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Eugene P. Ramirez, Esq. (State Bar No. 134865) Timothy J. Kral, Esq. (State Bar No. 200919) MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 15th Floor at 801 Tower 801 South Figueroa Street Los Angeles, CA 90017 Telephone: (213) 624-6900 Facsimile: (213) 624-6999 epr@manningllp.com, tjk@manningllp.com Attorneys for Defendant, JAY PATRICK CICINELLI

(Exempt per Gov. Code 6103)

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE

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FREDERICK RONALD THOMAS, JR., ) Case No.: 30-2012-00581299 individually and as successor-in-interest of KELLY ) JAMES THOMAS, deceased, ) (Assigned for all purposes to the Honorable ) Kirk H Nakamura, Department C8) Plaintiff,) vs. ) ANSWER BY DEFENDANT JAY ) PATRICKCICINELLITOSECOND CITY OF FULLERTON; MICHAEL SELLERS, ) AMENDED COMPLAINT; DEMAND Chief of Police individually and as ) FOR JURY TRIAL a peace officer; PATRICK McKINLEY; MANUEL) ANTHONY RAMOS Badge Number Unknown, ) individually and as a peace officer; JOSEPH ) WOLFE Badge Number Unknown, individually and) as a peace officer; JAY PATRICK CICINELLI ) Complaint Filed: 7-5-12 Badge Number Unknown, individually and as a ) peace officer; KENTON HAMPTON Badge ) Number 133, individually and as a peace officer; ) JAMES BLATNEY Badge Number Unknown, ) individually and as a peace officer; SGT. KEVIN ) CRAIG Badge Number Unknown, individually and ) as a peace officer; and DOES 1-50, inclusive, ) ) Defendants.) -----------------------------------------------------------------------)

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Defendant JAY PATRICK CICINELLI ("Defendant") answers plaintiffs' Second Amended Complaint ("Complaint") as follows:
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Pursuant to Code of Civil Procedure 431.30, Defendant denies, generally and

specifically, each and every allegation in the complaint. Defendant further denies that Plaintiffs have
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been damaged in the sum alleged in the Complaint, or any other sum, or at all.
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FIRST AFFIRMATIVE DEFENSE

2.

The complaint fails to state a cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

3.

At the time and place of the occurrence alleged in the complaint, Plaintiffs' decedent

failed to exercise ordinary care on his own behalf for his own safety. That negligence caused the injury and damage, if any, that Plaintiffs sustained. Consequently, Plaintiffs' right to recover should be diminished by the decedent's proportional share of fault.
THIRD AFFIRMATIVE DEFENSE

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4.

Plaintiffs' cause of action for negligence is barred or their recovery should be diminished

because the alleged damage was caused by the Plaintiffs' decedent's failure to exercise ordinary care on his own behalf for his own safety.
FOURTH AFFIRMATIVE DEFENSE

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5.

At the time and place referred to in the complaint, and before such event, Plaintiffs'

decedent knew, appreciated and understood each and every risk involved in placing himself in the position which he then assumed, and willingly, knowingly and voluntarily assumed each of such risks, including, but not limited to, the risk of suffering personal bodily injury.
FIFTH AFFIRMATIVE DEFENSE

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6.

Plaintiffs have failed to mitigate the damages, if any, which Plaintiffs have sustained,

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and to exercise reasonable care to avoid the consequences of harms, if any, in that, among other things, Plaintiffs have failed to use reasonable diligence in caring for any injuries, failed to use reasonable means to prevent aggravation of any injuries and failed to take reasonable precautions to reduce any injuries and damages.
SIXTH AFFIRMATIVE DEFENSE

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7.

Plaintiffs' cause of action for negligence is barred or Plaintiffs' recovery should be

reduced because any injuries or damages were proximately caused by the negligence and other legal fault of persons or entities other than Defendant. III
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SEVENTH AFFIRMATIVE DEFENSE

8. The contributory negligence of Plaintiffs' decedent was a proximate cause in bringing

about death. The Plaintiffs' recovery against Defendant should be reduced in proportion to the amount of negligence attributable to the decedent.

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EIGHTH AFFIRMATIVE DEFENSE

9. The contributory negligence and carelessness of Plaintiffs' decedent was the sole

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proximate cause in bringing about the decedent's death.

NINTH AFFIRMATIVE DEFENSE

10. The damages or injuries complained of by Plaintiffs, if any, were the result of an

emergency situation, not created by any fault of Defendant, and into which he was suddenly and unexpectedly placed.

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TENTH AFFIRMATIVE DEFENSE

11. Plaintiffs' claim for punitive damages is unconstitutional and invalid in that it violates

the United States Constitution, including, but not limited to, the Due Process Clause, and the Fifth, Sixth and Eighth Amendments.

ELEVENTH AFFIRMATIVE DEFENSE

12. Plaintiffs' claims alleged in the complaint are barred by the applicable statutes of

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limitations, including, but not limited to the provisions of Cal. Code ofCiv. Proc. 335.1,337,337.1, 337.15, 338(a);338(b), 338(c), 338(d), 339, 340(3) and or 343.

TWELFTH AFFIRMATIVE DEFENSE

13. In doing the acts complained of by Plaintiffs, Defendant acted in self-defense and

Defendant used no more force than was reasonably necessary to prevent impending injury to Defendant.

THIRTEENTH AFFIRMATIVE DEFENSE

14. The complaint does not show on its face that the action is one arising under the

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Constitution or laws of California or the United States.

III III
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FOURTEENTH AFFIRMATIVE DEFENSE

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15.

Public entities and employees are immune from liability for injury, whether caused by

the act or omission of the public entity, an employee thereof or any other person, except as expressly provided by statute.
FIFTEENTH AFFIRMATIVE DEFENSE

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The factual circumstances set forth in Plaintiffs' written claim do not correspond with

the facts alleged in Plaintiffs' complaint. The complaint thereby alleges a factual basis for recovery which is not fairly reflected in the written claim.
SIXTEENTH AFFIRMATIVE DEFENSE
17.

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A public entity is not liable for damages awarded under Civil Code section 3294 or other

damages imposed primarily for the sake of example and by way of punishing the Defendant.
SEVENTEENTH AFFIRMATIVE DEFENSE

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18.

The injuries or damages alleged in the complaint, if any, were caused by a person

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resisting arrest, for which Defendant is not liable.

EIGHTEENTH AFFIRMATIVE DEFENSE

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Plaintiffs' recovery is barred because public entities and employees are immune from

liability for any injury caused by the act or omission of another person.
NINETEENTH AFFIRMATIVE DEFENSE

20.

The Plaintiffs' recovery is barred because public entities and employees are immune from

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liability for discharging their mandatory duties with reasonable diligence.

TWENTIETH AFFIRMATIVE DEFENSE

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21.

Plaintiffs' cause of action for assault and battery/excessive force is barred because any

force used by Defendant was privileged as being reasonably necessary for self-defense.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22.

The Plaintiffs' cause of action for assault and battery/excessive force is barred because

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Plaintiffs' decedent consented to all acts of Defendant alleged by Plaintiffs in their complaint to constitute an assault and battery/excessive force.
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TWENTY-SECOND AFFIRMATIVE DEFENSE

23. The Plaintiffs' cause of action for assault and battery/excessive force is barred because

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any force used by Defendant was privileged as necessary to effect the arrest, to prevent an escape and!or to overcome resistance.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. The Plaintiffs' cause of action for assault and battery/excessive force is barred because

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a peace officer making and arrest need not retreat in the face of resistance and cannot be deemed the aggressor or lose their right to self-defense by using force.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. The Plaintiffs' cause of action for assault and battery/excessive force is barred because

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Plaintiffs' decedent freely and voluntarily assumed the risk of any detriment that resulted.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. The Plaintiffs' cause of action for assault and battery/excessive force is barred because

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Plaintiffs' decedent consented to all acts complained of by engaging in mutual combat, resisting or attacking Defendant.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. The Plaintiffs' cause of action for negligence is barred because the injuries alleged were

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caused by an emergency situation, not created by any fault of Defendant and into which Defendant were suddenly and unexpectedly placed.

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TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. The Plaintiffs' recovery is barred because any injury or damage suffered by Plaintiffs

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were caused solely by reason of Plaintiffs' decedent's wrongful acts and conduct and the willful resistance to a peace officer in the discharge the duties of his office.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. The Plaintiffs' cause of action for wrongful death is barred because the injury or death

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of Plaintiffs' decedent occurred during the course of or after the commission of a felony set forth in Civil Code section 847(b) by Plaintiffs' decedent.
///
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TWENTY-NINTH AFFIRMATIVE DEFENSE

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30.

The Plaintiffs' cause of action for wrongful death is barred for failure to join all of the

decedent's heirs as Plaintiffs.

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THIRTIETH AFFIRMATIVE DEFENSE

31. The Plaintiffs' cause of action for wrongful death is barred or Plaintiffs' recovery should

be reduced because the contributory negligence and carelessness of Plaintiffs' decedent was the sole proximate cause in bringing about the decedent's death.

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THIRTY-FIRST AFFIRMATIVE DEFENSE

32. The Plaintiffs' claim for punitive damages is barred because a peace officer is not liable

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for punitive damages absent clear and convincing proof of despicable conduct.

THIRTY-SECOND AFFIRMATIVE DEFENSE

33. The Defendant did not discriminate against Plaintiffs' decedent on account ofhis alleged

or perceived disability or use force on account of his alleged or perceived disability.

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THIRTY-THIRD AFFIRMATIVE DEFENSE

34.
The Defendant is immune from liability because he acted in good faith with an honest

and reasonable beliefthat his actions were necessary and appropriate.

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THIRTY-FOURTH AFFIRMATIVE DEFENSE

35. The Plaintiffs' claim under the Federal Civil Rights Act is barred because there is no

imputed liability for public employees.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

36.
The Defendant is immune from liability under the Federal Civil rights Act because his

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conduct did not violate clearly established rights.

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THIRTY-SIXTH AFFIRMATIVE DEFENSE

37. The Plaintiffs' claims under Civil Code section 52.1 are barred because plaintiffs cannot

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prove any threats, intimidation or coercion beyond the coercion that was inherent in the alleged underlying constitutional violation.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

38. The Plaintiffs' claims under Civil Code section 52.1 are barred because any alleged
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deprivation of civil rights was not without due process oflaw.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

39. The Plaintiffs' claims under Civil Code section 52.1 are barred because the Complaint

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fails to allege facts that go beyond mere tortious conduct and rise to the dignity of a civil rights violation.

THIRTY-NINTH AFFIRMATIVE DEFENSE

40. The Plaintiffs' claims under Civil Code section 52.1 are barred because negligent

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conduct is insufficient to constitute a violation of rights.

FORTIETH AFFIRMATIVE DEFENSE

41. The acts complained of by Plaintiffs were committed in the course of making a lawful

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arrest. In making this arrest, Defendant used only reasonable force.

FORTY-FIRST AFFIRMATIVE DEFENSE

42. Defendant acted within the scope of his discretion within the meaning of Cal. Govt.

Code 820.2 and 815. 2 and in good faith, with due care, and pursuant to applicable rules, regulations, and practices reasonably and in good faith believed to be in accordance with the Constitution and laws of Cali fomi a and the United States, and Defendant is therefore, entitled to qualified immunity.

FORTY-SECOND AFFIRMATIVE DEFENSE

43. Any state law claims are barred by Plaintiffs' failure to comply with the Government Tort

claims presentation requirements, Cal. Govt. Code 900, et seq., including, but not limited to 900, 900.4, 901, 905, 905.2, 910, 911, 911.2, 911.4, 945.4, 945.6, 946.6, 950.2 and 950.6. If and to the extent that the allegations ofthe Complaint enlarge upon the facts and contentions set forth in the Tort claim, said complaint fails to state a cause of action and is barred by Cal. Govt. Code 905.2,911.2, and 950.2.

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FORTY-THIRD AFFIRMATIVE DEFENSE

44. Plaintiffs' recovery is barred because a public entity is immune from liability for any

injury resulting from an act or omission by one of its employees who is immune from liability.

FORTY-FOURTH AFFIRMATIVE DEFENSE

45. Plaintiffs' recovery is barred because a public entity is immune from liability for any
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action taken under the pressure of public necessity and to avert impending peril which constitutes a
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valid and legitimate exercise of the police power.

FORTY-FIFTH AFFIRMATIVE DEFENSE

46. The Plaintiffs' claims under Civil Code section 57.1 are barred because Plaintiffs cannot

prove any wrongful conduct by Defendant which was motivated by decedent's membership in a protected class. WHEREFORE, Defendant prays as follows: 1. 2. 3. That Plaintiffs take nothing by this action; That Defendant be awarded attorneys fees and costs of this suit; and That Defendant be awarded such other relief as the court deems just.

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DEMAND FOR JURY TRIAL

Defendant hereby demands trial of this matter by jury.

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Dated: May 10, 2013

MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP

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Attorneys for Defendant JAY PATRICK CICINELLI

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES [Thomas v. City of Fullerton, et al. - Orange Co. Sup. Ct, Case No. 30-2012-00581299]
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 801 South Figueroa Street, 15th Floor, Los Angeles, California 90017. On May 13, 2013, I served the document described as ANSWER BY DEFENDANT JAY PATRICK CICINELLI TO SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows:

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SEE SERVICE LIST (BY MAIL) I caused such envelope to be deposited in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I placed such envelope with postage thereon prepaid in the United States mail at Los Angeles, California. 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 at Los Angeles, California 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 one day after date of deposit for mailing in affidavit.

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(BY OVERNIGHT COURIER): I placed the above-referenced document(s) in (an) envelope(s) designated by the express service carrier (UPS) for overnight delivery, addressed as indicated above. I delivered said UPS envelope to the personnel of our mail room. I am "readily familiar" with the firm's practice of collecting and processing documents intended for UPS overnight delivery. Under that practice, after the document is delivered to the firm's mail room, it is deposited that same day, with delivery fees provided for, in a box or other facility regularly maintained by the express service carrier or is delivered to an authorized courier or driver authorized by the express service carrier to receive documents, for overnight delivery. (BY PERSONAL SERVICE (BY FACSIMILE) I telecopied such document to the offices ofthe addressee at the following fax number: (BY E-MAIL) I e-mailed such document to the following e-mail addresses: (ST ATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed on May 13, 2013 at Los Angeles, California.

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o
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File No.:

3350-40640

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SERVICE LIST
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Garo Mardirossian, Esq. Rowena J. Dizon, Esq. Lawrence D. Marks, Esq. Annen Akaragian, Esq. MARDIROSSIAN & ASSOCIATES, INC. 6311 Wilshire Boulevard Los Angeles, California 90048-5001 (323) 653-6311 (323) 651-5511 fax Attorneys for Plaintiff FREDERICK RONALD THOMAS, JR. Dana Alden Fox, Esq. Barry Hassenberg, Esq.

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Dawn M. Flores-Oster, Esq. LEWIS BRISBOIS9 BISGAARD & SMITH LLP 221 N. Figueroa Street, Suite 1200 Los Angeles, CA 90012 (213) 250-1800 (213) 250-7900 (fax) Attornrys for Defendants CITY OF FULLERTON, MICHAEL SELLERS, Chief ofPolice, PATRICK
MCKINLEY, JAMES BLATNEY, SGT. KEVIN CRAIG,
Dave D. Lawrence, Esq. Christina M. Sprenger, Esq. Zaynah Najla Moussa, Esq. LAWRENCE BEACH ALLEN & CHOI 2677 N. Main Street, Suite 370 Santa Ana, CA 92705 (714) 479-0180 (714) 479-0181 (Fax) Attorneys for Defendant MANUEL ANTHONY RAMOS Steven J. Rothans, Esq. Jill W. Williams, Esq. CARPENTER, ROTHANS & DUMONT 888 S. Figueroa St., Suite 1960 Los Angeles, CA 90017 (213) 228-0400 (213) 228-0401 (fax) Attorneys for Defendant KENTON HAMPTON Kevin Osterberg, Esq. HAIGHT, BROWN & BONESTEEL 3750 University Ave., Suite 60 Riverside, CA 92501 (951) 341-8300 (951) 341-8309 Attorneys for Defendant JOSEPH WOLFE

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