Video Software Dealers Association et al v. Schwarzenegger et al

Filing 36

ANSWER to Complaint byGeorge Kennedy, Ann Miller Ravel. (Zoglin, Kathryn) (Filed on 11/15/2005)

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Video Software Dealers Association et al v. Schwarzenegger et al Doc. 36 Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 1 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 ANN MILLER RAVEL, County Counsel (S.B. #62139) GREGORY J. SEBASTINELLI, Deputy County Counsel (S.B. #104884) KATHRYN J. ZOGLIN, Deputy County Counsel (S.B. #121187) OFFICE OF THE COUNTY COUNSEL 70 West Hedding, East Wing, 9th Floor San Jose, California 95110-1770 Telephone: (408) 299-5900 Facsimile: (408) 292-7240 Attorneys for Defendants SANTA CLARA COUNTY DISTRICT ATTORNEY GEORGE KENNEDY AND SANTA CLARA COUNTY COUNSEL ANN MILLER RAVEL, IN THEIR OFFICIAL CAPACITIES UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA VIDEO SOFTWARE DEALERS ) ASSOCIATION and ENTERTAINMENT ) SOFTWARE ASSOCIATION, ) ) Plaintiffs, ) ) v. ) ) ) ARNOLD SCHWARZENEGGER, in ) his official capacity as Governor of the, ) State of California; BILL LOCKYER, ) in his official capacity as Attorney ) General of the State of California; ) GEORGE KENNEDY, in his official ) capacity as Santa Clara County District ) Attorney, RICHARD DOYLE, in his ) official capacity as City Attorney for ) the City of San Jose, and ANN MILLER ) RAVEL, in her official capacity as ) County Counsel for the County of ) Santa Clara, ) ) Defendants. ) ) No. C05-4188 RMW (RS) ANSWER BY DEFENDANTS SANTA CLARA COUNTY DISTRICT ATTORNEY GEORGE KENNEDY AND COUNTY COUNSEL ANN MILLER RAVEL TO COMPLAINT Defendants Santa Clara County District Attorney George Kennedy and County Counsel Ann Ravel hereby answer the Complaint ("Complaint") of plaintiffs on file herein and admit, deny, and allege as follows: /// C o u n t y Defendants' Answer t o Plaintiffs' Complaint 1 C 0 5 - 4 1 8 8 RMW (RS) Dockets.Justia.com Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 2 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 Answering the allegations of paragraph 1 of the Complaint, these answering defendants have insufficient information or belief to enable them to respond and basing their denial on that ground, deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 2 of the Complaint, these answering defendants admit, based on information or belief, the first and last sentences of the paragraph. Other allegations inaccurately or incompletely portray the Act; these answering defendants deny each and every, all and singular, generally and specifically, allegations other than those in the first and last sentences of the paragraph. Answering the allegations of paragraph 3 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 4 of the Complaint, these answering defendants admit that the court decisions cited exist but contend that plaintiffs have not accurately characterized them. As such, defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 5 of the Complaint, these answering defendants admit that the Act does include a labeling requirement as to certain covered video games. As to the remaining allegations in paragraph 5, defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 6 of the Complaint, these answering defendants have insufficient information or belief as to the plaintiffs' membership to respond to allegations regarding their situation and on that basis deny each and every, all and singular, generally and specifically, said allegations. Defendants deny each and every, all and singular, generally and specifically, said remaining allegations. Answering the allegations of paragraph 7 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 8 of the Complaint, these answering defendants admit that the complaint states that the action is brought against these defendants in their official capacities. Defendants deny each and every, all and singular, generally and specifically, the C o u n t y Defendants' Answer t o Plaintiffs' Complaint 2 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 3 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 remaining allegations. Answering the allegations of paragraph 9 of the Complaint, these answering defendants respond that the personal residences of officials sued in their official capacities are confidential and/or irrelevant to jurisdiction. Defendants have insufficient information or belief to respond to the allegations regarding plaintiffs' members to respond. Defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 10 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 11 of the Complaint, these answering defendants lack information or belief as to said allegations and on that basis, deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 12 of the Complaint, these answering defendants lack information or belief as to said allegations and on that basis, deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 13 of the Complaint, these answering defendants have insufficient information or belief to respond to the allegations and on that ground, deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 14 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 15 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 16 of the Complaint, these answering defendants admit the first and third sentences of the paragraph. Defendants admit, based on information or belief, the second sentence. Answering the allegations of paragraph 17 of the Complaint, these answering defendants admit the first and last sentences in the paragraph. As to the remaining sentences in the paragraph, these answering defendants have insufficient information or belief upon the subjects to enable them to respond to the allegations, and basing their denial on that ground, deny each C o u n t y Defendants' Answer t o Plaintiffs' Complaint 3 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 4 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 18 of the Complaint, these answering defendants admit that George Kennedy is the District Attorney in Santa Clara County and the last sentence in the paragraph. Defendants admit that California Government Code 26521 provides: "The district attorney shall defend all suits brought against the state in his or her county or against his or her county wherever brought, and prosecute all recognizances forfeited in the courts of record and, except as provided in Section 1305 and 1306 of the Penal Code, prosecute all actions for the recovery of debts, fines, penalties, and forfeitures accruing to the state or his or her county." The wording in the first sentence is vague and ambiguous, and on that basis, basing their denial on that ground, deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 19 of the Complaint, these answering defendants have insufficient information or belief upon the subjects in the first two sentences to enable th em to respond to the allegations and, basing their denial on that ground, deny each and every, all and singular, generally and specifically, said allegations. Defendants admit the remaining allegations. Answering the allegations of paragraph 20 of the Complaint, these answering defendants admit that Ann Miller Ravel is the County Counsel for Santa Clara County. Defendants admit the allegations in the last sentence of the paragraph. Defendants deny the remaining allegations in the paragraph on the grounds that they are vague, ambiguous, incomplete, and/or inaccurate. Answering the allegations of paragraph 21 of the Complaint, these answering defendants deny, based on information or belief, each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 22 of the Complaint, these answering defendants deny based on information or belief, each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 23 of the Complaint, these answering defendants deny, based on information or belief, each and every, all and singular, generally and specifically, said allegations. C o u n t y Defendants' Answer t o Plaintiffs' Complaint 4 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 5 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 Answering the allegations of paragraph 24 of the Complaint, these answering defendants admit, based on information or belief, said allegations. Answering the allegations of paragraph 25 of the Complaint, these answering defendants cont end that the allegations are vague and ambiguous and on that ground deny, each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 26 of the Complaint, these answering defendants contend that the allegations are vague, ambiguous, and overbroad, and on that ground deny, each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 27 of the Complaint, these answering defendants, admit said allegations, based on information and belief. Answering the allegations of paragraph 28 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 29 of the Complaint, defendants admit that the provisions of the Act appear to be accurately presented. However, the introductory phrase (at lines 11-12) is not accurate and on that ground, defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 30 of the Complaint, the paragraph appears to accurately present parts of the Act and on that ground defendants admit, based on information and belief, said allegations. Answering the allegations of paragraph 31 of the Complaint, these answering defendants dispute plaintiffs' characterization in the first sentence of this paragraph and thus deny each and every, all and singular, generally and specifically, said allegations in the first sentence. The definition of "minor" omits the word "natural." Plaintiffs' quotation of the definition of the term "person" under the Act appears to be accurate, and on that ground, admits them based on information and belief. Answering the allegations of paragraph 32 of the Complaint, these answering defendants respond that plaintiffs appear to accurately present part of the Act, and on that ground, admits them based on information and belief. C o u n t y Defendants' Answer t o Plaintiffs' Complaint 5 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 6 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 Answering the allegations of paragraph 33 of the Complaint, these answering defendants respond that plaintiffs do not accurately present part of the Act and on that ground deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 34 of the Complaint, these answering defendants respond that plaintiffs appear to accurately present parts of the Act; however, some of the language used in the paragraph, particularly the last sentence, is vague and ambiguous. As a result, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 35 of the Complaint, these answering defendants respond that the allegations appear to accurately represent a portion of the Act, and on that ground, defendant admit said allegations based on information and belief. Answering the allegations of paragraph 36 of the Complaint, these answering defendants respond that plaintiffs's presentation of the provision of the Act is not entirely accurate and on that ground, deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 37 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 38 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 39 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 40 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 41 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 42 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 43 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. C o u n t y Defendants' Answer t o Plaintiffs' Complaint 6 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 7 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 Answering the allegations of paragraph 44 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 45 of the Complaint, these answering defendants deny each and every all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 46 of the Complaint, these answering defendants respond that these allegations are vague and ambiguous. As to other allegations, defendants have insufficient information or belief upon the subjects to enable them to respond. Basing their denial on these grounds, defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 47 of the Complaint, these answering defendants respond that the allegations are so vague and speculative that defendants cannot respond. Defendants deny each and every, all and singular, generally and specifically said allegations. Answering the allegations of paragraph 48 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 49 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 50 of the Complaint, these answering defendants respond that the allegations are so vague and/or they have insufficient information or belief upon the subjects to enable them to respond. These defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 51 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 52 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 53 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 54 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. C o u n t y Defendants' Answer t o Plaintiffs' Complaint 7 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 8 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 Answering the allegations of paragraph 55 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 56 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 57 of the Complaint, these answering defendants admit that the Act requires certain entities and/or individuals to label covered videos. As to the remaining allegations, defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 58 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 59 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 60 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 61 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 62 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 63 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 64 of the Complaint, these answering defendants have insufficient information or belief upon the subjects to enable them to respond to the allegations, and basing their denial on that ground, deny each and every, all and singular, generally and specifically, said allegations. Answering the allegations of paragraph 65 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said remaining allegations. Answering the allegations of paragraph 66 of the Complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations. C o u n t y Defendants' Answer t o Plaintiffs' Complaint 8 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 9 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 Responding to the prayers for relief set forth, these defendants deny that plaintiffs are entitled to any relief whatsoever, and further deny that plaintiffs have suffered any injury at all. Wherefore, defendants pray for judgment in their favor as set forth below. FIRST AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that neither the Complaint nor any of its purported causes of action state facts sufficient to constitute a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, defendants deny that plaintiffs have been deprived of any rights, privileges, or immunities guaranteed by the laws or Constitution of the United States or by the laws or Constitution of the State of California. THIRD AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that they did not actually cause the injuries complained of by plaintiffs. As such, these answering defendants are not liable for the injuries complained of herein. FOURTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that there is no proximate causation to link the injuries complained of by plaintiffs with any actions on the part of these answering defendants, if any there may be, as alleged in the Complaint. As such, these answering defendants are not liable for the injuries complained of. FIFTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that any acts on the part of these answering defendants (or County employees, if any there may be), are discretionary and C o u n t y Defendants' Answer t o Plaintiffs' Complaint 9 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 10 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 not ministerial in nature. As such, these answering defendants are not liable for the injuries complained of herein. SIXTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that plaintiffs' maintenance of this action is frivolous and vexatious, and not brought with reasonable cause and in the good faith belief that there is a justifiable controversy under the facts and law which warranted the filing of the action, thus entitling defendants to an award of attorneys' fees and costs. SEVENTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, defendants allege that each and every cause of action cont ained therein is barred for failure to allege a justiciable controversy. EIGHTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that plaintiffs have failed to mitigate any or all of the damages alleged in the Complaint and are thereby precluded from recovering those damages that could have reasonably been avoided by the exercise of due care on plaintiffs' part. NINTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that each and every cause of action of the Complaint is barred in that plaintiffs are estopped from recovering the amounts claimed or any relief at all. TENTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that each and every cause of action in the Complaint is barred in that plaintiffs have waived any rights plaintiffs may have had to the amounts claimed or any relief at all. C o u n t y Defendants' Answer t o Plaintiffs' Complaint 10 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 11 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 ELEVENTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, defendants allege that plaintiffs lack standing to maintain the present action or to obtain relief herein as to these answering defendants. TWELFTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that the laws complained of are not unconstitutional on their face or as applied; nor are the laws complained of unconstitutionally vague. THIRTEENTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that plaintiffs are barred from obtaining injunctive relief or other equitable relief by reason of the doctrine of unclean hands. FOURTEENTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that any purported restrictions are constitutional and lawful. FIFTEENTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that the claims are barred by immunities and privileges under federal and state law. SIXTEENTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, defendants allege that plaintiffs have adequate remedies at law and are therefore not entitled to equitable relief herein on any cause of action alleged. SEVENTEENTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, defendants allege that the acts and omissions alleged herein have not caused and will not cause irreparable harm to plaintiffs herein. C o u n t y Defendants' Answer t o Plaintiffs' Complaint 11 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 12 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 EIGHTEENTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that plaintiffs have failed to exhaust their administrative, judicial, and/or contractual remedies. NINETEENTH AFFIRMATIVE DEFENSE As a separate and affirmative defense to the Complaint and to each and every allegation therein, defendants allege that this action is barred due to the doctrine of res judicata and/or collateral estoppel. TWENTIETH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that plaintiffs have failed to state a claim upon which relief can be granted, including but not limited to the fact that plaintiffs' allegations do not constitute an exception to the abstention doctrine, which precludes granting the injunctive and declaratory relief sought by plaintiffs. TWENTY-FIRST AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that this Court has no jurisdiction over the subject of the cause of action alleged in plaintiffs' pleading against these answering defendants. TWENTY-SECOND AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that the Complaint should be dismissed because defendants are immune and/or entitled to qualified immunity based on the applicable federal and state laws and case law. TWENTY-THIRD AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, and to each and every cause of action contained therein, these answering defendants allege that there is no case in controversy at this time. /// C o u n t y Defendants' Answer t o Plaintiffs' Complaint 12 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 13 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 TWENTY-FOURTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that plaintiffs have named incorrect and improper parties as defendants in this suit. TWENTY-FIFTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that their conduct at all times material herein was privileged and/or justified under applicable law. TWENTY-SIXTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that the Complaint fails to allege facts sufficient to state a claim for relief under the Civil Rights or other federal statutes, nor does jurisdiction in this Court lie against defendants. TWENTY-SEVENTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that plaintiffs have alternative methods to express and/or communicate their views. TWENTY-EIGHTH AFFIRMATIVE DEFENSE As and for a separate and distinct affirmative defense to the Complaint, these answering defendants allege that plaintiffs failed to mitigate their damages. TWENTY-NINTH AFFIRMATIVE DEFENSE As a separate, distinct and affirmative defense to the Complaint, these answering defendants allege that each and every cause of action of the Complaint is barred as unripe. WHEREFORE, defendants pray for judgment against plaintiffs as follows: 1. That plaintiffs take nothing by their Complaint; 2. That the Complaint be dismissed with prejudice; 3. That plaintiffs' requests for injunctive and declaratory relief be denied; 4. That all costs of suit, including attorneys' fees, be awarded to defendants; C o u n t y Defendants' Answer t o Plaintiffs' Complaint 13 C 0 5 - 4 1 8 8 RMW (RS) Case 5:05-cv-04188-RMW Document 36 Filed 11/15/2005 Page 14 of 14 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 ANN MILLER RAVEL County Counsel C o un t y of Santa Clara San Jose, California 95110-1770 5. That judgment be entered in favor of defendants; and 6. That the Court award such further relief as this Court may deem just and proper. Dated: November 15, 2005 Respectfully submitted, ANN MILLER RAVEL County Counsel /S/ KATHRYN J. ZOGLIN Deputy County Counsel Attorneys for Defendants SANTA CLARA COUNTY DISTRICT ATTORNEY GEORGE KENNEDY AND SANTA CLARA COUNTY COU NSEL ANN MILLER RAVEL, IN THEIR OFFICIAL CAPACITIES S:\Main\Litigation\Video Game Case\Pleadings\Answer.wpd C o u n t y Defendants' Answer t o Plaintiffs' Complaint 14 C 0 5 - 4 1 8 8 RMW (RS)

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