Case :-cv-00-jsw Document Filed 0// Page of CLAUDIA M. QUINTANA City Attorney, SBN BY: KATELYN M. KNIGHT Deputy City Attorney, SBN CITY OF VALLEJO, City Hall Santa Clara Street, P.O. Box 0 Vallejo, CA 0 Tel: (0) - Fax: (0) - Email: Katelyn.Knight@CityofVallejo.net Attorneys for Defendants CITY OF VALLEJO, JARRETT TONN, KEVIN BARRETO, and SEAN KENNEY UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION KEVIN DE CARLO and PATRICIA WHITAKER, vs. Plaintiffs, CITY OF VALLEJO, et al., Defendants. Case No: :-cv-00-edl ANSWER OF DEFENDANTS CITY OF VALLEJO, JARRETT TONN, KEVIN BARRETO AND SEAN KENNEY TO PLAINTIFFS COMPLAINT; JURY TRIAL DEMANDED COMES NOW Defendants CITY OF VALLEJO (hereinafter City ), JARRETT TONN, KEVIN BARRETO, and SEAN KENNEY (hereinafter referred Defendants ) answer Plaintiffs as follows: JURISDICTION. Answering the first paragraph, Defendants admit that the Court has jurisdiction. PARTIES. Answering the second paragraph, Defendants admit that the Plaintiffs have filed a asserting causes of action under state and federal law. Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of. Answering the third paragraph, Defendants admit that the CITY OF VALLEJO is a public entity, subject to the laws of the State of California. Defendants admit that CITY OF VALLEJO employs Officers JARRETT TONN, KEVIN BARRETO, and SEAN KENNEY. Defendants are without sufficient knowledge or information to admit or deny employment of any DOE Defendants.. Answering the fourth paragraph, Defendants admit that JARRETT TONN was employed by the CITY OF VALLEJO as a peace officer at the time of the incident giving rise to this action. Defendants admit that Plaintiffs assert that they bring claims against Officer Tonn in his official and individual capacity.. Answering the fifth paragraph, Defendants admit that KEVIN BARRETO was employed by the CITY OF VALLEJO as a peace officer at the time of the incident giving rise to this action. Defendants admit that Plaintiffs assert that they bring claims against Officer Barreto in his official and individual capacity.. Answering the sixth paragraph, Defendants admit that SEAN KENNEY was employed by the CITY OF VALLEJO as a peace officer at the time of the incident giving rise to this action. Defendants admit that Plaintiffs assert that they bring claims against Officer KENNEY in his official and individual capacity.. Answering the seventh paragraph, Defendants are without sufficient knowledge or information to admit or deny employment of any DOE Defendants. Defendants admit that CITY OF VALLEJO is a municipal corporation that employs Vallejo Police Department officers.. Answering the eighth paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every STATEMENT OF FACTS. Answering the ninth paragraph, Defendants admit that Plaintiffs were driving in a vehicle in Contra Costa County on the evening of May,,. Defendants deny that Plaintiffs were driving at :00 p.m. Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of. Answering the tenth paragraph, Defendants admit that Vallejo Police Department officers sought to locate and apprehend KEVIN DE CARLO, and that Defendant Officers TONN, BARRET and KENNEY participated in this endeavor. Defendants admit that KEVIN DE CARLO was determined to be in Contra Costa County.. Answering the eleventh paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every. Answering the twelfth paragraph, Defendants admit that contact was made between a vehicle driven by SEAN KENNEY and the vehicle driven by KEVIN DE CARLO. Defendants allege that KEVIN DE CARLO subsequently rammed the vehicle driven by SEAN KENNEY twice. Defendants deny that the first contact between the two vehicles pushed the car driven by KEVIN DE CARLO into the ditch.. Answering the thirteenth paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every. Answering the fourteenth paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every. Answering the fifteenth paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every. Answering the sixteenth paragraph, Defendants deny that KEVIN DE CARLO and PATRICIA WHITAKER were stationary with their hands in the air at the time the officers opened fire. Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and every remaining allegation in this paragraph.. Answering the seventeenth paragraph, Defendants deny that KEVIN DE CARLO and PATRICIA WHITAKER were stationary with their hands in the air at the time the officers Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of opened fire. Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and every remaining allegation in this paragraph.. Answering the eighteenth paragraph, Defendants are without sufficient. Answering the nineteenth paragraph, Defendants admit that KEVIN DE CARLO sustained multiple injuries as a consequence of the incident, including injuries to his fingers. Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and. Answering the twentieth paragraph, Defendants admit that KEVIN DE CARLO submitted a claim and that that claim was rejected. Defendants deny that PATRICIA WHITAKER submitted a claim. FEDERAL CAUSE OF ACTION Plaintiff Kevin De Carlo v. Defendant Officers (Federal Constitutional Claims) Excessive Force. Answering the twenty-first paragraph, Defendants deny that Plaintiffs had their paragraph. Answering the twenty-second paragraph, Defendants are without sufficient. Answering the twenty-third paragraph, Defendants are without sufficient. Answering the twenty-fourth paragraph, Defendants deny that Plaintiffs had their hands up at the time the officers opened fire. Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of. Answering the twenty-fifth paragraph, Defendants are without sufficient. Answering the twenty-sixth paragraph, Defendants deny that Plaintiffs had their paragraph. Answering the twenty-seventh paragraph, the averments contained in this paragraph Plaintiff Patricia Whitaker v. Defendant Officers (Federal Constitutional Claims) Excessive Force. Answering the twenty-eighth paragraph, Defendants deny that Plaintiffs had their paragraph. Answering the twenty-ninth paragraph, Defendants are without sufficient 0. Answering the thirtieth paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every. Answering the thirty-first paragraph, Defendants deny that Plaintiffs had their hands up at the time the officers opened fire. Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and. Answering the thirty-second paragraph, Defendants are without sufficient Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of. Answering the thirty-third paragraph, Defendants deny that Plaintiffs had their paragraph. Answering the thirty-fourth paragraph, the averments contained in this paragraph Plaintiff Kevin De Carlo v. Defendant Officers (Federal Constitutional Claims) Deliberate Indifference. Answering the thirty-fifth paragraph, Defendants deny that no medical aid was rendered to KEVIN DE CARLO for over forty minutes after the incident. The remaining averments contained in this paragraph. Answering the thirty-sixth paragraph, the averments contained in this paragraph. Answering the thirty-seventh paragraph, the averments contained in this paragraph. Answering the thirty-eighth paragraph, Defendants deny that medical assistance was not provided promptly to KEVIN DE CARLO. The remaining averments contained in this paragraph. Answer the thirty-ninth paragraph, Defendants deny that no medical aid was rendered to KEVIN DE CARLO for over forty minutes after the incident. STATE CAUSES OF ACTION Battery Plaintiff Kevin De Carlo v. Defendant Officers (State Claims) 0. Answering the fortieth paragraph, Defendants deny that Plaintiffs had their hands up at the time the officers opened fire. The remaining averments contained in this paragraph are conclusions of law to which no response is required.. Answering the forty-first paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of. Answering the forty-second paragraph, Defendants are without sufficient. Answering the forty-third paragraph, Defendants deny that Plaintiffs had their hands up at the time the officers opened fire. Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and. Answering the forty-fourth paragraph, Defendants are without sufficient. Answering the forty-fifth paragraph, Defendants deny that Plaintiffs had their paragraph. Answering the forty-sixth paragraph, the averments contained in this paragraph. Answering the forty-seventh paragraph, the averments contained in this paragraph Plaintiff Kevin De Carlo v. Defendant City of Vallejo (State Battery Claim). Answering the forty-eighth paragraph, the averments contained in this paragraph Plaintiff Patricia Whitaker v. Defendant Officers (State Battery Claim). Answering the forty-ninth paragraph, Defendants deny that Plaintiffs had their paragraph 0. Answering the fiftieth paragraph, Defendants are without sufficient knowledge or information to admit or deny the allegations stated and on that basis deny each and every. Answering the fifty-first paragraph, Defendants deny that Plaintiffs had their Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of hands up at the time the officers opened fire. Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and. Answering the fifty-second paragraph, Defendants are without sufficient. Answering the fifty-third paragraph, the averments contained in this paragraph are conclusions of law to which no response is required.. Answering the fifty-forth paragraph, the averments contained in this paragraph Plaintiff Patricia Whitaker v. Defendant City of Vallejo (State Battery Claim). Answering the fifty-fifth paragraph, the averments contained in this paragraph are conclusions of law to which no response is required. Plaintiff Kevin De Carlo v. Defendant Officers (Intentional Infliction of Emotional Distress Claim). Answering the fifty-sixth paragraph, the averments contained in this paragraph. Answering the fifty-seventh paragraph, Defendants deny that Plaintiffs had their paragraph. Answering the fifty-eighth paragraph, Defendants deny that any of the officers intended to cause Plaintiff emotional distress.. Answering the fifty-ninth paragraph, the averments contained in this paragraph 0. Answering the sixtieth paragraph, the averments contained in this paragraph are conclusions of law to which no response is required. // // Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of Plaintiff Kevin De Carlo v. Defendant City of Vallejo (Intentional Infliction of Emotional Distress). Answering the sixty-first paragraph, the averments contained in this paragraph are conclusions of law to which no response is required. Plaintiff Patricia Whitaker v. Defendant Officers (Intentional Infliction of Emotional Distress Claim). Answering the sixty-second paragraph, the averments contained in this paragraph. Answering the sixty-third paragraph, Defendants deny that Plaintiffs had their paragraph. Answering the sixty-fourth paragraph, Defendants deny that any of the officers intended to cause Plaintiff emotional distress.. Answering the sixty-fifth paragraph, the averments contained in this paragraph. Answering the sixty-sixth paragraph, the averments contained in this paragraph Plaintiff Patricia Whitaker v. Defendant City of Vallejo (Intentional Infliction of Emotional Distress). Answering the sixty-seventh paragraph, the averments contained in this paragraph Plaintiff Kevin De Carlo v. Defendant Officers (State Negligence Claim). Answering the sixty-eighth paragraph, the averments contained in this paragraph. Answering the sixty-ninth paragraph, the averments contained in this paragraph 0. Answering the seventieth paragraph, the averments contained in this paragraph Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of. Answering the seventy-first paragraph, the averments contained in this paragraph Plaintiff Kevin De Carlo v. Defendant City of Vallejo (State Negligence Claim). Answering the seventy-second paragraph, the averments contained in this paragraph Plaintiff Patricia Whitaker v. Defendant Officers (State Negligence Claim). Answering the seventy-third paragraph, the averments contained in this paragraph. Answering the seventy-fourth paragraph, the averments contained in this paragraph. Answering the seventy-fifth paragraph, the averments contained in this paragraph. Answering the seventy-sixth paragraph, the averments contained in this paragraph Plaintiff Patricia Whitaker v. Defendant City of Vallejo (State Negligence Claim). Answering the seventy-seventh paragraph, the averments contained in this paragraph Plaintiff Kevin De Carlo v. Defendant Officers (.. Civil Rights Violation). Answering the seventy-eighth paragraph, the averments contained in this paragraph. Answering the seventy-ninth paragraph, Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and 0. Answering the eightieth paragraph, Defendants deny that the officers caused injury to Plaintiff for the purpose of precluding exercise of his constitutional rights.. Answering the eighty-first paragraph, Defendants admit that KEVIN DE CARLO sustained injuries as a result of the incident. Defendants are without sufficient knowledge or Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of information to admit or deny the remaining allegations stated and on that basis deny each and. Answering the eighty-second paragraph, Defendants deny that the officers caused injury to Plaintiff for the purpose of precluding exercise of his constitutional rights. Plaintiff Patricia Whitaker v. Defendant Officers (.. Civil Rights Violation). Answering the eighty-third paragraph, the averments contained in this paragraph. Answering the eighty-fourth paragraph, Defendants are without sufficient knowledge or information to admit or deny the remaining allegations stated and on that basis deny each and. Answering the eighty-fifth paragraph, Defendants deny that the officers caused injury to PATRICIA WHITAKER.. Answering the eighty-sixth paragraph, Defendants are without sufficient. Answering the eighty-seventh paragraph, Defendants deny that firearms were discharged for the purpose of precluding exercise of Plaintiff s constitutional rights. AFFIRMATIVE DEFENSES. As a first affirmative defense, Defendants allege that the fails to state any claim upon which relief can be granted.. As a second affirmative defense, Defendants allege that Plaintiffs claims are barred by the applicable statutes of limitation.. As a third affirmative defense, Defendants allege that Plaintiffs own negligent conduct proximately contributed to the alleged injuries and damages. Any jury verdict in Plaintiffs favor that may be rendered in this case, therefore, must be reduced by the percentage that plaintiffs conduct contributed to any of his or her damages or injuries.. As a fourth affirmative defense, Defendants allege that at all times herein mentioned, all actions taken by the Defendant officers were reasonable under the circumstances Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of and taken under a reasonable belief that the actions were not unlawful. The Defendant officers are therefore entitled to qualified immunity from liability for matters set forth in the Complaint for Damages.. As a fifth affirmative defense, Defendants allege that any harm which came to Plaintiffs were a direct and proximate cause of their own actions.. As a sixth affirmative defense, Defendants allege Plaintiffs alleged damages or injuries were aggravated by Plaintiffs failure to use reasonable diligence to mitigate them.. As a seventh affirmative defense, Defendants allege that any of Plaintiffs damages or injuries were proximately caused by the negligence of other persons, firms, corporations or entities, for whom the Defendants are not responsible. Should Plaintiffs be entitled to recover under the, any recovery should be reduced in proportion to the negligence of such other persons, firms, corporations or entities.. As an eighth affirmative defense, Defendants allege that the defendant officers were acting in their official capacities at all times relevant to this action, and any alleged actions were made in good faith, without malice, or were performed with a reasonable belief that their actions were authorized by and in accord with existing law and authority.. As a ninth affirmative defense, Defendants allege that all actions taken were privileged as a matter of law. Consequently, no liability can be cast upon them in their individual capacities to the extent they become parties to this lawsuit.. As a tenth affirmative defense, the Defendants allege that KEVIN DE CARLO s arrest and/or detention was made with lawful.. As an eleventh affirmative defense, Defendants allege that plaintiffs had full knowledge of all the risks, dangers, and hazards, if any there were, and nevertheless voluntarily and with full appreciation of the amount of danger involved in their actions and the magnitude of the risk involved, assumed the risk of injuries and damages.. As a twelfth affirmative defense, Defendants allege that Defendant shall only be responsible for damages in an amount determined pursuant to and in accordance with Proposition (Civil Code.). Case No. :-CV-00-EDL - -
Case :-cv-00-jsw Document Filed 0// Page of DEMAND FOR JURY Defendants hereby demand a trial by jury as provided by the Seventh Amendment to the United States Constitution and Rule of the Federal Rules of Civil Procedure. PRAYER FOR JUDGMENT Wherefore the Defendants pray for judgment as follows:. That Plaintiffs take nothing by this action;. That the Defendants be awarded the costs of defending this lawsuit;. That the Defendants be awarded a judgment against the Plaintiffs; and. For such other and further relief as this Court deems proper. DATED: February, Respectfully submitted, /s/ Katelyn M. Knight KATELYN M. KNIGHT Deputy City Attorney Attorney for Defendants, CITY OF VALLEJO, OFFICER TONN, OFFICER BARRETO, and OFFICER KENNEY Case No. :-CV-00-EDL - -