Answer of Defendants Pfleger and City, Lininger 41 02-05-18

Case 5:17-cv-03385-SVK Document 41 Filed 02/05/18 Page 1 of 10
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
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 FIRST AMENDED
) COMPLAINT OF PLAINTIFF
15 RONALD PFLEGER, CITY OF CARMEL, ) STACY LININGER
DEAN FLIPPO, District Attorney of Monterey )
16 County California, and DOES 1-50, ) DEMAND FOR JURY TRIAL
)
17 Defendants. )
)
18
19 Defendants RONALD PFLEGER and CITY OF CARMEL-BY-THE-SEA answer
20 Plaintiff STACY LININGER’S complaint as follows:
21 1. Defendants deny the allegations in Paragraph No. 1.
22 2. Responding to Paragraph No. 2, Defendants lack sufficient information to admit
23 or deny the allegations contained therein, and on said basis, deny the allegations.
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Answer of City of Carmel and Pfleger to Plaintiff’s First Amended Complaint Case No. 5:17-cv-03385-SVK
1 5. Responding to Paragraph No 5, Defendants can neither admit or deny the

2 allegations contained therein, as they do not state factual allegations.

8 9. Responding to Paragraph No. 9, Defendants admit that Plaintiff called the Carmel
9 Police Department and spoke with Sgt. Ronald Pfleger, alleging child molestation.
10 10. Responding to Paragraph No. 10, Defendants admit that Plaintiff made at least 23
11 telephone calls to various numbers within the Carmel Police Department between June 26 and
12 28, 2015.
15 13. Responding to Paragraph No. 13, Defendants admit that Plaintiff continued to call
16 the Carmel Police Department, at least 23 times to various numbers within the Department
17 between June 26 and 28, 2015.
18 14. Responding to Paragraph No. 14, Defendants admit that Plaintiff was informed
19 that the matter she reported had been resolved by an investigation, and Defendants admit that
20 they asked Plaintiff to stop calling on the various business numbers that Plaintiff was calling at
21 Carmel Police Department, and informed Plaintiff that she could be subject to criminal
22 prosecution if she continued to make annoying and harassing telephone calls to Carmel Police
23 Department. Otherwise, Defendants deny the remainder of the allegations in Paragraph No. 14.
24 15. Responding to Paragraph No. 15, Defendants admit that Plaintiff was informed
25 that the matter she reported had been resolved by an investigation, and Defendants admit that
26 they asked Plaintiff to stop calling on the various business numbers that Plaintiff was calling at
27 Carmel Police Department, and informed Plaintiff that she could be subject to criminal
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1 prosecution if she continued to make annoying and harassing telephone calls to Carmel Police
2 Department. Otherwise, Defendants deny the remainder of the allegations in Paragraph No. 15.
3 16. Responding to Paragraph No. 16, Defendants admit that the act of calling Carmel
4 Police Department may be protected First Amendment speech, but Defendants deny that the
5 annoying and harassing telephone calls constitute protected speech.

6 17. Responding to Paragraph No. 17, Defendants admit that Defendants submitted a
7 criminal complaint for review by the Monterey County District Attorney’s office and charges
8 were filed against Plaintiff for violation of California Penal Code section 653(m) and violation of
9 probation after her conviction for the same offense for which she was on probation at the time of
10 the violations against Carmel Police Department. Otherwise, Defendants deny the remainder of
11 the allegations in Paragraph No. 17.
12 18. Responding to Paragraph No. 18, Defendants admit that Victoria Wayner was a
13 victim of Lininger’s violation of Penal Code section 653(m) because Lininger had made as many
14 as 30 telephone calls in a span of three days in which she was rude and offensive, disrespectful
15 and threatening. Otherwise, Defendants deny the remainder of the allegations in Paragraph
16 No. 18.
17 19. Responding to Paragraph No. 19, Defendants admit that they applied to a
18 California Superior Court Judge for a search warrant to obtain phone records of Plaintiff with
19 probable cause to believe that Plaintiff was violating California Penal Code section 653(m).
20 Otherwise, Defendants deny the remainder of the allegations in Paragraph No. 19.
21 20. Responding to Paragraph No. 20, Defendants admit that the District Attorney’s
22 Office brought charges against Lininger for violation of California Penal Code section 653(m)
23 and violation of her probation after her conviction for the same offense for which she was on
24 probation at the time of the violations against Carmel Police Department. Otherwise, Defendants
25 deny the remainder of the allegations in Paragraph No. 20.
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13 28. Responding to Paragraph No. 28, Defendants deny that they retaliated against
14 Lininger in any respect. Otherwise, Defendants lack sufficient information to admit or deny the
15 remainder of the allegations contained in Paragraph No. 28, and on said basis, deny the
16 allegations.
19 30. Defendants neither admit or deny the legal statements in Paragraph No. 30.
20 31. Responding to Paragraph No. 31, Defendants admit that this Court has original
21 jurisdiction over Plaintiff’s federal claims, and that venue is proper.
22 32. Defendants neither admit or deny the allegations in Paragraph No. 32 because
23 they are irrelevant to the allegations and causes of action pled in the First Amended Complaint.
24 33. Defendants admit the allegations in Paragraph No. 33.
26 35. Responding to Paragraph No. 35, Defendants admit that during the events alleged
27 in the Complaint, Dean Flippo was District Attorney of Monterey County. Defendants otherwise
28 deny the remainder of the allegations in Paragraph No. 35.
4
1 36. Responding to Paragraph No. 36, Defendants admit Defendants were acting under
2 color of law and in the scope of their employment.
5 39. Responding to Paragraph 39, Defendants admit that Defendant Pfleger talked to
6 Plaintiff about her allegation beginning in January 2015, and Defendants submitted a crime
7 report and search warrant affidavit in June 2015. Defendants otherwise deny the allegations in
8 Paragraph 24.
10 41. Responding to Paragraph No. 41, Defendants can neither admit or deny the status
11 of Plaintiff’s citizenship. Defendants can neither admit or deny the remainder of the allegations,
12 as they consist of legal argument, not factual allegations.
13 42. Responding to Paragraph No. 42, Defendants admit that all persons have First
14 Amendment rights and protections, which may be impacted based on the circumstances.
18 46. Defendants can neither admit or deny the allegations in Paragraph No. 46, as the
19 allegations, as phrased, are vague, ambiguous, and unintelligible.

27 54. Answering the allegations in Paragraph No. 54, Defendants incorporate and
28 reassert their responses to Paragraphs 1 through 53, above.
5

3 57. Defendants can neither admit or deny the allegations in Paragraph No. 57, as they
4 consist of legal argument, not factual allegations.

7 60. Answering the allegations in Paragraph No. 60, Defendants incorporate and
8 reassert their responses to Paragraphs 1 through 59, above.

9 61. Responding to Paragraph No. 61, Defendants can neither admit or deny the
10 allegations, as they consist of legal conclusions, not factual allegations.
11 62. Defendants can neither admit or deny the allegations in Paragraph No. 62, as the
12 allegations, as phrased, are vague, ambiguous, and unintelligible.
16 66. Defendants lack sufficient information to admit or deny the allegations in
17 Paragraph No. 66, and on that basis, deny the allegations.
18 67. Responding to Paragraph 67, the allegations stated therein are not applicable to
19 these Defendants and as such, the paragraph is denied in its entirety.

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17 AFFIRMATIVE DEFENSES
18 FIRST AFFIRMATIVE DEFENSE
19 The Plaintiff’s Complaint fails to state facts sufficient to state a cause of action against
20 these answering Defendants.
21 SECOND AFFIRMATIVE DEFENSE
22 The Plaintiff’s Complaint fails to state facts sufficient to state a cause of action against
23 these answering Defendants for any violation of civil rights that resulted from any official policy,
24 custom or practice of these answering Defendants.
25 THIRD AFFIRMATIVE DEFENSE
26 The CITY OF CARMEL-BY-THE-SEA is a public entity, and therefore not liable for
27 exemplary or punitive damages.
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1 FOURTH AFFIRMATIVE DEFENSE

2 These answering Defendants are immune from liability for any claim based on the laws
3 of the State of California pursuant to the California Government Code, including but not limited
4 to California Government Code sections 815, 815.2, 815.4, 815.6, 818, 818.2, 818.8, 820, 820.2,
5 820.25, 820.4, 820.6, 820.8, 821, 821.6, 821.8, and 822.2.

6 FIFTH AFFIRMATIVE DEFENSE
7 To the extent that Plaintiff’s Complaint contains California tort claims and facts not fairly
8 reflected in a public entity claim of the Plaintiff, said causes of action based upon such facts are
9 barred.
10 SIXTH AFFIRMATIVE DEFENSE
11 Any injury or damage to Plaintiff arose out of a lawful application for and execution of a
12 valid warrant, and as such, to the extent that Plaintiff relies on any state law claim, Defendants
13 are immune from liability under the provisions of California Penal Code sections 833, 836,
14 836.5.
15 SEVENTH AFFIRMATIVE DEFENSE
16 The actions of Defendant Ron Pfleger were objectively reasonable in light of the facts
17 and circumstances known to him, and his conduct did not violate clearly established statutory or
18 constitutional rights of which a reasonable person would have known, and he is therefore
19 immune from liability pursuant to the principles of qualified immunity.
20 EIGHTH AFFIRMATIVE DEFENSE
21 The actions of these answering Defendants were reasonable in the submission of an
22 affidavit for issuance of a valid warrant based on probable cause to believe a criminal offense
23 occurred.
24 NINTH AFFIRMATIVE DEFENSE
25 The actions of these answering Defendants were reasonable in the reporting of probable
26 cause to believe a criminal offense occurred.
27
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1 TENTH AFFIRMATIVE DEFENSE

2 The training program of these answering Defendants was adequate to train officers to
3 properly handle usual and recurring situations that they would encounter, and these answering
4 Defendants did not act with deliberate indifference with regard to the need to adequately train
5 officers.
6 ELEVENTH AFFIRMATIVE DEFENSE
7 These answering Defendants have not deprived the Plaintiff of any right, privilege, or
8 immunity guaranteed by the Constitution or laws of the United States.

9 TWELFTH AFFIRMATIVE DEFENSE
10 The acts or omissions set forth in the Complaint, even if proven true, constitute mere
11 negligence and were neither intentional, willful, nor grossly negligent, and, as a consequence,
12 fail to state a claim for relief for violation of civil rights.
13 THIRTEENTH AFFIRMATIVE DEFENSE
14 Plaintiff’s conduct was not a valid exercise of free speech.
15 FOURTEENTH AFFIRMATIVE DEFENSE
16 These answering Defendants are not liable under the Fourth or Fourteenth Amendments
17 under the principals of vicarious liability for conduct of employees.
18 FIFTEENTH AFFIRMATIVE DEFENSE
19 Plaintiff’s special damages, if any there were, should be reduced to the actual amount
20 paid to health care providers in the past for services reasonably related to Plaintiff’s injuries.
21 SIXTEENTH AFFIRMATIVE DEFENSE
22 The Plaintiff’s prayer for injunctive relief fails to satisfy the requirements of Article III of
23 the United States Constitution that there is an actual case or controversy sufficient to invoke
24 powers of the Courts for injunctive relief.
25 SEVENTEENTH AFFIRMATIVE DEFENSE
26 The decision of the Monterey County District Attorney, reasonable as it was, cuts off any
27 liability of these answering Defendants related to any criminal charge or prosecution.
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1 EIGHTEENTH AFFIRMATIVE DEFENSE

2 The Plaintiff failed to mitigate damages, if any, and such failure caused, contributed to,
3 aggravated and/or increased said damages. These answering Defendants are not liable for the
4 Plaintiff’s unmitigated damages.
5 PRAYER FOR RELIEF

6 Wherefore, these answering Defendants pray for judgment in their favor and against the
7 Plaintiff, as follows:
8 1. The Plaintiff take nothing by reason of her complaint;

9 2. These answering Defendants be awarded their costs of suit; and
10 3. These answering Defendants be awarded such other and further relief as the Court
11 may deem just and proper.
12 DEMAND FOR JURY TRIAL
13 Defendants hereby demand a jury trial provided by Rule 38(b) of the Federal Rules of
14 Civil Procedure.
15
16 Dated: February 5, 2018
17 LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation
18
By: /s/
19 RYAN M. THOMPSON
Attorneys for Defendants RONALD PFLEGER and
20 CITY OF CARMEL-BY-THE-SEA
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Case 5:17-cv-03385-SVK Document 41 Filed 02/05/18 Page 1 of 10

1 Vincent P. Hurley #111215

8 UNITED STATES DISTRICT COURT

9 FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 SAN JOSE DIVISION

20 Plaintiff STACY LININGER’S complaint as follows:

21 1. Defendants deny the allegations in Paragraph No. 1.

22 2. Responding to Paragraph No. 2, Defendants lack sufficient information to admit

24 3. Responding to Paragraph No. 3, Defendants lack sufficient information to admit

26 4. Responding to Paragraph No. 4, Defendants lack sufficient information to admit

1 5. Responding to Paragraph No 5, Defendants can neither admit or deny the

5 7. Responding to Paragraph No. 7, Defendants lack sufficient information to admit

5 annoying and harassing telephone calls constitute protected speech.

23 50. Defendants deny the allegations in Paragraph No. 50.

1 55. Defendants deny the allegations in Paragraph No. 55.

5 58. Defendants deny the allegations in Paragraph No. 58.

8 reassert their responses to Paragraphs 1 through 59, above.

23 these Defendants and as such, the paragraph is denied in its entirety.

8 these Defendants and as such, the paragraph is denied in its entirety.

1 FOURTH AFFIRMATIVE DEFENSE

5 820.25, 820.4, 820.6, 820.8, 821, 821.6, 821.8, and 822.2.

1 TENTH AFFIRMATIVE DEFENSE

8 immunity guaranteed by the Constitution or laws of the United States.

1 EIGHTEENTH AFFIRMATIVE DEFENSE

5 PRAYER FOR RELIEF

8 1. The Plaintiff take nothing by reason of her complaint;

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