FILED

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SEP 28 2015

Vincent P. Hurley #111215

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

TERESA A. RISI

CLERK i>e~OA COURT

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DEPUTY

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Attorneys for Defendants

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

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

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JENNIFER DA SILVA,

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Plaintiff,

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vs.

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CITY OF CARMEL-BY-THE-SEA;
LUKE E. POW"ELL, individually and in
his official capacity as a Police Officer
for the CITY OF CARMEL-BY-THESEA; COUNTY OF MONTEREY;
MONTEREY COUNTY SHERIFF'S
OFFICE, and DOES 1 through 50,
inclusive,

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Case No. M132929

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

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Defendants.

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

allegatiOns contained in the unverified complaint of Plaintiff JENNIFER DA SILVA.
Defendants deny generally and singularly, specifically and individually, each and every

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allegation in Plaintiffs complaint as it pertains to the8e answering Defendants. Defendants

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

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Defendants cannot fully anticipate all affirmative defenses that may be applicable to the . ithin

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

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affirmative defenses to the extent such affirmative defenses are applicable to the within action.
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Deft. C1ty of Canne l and Sgt. Powell' s Answer to Cmplt.

Case No. M 132929

FIRST AFFIRMATIVE DEFENSE

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Plaintiffs complaint fails to state facts sufficient to constitute a cause of action against
these answering Defendants.

SECOND AFFIRMATIVE DEFENSE

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 pubhc entity, and therefore not liable for

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

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FOURTH AFFIRMATIVE DEFENSE

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

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

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to California Government Code sections 815, 815.2, 815.4, 815 6, 818, 818 2, 818.8, 820, 820.2,

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820.25, 820.4, 820.6, 820.8, 821, 821.6, 821 8, and 822.2.

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FIFTH AFFIRMATIVE DEFENSE

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

an official policymaker of the City of Carmel-by-the-Sea.

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SIXTH AFFIRMATIVE DEFENSE

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To the extent Plaintiffs complaint contains California tort claims and facts not fairly

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reflected in the public entityclaim of Plamtiff, said causes of action based upon such facts are

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barred.
_S~V:I?.NTI{_AfFlRMATIVE D~ff..NSg

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Any injury or damage to Plaintiff arose out of a lawful arrest, and as such, Defendants are

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

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836.5, and 142.

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Deft. City of Cat md and Sgt. PowtJJ's .\nswer to Cmplt.

Case No. Ml32929

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EIGHTH AFFIRMATIVE DEFENSE

To the extent Plaintiffs 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.

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NINTH AFFIRMATIVE DEFENSE

The actions ofDefendant, 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 have known, and he is

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

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TENTH AFFIRMATIVE DEFENSE

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

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ELEVENTH AFFIRMATIVE DEFENSE

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

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

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

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officers.

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TWELFTH AFFIRMATIVE DEFENSE

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

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immunity guaranteed by the Constitution or laws of the United States or the State of California.
THIRTEENTII AFFIRMATIVE DEFENSE
The acts or omissions set forth in the Complaint, even if proven true, constitute mere

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negligence and were neither intentional, v.rillful, and/or grossly negligent and as a consequence,

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fail to state a claim for relief for Yiolation of civil rights.

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Deft. City of Carmel and ~gt. Powelrs Answer to C:mplt.

Case No. M 132929

FOURTEENTH AFFIRMATIVE DEFENSE

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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 AFFIAAfATIVE DEFENSE

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

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

SIXTEENTH AFFIRMATIVE DEFENSE

The force used by Defendants' employees and subordinates was reasonably necessary

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

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used under the same or similar circumstances.

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SEVENTEENTH AFFIRMATIVE DEFEl'JSE

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

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

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paid to health care providers in the past for sen ices reasonably related to Plaintiffs injuries.

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NTNtTEENTH AFFIRMATIVE DEFENSE

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

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United States Constitution that there is an actual case or controversy sufficient to invoke powers

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of the Courts for injunctive relief.

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TWENTIETH AFFIRMATIVE DEFENSE

Plaintiffs state law cause<s of action are untimely under the statutory framework of the
California Tort Claims Act, specifically California Government Code section 946.6(f).
T\\'ENTY-FIRST AFFIRMATIVE DEFENSE
These answering Defendants' seizure of Plaintiff was a lawful.

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Deft. City of Carmel and Sgt. Powetrs Answer to Cmplt.

Case No. "-1 132929

T\VENTY-SECOND AFFIRMATIVE DEFENSE

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

TW'ENTY-THIRD AFFIRMATIVE DEFENSE

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

-;uperseding and intervening cause.

TWENTY-FOURTH AFFIRMATIVE DEFEN~E

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

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

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answering Defendants pur'iuant to California Civil Code section 1431.2.

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TWENTY-FIFTH AFFIRMATIVE DEFENSE

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Plaintiff Vvas herself careless and negligent in and about the matters alleged in the

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complaint, and said carelessness and negligence on Plaintiffs part caused or proximately

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

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ifany.

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TWENTY-SIXTH AFFIRMATIVE DEFENSE

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Defendants are entitled to the privileges and immunities from liabilit} in this action unde

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the California Government Code, including sections 815, 815.2, 815.3, 815 .4, 815.6, 818, 818.2,

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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,

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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,

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and 985.

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Deft. C:ity of Cannel and Sgt. PO\\ell's Answer to Cmplt.

Case 1-;o. M l32929

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PRAYER

WHEREFORE, Defendants pray that Plaintiff take nothing by reason ofthe 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.

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Dated: Septemberlti, 2015
LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation

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By:

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Attorneys for Defendants CITY OF

CAR.\IIEL-BY-THE-SEA and LUKE E. POWELL

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Deft. City of Carmel and 'igt. Powell' s Answer to Cmplt.

Case No. 1\1 132929

CASE NAME: Da Silva v Carmel

Monterey County Superior Court Case No. Ml32929

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PROOF OF SERVICE
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 follo\\ing document:

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

Complaint of Plaintiff Jennifer Da Sil\a

on the interested parties to satd actiOn by the following means:

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(BY MAIL) By placing a true copy of the above-referenced document(s)
enclosed in a sealed envelope w1th postage theieon fully prepaid, in the United States
mail at Aptos, California, add!essed as shown below
(BY HAND-DELIVERY) By delivering a true copy thereof, enclosed in a
sealed envelope, to the address(es) -shown below.
(BY OVERNIGHT DELIVERY} By placing a true copy thereof, enclosed
in a sealed em:elope, w1th dehvery charges to be billed to the Law Offices of Vincent
P. Hurley, to be dehvered b}' Umted States Postal Service Express Matl (Overnight),
to the address(es) shown below.

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

by facsimile transmission from facsimile number (831) 661-4804 to the interested
patties to said action at the fac-stnnle number(os) sho\\<n below, each of whom
previously authorized, in \\<I iting, facsimile service of documents in this action.

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(BY E-1\-I.A.IL} I caused the document to be sent to the person(s) at the e-mail
address(e'3) listed below, each of whom previously authonzed electronic service of
documents in this action. I did not receive, within a reasonable time after the
tran8mission, any electronic message or other indication that the transmission was
unsuccessfuL

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I declare under penalty of perjury under the law8 of the State of California that the

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foregoing is true and correct.

Executed on September 24,2015, at Aptos,

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NAMES(S) AND ADDRESS OR FAX NUMBER(S) OF EACH PARTY SERVED:
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Andrew B. K.reeft
Laura L. Franklin
Bohnen, Rosenthal & Kreeft
717 Munras Ave., Suite 200
P .O. Box 1111
Monterey, CA 93942-1111
Tel: (831) 649-0551
Fax: (831) 649-0272

Attorneys for Plaintiff

JENNIFER DA SILVA