Shloss v. Joyce

Filing 251

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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: (415) 394-9400 4 Facsimile: (415) 394-9401 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. (408) 271-6600 Fax (408) 298-6046 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 (408) 298-6046.) (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 (415) 394-9401 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

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