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Response by Officer Cicinelli
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Eugene P. Ramirez, Esq. (State Bar No. 134865) Timothy J. Kral, Esq. (State Bar No. 200919) MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 15th Floor at 801 Tower 801 South Figueroa Street Los Angeles, CA 90017 Telephone: (213) 624-6900 Facsimile: (213) 624-6999 [email protected], [email protected]
Attorneys for Defendant, JAY PATRICK CICINELLI
(Exempt per Gov. Code §6103)
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
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11 FREDERICK RONALD THOMAS, JR., ) Case No.: 30-2012-00581299 individually and as successor-in-interest of KELLY )
12 JAMES THOMAS, deceased, ) (Assigned for all purposes to the Honorable ) Kirk H Nakamura, Department C8)
13 Plaintiff,) vs. ) ANSWER BY DEFENDANT JAY
14 ) PATRICKCICINELLITOSECOND CITY OF FULLERTON; MICHAEL SELLERS, ) AMENDED COMPLAINT; DEMAND
15 Chief of Police individually and as ) FOR JURY TRIAL a peace officer; PATRICK McKINLEY; MANUEL)
16 ANTHONY RAMOS Badge Number Unknown, ) individually and as a peace officer; JOSEPH )
17 WOLFE Badge Number Unknown, individually and) as a peace officer; JAY PATRICK CICINELLI ) Complaint Filed: 7-5-12
18 Badge Number Unknown, individually and as a ) peace officer; KENTON HAMPTON Badge )
19 Number 133, individually and as a peace officer; ) JAMES BLATNEY Badge Number Unknown, )
20 individually and as a peace officer; SGT. KEVIN ) CRAIG Badge Number Unknown, individually and )
21 as a peace officer; and DOES 1-50, inclusive, ) )
22 Defendants.) -----------------------------------------------------------------------)
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25 Defendant JAY PATRICK CICINELLI ("Defendant") answers plaintiffs' Second Amended
26 Complaint ("Complaint") as follows:
27 1. Pursuant to Code of Civil Procedure §431.30, Defendant denies, generally and
28 specifically, each and every allegation in the complaint. Defendant further denies that Plaintiffs have
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been damaged in the sum alleged in the Complaint, or any other sum, or at all.
2 FIRST AFFIRMATIVE DEFENSE
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2. The complaint fails to state a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
3. At the time and place of the occurrence alleged in the complaint, Plaintiffs' decedent
failed to exercise ordinary care on his own behalf for his own safety. That negligence caused the injury
and damage, if any, that Plaintiffs sustained. Consequently, Plaintiffs' right to recover should be
diminished by the decedent's proportional share of fault.
THIRD AFFIRMATIVE DEFENSE
4. Plaintiffs' cause of action for negligence is barred or their recovery should be diminished
because the alleged damage was caused by the Plaintiffs' decedent's failure to exercise ordinary care
on his own behalf for his own safety.
FOURTH AFFIRMATIVE DEFENSE
5. At the time and place referred to in the complaint, and before such event, Plaintiffs'
decedent knew, appreciated and understood each and every risk involved in placing himself in the
position which he then assumed, and willingly, knowingly and voluntarily assumed each of such risks,
including, but not limited to, the risk of suffering personal bodily injury.
FIFTH AFFIRMATIVE DEFENSE
6. Plaintiffs have failed to mitigate the damages, if any, which Plaintiffs have sustained,
and to exercise reasonable care to avoid the consequences of harms, if any, in that, among other things,
Plaintiffs have failed to use reasonable diligence in caring for any injuries, failed to use reasonable
means to prevent aggravation of any injuries and failed to take reasonable precautions to reduce any
injuries and damages.
SIXTH AFFIRMATIVE DEFENSE
7. Plaintiffs' cause of action for negligence is barred or Plaintiffs' recovery should be
26 reduced because any injuries or damages were proximately caused by the negligence and other legal
27 fault of persons or entities other than Defendant.
28 III
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1 SEVENTH AFFIRMATIVE DEFENSE
2 8. The contributory negligence of Plaintiffs' decedent was a proximate cause in bringing
3 about death. The Plaintiffs' recovery against Defendant should be reduced in proportion to the amount
4 of negligence attributable to the decedent.
5 EIGHTH AFFIRMATIVE DEFENSE
6 9. The contributory negligence and carelessness of Plaintiffs' decedent was the sole
7 proximate cause in bringing about the decedent's death.
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9 10.
NINTH AFFIRMATIVE DEFENSE
The damages or injuries complained of by Plaintiffs, if any, were the result of an
10 emergency situation, not created by any fault of Defendant, and into which he was suddenly and
11 unexpectedly placed.
12. TENTH AFFIRMATIVE DEFENSE
13 11. Plaintiffs' claim for punitive damages is unconstitutional and invalid in that it violates
14 the United States Constitution, including, but not limited to, the Due Process Clause, and the Fifth,
15 Sixth and Eighth Amendments.
16 ELEVENTH AFFIRMATIVE DEFENSE
17 12. Plaintiffs' claims alleged in the complaint are barred by the applicable statutes of
18 limitations, including, but not limited to the provisions of Cal. Code ofCiv. Proc. §§ 335.1,337,337.1,
19 337.15, 338(a);338(b), 338(c), 338(d), 339, 340(3) and or 343.
20 TWELFTH AFFIRMATIVE DEFENSE
21 13. In doing the acts complained of by Plaintiffs, Defendant acted in self-defense and
22 Defendant used no more force than was reasonably necessary to prevent impending injury to Defendant.
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THIRTEENTH AFFIRMATIVE DEFENSE
14. The complaint does not show on its face that the action is one arising under the
Constitution or laws of California or the United States.
III
III
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FOURTEENTH AFFIRMATIVE DEFENSE
2 15. Public entities and employees are immune from liability for injury, whether caused by
3 the act or omission of the public entity, an employee thereof or any other person, except as expressly
4 provided by statute.
5 FIFTEENTH AFFIRMATIVE DEFENSE
6 16. The factual circumstances set forth in Plaintiffs' written claim do not correspond with
7 the facts alleged in Plaintiffs' complaint. The complaint thereby alleges a factual basis for recovery
8 which is not fairly reflected in the written claim.
9 SIXTEENTH AFFIRMATIVE DEFENSE
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17. A public entity is not liable for damages awarded under Civil Code section 3294 or other
damages imposed primarily for the sake of example and by way of punishing the Defendant.
SEVENTEENTH AFFIRMATIVE DEFENSE
18. The injuries or damages alleged in the complaint, if any, were caused by a person
resisting arrest, for which Defendant is not liable.
EIGHTEENTH AFFIRMATIVE DEFENSE
19. Plaintiffs' recovery is barred because public entities and employees are immune from
liability for any injury caused by the act or omission of another person.
NINETEENTH AFFIRMATIVE DEFENSE
20. The Plaintiffs' recovery is barred because public entities and employees are immune from
liability for discharging their mandatory duties with reasonable diligence.
TWENTIETH AFFIRMATIVE DEFENSE
21. Plaintiffs' cause of action for assault and battery/excessive force is barred because any
force used by Defendant was privileged as being reasonably necessary for self-defense.
25 TWENTY-FIRST AFFIRMATIVE DEFENSE
26 22. The Plaintiffs' cause of action for assault and battery/excessive force is barred because
27 Plaintiffs' decedent consented to all acts of Defendant alleged by Plaintiffs in their complaint to
28 constitute an assault and battery/excessive force.
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TWENTY-SECOND AFFIRMATIVE DEFENSE
23. The Plaintiffs' cause of action for assault and battery/excessive force is barred because
any force used by Defendant was privileged as necessary to effect the arrest, to prevent an escape and! or
to overcome resistance.
TWENTY-THIRD AFFIRMATIVE DEFENSE
24. The Plaintiffs' cause of action for assault and battery/excessive force is barred because
7 a peace officer making and arrest need not retreat in the face of resistance and cannot be deemed the
8 aggressor or lose their right to self-defense by using force.
9 TWENTY-FOURTH AFFIRMATIVE DEFENSE
10 25. The Plaintiffs' cause of action for assault and battery/excessive force is barred because
11 Plaintiffs' decedent freely and voluntarily assumed the risk of any detriment that resulted.
12 TWENTY-FIFTH AFFIRMATIVE DEFENSE
13 26. The Plaintiffs' cause of action for assault and battery/excessive force is barred because
14 Plaintiffs' decedent consented to all acts complained of by engaging in mutual combat, resisting or
15 attacking Defendant.
16 TWENTY-SIXTH AFFIRMATIVE DEFENSE
17 27. The Plaintiffs' cause of action for negligence is barred because the injuries alleged were
18 caused by an emergency situation, not created by any fault of Defendant and into which Defendant were
19 suddenly and unexpectedly placed.
20 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
21 28. The Plaintiffs' recovery is barred because any injury or damage suffered by Plaintiffs
22 were caused solely by reason of Plaintiffs' decedent's wrongful acts and conduct and the willful
23 resistance to a peace officer in the discharge the duties of his office.
24 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
25 29. The Plaintiffs' cause of action for wrongful death is barred because the injury or death
26 of Plaintiffs' decedent occurred during the course of or after the commission of a felony set forth in
27 Civil Code section 847(b) by Plaintiffs' decedent.
28 ///
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TWENTY-NINTH AFFIRMATIVE DEFENSE
30. The Plaintiffs' cause of action for wrongful death is barred for failure to join all of the
decedent's heirs as Plaintiffs.
THIRTIETH AFFIRMATIVE DEFENSE
31. The Plaintiffs' cause of action for wrongful death is barred or Plaintiffs' recovery should
6 be reduced because the contributory negligence and carelessness of Plaintiffs' decedent was the sole
7 proximate cause in bringing about the decedent's death.
8 THIRTY-FIRST AFFIRMATIVE DEFENSE
9 32. The Plaintiffs' claim for punitive damages is barred because a peace officer is not liable
10 for punitive damages absent clear and convincing proof of despicable conduct.
11 THIRTY-SECOND AFFIRMATIVE DEFENSE
12 33. The Defendant did not discriminate against Plaintiffs' decedent on account ofhis alleged
13 or perceived disability or use force on account of his alleged or perceived disability.
14 THIRTY-THIRD AFFIRMATIVE DEFENSE
15 34. The Defendant is immune from liability because he acted in good faith with an honest
16 and reasonable beliefthat his actions were necessary and appropriate.
17 THIRTY-FOURTH AFFIRMATIVE DEFENSE
18 35. The Plaintiffs' claim under the Federal Civil Rights Act is barred because there is no
19 imputed liability for public employees.
20 THIRTY-FIFTH AFFIRMATIVE DEFENSE
21 36. The Defendant is immune from liability under the Federal Civil rights Act because his
22 conduct did not violate clearly established rights.
23 THIRTY-SIXTH AFFIRMATIVE DEFENSE
24 37. The Plaintiffs' claims under Civil Code section 52.1 are barred because plaintiffs cannot
25 prove any threats, intimidation or coercion beyond the coercion that was inherent in the alleged
26 underlying constitutional violation.
27 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
28 38. The Plaintiffs' claims under Civil Code section 52.1 are barred because any alleged
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1 deprivation of civil rights was not without due process oflaw.
2 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
3 39. The Plaintiffs' claims under Civil Code section 52.1 are barred because the Complaint
4 fails to allege facts that go beyond mere tortious conduct and rise to the dignity of a civil rights
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violation.
THIRTY-NINTH AFFIRMATIVE DEFENSE
40. The Plaintiffs' claims under Civil Code section 52.1 are barred because negligent
conduct is insufficient to constitute a violation of rights.
FORTIETH AFFIRMATIVE DEFENSE
41. The acts complained of by Plaintiffs were committed in the course of making a lawful
11 arrest. In making this arrest, Defendant used only reasonable force.
12 FORTY-FIRST AFFIRMATIVE DEFENSE
13 42. Defendant acted within the scope of his discretion within the meaning of Cal. Govt.
14 Code §§ 820.2 and 815. 2 and in good faith, with due care, and pursuant to applicable rules, regulations,
15 and practices reasonably and in good faith believed to be in accordance with the Constitution and laws
16 of Cali fomi a and the United States, and Defendant is therefore, entitled to qualified immunity.
17 FORTY-SECOND AFFIRMATIVE DEFENSE
18 43. Any state law claims are barred by Plaintiffs' failure to comply with the Government Tort
19 claims presentation requirements, Cal. Govt. Code §§ 900, et seq., including, but not limited to §§ 900,
20 900.4, 901, 905, 905.2, 910, 911, 911.2, 911.4, 945.4, 945.6, 946.6, 950.2 and 950.6. If and to the
21 extent that the allegations ofthe Complaint enlarge upon the facts and contentions set forth in the Tort
22 claim, said complaint fails to state a cause of action and is barred by Cal. Govt. Code §§ 905.2,911.2,
23 and 950.2.
24 FORTY-THIRD AFFIRMATIVE DEFENSE
25 44. Plaintiffs' recovery is barred because a public entity is immune from liability for any
26 injury resulting from an act or omission by one of its employees who is immune from liability.
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FORTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs' recovery is barred because a public entity is immune from liability for any
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action taken under the pressure of public necessity and to avert impending peril which constitutes a
2 valid and legitimate exercise of the police power.
3 FORTY-FIFTH AFFIRMATIVE DEFENSE
4 46. The Plaintiffs' claims under Civil Code section 57.1 are barred because Plaintiffs cannot
5 prove any wrongful conduct by Defendant which was motivated by decedent's membership in a
6 protected class.
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WHEREFORE, Defendant prays as follows:
1. That Plaintiffs take nothing by this action;
2. That Defendant be awarded attorneys fees and costs of this suit; and
3. That Defendant be awarded such other relief as the court deems just.
DEMAND FOR JURY TRIAL
Defendant hereby demands trial of this matter by jury.
Dated: May 10, 2013
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MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP
Attorneys for Defendant JAY PATRICK CICINELLI
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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
2 [Thomas v. City of Fullerton, et al. - Orange Co. Sup. Ct, Case No. 30-2012-00581299]
3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 801 South Figueroa Street, 15th Floor,
4 Los Angeles, California 90017.
5 On May 13, 2013, I served the document described as ANSWER BY DEFENDANT JAY PATRICK CICINELLI TO SECOND AMENDED COMPLAINT; DEMAND FOR JURY
6 TRIAL on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows:
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SEE SERVICE LIST
(BY MAIL) I caused such envelope to be deposited in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I placed such envelope with postage thereon prepaid in the United States mail at Los Angeles, California. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
(BY OVERNIGHT COURIER): I placed the above-referenced document(s) in (an) envelope(s) designated by the express service carrier (UPS) for overnight delivery, addressed as indicated above. I delivered said UPS envelope to the personnel of our mail room. I am "readily familiar" with the firm's practice of collecting and processing documents intended for UPS overnight delivery. Under that practice, after the document is delivered to the firm's mail room, it is deposited that same day, with delivery fees provided for, in a box or other facility regularly maintained by the express service carrier or is delivered to an authorized courier or driver authorized by the express service carrier to receive documents, for overnight delivery.
o (BY PERSONAL SERVICE
o (BY FACSIMILE) I telecopied such document to the offices ofthe addressee at the following fax number:
21 0 (BY E-MAIL) I e-mailed such document to the following e-mail addresses:
22 (ST ATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
23 Executed on May 13, 2013 at Los Angeles, California.
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26 File No.: 3350-40640
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SERVICE LIST
2 Garo Mardirossian, Esq. Rowena J. Dizon, Esq.
3 Lawrence D. Marks, Esq. Annen Akaragian, Esq.
4 MARDIROSSIAN & ASSOCIATES, INC. 6311 Wilshire Boulevard
5 Los Angeles, California 90048-5001 (323) 653-6311
6 (323) 651-5511 fax
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Attorneys for Plaintiff FREDERICK RONALD THOMAS, JR.
Dana Alden Fox, Esq. Barry Hassenberg, Esq. Dawn M. Flores-Oster, Esq. LEWIS BRISBOIS9 BISGAARD & SMITH LLP 221 N. Figueroa Street, Suite 1200 Los Angeles, CA 90012 (213) 250-1800 (213) 250-7900 (fax) Attornrys for Defendants CITY OF FULLERTON, MICHAEL SELLERS, Chief of Police, PATRICK MCKINLEY, JAMES BLATNEY, SGT. KEVIN CRAIG,
Dave D. Lawrence, Esq. Christina M. Sprenger, Esq. Zaynah Najla Moussa, Esq. LAWRENCE BEACH ALLEN & CHOI 2677 N. Main Street, Suite 370 Santa Ana, CA 92705 (714) 479-0180 (714) 479-0181 (Fax) Attorneys for Defendant MANUEL ANTHONY RAMOS
Steven J. Rothans, Esq. Jill W. Williams, Esq. CARPENTER, ROTHANS & DUMONT 888 S. Figueroa St., Suite 1960 Los Angeles, CA 90017 (213) 228-0400 (213) 228-0401 (fax) Attorneys for Defendant KENTON HAMPTON
Kevin Osterberg, Esq. 23 HAIGHT, BROWN & BONESTEEL
3750 University Ave., Suite 60 24 Riverside, CA 92501
(951) 341-8300 25 (951) 341-8309
Attorneys for Defendant JOSEPH WOLFE 26
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