Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 1 of 27 1 2 3 4 5 6 JAN I. GOLDSMITH, City Attorney DANIEL F. BAMBERG, Assistant City Attorney TIMOTHY C. STUTLER, Chief Deputy City Attorney California State Bar No. 131794 Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101-4100 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 Attorneys for Defendants NEAL N. BROWDER and CITY OF SAN DIEGO 7 8 UNITED STATES DISTRICT COURT 9 10 SOUTHERN DISTRICT OF CALIFORNIA S.R. NEHAD, an individual, K.R. ) ) FRIDOON RAWSHAN NEHAD, ) ) Plaintiffs, ) ) v. ) ) NEAL N. BROWDER, an individual, ) CITY OF SAN DIEGO, a municipality, ) and DOES 1 through 10, inclusive, ) ) Defendants. ) ) 11 NEHAD, an individual, ESTATE OF 12 13 14 15 16 17 Case No. 15cv1386 WQH (NLS) DEFENDANTS’ ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT Judge: Hon. William Q. Hayes Court Room: 14B Annex Trial: Not Set 18 COME NOW Defendants Neal N. Browder (“Officer Browder”) and City of 19 San Diego, by and through their attorneys, San Diego City Attorney Jan I. 20 Goldsmith and Chief Deputy City Attorney Timothy C. Stutler, and answer 21 Plaintiffs’ “First Amended Complaint for: (1) Deprivation of Civil Rights Under 42 22 U.S.C. § 1983 (Fourth Amendment); (2) Deprivation Of Civil Rights Under 42 U 23 .S.C. § 1983 (Fourteenth Amendment); (3) Deprivation of Civil Rights (Cal. Civ. 24 Code § 52.1) (4) Assault and battery; (5) Negligence; and (6) Wrongful Death” 25 (“FAC”). 26 1. Responding to Paragraph 1 of the FAC, Defendants admit that on 27 April 30, 2015, Officer Browder was acting under color of authority in his capacity 28 as a San Diego police officer, when he shot Fridoon Rawshan Nehad (“Plaintiffs’ Document Number:1082797 1 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 2 of 27 1 Decedent”), and that Plaintiffs’ Decedent later died of injuries sustained in the 2 incident. 3 expressly admitted, Defendants deny, generally and specifically, each, all and every 4 allegation contained in said Paragraph. 5 Defendants deny that Plaintiffs’ Decedent was unarmed. Except as 2. Responding to Paragraph 2 of the FAC, Defendants admit that a 6 private party or parties captured video footage showing some of the shooting scene 7 during the incident and that the San Diego Police Department (“SDPD”) has copies 8 of the footage. Defendants are without knowledge or information sufficient to form 9 a belief as to the truth of the remainder of the allegations therein contained, and 10 based thereon, deny, generally and specifically, each, all and every remaining 11 allegation contained in said Paragraph. 12 3. Responding to Paragraph 3 of the FAC, Defendants admit that one or 13 more individuals have viewed the video footage referenced in Paragraph 2. 14 Defendants are without knowledge or information sufficient to form a belief as to 15 the truth of the remainder of the allegations contained in Paragraph 3, and based 16 thereon, deny, generally and specifically, each, all and every remaining allegation 17 contained in said Paragraph. 18 4. Responding to Paragraph 4 of the FAC, Defendants admit that Officer 19 Browder was wearing a body camera at the time of the shooting, which was not 20 activated, and that he did not know whether the on-scene security cameras were 21 functioning. 22 specifically, each, all and every allegation contained in said Paragraph, and 23 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 24 the part of Defendants, or any agents, employees, officials, officers, offices, 25 agencies, departments or divisions of the City of San Diego. 26 5. Except as expressly admitted, Defendants deny, generally and Responding to Paragraph 5 of the FAC, Defendants admit that 27 Plaintiffs in this action allege violation of their civil rights under 42 U.S.C. § 1983, 28 the Fourth and Fourteenth Amendments to the United States Constitution, and state Document Number:1082797 2 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 3 of 27 1 law. Defendants are without knowledge or information sufficient to form a belief 2 as to the truth of the remaining allegations therein contained, and based thereon, 3 deny, generally and specifically, each, all and every allegation contained in said 4 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 5 wrongful conduct on the part of Defendants, or any agents, employees, officials, 6 officers, offices, agencies, departments or divisions of the City of San Diego. 7 6. Responding to Paragraph 6 of the FAC, Defendants admit the 8 following: the City of San Diego has provided the KECO video to Plaintiffs, 9 subject to a Court-issued protective order – and that the City and SDPD previously 10 declined to provide the footage until such time as was required by the Federal Rules 11 of Civil Procedure governing disclosure and discovery in this action, other 12 governing rules of law, or Court order, subject to such protective orders as the 13 Court may deem appropriate. Defendants are without knowledge or information 14 sufficient to form a belief as to the truth of the remainder of the allegations therein 15 contained, and based thereon, deny, generally and specifically, each, all and every 16 remaining allegation contained in said Paragraph. 17 7. Responding to Paragraph 7 of the FAC, Defendants admit the 18 following: that Plaintiffs filed this action on June 24, 2015, that Plaintiffs sought a 19 court order allowing them to subpoena the KECO Video prior to the 20 commencement of discovery in the action, that Defendants entered into joint 21 motions and agreements regarding the video and other evidence and documents 22 which are set forth in publically filed court papers, and that Defendants have 23 complied with all of their agreements and court-issued protective orders in this 24 case. 25 8. Responding to Paragraph 8 of the FAC, Defendants affirmatively 26 allege that said Paragraph contains jurisdictional allegations that present legal 27 conclusions and questions of law to be determined solely by the Court, to which no 28 response is required. To the extent a response is required, Defendants admit that Document Number:1082797 3 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 4 of 27 1 Plaintiffs filed an administrative claim with the City, which was denied prior to the 2 filing of the FAC. Except as expressly admitted, Defendants deny, generally and 3 specifically, each, all and every allegation contained in said Paragraph. 4 9. Responding to Paragraph 9 of the FAC, Defendants affirmatively 5 allege that said Paragraph contains jurisdictional allegations that present legal 6 conclusions and questions of law to be determined solely by the Court, to which no 7 response is required. To the extent a response is required, Defendants are without 8 knowledge or information sufficient to form a belief as to the truth of the 9 allegations therein contained, and based thereon, deny, generally and specifically, 10 11 each, all and every remaining allegation contained in said Paragraph. 10. Responding to Paragraph 10 of the FAC, Defendants are without 12 knowledge or information sufficient to form a belief as to the truth of the 13 allegations therein contained, and based thereon, deny, generally and specifically, 14 each, all and every allegation contained in said Paragraph. 15 11. Responding to Paragraph 11 of the FAC, Defendants affirmatively 16 allege that said Paragraph contains jurisdictional and venue allegations that present 17 legal conclusions and questions of law to be determined solely by the Court, to 18 which no response is required. To the extent a response is required, Defendants 19 admit that Officer Browder is a citizen of the United States of America and that 20 venue is proper in the Southern District of California. 21 admitted, Defendants deny, generally and specifically, each, all and every 22 allegation contained in said Paragraph. 23 12. Except as expressly Responding to Paragraph 12 of the FAC, Defendants affirmatively 24 allege that said Paragraph contains legal conclusions and argument, to which no 25 answer is required. To the extent a response is required, Defendants admit that the 26 SDPD is a department of the City of San Diego, that the City of San Diego is a 27 municipality, and that a municipality is generally responsible for the actions of its 28 police officers in the course and scope of their employment. Except as expressly Document Number:1082797 4 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 5 of 27 1 admitted, Defendants deny, generally and specifically, each, all and every 2 allegation contained in said Paragraph, and specifically deny any unlawful, 3 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 4 agents, employees, officials, officers, offices, agencies, departments or divisions of 5 the City of San Diego. 6 13. Responding to Paragraph 13 of the FAC, Defendants are without 7 knowledge or information sufficient to form a belief as to the truth of the 8 allegations therein contained, and based thereon, deny, generally and specifically, 9 each, all and every allegation contained in said Paragraph. 10 14. Responding to Paragraph 14 of the FAC, Defendants affirmatively 11 allege that said Paragraph contains jurisdictional allegations that present legal 12 conclusions and questions of law to be determined solely by the Court, to which no 13 response is required. To the extent a response is required, Defendants admit that 14 Plaintiffs purport to seek relief and assert jurisdiction in this action pursuant to the 15 various laws cited in said Paragraph. Except as expressly admitted, Defendants 16 deny, generally and specifically, each, all and every allegation contained in said 17 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 18 wrongful conduct on the part of Defendants, or any agents, employees, officials, 19 officers, offices, agencies, departments or divisions of the City of San Diego. 20 15. Responding to Paragraph 15 of the FAC, Defendants admit that 21 Plaintiffs purport to seek the relief alleged in said Paragraph. Except as expressly 22 admitted, Defendants deny, generally and specifically, each, all and every 23 allegation contained in said Paragraph, specifically deny any unlawful, 24 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 25 agents, employees, officials, officers, offices, agencies, departments or divisions of 26 the City of San Diego, and specifically deny that Plaintiffs are entitled to any relief 27 whatsoever. 28 /// Document Number:1082797 5 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 6 of 27 1 16. Responding to Paragraph 16 of the FAC, Defendants affirmatively 2 allege that said Paragraph contains venue allegations that present legal conclusions 3 and questions of law to be determined solely by the Court, to which no response is 4 required. To the extent a response is required, Defendants admit that venue is 5 proper in this Court. 6 17. Responding to Paragraph 17 of the FAC, Defendants affirmatively 7 allege that they are without knowledge or information sufficient to form a belief as 8 to the truth of the allegations therein contained, and based thereon, deny, generally 9 and specifically, each, all and every allegation contained in said Paragraph. 10 18. Responding to Paragraph 18 of the FAC, Defendants affirmatively 11 allege that they are without knowledge or information sufficient to form a belief as 12 to the truth of the allegations therein contained, and based thereon, deny, generally 13 and specifically, each, all and every allegation contained in said Paragraph. 14 19. Responding to Paragraph 19 of the FAC, Defendants affirmatively 15 allege that they are without knowledge or information sufficient to form a belief as 16 to the truth of the allegations therein contained, and based thereon, deny, generally 17 and specifically, each, all and every allegation contained in said Paragraph. 18 20. Responding to Paragraph 20 of the FAC, Defendants affirmatively 19 allege that they are without knowledge or information sufficient to form a belief as 20 to the truth of the allegations therein contained, and based thereon, deny, generally 21 and specifically, each, all and every allegation contained in said Paragraph. 22 21. Responding to Paragraph 21 of the FAC, Defendants affirmatively 23 allege that they are without knowledge or information sufficient to form a belief as 24 to the truth of the allegations therein contained, and based thereon, deny, generally 25 and specifically, each, all and every allegation contained in said Paragraph. 26 22. Responding to Paragraph 22 of the FAC, Defendants affirmatively 27 allege that they are without knowledge or information sufficient to form a belief as 28 /// Document Number:1082797 6 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 7 of 27 1 to the truth of the allegations therein contained, and based thereon, deny, generally 2 and specifically, each, all and every allegation contained in said Paragraph. 3 23. Responding to Paragraph 23 of the FAC, Defendants affirmatively 4 allege that they are without knowledge or information sufficient to form a belief as 5 to the truth of the allegations therein contained, and based thereon, deny, generally 6 and specifically, each, all and every allegation contained in said Paragraph. 7 24. Responding to Paragraph 24 of the FAC, Defendants affirmatively 8 allege that they are without knowledge or information sufficient to form a belief as 9 to the truth of the allegations therein contained, and based thereon, deny, generally 10 and specifically, each, all and every allegation contained in said Paragraph. 11 25. Responding to Paragraph 25 of the FAC, Defendants affirmatively 12 allege that they are without knowledge or information sufficient to form a belief as 13 to the truth of the allegations therein contained, and based thereon, deny, generally 14 and specifically, each, all and every allegation contained in said Paragraph. 15 26. Responding to Paragraph 26 of the FAC, Defendants affirmatively 16 allege that they are without knowledge or information sufficient to form a belief as 17 to the truth of the allegations therein contained, and based thereon, deny, generally 18 and specifically, each, all and every allegation contained in said Paragraph. 19 27. Responding to Paragraph 27 of the FAC, Defendants affirmatively 20 allege that they are without knowledge or information sufficient to form a belief as 21 to the truth of the allegations therein contained, and based thereon, deny, generally 22 and specifically, each, all and every allegation contained in said Paragraph. 23 28. Responding to Paragraph 28 of the FAC, Defendants admit that shortly 24 after midnight on the morning of April 30, 2015, Plaintiffs’ Decedent was in and 25 around the Hi-Lite Bookstore at 3203 Hancock Street, San Diego, California. 26 Defendants are without knowledge or information sufficient to form a belief as to 27 the truth of the remainder of the allegations therein contained, and based thereon, 28 /// Document Number:1082797 7 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 8 of 27 1 deny, generally and specifically, each, all and every remaining allegation contained 2 in said Paragraph. 3 29. Responding to Paragraph 29 of the FAC, Defendants admit that shortly 4 after midnight on the morning of April 30, 2015, the SDPD received a 911 call in 5 which the caller reported a male at or around the Hi-Lite Bookstore was threatening 6 people with a knife; that the SDPD responded by dispatching officers to the scene; 7 and that Officer Browder was the first officer to arrive at the scene, shortly after 8 midnight. 9 30. Responding to Paragraph 30 of the FAC, Defendants admit the 10 following: that as Officer Browder’s marked black and white patrol car neared the 11 Hi-Lite Bookstore, Plaintiffs’ Decedent emerged from the shadows of an alley near 12 the bookstore and headed directly for Officer Browder; that Plaintiffs’ Decedent 13 brandished a metallic pen that appeared to be a knife; that by the time Officer 14 Browder was able to react to the actions of Plaintiffs’ Decedent by getting out of his 15 car, yelling at Plaintiffs’ Decedent to drop “it” or “the knife,” and drawing his 16 sidearm, Plaintiffs’ Decedent had closed the substantial distance between himself 17 and Officer Browder to between 10 and 15 feet; that immediately upon drawing his 18 sidearm, Officer Browder fired, hitting Plaintiffs’ Decedent once in the chest; and 19 that Plaintiffs’ Decedent was later pronounced dead by a physician at UCSD 20 Medical Center. Defendants affirmatively allege that they are without knowledge 21 or information sufficient to form a belief as to the truth of the allegations regarding 22 the purported actions, opinions, and statements of a, “KECO employee who saw the 23 KECO Video,” and based thereon, deny, generally and specifically, each, all and 24 every remaining allegation contained in said Paragraph, and specifically deny any 25 unlawful, unconstitutional, or otherwise wrongful conduct on the part of 26 Defendants, or any agents, employees, officials, officers, offices, agencies, 27 departments or divisions of the City of San Diego. 28 /// Document Number:1082797 8 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 9 of 27 1 31. Responding to Paragraph 31 of the FAC, Defendants admit that by the 2 time Officer Browder was able to react to the actions of Plaintiffs’ Decedent by 3 getting out of his car, yelling at Plaintiffs’ Decedent to drop “it” or “the knife,” and 4 drawing his sidearm, Plaintiffs’ Decedent had closed the substantial distance 5 between himself and Officer Browder to between 10 and 15 feet; that immediately 6 upon drawing his sidearm, Officer Browder fired, hitting Plaintiffs’ Decedent once 7 in the chest. 8 information sufficient to form a belief as to the truth of the allegations regarding the 9 purported actions, opinions, and statements of a, “KECO employee who saw the 10 video,” and based thereon, deny, generally and specifically, each, all and every 11 remaining allegation contained in said Paragraph, and specifically deny any 12 unlawful, unconstitutional, or otherwise wrongful conduct on the part of 13 Defendants, or any agents, employees, officials, officers, offices, agencies, 14 departments or divisions of the City of San Diego. 15 32. Defendants affirmatively allege that they are without knowledge or Responding to Paragraph 32 of the FAC, Defendants admit that within 16 a minute of Officer Browder’s arrival at the scene, the following occurred: as 17 Officer Browder’s marked black and white patrol car neared the Hi-Lite Bookstore, 18 Plaintiffs’ Decedent emerged from the shadows of an alley near the bookstore and 19 headed directly for Officer Browder; Plaintiffs’ Decedent brandished a metallic pen 20 that appeared to be a knife; by the time Officer Browder was able to react to the 21 actions of Plaintiffs’ Decedent by getting out of his car, yelling at Plaintiffs’ 22 Decedent to drop “it” or “the knife,” and drawing his sidearm, Plaintiffs’ Decedent 23 had closed the substantial distance between himself and Officer Browder to 24 between 10 and 15 feet; and immediately upon drawing his sidearm, Officer 25 Browder fired, hitting Plaintiffs’ Decedent once in the chest. Except as expressly 26 admitted, Defendants deny, generally and specifically, each, all and every 27 allegation contained in said Paragraph, and specifically deny any unlawful, 28 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any Document Number:1082797 9 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 10 of 27 1 agents, employees, officials, officers, offices, agencies, departments or divisions of 2 the City of San Diego. 3 33. Responding to Paragraph 33 of the FAC, Defendants admit the 4 following: Officer Browder was equipped with a body worn camera at the time of 5 the shooting; and that it was not activated at the time of the shooting. Except as 6 expressly admitted, Defendants deny, generally and specifically, each, all and every 7 allegation contained in said Paragraph, and specifically deny any unlawful, 8 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 9 agents, employees, officials, officers, offices, agencies, departments or divisions of 10 11 the City of San Diego. 34. Responding to Paragraph 34 of the FAC, Defendants admit that the 12 SDPD acknowledges that its efforts to equip, train, and regulate its officers 13 regarding the use of new technology like body worn cameras is an ongoing, 14 evolving process, and that the SDPD continuously seeks to improve it procedures 15 and policies regarding such issues as when cameras are to be activated and not 16 activated. 17 specifically, each, all and every allegation contained in said Paragraph, and 18 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 19 the part of Defendants, or any agents, employees, officials, officers, offices, 20 agencies, departments or divisions of the City of San Diego. 21 35. Except as expressly admitted, Defendants deny, generally and Responding to Paragraph 35 of the FAC, Defendants admit that the 22 current SDPD Procedure regarding body worn cameras provides that, “Officers are 23 strongly encouraged to inform citizens that they are being recorded in an effort to 24 de-escalate potential conflicts,” and contains detailed provisions regarding training 25 and use of the cameras, and provisions regarding violations of the Procedure. 26 Except as expressly admitted, Defendants deny, generally and specifically, each, all 27 and every allegation contained in said Paragraph, and specifically deny any 28 unlawful, unconstitutional, or otherwise wrongful conduct on the part of Document Number:1082797 10 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 11 of 27 1 Defendants, or any agents, employees, officials, officers, offices, agencies, 2 departments or divisions of the City of San Diego. 3 36. Responding to Paragraph 36 of the FAC, Defendants deny, generally 4 and specifically, each, all and every allegation contained in said Paragraph, and 5 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 6 the part of Defendants, or any agents, employees, officials, officers, offices, 7 agencies, departments or divisions of the City of San Diego. 8 37. Responding to Paragraph 37 of the FAC, Defendants affirmatively 9 allege that said Paragraph’s statements regarding the evidentiary value of the 10 footage are legal conclusions, legal argument, and evidentiary theories, to which no 11 answer is required. To the extent that a response is required, Defendants admit that 12 video evidence is often pertinent to issues, admissible, and useful to the fact finder 13 in civil actions. Defendants are without knowledge or information sufficient to 14 form a belief as to the truth of the remainder of the allegations therein contained, 15 and based thereon, deny, generally and specifically, each, all and every remaining 16 allegation contained in said Paragraph. 17 38. Responding to Paragraph 38 of the FAC, Defendants admit the 18 following: the City of San Diego has provided the KECO Video to Plaintiffs, 19 subject to a Court-issued protective order, and that the City and SDPD previously 20 declined to provide the footage until such time as was required by the Federal Rules 21 of Civil Procedure governing disclosure and discovery in this action, other 22 governing rules of law, or Court order, subject to such protective orders as the 23 Court may deem appropriate. Defendants are without knowledge or information 24 sufficient to form a belief as to the truth of the remainder of the allegations therein 25 contained, and based thereon, deny, generally and specifically, each, all and every 26 remaining allegation contained in said Paragraph. 27 28 39. Responding to Paragraph 39 of the FAC, Defendants affirmatively allege that they are without knowledge or information sufficient to form a belief as Document Number:1082797 11 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 12 of 27 1 to the truth of the allegations therein contained, and based thereon, deny, generally 2 and specifically, each, all and every allegation contained in said Paragraph. 3 40. Responding to Paragraph 40 of the FAC, Defendants admit the 4 following: Plaintiffs filed this action on June 24, 2015; Plaintiffs sought a court 5 order allowing them to subpoena the KECO video prior to the commencement of 6 discovery in the action; Defendants entered into joint motions and agreements 7 regarding the video and other evidence and documents which are set forth in 8 publically filed court papers; and Defendants have complied with all of their 9 agreements and the Court’s orders in this case. 10 41. Responding to Paragraph 41 of the FAC, Defendants incorporate 11 herein their responses to the preceding paragraphs of this Answer. To the extent 12 further response is required to the allegations contained in said Paragraph, 13 Defendants deny the allegations contained therein. 14 42. Responding to Paragraph 42 of the FAC, Defendants affirmatively 15 allege that said Paragraph contains jurisdictional allegations that present legal 16 conclusions and questions of law to be determined solely by the Court, to which no 17 response is required. To the extent a response is required, Defendants admit that 18 Plaintiffs purport to seek relief in this action pursuant to the various laws cited in 19 said Paragraph. Except as expressly admitted, Defendants deny, generally and 20 specifically, each, all and every allegation contained in said Paragraph, and 21 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 22 the part of Defendants, or any agents, employees, officials, officers, offices, 23 agencies, departments or divisions of the City of San Diego. 24 43. Responding to Paragraph 43 of the FAC, Defendants affirmatively 25 allege that said Paragraph contains jurisdictional allegations that present legal 26 conclusions and questions of law to be determined solely by the Court, to which no 27 response is required. To the extent a response is required, Defendants are without 28 knowledge or information sufficient to form a belief as to the truth of the Document Number:1082797 12 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 13 of 27 1 allegations therein contained, and based thereon, deny, generally and specifically, 2 each, all and every allegation contained in said Paragraph. 3 44. Responding to Paragraph 44 of the FAC, Defendants affirmatively 4 allege that said Paragraph contains legal conclusions and legal argument, to which 5 no answer is required. To the extent a response is required, Defendants admit that 6 Plaintiffs’ Decedent died from injuries sustained when Officer Browder shot him, 7 and that firing some weapons can constitute the use of deadly force in some 8 situations. Defendants deny the following: that deadly force was unwarranted in 9 this case; that Plaintiffs’ Decedent was unarmed; and that Plaintiffs’ Decedent did 10 not appear to, and did not, threaten Officer Browder and others with deadly force. 11 Except as expressly admitted, Defendants deny, generally and specifically, each, all 12 and every remaining allegation contained in said Paragraph, and specifically deny 13 any unlawful, unconstitutional, or otherwise wrongful conduct on the part of 14 Defendants, or any agents, employees, officials, officers, offices, agencies, 15 departments or divisions of the City of San Diego. 16 45. Responding to Paragraph 45 of the FAC, Defendants deny, generally 17 and specifically, each, all and every allegation contained in said Paragraph, and 18 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 19 the part of Defendants, or any agents, employees, officials, officers, offices, 20 agencies, departments or divisions of the City of San Diego. 21 46. Responding to Paragraph 46 of the FAC, Defendants affirmatively 22 allege that said Paragraph contains legal conclusions and argument, to which no 23 answer is required. To the extent a response is required, Defendants admit that 24 Officer Browder acted under color of law and within the course and scope of his 25 employment with the City of San Diego and the SDPD in all his dealings with 26 Plaintiffs’ Decedent, and that a municipality is generally responsible for the actions 27 of its police officers in the course and scope of their employment. Except as 28 expressly admitted, Defendants deny, generally and specifically, each, all and every Document Number:1082797 13 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 14 of 27 1 allegation contained in said Paragraph, and specifically deny any unlawful, 2 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 3 agents, employees, officials, officers, offices, agencies, departments or divisions of 4 the City of San Diego. 5 47. Responding to Paragraph 47 of the FAC, Defendants affirmatively 6 allege that said Paragraph contains legal conclusions and argument, to which no 7 answer is required. To the extent a response is required, Defendants admit that 8 Officer Browder fired a single round from his sidearm, striking Decedent in the 9 chest; and that Decedent died from his gunshot injury. Defendants are without 10 knowledge or information sufficient to form a belief as to the truth of the remainder 11 of the allegations therein contained, and based thereon, deny, generally and 12 specifically, each, all and every remaining allegation contained in said Paragraph. 13 48. Responding to Paragraph 48 of the FAC, Defendants deny, generally 14 and specifically, each, all and every allegation contained in said Paragraph, and 15 specifically deny that the Estate of Plaintiffs’ Decedent is entitled to any relief 16 whatsoever. 17 49. Responding to Paragraph 49 of the FAC, Defendants deny, generally 18 and specifically, each, all and every allegation contained in said Paragraph, and 19 specifically deny that the Estate of Plaintiffs’ Decedent is entitled to any relief 20 whatsoever, and specifically deny any unlawful, unconstitutional, or otherwise 21 wrongful conduct on the part of Defendants, or any agents, employees, officials, 22 officers, offices, agencies, departments or divisions of the City of San Diego. 23 50. Responding to Paragraph 50 of the FAC, Defendants incorporate 24 herein their responses to the preceding paragraphs of this Answer. To the extent 25 further response is required to the allegations contained in said Paragraph, 26 Defendants deny the allegations contained therein. 27 28 51. Responding to Paragraph 51 of the FAC, Defendants affirmatively allege that said Paragraph contains jurisdictional allegations that present legal Document Number:1082797 14 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 15 of 27 1 conclusions and questions of law to be determined solely by the Court, to which no 2 response is required. To the extent a response is required, Defendants admit that 3 Plaintiffs purport to seek relief in this action pursuant to the various laws cited in 4 said Paragraph. Except as expressly admitted, Defendants deny, generally and 5 specifically, each, all and every allegation contained in said Paragraph, and 6 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 7 the part of Defendants, or any agents, employees, officials, officers, offices, 8 agencies, departments or divisions of the City of San Diego. 9 52. Responding to Paragraph 52 of the FAC, Defendants affirmatively 10 allege that said Paragraph contains legal conclusions and legal argument, to which 11 no answer is required. To the extent a response is required, Defendants admit that 12 Plaintiffs’ Decedent died from injuries sustained when Officer Browder shot him, 13 and that firing some weapons can constitute the use of deadly force in some 14 situations. Defendants deny the following: that deadly force was unwarranted in 15 this case; that Plaintiffs’ Decedent was unarmed; and that Plaintiffs’ Decedent did 16 not appear to, and did not, threaten Officer Browder and others with deadly force. 17 Except as expressly admitted, Defendants deny, generally and specifically, each, all 18 and every remaining allegation contained in said Paragraph, and specifically deny 19 any unlawful, unconstitutional, or otherwise wrongful conduct on the part of 20 Defendants, or any agents, employees, officials, officers, offices, agencies, 21 departments or divisions of the City of San Diego 22 53. Responding to Paragraph 53 of the FAC, Defendants affirmatively 23 allege that said Paragraph contains legal conclusions, questions of law and 24 Plaintiffs’ theory of the case, to which no answer is required. To the extent a 25 response is required, Defendants are without knowledge or information sufficient to 26 form a belief as to the truth of the allegations therein contained, and based thereon, 27 deny, generally and specifically, each, all and every allegation contained in said 28 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise Document Number:1082797 15 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 16 of 27 1 wrongful conduct on the part of Defendants, or any agents, employees, officials, 2 officers, offices, agencies, departments or divisions of the City of San Diego. 3 54. Responding to Paragraph 54 of the FAC, Defendants affirmatively 4 allege that said Paragraph contains legal conclusions and argument, to which no 5 answer is required. To the extent a response is required, Defendants admit that 6 Officer Browder acted under color of law and within the course and scope of his 7 employment with the City of San Diego and the SDPD in all his dealings with 8 Plaintiffs’ Decedent, and that a municipality is generally responsible for the actions 9 of its police officers in the course and scope of their employment. Except as 10 expressly admitted, Defendants deny, generally and specifically, each, all and every 11 allegation contained in said Paragraph, and specifically deny any unlawful, 12 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 13 agents, employees, officials, officers, offices, agencies, departments or divisions of 14 the City of San Diego. 15 55. Responding to Paragraph 55 of the FAC, Defendants affirmatively 16 allege that said Paragraph contains legal conclusions, questions of law and 17 Plaintiffs’ theory of the case, to which no answer is required. To the extent a 18 response is required, Defendants admit that Officer Browder fired a single round 19 from his sidearm, striking Decedent in the chest; and that Decedent died from his 20 gunshot injury. Except as expressly admitted, Defendants deny, generally and 21 specifically, each, all and every allegation contained in said Paragraph, and 22 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 23 the part of Defendants, or any agents, employees, officials, officers, offices, 24 agencies, departments or divisions of the City of San Diego. 25 56. Responding to Paragraph 56 of the FAC, Defendants deny, generally 26 and specifically, each, all and every allegation contained in said Paragraph, and 27 specifically deny that Plaintiffs are entitled to any relief whatever. 28 /// Document Number:1082797 16 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 17 of 27 1 57. Responding to Paragraph 57 of the FAC, Defendants deny, generally 2 and specifically, each, all and every allegation contained in said Paragraph, 3 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 4 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 5 the part of Defendants, or any agents, employees, officials, officers, offices, 6 agencies, departments or divisions of the City of San Diego. 7 58. Responding to Paragraph 58 of the FAC, Defendants incorporate 8 herein their responses to the preceding paragraphs of this Answer. To the extent 9 further response is required to the allegations contained in said Paragraph, 10 11 Defendants deny the allegations contained therein. 59. Responding to Paragraph 59 of the FAC, Defendants affirmatively 12 allege that said Paragraph contains jurisdictional allegations that present legal 13 conclusions and questions of law to be determined solely by the Court, to which no 14 response is required. To the extent a response is required, Defendants admit that 15 the constitutional provisions and statutes cited by Plaintiffs protect important rights 16 and interests. 17 specifically, each, all and every allegation contained in said Paragraph, and 18 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 19 the part of Defendants, or any agents, employees, officials, officers, offices, 20 agencies, departments or divisions of the City of San Diego. 21 60. Except as expressly admitted, Defendants deny, generally and Responding to Paragraph 60 of the FAC, Defendants deny, generally 22 and specifically, each, all and every allegation contained in said Paragraph, 23 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 24 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 25 the part of Defendants, or any agents, employees, officials, officers, offices, 26 agencies, departments or divisions of the City of San Diego. 27 28 61. Responding to Paragraph 61 of the FAC, Defendants deny, generally and specifically, each, all and every allegation contained in said Paragraph, and Document Number:1082797 17 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 18 of 27 1 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 2 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 3 the part of Defendants, or any agents, employees, officials, officers, offices, 4 agencies, departments or divisions of the City of San Diego. 5 62. Responding to Paragraph 62 of the FAC, Defendants affirmatively 6 allege that said Paragraph contains legal conclusions and argument, to which no 7 answer is required. To the extent a response is required, Defendants admit that 8 Officer Browder acted within the course and scope of his employment with the City 9 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 10 generally responsible for the actions of its police officers in the course and scope of 11 their employment. Except as expressly admitted, Defendants deny, generally and 12 specifically, each, all and every allegation contained in said Paragraph, and 13 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 14 the part of Defendants, or any agents, employees, officials, officers, offices, 15 agencies, departments or divisions of the City of San Diego. 16 63. Responding to Paragraph 63 of the FAC, Defendants deny, generally 17 and specifically, each, all and every allegation contained in said Paragraph, 18 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 19 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 20 the part of Defendants, or any agents, employees, officials, officers, offices, 21 agencies, departments or divisions of the City of San Diego. 22 64. Responding to Paragraph 64 of the FAC, Defendants incorporate 23 herein their responses to the preceding paragraphs of this Answer. To the extent 24 further response is required to the allegations contained in said Paragraph, 25 Defendants deny the allegations contained therein. 26 65. Responding to Paragraph 65 of the FAC, Defendants deny, generally 27 and specifically, each, all and every allegation contained in said Paragraph, 28 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on Document Number:1082797 18 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 19 of 27 1 the part of Defendants, or any agents, employees, officials, officers, offices, 2 agencies, departments or divisions of the City of San Diego. 3 66. Responding to Paragraph 66 of the FAC, Defendants deny, generally 4 and specifically, each, all and every allegation contained in said Paragraph, 5 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 6 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 7 the part of Defendants, or any agents, employees, officials, officers, offices, 8 agencies, departments or divisions of the City of San Diego. 9 67. Responding to Paragraph 67 of the FAC, Defendants deny, generally 10 and specifically, each, all and every allegation contained in said Paragraph, 11 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 12 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 13 the part of Defendants, or any agents, employees, officials, officers, offices, 14 agencies, departments or divisions of the City of San Diego. 15 68. Responding to Paragraph 68 of the FAC, Defendants affirmatively 16 allege that said Paragraph contains legal conclusions and argument, to which no 17 answer is required. To the extent a response is required, Defendants admit that 18 Officer Browder acted within the course and scope of his employment with the City 19 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 20 generally responsible for the actions of its police officers in the course and scope of 21 their employment. Except as expressly admitted, Defendants deny, generally and 22 specifically, each, all and every allegation contained in said Paragraph, and 23 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 24 the part of Defendants, or any agents, employees, officials, officers, offices, 25 agencies, departments or divisions of the City of San Diego. 26 69. Responding to Paragraph 69 of the FAC, Defendants incorporate 27 herein their responses to the preceding paragraphs of this Answer. To the extent 28 /// Document Number:1082797 19 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 20 of 27 1 further response is required to the allegations contained in said Paragraph, 2 Defendants deny the allegations contained therein. 3 70. Responding to Paragraph 70 of the FAC, Defendants affirmatively 4 allege that said Paragraph contains legal conclusions and argument, to which no 5 answer is required. To the extent a response is required, Defendants admit that 6 California law imposes a general duty to use reasonable care to prevent harm to 7 oneself or to others. Except as expressly admitted, Defendants deny, generally and 8 specifically, each, all and every allegation contained in said Paragraph, and 9 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 10 the part of Defendants, or any agents, employees, officials, officers, offices, 11 agencies, departments or divisions of the City of San Diego. 12 71. Responding to Paragraph 71 of the FAC, Defendants deny, generally 13 and specifically, each, all and every allegation contained in said Paragraph, and 14 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 15 the part of Defendants, or any agents, employees, officials, officers, offices, 16 agencies, departments or divisions of the City of San Diego. 17 72. Responding to Paragraph 72 of the FAC, Defendants deny, generally 18 and specifically, each, all and every allegation contained in said Paragraph, 19 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 20 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 21 the part of Defendants, or any agents, employees, officials, officers, offices, 22 agencies, departments or divisions of the City of San Diego. 23 73. Responding to Paragraph 73 of the FAC, Defendants affirmatively 24 allege that said Paragraph contains legal conclusions and argument, to which no 25 answer is required. To the extent a response is required, Defendants admit that 26 Officer Browder acted within the course and scope of his employment with the City 27 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 28 generally responsible for the actions of its police officers in the course and scope of Document Number:1082797 20 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 21 of 27 1 their employment. Except as expressly admitted, Defendants deny, generally and 2 specifically, each, all and every allegation contained in said Paragraph, and 3 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 4 the part of Defendants, or any agents, employees, officials, officers, offices, 5 agencies, departments or divisions of the City of San Diego. 6 74. Responding to Paragraph 74 of the FAC, Defendants incorporate 7 herein their responses to the preceding paragraphs of this Answer. To the extent 8 further response is required to the allegations contained in said Paragraph, 9 Defendants deny the allegations contained therein. 10 75. Responding to Paragraph 75 of the FAC, Defendants affirmatively 11 allege that said Paragraph contains legal conclusions and argument, to which no 12 answer is required. To the extent a response is required, Defendants admit that 13 California law imposes a general duty to use reasonable care to prevent harm to 14 oneself or to others. Except as expressly admitted, Defendants deny, generally and 15 specifically, each, all and every allegation contained in said Paragraph, and 16 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 17 the part of Defendants, or any agents, employees, officials, officers, offices, 18 agencies, departments or divisions of the City of San Diego. 19 76. Responding to Paragraph 76 of the FAC, Defendants deny, generally 20 and specifically, each, all and every allegation contained in said Paragraph, and 21 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 22 the part of Defendants, or any agents, employees, officials, officers, offices, 23 agencies, departments or divisions of the City of San Diego. 24 77. Responding to Paragraph 77 of the FAC, Defendants affirmatively 25 allege that said Paragraph contains legal conclusions, questions of law and 26 Plaintiffs’ theory of the case, to which no answer is required. To the extent a 27 response is required, Defendants admit that Officer Browder fired a single round 28 from his sidearm, striking Decedent in the chest; and that Decedent died from his Document Number:1082797 21 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 22 of 27 1 gunshot injury. Except as expressly admitted, Defendants deny, generally and 2 specifically, each, all and every allegation contained in said Paragraph, and 3 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 4 the part of Defendants, or any agents, employees, officials, officers, offices, 5 agencies, departments or divisions of the City of San Diego. 6 78. Responding to Paragraph 78 of the FAC, Defendants deny, generally 7 and specifically, each, all and every allegation contained in said Paragraph, 8 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 9 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 10 the part of Defendants, or any agents, employees, officials, officers, offices, 11 agencies, departments or divisions of the City of San Diego. 12 79. Responding to Paragraph 79 of the FAC, Defendants affirmatively 13 allege that said Paragraph contains legal conclusions and argument, to which no 14 answer is required. To the extent a response is required, Defendants admit that 15 Officer Browder acted within the course and scope of his employment with the City 16 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 17 generally responsible for the actions of its police officers in the course and scope of 18 their employment. Except as expressly admitted, Defendants deny, generally and 19 specifically, each, all and every allegation contained in said Paragraph, and 20 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 21 the part of Defendants, or any agents, employees, officials, officers, offices, 22 agencies, departments or divisions of the City of San Diego. 23 80. Responding to Paragraph 1 of Plaintiffs’ Prayer for Relief, Defendants 24 affirmatively allege that said Paragraph is part of a prayer for relief to which no 25 responsive pleading is required. To the extent that said paragraph is deemed to 26 allege facts to which a response is required, Defendants deny, generally and 27 specifically, each, all and every allegation contained in said Paragraph, and 28 specifically deny that Plaintiffs are entitled to any relief whatsoever. Document Number:1082797 22 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 23 of 27 1 81. Responding to Paragraph 2 of Plaintiffs’ Prayer for Relief, Defendants 2 affirmatively allege that said Paragraph is part of a prayer for relief to which no 3 responsive pleading is required. To the extent that said paragraph is deemed to 4 allege facts to which a response is required, Defendants deny, generally and 5 specifically, each, all and every allegation contained in said Paragraph, and 6 specifically deny that Plaintiffs are entitled to attorneys’ fees, costs, interest, or any 7 other relief whatsoever. 8 AFFIRMATIVE AND OTHER DEFENSES 9 10 1. claims. 11 12 This Court is without subject matter jurisdiction over Plaintiffs’ 2. The FAC, and each claim asserted therein, fails to state a claim upon which relief can be granted. 13 3. Plaintiffs failed to adequately mitigate their damages, if any, and any 14 recovery or any other award to which they are entitled should be reduced 15 accordingly. 16 17 4. action against these answering Defendants. 18 19 Plaintiffs’ FAC fails to state facts sufficient to constitute a cause of 5. Income taxes must be deducted from all alleged past and future lost earnings, if any. 20 6. To the extent the events of which Plaintiffs complain were undertaken 21 by Defendants, Defendants deny any unlawful, unconstitutional, or otherwise 22 wrongful motive and would have taken the same actions absent unlawful, 23 unconstitutional, or otherwise wrongful motive. 24 7. All future damages, if any, must be reduced to present value. 25 8. Plaintiffs are not entitled to pretrial interest. 26 9. Plaintiffs are not entitled to declaratory or injunctive relief, or 27 prejudgment interest. 28 /// Document Number:1082797 23 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 24 of 27 1 2 10. exercising due care, in the execution or enforcement of any law. 3 4 Officer Browder is not liable for his acts or omissions, while 11. Public employees are not liable for an injury caused by the act or omission of another person. 5 12. Defendants are not liable for punitive damages. 6 13. The conduct in question did not constitute a violation of a federally 7 protected right. 8 14. At all times, Officer Browder acted reasonably and did not know that 9 his conduct violated clearly established statutory of constitutional rights of which a 10 reasonable person would have known; his conduct was reasonable, lawful, based on 11 probable cause and within the scope of his official duties and employment; and he 12 is therefore entitled to qualified immunity. 13 15. Plaintiffs’ Decedent was negligent in and about the matters alleged in 14 the FAC and said carelessness on his part proximately contributed to the happening 15 of the alleged incident, injuries and damages complained of, if any such exist. 16 16. Any and all acts of Defendants at or near the time alleged in the FAC 17 were reasonable and said Defendants had reasonable cause to act in the manner they 18 did. 19 17. At the time of the initial contact, the Officer Browder was acting 20 within the scope of his employment and had probable cause to believe that 21 Plaintiffs’ Decedent was engaging in, or had just engaged in, a prohibited activity. 22 During the contact, Officer Browder was acting within the scope of his employment 23 and had probable cause to believe that said person had committed a crime. 24 18. If Plaintiffs are entitled to recover for any damages suffered at the time 25 and place alleged, then the total amount of damages to which Plaintiffs would 26 otherwise be entitled should be reduced in proportion to the amount of fault 27 attributable to Plaintiffs’ Decedent, or to a third person or persons, which fault 28 directly and proximately contributed to Plaintiffs’ alleged damages. Document Number:1082797 24 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 25 of 27 1 19. Pursuant to California Government Code section 985, any judgment 2 entered herein may be reduced for collateral source payments paid or obligated to 3 be paid for services or benefits that were provided before trial commenced. 4 20. At the time of the contact, Officer Browder attempted to persuade 5 Plaintiffs’ Decedent to follow directions and in doing so, only used force necessary 6 for the occasion. 7 21. Officer Browder was at all times alleged in the FAC performing 8 duties, in good faith, impartially, fairly and as required by law under conditions 9 required by law. 10 22. 11 12 Plaintiffs do not have standing to seek relief for each and every cause of action, as set forth in the FAC. 23. Plaintiffs’ injuries and damages, if any, were the result of the exercise 13 of the discretion vested in Defendant City of San Diego, and/or the officers, agents 14 and/or employees of the public entity, and there is no liability therefore, pursuant to 15 the California Code, including the California Government Code, sections 815.2(b) 16 and 820.2. 17 24. The answering Defendants and/or public employees are not liable for 18 the acts and conduct of Plaintiffs’ Decedent which caused the underlying events at 19 issue in the FAC to occur and, but for such acts, the events alleged in the FAC 20 would not have occurred, and/or Plaintiffs’ Decedent would not have been involved 21 or engaged or otherwise subject to the matters alleged in Plaintiffs’ FAC, including 22 any citation, detention, apprehension, arrest, or control or force, if any, or otherwise 23 having sustained the matters alleged, including any and all injuries, inconvenience 24 and damages alleged in the FAC. 25 25. On or before the date of the subject incident, Plaintiffs’ Decedent 26 knew or reasonably should have known the hazards or dangers involved in his 27 actions and, as a result, voluntarily assumed the risk in and about the matters 28 alleged in the FAC. Document Number:1082797 25 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 26 of 27 1 26. Plaintiffs’ Decedent acted wrongfully in the matters complained of and 2 Plaintiffs are thus barred totally or partially by the doctrine of unclean hands from 3 receiving the relief requested. 4 27. Defendant City of San Diego is immune from liability in that a public 5 entity is not liable for an injury arising out of its acts or omissions or of a public 6 employee, in the absence of a statute declaring such liability. 7 28. Defendant City of San Diego is not liable for an injury arising out of 8 an act or omission of its employees, where the subject employee is immune from 9 liability. 10 29. Defendant City of San Diego, its agents and employees, and the 11 Defendant Police Officers are not liable while acting within the scope of their duties 12 for injuries resulting from judicial or administrative proceedings. 13 30. Officer Browder reasonably believed that Plaintiffs’ Decedent was 14 going to harm him or others, and used only the amount of force that was reasonably 15 necessary to protect himself or others. 16 31. The FAC and/or certain counts, claims and/or causes of action therein 17 is/are barred by operation of law, including the applicable statute of limitations for 18 the claims, causes of action or counts, and/or applicable claims presentation 19 requirements for each, any and/or the causes, counts or claims under California law, 20 including but not limited to the following: that Plaintiffs failed to timely file their 21 causes, counts or claims and/or complaint as against certain Defendants and/or that 22 Plaintiffs failed to comply with the claims presentation requirements, and/or late 23 claims presentation requirements set forth in Government Code section 901, et seq. 24 25 26 32. Replacing DOE Amendments with named Police Officers does not comply with Federal Rules of Civil Procedure 15. 33. Defendants reserve the right to allege and does affirmatively allege 27 and state the avoidance and affirmative defenses set forth in Rule 8 as if fully set 28 forth herein, and particularly including assumption of risk, contributory negligence, Document Number:1082797 26 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15 Filed 08/13/15 Page 27 of 27 1 negligence, estoppel, latches, collateral estoppel and/or res judicata, statute of 2 limitations and waiver. 3 34. Defendants hereby give notice that they intend to rely on such other 4 and further affirmative defenses as may become apparent during discovery in this 5 action and reserve the right to amend this Answer to assert any such defenses. 6 WHEREFORE, these answering Defendants pray judgment as follows: 7 1. Plaintiffs take nothing by their FAC; 8 2. Defendants receives their costs of suit incurred herein; and 9 3. Such other relief as the court deems proper 10 11 12 13 JURY TRIAL DEMAND Defendants demand a trial by jury in this action pursuant to Federal Rules of Civil Procedure, Rule 38(b). Dated: August 13, 2015 JAN I. GOLDSMITH, City Attorney 14 15 By /s/ Timothy C. Stutler Timothy C. Stutler Chief Deputy City Attorney 16 17 Attorneys for Defendants NEAL N. BROWDER and CITY OF SAN DIEGO 18 19 TStutler@sandiego.gov 20 21 22 23 24 25 26 27 28 Document Number:1082797 27 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 15-1 Filed 08/13/15 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA S.R. NEHAD, an individual, K.R. NEHAD, an individual, ESTATE OF FRIDOON RAWSHAN NEHAD, Case No. 15cv1386 WQH (NLS) DECLARATION OF SERVICE Plaintiffs, v. NEAL N. BROWDER, an individual, CITY OF SAN DIEGO, a municipality, and DOES 1 through 10, inclusive, Defendants. I, the undersigned, declare under penalty of perjury that I am, and was at the time of service of the papers herein referred to, over the age of eighteen years and not a party to the action; and I am employed in the County of San Diego, California, in which county the within-mentioned service occurred. My business address is 1200 Third Avenue, Suite 1100, San Diego, California, 92101. I served the foregoing documents described as: • DEFENDANTS’ ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT I caused said documents listed above to be served electronically by CM/ECF to the following individuals: Louis R. Miller MILLER BARONDESS LLP 1999 Avenue of the Stars, Suite 1000 Los Angeles, CA 90067 Tel: (310) 552-4400 Fax: (310) 552-8400 E-mail: Attorney representing S.R. NEHAD, an individual, K.R. NEHAD, an individual, ESTATE OF FRIDOON RAWSHAN NEHAD Brian Watkins Brian Watkins & Associates 925 B Street, Suite 402 San Diego, CA 92101 Tel: (619) 255-5930 Fax: (619) 255-5369 E-mail: Attorney representing S.R. NEHAD, an individual, K.R. NEHAD, an individual, ESTATE OF FRIDOON RAWSHAN NEHAD Heather Fregeau Senior Excess Liability Specialist Via Email: hfregeau@csac-eia.org Executed on August 13, 2015, at San Diego, California. /s/ Timothy C. Stutler Timothy C. Stutler Case Document 15-1 Filed 08/13/15 Page 2 of 2