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Answer of Defendant City of Carmel to Plaintiff's Amended Verified Petition and Complaint Mcinchak

Jun 01, 2018

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  • 8/9/2019 Answer of Defendant City of Carmel to Plaintiff's Amended Verified Petition and Complaint Mcinchak

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    STRADLING YOCCA

    CARLSON

    RAUTH

    LAWYERS

    NeWPORT BEACH

    JEFFREY A. DINKIN, SBN 111422

    jdinkin@sycr com

    ALLISON

    E

    BURNS, SBN 198231

    aburns@sycr com

    DAVID C PALMER, SBN 251609

    dpalmer@sycr com

    S1RADLING YOCCACARLSON RAUIH

    A Professional Corporation

    800 Anacapa Street, Suite A

    Santa Barbara, California 93101

    Telephone: (805) 730-6800

    Facsimile: (805) 730-6801

    Attorneys for Respondent/Defendant

    City

    of

    Carmel-by-the Sea

    Exempt from filing fee

    Government

    Code

    6103

    SUPERIOR COURT OF CALIFORNIA

    COUNTY OF MONTEREY

    STEVEN MCINCHAK

    Petitioner/Plaintiff,

    v.

    CITY OF CARMEL-BY-THE-SEA, JASON

    STILWELL, CITY ADMINISTRATOR OF

    THE CITY OF CARMEL-BY-THE-SEA,

    SUSAN PAUL, ADMINISTRATIVE

    SERVICES DIRECTOR OF THE CITY OF

    CARMEL-BY-THE-SEA; and DOES 1

    through 50, inclusive,

    Respondents/Defendants.

    CASE NO. M128062

    ANSWER

    OF

    RESPONDENT/DEFENDANT CITY OF

    CARMEL-BY-THE-SEA

    TO

    PETITIONER/PLAINTIFF'S AMENDED

    VERIFIED PETITION AND COMPLAINT

    Action Filed: June 4, 2014

    Discovery Cutoff: Not Set

    Trial Date: Not Set

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183

    7v3 l

    02910-0006

  • 8/9/2019 Answer of Defendant City of Carmel to Plaintiff's Amended Verified Petition and Complaint Mcinchak

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    STRADLING YOCCA

    CARLSON RAUTH

    LAWYERS

    NEWPORT BEACH

    PETITIONER PLAINTIFF

    AND ATTORNEYS

    OF

    RECORD:

    Respondent/Defendant the City of Cannel-By-The-Sea ( City ) for itself and for no othe

    defendant, hereby answers the Amended Verified Petition for Writ of Mandamus and Complain

    for Declaratory Judgment, Breach

    of

    Contract, Defamation and Intentional and Negligen

    Infliction of Emotional Distress filed in the above-captioned action ( Amended Complaint ) by

    Petitioner/Plaintiff Steven Mclnchak ( Petitioner ) as follows:

    PRELIMINARY

    STATEMENT

    In

    response to the introductory paragraph of the Amended Complaint, the City admits

    that Petitioner has been employed by the City since 1997 as its Information Systems Network

    Manager, responsible for managing and supervising the City's entire computer system. The

    City further admits that on June 5 2013 the City

    of

    Carmel-by-the Sea unilaterally placed

    Petitioner on paid administrative leave from his position as Information Systems Network

    Manager without notice or hearing because no such notice or hearing was required. The City is

    not able to admit or deny whether there was cause for placing

    Petitioner on paid administrative

    as the term without cause

    as

    used in the context

    of

    the Amended Complaint is uncertain and

    indefinite, and while cause was not required to place Petitioner on paid administrative leave,

    there was cause for doing so. The City further admits that the City has kept Petitioner on paid

    administrative leave, preventing him from performing his job duties or returning to work since

    June 6, 2013, a period

    of

    nearly 12 months at the time the Amended Complaint was filed. The

    City further responds that the balance

    of

    the allegations set forth in the introductory paragraph

    constitute legal argument or legal conclusions and the City is not required to admit or deny the

    same. To the extent the balance of

    the introductory paragraph contains factual allegations, the

    City denies the same. The City further denies the implication that any

    of

    actions refened to in

    the introductory paragraph violated any statute or other legal right held by Petitioner.

    -2-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183 7v3/l 02910-0006

  • 8/9/2019 Answer of Defendant City of Carmel to Plaintiff's Amended Verified Petition and Complaint Mcinchak

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    STR DLING

    YOCC

    C RLSON R UTH

    L WYERS

    NEWPORT BE CH

    P RTIES

    1 Answering Paragraph 1

    of

    the Amended Complaint, the City admits all allegations

    therein.

    2

    Answering Paragraph 2

    of

    the Amended Complaint, the City admits all allegation

    therein.

    3

    Answering Paragraph 3 of the Amended Complaint, the City admits all allegation

    therein.

    4 Answering Paragraph 4

    of

    the Amended Complaint, the City admits all allegation

    therein.

    5 Answering Paragraph 5

    of

    the Amended Complaint, the City is without sufficien

    knowledge or information to form a belief as to the truth

    of

    the allegations contained therein, and

    on that basis denies each and every such allegation.

    COMMON F CTS

    6

    Answering Paragraph 6

    of

    the Amended Complaint, the City denies that Petitione

    reported directly to the City Administrator until 2013 when he was directed to report instead to

    the administrative Services

    Director. The City admits the balance

    of

    the allegations contained i

    Paragraph

    6

    7 Answering Paragraph 7

    of

    the Amended Complaint, the City denies that Petitione

    was required to be accessible to the City, its Administrators, its elected officials and employee

    twenty-four hours a day, seven days a week to solve problems or answer questions about the

    -3-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183 7v3/ l 02910-0006

  • 8/9/2019 Answer of Defendant City of Carmel to Plaintiff's Amended Verified Petition and Complaint Mcinchak

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    STRADLING YOCCA

    CARLSON RAUTH

    LAWYERS

    NEII PORT BEACH

    City's Computer system. The City admits the balance

    of

    the allegations contained in Paragraph

    7.

    8. Answering Paragraph 8 of the Amended Complaint, the City denies all allegations

    contained therein.

    9.

    Answering Paragraph 9

    of

    the Amended Complaint, the City denies that:

    (i

    Petitioner is a permanent, long-term employee of the City

    of

    Carmel; (ii) Petitioner accrued a

    property interest in his employment as a public employee under the Constitution of the State o

    California, including the right to retain his employment in the absence

    of

    just cause for

    termination; (iii) Petitioner was informed that he was required to sign that Agreement as a

    condition of remaining employed

    by

    the City of Carmel ; (iv) Petitioner received no ..

    consideration or other benefit in connection with the Employment Agreement; (v) Petitione

    was compelled to sign ... with no notice or intent to waive his vested rights and under threa

    that

    if

    he did not sign the Employment Agreement his employment would be immediately

    terminated without cause. The City admits the balance

    of

    the allegations contained in Paragraph

    9, except those that constitute legal argument or legal conclusions which the City is not required

    to admit or deny the same.

    10. Answering Paragraph 10

    of

    the Amended Complaint, the City admits that on June

    5

    2013: agents

    of

    the City

    of

    Carmel appeared at Petitioner/Plaintiff's home together with the

    Chief

    of

    Police and three law enforcement officers from the City of Carmel and the Monterey

    County Sheriff's Department who served upon Petitioner/Plaintiff a search warrant and

    proceeded to search his residence. The City admits

    ...

    he City of Carmel took possession o

    Petitioner/Plaintiff's home computer

    ...

    [and] ... [c ]ity laptop computer and multiple thumb drives

    and disks, including all back-up disks ... None of the property taken on June 5, 2013 has been

    returned to Petitioner/Plaintiff. The City denies each and every other allegation contained in

    Paragraph 10.

    -4-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183

    7v3/l

    02910-0006

  • 8/9/2019 Answer of Defendant City of Carmel to Plaintiff's Amended Verified Petition and Complaint Mcinchak

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    STR DLING

    YOCC

    C RLSON R UTH

    L WYERS

    NEWPORT

    BE CH

    11.

    Answering Paragraph

    11 of

    the Amended Complaint, the City admits that Karen

    Mclnchak is not now, and never has been, an employee

    of

    the City

    of

    Carmel. The City admit

    that Petitioner's home computer was not returned from June 5, 2013 to the date this action was

    filed. The City is informed and believes that

    Petitioner has retrieved his home computer during

    the pendency

    of

    this action. The City is without sufficient knowledge or infonnation to form

    belief as to the truth of the remaining allegations

    of

    Paragraph 11 and on that basis denies eac

    and every remaining allegation.

    12.

    Answering Paragraph 12

    of

    the Amended Complaint, the City denies the allegatio

    that at the same time on June 5 2013 agents

    of

    the City

    of

    Carmel includin

    Respondent/Defendant Susan Paul notified Petitioner/Plaintiff that he was placed on

    administrative leave pending investigation of criminal charges against him. The City admit

    that no criminal or other charges have ever been filed against Petitioner and that the Carme

    Police Department has not requested the filing

    of

    any criminal charges against Petitioner. Th

    City is without sufficient knowledge or information to form a belief as to the truth

    of

    th

    allegation that nor any other law enforcement agency has requested the filing

    of

    any crimina

    charges against Petitioner/Plaintiff, Steven Mclnchak, and on that basis denies the foregoin

    allegation.

    13. Answering Paragraph 13

    of

    the Amended Complaint, the City admits that to date

    Petitioner has not received notice of charges from the City of Carmel. The City further admits (i

    that Petitioner was directed to appear at an investigative interview, (ii) that not appearing at said

    investigative interview would be insubordination, (iii) that an attorney engaged by the City wa

    present with Ms. Paul at the investigative interview. The City admits that Petitioner did not hav

    an opportunity to review, respond to or rebut charges because the interview was investigatory

    and there were no charges yet alleged to which Petitioner could respond. The City denies tha

    Petitioner was not given the opportunity to respond to the questions about his activity

    Petitioner's allegation that the allegations against Petitioner by the City of Carmel are false i

    -5-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183 7v3/l 02910-0006

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    STR DLING YOCC

    C RLSON

    R UTH

    L WYERS

    NEWPORT BE CH

    not sufficiently definite to allow The City to form a belief

    as

    to the truth of the foregoing

    allegation and on that basis the City denies the same. The City is without sufficient knowledg

    or information to form a belief as to the truth of the following allegations, and on that basis the

    City denies the same: (i) Petitioner had no knowledge or notice of any allegations against him

    by the City

    of

    Carmel prior

    to

    the search of his home and seizure

    of

    his property; and (ii) tha

    any purported allegations of wrongdoing made by the City

    of

    Carmel against [Petitioner] ..

    have been widely published and republished throughout the community. The City denies each

    and every other allegation contained in Paragraph 13.

    14. Answering Paragraph 14, the City responds that the following allegation constitute

    legal argument or legal conclusion and the City is not required to admit or deny the same: such

    false and defamatory allegations, including allegations

    of

    criminal conduct, irreparably damaged

    Petitioner/Plaintiff's reputation

    in

    his profession, his employment and his community, violated

    his privacy, impaired his contract of employment, and violated his liberty interest in hi

    employment, all in violation of his right to due process of law under the Constitution of the Stat

    of Califomia, and in violation of Califomia law. The City denies each and every othe

    allegation contained in Paragraph 14.

    15.

    Answering Paragraph 15

    of

    the Amended Complaint, the City admits that from the

    time Petitioner was placed on paid administrative leave on June

    5 2013

    to the present, Petitione

    has been prevented from performing his job duties and accessing his work computers. The City

    admits that from the time Petitioner was placed on paid administrative leave on June 5 2013 to

    the date this action was filed, Petitioner was prevented from retrieving the personal property

    seized by the Police pursuant to the search warrant, or accessing his home computer. The City i

    informed and believes that Petitioner has since retrieved the personal property seized by the

    Police pursuant to the search warrant, and his home computer, during the pendency of thi

    action. The City further responds that the remaining allegations in Paragraph 15 constitute lega

    argument or legal conclusion and the City is not required to admit or deny the same

    -6-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183 7v3/l 02910-0006

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    STRADLING

    YOCCA

    CARLSON

    RAUTH

    LAWYERS

    NEWPORT BEACH

    Notwithstanding, to the extent the remaining allegations constitute factual averments, the Cit

    denies the same.

    16. Answering Paragraph

    16

    of

    the Amended Complaint, the City admits that Petitione

    is 62 years

    of

    age. The City admits that employees of the City

    of

    Carmel by-the-Sea over the ag

    of 40 years old have been terminated since March

    1

    2013. The City denies that ... at least seve

    long-term employees over the age

    of

    40 years who have been terminated, placed on involuntar

    leave

    of

    absence pending an investigation

    of

    allegations

    of

    misconduct, placed under disciplinar

    investigation by the City

    of

    Carmel or forced to resign since on or about March

    1

    2013. Th

    City denies that the City Administrator and other agents

    of

    the City

    of

    Carmel have instituted

    pattern and practice of discrimination based on age causing a disparate impact on olde

    employees which is continuing in violation of California law. The City denies that Petitione

    has been subjected to disparate treatment because

    of

    his age. The City is without sufficien

    knowledge or information to form a belief as to the truth

    of

    the allegation that Petitioner ha

    never been convicted

    of

    any crime

    of

    moral turpitude , and on that basis, denies the allegation

    With regard to Petitioner's allegations that a female employee who is more than twenty year

    younger than Petitioner was convicted

    of

    welfare fraud during her employment with the City a

    its Finance Specialist without suffering any discipline, discharge, involuntary leave

    of

    absence o

    investigation of wrongdoing, such allegation is inflammatory and irrelevant

    as

    well

    as

    factuall

    incorrect; the City denies the same. The City admits that in May 16 2014 Petitioner filed

    Complaint

    of

    Discrimination with the California Department

    of

    Fair Employment and Housin

    against the City

    of

    Cmmel-by-the-Sea and certain individuals. The City further responds that th

    remaining allegations

    of

    Paragraph 16 constitute legal argument or legal conclusions and th

    City is not required

    to

    admit or deny the same. Notwithstanding, to the extent the remaining

    allegations constitute factual averments, the City denies the same.

    17. Answering Paragraph 17

    of

    the Amended Complaint, the City admits that on o

    about December 4 2013 Petitioner submitted a Notice

    of

    Government Claim to the City Clerk

    o

    -7-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183 7v3/l 02910-0006

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    STRADLING YOCCA

    LAWYERS

    NEWPORT BEACH

    the City of Cannel-by-the-Sea. The City admits that on January

    9

    2014 the City rejected

    Petitioner s Government Claim. The City further responds that the remaining allegations o

    Paragraph 17 constitute legal argument or legal conclusions and the City is not required to admi

    or deny the same. Notwithstanding, to the extent the remaining allegations constitute factual

    averments, the City denies the same.

    18. Answering Paragraph 18 of the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 18 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph

    18 contains

    factual allegations, the City denies the same.

    FIRST

    CAUSE

    OF ACTION

    Petition

    for

    Writ of

    Mandamus:

    Performance of Ministerial Duty CCP Section 1085)

    (Against AU Respondents/Defendants

    their

    Official Capacities)

    19. Answering Paragraph 19

    of

    the Amended Complaint, the City incorporates by

    reference each and every response in paragraphs 1 through 18 as though fully set fmih herein.

    20. Answering Paragraph 20

    of

    the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 20 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 20 contains

    factual allegations, the City is without sufficient knowledge or information to form a belief as to

    the truth of such allegations and on that basis denies the same.

    21. Answering Paragraph 21

    of

    the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 18 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph

    21

    contains

    factual allegations, the City denies the same.

    -8-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183 7v3/l 02910-0006

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    STRADLING YOCCA

    CARLSON RAUTH

    LAWYERS

    NEWPORT BEACH

    22. Answering Paragraph 22 of the Amended Complaint, the City admits that on June 5

    2013 agents

    of

    the City

    of

    Cmmel placed, and now continue to maintain, Petitioner on paid

    administrative leave pending an investigation that remains ongoing. The City denies that the City

    is without good cause, without investigation and without any evidence

    of

    grounds to believe

    that he is guilty

    of

    conduct which warrants disciplinary action. The City further respond tha

    the remaining allegations of Paragraph 22 constitute legal argument or legal conclusion and the

    City is not required to admit or deny the same. Notwithstanding, to the extent the remaining

    allegations constitute factual averments, the City denies the same.

    23. Answering Paragraph 23

    of

    the Amended Complaint, the City responds that each

    and every allegation

    of

    Paragraph

    23

    constitutes legal argument or legal conclusion and the City

    is not required to admit or deny the same. Notwithstanding, to the extent Paragraph 23 contain

    factual allegations, the City denies the same.

    24. Answering Paragraph 24 of the Amended Complaint, the City admits tha

    Respondents/Defendants have refused, and continued to refuse, to permit him to perform hi

    duties as Information Systems Network Manager for the City

    of

    Carmel. The City denies tha

    Respondents/Defendants have refused, and continued to refuse, to reinstate Petitioner/Plaintiff

    as Petitioner remains employed by the City. The City further responds that the remainin

    allegations

    of

    Paragraph 24 constitute legal argument or legal conclusion and the City is no

    required to admit or deny the same. Notwithstanding, to the extent the remaining allegation

    constitute factual averments, the City denies the same.

    25. Answering Paragraph 25

    of

    the Amended Complaint, the City responds that th

    allegations set f01ih therein constitute legal argument or legal conclusion and the City is no

    required to admit or deny the same. To the extent Paragraph

    25

    contains factual allegations, th

    City denies the same.

    -9-

    ANSWER

    TO

    AMENDED PETITION AND COMPLAINT

    DOCSOC/168183

    7v3 l

    02910-0006

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    STRADLING YOCCA

    LAWYERS

    NEWPORT

    BE. \CH

    26. Answering Paragraph 26 of the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 26 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 26 contain

    factual allegations, the City denies the same.

    SECOND CAUSE OF ACTION

    Petition For Writ of Mandate: Abuse

    of

    Discretion

    (Against All Respondents/Defendants in their Official Capacities)

    27. Answering Paragraph 27 of the Amended Complaint, the City incorporates by

    reference each and every response in paragraphs 1 through 26

    as

    though fully set forth herein.

    28. Answering Paragraph 28 of the Amended Complaint, The City responds that the

    allegations set forth in Paragraph 28 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 28 contain

    factual allegations, the City denies the same.

    THIRD

    CAUSE

    OF ACTION

    Breach of

    Written Contract

    of Employment

    (Against Respondent/Defendant

    Employer

    Only)

    29. Answering Paragraph 29

    of

    the Amended Complaint, the City incorporates by

    reference each and every response in paragraphs 1 through 28 as though fully set forth herein.

    30. Answering Paragraph 30 of the Amended Complaint, the City responds that the City

    is without sufficient knowledge or infonnation to form a belief as to the truth of the allegation

    that Petitioner has not engaged in any such conduct, nor has he been charged or convicted

    o

    any crime ... . The City admits that Petitioner has not been charged or convicted

    of

    any crime

    As for the allegation that Petitioner has not engaged in any such conduct, the City respond

    that the City is without sufficient knowledge or information to form a belief

    as

    to the truth

    of

    the

    -10-

    ANSWER TO AMENDED PETITION AND COMPLAINT

    DOCSOC/168183 7v3/l 02910-0006

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    STRADLING YOCCA

    CARLSON RAUTH

    LAWYCRS

    NEWPORT BEACH

    allegation as Petitioner's conduct remains under investigation as of the date of this Answer. Th

    City denies each and every other allegation contained in Paragraph 30

    31. Answering Paragraph

    31 of

    the Amended Complaint, the City denies each and every

    allegation contained therein.

    32. Answering Paragraph 32

    of

    the Amended Complaint, the City responds that th

    allegations set forth in Paragraph 32 constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 26 contain

    factual allegations, the City denies the same.

    FOURTH CAUSE OF ACTION

    Defamation

    (Against All Respondents/Defendants)

    33. Answering Paragraph 33

    of

    the Amended Complaint, the City incorporates by

    reference each and every response in paragraphs 1 through 32

    as

    though fully set forth herein.

    34. Answering Paragraph 34

    of

    the Amended Complaint, the City responds that the City

    without sufficient knowledge or information to form a belief as to the truth

    of

    the allegation tha

    The City caused excessive and unsolicited internal and external publications

    of

    defamation

    o

    and concerning Petitioner/Plaintiff to third persons and to the community and on that basi

    denies the same. The City denies each and every remaining allegation contained in Paragrap

    34.

    35. Answering Paragraph 35

    of

    the Amended Complaint, the allegations are uncertain

    and general, and on that basis the City is without sufficient knowledge or inf01mation to form a

    belief as to the truth

    of

    each and every allegation contained therein, and on that basis denies the

    same.

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    36. Answering Paragraph 36

    of

    the Amended Complaint the allegations are uncertain

    and general and on that basis the City is without sufficient knowledge or information to form

    belief as to the truth

    of

    each and every allegation contained therein and on that basis denies the

    same.

    37. Answering Paragraph 37 of the Amended Complaint the City responds that the

    allegations set forth

    in

    Paragraph 37 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding to the extent Paragraph 37 contain

    factual allegations the City responds that the allegations are uncertain and general and on tha

    basis the City is without sufficient knowledge or information to form a belief

    as

    to the truth

    o

    the allegations and on that basis denies the same.

    38. Answering Paragraph 38 of the Amended Complaint the City responds that the

    allegations set forth in Paragraph 3 8 constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding to the extent Paragraph 38 contains

    factual allegations the City responds that the allegations are uncertain and general and on tha

    basis is without sufficient knowledge or information to form a belief

    as

    to the truth

    of

    the

    allegations and on that basis denies each and every allegation therein.

    39. Answering Paragraph 39 of the Amended Complaint the allegations are uncertain

    and general and on that basis the City is without sufficient knowledge or information to form a

    belief as to the truth

    of

    each and every allegation contained therein and on that basis denies the

    same.

    40. Answering Paragraph 40

    of

    the Amended Complaint the allegations are uncertain

    and general and on that basis the City is without sufficient knowledge or information to form a

    belief as to the truth

    of

    each and every allegation contained therein and on that basis denies the

    same.

    -12-

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    41. Answering Paragraph 41

    of

    the Amended Complaint the City responds that th

    allegations set forth in Paragraph 41 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding to the extent Paragraph 41 contain

    factual allegations the City responds that the allegations are uncertain and general and on tha

    basis is without sufficient knowledge or information to form a belief as to the truth

    of

    th

    allegations and on that basis denies each and every allegation therein.

    42. Answering Paragraph 42 of the Amended Complaint the City responds that th

    allegations set forth in Paragraph 42 constitute legal argument or legal conclusion and the City is

    not required to admit or deny the same. Notwithstanding to the extent Paragraph 42 contain

    factual allegations the City responds that the allegations are uncertain and general and on tha

    basis the City is without sufficient knowledge or information to form a belief as to the truth

    o

    the allegations and on that basis denies each and every allegation therein.

    43. Answering Paragraph 43 of the Amended Complaint the City responds that th

    allegations set forth in Paragraph 43 constitute legal argument or legal conclusion and the City is

    not required

    to

    admit or deny the same. Notwithstanding to the extent Paragraph

    43

    contain

    factual allegations the City denies each and every allegation therein.

    44. Answering Paragraph 44

    of

    the Amended Complaint the City responds that th

    allegations set forth in Paragraph 44 constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding to the extent Paragraph 43 contain

    factual allegations the City denies each and every allegation therein.

    -13-

    ANSWER TO AMENDED PETITION AND COMPLAINT

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    Intentional

    (Against

    of

    Emotional Distress

    Respondents/Defendants)

    45. Answering Paragraph 45 of the Amended Complaint, the City incorporates b

    reference each and every response in paragraphs 1 through 44 as though fully set forth herein.

    46. Answering Paragraph 46 of the Amended Complaint, the City admits that on o

    about June 5 2013 agents of the City, including Ms. Paul, entered Petitioner s home pursuant to

    a search wanant. The City further responds that the remaining allegations set forth in Paragrap

    46 constitute legal argument or legal conclusion and the City is not required to admit or deny th

    same. Notwithstanding, to the extent the remaining allegations constitute factual averments, th

    City denies the same.

    4

    7.

    Answering paragraph 4 7 of the Amended Complaint, the City denies each and ever

    allegation therein.

    48. Answering Paragraph 48 of the Amended Complaint, the City responds that th

    allegations set forth in Paragraph

    48

    constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph

    48

    contain

    factual allegations, the City is without sufficient knowledge or information to form a belief as to

    the truth of the allegations and on that basis denies each and every allegation therein.

    SIXTH

    CAUSE OF CTION

    Negligent Infliction of Emotional Distress

    (Against AU Respondents/Defendants)

    49. Answering Paragraph 49 of the Amended Complaint, the City incorporates b

    reference each and every response in paragraphs 1 through 48 as though fully set forth herein.

    -14-

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    50. Answering Paragraph 50

    of

    the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 50 constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph

    5

    contain

    factual allegations, the City denies each and every allegation therein.

    51. Answering Paragraph 51 of the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 51 constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 51 contain

    factual allegations, the City denies each and every allegation therein.

    SEVENTH

    CAUSE OF

    ACTION

    Declaratory Relief

    Against All Respondents/Defendants their Official Capacities)

    52. Answering Paragraph 52 of the Amended Complaint, the City incorporates by

    reference each and every response in paragraphs 1 through

    51

    as though fully set fmih herein.

    53. Answering Paragraph 53 of the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 53 constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 53 contain

    factual allegations, the City denies each and every allegation therein.

    54. Answering Paragraph 54

    of

    the Amended Complaint, the City responds that the

    allegations set forth in Paragraph 54 constitute legal argument or legal conclusion and the City i

    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 54 contain

    factual allegations, the City denies each and every allegation therein.

    55. Answering Paragraph

    55 of the Amended Complaint, the City responds that the

    allegations set fmih in Paragraph

    55

    constitute legal argument or legal conclusion and the City i

    -15-

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    not required to admit or deny the same. Notwithstanding, to the extent Paragraph 55 contain

    factual allegations, the City denies each and every allegation therein.

    PR YER

    FOR

    RELIEF

    The City denies each and every allegation and request for relief, including all subparts, set

    forth in Petitioner's PRAYER FOR RELIEF.

    FFIRM TIVE DEFENSES

    FIRST

    FFIRM TIVE

    DEFENSE

    Failure to State a laim

    As a first and separate affirmative defense, the City is informed and believes and on tha

    basis alleges that the Amended Complaint and all

    of

    the purported causes

    of

    action therein ar

    barred in whole or in part, by the failure to state a claim upon which relief may be granted.

    SECOND FFIRM TIVE DEFENSE

    Standing

    As a second and separate affirmative defense, the City alleges that Petitioner lack

    standing to bring his Amended Complaint and all

    of

    the purported causes

    of

    action therein.

    THIRD FFIRM TIVE DEFENSE

    Waiver

    As a third and separate affirmative defense, the City alleges that the Amended Complain

    and all the purported causes

    of

    action therein are barred, in whole or in part, by the doctrine

    o

    wmver.

    -16-

    ANSWER

    TO

    AMENDED PETITION AND COMPLAINT

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    BEACH

    FOURTH

    AFFIRMATIVE

    DEFENSE

    As a fourth and separate affirmative defense, the City alleges that all

    of

    Petitioner

    purported causes

    of

    action, and each

    of

    them, are not ripe for adjudication.

    FIFTH

    AFFIRMATIVE

    DEFENSE

    Justification

    nd

    Privilege

    As a fifth and separate affirmative defense, the City alleges that the City s actions

    respecting the subject matters in the Amended Complaint and all the purported causes

    of

    action

    therein were undertaken in good faith, with the absence

    of

    discriminatory and/or malicious inten

    to injure Petitioner, and constitute lawful, proper and justified means to further the purpose

    o

    engaging in and continuing the City s affairs.

    SIXTH AFFIRMATIVE DEFENSE

    onformance with Statutes

    nd

    Regulations

    As a sixth and separate affirmative defense, the City alleges that to the extent any

    of

    the

    City s activities

    as

    alleged in the Amended Complaint and all the purpmied causes

    of

    action

    therein were pursuant to state or local law or govemment regulations, Petitioner s claims mus

    fail in that such activities were authorized, appropriate or permitted and therefore cannot form

    the basis

    of

    any liability.

    17

    ANSWER TO AMENDED PETITION AND COMPLAINT

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    SEVENTH AFFIRMATIVE

    DEFENSE

    to

    As seventh and separate affirmative defense the City is informed and believes and on

    that basis alleges that the Amended Complaint and all the purported causes

    of

    action therein are

    barred in whole or in part by the failure to exhaust administrative remedies.

    EIGHTH

    AFFIRMATIVE DEFENSE

    No Protectable Property Interest

    As an eighth and separate affirmative defense the City alleges that the Amended

    Complaint and all the purported causes

    of

    action therein are barred because the City has no

    interfered with any protectable prope1iy interest alleged in the Amended Complaint.

    NINTH AFFIRMATIVE

    DEFENSE

    No amages

    As an ninth and separate affirmative defense the City alleges that the Amended

    Complaint and all the purported causes

    of

    action therein are barred because Petitioner has failed

    to show any cognizable damages.

    TENTH

    AFFIRMATIVE

    DEFENSE

    Unclean Hands

    As a tenth and separate affirmative defense the City alleges that the Amended Complain

    and all the purported causes

    of

    action therein are barred by the doctrine

    of

    unclean hands.

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    ELEVENTH FFIRM TIVE DEFENSE

    As an eleventh and separate affirmative defense, the City alleges that the Amended

    Complaint and all the purported causes

    of

    action therein are baned because the relief sough

    would improperly interfere with the City s discretionary authority.

    TWELFTH

    FFIRM TIVE

    DEFENSE

    Employment

    t

    Will

    As a twelfth and separate affirmative defense, the City alleges that all

    of

    Petitioner s

    purpotied causes

    of

    action are barred, in whole or in part, on the basis that at all times relevant

    hereto, Petitioner was an at-will employee

    of

    the City.

    THIRTEENTH FFIRM TIVE DEFENSE

    Other efenses Reserved

    As a thirteenth and separate affirmative defense, the City alleges that all

    of

    Petitioner s

    purported causes

    of

    action are barred, in whole or in part, on the basis

    of

    other facts and

    allegations which are either not yet known or whose materiality or relevance are not yet fully

    appreciated, and the City reserves the right to amend this answer and to assert additiona

    defenses.

    19

    ANSWER

    TO

    AMENDED PETITION AND COMPLAINT

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    PR YER FOR

    RELIEF

    WHEREFORE, the City prays as follows:

    1.

    That Petitioner take nothing by way

    ofhis

    Amended Complaint;

    2. That this Comi deny every item of relief requested in the Amended Complaint;

    3. That judgment be entered in favor of the City;

    4. That the City recover attorneys fees, as applicable;

    5.

    That the City recover costs of suit incurred herein; and

    6. That the City receive such other and further relief as the Court deems just and proper.

    DATED: October

    7

    2014

    STRADLING YOCCA CARLSON RAUTH

    A Professional Corporation

    By:

    Attorneys for Respondent/Defendant

    City of Carmel-by-the

    Sea

    -20-

    NSWERTO AMENDED PETITION AND COMPLAINT

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    1 0

    STRADLING YOCCA

    CARLSON

    RAUTH

    LAWYERS

    NE\\ PORT

    BEACH

    PROOF

    OF SERVICE

    I am a resident of the State

    of

    Califomia, over the age

    of

    eighteen years, and not a party

    to the within action. My business address is 660 Newport Center Drive, Suite 1600, Newpmi

    Beach, Califomia 92660-6422. On October

    7

    2014, I served the within documents:

    ANSWER OF RESPONDENT/DEFENDANT CITY OF CARMEL-BY-THE-SEA TO

    PLAINTIFF S

    AMENDED

    VERIFIED PETITION

    AND

    COMPLAINT

    D

    D

    BY FACSIMILE: by transmitting via facsimile the document(s) listed

    above to the facsimile number(s) set forth below. I certify that said

    transmission was completed without error and that a report was generated

    by facsimile machine (949) 725-4100 which confirms said transmission.

    BY

    EMAIL: by transmitting via electronic mail the document(s) listed

    above to the email address(es) set forth below.

    BY

    OVERNIGHT

    DELIVERY: by placing the document(s) listed

    above in a sealed envelope with postage thereon fully prepaid, and

    delivering via overnight courier and addressed as set forth below,

    respectively.

    BY MAIL: by placing the document(s) listed above in a sealed envelope

    with postage thereon fully prepaid, in the United States Mail in Newport

    Beach, California, addressed as set forth below.

    BY PERSONAL

    DELIVERY:

    by causing personal delivery by

    Nationwide Legal, Inc.

    of

    the document(s) listed above to the person(s) at

    the address(es) set forth below.

    PLEASE SEE

    ATTACHED

    SERVICE

    LIST

    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 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 on day after the date

    of deposit for mailing in affidavit.

    I declare under penalty of perjury under the laws of the State of Califomia that the above

    is true and conect.

    Executed on October 7 2014 at Newport Beach, California.

    PROOF

    OF

    SERVICE

    DOCSOC/168183 7v3/l 02910-0006

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    Case1Vo A1128062

    3

    Michelle A Welsh

    Attorneyfor Plaintiff/Petitioner

    4

    Stoner, Welsh Schmidt

    Steven

    fclnchak

    413 Forest A venue

    5

    Pacific Grove, CA 93950-4201

    6

    Telephone: 831) 373-1993

    Facsimile: 831) 373-1492

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