Cross ComplaintCal. Super. - 6th Dist.December 14, 2020PLD-Pl-002 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): Ross R. Nott SBN: 172235 -SPINELLI DONALD & NOTT APC 601 University Avenue, Suite 225 SACRAMENTO, CA 95825 TELEPHONE NO: (916) 448-7888 E-MAIL ADDRESS (Optional,l:rossn@sdnlaw.com FAX NO. (Optional,):(916) 448-6888 ATTORNEY FOR (Name): Mt. Pleasant Elementary School District NAME OF COURT: Superior Court of California, County of Santa Clara STREET ADDRESS: 191 North First Street MAILING ADDRESS: 191 North First Street CITY AND ZIP CODE: San Jose, 95113 BRANCH NAME: Downtown Superior Court SHORT TITLE: Doe v. Santa Clara County Office of Education CROSS-COMPLAINANT: Mount Pleasant Elementary School District CROSS-DEFENDANT: Santa Clara County Office of Education [xJ DOES 1 TO 25 CROSS-COMPLAINT-Personal Injury, Property Damage, Wrongful Death CJ AMENDED (Number): Causes of Action (check all that apply): [[] Apportionment of Fault Du Declaratory Relief [xJ Indemnification [xJ Other (specify):Breach of Contract FOR COURT USE ONLY Jurisdiction (check all that apply): CASE NUMBER: CJ ACTION IS A LIMITED CIVIL CASE ($25,000 or less) [xJ ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) 20CV374714 It CJ is IT] is not reclassified as unlimited by this cross-complaint 1. CROSS-COMPLAINANT (name): Mount Pleasant Elementary School District alleges causes of action against CROSS-DEFENDANT (name): Santa Clara County Office of Education and Does 1-10 2. This pleading, including exhibits and attachments, consists of the following number of pages: -~4 __ 3. Each cross-complainant named above is a competent adult a. [JG except cross-complainant (name): Mount Pleasant Elementary School District (1) CJ a corporation qualified to do business in California (2) C=:J an unincorporated entity (describe): (3) [xJ a public entity (desciribe): California Public School District (4) c=J a minor CJ an adult (a) CJ for whom a guardian or conservator of the estate or a guardian ad litern has been appointed (b) c=J other (specify): (5) CJ other (specify): CJ Information about additional cross-complainants who are not competent adults is contained in Cross-Complaint-Attachment 3. Page 1 of 3 Form Approved for Optional Use Judicial Council of California PLD-Pl-002 [Rev. January 1, 2007] CROSS-COMPLAINT-Personal Injury, Property Damage, Wrongful Death Code of Civil Procedure, § 425.12 Westlaw Doc & Fonn Builder Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/1/2021 4:24 PM Reviewed By: Y. Chavez Case #20CV374714 Envelope: 6557213 20CV374714 Santa Clara - Civil Y. Chavez PLD-Pl-002 SHORT TITLE: Doe v. Santa Clara County Office of Education CASE NUMBER: 20CV374714 4. Each cross-defendant named above is a natural person a. [xJ except cross-defendant (name): SCCOE b. c=J except cross-defendant (name): (1) [:=J a business organization, form unknown (2) c:J a corporation (1) c:J a business organization, form unknown (2) c:J a corporation (3) c:J an unincorporated entity (describe): (4} [xJ a public entity (describe): County Office of Education (5) CJ other (specify): (3) c:J an unincorporated entity (describe): (4) c:J a public entity (describe): (5} c:J other (specify): c:J Information about additional cross-defendants who are not natural persons is contained in Cross-Complaint-Attachment 4. 5. The true names and capacities of cross-defendants sued as Does are unknown to cross-complainant. 6. C=1 Cross-complainant is required to comply with a claims statute, and a. c=J has complied with applicable claims statutes, or b. [:J is excused from complying because (specify): 7. [xJ First Cause of Action-Indemnification -----~aa,,a.___ ____ _ (NUMBER) a. Cross-defendants were the agents, employees, co-venturers, partners, or in some manner agents or principals, or both, for each other and were acting within the course and scope of their agency or employment. b. The principal action alleges, among other things, conduct entitling plaintiff to compensatory damages against me. I contend that I am not liable for events and occurrences described in plaintiff's complaint. c. If I am found in some manner responsible to plaintiff or to anyone else as a result of the incidents and occurrences described in plaintiff's complaint, my liability would be based solely upon a derivative form of liability not resulting from my conduct, but only from an obligation imposed upon me by law; therefore, I would be entitled to complete indemnity from each cross-defendant. 8. [xJ Second Cause of Action-Apportionment of Fault (NUMBER) a. Each cross-defendant was responsible, in whole or in part, for the injuries, if any, suffered by plaintiff. b. If I am judged liable to plaintiff, each cross-defendant should be required: (1) to pay a share of plaintiffs judgment which is in proportion to the comparative negligence of that cross-defendant in causing plaintiff's damages; and (2) to reimburse me for any payments I make to plaintiff in excess of my proportional share of all cross-defendants' negligence. PLD-Pl-002 [Rev. January 1, 2007] CROSS-COMPLAINT-Personal Injury, Property Damage, Wrongful Death Page 2 of 3 PLD-Pl-002 SHORT TITLE : Doe v. Santa Clara County Office of Education CASE NUMBER: 20CV374714 9. [xJ ____ _,.aaT __ h=-ird ______ _ Cause of Action-Declaratory Relief (NUMBER) An actual controversy exists between the parties concerning their respective rights and duties because cross-complainant contends and cross-defendant disputes CJ as specified in Cross-Complaint-Attachment 9 [xJ as follows: Cross-Complainant is entitled to be defended by, and at the sole expense of, Cross-Defendant as well as to be fully indemnified for the claims of Plaintiff, Jane McDoe in this action. Cross-Complainant has requested defense and indemnity from Cross-Defendant which has not been accepted or provided to date. Therefore, a declaration of Cross-Defendant's obligation to pay for the defense of, reimburse Cross-Complainant as well as to fully indemnify Cross-Complainant is requested from the Court. 10. [X] Fourth Cause of Action-(specify): -----------'-'----'------- (NUMBER) Duty to Defend: Prior to the occurrence of Plaintiffs claim, Cross-Defendant agreed to defend Cross-Complainant for any claims arising out of injury to persons through any negligent act or omission of Cross-Defendant, its officers, employees or agents. Plaintiffs Complaint herein alleges injury to her person through the negligent acts or omissions of SCCOE and its personnel. As a result, Cross-Defendant has a current and active duty to defend Cross-Complainant in this action. 11 . [xJ The following additional causes of action are attached and the statements below apply to each (in each of the attachments, "plaintiff" means "cross-complainant" and "defendant" means "cross-defendant'1: a. CJ Motor Vehicle b. C=1 General Negligence c. C=1 Intentional Tort d. C=1 Products Liability e. C=1 Premises Liability f. LI] Other (specify): Breach of Contract 12. CROSS-COMPLAINANT PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. LI] total and complete indemnity for any judgments rendered against me. b. LI] judgment in a proportionate share from each cross-defendant. c. CxJ a judicial determination that cross-defendants were the legal cause of any injuries and damages sustained by plaintiff and that cross-defendants indemnify me, either completely or partially, for any sums of money which may be recovered against me by plaintiff. d. [xJ compensatory damages (1} LI] (unlimited civil cases) according to proof. (2) CJ (limited civil cases) in the amount of:$ e. CxJ other (specify): All costs of defense incurred by Cross-Complainant in this action including attorney' s & expert fees . 13. C=:J The paragraphs of this cross-complaint alleged on information and belief are as follows (specify paragraph numbers): Date: June 1. 2021 Ross R Nott (TYPE OR PRINT NAME) PLD-Pl-002 [Rev. January 1, 2007] ► CROSS-COMPLAINT-Personal Injury, Property Damage, Wrongful Death MPLAINANT OR ATTORNEY) Page 3 of 3 SHORT TITLE: Doe v. Santa Clara County Office of Education CASE NUMBER: 20CV374714 Fifth CAUSE OF ACTION-Breach of Contract (number) ATTACHMENT TO CJ Complaint ITJ Cross - Complaint (Use a separate cause of action form for each cause of action.) PLD-C-001 (1) BC-1. Plaintiff (name): Cross-Complainant, Mount Pleasant Elementary School District alleges that a written agreement was made between the parties in June 2013 applicable to the 2013/14 school year. alleges that on or about (date): a CJ written CJ oral ~ other (specify): agreement was made between (name parties to agreement): Santa Clara County Office of Education and Does 1 -10 CJ A copy of the agreement is attached as Exhibit A, or Du The essential terms of the agreement Du are stated in Attachment BC-1 CJ are as follows (specify): BC-2. On or about (dates): J anuarv 2021 to oresent defendant breached the agreement by CJ the acts specified in Attachment BC-2 CJ the following acts (specify): Refusing to defend Cross-Complainant as contractually obligated. BC-3. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing. BC-4. Plaintiff suffered damages legally (proximately) caused by defendant's breach of the agreement Du as stated in Attachment BC-4 [X] as follows (specify): Cross-Complainant continues to incur costs of defending itself in this action. BC-5. [TI Plaintiff is entitled to attorney fees by an agreement or a statute CJ of$ IT] according to proof. BC-6. [TI Other: Defense costs including but not limited to attorney's fees, expert witness costs and litigation costs as well as any applicable indemnity. Form Approved for Optional Use Judicial Council of California PLD-C-001 (1) [Rev. January 1. 2007] CAUSE OF ACTION-Breach of Contract Page ____ _ Page 1 of 1 Code of Civil Procedure, § 425.12 www.courtinfo.ca.gov Westlaw Doc 8, Form Builder MC-025 SHORT TITLE: Doe v. Santa Clara County Office of Education CASE NUMBER: 20CV374714 ATTACHMENT (Number): __ ___.R ..... C ...... -..... J __ _ (This Attachment may be used with any Judicial Council form.) Cross-Defendant agreed to assume the defense of and indemnify/save harmless Cross-Complainant from every expense, liability, or payment by reason of any injury to persons suffered through any act or omission of Cross- Defendant, its officers, employees or agents arising from the performance of Outdoor Science School Agreement Services. Plaintiff in this action seeks to recover damages arising from harm committed upon her by a then-employee of Cross-Defendant who was allegedly negligently hired, trained and/or supervised by Cross- Defendant Plaintiffs Complaint herein gives rise to the current and active duty of Cross-Defendant to defend, indemnify and save harmless Cross-Complainant for any expense including defense costs including but not limited to attorney's fees and litigation costs. Cross--Defendant has breached this agreement by refusing to defend and/or indemnify Cross-Complainant as it is contractually obligated. (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT to Judicial Council Form Page _l_ of _1_ (Add pages as required) www.courtinfo.ca.gov Westlaw Doc & Fonn Builder- 1 PROOF OF SERVICE 2 COURT: Superior Court of California, County of Santa Clara 20CV374714 CASE NO.: 3 CASENAME: Mc Doe v. Santa Clara County Office of Education, et al. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I am a citizen of the United States, employed in the County of Sacramento, State of California. My business address is 601 University Avenue, Sacramento, CA 95825. I am over the age of 18 and not a party to the above-entitled action. I am readily familiar with Spinelli, Donald & Nott's practice for collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is· sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day's mail is collected and deposited in a U.S. mailbox at or before the close of each day's business. (Code Civ. Proc., § 1013a(3) or Fed.R.Civ.P.5(a) and 4.1.) On June 1, 2021, I caused the within, Summons and Cross-Complaint, the original of which was produced on recycled paper, to be served via IZl MAIL Placed in the United States Mail at Sacramento, California in an envelope with postage thereon fully prepaid addressed as follows: Morgan A. Stewart mstewart@manlystewart.com Saul E. Wolf swolf@manlystewart.com Christina J. Nolan cnolan@manlystewart.com Manly, Stewart & Finaldi 19100 Von Karman Avenue, Suite 800 Irvine, CA 92612 Mark E. Davis Eric J. bengtson Davis & Young, APLC 1960 The Alameda, Suite 210 San Jose, CA 95126 669/245-4200 408/985-1814 eric@davisvounolaw.com 0 FAX AND MAIL-- Counsel for Plaintiff Counsel for Santa Clara Co. Office of Education I personally sent to the addressee's telecopier number indicated below a true copy of the above-described document(s) before 5:00 p.m. I verified transmission without error by a SPINELLI, DONALD &NOTT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPINELLI, DONALD &NOTT transmission report issued by the facsimile machine upon which said transmission was made immediately following the transmission. Thereafter, I placed a true copy in a sealed envelope with the first class postage affixed and mailed as follows: 0 PERSONAL SERVICE-- By causing delivery by hand to the addressee addressed as follows: □ FEDERAL EXPRESS-- By causing delivery by Federal Express of the document(s) listed above to the person(s) at the address( es) set forth below: ~] BY ELECTRONIC SERVICE-- I caused such document to be electronically served to the above I declare under penalty of perju under the laws of the State of California that the foregoing is true and correct. Executed on M 17, ,20f ~ ,~ ento/ f alifomia. 'I~ Shelley i.Gra;da