jim's answer

8/3/2019 Jim's Answer

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M I G U E L M R Q U E Z

County Counsel

County of Santa Clara

San Jose , Cal ifo rnia

Answer to Plaintiffs Complaintby Defendant James Gleason -1- CV11-03691

MIGUEL MRQUEZ, County Counsel (S.B. #184621)ROBERT M. COELHO, Lead Deputy County Counsel (S.B. #160583)OFFICE OF THE COUNTY COUNSEL70 West Hedding, East Wing, 9 Floorth

San Jose, California 95110-1770Telephone: (408) 299-5900Facsimile: (408) 292-7240

Attorneys for DefendantsCOUNTY OF SANTA CLARA,JAMES GLEASON, SANDRA EOVINO,AND KIMBERLY MARUFFI

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

HOSETTA ZERTUCHE ))

Plaintiff, )))

v. ))

COUNTY OF SANTA CLARA, JAMES )GLEASON, SANDRA EOVINO, and )KIMBERLY MARUFFI )

)Defendants. )

)

No. CV11-03691

ANSWER TO PLAINTIFFS COMPLAINTFOR FEDERAL CIVIL RIGHTSVIOLATION, BY DEFENDANT JAMESGLEASON

[DEMAND FOR JURY TRIAL]

Defendant James Gleason (Defendant), for himself alone and separate from all other

defendants, for an answer to Plaintiffs Complaint on file herein, admits, denies, and alleges as

follows:

JURISDICTION AND VENUE

Answering the allegations of the first unnumbered paragraph of the Complaint at page 1,

lines 22-27, Defendant admits that one or more of the defendants reside or are located in the

Northern District of California. Defendant has no personal information or belief sufficient to

enable him to answer the remaining allegations, and on that ground denies each and all the

allegations.

//

//

Case5:11-cv-03691-EJD Document7 Filed08/23/11 Page1 of 9


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FACT ALLEGATIONS

1. Answering the allegations of Paragraph 1, Defendant admits that Plaintiff is an adult

female. Defendant has no personal information sufficient to enable him to answer the

remaining allegations, and on that ground denies each and all the allegations.

2. Answering the allegations of Paragraph 2, Defendant admits all the allegations.


4. Answering the allegations of Paragraph 4, Defendant admits that Defendant Sandra

Eovino was and is employed as the Administrative Services Manager within the Office of the

County Counsel. Defendant denies each and all remaining allegations.


6. Answering the allegations of Paragraph 6, Defendant admits that each

individual-defendant is and was an employee of the County of Santa Clara, and was acting in

the course and scope of his agency and employment. Based on the way the Complaint is pled,

Defendant has no personal information sufficient to enable him to answer the remaining

allegations, and on that ground denies each and all the allegations.

7. Answering the allegations of Paragraph 7, Defendant denies each and all the

allegations.8. Answering the allegations of Paragraph 8, Defendant admits that the IDO identifies

and nominates attorneys for court-appointment to defend indigent defendants in the County in

circumstances where the Public Defender determines that conflicts of interest exist in

representing those indigent defendants and other indigent defendants who the Public Defenders

Office represents. Defendant also admits that the IDO pays the court-appointed attorneys for

representing the conflicts-defendants, and that the IDO provides referral sources to those court-

appointed attorneys for investigation or other support services. Except as otherwise admitted,

Defendant denies each and every remaining allegation.

9. Answering the allegations of Paragraph 9, Defendant denies the allegation that the

Ethical Wall policy prohibits non-IDO employees from receiving any information concerning

IDO activity. Defendant admits the remaining allegations, except to the extent they conflict



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with the written policy.

10. Answering the allegations of Paragraph 10, Defendant admits all the allegations,

except to the extent the allegations can be read to indicate that Plaintiffs duties were limited to

providing legal and administrative support. Among other things, Plaintiffs duties also required

her to comply with County, Office and IDO policies and to report policy violations or concerns

if she believed any existed.

11. Answering the allegations of Paragraph 11, Defendant admits that Lam worked as a

paralegal in IDO during the approximate time period mentioned, and that Lam was reassigned

to work as a paralegal in another unit of the Office. Defendant denies each and all the remaining

allegations as phrased.

12. Answering the allegations of Paragraph 12, Defendant denies the allegation that

Plaintiff repeatedly complained to Defendant, but was given no consideration to her complaints.

Defendant has no personal information or belief sufficient to enable him to answer the


13. Answering the allegations of Paragraph 13, Defendant admits that Eovino questioned

Defendant about the IDO-related work that Lam had been doing after her transfer out of IDO.

Defendant has no personal information sufficient to enable him to answer the remainingallegations, and on that ground denies each and all the allegations.

14. Answering the allegations of Paragraph 14, Defendant admits recommending that

Plaintiff receive an improvement needed rating regarding work relations. Regarding all other

allegations except those in the second-to-last sentence of the paragraph, Defendant denies each

and every allegation. Defendant has no personal information sufficient to enable him to answer

the allegations in the second-to-last sentence of the paragraph, and on that ground denies each

and all the allegations in that second-to-last sentence.

15. Answering the allegations of Paragraph 15, Defendant admits Plaintiff was

reassigned from the IDO to a different unit of the Office. Defendant denies retaliating against

Plaintiff. Defendant has no personal information sufficient to enable him to answer the




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16. Answering the allegations of Paragraph 16, Defendant realleges and incorporates

herein by this reference each and all of his responses to Paragraphs 1 through 15.

17. Answering the allegations of Paragraph 17, Defendant denies that Plaintiffs

complaints were made outside the scope of her job duties and denies that Plaintiffs complaints

involved an issue of public concern. Based on the way the Complaint is pled, Defendant has no

personal information or belief sufficient to enable him to answer the remaining allegations, and

on that ground denies each and all the allegations.

18. Answering the allegations of Paragraph 18, Defendant denies each and all the

allegations, and specifically denies retaliating against Plaintiff. But defendant admits Plaintiff

was rated improvement needed in her performance evaluation in the work relations

category, and admits that Gleason, Maruffi and Eovino evaluated Plaintiffs job performance.

19. Answering the allegations of Paragraphs 19, 20, 21 and 22, Defendant denies each

and all the allegations.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

As a separate affirmative defense to the Complaint and to each cause of action and/or

claim for relief, Defendant alleges that the Complaint, and each and every cause of actionand/or claim for relief thereof, fails to state facts sufficient to constitute a cause of action and/or

claim for relief against this answering Defendant.

SECOND AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges Plaintiff lacks standing to maintain the present action or to

obtain any relief herein.

THIRD AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff failed to engage in protected speech outside the

scope of her job duties and therefore failed to engage in protected activity.

//



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FOURTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff was not subjected to any legally sufficient

adverse employment action related to any protected activity in which she may have engaged.

FIFTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that his conduct was privileged, justified, and otherwise

lawful and within community standards.

SIXTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Defendant acted with a good faith belief in the propriety

of his conduct, and performed and discharged in good faith each and every duty and/or

obligation, if any, owed to Plaintiff.

SEVENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that his conduct was proper, legal, and in substantial

compliance with all applicable regulations, codes, statutes and/or ordinances.EIGHTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that any acts and/or omissions on Defendants part were

discretionary and not ministerial in nature.

NINTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that any acts and/or omissions on Defendants part were

subjectively and/or objectively reasonable so as to entitle Defendant to absolute or qualified

immunity based upon applicable law for any acts and/or omissions within the course and scope

of employment.

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TENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that the County and its agents have established and enforced,

at all relevant times, policies prohibiting discrimination and retaliation, and that the County and

its agents took all reasonable steps to investigate, prevent and/or promptly remedy any

discrimination or retaliation if any such conduct occurred.

ELEVENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff failed to mitigate her damages.

TWELFTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiffs Complaint and each and every cause of action

and/or claim for relief, is barred in that her exclusive remedies are found under California Labor

Code sections 3600, et seq., and related provisions of law.

THIRTEENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that he is entitled to a setoff of any Workers Compensationbenefits received, or to be received, by Plaintiff against any judgment that may be rendered

against this Defendant.

FOURTEENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff unreasonably delayed in bringing this action

against Defendant and that such delay prejudiced Defendant and therefore this action against

Defendant is barred by the doctrine of laches.

FIFTEENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff, by reason of her own acts and/or omissions, has

waived any claims as alleged.



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SIXTEENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff, by reason of her own acts and/or omissions, is

equitably estopped from asserting any claim as alleged.

SEVENTEENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff, by virtue of having been the sole or major

contributing factor to the alleged damages of which she now complains, based upon her own

fault or misconduct, is guilty of unclean hands and therefore is barred from obtaining the relief

sought in the Complaint by that principle, as well as by the principle of in pari delicto.

EIGHTEENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff consented to the acts and/or omissions

complained of in the Complaint.

NINETEENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that any alleged duty and/or obligation of Defendant wasexonerated, discharged and/or released by Plaintiffs acts and/or omissions.

TWENTIETH AFFIRMATIVE DEFENSE


claim for relief, Defendant is informed and believes, and thereon alleges, that any statements

made by him to Plaintiff or others were, either in whole or in part, matters of opinion.

TWENTY-FIRST AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that the doctrine of after-acquired evidence is a complete bar

to Plaintiffs claims or, at a minimum, necessitates the reduction of any damages awarded to

Plaintiff.

//



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TWENTY-SECOND AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff failed to (1) exhaust her administrative and/or

other remedies and/or (2) satisfy other jurisdictional and/or procedural prerequisites before

filing suit.

TWENTY-THIRD AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff failed to comply with the provisions of the

California Tort Claims Act aka California Government Claims Act.

TWENTY-FOURTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiffs Complaint and each and every cause of action

and/or claim for relief, is barred by the provisions of California Government Code 810

through 1000, inclusive, including, but not limited to, Sections 815, 815.2, 815.3, 815.4, 815.6,

818, 818.2, 818.8, 820, 820.2, 820.8, 821, and 822.2.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

As a separate affirmative defense to the Complaint and to each cause of action and/orclaim for relief, Defendant alleges that Plaintiffs Complaint and each and every cause of action

and/or claim for relief thereof, is barred by the statute of limitations as stated in Part 2, Title 2,

Chapter 2 of the California Code of Civil Procedure, beginning with Section 315 and continuing

through Section 349 3/4 and, more particularly, but not limited to, Sections 335.1, 338, 340,

342, and 343.

TWENTY-SIXTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiffs Complaint is frivolous as to Defendant and

was brought and maintained in bad faith and without reasonable cause, for the sole purpose of

harassing Defendant, and Defendant therefore is entitled to recover from Plaintiff and her

counsel Defendants reasonable expenses, including attorneys fees.



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TWENTY-SEVENTH AFFIRMATIVE DEFENSE


claim for relief, Defendant alleges that Plaintiff failed to state facts sufficient to constitute a

claim for punitive and/or exemplary damages against Defendant.

PRAYER FOR RELIEF

Defendant prays that Plaintiff take nothing by way of her Complaint, that Defendant have

judgment for his costs of suit incurred herein, including attorneys fees, together with such other

and further relief as the court deems just and proper.

Dated: August 23, 2011 Respectfully submitted,

MIGUEL MRQUEZCounty Counsel

By: /S/ROBERT M. COELHOLead Deputy County Counsel

Attorneys for DefendantsCOUNTY OF SANTA CLARA,JAMES GLEASON, SANDRAEOVINO, AND KIMBERLYMARUFFI

JURY DEMANDDefendant hereby demands a trial by jury.

Dated: August 23, 2011

Respectfully submitted,

MIGUEL MRQUEZCounty Counsel

By: /S/ROBERT M. COELHOLead Deputy County Counsel

Attorneys for DefendantsCOUNTY OF SANTA CLARA,JAMES GLEASON, SANDRAEOVINO, AND KIMBERLYMARUFFI


jim's answer

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