Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 1 of 9

1 Vincent P. Hurley #111215

Ryan M. Thompson #292281
2 LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation
3 28 Seascape Village
Aptos, California 95003
4 Telephone: (831) 661-4800
Facsimile: (831) 661-4804
5
Attorneys for Defendants
6 RONALD PFLEGER and CITY OF CARMEL-BY-THE-SEA

7
8 UNITED STATES DISTRICT COURT

9 FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 SAN JOSE DIVISION

11
) Case No. 5:17-cv-03385-SVK
12 STACY LININGER, )
) ANSWER OF DEFENDANTS
13 Plaintiff, ) RONALD PFLEGER AND CITY
) OF CARMEL-BY-THE-SEA TO
14 vs. ) THE COMPLAINT OF PLAINTIFF
) STACY LININGER
15 RONALD PFLEGER, CITY OF CARMEL, )
DEAN FLIPPO, District Attorney of Monterey ) DEMAND FOR JURY TRIAL
16 County California, and DOES 1-50, )
)
17 Defendants. )
)
18

19 Defendants RONALD PFLEGER and CITY OF CARMEL-BY-THE-SEA answer

20 Plaintiffs complaint as follows:

21 1. Defendants deny the allegations in Paragraph 1.

22 2. Defendants deny the allegations in Paragraph 2.

23 3. Responding to Paragraph 3 of Plaintiffs Complaint, Defendants admit that

24 Plaintiff called the Carmel Police Department and spoke with Sgt. Ronald Pfleger, alleging child

25 molestation.

26 4. Responding to Paragraph 4 of Plaintiffs Complaint, Defendants admit that

27 Plaintiff made at least 23 telephone calls to various numbers within the Carmel Police

28 Department between June 26 and 28, 2015.

1
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 2 of 9

1 5. Defendants deny the allegations in Paragraph 5.

2 6. Defendants deny the allegations in Paragraph 6.
3 7. Responding to Paragraph 7 of Plaintiffs Complaint, Defendants admit that
4 Plaintiff continued to call the Carmel Police Department, at least 23 times to various numbers
5 within the department between June 26 and 28, 2015.
6 8. Responding to Paragraph 8 of Plaintiffs Complaint, Defendants admit that
7 Plaintiff was informed that the matter she reported had been resolved by an investigation, and
8 Defendants admit that they asked Plaintiff to stop calling on the various business numbers that
9 Plaintiff was calling at Carmel Police Department, and informed Plaintiff that she could be
10 subject to criminal prosecution if she continued to make annoying and harassing telephone calls
11 to Carmel Police Department. Otherwise, Defendants deny the remaining claims of Paragraph 8.
12 9. Responding to Paragraph 9 of Plaintiffs Complaint, Defendants admit that
13 Plaintiff was informed that the matter she reported had been resolved by an investigation, and
14 Defendants admit that they asked Plaintiff to stop calling on the various business numbers that
15 Plaintiff was calling at Carmel Police Department, and informed Plaintiff that she could be
16 subject to criminal prosecution if she continued to make annoying and harassing telephone calls
17 to Carmel Police Department. Otherwise, Defendants deny the remaining claims of Paragraph 9.
18 10. Responding to Paragraph 10 of Plaintiffs Complaint, Defendants admit that the

19 act of calling Carmel Police Department may be protected First Amendment speech, but
20 Defendants deny that the annoying and harassing telephone calls constitute protected speech.
21 11. Responding to Paragraph 11 of Plaintiffs Complaint, Defendants admit that
22 Defendants submitted a criminal complaint for review by the Monterey County District
23 Attorneys office and charges were filed against Plaintiff for violation of California Penal Code
24 section 653(m) and violation of probation after her conviction for the same offense for which she
25 was on probation at the time of the violations against Carmel Police Department. Defendants
26 otherwise deny the allegations of Paragraph 11.
27
28
2
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 3 of 9

1 12. Responding to Paragraph 12 of Plaintiffs Complaint, Defendants admit that

2 Victoria Wayner was a victim of a violation of Penal Code section 653(m) because Lininger had
3 made as many as 30 telephone calls in a span of three days in which she was rude and offensive,
4 disrespectful and threatening. Defendants otherwise deny the allegations of Paragraph 12.
5 13. Responding to Paragraph 13 of Plaintiffs Complaint, Defendants admit that they
6 applied to a California Superior Court Judge for a search warrant to obtain phone records of
7 Plaintiff with probable cause to believe that Plaintiff was violating California Penal Code section
8 653(m). Defendants otherwise deny the remaining allegations of Paragraph 13.
9 14. Defendants can neither admit or deny the allegations of Paragraph 14, and based
10 on the lack of information, deny the allegations.
11 15. Defendants neither admit or deny the legal statements of Paragraph 15.
12 16. Responding to Paragraph 16, Defendants admit that this Court has original
13 jurisdiction over federal claims as set forth in Paragraph 16.
14 17. Defendants can neither admit or deny the allegations of Paragraph 17 because
15 they are irrelevant to the allegations and causes of action pled in the complaint.
16 18. Defendants admit the allegations of Paragraph 18.
17 19. Defendants admit the allegations of Paragraph 19.
18 20. Responding to Paragraph 20, Defendants admit that Dean Flippo was District

19 Attorney of Monterey County. Defendants otherwise deny the allegations of Paragraph 20.
20 21. Responding to Paragraph 21, Defendants admit that Defendants were acting under
21 color of law and in the scope of their employment.
22 22. Defendants admit the allegations of Paragraph 22.
23 23. Defendants deny the allegations in Paragraph 23.
24 24. Responding to Paragraph 24 of Plaintiffs Complaint, Defendants admit that
25 Defendant Pfleger talked to Plaintiff about her allegation beginning in January 2015, and
26 Defendants submitted a crime report and search warrant affidavit in June 2015, and Defendants
27 otherwise deny the allegations in Paragraph 24.
28
3
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 4 of 9

1 25. Responding to Paragraph 25 of Plaintiffs Complaint, Defendants do not admit or

2 deny Plaintiffs statement of law.
3 26. Responding to Paragraph 26 of Plaintiffs Complaint, Defendants can neither
4 admit or deny Plaintiffs citizenship, and Defendants admit that a police officer is a person.
5 27. Responding to Paragraph 27 of Plaintiffs Complaint, Defendants admit that all
6 persons have First Amendment rights and protections under the totality of the circumstances.
7 28. Defendants admit the allegations in Paragraph 28.
8 29. Defendant Pfleger admits the allegations in Paragraph 29.
9 30. Defendants deny the allegations in Paragraph 30.
10 31. Responding to Paragraph 31 of Plaintiffs Complaint, Defendants can neither
11 admit or deny the allegation about complained of conduct.
12 32. Defendants deny the allegations in Paragraph 32.
13 33. Defendants deny the allegations in Paragraph 33.
14 34. Defendants deny the allegations in Paragraph 34.
15 35. Defendants deny the allegations in Paragraph 35.
16 36. Defendants deny the allegations in Paragraph 36.
17 37. Defendants deny the allegations in Paragraph 37.
18 38. Defendants deny the allegations in Paragraph 38.

19 39. Responding to Paragraph 39 of Plaintiffs Complaint, Defendants can neither

20 admit or deny Paragraph 39 as an incorporation paragraph.
21 40. Defendants deny the allegations in Paragraph 40.
22 41. Defendants admit the allegations in Paragraph 41.
23 42. Defendants admit the allegations in Paragraph 42.
24 43. Responding to Paragraph 43 of Plaintiffs Complaint, Defendants can neither
25 admit or deny the legal conclusion of Paragraph 43 as phrased.
26 44. Defendants deny the allegations in Paragraph 44.
27
28
4
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 5 of 9

1 45. Responding to Paragraph 45 of Plaintiffs Complaint, Defendants can neither

2 admit or deny Paragraph 45 as an incorporation paragraph.
3 46. Responding to Paragraph 46 of Plaintiffs Complaint, these answering Defendants
4 can neither admit or deny Plaintiffs legal conclusion.
5 47. Responding to Paragraph 47 of Plaintiffs Complaint, these answering Defendants
6 can neither admit or deny Plaintiffs legal conclusion.
7 48. Defendants deny the allegations in Paragraph 48.
8 49. Defendants deny the allegations in Paragraph 49.
9 50. Defendants deny the allegations in Paragraph 50.
10 51. Defendants can neither admit or deny the allegations of Paragraph 51, and based
11 on the lack of information, deny the allegations.
12 52. Defendants can neither admit or deny the allegations of Paragraph 52, and based
13 on the lack of information, deny the allegations.
14 53. Defendants can neither admit or deny Paragraph 53 as there is no allegation
15 relating to these answering Defendants.
16 54. Defendants can neither admit or deny Paragraph 54 as there is no allegation
17 relating to these answering Defendants.
18 55. Defendants can neither admit or deny Paragraph 55 as there is no allegation

19 relating to these answering Defendants.

20 56. Defendants can neither admit or deny Paragraph 56 as there is no allegation
21 relating to these answering Defendants.
22 57. Defendants can neither admit or deny Paragraph 57 as there is no allegation
23 relating to these answering Defendants.
24 58. Defendants deny the allegations in Paragraph 58.
25 59. Responding to Paragraph 59 of Plaintiffs Complaint, these answering Defendants
26 can neither admit or deny Plaintiffs legal conclusion.
27
28
5
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 6 of 9

1 60. Responding to Paragraph 60 of Plaintiffs Complaint, Defendants can neither

2 admit or deny Plaintiffs legal conclusion.
3 61. Defendants can neither admit or deny Paragraph 61 as there is no allegation
4 relating to these answering Defendants.
5 62. Defendants can neither admit or deny Paragraph 62 as there is no allegation
6 relating to these answering Defendants.
7 63. Defendants deny the allegations in Paragraph 63.
8 64. Responding to Paragraph 64 of Plaintiffs Complaint, these answering Defendants
9 can neither admit or deny Plaintiffs legal conclusion.
10 65. Defendants can neither admit or deny Paragraph 65 as there is no allegation
11 relating to these answering Defendants.
12 AFFIRMATIVE DEFENSES
13 FIRST AFFIRMATIVE DEFENSE
14 The Plaintiffs Complaint fails to state facts sufficient to state a cause of action against
15 these answering Defendants.
16 SECOND AFFIRMATIVE DEFENSE
17 The Plaintiffs Complaint fails to state facts sufficient to state a cause of action against
18 these answering Defendants for any violation of civil rights that resulted from any official policy,

19 custom or practice of these answering Defendants.

20 THIRD AFFIRMATIVE DEFENSE
21 The CITY OF CARMEL-BY-THE-SEA is a public entity, and therefore not liable for
22 exemplary or punitive damages.
23 FOURTH AFFIRMATIVE DEFENSE
24 These answering Defendants are immune from liability for any claim based on the laws
25 of the State of California pursuant to the California Government Code, including but not limited
26 to California Government Code sections 815, 815.2, 815.4, 815.6, 818, 818.2, 818.8, 820, 820.2,
27 820.25, 820.4, 820.6, 820.8, 821, 821.6, 821.8, and 822.2.
28
6
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 7 of 9

1 FIFTH AFFIRMATIVE DEFENSE

2 To the extent that Plaintiffs Complaint contains California tort claims and facts not fairly
3 reflected in a public entity claim of the Plaintiff, said causes of action based upon such facts are
4 barred.
5 SIXTH AFFIRMATIVE DEFENSE
6 Any injury or damage to Plaintiff arose out of a lawful application for and execution of a
7 valid warrant, and as such, to the extent that Plaintiff relies on any state law claim, Defendants
8 are immune from liability under the provisions of California Penal Code sections 833, 836,
9 836.5.
10 SEVENTH AFFIRMATIVE DEFENSE
11 The actions of Defendant Ron Pfleger were objectively reasonable in light of the facts
12 and circumstances known to him, and his conduct did not violate clearly established statutory or
13 constitutional rights of which a reasonable person would have known, and he is therefore
14 immune from liability pursuant to the principles of qualified immunity.
15 EIGHTH AFFIRMATIVE DEFENSE
16 The actions of these answering Defendants were reasonable in the submission of an
17 affidavit for issuance of a valid warrant based on probable cause to believe a criminal offense
18 occurred.

19 NINTH AFFIRMATIVE DEFENSE

20 The actions of these answering Defendants were reasonable in the reporting of probable
21 cause to believe a criminal offense occurred.
22 TENTH AFFIRMATIVE DEFENSE
23 The training program of these answering Defendants was adequate to train officers to
24 properly handle usual and recurring situations that they would encounter, and these answering
25 Defendants did not act with deliberate indifference with regard to the need to adequately train
26 officers.
27
28
7
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 8 of 9

1 ELEVENTH AFFIRMATIVE DEFENSE

2 These answering Defendants have not deprived the Plaintiff of any right, privilege, or
3 immunity guaranteed by the Constitution or laws of the United States.
4 TWELFTH AFFIRMATIVE DEFENSE
5 The acts or omissions set forth in the Complaint, even if proven true, constitute mere
6 negligence and were neither intentional, willful, nor grossly negligent, and, as a consequence,
7 fail to state a claim for relief for violation of civil rights.
8 THIRTEENTH AFFIRMATIVE DEFENSE
9 Plaintiffs conduct was not a valid exercise of free speech.
10 FOURTEENTH AFFIRMATIVE DEFENSE
11 These answering Defendants are not liable under the Fourth or Fourteenth Amendments
12 under the principals of vicarious liability for conduct of employees.
13 FIFTEENTH AFFIRMATIVE DEFENSE
14 Plaintiffs special damages, if any there were, should be reduced to the actual amount
15 paid to health care providers in the past for services reasonably related to Plaintiffs injuries.
16 SIXTEENTH AFFIRMATIVE DEFENSE
17 The Plaintiffs prayer for injunctive relief fails to satisfy the requirements of Article III of
18 the United States Constitution that there is an actual case or controversy sufficient to invoke

19 powers of the Courts for injunctive relief.

20 SEVENTEENTH AFFIRMATIVE DEFENSE
21 The decision of the Monterey County District Attorney, reasonable as it was, cuts off any
22 liability of these answering Defendants related to any criminal charge or prosecution.
23 EIGHTEENTH AFFIRMATIVE DEFENSE
24 The Plaintiff failed to mitigate damages, if any, and such failure caused, contributed to,
25 aggravated and/or increased said damages. These answering Defendants are not liable for the
26 Plaintiffs unmitigated damages.
27
28
8
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK
 Case 5:17-cv-03385-SVK Document 9 Filed 08/09/17 Page 9 of 9

1 PRAYER FOR RELIEF

2 Wherefore, these answering Defendants pray for judgment in their favor and against the
3 Plaintiff, as follows:
4 1. The Plaintiff take nothing by reason of her complaint;
5 2. These answering Defendants be awarded their costs of suit; and
6 3. These answering Defendants be awarded such other and further relief as the Court
7 may deem just and proper.
8 DEMAND FOR JURY TRIAL
9 Defendants hereby demand a jury trial provided by Rule 38(b) of the Federal Rules of
10 Civil Procedure.
11
12 Dated: August 9, 2017
13 LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation
14
By: /s/
15 RYAN M. THOMPSON
Attorneys for Defendants RONALD PFLEGER and
16 CITY OF CARMEL-BY-THE-SEA
17
18

19
20
21
22
23
24
25
26
27
28
9
Answer of City of Carmel and Pfleger to Plaintiffs Complaint Case No. 5:17-cv-03385-SVK