Monday, December 07, 2009

Case No. M99437: VERIFIED ANSWER OF RESPONDENT CITY OF CARMEL-BY-THE-SEA TO PETITION FOR WRIT OF MANDAMUS & AMENDMENT TO THE ANSWER: THIRD AFFIRMATIVE DEFENSE

ABSTRACT: Highlights of the VERIFIED ANSWER OF RESPONDENT CITY OF CARMEL-BY-THE-SEA TO PETITION FOR WRIT OF MANDAMUS, dated August 6, 2009, submitted by City Attorney Donald G. Freeman and A THIRD, SEPARATE DISTINCT AFFIRMATIVE DEFENSE AND PLEA OF RES JUDICATA, dated September 24, 2009, submitted by attorney Richard K. Harray, are presented.


VERIFIED ANSWER OF RESPONDENT CITY OF CARMEL-BY-THE-SEA TO PETITION FOR WRIT OF MANDAMUS

PERRY & FREEMAN
By Donald G. Freeman
Attorneys for Respondent
City of Caramel-by-the-Sea

Dated August 6, 2009

To paraphrase, most of the substantive allegations were “denied, each and every, all and singular, generally and specifically...”

WHEREFORE, the City prays for judgment against the Petitioner as hereinafter set forth:

AS AND FOR A SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, and as a plea of lack of jurisdiction, the City alleges that the Court lacks jurisdiction in that Petitioner failed to exhaust administrative remedies.

AS AND FOR A SECOND AND DISTINCT AFFIRMATIVE DEFENSE, the City further alleges that Petitioner’s actions fails to state facts sufficient to constitute a cause of action for violation of CEQA, for a writ of mandate of any other relief.


AMENDMENT TO THE ANSWER: THIRD AFFIRMATIVE DEFENSE

AS AND FOR A THIRD, SEPARATE DISTINCT AFFIRMATIVE DEFENSE AND PLEA OF RES JUDICATA, the Respondent alleges:

The case matter has been previously tried in the Court and a judgment entered in The Flanders Foundation v. City of Carmel-by-the-Sea, Amended Judgment Granting Petition for Writ of Mandamus, filed August 10, 2007. Except for the findings, “1. Violation of CEQA,” Amended Judgment, p. 2, 11.8. res judicata bars the reopening of this controversy and further litigation of all issues that were or could have been raised in the original suit.

Dated: September 24, 2009


KENNEDY, ARCHER & HARRAY

Richard K. Harray
Attorneys for Respondent
CITY OF CARMEL-BY-THE-SEA

2 comments:

Anonymous said...

The City's attorney writes "res judicata bars the reopening of this controversy and further litigation of all issues that were or could have been raised in the original suit." How could the alleged illegal actions by the City this time have been raised in the original lawsuit???

Anonymous said...

The city's legal tactics of deny and delay may be risky when it comes to a judge reviewing the briefs and following the laws pertinent to this case. Further, an appeal by the city to not reopen a controversy does not seem to me to be a strong legal argument or a winning argument on the merits of the lawsuit against the city.