Price v. Facebook, Inc.

Filing 249

Price v. Facebook, Inc.

Doc. 249

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RICHARD DOYLE, City Attorney (#88625) NORA FRIMANN, Chief Trial Attorney (#93249) MICHAEL R. GROVES, Senior Deputy City Attorney (#85620) CLIFFORD S. GREENBERG, Senior Deputy City Attorney (#122612) Office of the City Attorney 151 West Mission Street San Jose, California 95110 Telephone: [phone] Attorneys for Defendants CITY OF SAN JOSE, CHAD MARSHALL, WILLIAM LANSDOWNE, THOMAS WHEATLEY and ROBERT L. DAVIS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

ESTATE OF CAU BICH TRAN, TOMMY BUI, a minor, by and through his Guardian ad Litem, DANG QUANG BUI, TONI BUI, a minor, by and through his Guardian ad Litem, DAN QUANG BUI, NGUYEN THI HOANG, and KIM MANH TRAN, Plaintiffs, vs. CITY OF SAN JOSE, CHAD MARSHALL, individually and in his capacity as a police officer for the City of San Jose, WILLIAM LANSDOWNE, individually and in his official capacity as Chief or the San Jose Police Department, THOMAS WHEATLEY, individually and in his official capacity as Acting Chief of the San Jose Police Department, ROBERT L. DAVIS, individually and in his official capacity as Chief of the San Jose Police Department, and DOES 1 through 50, Defendants.

CASE NO.: C03-04997 DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES JURY TRIAL DEMANDED

In answer to the First Amended Complaint on file herein, Defendants, CITY OF SAN JOSE, CHAD MARSHALL, WILLIAM LANSDOWNE, THOMAS WHEATLEY, and ROBERT L. DAVIS respond as follows: ///
DEFS' ANSWER TO FIRST-AMENDED COMPLAINT; JURY TRIAL DEMAND C03-04997

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Dockets.Justia.com

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1.

In answer to Paragraph 1 of the First Amended Complaint, Defendants admit

that Plaintiffs claim federal and state law violations but deny the substance of such claims. Defendants admit that the Court has jurisdiction over the federal claims. 2. In answer to Paragraph 2 of the First Amended Complaint, Defendants admit

that venue is proper. 3. In answer to Paragraph 3 of the First Amended Complaint, Defendants

acknowledge that Plaintiffs demand a jury trial. 4. In answer to Paragraph 4 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 5. In answer to Paragraph 5 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 6. In answer to Paragraph 6 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 7. In answer to Paragraph 7 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 8. In answer to Paragraph 8 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 9. In answer to Paragraph 9 of the First Amended Complaint, Defendants admit

that the City of San Jose is a public entity and that the San Jose Police Department is a Department of the City of San Jose. 10. In answer to Paragraph 10 of the First Amended Complaint, Defendants admit

that Chad Marshall was a police officer employed by the City of San Jose at the time of the

DEFS' ANSWER TO FIRST-AMENDED COMPLAINT; JURY TRIAL DEMAND C03-04997

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subject incident, and was acting in the course and scope of his employment as such. Defendants deny the remainder of the allegations contained in Paragraph 10. 11. In answer to Paragraph 11 of the First Amended Complaint, Defendants admit

that William Lansdowne was the Police Chief of the City of San Jose at the time of the subject incident. Defendants deny the remainder of the allegations contained in Paragraph 11. 12. In answer to Paragraph 12 of the First Amended Complaint, Defendants admit

that after the subject incident Thomas Wheatley was named Acting Police Chief of the City of San Jose. Defendants deny the remainder of the allegations contained in Paragraph 12. 13. In answer to Paragraph 13 of the First Amended Complaint, Defendants admit

that on or about January 22, 2003, Robert L. Davis was sworn in as Chief of Police of the City of San Jose. Defendants deny the remainder of the allegations contained in Paragraph 13. 14. In answer to Paragraph 14 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 15. In answer to Paragraph 15 of the First Amended Complaint, Defendants deny

such allegations. 16. In answer to Paragraph 16 of the First Amended Complaint, Defendants admit

that Officer Chad Marshall shot Cau Bich Tran. Defendants deny the remainder of the allegations contained therein. 17. In answer to Paragraph 17 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 18. In answer to Paragraph 18 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. /// ///

DEFS' ANSWER TO FIRST-AMENDED COMPLAINT; JURY TRIAL DEMAND C03-04997

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19.

In answer to Paragraph 19 of the First Amended Complaint, Defendants are

without information and belief as to the allegations contained therein, and on that basis, deny such allegations. 20. In answer to Paragraph 20 of the First Amended Complaint, Defendants deny

such allegations. 21. In answer to Paragraph 21 of the First Amended Complaint, Defendants deny

such allegations. 22. In answer to Paragraph 22 of the First Amended Complaint, Defendants deny

such allegations. 23. In answer to Paragraph 23 of the First Amended Complaint, Defendants deny

such allegations. 24. In answer to Paragraph 24 of the First Amended Complaint, Defendants deny

such allegations. 25. In answer to Paragraph 25 of the First Amended Complaint, Defendants deny

such allegations. 26. In answer to Paragraph 26 of the First Amended Complaint, Defendants deny

such allegations. 27. In answer to Paragraph 27 of the First Amended Complaint, Defendants deny

such allegations. 28. In answer to Paragraph 28 of the First Amended Complaint, Defendants deny

such allegations. 29. In answer to Paragraph 29 of the First Amended Complaint, Defendants deny

such allegations. 30. In answer to Paragraph 30 of the First Amended Complaint, Defendants deny

such allegations. 31. In answer to Paragraph 31 of the First Amended Complaint, Defendants deny

such allegations.

DEFS' ANSWER TO FIRST-AMENDED COMPLAINT; JURY TRIAL DEMAND C03-04997

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32.

In answer to Paragraph 32 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 33. In answer to Paragraph 33 of the First Amended Complaint, Defendants deny

such allegations. 34. In answer to Paragraph 34 of the First Amended Complaint, Defendants deny

such allegations. 35. In answer to Paragraph 35 of the First Amended Complaint, Defendants deny

such allegations. 36. In answer to Paragraph 36 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 37. In answer to Paragraph 37 of the First Amended Complaint, Defendants deny

such allegations. 38. In answer to Paragraph 38 of the First Amended Complaint, Defendants deny

such allegations. 39. In answer to Paragraph 39 of the First Amended Complaint, Defendants deny

such allegations. 40. In answer to Paragraph 40 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 41. In answer to Paragraph 41 of the First Amended Complaint, Defendants deny

such allegations. 42. In answer to Paragraph 42 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 43. In answer to Paragraph 43 of the First Amended Complaint, Defendants deny

such allegations. 44. In answer to Paragraph 44 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 45. In answer to Paragraph 45 of the First Amended Complaint, Defendants deny

such allegations.
DEFS' ANSWER TO FIRST-AMENDED COMPLAINT; JURY TRIAL DEMAND C03-04997

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46.

In answer to Paragraph 46 of the First Amended Complaint, Defendants deny

such allegations. 47. In answer to Paragraph 47 of the First Amended Complaint, Defendants deny

such allegations. 48. In answer to Paragraph 48 of the First Amended Complaint, Defendants deny

such allegations. 49. In answer to Paragraph 49 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 50. In answer to Paragraph 50 of the First Amended Complaint, Defendants deny

such allegations. 51. In answer to Paragraph 51 of the First Amended Complaint, Defendants deny

such allegations. 52. In answer to Paragraph 52 of the First Amended Complaint, Defendants deny

such allegations. 53. In answer to Paragraph 53 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 54. In answer to Paragraph 54 of the First Amended Complaint, Defendants deny

such allegations. 55. In answer to Paragraph 55 of the First Amended Complaint, Defendants deny

such allegations. 56. In answer to Paragraph 56 of the First Amended Complaint, Defendants deny

such allegations. 57. In answer to Paragraph 57 of the First Amended Complaint, Defendants deny

such allegations. 58. In answer to Paragraph 58 of the First Amended Complaint, Defendants deny

such allegations. 59. In answer to Paragraph 59 of the First Amended Complaint, Defendants deny

such allegations.
DEFS' ANSWER TO FIRST-AMENDED COMPLAINT; JURY TRIAL DEMAND C03-04997

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60.

In answer to Paragraph 60 of the First Amended Complaint, Defendants deny

such allegations. 61. In answer to Paragraph 61 of the First Amended Complaint, Defendants

respond to the incorporated allegations as set forth previously. 62. In answer to Paragraph 62 of the First Amended Complaint, Defendants deny

such allegations. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE, these answering Defendants allege that the First Amended Complaint fails to state a claim upon which relief can be granted AS AND FOR A SECOND AFFIRMATIVE DEFENSE, these answering Defendants allege that any harm Plaintiffs suffered was the result of negligent or otherwise wrongful conduct of persons other than these Defendants and that the conduct of persons other than these Defendants were the sole and proximate cause of the injuries and damages alleged by Plaintiffs. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, these answering Defendants allege that all actions taken, including actions of Doe Defendants, were undertaken in good faith and with a reasonable belief that the actions were valid, necessary, constitutionally proper and objectively reasonable for a police officer in the same circumstances, entitling the individual Defendants to the qualified immunity of good faith. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, these answering Defendants allege that they are immune from the state law causes of action pursuant to Government Code Sections 800-1000. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, these answering Defendants allege they are immune from the state law causes of action pursuant to Government Code Section 815.2(b) and Section 820.8 granting immunity for an injury caused by the act or omission of another person. /// ///
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, these answering Defendants allege that Plaintiffs' First Amended Complaint is barred in that Plaintiffs failed to comply with the claims filing provisions of Government Code § 900, et seq. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that Plaintiffs' First Amended Complaint is barred by the applicable statutes of limitation. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE, these answering Defendants allege that their conduct was privileged and not wrongful since they were acting in selfdefense. AS FOR A NINTH AFFIRMATIVE DEFENSE, these answering Defendants allege that their conduct was privileged and not wrongful since they were acting in the defense of others. AS FOR A TENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that the shooting of the decedent was the result of her negligent and/or criminal conduct and that said actions of decedent were the sole and proximate cause of the injuries and damages alleged by the Plaintiffs in this case. AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that the individual Defendants, including those who are presently designated as Does, are entitled to immunity from Plaintiffs' First Amended Complaint by virtue of the provisions of Government Code of the State of California, Section 800 through 1000, including, but not limited to Sections 820.2, 820.4, 820.6, 820.8, 821, 821.6 and 822.2. AS FOR A TWELFTH AFFIRMATIVE DEFENSE, these answering Defendants allege that the shooting of decedent was lawful and justified under the facts of the case. AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE, these answering Defendants allege that they are protected by the affirmative defenses provided by California Penal Code Sections 197, 834(a), 835 and 835(a). WHEREFORE, these answering Defendants pray: 1. 2. That Plaintiffs take nothing by their Amended Complaint; That Plaintiffs' First Amended Complaint be dismissed with prejudice; 8
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DEFS' ANSWER TO FIRST-AMENDED COMPLAINT; JURY TRIAL DEMAND C03-04997

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3.

That Defendants be awarded their costs of suit, including attorneys' fees

incurred herein; and 4. For such other and further relief as the Court deems proper. JURY TRIAL DEMAND These answering Defendants hereby demand a jury. DATED: FEBRUARY 20, 2004 RICHARD DOYLE, City Attorney

By

/s/ Clifford S. Greenberg CLIFFORD S. GREENBERG Senior Deputy City Attorney

Attorneys for Defendants CITY OF SAN JOSE, CHAD MARSHALL, WILLIAM LANSDOWNE, THOMAS WHEATLEY and ROBERT L. DAVIS

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