Hovsepian v. Apple, Inc.

Filing 457

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Hovsepian v. Apple, Inc. Doc. 457 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 JAMES A. QUADRA, State Bar # 131084 LISA-ANNE M. WONG, State Bar # 163729 LINA R. GUILLEN, State Bar # 209206 MOSCONE, EMBLIDGE & QUADRA, LLP 180 Montgomery Street, Suite 1240 San Francisco, California 94104 Telephone: (415) 362-3599 Facsimile: (415) 362-7332 Attorneys for Defendants PRENTICE EARL SANDERS, DAVID ROBINSON, GREG CORRALES, JOHN SYME UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ADAM SNYDER and JADE SANTORO, Plaintiffs, vs. CITY AND COUNTY OF SAN FRANCISCO, EARL SANDERS, individually and in his official capacity as Chief of Police for the San Francisco Police Department, ALEX FAGAN, SR., individually and in his official capacity as Deputy Chief of Police for the San Francisco Police Department, DAVID ROBINSON, individually and in his official capacity as Deputy Chief of Police for the San Francisco Police Department, GREG CORRALES, individually and in his official capacity as Captain of the San Francisco Police Department, JOHN SYME, individually and in his official capacity as Sergeant of the San Francisco Police Department, and DOES 1 through 20, et al., Defendants. ANSWER OF DEFENDANT DAVID ROBINSON TO FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR TRIAL BY JURY Case No. Case No. C03-4927 JSW 1 Case No. C 03-4927 JSW ANSWER OF ROBINSON Dockets.Justia.com 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 Defendant DAVID ROBINSON ("Defendant") responds to the First Amended Complaint for Damages ("Complaint") filed by Plaintiffs ADAM SNYDER and JADE SANTORO (collectively, "Plaintiffs") in this action as follows: 1. Paragraph 1 of the Complaint contains no factual allegations, but rather Plaintiffs' legal theories and conclusions concerning jurisdiction and venue, statements to which no response is required. To the extent that a response is deemed required, Defendant denies that he committed any "unlawful acts and practices" alleged in the Complaint. Defendant admits that San Francisco is within the judicial district of this Court. Defendant lacks sufficient information and belief to admit or deny the remaining allegations in Paragraph 1, and on that basis denies each and every remaining allegation. 2. Defendant lacks sufficient information and belief to admit or deny the allegations in Paragraph 2 of the Complaint, and on that basis denies each and every such allegation. 3. 4. Defendant admits the allegations set forth in Paragraph 3 of the Complaint. Defendant admits the allegation in the first sentence of Paragraph 4 of the Complaint that PRENTICE EARL SANDERS was the Chief of Police for the San Francisco Police Department ("SFPD"). Defendant lacks sufficient information and belief to admit or deny the remaining allegations in the first sentence of Paragraph 4 of the Complaint, because the phrase "at all relevant times," is vague and ambiguous. On this basis, Defendant denies the remaining allegations in the first sentence of Paragraph 4. The phrase "at all times" in the last sentence of Paragraph 4 is similarly vague and ambiguous. The remainder of Paragraph 4 contains no factual allegations, but rather Plaintiffs' legal theories and conclusions, statements to which no response is required. To the extent a response is deemed required, Defendant denies each and every remaining allegation in Paragraph 4. 5. Defendant denies the allegations in the first sentence of Paragraph 5 of the Complaint that ALEX FAGAN, SR., was a "Deputy Chief of Police" for the SFPD. Alex Fagan, Sr. was the Captain of Northern Station before he became Assistant Chief. Defendant lacks sufficient information and belief to admit or deny the remaining allegations in the first sentence 2 Case No. C 03-4927 JSW ANSWER OF ROBINSON 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 of Paragraph 5 because the phrase "at all relevant times," is vague and ambiguous. On this basis, Defendant denies the remaining allegations in the first sentence of Paragraph 5. The phrase "at all times" in the last sentence of Paragraph 5 is similarly vague and ambiguous. The remainder of Paragraph 5 contains no factual allegations, but rather Plaintiffs' legal theories and conclusions, statements to which no response is required. To the extent a response is deemed required, Defendant denies the remaining allegations in Paragraph 5. 6. Defendant admits the allegation in the first sentence of Paragraph 6 of the Complaint that he was a Deputy Chief of Police for the SFPD. Defendant lacks sufficient information and belief to admit or deny the remaining allegations in the first sentence of Paragraph 6, because the phrase "at all relevant times," is vague and ambiguous. On this basis, Defendant denies the remaining allegations in the first sentence of Paragraph 6. The phrase "at all times" in the second sentence of Paragraph 6 is similarly vague and ambiguous. Defendant denies that he was "either a policy maker or final decision maker for the City and County of San Francisco." The remainder of Paragraph 6 contains no factual allegations, but rather Plaintiffs' legal theories and conclusions, statements to which no response is required. To the extent a response is deemed required, Defendant denies the remaining allegations in Paragraph 6. 7. Defendant admits the allegations in the first sentence of Paragraph 7 of the Complaint that GREG CORRALES was a Captain in the SFPD. Defendant lacks sufficient information and belief to admit or deny the remaining allegations in the first sentence of Paragraph 7 because the phrase "at all relevant times," is vague and ambiguous. On this basis, Defendant denies the remaining allegations in the first sentence of Paragraph 7. The phrase "at all times" in the second sentence of Paragraph 7 is similarly vague and ambiguous. The remainder of Paragraph 7 contains no factual allegations, but rather Plaintiffs' legal theories and conclusions, statements to which no response is required. To the extent a response is deemed required, Defendant denies the remaining allegations in Paragraph 7. 8. Defendant admits the allegations in the first sentence of Paragraph 8 of the Complaint that JOHN SYME was a Sergeant in the SFPD. Defendant lacks sufficient 3 Case No. C 03-4927 JSW ANSWER OF ROBINSON 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 information and belief to admit or deny the remaining allegations in the first sentence of Paragraph 8 because the phrase "at all relevant times," is vague and ambiguous. On this basis, Defendant denies the remaining allegations in the first sentence of Paragraph 8. The phrase "at all times" in the second sentence of Paragraph 8 is similarly vague and ambiguous. The remainder of Paragraph 8 contains no factual allegations, but rather Plaintiffs' legal theories and conclusions, statements to which no response is required. To the extent a response is deemed required, Defendant denies the remaining allegations in Paragraph 8. 9. Defendant denies the allegation in Paragraph 9 of the Complaint that Defendant "engaged in the conduct described in this complaint." The remainder of Paragraph 9 of the Complaint contains no factual allegations, but rather Plaintiffs' legal theories and conclusions, statements to which no response is required. To the extent a response is deemed required, Defendant lacks sufficient information and belief to admit or deny the allegations which are vague and on this basis, denies each and every remaining allegation in Paragraph 9. 10. Defendant lacks sufficient information and belief to admit or deny the allegations in Paragraph 10 of the Complaint and on this basis, denies each and every remaining allegation in Paragraph 10. 11. Defendant denies the allegation in Paragraph 11 of the Complaint that he is "responsible in some manner for the damages alleged" in the Complaint. Defendant lacks sufficient information and belief to admit or deny the remaining allegations in Paragraph 11, and on that basis denies each and every remaining allegation in Paragraph 11. 12. Paragraph 12 of the Complaint contains no factual allegations, but rather Plaintiffs' demand for a jury trial, a statement to which no response is required. 13. Complaint. 14. Complaint. Defendant denies each and every allegation set forth in Paragraph 14 of the Defendant denies each and every allegation set forth in Paragraph 13 of the 4 Case No. C 03-4927 JSW ANSWER OF ROBINSON 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 15. Complaint. 16. Complaint. 17. Defendant denies each and every allegation set forth in Paragraph 15 of the Defendant denies each and every allegation set forth in Paragraph 16 of the Paragraph 17 contains no factual allegations but rather, Plaintiff's legal theories and conclusions, statements to which no response is required. To the extent a response is deemed necessary, Defendant denies each and every allegation in Paragraph 17. 18. Defendant admits the allegations in Paragraph 18 of the Complaint that: on November 20, 2002, Alex Fagan, Jr., David Lee and Matthew Tonsing were employed as police officers for the SFPD; and on November 20, 2002, there was a party celebrating the elevation of ALEX FAGAN, SR. Defendant denies that the elevation was to the position of "Deputy Chief." The elevation of Alex Fagan, Sr. was to the position of Assistant Chief. Defendant lacks sufficient information and belief to admit or deny the remaining allegations in Paragraph 18, and on this basis denies each and every remaining allegation in Paragraph 18. 19 - 21. Defendant lacks sufficient information and belief to admit or deny the allegations set forth in Paragraphs 19 through 21 of the Complaint, and on that basis denies each and every allegation in Paragraphs 19 through 21. 22. 23. Complaint. 23(a). Defendant lacks sufficient information and belief to admit or deny the allegations set forth in Paragraph 23(a) and on that basis denies each and every allegation contained in Paragraph 23(a) of the Complaint. 23(b). Defendant lacks sufficient information and belief to admit or deny the allegations set forth in Paragraph 23(b) and on that basis denies each and every allegation contained in Paragraph 23(b) of the Complaint. 24. Defendant denies the allegations in Paragraph 24 of the Complaint. 5 Case No. C 03-4927 JSW ANSWER OF ROBINSON Defendant denies the allegations in Paragraph 22 of the Complaint. Defendant denies the allegations in the first sentence of Paragraph 23 of the 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 25. Defendant lacks sufficient information and belief to admit or deny the allegations in Paragraph 25 concerning the actions and intentions of unnamed "other officials of the City and County of San Francisco," and on that basis denies each and every such allegation in Paragraph 25. Defendant denies each and every remaining allegation in Paragraph 25. 26. Defendant lacks sufficient information and belief to admit or deny the allegations in Paragraph 26 concerning the alleged release of SANTORO's criminal arrest records, and on that basis denies each and every such allegation. Defendant denies each and every remaining allegation in Paragraph 26 of the Complaint. 27. Defendant admits the allegations in Paragraph 27 of the Complaint that: Lt. Dutto was a member of the SFPD for 27 years and that Lt. Dutto was transferred from the SFPD's General Works Department to the SFPD's Vice Detail. Defendant denies each and every remaining allegation in Paragraph 27. 28. In response to Paragraph 28 of the Complaint, Defendant realleges and incorporates by reference his answers to Paragraphs 1 through 27 of the Complaint, as though fully set forth herein. 29 - 37. Paragraphs 29 through 37 contain no factual allegations but rather Plaintiffs' legal theories and conclusions, statements to which no response is necessary. To the extent a response is deemed necessary, Defendant denies each and every allegation in Paragraphs 29 through 37. 38. In response to Paragraph 38 of the Complaint, Defendant realleges and incorporates by reference his answers to Paragraphs 1 through 27, 34 and 35 of the Complaint, as though fully set forth herein. 39 - 42. Paragraphs 39 through 42 of the Complaint contain no factual allegations, but rather Plaintiffs' legal theories and conclusions, statements to which no response is required. To the extent a response is deemed required, Defendant denies each and every allegation in Paragraphs 39 through 42. 6 Case No. C 03-4927 JSW ANSWER OF ROBINSON 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 43. Based on this Court's February 1, 2005 Order denying in part and granting in part defendants' F.R.C.P. 12(b)(6) motions to dismiss the Complaint, Defendant denies each and every allegation in the Complaint that he is liable to Plaintiffs in Defendant's official capacity. 44. Except as so specifically admitted, Defendant denies each and every remaining allegation in the Complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the Complaint fails to state facts sufficient to constitute a claim against Defendant. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the Complaint and each and every cause of action therein is barred by the statute of limitations as set forth in California Code of Civil Procedure 335 et seq., California Government Code 945.6, and other applicable statutes of limitations. THIRD AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the Complaint and each and every cause of action therein is barred because Plaintiffs failed to use reasonable diligence to mitigate damages allegedly sustained by them, and said failure bars or reduces the recovery, if any from Defendant. FOURTH AFFIRMATIVE DEFENSE (Causation) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that that any act or omission on the part of Defendant or his agents, was not the legal cause of Plaintiffs' alleged injuries. 7 Case No. C 03-4927 JSW ANSWER OF ROBINSON 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 Case No. C 03-4927 JSW ANSWER OF ROBINSON FIFTH AFFIRMATIVE DEFENSE (No Damage To Plaintiffs) As and for a separate, distinct affirmative defense to the Complaint, Defendant denies that Plaintiffs have been damaged in any sum or sums, or otherwise, or at all, by reason of any act or omission of Defendant. SIXTH AFFIRMATIVE DEFENSE (Failure to Comply With California Tort Claims Act) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that to the extent Plaintiffs failed to comply with provisions of the California Tort Claims Act of the California Government Code (Government Code 810 et seq.), Plaintiffs' Complaint is barred. SEVENTH AFFIRMATIVE DEFENSE (Good Faith) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Defendant and his agents were at all times material hereto acting with both subjective and objective good faith, such that any claim for relief that Plaintiffs may have is barred by law. EIGHTH AFFIRMATIVE DEFENSE (Estoppel) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that by reason of Plaintiffs' own acts and omissions, Plaintiffs are estopped from seeking any recovery from Defendant by reason of the allegations set forth in the Complaint. NINTH AFFIRMATIVE DEFENSE (Unclean Hands) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the Complaint and each cause of action therein are barred by the doctrine of unclean hands. ///// //// /// 8 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 Case No. C 03-4927 JSW ANSWER OF ROBINSON TENTH AFFIRMATIVE DEFENSE (Waiver) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that by reason of Plaintiffs' own acts and omissions, Plaintiffs have waived any right to recovery from Defendant by reason of the allegations set forth in the Complaint. ELEVENTH AFFIRMATIVE DEFENSE (Common Law Immunity) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Defendant, as a member of the SFPD, is immune from any liability therein under the common law doctrine of immunity of police officers executing statutes in good faith, which statutes are presumed valid at the time of such execution. TWELFTH AFFIRMATIVE DEFENSE (No Constitutional Violation) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the Complaint fails to state a violation of any of the provisions of the United States Constitution cited by Plaintiffs and applicable to this action. THIRTEENTH AFFIRMATIVE DEFENSE (No Discrimination Against Plaintiffs) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Defendant in no way based his decisions and actions at issue herein, or his treatment of Plaintiffs, on any group or identification to which Plaintiffs might belong including race, gender, sexual orientation, political affiliation, political beliefs, or any other classification. At all times, Defendant and his agents acted properly in valid law enforcement activities. FOURTEENTH AFFIRMATIVE DEFENSE (Qualified/Absolute Immunity) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that he enjoys qualified immunity, and/or absolute immunity against each and every one of Plaintiffs' federal claims. 9 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 Case No. C 03-4927 JSW ANSWER OF ROBINSON FIFTEENTH AFFIRMATIVE DEFENSE (Discretionary Immunity) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that he enjoys discretionary immunity pursuant to California Government Code 820.2 against each and every one of Plaintiffs' state claims. SIXTEENTH AFFIRMATIVE DEFENSE (Frivolous Lawsuit) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Plaintiffs' maintenance of this action is frivolous, vexatious and unreasonable, thereby entitling Defendant to sanctions and appropriate remedies (including without limitation attorney's fees) against Plaintiffs. SEVENTEENTH AFFIRMATIVE DEFENSE (No Intent to Harm) As a separate and affirmative defense to the Complaint and to each and every allegation contained therein, Defendant alleges that at all times and places mentioned in the Complaint, Defendant acted without malice and with a good faith belief in the propriety of their conduct, and did not intend to harm or deprive Plaintiffs of any rights under federal or state constitutions, or federal or state statutes. EIGHTEENTH AFFIRMATIVE DEFENSE (Discharge of Duties in Good Faith) As a separate and affirmative defense to the Complaint and to each and every allegation set forth therein, Defendant alleges that at all times mentioned in the Complaint, Defendant performed and discharged in good faith each and every obligation, if any, owed to Plaintiffs. NINETEENTH AFFIRMATIVE DEFENSE (Privilege, Justification) As a separate and affirmative defense to the Complaint and to each and every allegation contained therein, Defendant alleges that his conduct at all times material herein was privileged and/or justified under applicable law. 10 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 Case No. C 03-4927 JSW ANSWER OF ROBINSON TWENTIETH AFFIRMATIVE DEFENSE (Supervening Events) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that any injury suffered by Plaintiffs was caused by supervening events over which Defendant had no control. TWENTY-FIRST AFFIRMATIVE DEFENSE (Comparative Negligence) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges by way of a plea of comparative negligence that Plaintiffs were negligent in and about the matters and activities alleged in said Complaint; that said negligence contributed to and was a proximate cause of Plaintiffs' alleged injuries and damages, if any, or was the sole cause thereof; and that if Plaintiffs are entitled to recover damages against this Defendant by virtue of said Complaint, Defendant prays that the recovery be diminished or extinguished by reason of the negligence of the Plaintiffs in proportion to the degree of fault attributable to the Plaintiffs. TWENTY-SECOND AFFIRMATIVE DEFENSE (Plaintiffs' Recklessness) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that at all times mentioned in Plaintiffs' Complaint herein, Plaintiffs acted in a careless, reckless, wanton and negligence manner in and about the matters set forth in the Complaint; that such careless, reckless, wanton and negligent conduct proximately contributed to the injuries and damages, if any, sustained or claimed by Plaintiffs; that as a consequence, Plaintiffs' claims are barred. TWENTY-THIRD AFFIRMATIVE DEFENSE (Fault of Others) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the fault of persons other than Defendant contributed to and proximately caused the occurrence; and that under the principles formulated in the case of American Motorcycle Association v. Superior Court (1978) 20 Cal. 3d 578, Defendants pray that the percentage of 11 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 such contribution be established by special verdict or other procedure, and that Defendant's ultimate liability be reduced to the extent of such contribution. TWENTY-FOURTH AFFIRMATIVE DEFENSE (California Tort Claims Act) As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Plaintiffs' claims are barred by the defenses, immunities and protections set forth in the California Tort Claims Act. WHEREFORE, Defendant prays for judgment as follows: 1. 2. 3. 4. That Plaintiffs take nothing from Defendant; That the Complaint against Defendant be dismissed with prejudice; That Defendant recover his costs of suit herein, including attorneys' fees; and For such other relief as is just and proper. Dated: June 8, 2005 Moscone, Emblidge & Quadra LLP By: /s/ JAMES A. QUADRA LINA R. GUILLEN Attorneys for PRENTICE EARL SANDERS, DAVID ROBINSON, GREG CORRALES, and JOHN SYME 12 Case No. C 03-4927 JSW ANSWER OF ROBINSON 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 Case No. C 03-4927 JSW ANSWER OF ROBINSON DEMAND FOR JURY TRIAL Defendant DAVID ROBINSON hereby demands a jury trial. DATED: June 8, 2005 Respectfully Submitted, Moscone, Emblidge & Quadra LLP By: /s/ JAMES A. QUADRA LINA R. GUILLEN Attorneys for PRENTICE EARL SANDERS, DAVID ROBINSON, GREG CORRALES, and JOHN SYME 13 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 Case No. C 03-4927 JSW ANSWER OF ROBINSON PROOF OF SERVICE I, Laura Helland, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the within entitled action. On June 8, 2005, I served the attached: ANSWER OF DEFENDANT PRENTICE EARL SANDERS TO FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR TRIAL BY JURY on the interested party(ies) named below: Eric M. Safire, Esq. Law Offices of Eric M. Safire 2431 Fillmore Street San Francisco, California 94115 I served the attached document(s) in the manner indicated below: BY MAIL: I caused true and correct copy(ies) of the above documents to be placed and sealed in envelope(s) addressed to the addressee(s) named above and, following ordinary business practices, placed said envelope(s) at the Law Offices of Moscone, Emblidge & Quadra, LLP, 180 Montgomery, Ste. 1240, San Francisco, California, 94104, for collection and mailing with the United States Postal Service and there is delivery by the United States Post Office at said address(es). In the ordinary course of business, correspondence placed for collection on a particular day is deposited with the United States Postal Service that same day. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed June 8, 2005, at San Francisco, California. /s/ Laura Helland 14

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