Complaint Unlimited Fee Applies

Cal. Super. - 6th Dist.September 24, 2020

©WQQUI£OJNH NNNNNNNNNHHNHHHHH E-FILED 9/24/2020 4:29 PM Heather B. Gibson, Esq. (SBN 240938) C'erk 9f court LAW OFFICES 0F HEATHER GIBSON, RC. Super'or Court 0f CA, 1371 Martin Avenue County of Santa Clara Santa Clara, CA 95050 ZOCV371 151 Tel: 408450-3502 Reviewed By: D Harris Fax: 408-287-7909 Hgibson@gibsonhealth-law.com Attorneys for PLAINTIFF, JOHN PHUNG SUPERIOR COURT OF THE STATE 0F CALIFORNIA COUNTY OF SANTA CLARA 20CV371 1 51 JOHN PHUNG, an individual, CASE NO. Plaintiff, COMPLAINT FOR DAMAGES: vs. 1. Negligence; MELISSA NGUYEN an individual, 2. Assault and Battery EDOUARD NGUYEN, an individual, ANGELO CRUZ, an individual and Does 1- 100, Defendants. Plaintiff, JOHN PHUNG, an individual, (“Plaintiff’) hereby alleges as follows:W 1. Plaintiff is an individual who resided in Santa Clara County and a citizen thereof at all times relevant herein. 2. Defendant MELISSA NGUYEN. (“Melissa” and/or“Defendant”) is an individual who, at all times relevant herein, resided in, and continues to reside in the City of San Jose, California, within the County of Santa Clara. 3._ Defendant EDOUARD NGUYEN, (“Edouard” and/or “Defendant”) is an individual who, at all times relevant herein, resided in the City of San Jose, California within the County of Santa Clara, and continues to work within Santa Clara County presently, although upon information and belief, he may now hold a residence in Texas. 4. On information and belief, Defendant ANGELO CRUZ resided in Santa Clara COMPLAINT \DOOflQUIvRMNt-i NNNNNNNNNHHHHHHHH manIAOJNHQWOOqcxm-RWN:; County and has been a citizen thereof at all times relevant herein. 5. The incident and injuries complained of herein and sustained by Plaintiff were inflicted within Santa Clara County, California. 6. The true names and capacities of the Defendants identified as DOES 1 through 100 are unknown to Plaintiff, who will seek the Court’s permission to amend this pleading in order to aliege the true names and capacities as soon as they are ascertained. Plaintiff is informed and believes and on that basis alleges that each of the fictitiously named Defendants 1-100 has jurisdiction by law over one or more aspects of the subj cots of this Complaint. 7. Plaintiff is informed and believes and, based on that information and belief, alleges that, at various times herein mentioned, each of the defendants was the agent, either direct, ostensible or otherwise, servant, representative of employee of each of the remaining defendants and, in engaging in certain acts hereinafter alleged, was acting within the course and scope of said agency, service, representation, or employment and materially assisted the other defendants. Plaintiff is further infomed and believes and, based on that information and belief, alleges that each of the defendants ratified the acts ofremaining defendants. JURISDICTION AND VENUE 8. This Court has jurisdiction over this action pursuant to California Constitution Article VI, section 10, which grants the Superior Court “original jurisdiction in all causes except those given by statute to other courts.” 9. This Court has jurisdiction over all Defendants because, upon information and belief, each defendant is either a citizen of California, has sufficient minimum contacts in California, or otherwise intentionally avails itself of the California market so as to render the exercise ofjurisdiction over it or him by the California courts consistent with traditional notions of fair play and substantial justice. 10. Venue is proper in this Court because Defendants are located in Santa Clara County, California, the injuries complained of herein took place in Santa Clara County, California, and Plaintiff is a resident of Santa Clara County, California. Moreover, all of the unlawful CONIPLAINT \OWQONUI&D)NH NNNNNNNNNHHHHHHHy-a mflam-BMNchcouaUI-RWNSE practices, acts and omissions alleged herein took place in this County. STATEMENT OF FACTS 11. On or about September 30, 2018, Plaintiff, 28 year 01d, John Phung, had begrudgingly agreed to “house-sit” for his family friends, Defendants Melissa and Edouard Nguyen (collectively referenced as “Defendants”) at their home located at 2648 La Mirada Drive in San Jose, California (hereinafier the “Residence”). Defendants had requested that Plaintiff take care of their residence while they went on an approximate one week vacation. During that time, Plaintiff was to live in and watch over the residence, maintain it, and report back to Defendants over the phone on its status. 12. While Plaintiff performed his obligations to watch over the residence as requested, he noticed that Defendants daughter had a guest in the house. The guest was an approximately 18 year old male, known as Angelo Cruz, (hereinafter “Cruz”). The male appeared to be threatening in nature, and in response to his presence in the residence, Plaintiff contacted defendants, by phone and notified them of the individual’s presence 0n their property. 13. In response to hearing of this individual’s presence on their property, Defendants, in no uncertain terms, directed Plaintiff to remove him from their Property, and explained that the saw his presence as a threat not only to their residence, but also to their daughter. 14. According to Defendants wishes, and his understanding that he was to safeguard the Defendant’s residence while they were gone on vacation, Plaintiff complied with the Defendants’ requests and asked Cruz to leave the residence. He refused. Cruz then came closer to Plaintiff, yelled a series of expletives within inches of his face, and proceeded to forcefully push Plaintiff to the ground. In doing so, Plaintiffplaced his right am} behind him to catch the fall 15. Plaintiff’s right shoulder came out of its socket when he attempted to catch his fall, resulting in immediate, severe pain. Upon seeing Plaintiff was severely injured, Cruz fled the scene of the injury and Plaintiff sought emergency medical care when the pain did not subside. 16. Upon obtaining medical care, Plaintiff learned that some of the ligaments around his right shoulder socket had been torn. Consequently, he was unable to type, get dressed, play COMPLAINT \DMQONUI-RWNH NNNNNNNNNHHHHHH OOleUIhbJNwaeooquI-kas:g sports, and or function as usual in any regard for many months. Finally, this pain and the associated life-changes became so severe that Plaintiff decided to move forward with a surgical procedure to alleviate some of his shoulder discomfort on August 9, 2019. This surgery required months of “down time” and Plaintiff’s shoulder never completely returned to “normal”. 17. As a consequence of the foregoing physical limitations imposed by his shoulder injury, Plaintiff was unable to work full time for a period of months, and also struggled to get through normal daily activities such as brushing his teeth, using his phone, attempting to type and/or use a computer, and he was completely unable to engage in the sports that he participated in prior to the injury. 18. Upon requesting that Defendants simply help pay for Plaintiff’s medical bills, Plaintiff received no response, and therefore was forced to bring the instant action. FIRST CAUSE OF ACTION For Negligence as to Defendants Melissa and Edouard Nguven 19. Paragraphs preceding are incorporated as if fully set forth herein. 20. Defendants had a duty to not place Plaintiff into a situation which they were aware could and would be dangerous to Plaintiff’s health and well-being and to ensure that Plaintiff was not put into any situation that constituted a dangerous condition. 21. Defendants, and each of them, had a duty not to act in a grossly negligent manner by placing Plaintiff in unacceptably dangerous conditions that could have easily been prevented by taking measures to provide notice to Plaintiff, ahead of time, of the dangerous condition and/or situation before it arose. 22. Defendants, and each of them, breached that duty by failing to remove a dangerous condition and/or situation from their property, failing to warn Plaintiff of that dangerous condition and/or situation, and instead knowingly demanding that Plaintiff insen himself in a dangerous situation as part of his “job”. COMPLAINT WWQQUIhMNi-l NNNNNNNNNHHHh-AHHHH 00~JONM§WNH©©OOQQUIth=3 23. Defendants, and each of them, further breached that duty by demanding that Plaintiff, without help, eject ad adult male from the residence located at 2648 La Mirada Drive in San Jose, California, while knowing that this individual posed a direct threat to Plaintiff’s safety. 24. In the process of working on behalf of Defendants at their residence, Plaintiff was severely injured, as his right shoulder was dislocated, and other significant injuries required emergency room hospitalization, observation, surgical intervention, and a long term treatment plan. 25. Defendants’ conduct in failing to maintain their store’s premises in a manner that would render it safe for Plaintiff, as well as failing to warn Plaintiff of the dangerous condition and/or situation- 0r s making any attempt to do so at all, in addition to failing to rectify the hazardous condition and/or situation on Defendant’s property were a substantial factors in, as well as direct and proximate causes of Plaintiff’s injuries as described above. 26. Defendants’ actions as described herein constitute an extreme departure from what a reasonably carefill person would do in the same situation to prevent harm t0 oneself or others, demonstrating a “want of even scant care” and rising to the level of gross negligence. Second Cause of Action For Assault and Batten (Against Defendant Cruz) 27. The Paragraphs preceding are incorporated as if fully set forth herein. 28. Defendant Cruz acted, intending to cause harmful and offensive contact to Plaintiff. 29. Plaintiff reasonably believed that he was about to be attacked in a harmful and offensive manner. 30. Plaintiff did not consent, at any time to Cruz’s conduct. 31. As a direct and proximate result of Cruz’s conduct in pushing Plaintiff to the ground, Plaintiff suffered severe physical harm; and COMPLAINT WOOQGNUIANNt-I NNNNNNNNNHHHHHHuer-t cedaUI-kmNchOOQQUI-thr-dc 32. Cruz’s conduct in pushing Plaintiff was a substantial factor in causing Plaintiff’s injuries and harm as set forth in detail, above. 33. Cruz’s conduct was so malicious, brazen and oppressive, given that he intentionally inflicted severe bodily injury upon Plaintiff simply because Plaintiff was abiding by the wishes of Defendants Melissa and Edouard Nguyen in protecting their home that a punitive damages award is justified against Cruz. PRAYER FOR RELIEF: WHEREFORE, Plaintiffprays for declaratory relief and judgment as follows: 1. For Compensatory Damages to Compensate Plaintiff for all amounts that he lost as a result ofDefendants actions as set forth herein; 2. Pre-judgment and post-judgment interest as allowed by law; 3 For General Damages according to proof; 4. For Punitive Damages against Defendant Cruz; 5 Such other and further legal and equitable relief as the Court deems just and proper. Law Offices of Heather Gibson, P.C. xx’%%fl% Dated: September 24, 2020 By‘ Heather E. Gibson, Esq., Attorneys for JOHN PHUNG COMPLAINT