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DEFENDANTS ANSWER (2:12-cv-02484)

KAMALA D.HARRIS,State Bar No.146672Attorney General of CaliforniaTAMAR PACHTER,State Bar No. 146083Supervising Deputy Attorney GeneralALEXANDRA ROBERT GORDON,State Bar No.207650DANIEL POWELL,State Bar No.230304Deputy Attorneys General

455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102-7004Telephone: (415) 703-5509Fax: (415) 703-5480E-mail: [email protected]

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

WELCH ET AL.,

Plaintiffs,

v.

BROWN ET AL.,

Defendants.

2:12-cv-02484

DEFENDANTS ANSWER

Courtroom: 5Judge: The Honorable William B.

ShubbAction Filed: October 1, 2012

Case 2:12-cv-02484-WBS-KJN Document 58 Filed 12/31/12 Page 1 of 16

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Defendants Governor Edmund G. Brown Jr., in his official capacity, Anna M. Caballero, in

her official capacity as Secretary of the California State and Consumer Services Agency; Denise

Brown, in her official capacity as Director of Consumer Affairs; Christine Wietlisbach, Patricia

Dawson, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines

and Christina Wong, in their official capacities as members of the California Board of Behavioral

Sciences; and Sharon Levine, Michael Bishop, Silvia Diego, Dev Gnanadev, Reginald Low,

Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, and Barbara

Yaroslavsky, in their official capacities as members of the California Medical Board,

(collectively, Defendants) answer Plaintiffs Complaint for Injunctive and Declaratory Relief

(Complaint) as follows:

Defendants admit that Senate Bill (SB) 1172 was signed into law by Governor Brown on

September 30, 2012, and would become effective January 1, 2013, unless enjoined. Except as

specifically admitted, Defendants deny the allegations in Plaintiffs Introduction.

1. Defendants lack sufficient knowledge or information to form a belief as to the truth of the

allegations in paragraph 1, and on that basis deny the allegations of paragraph 1.





4. Defendants admit that Defendant Edmund G. Brown, Jr. is the Governor of California and

that he has an office in Sacramento, California. Except as specifically admitted, Defendants deny

the allegations in paragraph 4.

5. Defendants admit that Defendant Anna M. Caballero is the Secretary of the California State

and Consumer Services Agency and that her office is located in Sacramento, California. Except

as specifically admitted, Defendants lack sufficient knowledge or information to form a belief as

to the truth of the allegations in paragraph 5, and on that basis deny the allegations of paragraph

5.


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6. Defendants admit that Defendant Denise Brown is the Director of Consumer Affairs and

that her office is located in Sacramento, California. Except as specifically admitted, Defendants

lack sufficient knowledge or information to form a belief as to the truth of the allegations in

paragraph 6, and on that basis deny the allegations of paragraph 6.

7. Defendants admit that Defendant Dr. Christine Wietlisbach is the Chair of the California

Board of Behavioral Sciences. Except as specifically admitted, Defendants lack sufficient

knowledge or information to form a belief as to the truth of the allegations in paragraph 7, and on

that basis deny the allegations of paragraph 7.

8. Defendants admit that Defendant Patricia Lock-Dawson is a Member of the California

Board of Behavioral Sciences. Except as specifically admitted, Defendants lack sufficient

knowledge or information to form a belief as to the truth of the allegations in paragraph 8, and on

that basis deny the allegations of paragraph 8.

9. Defendants admit that Defendant Samara Ashley is a Member of the California Board of

Behavioral Sciences. Except as specifically admitted, Defendants lack sufficient knowledge or

information to form a belief as to the truth of the allegations in paragraph 8, and on that basis

deny the allegations of paragraph 8.

10. Defendants admit that Defendant Harry Douglas is a Member of the California Board of




11. Defendants deny the allegations of paragraph 11.

12. Defendants admit that Defendant Sarita Kohli is a Member of the California Board of




13. Defendants admit that Defendant Renee Lonner is a Member of the California Board of



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14. Defendants admit that Defendant Karen Pines is a Member of the California Board of



deny the allegations of paragraph 14

15. Defendants admit that Defendant Christina Wong is a Member of the California Board of




16. Defendants admit that Defendant Sharon Levine is President of the California Medical

Board. Except as specifically admitted, Defendants lack sufficient knowledge or information to

form a belief as to the truth of the allegations in paragraph 16, and on that basis deny the

allegations of paragraph 16.

17. Defendants admit that Defendant Michael Bishop is a Member of the California Medical




18. Defendants admit that Defendant Silvia Diego is a Member of the California Medical




19. Defendants admit that Defendant Dev Gnanadev is a Member of the California Medical




20. Defendants admit that Defendant Reginald Low is a Member of the California Medical



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21. Defendants admit that Defendant Denise Pines is a Member of the California Medical




22. Defendants admit that Defendant Janet Salomonson is a Member of the California Medical




23. Defendants admit that Defendant Gerrie Schipske is a Member of the California Medical




24. Defendants admit that Defendant David Serrano Sewell is a Member of the California

Medical Board. Except as specifically admitted, Defendants lack sufficient knowledge or



25. Defendants admit that Defendant Barbara Yaroslavsky is a Member of the California

Medical Board. Except as specifically admitted, Defendants lack sufficient knowledge or



26. Defendants deny the allegations in paragraph 26.

27. Defendants admit the allegations in paragraph 27.





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33. Defendants admit that the legislative record speaks for itself. Except as specifically

admitted, Defendants deny the allegations in paragraph 33.

34. Defendants admit that the Legislative Counsels Digest of SB 1172 speaks for itself.

Except as specifically admitted, Defendants deny the allegations in paragraph 34.

35. Defendants admit that Section 1 of SB 1172 speaks for itself. Except as specifically














42. Defendants admit that the Governor is charged with seeing that the duly enacted laws of

California are faithfully executed. Defendants admit that the Governor appointed the Secretary of

the California State and Consumer Services Agency, and that the Secretary of the California State

and Consumer Services Agency reports to the Governor. Except as specifically admitted,

Defendants deny the allegations of paragraph 42.


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43. Defendants admit that the Governor appointed the Secretary of the California State and

Consumer Services Agency and that the Secretary of the California State and Consumer Services

Agency reports to the Governor. Defendants admit that the California State and Consumer

Services Agency is a cabinet-level agency and that the California State and Consumer Services

Agency includes the Department of Consumer Affairs. Except as specifically admitted,

Defendants lack sufficient knowledge or information to form a belief as to the truth of the

allegations in paragraph 43, and on that basis Defendants deny the allegations of paragraph 43.

44. Defendants admit that the Department of Consumer Affairs website speaks for itself.

Defendants admit that the Department of Consumer Affairs includes numerous state boards

including the California Board of Behavioral Sciences and the California Medical Board. Except

as specifically admitted, Defendants lack sufficient knowledge or information to form a belief as

to the truth of the allegations in paragraph 44, and on that basis deny the allegations of paragraph

44.

45. Defendants admit that the California Board of Behavioral Science is responsible for

consumer protection and regulates Marriage and Family Therapists (MFT), Licensed Clinical

Social Workers, Licensed Educational Psychologists, Licensed Professional Clinical Counselors,

MFT Interns, Associate Clinical Social Workers and Professional Clinical Counselor Interns in

the State of California. Defendants admit that the California Board of Behavioral Science is one

of the boards within the California Department of Consumer Affairs. Except as specifically

admitted, Defendants lack sufficient knowledge or information to form a belief as to the truth of

the allegations in paragraph 45, and on that basis deny the allegations of paragraph 45.

46. Defendants admit that the California Medical Board is a state government agency that

licenses and disciplines medical doctors. Except as specifically admitted, Defendants lack

sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph

46, and on that basis deny the allegations of paragraph 46.




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64. Defendants admit that SB 1172 speaks for itself. Except as specifically admitted,



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65. In answer to paragraph 65, Defendants incorporate herein by this reference their responses

to paragraphs 1 through 64, inclusive.

66. Defendants admit that federal law speaks for itself. Except as specifically admitted,



























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AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

The Complaint, and each and every purported cause of action contained therein, fails to

state a claim upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

Plaintiffs claims in this action are barred in that they do not have standing to bring them.


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THIRD AFFIRMATIVE DEFENSE

There is no case or controversy in this action as required by Article III of the United States

Constitution.

FOURTH AFFIRMATIVE DEFENSE

Defendants are immune from suit under the Eleventh Amendment to the United States

Constitution.

FIFTH AFFIRMATIVE DEFENSE

All acts done by Defendants, their agents, servants, employees or representatives were

performed fairly, in good faith and for a lawful purpose, and were reasonable and consistent with

all applicable legal and constitutional standards.

SIXTH AFFIRMATIVE DEFENSE

The Complaint, and each cause of action therein, is improper as Plaintiffs have an adequate

remedy at law.

SEVENTH AFFIRMATIVE DEFENSE

The Complaint, and every cause of action therein, is barred by the equitable doctrines of

estoppel, laches, unclean hands, and/or waiver.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs claims in this action are uncertain, vague, ambiguous, improper, and

unintelligible.

NINTH AFFIRMATIVE DEFENSE

Any monetary relief sought by the plaintiffs violates Californias sovereign immunity

contained in the Eleventh Amendment to the United States Constitution.

TENTH AFFIRMATIVE DEFENSE

Defendants have not deprived any person of any right, privilege, or immunity guaranteed

by the Constitution or laws of the United States. There has been no deprivation of any right,

privilege or immunity guaranteed by the laws or Constitution of the United States.


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ELEVENTH AFFIRMATIVE DEFENSE

Defendants have not knowingly or intentionally waived any applicable affirmative defense.

Defendants reserve the right to assert and rely upon other such defenses as may become available

or apparent during discovery proceedings or as may be raised or asserted by others in this case,

and to amend their answer and/or affirmative defenses accordingly. Defendants further reserve

the right to amend their answer to delete affirmative defenses that they determine are not

applicable after subsequent discovery.

WHEREFORE, Defendants pray as follows:

1. That judgment be entered in favor of Defendants and against Plaintiffs on the

Complaint as a whole, and on each cause of action therein, and that Plaintiffs take nothing by way

of the Complaint;

2. That the Complaint, and each claim for relief therein, be dismissed with prejudice;

3. That Defendants be awarded the costs, expenses, and attorneys fees incurred in this

action; and

4. That the Court grant Defendants such additional relief as it deems proper.

Dated: December 31, 2012 Respectfully submitted,

KAMALA D.HARRISAttorney General of CaliforniaTAMAR PACHTERSupervising Deputy Attorney General

/s/ Alexandra Robert GordonALEXANDRA ROBERT GORDONDeputy Attorney GeneralAttorneys for Defendants


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CERTIFICATE OF SERVICE

Case Name: Welch, Donald, et al. v. Brown,et al.

No. 2:12-cv-02484

I hereby certify that on December 31, 2012, I electronically filed the following documents with

the Clerk of the Court by using the CM/ECF system:

DEFENDANTS ANSWER

I certify that all participants in the case are registered CM/ECF users and that service will beaccomplished by the CM/ECF system.

I declare under penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on December 31, 2012, at San Francisco,

California.

A. Bermudez /s/ A. Bermudez

Declarant Signature

20660979.doc


2:12-cv-02484 #58

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