ANSWER TO COMPLAINT: MILLER, JANE KINGSLEY v. CITY OF CARMEL-BY-THE-SEA

Abstract: On 17 July 2009, attorneys for Liebert Cassidy Whitmore filed an ANSWER TO COMPLAINT regarding Miller, Jane Kingsley, Plaintiff v. City of Carmel-by-the-Sea, Defendant, (M99513) in Monterey County Superior Court. The ANSWER TO COMPLAINT, signed by attorney Suzanne Solomon, contains twenty-one AFFIRMATIVE DEFENSES. In the ANSWER TO COMPLAINT, Defendant “denies, generally and specifically, each and every allegation” and “also denies, generally and specifically, that Plaintiff is entitled to the relief requested. or any relief at all, or that Plaintiff has been or will be damaged in any amount, or at all, by reason of any act, omission, or breach on the part of Defendant, or on the part of any of Defendant’s agents, servants, employees, or any of them.” The ANSWER TO COMPLAINT in reproduced in its entirety. Interestingly, the SIXTEENTH AFFIRMATIVE DEFENSE states, as follows: “As a sixteenth affirmative defense, Defendant alleges that Plaintiff’s causes of action, and each of them, are barred on the ground that City Defendant took immediate and appropriate action to investigate Plaintiff’s complaint and concerns.” Yet the City has failed to inform the public about any investigation of then Human Resources Manager Jane Miller’s “complaint and concerns” and the results and conclusions of said investigation.

Richard C. Bolanos, Bar No. 111343
rbalanos@lcwlegal.com
Suzanne Solomon, Bar Mo. 169005
ssolomon@lcwlegal.com
Grace Y. Chan, Bar No. 240993
gchen@lcwlegal.com
Liebert Cassidy Whitmore
A Professional law Corporation
153 Townsend Street, Suite 520
San Francisco, CA. 94107

Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA


SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
MONTEREY DIVISION


JANE KINGSLEY MILLER, Plaintiff

v.

CITY OF CARMEL-BY-THE-SEA, Defendant

Case No. M99513
ANSWER TO COMLAINT

Defendant CITY OF CARMEL-BY-THE-SEA answers the unverified Complaint of Plaintiff Jane Kingsley Miller (hereafter “Plaintiff”) as follows:

Pursuant to Code of Civil Procedure section 431.30, subdivision (d), Defendant denies, generally and specifically, each and every allegation contained in the Complaint. Defendant also denies, generally and specifically, that Plaintiff is entitled to the relief requested, or any relief at all, or that Plaintiff has been or will be damaged in any amount, or at all, by reason of any act, omission, or breach on the part of Defendant, or on the part of any of Defendant’s agents, servants, employees, or any of them.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

1. As a first affirmative defense, Defendant alleges that the unverified Complaint fails to state facts sufficient to constitute any cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

2. As a second affirmative defense, Defendant alleges that the Complaint fails to state any claim for violation of the Fair Employment and Housing Act.

THIRD AFFIRMATIVE DEFENSE

3. As a third affirmative defense, Defendant alleges that the City has established and enforces, at all relevant times, policies prohibiting harassment, retaliation and discrimination and that the City exercised reasonable care at all times to prevent and/or promptly remedy any harassment, discrimination, or retaliation, if in fact any such conduct ever occurred.

FOURTH AFFIRMATIVE DEFENSE

4. As a fourth affirmative defense, Defendant alleges that the Plaintiff acted unreasonably in failing to take advantage of any preventive or corrective opportunities Defendant provided or otherwise take action to avoid or remedy alleged harm.

FIFTH AFFIRMATIVE DEFENSE

5. As a fifth affirmative defense, Defendant alleges Plaintiff is barred from seeking any damages from purported physical or emotional injuries allegedly suffered as a result of her employment in that the sole and exclusive remedy in this respect is governed by the Worker’s Compensation Act (Labor Code §§ 3200 et seq.).

SIXTH AFFIRMATIVE DEFENSE

6. As a sixth affirmative defense, Defendant alleges that all of Plaintiff’s causes of action in her unverified Compliant are barred by Plaintiff’s failure to comply fully and timely with the statutory prerequisites necessary to maintain any or all of the causes of action brought under the Fair Employment and Housing Act, California Government Code section 12900 et seq.

SEVENTH AFFIRMATIVE DEFENSE

7. As a seventh affirmative defense, Defendant alleges that Plaintiff has failed to exhaust her administrative remedies under any applicable local, state or federal policies, regulations, procedures, or laws.

EIGHTH AFFIRMATIVE DEFENSE

8. As an eighth affirmative defense, Defendant alleges that some or all of Plaintiff’s claims are barred by the privileges and immunities applicable to public employees and agencies, including, but not limited to, California Government Code sections 815, 815.2, 815.6, 818.2, 820, 820.2, 820.4, 820.8, 820.9, 821, 821.6, 822.2, and /or other statutory common law privileges or immunities.

NINTH AFFIRMATIVE DEFENSE

9. As a ninth affirmative defense, Defendant alleges that even “but for” any alleged retaliatory or discriminatory motives, the actions taken regarding Plaintiff’s employment would have been the same.

TENTH AFFIRMATIVE DEFENSE

10. As a tenth affirmative defense, Defendant alleges that Plaintiff’s claims are frivolous, unreasonable, and groundless, and accordingly, Defendant should recover all costs and attorneys’ fees incurred herein.

ELEVENTH AFFIRMATIVE DEFENSE

11. As an eleventh affirmative defense, Defendant alleges that Plaintiff’s claims, and each of them, are barred by the applicable statures of limitations, including, but not limited to, Government Code sections 12960 and 12965.

TWELFTH AFFIRMATIVE DEFENSE

12. As a twelfth affirmative defense, Defendant alleges that at all times mentioned in the unverified Complaint, Defendant acted in conformity with applicable constitutional law, state and federal laws, ordinances, regulations, and policies.

THIRTTEENTH AFFIRMATIVE DEFENSE

13. As a thirteenth affirmative defense, Defendant alleges that Plaintiff’s Complaint and each cause of action are barred, or any recovery should be reduced, because of Plaintiff’s own neglect and fault in connection with the matters alleged.

FOURTEENTH AFFIRMATIVE DEFENSE

14. As a fourteenth affirmative defense, Defendant alleges that Plaintiff had a duty to mitigate her damages, but has failed to mitigate any damages to which she may be entitled.

FIFTHTEENTH AFFIRMATIVE DEFENSE

15. As a fifthteenth affirmative defense, Defendant alleges that Plaintiff’s causes of action, and each of them, are barred on the ground that City Defendant had good faith, legitimate, non-discriminatory business reasons, which were not a pretext for discrimination or retaliation for each and every employment action regarding Plaintiff.

SIXTEENTH AFFIRMATIVE DEFENSE

16. As a sixteenth affirmative defense, Defendant alleges that Plaintiff’s causes of action, and each of them, are barred on the ground that City Defendant took immediate and appropriate action to investigate Plaintiff’s complaint and concerns.

SEVENTEENTH AFFIRMATIVE DEFENSE

17. As a seventeenth affirmative defense, Defendant alleges that Plaintiff’s alleged injuries, losses, or damages were proximately causes by a superceding and intervening cause.

EIGHTEENTH AFFIRMATIVE DEFENSE

18. As an eighteenth affirmative defense, Defendant alleges that Plaintiff is barred by estoppel from receiving some or all of the relief she seeks.

NINETEENTH AFFIRMATIVE DEFENSE

19. As a nineteenth affirmative defense, Defendant alleges that the Plaintiff’s causes of action, and each of them, are barred by laches.

TWENTIETH AFFIRMATIVE DEFENSE

20. As a twentieth affirmative defense, Defendant alleges that the Plaintiff’s causes of action, and each of them, are barred by the doctrines of unclean hands, or waiver.

TWENTY-FIRST AFFIRMATIVE DEFENSE

21. As a twenty-first separate and affirmative defense, Defendant alleges that to the extent during the course of this litigation City acquires any evidence of wrongdoing by Plaintiff and the wrongdoing would have materially affected the terms and conditions of Plaintiff’s employment or would have resulted in Plaintiff either being demoted, disciplined, or terminated, such after-acquired evidence shall bar Plaintiff’s claim on liability or damages or shall reduce such claim or damages as provided by law.

WHEREFORE, the Defendant prays for relief as follows:

1. That the Court deny Plaintiff’s requests for damages;
2. That the Court deny Plaintiff’s request for attorneys’ fees;
3. That the Court deny Plaintiff’s request for prejudgment interest;
4. That the Court deny Plaintiff’s request for costs of suit;
5. That Plaintiff take nothing from this action;
6. That the Court grant the Defendant their attorneys’ fees and costs of suit; and that the Court grant the Defendant such other and further relief as the Court deems proper.

Dated: July 17, 2009

LIEBERT CASSIDY WHITMORE
By:________________________
Suzanne Solomon
Attorneys for Defendant
CITY OF CARMEL-BY-THE-SEA

REFERENCES:
California Code of Civil Procedure

431.30.
(d) If the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part 1 or is not verified, a general denial is sufficient but only puts in issue the material allegations of the complaint. If the complaint is verified, unless the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part 1, the denial of the allegations shall be made positively or according to the information and belief of the defendant. However, if the cause of action is a claim assigned to a third party for collection and the complaint is verified, the denial of the allegations shall be made positively or according to the information and belief of the defendant, even if the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part 1.

California Government Code sections 815, 815.2, 815.6, 818.2, 820, 820.2, 820.4, 820.8, 820.9, 821, 821.6, 822.2

California Government Code
815. Except as otherwise provided by statute:
(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.

815.2. (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

815.6. Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

818.2. A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.

820. (a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
(b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.

820.2. Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.

820.4. A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.

820.8. Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.

820.9. Members of city councils, mayors, members of boards of supervisors, members of school boards, members of governing boards of other local public entities, members of locally appointed boards and commissions, and members of locally appointed or elected advisory bodies are not vicariously liable for injuries caused by the act or omission of the public entity or advisory body. Nothing in this section exonerates an official from liability for injury caused by that individual's own wrongful conduct. Nothing in this section affects the immunity of any other public official.
This section shall become operative January 1, 2000.

821. A public employee is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment.

821.6. A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.

822.2. A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.

Government Code sections 12960 and 12965
12960. (a) The provisions of this article govern the procedure for the prevention and elimination of practices made unlawful pursuant to Article 1 (commencing with Section 12940) of Chapter 6.
(b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint.
(c) Any employer whose employees, or some of them, refuse or threaten to refuse to cooperate with the provisions of this part may file with the department a verified complaint asking for assistance by conciliation or other remedial action.
(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows:
(1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence.
(2) For a period of time not to exceed one year following a rebutted presumption of the identity of the person's employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.
(3) For a period of time, not to exceed one year from the date the person aggrieved by an alleged violation of Section 51.7 of the Civil Code becomes aware of the identity of a person liable for the alleged violation, but in no case exceeding three years from the date of the alleged violation if during that period the aggrieved person is unaware of the identity of any person liable for the alleged
violation.
(4) For a period of time not to exceed one year from the date that a person allegedly aggrieved by an unlawful practice attains the age of majority.

12965. (a) In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, or persuasion, or in advance thereof if circumstances warrant, the director in his or her discretion may cause to be issued in the name of the department a written accusation. The accusation shall contain the name of the person, employer, labor organization, or employment agency accused, which shall be known as the respondent, shall set forth the nature of the charges, shall be served upon the respondent together with a copy of the verified complaint, as amended, and shall require the respondent to answer the charges at a hearing.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, and accusation pursuant to Section 12961, an accusation shall be issued, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, an accusation shall be issued, if at all, within two years after the
filing of the complaint. For all other complaints, an accusation shall be issued, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation and accusation as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b) If an accusation is not issued within 150 days after the filing of a complaint, or if the department earlier determines that no accusation will issue, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the
complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department and of the commission. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those
persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public
official, acting in an official capacity.
(c) (1) If an accusation includes a prayer either for damages for emotional injuries as a component of actual damages, or for administrative fines, or for both, or if an accusation is amended for the purpose of adding a prayer either for damages for emotional injuries as a component of actual damages, or for administrative fines, or both, the respondent may within 30 days after service of the accusation or amended accusation, elect to transfer the proceedings to a court in lieu of a hearing pursuant to subdivision
(a) by serving a written notice to that effect on the department, the commission, and the person claiming to be aggrieved. The commission shall prescribe the form and manner of giving written notice.
(2) No later than 30 days after the completion of service of the notice of election pursuant to paragraph (1), the department shall dismiss the accusation and shall, either itself or, at its election, through the Attorney General, file in the appropriate court an action in its own name on behalf of the person claiming to be aggrieved as the real party in interest. In this action, the person claiming to be
aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by his or her own counsel. Complaints filed pursuant to this section shall be filed in the superior court in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal office. Those actions shall be assigned to the court's delay reduction program, or otherwise given priority for disposition by the court in which the action is filed.
(3) A court may grant as relief in any action filed pursuant to this subdivision any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employer's internal grievance procedures.
(4) The department may amend an accusation to pray for either damages for emotional injury or for administrative fines, or both, provided that the amendment is made within 30 days of the issuance of the original accusation.
(d) (1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C) A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3) This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e) (1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C) After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.