Video Software Dealers Association et al v. Schwarzenegger et al

Filing 40

Video Software Dealers Association et al v. Schwarzenegger et al

Doc. 40

Case 5:05-cv-04188-RMW

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Filed 11/21/2005

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RICHARD DOYLE, City Attorney (#88625) GEORGE RIOS, Assistant City Attorney (#77908) ROBERT FABELA, Sr. Deputy City Attorney (#148098) Office of the City Attorney 200 East Santa Clara Street San José, California 95113-1905 Telephone Number: [phone] Facsimile Number: [phone] E-Mail Address: [e-mail] Attorneys for RICHARD DOYLE, in his official capacity as City Attorney for the City of San Jose

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

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.

Case Number: C05-04188 RMW ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendant Richard Doyle ("Defendant"), in his official capacity as City Attorney for the City of San Jose, hereby answers the Complaint ("Complaint") of Plaintiffs on file herein and admits, denies, and alleges as follows: -1ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986
Dockets.Justia.com

Case 5:05-cv-04188-RMW

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1.

Answering the allegations of paragraph 1 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 2. Answering the allegations of paragraph 2 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 3. Answering the allegations of paragraph 3 of the Complaint, Defendant denies

the allegations contained therein. 4. Answering the allegations of paragraph 4 of the Complaint, Defendant

acknowledges the legal arguments made therein, but has insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 5. Answering the allegations of paragraph 5 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein. 6. Answering the allegations of paragraph 6 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 7. Answering the allegations of paragraph 7 of the Complaint, Defendant denies

the allegations contained therein. 8. Answering the allegations of paragraph 8 of the Complaint, Defendant admits

that the complaint states that the action is brought against these defendants in their official capacities. Except as so admitted, Defendant denies the remaining allegations contained therein 9. Answering the allegations of paragraph 9 of the Complaint, Defendant admits

that he is employed in this judicial district, Defendant has insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every remaining allegation contained therein. -2ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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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 10. Answering the allegations of paragraph 10 of the Complaint, Defendant denies

the allegations contained therein. 11. Answering the allegations of paragraph 11 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 12. Answering the allegations of paragraph 12 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 13. Answering the allegations of paragraph 13 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 14. Answering the allegations of paragraph 14 of the Complaint, Defendant denies

the allegations contained therein. 15. Answering the allegations of paragraph 15 of the Complaint, Defendant denies

the allegations contained therein. 16. Answering the allegations of paragraph 16 of the Complaint, Defendant admits

the allegations contained therein based on information and belief. 17. Answering the allegations of paragraph 17 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 18. Answering the allegations of paragraph 18 of the Complaint Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 19. Answering the allegations of paragraph 19 of the Complaint, Defendant admits

that Richard Doyle is the City Attorney for the City of San Jose and that the Act exists, the terms of which speak for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein. -3ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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20.

Answering the allegations of paragraph 20 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 21. Answering the allegations of paragraph 21 of the Complaint, Defendant denies

the allegations contained therein. 22. Answering the allegations of paragraph 22 of the Complaint, Defendant denies

the allegations contained therein. 23. Answering the allegations of paragraph 23 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 24. Answering the allegations of paragraph 24 of the Complaint, Defendant admits

the allegations contained therein based on information and belief. 25. Answering the allegations of paragraph 25 of the Complaint, Defendant

acknowledges the legal arguments made therein, but has insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 26. Answering the allegations of paragraph 26 of the Complaint, Defendant

acknowledges the legal arguments made therein, but has insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 27. Answering the allegations of paragraph 27 of the Complaint, Defendant admits

the allegations contained therein based on information and belief. 28. Answering the allegations of paragraph 28 of the Complaint, Defendant denies

the allegations contained therein. 29. Answering the allegations of paragraph 29 of the Complaint, Defendant denies

the allegations contained therein.

-4ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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30.

Answering the allegations of paragraph 30 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 31. Answering the allegations of paragraph 31 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 32. Answering the allegations of paragraph 32 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 33. Answering the allegations of paragraph 33 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 34. Answering the allegations of paragraph 34 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 35. Answering the allegations of paragraph 35 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 36. Answering the allegations of paragraph 36 of the Complaint, Defendant admits

the existence of the "Act," the terms of which speaks for themselves. Except as so admitted, Defendant denies the remaining allegations contained therein 37. Answering the allegations of paragraph 37 of the Complaint, Defendant denies

the allegations contained therein. 38. Answering the allegations of paragraph 38 of the Complaint, Defendant denies

the allegations contained therein. 39. Answering the allegations of paragraph 39 of the Complaint, Defendant denies

the allegations contained therein.

-5ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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40.

Answering the allegations of paragraph 40 of the Complaint, Defendant denies

the allegations contained therein. 41. Answering the allegations of paragraph 41 of the Complaint, Defendant denies

the allegations contained therein. 42. Answering the allegations of paragraph 42 of the Complaint, Defendant denies

the allegations contained therein. 43. Answering the allegations of paragraph 43 of the Complaint, Defendant denies

the allegations contained therein. 44. Answering the allegations of paragraph 44 of the Complaint, Defendant denies

the allegations contained therein. 45. Answering the allegations of paragraph 45 of the Complaint, Defendant denies

the allegations contained therein. 46. Answering the allegations of paragraph 46 of the Complaint, Defendant denies

the allegations contained therein. 47. Answering the allegations of paragraph 47 of the Complaint, Defendant has

insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 48. Answering the allegations of paragraph 48 of the Complaint, Defendant denies

the allegations contained therein. 49. Answering the allegations of paragraph 49 of the Complaint, Defendant denies

the allegations contained therein. 50. Answering the allegations of paragraph 50 of the Complaint, Defendant

acknowledges the legal arguments made therein, but has insufficient information or belief to enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 51. Answering the allegations of paragraph 51 of the Complaint, Defendant denies

the allegations contained therein.

-6ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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52.

Answering the allegations of paragraph 52 of the Complaint, Defendant denies

the allegations contained therein. 53. Answering the allegations of paragraph 53 of the Complaint, Defendant

incorporates by reference its answers to paragraphs 1 through 52 of the Complaint. 54. Answering the allegations of paragraph 54 of the Complaint, Defendant denies

the allegations contained therein. 55. Answering the allegations of paragraph 55 of the Complaint, Defendant denies

the allegations contained therein. 56. Answering the allegations of paragraph 56 of the Complaint, Defendant denies

the allegations contained therein. 57. Answering the allegations of paragraph 57 of the Complaint, Defendant denies

the allegations contained therein. 58. Answering the allegations of paragraph 58 of the Complaint, Defendant denies

the allegations contained therein. 59. Answering the allegations of paragraph 59 of the Complaint, Answering the

allegations of paragraph 58 of the Complaint, Defendant incorporates by reference its answers to paragraphs 1 through 58 of the Complaint. 60. Answering the allegations of paragraph 60 of the Complaint, Defendant denies

the allegations contained therein. 61. Answering the allegations of paragraph 61 of the Complaint, Defendant denies

the allegations contained therein. 62. Answering the allegations of paragraph 62 of the Complaint, Defendant denies

the allegations contained therein. 63. Answering the allegations of paragraph 63 of the Complaint, Defendant

incorporates by reference its answers to paragraphs 1 through 62 of the Complaint. 64. Answering the allegations of paragraph 64 of the Complaint, Defendant

acknowledges the legal arguments made therein, but has insufficient information or belief to

-7ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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enable him to respond and, basing his denial on that ground, denies each and every allegation contained therein. 65. Answering the allegations of paragraph 65 of the Complaint, Defendant denies

the allegations contained therein. 66. Answering the allegations of paragraph 66 of the Complaint, Defendant denies

the allegations contained therein. AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE The Complaint and each alleged cause of action fail to state facts sufficient to constitute a cause of action. SECOND AFFIRMATIVE DEFENSE The injunction requested, if enforced, would compel an act contrary to public policy and harmful to the public interest. THIRD AFFIRMATIVE DEFENSE All of the immunities and defenses afforded by Government Code §§800-1000, inclusive. FOURTH AFFIRMATIVE DEFENSE The challenged acts are discretionary acts, and Defendant properly exercised his discretion. FIFTH AFFIRMATIVE DEFENSE Plaintiff has failed to name real parties in interest and/or indispensable parties. SIXTH AFFIRMATIVE DEFENSE Plaintiff has failed to allege a justiciable controversy. SEVENTH AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate damages. EIGHTH AFFIRMATIVE DEFENSE Plaintiff is barred from recovering from Defendant on the grounds of estoppel. -8ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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NINTH AFFIRMATIVE DEFENSE Plaintiff lacks standing to bring the causes of action alleged. TENTH AFFIRMATIVE DEFENSE Plaintiff is barred from obtaining injunctive or other equitable relief by the reason of unclean hands. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's Complaint if premature and/or barred in that there is no case or controversy at this time. TWELFTH AFFIRMATIVE DEFENSE Plaintiff has named incorrect and improper parties as defendants in this matter. THIRTEENTH AFFIRMATIVE DEFENSE Defendant's conduct was privileged and/or justified under applicable law. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff's injuries and damages, if any, were proximately caused or contributed to in whole or in part by the negligence of third parties or entities not under the direction, control or authority of Defendant and for which Defendant are not responsible. FIFTEENTH AFFIRMATIVE DEFENSE All other affirmative defenses alleged by the other defendants in this action.

WHEREFORE, Defendant prays for judgment as follows: 1. 2. 3. 4. That judgment be rendered in favor of Defendant and against Plaintiff; That Plaintiff take nothing by reason of its Complaint on file herein; That Plaintiff's request for injunctive and declaratory relief be denied; That Defendant be awarded its costs, attorneys' fees, and disbursements of

suit incurred herein; and

-9ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986

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5.

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

Dated: November 21, 2005

RICHARD DOYLE, City Attorney

By: _/s/ Robert Fabela____________ ROBERT FABELA Sr. Deputy City Attorney Attorneys for RICHARD DOYLE, in his official capacity as City Attorney for the City of San Jose

-10ANSWER BY CITY ATTORNEY RICHARD DOYLE TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF C05-04188 RMW 329986