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Kennedy, Archer & Giffen Attorneys at Law 24591 Silver Cloud Ct., Suite 200 Monterey, CA 93940

Jon R. Giffen (SBN 142158) Gregory E. Bullard (SBN 199117) KENNEDY, ARCHER & GIFFEN Attorneys at Law 24591 Silver Cloud Court, Suite 200 Monterey, California 93940 Telephone: (831) 373-7500 Facsimile: (831) 373-7555 Attorneys for Defendant CITY OF CARMEL-BY-THE-SEA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

JACQUELINE C. SIMONELLI, Plaintiff, vs. CITY OF CARMEL-BY-THE-SEA, CALIFORNIA, Defendant. ____________________________________/

CASE No. 3:13-cv-1250-LB (Assigned to Magistrate Judge Laurel Beeler) ANSWER TO PLAINTIFFS COMPLAINT AND AFFIRMATIVE DEFENSES DEMAND FOR JURY TRIAL

Defendant CITY OF CARMEL-BY-THE-SEA (Defendant), through its counsel, answers the Complaint of JACQUELINE C. SIMONELLI (Plaintiff), as set forth below. Unless specifically admitted, Defendant denies each of the allegations of Plaintiffs Complaint. PARTIES / JURISDICTION / VENUE 1. Answering Paragraphs 1, 2 and 3 of the Complaint, Defendant admits that jurisdiction

and venue are proper. As to the remainder of the allegations set forth in these Paragraphs, Defendant does not have sufficient information or belief to enable it to answer said Paragraphs and, on that ground, denies each and every allegation contained therein. INTRADISTRICT ASSIGNMENT 2. Answering Paragraph 4 of the Complaint, Defendant denies Plaintiffs allegation that
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Kennedy, Archer & Giffen Attorneys at Law 24591 Silver Cloud Ct., Suite 200 Monterey, CA 93940

this lawsuit should be assigned to the San Francisco/Oakland Division of this Court. As to the remainder of the allegations stated in this Paragraph, Defendant does not have sufficient information or belief to enable it to answer this Paragraph and, on that ground, denies each and every allegation contained therein. FACTS AND CLAIMS 3. Answering Paragraph 5a. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. 4. Answering Paragraph 5b. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. The allegations contained in this Paragraph are vague, ambiguous and largely unintelligible. 5. Answering Paragraph 5c. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. 6. Answering Paragraph 5d. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. 7. Answering Paragraph 5e. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. 8. Answering Paragraph 5f. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. 9. Answering Paragraph 5g. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. 10. Answering Paragraph 5h. of the Complaint, Defendant denies each and every

allegation contained in this Paragraph. DEMAND FOR RELIEF 11. Answering Paragraph 6 of the Complaint, Defendant denies each and every allegation

contained in this Paragraph. DEMAND FOR JURY TRIAL 12. Defendant hereby demands a jury trial on all issues that may be heard by a jury.

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Kennedy, Archer & Giffen Attorneys at Law 24591 Silver Cloud Ct., Suite 200 Monterey, CA 93940

FURTHER ANSWER AND AFFIRMATIVE DEFENSES By way of further Answer and as affirmative defenses, Defendant denies that it is liable to Plaintiff on any of the claims alleged and denies that Plaintiff is entitled to damages, equitable relief, attorneys fees, costs, pre-judgment interest or to any relief whatsoever, and states as follows: FIRST AFFIRMATIVE DEFENSE 13. The Complaint, and each and every cause of action therein, fails to state facts

sufficient to constitute a cause of action against this answering Defendant. SECOND AFFIRMATIVE DEFENSE 14. Defendant alleges that Plaintiff is guilty of laches. THIRD AFFIRMATIVE DEFENSE 15. of waiver. FOURTH AFFIRMATIVE DEFENSE 16. of estoppel. FIFTH AFFIRMATIVE DEFENSE 17. Defendant is informed and believes on that basis alleges that any damage which Defendant alleges that Plaintiffs action is barred in whole or in part by the doctrine Defendant alleges that Plaintiffs action is barred in whole or in part by the doctrine

Plaintiff may have sustained was not proximately caused by any act or omission of Defendant. SIXTH AFFIRMATIVE DEFENSE 18. Defendant alleges that should it be found that Plaintiff sustained damages as alleged

in the Complaint, which Defendant hereby expressly denies, then such damage was proximately caused by the Plaintiffs own conduct or that of a party or parties other than Defendant, and that such damage be apportioned according to the degree of fault of each party causing such damage. SEVENTH AFFIRMATIVE DEFENSE 19. Defendant alleges that Plaintiff has not suffered the monetary damages alleged against

Defendant in the Complaint or any monetary damages whatsoever, as a result or consequence of any wrongful conduct of Defendant.

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Kennedy, Archer & Giffen Attorneys at Law 24591 Silver Cloud Ct., Suite 200 Monterey, CA 93940

EIGHTH AFFIRMATIVE DEFENSE 20. Defendant alleges all damages of the Plaintiff, if any there were, were proximately

caused by actions performed or omitted by Plaintiff and/or her agents and that Plaintiffs recovery, if any, must be offset to the extent that the injuries and/or damages, if any there were, were proximately contributed to or caused by the actions performed or omitted by the Plaintiff and/or her agents. NINTH AFFIRMATIVE DEFENSE 21. Defendant is informed and believes and on that basis alleges to the extent that liability

is established in this action, this Defendant is entitled to be wholly indemnified by third parties, and each of them. TENTH AFFIRMATIVE DEFENSE 22. Defendant alleges that the acts or omissions of third persons other than Defendant

legally caused or contributed to the events leading up to and the occurrence by which the Plaintiff allegedly sustained losses or damages. Defendant is entitled to a judicial determination of the percentage of fault of each person who was a proximate cause of the alleged losses or damages sustained. Defendant is further entitled to a reduction of any damages awarded to Plaintiff, if any, by an amount proportionate to said conduct. ELEVENTH AFFIRMATIVE DEFENSE 23. Defendant is informed and believes and on that basis alleges that the Plaintiff, with

full appreciation of the particular risks involved, nevertheless knowingly and voluntarily assumed the risk and hazards of the events complained of and the damages and losses, if any, resulting therefrom. TWELFTH AFFIRMATIVE DEFENSE 24. Defendant alleges that if the Plaintiff suffered any loss or damage as a result of the

events alleged in the Complaint, Plaintiff was under a duty to mitigate the damage accruing to her, if any. THIRTEENTH AFFIRMATIVE DEFENSE 25. Defendant alleges that any loss or damage to the Plaintiff, if any there was, was not

the foreseeable result of any act or omission on the part of Defendant.

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Kennedy, Archer & Giffen Attorneys at Law 24591 Silver Cloud Ct., Suite 200 Monterey, CA 93940

FOURTEENTH AFFIRMATIVE DEFENSE 26. Defendant alleges that the Complaint fails to state facts sufficient to constitute a cause

of action against this answering Defendant in that the Complaint as to this answering Defendant is barred and or subject to the immunities and privileges set forth in Government Code sections 815, 815.2, 818, 818.2, 818.6, 820.2, 820.8, 820.9, 821, 821.4, 821.8, 830.6, 831.2 and 840. FIFTEENTH AFFIRMATIVE DEFENSE 27. Defendant alleges that it is not liable to Plaintiff for any loss or damages resulting

from failure to discharge any mandatory duties, as reasonable diligence was exercised to discharge any duty there may have been pursuant to Government Code section 815.6. SIXTEENTH AFFIRMATIVE DEFENSE 28. Defendant alleges that it acted at all times within the scope of its discretion, in good

faith, with due care, and pursuant to applicable rules, regulations and practices reasonably and in good faith believed to be in accordance with the Constitution and laws of the United States and of the State of California, and accordingly is not liable for any damages alleged by Plaintiff. SEVENTEENTH AFFIRMATIVE DEFENSE 29. Defendant alleges that Plaintiffs claims for relief are barred, in whole or in part,

because Plaintiff failed to comply with the requirements of the California Tort Claims Act. EIGHTEENTH AFFIRMATIVE DEFENSE 30. Defendant alleges that Plaintiffs claims for relief are barred, in whole or in part,

because Plaintiff failed to comply with the requirements of the Federal Tort Claims Act. NINETEENTH AFFIRMATIVE DEFENSE 31. Defendant alleges that the claims made in Plaintiffs Complaint are barred by the

applicable statute of limitations. TWENTIETH AFFIRMATIVE DEFENSE 32. Defendant alleges that the claims made in Plaintiffs Complaint are barred because

Plaintiff failed to exhaust her administrative remedies. TWENTY-FIRST AFFIRMATIVE DEFENSE 33. Defendant alleges that the intradistrict assignment of this lawsuit to the San
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Kennedy, Archer & Giffen Attorneys at Law 24591 Silver Cloud Ct., Suite 200 Monterey, CA 93940

Francisco/Oakland Division of this Court is improper. This lawsuit should be assigned to the San Jose Division of this Court which covers Monterey County cases. Monterey County is where all defendants and almost all of the potential witnesses reside; all of the events sued upon occurred in Monterey County; the property interests sued upon are located in Monterey County; third party defendants to be named by Defendant reside in Monterey County; and, all actions of local agencies and officials (who reside in Monterey County) complained of in the Complaint occurred in Monterey County. ADDITIONAL DEFENSES 34. Defendant reserves the right to assert additional defenses based on information

learned or obtained during discovery. WHEREFORE, Defendant prays for judgment as follows: 1. 2. That Plaintiff take nothing by way of her Complaint; That the Complaint, and each and every purported claim for relief therein, be dismissed with prejudice; 3. That Defendant be awarded its costs of suit incurred herein, including attorneys fees and expenses; and, 4. For such other and further relief as the Court deems just and proper.

Dated: April 17, 2013

KENNEDY, ARCHER & HARRAY

By: ______/s/___________________ Jon R. Giffen Attorneys for Defendant CITY OF CARMEL-BY-THE-SEA

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