Shloss v. Joyce

Filing 251

Shloss v. Joyce

Doc. 251

1 Mark S. Askanas (State Bar No. 122745)
Rebecca Benhuri (State Bar No. 209443) 2 JACKSON LEWIS LLP
199 Fremont Street, 10th Floor
3 San Francisco, California 94105

Telephone: [phone]
4 Facsimile: [phone]

askanasm~iacksonlewis.com
5 benhurir~iacksonlewis.com
6 Attorneys for Defendant

TOYS 'R' US - DELA WARE, INC. and
7 TRU 2005 RE I, LLC
8

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

9
10
11

THERESA WALLEN,
12
13

Case No. C09-04742

Plaintiff,
v.

14

DEFENDANTS TOYS 'R' US DELAWARE, INC. AND TRU 2005 RE I, LLC'S ANSWER TO COMPLAINT

TOYS 'R' US - DELA WARE, INC., TRU 2005 15 RE I, LLC, and Does 1-10,
16 17 18

Defendants.

Complaint Filed: October 5, 2009

Trial Date: None Set

19 Defendant TOYS 'R' US - DELAWARE, INC. and TRU 2005 RE I, LLC (hereinafter

20 collectively referred to as "Defendants"), answer Plaintiff THERESA WALLEN'S Complaint as

21 follows:
22
1.

To the extent Paragraph 1 of the Complaint consists of legal conclusions, no

23 response is required. To the extent Paragraph 1 consists of additional factual allegations,
24 Defendants admit they own and operate a Toys 'R' Us store located at 751 S. Winchester Blvd,
25 San Jose, California. Except as expressly admitted herein, Defendants deny the remaining

26 allegations made in Paragraph 1 of the Complaint.
27
2.

To the extent Paragraph 2 of the Complaint consists of legal conclusions, no

28 response is required. To the extent Paragraph 2 consists of additional factual allegations,
1

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742
Dockets.Justia.com

2 JURISDICTION
5 ADA claims.

1 Defendants deny the allegations made in Paragraph 2 of the Complaint.

3 3. In response to Paragraph 3 of the Complaint, Defendants admit that this Court has
4 jurisdiction over the federal claims alleged by Plaintiff under 28 U.S.c. §§ 1331 and 1343 for

6 4. To the extent Paragraph 4 of the Complaint consists of legal conclusions, no

7 response is required. To the extent Paragraph 4 consists of additional factual allegations,
8 Defendants admit that this Court has supplemental jurisdiction over the claims brought under
9 California law which are alleged to arise from the same nucleus of operative facts. Except as

10 expressly admitted herein, Defendants deny the remaining fact allegations in this paragraph.
11 5. To the extent Paragraph 5 of the Complaint consists of legal conclusions, no

12 response is required. To the extent Paragraph 5 consists of additional factual allegations,

14 VENUE
16 proper in this Cour.

13 Defendants deny the allegations made in Paragraph 5 of the Complaint.

15 6. In response to Paragraph 6 of the Complaint, Defendants admit that venue is

17 PARTIES
18 7. In response to Paragraph 7 of the Complaint, Defendants admit that they own and

19 operate a Toys 'R' Us store located at 751 S. Winchester Blvd, San Jose, California. Except as
20 expressly admitted herein, Defendants deny the remaining fact allegations in this paragraph.
21 8. In response to Paragraph 8 of the Complaint, Defendants lack information

22 sufficient to form a belief as to the truth of the allegations set forth therein and on that basis deny

24 FACTS
23 each and every allegation contained therein.
25 9. To the extent Paragraph 9 of the Complaint consists of legal conclusions, no

26 response is required. To the extent Paragraph 9 consists of additional factual allegations,
27 Defendants lack information suffcient to form a belief as to the truth of the allegations set forth

28 therein and on that basis deny each and every allegation contained therein.
2

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 10. In response to Paragraph 10 of the Complaint, and each of its subparts, Defendants

2 lack information sufficient to form a belief as to the truth of the allegations set forth therein and
3 on that basis deny each and every allegation contained therein.

4 11. In response to Paragraph 11 of the Complaint, Defendants lack information

5 suffcient to form a belief as to the truth of the allegations set forth therein and on that basis deny
6 each and every allegation contained therein.

7 12. In response to Paragraph 12 of the Complaint, Defendants lack information

8 suffcient to form a belief as to the truth of the allegations set forth therein and on that basis deny
9 each and every allegation contained therein.

10 13. In response to Paragraph 13 of the Complaint, Defendants deny each and every

11 allegation contained therein.
12 14. In response to Paragraph 14 of the Complaint, Defendants deny each and every

13 allegation contained therein.
14 15 . To the extent Paragraph 15 of the Complaint consists of legal conclusions, no

15 response is required. To the extent Paragraph 15 consists of additional factual allegations,

16 Defendants admit that the Toys 'R' Us store located at 751 S. Winchester Blvd, San Jose,
17 California is not in the midst of a remodeL. Except as expressly admitted herein, Defendants deny
18 the remaining allegations made in Paragraph 15 of the Complaint.

19 FIRST CLAIM - ADA
20 Denial of

"Full and Equal" Enioyment and Use
the Complaint, Defendants incorporate by reference

21 16. In response to Paragraph 16 of

22 its responses to paragraphs 1 to 15.

23 17. To the extent Paragraph 17 of the Complaint consists of recitation of statutes

24 and/or legal conclusions, no response is required. To the extent Paragraph 17 consists of
25 additional factual allegations, Defendants lack information sufficient to form a belief as to the
26 truth of the allegations set forth therein and on that basis deny each and every allegation

27 contained therein.
28 18. In response to Paragraph 18 of the Complaint, Defendants deny each and every
3

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 allegation contained therein.

2 Failure to Remove Architectural Barriers in an Existing Facility
3 19 . To the extent Paragraph 19 of the Complaint consists of recitation of statutes
4 and/or legal conclusions, no response is required. To the extent Paragraph 19 consists of
5 additional factual allegations, Defendants lack information sufficient to form a belief as to the

6 truth of the allegations set forth therein and on that basis deny each and every allegation

7 contained therein.

8 20. To the extent Paragraph 20 of the Complaint consists of recitation of statutes
9 and/or legal conclusions, no response is required. To the extent Paragraph 20 consists of

10 additional factual allegations, Defendants lack information sufficient to form a belief as to the
11 truth of the allegations set forth therein and on that basis deny each and every allegation

12 contained therein.
13 21. In response to Paragraph 21 of the Complaint, Defendants lack information

14 suffcient to form a belief as to the truth of the allegations set forth therein and on that basis deny

15 each and every allegation contained therein.
16 22. In response to Paragraph 22 of the Complaint, Defendants lack information

17 sufficient to form a belief as to the truth of the allegations set forth therein and on that basis deny

18 each and every allegation contained therein.

19 Failure to Design and Construct an Accessible Facility
20 23. To the extent Paragraph 23 of the Complaint consists of legal conclusions, no

21 response is required. To the extent Paragraph 23 consists of additional factual allegations,
22 Defendants deny that its store located at 751 S. Winchester Blvd, San Jose, California was

23 designed and constructed after January 26, 1992. Except as expressly admitted herein,
24 Defendants deny the remaining fact allegations in this paragraph.

25 24. To the extent Paragraph 24 of the Complaint consists of recitation of statutes

26 and/or legal conclusions, no response is required. To the extent Paragraph 24 consists of
27 additional factual allegations, Defendants lack information sufficient to form a belief as to the
28 truth of the allegations set forth therein and on that basis deny each and every allegation

4

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 contained therein.

2 25. In response to Paragraph 25 of the Complaint, Defendants deny each and every
3 allegation contained therein.

4 Failure to Make an Altered Facility Accessible
5 26. To the extent Paragraph 26 of the Complaint consists of legal conclusions, no

6 response is required. To the extent Paragraph 26 consists of additional factual allegations,
7 Defendants admit that its store located at 751 S. Winchester Blvd, San Jose, California was

8 remodeled after January 26, 1992. Except as expressly admitted herein, Defendants deny the
9 remaining fact allegations in this paragraph.
10 27. To the extent Paragraph 27 of

the Complaint consists recitation of statutes and/or

11 legal conclusions, no response is required. To the extent Paragraph 27 consists of additional
12 factual allegations, Defendants lack information sufficient to form a belief as to the truth of the

13 allegations set forth therein and on that basis deny each and every allegation contained therein.
14 28. In response to Paragraph 28 of the Complaint, Defendants deny each and every

15 allegation contained therein.

16 Failure to Modify Existing Policies and Procedures
17 29. To the extent Paragraph 29 of the Complaint consists recitation of statutes and/or

18 legal conclusions, no response is required. To the extent Paragraph 29 consists of additional
19 factual allegations, Defendants lack information sufficient to form a belief as to the truth of the

20 allegations set forth therein and on that basis deny each and every allegation contained therein.
21 30. To the extent Paragraph 30 of the Complaint consists recitation of statutes and/or

22 legal conclusions, no response is required. To the extent Paragraph 30 consists of additional
23 factual allegations, Defendants lack information sufficient to form a belief as to the truth of the

24 allegations set forth therein and on that basis deny each and every allegation contained therein.

25 31. To the extent Paragraph 31 of the Complaint consists of recitation of statutes

26 and/or legal conclusions, no response is required. To the extent Paragraph 31 consists of
27 additional factual allegations, Defendants lack information sufficient to form a belief as to the
28 truth of the allegations set forth therein and on that basis deny each and every allegation
5

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 contained therein.

2 32. To the extent Paragraph 33 of the Complaint consists of legal conclusions, no

3 response is required. To the extent Paragraph 32 consists of additional factual allegations,

4 Defendants deny each and every allegation contained therein.

5 SECOND CLAIM
7 33. In response to Paragraph 33 of

6 Disabled Persons Act
the Complaint, Defendants incorporate by reference
8 its responses to paragraphs 1 to 32.

9 34. To the extent Paragraph 34 of the Complaint consists of recitation of statutes

10 and/or legal conclusions, no response is required. To the extent Paragraph 34 consists of
11 additional factual allegations, Defendants lack information sufficient to form a belief as to the
12 truth of the allegations set forth therein and on that basis deny each and every allegation

13 contained therein.

14 35. To the extent Paragraph 35 of the Complaint consists of recitation of statutes

15 and/or legal conclusions, no response is required. To the extent Paragraph 35 consists of
16 additional factual allegations, Defendants lack information sufficient to form a belief as to the
17 truth of the allegations set forth therein and on that basis deny each and every allegation

18 contained therein.

19 36. To the extent Paragraph 36 of the Complaint consists of recitation of statutes

20 and/or legal conclusions, no response is required. To the extent Paragraph 36 consists of
21 additional factual allegations, Defendants lack information suffcient to form a belief as to the
22 truth of the allegations set forth therein and on that basis deny each and every allegation

23 contained therein.
24 37. In response to Paragraph 37 of the Complaint, Defendants deny each and every

25 allegation contained therein.

26 38. To the extent Paragraph 38 of the Complaint consists of recitation of statutes

27 and/or legal conclusions, no response is required. To the extent Paragraph 38 consists of
28 additional factual allegations, Defendants lack information sufficient to form a belief as to the
6

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 truth of the allegations set forth therein and on that basis deny each and every allegation

2 contained therein.

3 39. To the extent Paragraph 39 of the Complaint consists of recitation of statutes
4 and/or legal conclusions, no response is required. To the extent Paragraph 39 consists of
5 additional factual allegations, Defendants lack information sufficient to form a belief as to the

6 truth of the allegations set forth therein and on that basis deny each and every allegation

7 contained therein.

8 THIRD CLAIM
the Complaint, Defendants incorporate by reference

9 Unrh Civil Rights Act
10 40. In response to Paragraph 40 of

11 its responses to paragraphs 1 to 39.

12 41. To the extent Paragraph 41 of the Complaint consists of recitation of statutes

13 and/or legal conclusions, no response is required. To the extent Paragraph 41 consists of
14 additional factual allegations, Defendants lack information suffcient to form a belief as to the
15 truth of the allegations set forth therein and on that basis deny each and every allegation

16 contained therein.

17 42. To the extent Paragraph 42 of the Complaint consists of recitation of statutes

18 and/or legal conclusions, no response is required. To the extent Paragraph 42 consists of
19 additional factual allegations, Defendants lack information suffcient to form a belief as to the
20 truth of the allegations set forth therein and on that basis deny each and every allegation

21 contained therein.

22 43. To the extent Paragraph 43 of the Complaint consists of recitation of statutes

23 and/or legal conclusions, no response is required. To the extent Paragraph 43 consists of
24 additional factual allegations, Defendants lack information sufficient to form a belief as to the
25 truth of the allegations set forth therein and on that basis deny each and every allegation

26 contained therein.
27 44. In response to Paragraph 44 of the Complaint, Defendants deny each and every

28 allegation contained therein.
7

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 45. In response to Paragraph 45 of the Complaint, Defendants deny each and every
2 allegation contained therein.

3 46. In response to Paragraph 46 of the Complaint, Defendants deny each and every
4 allegation contained therein.

5 47. In response to Paragraph 47 of the Complaint, Defendants deny each and every
6 allegation contained therein.

7 FOURTH CLAIM
8 Denial of Full and Equal Access to Public Facilities
9 48. In response to Paragraph 48 of

the Complaint, Defendants incorporate by reference

10 its responses to paragraphs i to 47.

11 49. To the extent Paragraph 49 of the Complaint consists of recitation of statutes

12 and/or legal conclusions, no response is required. To the extent Paragraph 49 consists of
13 additional factual allegations, Defendants lack information sufficient to form a belief as to the
14 truth of the allegations set forth therein and on that basis deny each and every allegation

15 contained therein.

16 50. To the extent Paragraph 50 of the Complaint consists of recitation of statutes

17 and/or legal conclusions, no response is required. To the extent Paragraph 50 consists of
18 additional factual allegations, Defendants lack information suffcient to form a belief as to the
19 truth of the allegations set forth therein and on that basis deny each and every allegation

20 contained therein.

21 51. To the extent Paragraph 51 of the Complaint consists of recitation of statutes

22 and/or legal conclusions, no response is required. To the extent Paragraph 51 consists of
23 additional factual allegations, Defendants lack information sufficient to form a belief as to the
24 truth of the allegations set forth therein and on that basis deny each and every allegation

25 contained therein.
26 52. In response to Paragraph 52 of the Complaint, Defendants lack information

27 sufficient to form a belief as to the truth of the allegations set forth therein and on that basis deny

28 each and every allegation contained therein.
8

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 AFFIRMATIVE DEFENSES
2 By way of affirmative defense to the allegations of the Complaint herein, Defendant
3 alleges as follows:

4 FIRST AFFIRMATIVE DEFENSE
5 Plaintiff s Complaint, and each and every claim therein, fails to state a claim upon which
6 relief may be granted against Defendants.

7 SECOND AFFIRMATIVE DEFENSE
8 Plaintiff s prayer for injunctive relief is bared because Plaintiff has an adequate remedy

9 at law.

10 THIRD AFFIRMATIVE DEFENSE
11 At all times relevant to this action, Defendants acted honestly and in good faith to ensure
12 full compliance with Title II of the ADA and all other applicable federal and state disability
13 laws, to the extent readily achievable and/or required by law.

14 FOURTH AFFIRMATIVE DEFENSE
15 Defendants are relieved of any liability whatsoever as to Plaintiff s claims for damages
16 to the extent that Plaintiff seeks redress for physical and/or emotional injuries arising from

17 preexisting physical or mental conditions.

18 FIFTH AFFIRMATIVE DEFENSE
19 Defendants are relieved of any liability whatsoever as to Plaintiff s claims for damages
20 set forth in the Complaint to the extent said claims arise solely from acts or omissions for which

21 these answering Defendants are not responsible.

22 SIXTH AFFIRMATIVE DEFENSE
23 On information and belief, to the extent that Defendants own or control a place of public
24 accommodation, it is an existing facility and the removal of any barrier therein is not readily

25 achievable.

26 SEVENTH AFFIRMATIVE DEFENSE
27 On information and belief, the removal of any barriers by Defendants is structurally

28 infeasible.
9

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 EIGHTH AFFIRMATIVE DEFENSE
2 On information and belief, any work required for accessibility would be disproportionate
3 II cost and scope to any alterations Defendants has undertaken to any place of public

4 accommodation.

5 NINTH AFFIRMATIVE DEFENSE
6 Plaintiffs Complaint, and each and every claim for relief therein, fails to allege facts
7 sufficient to obtain an award of

treble damages against Defendants.

8 TENTH AFFIRMATIVE DEFENSE
9 On information and belief, any changes Plaintiff advocates are practically difficult, pose
lOan unecessary hardship and/or extreme so that such changes are not required and/or are subject

11 to exception.

12 ELEVENTH AFFIRMATIVE DEFENSE
13 On information and belief, reasonably equivalent alternatives are provided and/or
14 Defendants' property is accessible to the maximum extent feasible.

15 TWELFTH AFFIRMATIVE DEFENSE
16 On information and belief, to the extent Plaintiff comes to this Cour with unclean hands,

17 Plaintiff is barred from recovery under this Complaint or any claim for relief therein.

18 THIRTEENTH AFFIRMATIVE DEFENSE
19 On information and belief, Plaintiff s claims are bared to the extent she lacks standing to

20 sue upon the matters asserted in the Complaint.

21 FOURTEENTH AFFIRMATIVE DEFENSE
22 On information and belief, to the extent that Plaintiff was not a bona fide consumer for
23 services provided at Defendants' alleged place of public accommodation, Plaintiff lacks standing

24 to pursue each and every claim for relief alleged in the Complaint.

25 EIGHTEENTH AFFIRMATIVE DEFENSE
26 On information and belief, the Complaint, and each purported claim for relief alleged
27 therein, is barred in that any construction or modification of the subject property was privileged

28 because it was undertaken pursuant to the terms of the applicable laws, regulations, orders, and
10

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1 approvals relating to building construction, renovation and/or remodeling.

2 NINETEENTH AFFIRMATIVE DEFENSE
3 On information and belief, the Complaint, and each purported claim for relief alleged
4 therein, is barred by reason of the issuance by local building authorities of appropriate building

5 permits and Certificates of Occupancy for the Subject Premises, and Defendants reasonably and

6 in good faith relied upon same.

7 TWENTIETH AFFIRMATIVE DEFENSE
8 Because Plaintiff s complaint is couched in broad and conclusory terms, Defendants

9 cannot fully anticipate all defenses that may be applicable to the within action. Accordingly, the

10 right to assert additional defenses, if and to the extent that such defenses are applicable, is

11 hereby reserved.
12 WHEREFORE, Defendants pray as follows:
13
1.

That Plaintiff takes nothing;

14
15

2.
3.

For reasonable attorney's fees;

For costs of suit; and
For such other and further relief as the Court may deem

16 17

4.

just and proper.

20 By: ~
19 21

18 Dated: October 27,2009

JACKSON LEWIS LLP

Mark S. Askanas

Rebecca Benhuri

22
23

Attorneys for Defendants . DEFENDANTS TOYS 'R' US DELA WARE, INC., TRU 2005 RE I, LLC

24
25

26 27
28
11

DEFENDANTS' ANSWER TO COMPLAINT

Case No. C09-04742

1

CERTIFICATE OF SERVICE
Theresa Wallen v Toys "R"Us- Delaware et all USDC-ND/San Jose; C09-4742RS
149821

2 Case Name: Case No.:
3 Matter No.:

4
5

I, Marilou R. Barairo, declare that I am employed with the law firm of Jackson
Lewis LLP, whose address is 199 Fremont Street, 10th Floor, San Francisco, California 94105; I

6 7
8

am over the age of eighteen (18) years and am not a pary to this action.

On October 27, 2009, I served the attached DEFENDANTS TOYS 'R' US -

DELAWARE, INC. AND TRU 2005 RE I, LLC'S ANSWER TO COMPLAINT, in this
action by placing a true and correct copy thereof, enclosed in a sealed envelope addressed as

9 10
11

follows:

12
13

K. Randolph Moore, Esq. MOORE LAW FIRM, P.c. 332 N. Second Street San Jose, CA 95112
TeL. [phone] Fax [phone]
Attorne s or Plainti Theresa Wallen

14
15

(xl

BY MAIL: United States Postal Service by placing sealed envelopes with the postage
thereon fully prepaid, placed for collection and mailing on this date, following ordinary

16 17
18

business practices, in the United States mail at San Francisco, California. (( ) Courtesy
copy by fax to [phone].)

(l (l

BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the above address.

19

BY OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered to the above address within 24 hours by overnight delivery service.

20
21

(l

BY FACSIMILE: I caused such document to be transmitted by facsimile from our fax

number [phone] to the fax number indicated above (by written agreement,
confirming letter dated and signed MM/DD/YY

22
23

I declare that I am employed in the offce of a member of the bar of this Court at
whose direction the service was made.

24
Executed on October 27,2009, at San Francisco, California.
25

26 27
28

-mCl~ '¡~ ~
Marilou R. Barairo

H:\FORMS\NEW CASE FOLDERS\CERTIFICATES OF SERVICE\FEDERAL COS.DOC CERTIFICATE OF SERVICE
Case No. C09-04742 RS