-15. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 18. 19. Vons denies each and every allegation of this paragraph. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 20. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 21. 22. 23. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 24. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 25. 26. Vons denies each and every allegation of this paragraph. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 27. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 28. 29. Vons denies each and every allegation of this paragraph. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 30. 31. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. -2VONS' ANSWER TO COMPLAINT NO. '08 CV 0082 IEG (RBB)

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32.

Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. 33. 34. Vons incorporates herein its responses to paragraphs 1-32. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 35. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 36. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 37. 38. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. 39. Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. 40. 41. Vons incorporates herein its responses to paragraphs 1-39. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 42. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 43. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 44. 45. 46. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph. Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. 47. Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. 48. Vons incorporates herein its responses to paragraphs 1-47. -3VONS' ANSWER TO COMPLAINT NO. '08 CV 0082 IEG (RBB)

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49.

Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 50. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 51. Vons states that the allegations of this paragraph are legal contentions that do

not require admission or denial. 52. Vons denies each and every allegation of this paragraph, and Vons also denies

that Plaintiff is entitled to any of the relief sought. AFFIRMATIVE DEFENSES Vons currently has insufficient information available as to whether Vons has additional, as yet unstated, affirmative defenses beyond those stated hereinbelow. Vons reserves the right to assert additional affirmative defenses in the event that investigation or discovery indicates that such defenses would be appropriate. FIRST AFFIRMATIVE DEFENSE The complaint, and each and every purported cause of action therein, fail to state facts sufficient to constitute a cause of action against Vons. SECOND AFFIRMATIVE DEFENSE Vons is informed and believes, and on that basis alleges, that Plaintiff's claims are barred, in whole or in part, by applicable statutes of limitation, including but not limited to California Code of Civil Procedure sections 337, 338, 339, 340, and 343. THIRD AFFIRMATIVE DEFENSE Without admitting the allegations of the complaint, Vons alleges that any and all architectural barriers at this Vons store and the parking and common areas on the same parcel have been removed, and that goods, services, facilities, privileges, advantages and/or accommodations are provided on an equal and unrestricted basis. FOURTH AFFIRMATIVE DEFENSE If Plaintiff suffered any loss or damage, such loss or damage was proximately caused in whole or in part by Plaintiff's own failure to mitigate any alleged damages. Therefore, -4VONS' ANSWER TO COMPLAINT NO. '08 CV 0082 IEG (RBB)

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Plaintiff's claims must be reduced, diminished or defeated by such amounts as should have been mitigated. FIFTH AFFIRMATIVE DEFENSE The alleged conduct of Vons was excused, justified and/or privileged. SIXTH AFFIRMATIVE DEFENSE The damages allegedly suffered by Plaintiff, if any, are the direct and proximate result of the acts or omissions of other persons, and not of Vons. SEVENTH AFFIRMATIVE DEFENSE Plaintiff failed to exercise ordinary care, caution or prudence to avoid the injuries and damages alleged, if any. Therefore, any resulting damages to Plaintiff were proximately caused by Plaintiff's own conduct, and any recovery by Plaintiff must be reduced or barred entirely by the proportion of damages caused by Plaintiff's own conduct. EIGHTH AFFIRMATIVE DEFENSE Vons did not authorize, ratify, acquiesce in or have knowledge of any action by other persons constituting discrimination as alleged by Plaintiff. NINTH AFFIRMATIVE DEFENSE Vons is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of unclean hands. TENTH AFFIRMATIVE DEFENSE Vons is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of laches. ELEVENTH AFFIRMATIVE DEFENSE Vons is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of waiver. TWELFTH AFFIRMATIVE DEFENSE Vons is informed and believes, and on that basis alleges, that Plaintiff's claims are barred by the doctrine of estoppel.

-5VONS' ANSWER TO COMPLAINT NO. '08 CV 0082 IEG (RBB)

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THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff's alleged injuries, if any, took place upon and were caused by facilities and programs not under the control or ownership of Vons, but under the control or ownership of other persons. FOURTEENTH AFFIRMATIVE DEFENSE Vons has taken all steps readily achievable to comply with the ADA and with state laws of comparable effect to remove any barriers to access, to make the subject facilities, programs and services accessible, or to provide reasonable and satisfactory alternatives. FIFTEENTH AFFIRMATIVE DEFENSE Vons is informed and believes, and on that basis alleges, that Plaintiff lacks standing to sue Vons on one or more of the claims for relief alleged in the complaint. PRAYER FOR RELIEF WHEREFORE, Vons prays for judgment against Plaintiff as follows: 1. That Plaintiff takes nothing whatsoever by way of the complaint; 2. For an award of costs and attorneys' fees to the fullest extent allowed by applicable law; and 3. For such other and further relief as the Court deems just and proper. Dated: February 11, 2007 MAZZARELLA CALDARELLI
LLP

By: /s/ Michael D. Fabiano MICHAEL D. FABIANO Attorneys for Defendant THE VONS COMPANIES, INC.

-6VONS' ANSWER TO COMPLAINT NO. '08 CV 0082 IEG (RBB)