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91571
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MARK E. DAVIS—BAR NO. 79936
PATRICK MALLOY—BAR NO. 308249
DAVIS & YOUNG, APLC
1960 The Alameda, Suite 210
San Jose, CA 95126
Phone: 669.245.4200
Fax: 408.985.1814
Attorneys for Defendants
PALO ALTO UNIFIED SCHOOL
DISTRICT, and JANE MILLER, JAMES
LUBBE, TOM JACOUBOWSKY, JIM
COX, and SCOTT BOWERS,
employees of Palo Alto Unified SD
No filing fee for a public}
entity or its employees
(Gov. Code § 6103)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
JOSHUA VASQUEZ, by and through
his Guardian ad Litem, CAROLINA
VASQUEZ,
Plaintiff,
vs.
PALO ALTO UNIFIED SCHOOL
DISTRICT, JANE MILLER, JAMES
LUBBE, TOM JACOUBOWSKY, JIM
COX, SCOTT BOWERS, AND DOES
-50,
Defendants.
Case No. 17CV312991
ANSWER OF DEFENDANTS JANE MILLER,
JAMES LUBBE, TOM JACOUBOWSKY, JIM
COX, AND SCOTT BOWERS, EMPLOYEES
OF PALO ALTO UNIFIED SCHOOL
DISTRICT, TO PLAINTIFF’S COMPLAINT
FOR DAMAGES
COMES NOW defendants JANE MILLER, JAMES LUBBE, TOM JACOUBOWSKY,
JIM COX, and SCOTT BOWERS, and in Answer to Plaintiff's Complaint for Damages and
admit, deny and allege as follows:
Answering the allegations contained in each cause of action of said complaint, these
answering defendants deny each and every, all and singular, generally and specifically,
said allegations and the whole thereof and further specifically deny that plaintiff was
-1-
Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers, Employees of PAUSD to Plaintiffs Complaint for Damages
{91571/00391 104-1}91571
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AS AND FOR A SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE:
That said complaint does not state facts sufficient to constitute a cause of action.
AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
That the injuries and damages complained of by plaintiff, if any there were, were
either wholly, or in part, directly and proximately caused by the negligence of persons or
entities other than these answering defendants including both parties and non-parties to
this action whether named or not named, and said negligence is either imputed to plaintiff
by reason of the relationship between plaintiff and said persons or entities, or
comparatively reduces the proportion of liability of these answering defendants.
AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
That plaintiff failed subsequent to the occurrence described in the complaint to
properly mitigate his alleged damages, if any, and is thereby precluded from recovering
those damages which could have otherwise been avoided.
AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
That these answering defendants assert any and all privileges and immunities
pursuant to Government Code sections 800, et seq.
AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
The action against defendants is barred by the provisions of Government Code
section 815.
-2-
Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers to Plaintiffs Complaint for Damages
{91571/00391 104-1}91571
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AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF DEFENDANTS
ALLEGE:
That defendants are immune from liability pursuant to Government Code section
815.2(b).
AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
That any and all mandatory duties imposed upon the defendants, the failure of
which allegedly gave rise to the incident alleged in the complaint or allegedly caused the
injuries complained of, were exercised with reasonable diligence and, therefore,
defendants are not liable for the alleged injuries pursuant to Government Code section
815.6.
AS AND FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
That plaintiff's claims and causes of action are barred pursuant to Government
Code section 820(b).
AS AND FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
That defendants are immune from liability arising out of any discretionary act
pursuant to Government Code section 820.2.
AS AND FOR A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS
ALLEGE:
That defendants are immune from liability arising out of the act or omission of
another person pursuant to Government Code section 820.8.
-3-
Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers to Plaintiff's Complaint for Damages
{91571/00391104-1}91671
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AS AND FOR AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,
DEFENDANTS ALLEGE:
Any claims or causes of action requiring presentation of a timely government claim
are barred based on Government Code sections 900 et seq.
AS AND FOR A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,
DEFENDANTS ALLEGE:
Plaintiff's claims as to these answering defendants do not set forth a mandatory duty
or breach of a mandatory duty under Education Code section 220 et seq.
AS AND FOR A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,
DEFENDANTS ALLEGE:
That plaintiffs claims are barred to the extent Plaintiff has failed to comply with the
California Government Tort Claim Act requirements.
AS AND FOR A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,
DEFENDANTS ALLEGE:
That plaintiff's claims are barred by the applicable statute of limitations.
AS AND FOR A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF,
DEFENDANTS ALLEGE:
That defendants presently have insufficient knowledge or information on which to
form a belief as to whether it may have additional, yet unstated, affirmative defenses
available. These answering defendants reserve the right to assert additional affirmative
defenses.
Mt
Wl
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Ans. Of Defendants Miller, Lube, Cox, Jacoubowsky, and Bowers to Plaintiff's Complaint for Damages
{91571/00391104-1}91671
1 WHEREFORE, said answering defendants pray for judgment against plaintiff, for
2 ||costs of suit incurred herein, and for such other and further relief as the court may deem
3 ||just and proper.
4
5 ||DATED: May 3, 2018
5 DAVIS & YOUNG, APLC
By Wade (Mind
8 Mark E. Davis
9 Attorneys ter Defendants
Palo Alto Unified School District, Jane
10 Miller, James Lubbe, Jim Cox, Tom
1 Jacoubowksy, and Scott Bowers
12
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14
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Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers to Plaintiff's Complaint for Damages
{91571/00391 104-1}91571
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PROOF OF SERVICE BY MAIL
|, the undersigned, say:
| am now and at all times herein mentioned have been over the age of 18 years,
employed in Santa Clara County, California, and not a party to the within action or
cause; that my business address is 1960 The Alameda, Suite 210 San Jose, California,
95126-1493. | am readily familiar with the firm's business practice for collection and
processing of correspondence for mailing with the United States Postal Service. |
served copies of the attached ANSWER OF DEFENDANTS JANE MILLER, JAMES
LUBBE, TOM JACOUBOWSKY, JIM COX, AND SCOTT BOWERS TO PLAINTIFF’S
COMPLAINT FOR DAMAGES by placing said copies in envelopes addressed to:
Seth |. Rosenberg
Emergent LLP
535 Mission Street, 14" Floor
San Francisco, CA 94105
415.894.9284
415.276.8929
seth@emergent.law.
which envelopes were then sealed and, with postage fully prepaid thereon, were on
May 4, 2018 placed for collection and mailing at my place of business following ordinary
business practices. Said correspondence will be deposited with the United States
Postal Service at San Jose, California on the above-referenced date in the ordinary
course of business; and there is delivery service by United States mail at the place so
addressed.
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this Declaration was executed on May 4,
2018.
Debbie Myers v
{91571/00370377-1} Case Name: Vasquez v PAUSD, et al. Case No. 17CV312991
Preview
91571 o ON DO HO BRB WwW Pw A NN NN NY NY NY KY KY B&B BoB ew Ba Bw Ba an A an A oN Oa RF OH DH BS GOGO eFN DAR DH SDS MARK E. DAVIS—BAR NO. 79936 PATRICK MALLOY—BAR NO. 308249 DAVIS & YOUNG, APLC 1960 The Alameda, Suite 210 San Jose, CA 95126 Phone: 669.245.4200 Fax: 408.985.1814 Attorneys for Defendants PALO ALTO UNIFIED SCHOOL DISTRICT, and JANE MILLER, JAMES LUBBE, TOM JACOUBOWSKY, JIM COX, and SCOTT BOWERS, employees of Palo Alto Unified SD No filing fee for a public} entity or its employees (Gov. Code § 6103) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA JOSHUA VASQUEZ, by and through his Guardian ad Litem, CAROLINA VASQUEZ, Plaintiff, vs. PALO ALTO UNIFIED SCHOOL DISTRICT, JANE MILLER, JAMES LUBBE, TOM JACOUBOWSKY, JIM COX, SCOTT BOWERS, AND DOES -50, Defendants. Case No. 17CV312991 ANSWER OF DEFENDANTS JANE MILLER, JAMES LUBBE, TOM JACOUBOWSKY, JIM COX, AND SCOTT BOWERS, EMPLOYEES OF PALO ALTO UNIFIED SCHOOL DISTRICT, TO PLAINTIFF’S COMPLAINT FOR DAMAGES COMES NOW defendants JANE MILLER, JAMES LUBBE, TOM JACOUBOWSKY, JIM COX, and SCOTT BOWERS, and in Answer to Plaintiff's Complaint for Damages and admit, deny and allege as follows: Answering the allegations contained in each cause of action of said complaint, these answering defendants deny each and every, all and singular, generally and specifically, said allegations and the whole thereof and further specifically deny that plaintiff was -1- Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers, Employees of PAUSD to Plaintiffs Complaint for Damages {91571/00391 104-1}91571 oO ON DW oO BF WO DY NN NH MY NY NY NY NY NY B@ SB sw Aa Bn an an 2a A a oN OG F © YH SF GG weN DARD NH ABS AS AND FOR A SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That said complaint does not state facts sufficient to constitute a cause of action. AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That the injuries and damages complained of by plaintiff, if any there were, were either wholly, or in part, directly and proximately caused by the negligence of persons or entities other than these answering defendants including both parties and non-parties to this action whether named or not named, and said negligence is either imputed to plaintiff by reason of the relationship between plaintiff and said persons or entities, or comparatively reduces the proportion of liability of these answering defendants. AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That plaintiff failed subsequent to the occurrence described in the complaint to properly mitigate his alleged damages, if any, and is thereby precluded from recovering those damages which could have otherwise been avoided. AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That these answering defendants assert any and all privileges and immunities pursuant to Government Code sections 800, et seq. AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: The action against defendants is barred by the provisions of Government Code section 815. -2- Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers to Plaintiffs Complaint for Damages {91571/00391 104-1}91571 oO ON DW HO BW DY A NNN NY NOH NY NY KY HY BSB Ba ew Ben BAB Aan an An on OD aK YW NH SF DGBHANDaAKR wD HAS AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF DEFENDANTS ALLEGE: That defendants are immune from liability pursuant to Government Code section 815.2(b). AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That any and all mandatory duties imposed upon the defendants, the failure of which allegedly gave rise to the incident alleged in the complaint or allegedly caused the injuries complained of, were exercised with reasonable diligence and, therefore, defendants are not liable for the alleged injuries pursuant to Government Code section 815.6. AS AND FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That plaintiff's claims and causes of action are barred pursuant to Government Code section 820(b). AS AND FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That defendants are immune from liability arising out of any discretionary act pursuant to Government Code section 820.2. AS AND FOR A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That defendants are immune from liability arising out of the act or omission of another person pursuant to Government Code section 820.8. -3- Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers to Plaintiff's Complaint for Damages {91571/00391104-1}91671 o ON DO TN KR WD NN NY NOY NY NN NY NY BB on ow a an an an an A oN Oa F YW NY = Go AN DAR DSH AS AS AND FOR AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: Any claims or causes of action requiring presentation of a timely government claim are barred based on Government Code sections 900 et seq. AS AND FOR A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: Plaintiff's claims as to these answering defendants do not set forth a mandatory duty or breach of a mandatory duty under Education Code section 220 et seq. AS AND FOR A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That plaintiffs claims are barred to the extent Plaintiff has failed to comply with the California Government Tort Claim Act requirements. AS AND FOR A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That plaintiff's claims are barred by the applicable statute of limitations. AS AND FOR A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO SAID COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, DEFENDANTS ALLEGE: That defendants presently have insufficient knowledge or information on which to form a belief as to whether it may have additional, yet unstated, affirmative defenses available. These answering defendants reserve the right to assert additional affirmative defenses. Mt Wl -4- Ans. Of Defendants Miller, Lube, Cox, Jacoubowsky, and Bowers to Plaintiff's Complaint for Damages {91571/00391104-1}91671 1 WHEREFORE, said answering defendants pray for judgment against plaintiff, for 2 ||costs of suit incurred herein, and for such other and further relief as the court may deem 3 ||just and proper. 4 5 ||DATED: May 3, 2018 5 DAVIS & YOUNG, APLC By Wade (Mind 8 Mark E. Davis 9 Attorneys ter Defendants Palo Alto Unified School District, Jane 10 Miller, James Lubbe, Jim Cox, Tom 1 Jacoubowksy, and Scott Bowers 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5- Ans. Of Defendants Miller, Lubbe, Cox, Jacoubowsky, and Bowers to Plaintiff's Complaint for Damages {91571/00391 104-1}91571 oO ON DW oO BR WwW w & = PROOF OF SERVICE BY MAIL |, the undersigned, say: | am now and at all times herein mentioned have been over the age of 18 years, employed in Santa Clara County, California, and not a party to the within action or cause; that my business address is 1960 The Alameda, Suite 210 San Jose, California, 95126-1493. | am readily familiar with the firm's business practice for collection and processing of correspondence for mailing with the United States Postal Service. | served copies of the attached ANSWER OF DEFENDANTS JANE MILLER, JAMES LUBBE, TOM JACOUBOWSKY, JIM COX, AND SCOTT BOWERS TO PLAINTIFF’S COMPLAINT FOR DAMAGES by placing said copies in envelopes addressed to: Seth |. Rosenberg Emergent LLP 535 Mission Street, 14" Floor San Francisco, CA 94105 415.894.9284 415.276.8929 seth@emergent.law. which envelopes were then sealed and, with postage fully prepaid thereon, were on May 4, 2018 placed for collection and mailing at my place of business following ordinary business practices. Said correspondence will be deposited with the United States Postal Service at San Jose, California on the above-referenced date in the ordinary course of business; and there is delivery service by United States mail at the place so addressed. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on May 4, 2018. Debbie Myers v {91571/00370377-1} Case Name: Vasquez v PAUSD, et al. Case No. 17CV312991