FILED

2
3
4

SEP 28 2015

Vincent P. Hurley #111215

Ryan M. Thompson #292281
LAW OFFICES OF VINCENT P. HURLEY
A Profe~sional Corporation
28 Seascape Village
Aptos, California 95003
Telephone: (831) 661-4800
Facsimile: (831) 661-4804

TERESA A. RISI

cLERK Me~oR couRT

~e;
DEPUTY

5
6

Attorneys for Defendants

CITY OF CARMEL-BY-THE-SEA and LUKE E. POWELL

7
8

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

10
11
12
13
.14

1S
16
17
18

)
)
)
Plaintiff,
)
)
vs.
)
)
CITY OF CARMEL-BY-THE-SEA;
)
LUKE E. POWELL, individually and in )
his official capacity as a Police Officer )
for the CITY OF CARMEL-BY-THE- )
SEA, COUNTY OF MONTEREY;
)
MONTEREY COUNTY SHERIFF'S
)
OFFICE, and DOES 1 through 50,
)
inclusive,
)
)
Defendants.
)

Case No. M132929

JENNIFER DA SILVA,

ANS\VER OF DEFENDANTS
CITY OF CARMEL BY-THE-SEA
AND SERGEANT LUKE E. POWELL
TO COMPLAINT OF PLAINTIFF
JENNIFER DA SILVA

19
20
21
22
23

Defendants CARMEL BY-THE-SEA and SERGEANT LUKE E. POWELL answer the

allegattons contamed in the unverified complaint of Plaintiff JENNIFER D_\ SILVA.
Defendants deny generally and singularly, specifically and individually, each and ev-ery

24

allegation in Plaintiffs complaint as it pertains to these answering Def~ndants. Defendants

25

allege that because Plaintiff has drafted her complaint in conclusory tenns, these answering

26

Defendants carmot fully anticipate all affirmatiYe defenses that may be applicable to the within

27

action. Accordingly, these answering Defendants hereby reserve the right to add additional

28

affirmative defenses to the extent such affirmative defenses are applicable to the within action.
1
Deft. C it;. of Carme l and Sgt. Powe ll 's Answer to Cmplt.

Case No. M 1329:!9

FIRST AFFI~fATIVE DEFENSE

Plaintiffs complaint fails to state facts sufficient to constitute a cause of action against

these answering Defendants.

SECOND AFFIRMATIVE DEFENSE

4
5

Plaintiffs complaint fails to state facts sufficient to state a cause of action against these

answering Defendants for any violation of civil rights that resulted from any official policy,

custom or practice of these answering Defendants.

THIRD AFFIRMATIVE DEFENSE

CITY OF CARMEL BY-THE-SEA is a public entity, and therefore not liable for

10

exemplary or punitive damages in any sum, or at all.

11

FOURTH AFFI&\1ATIVE DEFENSE

12

These answering Defendants are immune from liability for any claim based on the laws

13

of the State of California pursuant to the California Government Code, including but not limited

14

to California GoYemment Code sections 815, 815.2, 815.4, 815.6, 818, 818 2, 818 8, 8:!0, 820.2,

15

820.25, 820.4, 820.6, 820.8, 821, 821.6, 821.8, and 822.2.

16

FIFTH AFFIRMATIVE DEFENS:g

At the time of the subject incident, Defendant Luke E. Powell was not, nor has even been

17

18

an official policymaker of the City ofCarrnel-b}-the-Sea.

19

SIXTH AFFIR\ fATIVE DEFENSE

:20

To the extent Plaintiff's complaint contains California tort claims and facts not fairly

21

reflected in the public entity claim of Plaintiff, said causes of action ba~ed upon such facts are

22

barred.
_S_EYENTJI ~.f.U.R!vJ~TIVE DF:fJ:NS

23

24

Any injury or damage to Plaintiff arose out of a la\\<ful arrest, and as such, Defendants are

25

immune from liability under the pro\ isions of California Penal Code sections 833, 835, 836,

26

836.5, and 142.

27

28
2
Deft. City of Cannel and Sgt. Powe Jr s Answer to Cmplt.

Case No. M I '32929

I
2

EIGHTH AFFIRMATIVE DEFENSE

To the extent Plaintiff's complaint contains California tort claims and facts not fairly

reflected in the public entity claim of Plaintiff, said causes of action failed to abide by the terms

of the California Tort Claims Act.

5
6

NINTH AFFIRMATIVE DEFENSE

The actions of Defendant, Luke E. Powell, were objectively reasonable in light of the

facts and circumstances known to him, and his conduct did not -violate clearly established

statutory or constitutional rights of which a reasonable person would ha\ e known, and he is

therefore immune from liability pursuant to the principles of qualified immunity.

10
11
12

TENTH AFFIRMATIVE DEFENSE

Defendants and Defendants' employees and subordinates acted with reasonable force
under the totality of the circumstances.

13
14

ELEVENTH AFFIRMATIVE DEFENSE

The training program of these answering Defendants was adequate to train officers to

15

properly handle usual and recurring situations that they would encounter, and these answering

16

Defendants did not act with deliberate indifference with regard to the need to adequately train

17

officers.

18

TWELFTH AFFIRMATIVE DEFENSE

19

These answering Defendants have not deprived Plaintiff of any right, privilege, or

20
21
22

immunity guaranteed by the Constitution or laws of the United States or the State of California.
THIRTEENTH AfFIRMATIVE DEFENSE
The acts or omi~sions set forth in the Complaint, eYen if proven true, constitute mere

23

negligence and were neither intentional, vallful, and/or grossly negligent and as a consequence,

24

fail to state a claim for relief for -violation of ciYil rights.

25

26
27
28
3
Deft. City of Carmel and Sgt. Powell' s An<;wer to Cmplt.

Case No. M l32929

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to mitigate his damages, if any, and such failure caused, contributed to,

aggravated and/or increased said damages. These answering Defendants are not liable for

Plaintiff's unmitigated damages.

FIFTEENTH AFFIRM<\TIVE DEFENSE

Defendants' employees and subordinates had the authority to detain Plaintiff for

questioning or other limited investigation and were lawfully carrying out that authority.

SIXTEENTH AFFIRMATIVE DEFENSE

The force used by Defendants' employees and subordinates was reasonably nece8~

10

under the circumstances and was that force a reasonable law enforcement officer would have

11

used under the same or similar circumstances.

12

13
1-l
15

SEVENTEENTH AFFIRMATIVE DEFENSE

These answering Defendants are not liable under the First, Fourth or Fourteenth
Amendments under the principals of vicarious liability for conduct of employees.
EIGHTEENTH AFFIRMATIVE DEFENSE

16

Plaintiff's special damages, if any there were, 8hould be reduced to the actual amount

17

paid to health care providers in the past for services reasonably related to Plaintiff's injuries.

18

NINETEENTH AFFIRMATIVE DEFENSE

19

Plaintiff's prayer for injunctive relief fails to satisfy the requirements of Article III of the

20

United States Constitution that there is an actual case or contro\'ersy sufficient to invoke powers

21

of the Courts for injunctive relief.

22

23
24
25

26

TVv'ENTIETH AFFIRMATIVE DEFENSE

Plaintiff's state law causes of action are untimely under the statutory framework of the
California Tort Claims Act, specifically California Government Code section 946.6(f).
TWENTY-FIRST AFFIRMATIVE DEFENSE

These answering Defendants' seizure of Plaintiff was a lawful.

27

28
4
Detl. City o f Carmel and Sgt. Powelrs Answer to Cmplt.

Case No. M 132929

"

TWENTY-SECOND AFFIRMATIVE DEFENSE

3
4

Plaintiff's claimed damages, if any, were not legally and proximately caused by these
answering Defendants.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff's alleged injuries, loss, or damages, if any, v.ere proximately caused by a

superseding and intervening cause.

TWENTY-FOURTfl AFFIRMATIVE DEFENSE

8
9

These answering Defendants are liable only for those amounts of non-economic damages

10

directly proportional to the finder of fact's conclusions as to the culpability, if any, of these

11

answering Defendants pur<>uant to California Ch 11 Code section 1431.2.

12

TWENTY-FifTHAFFIRM\TIVE DEFENSE

13

Plaintiff was her'3elf careless and negligent in and about the matters alleged in the

14

complaint, and said carelessness and negligence on Plainhff s part caused or proximately

1S

contributed to the happening of the incident, and to the injuries, loss and damages complained of,

16

ifany.
TWENTY -SIXTH AFFIRMATIVE DEFENSE

17
18

Defendants are entitled to the privileges and immunities from liability in this action under

19

the California Government Code, including sections 815, 815.2, 815.3, 815.4, 815.6, 818, 818.2.

20

818.4, 818.6, 818.8, 820, 820.2, 820.4, 820.6, 820.8, 821, 821.2, 822.2, 830, 830.2, 830.4, 830.5,

21

830.6, 830.8, 831 ' 831.2, 831.3, 835.2, 835.4, 840, 840.2, 840 4, 840.6, 845, 895.2, 895 .4, 895.6,

2:!

anu 985.

23
24
25

26
27
28
5
Detl. Cit) of Cannel and Sgt. Powell" s \ nswer to Cmplt.

Case No. M132929

PRAYER

WHEREFORE, Defendants pray that Plaintiff take nothing by reason of the complaint;

and that Defendants be awarded its costs of suit, that Defendants be awarded all reasonable

attorneys fees as permitted by law, and for such other and further relief as the Court may deem

proper.

6
7

Dated:

Septemberl~, 2015
LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation

TL__

11

By:

12

RYAN M"---;.l=H=o=MP:-=s=o=N,.-;;---Attorneys for Defendants CITY OF

CARMEL-BY-THE-SEA and LUKE E. PO"WELL

13
14
15

16

17
IS
19

20
21

23
24
25

27
28
6
Deft City ofCaJ mel and <)gt Po" ell's .\.1swer to Crnplt.

Case No. M 132929

CASE NAME: Da Silva v Carmel

Monterey County Superior Court Case No. M 132929

PROOF OF SERVICE
2

I, Marcy Brenkwitz, declare as follows: I am employed in the County of Santa Cruz,

State of California. I am over the age of eighteen years and not a party to the within action. My

business address is 28 Seascape Village, Aptos~ California 95003.

On September 24, 2015, I served the following document:

Answer of Defendants City of Carmel-By-The-Sea and Sergeant Luke E. Powell to

Complaint of Plaintiff Jennifer Da Siba

7
on the interested parties to said action b} the following means.

9
10

11

X
(BY MAIL) By placmg a true copy of the above-referenced document(s)
enclosed m a sealed em-elope \\'lth postage thereon fully ptepaid, in the United States
mad at Aptos, California, addressed as shown below.
--=--=---""(BY HAND-DELIVERX} B} delivering a true copy thereof, enclosed in a
sealed envelope, to the address(es) shown below.

12

(BY OVERNIGHT DELIVER\') By placing a true copy thereof, enclosed

m a sealed envelope. w1th delh.ery charges to be billed to the Law Offices of Vincent

13

P. Hurley, to be delivered by Umted States Postal Setvice Express Mail (Overnight),

to the address(es) shown below.

14
15
16

(BY FACSIMILE TRA.N SMISSION) By transmitting a true copy thereof

by facsimile transmiss10n from facsimile number (831) 661-4804 to the interested
parties to said action at the facstmtle number(cs) shown below, each of whom
ptevioucsly authmiz.ed, in wnting, facsinule service of documents in this action.
---,--->.::(B=--"Y E-MAIL) I caused the document to be sent to the person(s) at the e-mail

18

address(es) listed below, each of whom previously authonzed electronic sen.ice of

documents in this action. I dtd not recei...-e, \\ithin a reasonable time after the
transmission. any electronic message or other indication that the transmission was
unsuccessful.

19

I declare under penalty of perjury under the laws of the State of California that the

17

20
21

foregoing is true and correct.

Executed on September 24,2015, at Aptos, California.

/7

..:/};';~..(-4'.
~
__
/~/t~tt_r. ., . 4t!l-!-~

22

:.farcy Brenl" itz

23
NAMES(S) AND ADDRESS OR FAX NUMBER(S) OF EACH PARTY SERVED:
24
25
26
27
28

Andrew B. Kreeft
Laura L. Frankhn
Bohnen. Rosenthal & Kreeft
717 Munras Ave., Suite 200
P.O. Box 1111
Monterey, CA 93942-1 111
fel: (831) 649-0551
Fax: (831) 649-0272

Attorneys for Plaintiff

JENNlFER DA SILVA