BART answer to complaint

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DALE L. ALLEN, JR., # 145279 LINDA MEYER, # 118190 DIRK D. LARSEN, # 246028 LOW, BALL & LYNCH 505 Montgomery Street, 7th Floor San Francisco, California 94111-2584 Telephone (415) 981-6630 Facsimile (415) 982-1634 Attorneys for Defendants BAY AREA RAPID TRANSIT DISTRICT and GARY GEE in his official capacity as CHIEF OF POLICE for BAY AREA RAPID TRANSIT DISTRICT Email: dallen@lowball.com Email: lmeyer@lowball.com Email: dlarsen@lowball.com UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

WANDA JOHNSON, individually and as personal ) representative of the ESTATE of OSCAR J. GRANT ) III, the ESTATE OF OSCAR J. GRANT III, ) SOPHINA MESA as Guardian ad Litem of minor, T.G. ) ) Plaintiffs, ) ) vs. ) ) BAY AREA RAPID TRANSIT DISTRICT; GARY ) GEE, in his official capacity as CHIEF OF POLICE for ) BAY AREA RAPID TRANSIT DISTRICT, ) JOHANNES MEHSERLE individually and in his official ) capacity as a police officer for BART; ANTHONY ) PIRONE, individually and in his official capacity as a ) police officer for BART; MARYSOL DOMENICI, ) individually and in her official capacity as a police officer ) for BART; and DOES 1-50, inclusive, ) ) Defendants. ) __________________________________________ ) ) )

CASE NO.: C09-00901 MHP DEFENDANT BAY AREA RAPID TRANSIT DISTRICT and GARY GEE in his official capacity as CHIEF OF POLICE for BAY AREA RAPID TRANSIT DISTRICT’S ANSWER TO VERIFIED COMPLAINT DEMAND FOR JURY TRIAL

Come now Defendants BAY AREA RAPID TRANSIT DISTRICT and GARY GEE in his official capacity as CHIEF OF POLICE for BAY AREA RAPID TRANSIT DISTRICT, and in answer to complaint on file herein admit, and allege as follows:

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PARTIES 1. In answer to the allegations of paragraph 1 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 2. In answer to the allegations of paragraph 2 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 3. In answer to the allegations of paragraph 3 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 4. In answer to the allegations of paragraph 4 of the complaint, admitted. 5. In answer to the allegations of paragraph 5 of the complaint, admitted. 6. In answer to the allegations of paragraph 6 of the complaint, admitted. 7. In answer to the allegations of paragraph 7 of the complaint, admitted. 8. In answer to the allegations of paragraph 8 of the complaint, admitted. 9. In answer to the allegations of paragraph 9 of the complaint, these defendants are without sufficient -2DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 10. In answer to the allegations of paragraph 10 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 11. In answer to the allegations of paragraph 11 of the complaint, admitted. STATEMENT OF FACTS 12. In answer to the allegations of paragraph 12 of the complaint, admitted. 13. In answer to the allegations of the 1st sentence of paragraph 13 of the complaint, admitted. In answer to the allegations of paragraph 13 of the complaint, 2nd sentence, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. In answer to the allegations of paragraph 13 of the complaint, 3rd sentence, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. In answer to the allegations of paragraph 13 of the complaint, 4th sentence beginning with ‘Unbeknownst” through “passengers,”, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. -3DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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As to the remainder of the 4th sentence of paragraph 13 of the complaint, admitted. In answer to the allegations of the 5th sentence of paragraph 13 of the complaint, denied. 14. In answer to the allegations of paragraph 14 of the complaint, admitted. 15. In answer to the allegations of the 1st sentence of paragraph 15 of the complaint, beginning with “While” and ending at . . . “activity,”, denied. In answer to the remaining allegations of the 1st sentence of paragraph 15 of the complaint, admitted. In answer to the allegations of the 2nd sentence of paragraph 15 of the complaint, admitted. In answer to the allegations of the 3rd sentence of paragraph 15 of the complaint, denied. In answer to the allegations of the 4th sentence of paragraph 15 of the complaint, beginning with “Officer Pirone” . . . and ending at “him”, denied. In answer to the remaining allegations of the 4th sentence of paragraph 15 of the complaint, admitted. In answer to the allegations of the 5th sentence of paragraph 15 of the complaint, denied. In answer to the allegations of the 6th sentence of paragraph 15 of the complaint, denied. In answer to the allegations of the 7th sentence of paragraph 15 of the complaint, denied. 16. In answer to the allegations of the paragraph 16 of the complaint, denied. 17. In answer to the allegations of the of paragraph 17 of the complaint, denied. 18. In answer to the allegations of the 1st sentence of paragraph 18 of the complaint, denied. In answer to the allegations of the 2nd sentence of paragraph 18 of the complaint, beginning with “Officer Mehserle,”, . . . and ending at “back”, admitted. As to the allegations contained in the remainder of the second sentence of paragraph 18, Mr. Mehserle has invoked his Constitutional right under the 5th Amendment to not make any statement concerning the reasons for firing his weapon so these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that -4DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. In answer to the allegations of the 3rd sentence of paragraph 18 of the complaint, beginning with “Mr. Grant was unarmed...”; admitted. In answer to the remaining allegations of the 3rd sentence of paragraph 18 of the complaint, Mr. Mehserle has invoked his Constitutional right under the 5th Amendment to not make any statement concerning the reasons for firing his weapon so these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. In answer to the allegations of the 4th sentence of paragraph 18 of the complaint, admitted. 19. In answer to the allegations of the 1st sentence of paragraph 19 of the complaint beginning with “After” . . . and ending at “handcuffed”, admitted. In answer to the remaining allegations of the 1st sentence of paragraph 19 of the complaint, denied. In answer to the allegations of the 2nd sentence of paragraph 19 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. In answer to the allegations of the 3rd sentence of paragraph 19, denied. In answer to the allegations of the 4th sentence of paragraph 19, denied. 20. In answer to the allegations of the 1st sentence of paragraph 20 of the complaint, denied; In answer to the allegations of the 2nd sentence of paragraph 20 of the complaint, denied; In answer to the allegations of the 3rd sentence of paragraph 20 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. In answer to the allegations of the 4rh sentence of paragraph 20 of the complaint, denied. -5DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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In answer to the allegations of the 5th sentence of paragraph 20 of the complaint, admitted. 21. In answer to the allegations of paragraph 21 of the complaint, denied. 22. In answer to the allegations of paragraph 22 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 23. In answer to the allegations of the 1st sentence of paragraph 23 of the complaint, admitted. In answer to the allegations of the 2nd sentence of paragraph 23 of the complaint, denied. In answer to the allegations of subsection 23(a) of paragraph 23 of the complaint, denied. In answer to the allegations of subsection 23(b) of paragraph 23 of the complaint, denied. In answer to the allegations of subsection 23(c) of paragraph 23 of the complaint, denied. 24. In answer to the allegations of paragraph 24 of the complaint, denied.

DAMAGES 25. In answer to allegations of paragraph 25 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. /// 26. In answer to the allegations of paragraph 26 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and -6DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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singular, the allegations contained therein. 27. In answer to the allegations of paragraph 27 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 28. In answer to the allegations of paragraph 28 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 29. In answer to the allegations of paragraph 29 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 30. In answer to the allegations of paragraph 30 of the complaint, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. FIRST CAUSE OF ACTION Violation of Fourth Amendment of the United States Constitution (42 U.S.C. §1983) 31.

25 In answer to allegations of paragraph 31 of the First Cause of Action, these defendants are without 26 sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, 27 and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, 28 -7DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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all and singular, the allegations contained therein. SECOND CAUSE OF ACTION Violation of Fourth Amendment of the United States Constitution (42 U.S.C. §1983) 32. In answer to allegations of paragraph 32 of the Second Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 33. In answer to allegations of paragraph 33 of the Second Cause of Action, denied. THIRD CAUSE OF ACTION Violation of Fourth Amendment of the United States Constitution (42 U.S.C. §1983) 34. In answer to the allegations of paragraph 34 of the Third Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 35. In answer to the allegation of paragraph 35 of the Third Cause of Action, denied. FOURTH CAUSE OF ACTION Violation of Fourth Amendment of the United States Constitution (42 U.S.C. §1983) 36.

23 In answer to the allegations of paragraph 36 of the Fourth Cause of Action, these defendants are 24 without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said 25 paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each 26 and every, all and singular, the allegations contained therein. 27 37. 28 -8DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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In answer to the allegations of paragraph 37 of the Fourth Cause of Action, denied. FIFTH CAUSE OF ACTION (Deliberate Indifference to Decedent’s Medical Needs) (42 U.S.C. §1983) 38. In answer to the allegations of paragraph 38 of the Fifth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 39. In answer to the allegations of the 1st sentence of paragraph 39 of the Fifth Cause of Action, admitted. In answer to the allegations of the 2nd sentence of paragraph 39 of the Fifth Cause of Action, denied. 40. In answer to the allegations of paragraph 40 of the Fifth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. SIXTH CAUSE OF ACTION (Conspiracy to Violate Decedent’s Civil Rights) (42 U.S.C. §1985) 41. In answer to the allegations of paragraph 41 of the Sixth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. /// 42. In answer to the allegations of paragraph 42 of the Sixth Cause of Action, denied. 43. In answer to the allegations of the 1st sentence of paragraph 43 of the Sixth Cause of Action, denied. -9DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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In answer to the allegations of the 2nd sentence of paragraph 43 of the Sixth Cause of Action, defendants have no information or belief that defendants violated decedent’s civil rights, and on that basis deny the allegations as unfounded. SEVENTH CAUSE OF ACTION (Wrongful Death) (42 U.S.C. §1983) 44. In answer to the allegations of paragraph 44 of the Seventh Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 45. In answer to the allegations of the 1st sentence of paragraph 45 of the Seventh Cause of Action, beginning “Defendants acted under color of law by shooting and killing decedent . . .” admitted; As to the allegations contained in the remainder of paragraph 45 of the Seventh Cause of Action, Mr. Mehserle has invoked his Constitutional right under the 5th Amendment to not make any statement concerning the reasons for firing his weapon, and for that reason these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. EIGHTH CAUSE OF ACTION (Violations of Plaintiffs’ Civil Rights to Familial Relationships) (41 U.S.C. §1983) 46. In answer to the allegations of paragraph 46 of the Eighth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 47. In answer to the allegations of paragraph 47 of the Eighth Cause of Action, denied. -10DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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NINTH CAUSE OF ACTION (Monell) (41 U.S.C. §1983) 48. In answer to the allegations of paragraph 48 of Ninth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 49. In answer to the allegations of paragraph 49 of the Ninth Cause of Action, denied. 50. In answer to the allegations of paragraph 50 of the Ninth Cause of Action, denied. 51. In answer to the allegations of paragraph 51 of the Ninth Cause of Action, denied. 52. In answer to the allegations of paragraph 52, and subsections (a) through (e) of the Ninth Cause of Action, denied. 53. In answer to the allegations of paragraph 53 of the Ninth Cause of Action, denied. TENTH CAUSE OF ACTION (Survival Action: Violation of decedent’s civil rights) (41 U.S.C. §1983) 54. In answer to the allegations of paragraph 54 of the Tenth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 55. In answer to the allegations of paragraph 55 of the Tenth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, -11DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 56. In answer to the allegations of paragraph 56 of the Tenth Cause of Action, admitted. 57. In answer to the allegations of paragraph 57 of the Tenth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. ELEVENTH CAUSE OF ACTION (Wrongful Death - Negligence) (C.C.P. §377.60 and 377.61) 58. In answer to the allegations of paragraph 58 of the Eleventh Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 59. In answer to the allegations of paragraph 59 of the Eleventh Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 60. In answer to the allegations of paragraph 60 of the Eleventh Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 61. In answer to the allegations of paragraph 61 of the Eleventh Cause of Action, these defendants are -12DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 62. In answer to the allegations of paragraph 62 of the Eleventh Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. TWELFTH CAUSE OF ACTION (Violation of Decedent’s Right To Enjoy Civil Rights) (Violation of CALIFORNIA CIVIL CODE §52.1) 63. In answer to the allegations of paragraph 63 of the Twelfth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 64. In answer to the allegations of paragraph 64 of the Twelfth Cause of Action, denied. THIRTEENTH CAUSE OF ACTION (Violation of Decedent’s State Statutory Rights) (Violation of CALIFORNIA CIVIL CODE §51.7) 65. In answer to the allegations of paragraph 65 of the Thirteenth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 66. In answer to the allegations of the 1st sentence of paragraph 66 of the Thirteenth Cause of Action, denied. In answer to the allegations of the 2nd sentence of paragraph 66 of the Thirteenth Cause of Action, -13DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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admitted. In answer to the allegations of the 3rd sentence of paragraph 66 of the Thirteenth Cause of Action, denied. 67. In answer to the allegations of paragraph 67 of the Thirteenth Cause of Action, denied. 68. In answer to the allegations of paragraph 68 of the Thirteenth Cause of Action, denied. FOURTEENTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress) 69.

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In answer to the allegations of paragraph 69 of the fourteenth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said

12 paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each 13 and every, all and singular, the allegations contained therein. 14 70. 15 In answer to the allegations of paragraph 70 of the Fourteenth Cause of Action, denied. 16 71. 17 In answer to the allegations of paragraph 71 of the Fourteenth Cause of Action, denied. 18 19 20 21 22 23 24 25 26 27 28 FIFTEENTH CAUSE OF ACTION (Assault and Battery) 72. In answer to the allegation of paragraph 72 of the Fifteenth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each and every, all and singular, the allegations contained therein. 73. In answer to the allegation of paragraph 73 of the Fifteenth Cause of Action, these defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and for that reason and basing their denial on that ground, deny both generally and specifically, each -14DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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and every, all and singular, the allegations contained therein. FIRST AFFIRMATIVE DEFENSE AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: That plaintiff's decedent assumed the risk of any injuries and/or damages resulting from the matters set forth in said complaint, and that said assumption of risk by decedent was a cause of the injuries and/or damages alleged by plaintiffs, if any there were. SECOND AFFIRMATIVE DEFENSE AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: That plaintiffs’ decedent, Oscar Grant, was himself negligent and careless in and about the matters and events set forth in the complaint, and that said negligence contributed to his alleged injuries and/or damages. The verdict of the jury in favor of plaintiffs, if any, which may be rendered in this case must therefore be reduced by the percentage that the negligence of plaintiffs’ decedent, Oscar Grant, contributed to the accident and injuries complained of, if any there were. THIRD AFFIRMATIVE DEFENSE AS AND FOR A THIRD, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: That the complaint does not state facts sufficient to constitute a cause of action against these answering defendants. FOURTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: Decedent Oscar Grant was guilty of willful misconduct and wanton and reckless behavior in and about the matters and events set forth in said complaint; and that said willful misconduct and wanton and reckless behavior contributed to the injuries and damages alleged, if any there were. FIFTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: The decedent Oscar Grant willfully and wrongfully provoked the altercation in which he was involved, and said provocation of decedent Oscar Grant was a cause of the injuries and damages allegedly sustained. SIXTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: -15DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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That decedent Oscar Grant willfully, wrongfully, unlawfully, and without just cause or provocation made an assault and battery against and upon the person of Anthony Pirone; defendants thereupon necessarily defended themselves and such acts of force complained of were committed in the necessary protection of defendants’ body and person. Prior to the time when defendants are alleged to have committed the acts complained of, decedent Oscar Grant willfully, wrongfully, and unlawfully made an assault upon defendants and would have beaten, bruised, and ill-treated them if defendants had not immediately defended themselves against said assault; and in so doing, defendants necessarily and unavoidably came in contact with decedent Oscar Grant and threatened him, but nor more than was necessary for said defense. Any damages or injuries suffered by plaintiffs were occasioned by decedent Oscar Grant’s own wrongful acts; and the acts of defendants mentioned above are the same acts of which plaintiffs complain. SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: Should plaintiffs recover non-economic damages against any defendant, the liability for non-economic damages is limited to the degree of fault and several liability of said defendant pursuant to Civil Code section 1431.2 and a separate, several judgment shall be rendered against said defendant based upon said defendant's degree of fault and several liability. /// EIGHTH AFFIRMATIVE DEFENSE AS AND FOR A EIGHTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: Any and all acts or omissions of Bay Area Rapid Transit District, its agents and employees, which allegedly caused the injury at the time and place set forth were the result of an exercise of discretion vested in them. NINTH AFFIRMATIVE DEFENSE AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: At all times mentioned in the complaint, defendants were public employees of Bay Area Rapid Transit District and if they performed any of the acts or omissions alleged as the basis of the complaint, the acts or -16DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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omissions were the result of the exercise of the discretion vested in them. Defendants are therefore immune from liability. TENTH AFFIRMATIVE DEFENSE AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: As a further, separate, affirmative defense, defendants allege that they are entitled to a set-off of any damages recovered by plaintiffs. ELEVENTH AFFIRMATIVE DEFENSE AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: At all times mentioned in the complaint, defendants are not liable for any of these acts or omissions alleged in the complaint because the complaint only alleges that they are liable based on the acts or omissions of others. TWELFTH AFFIRMATIVE DEFENSE AS AND FOR A TWELFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: At all times mentioned in the complaint, defendants were public employees of Bay Area Rapid Transit District and, as such, are not liable for any of these acts or omissions alleged in the complaint because the complaint only alleges that defendants are liable based on the acts or omissions of others. THIRTEENTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: Any and all mandatory duties imposed upon Bay Area Rapid Transit District, its agents and employees, the failure of which allegedly created the condition complained of, were exercised with reasonable diligence and therefore defendants are not liable pursuant to Government Code § 815.6. FOURTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: Defendant Bay Area Rapid Transit District’s alleged employees mentioned in plaintiffs’ complaint were, -17DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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at all times, duly qualified, appointed and acting police officers of Bay Area Rapid Transit District and peace officers of the State of California and in accordance with the Constitution of the United States and the State of California and the laws of the United States and the laws of the State of California; and at all times mentioned herein, said officers were engaged in the performance of their regularly assigned duties within the scope of their duties as peace officers of Bay Area Rapid Transit District. FIFTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: These answering defendants acted in good faith and with a reasonable belief that the actions were lawful and further did not directly or indirectly perform any acts whatsoever which would constitute a breach of any duty owed to plaintiffs. SIXTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: The acts of these answering defendants were lawful and proper and in all respects were reasonable and legal.

SEVENTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: In this connection probable cause existed to believe that decedent Oscar Grant had committed a public offense and, therefore, probable cause existed to detain and/or arrest him. EIGHTEENTH AFFIRMATIVE DEFENSE AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: At all times relevant to this litigation, decedent Oscar Grant was subject to restraint as was reasonably necessary for his detention and/or arrest. NINETEENTH AFFIRMATIVE DEFENSE -18DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP

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AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: At all times relevant to this litigation, reasonable cause existed to believe that decedent Oscar Grant had committed a public offense and, therefore, reasonable force was used to effect his arrest, to prevent escape or to overcome resistance. TWENTIETH AFFIRMATIVE DEFENSE AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: These answering defendants are immune from liability pursuant to the provisions of §§ 815, 815.2, 818, 820.2, 820.4, 820.6, 820.8, 820.9, 821.6, 844.6, and 845.6 of the Government Code of the State of California. TWENTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE, DEFENDANTS ALLEGE: The facts alleged in the Complaint do not involve any custom, practice, procedure or regulation of defendants, which gives rise to a violation of a constitutional right pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). WHEREFORE, defendants pray that plaintiffs takes nothing by way of the complaint on file herein and that defendants have judgment for their costs, attorneys’ fees and for such other and further relief as the court deems proper.

JURY DEMAND Defendants hereby demand a jury trial in this action. Dated: April 3, 2009.

25 LOW, BALL & LYNCH 26 27 By 28 /s/ Dale L. Allen, Jr. DALE L. ALLEN, JR.

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Attorneys for Defendants BAY AREA RAPID TRANSIT DISTRICT and GARY GEE in his official capacity as CHIEF OF POLICE for BAY AREA RAPID TRANSIT DISTRICT

-20DEFENDANTS BAY AREA RAPID TRANSIT DISTRICT and GARY GEE’S ANSWER TO VERIFIED COMPLAINT J:\1752\SF0208\P-ANSWER.wpd USDC CASE NO. C09-00901 MHP


				
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posted:4/3/2009
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Description: BART answer to complaint in case of Wanda Johnson and estate of Oscar Grant vs. BART, BART Chief Gary Gee, et al