Cross Complaint

Cal. Super. - 6th Dist.March 24, 2021

O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA 21 CV381 1 90 Santa Clara - Civil Victoria Castaned NORA FRIMANN, Assistant City Attorney (#93249) Electronlgally Filed CHRISTIAN B. NIELSEN, Chief Deputy City Attorney (87972) by Superlor Court of CA, GABRIEL RODRIGUEZ, Deputy City Attorney ||| County of Santa Clara, Office of the City Attorney on 8/26/2021 2:44 pM th200 East, Sant_a C|_ara Street, 16 Floor Reviewed By: Victoria CastarSan Jose, California 951 13-1905 Telephone Number: (408) 535-1900 Case #21CV381 190 Facsimile Number: (408) 998-3131 ENVelopei 7147090 E-Mail Address: cao.main@sanjoseca.gov Attorneys for CITY OF SAN JOSE Exempt from Filing Fees -Gov. Code § 6103 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION Case Number: 21CV381 190 Plaintiff DEFENDANT CITY OF SAN JOSE’S ’ CROSS-COMPLAINT AGAINST RAUL V ARIAS, INDIVIDUAL, JOSE ' MENDOZA, INDIVIDUAL AKA RAUL ARIAS, individual, JOSE CESAR") CRUZ FOR: MENDOZA, individual aka CESARIO _ CRUZ, CITY 0F SAN JOSE, a municipal 1- EQUITABLE INDEMNITY, corporation, DOES 1-10, inclusive, 2- CONTRIBUTION; AND 3. DECLARATORY RELIEF. NAYOUNG LEE, Defendants. CITY OF SAN JOSE Cross-Complainant, v. RAUL ARIAS, individual, JOSE MENDOZA, individual aka CESARIO CRUZ, and ROES 1-50 inclusive Cross-Defendants. _ 1 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 CV381 190 1845935.doc Ieda O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA COMES NOW, Cross-Complainant City of San José (“City”) and for a cause of action against Cross-Defendants, and each of them, as follows: GENERAL ALLEGATIONS 1. At all times mentioned herein, City was and now is a municipal corporation duly organized and existing under the laws of the State of California. 2. At all times mentioned herein, Cross-Defendant County of Santa Clara was and now is an incorporated California County. 3. The City has complied with all applicable claims statutes. 4. On or about March 24, 2021 (“Plaintiff”) filed the Complaint herein against the City of San José, Raul Arias, an individual, Jose Mendoza aka Cesario Cruz, an individual, and “Doe” defendants 1-10, seeking damages based upon causes of action of general negligence as to individual Defendants and premise liability as to the Defendant City for an alleged injury sustained on or about August 10, 2020, when Plaintiff was allegedly struck from behind by a cyclist while walking along the Guadalupe River Trail (“Trail”) in San Jose, California. Plaintiff alleges that Defendant City of San Jose owns, maintains, manages, and operates the Trail. 5. Plaintiff further claims that her accident was the result of the City’s creation of a dangerous condition, negligence and failure to correct the dangerous of condition of public property, and failure to warn or guard against a dangerous condition. Plaintiff’s Complaint identifies neither the location along the Trail of the alleged incident nor the dangerous condition for which the City is liable. 6. At all times alleged herein, Cross-Defendants, and each of them, owed a duty to Plaintiff to use the Guadalupe River Trail and operate their bicycles in a safe and reasonable manner, including but not limited to, observing the posted speed limit on said Trail. 7. The true names and capacities, whether individual, corporate or associate, of other cross-defendants named herein as Roes 1 through 50, inclusive, and each of them, are _ 2 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA unknown to the City, which therefore sues said cross-defendants by such fictitious names. When the true names and capacities of said cross-defendants are ascertained, the City will amend this Cross-Complaint by inserting said true names and capacities in place of said fictitious names. The City is informed and believes and hereon alleges that Roes 1 through 50, inclusive, and each of them, are legally responsible in some manner for the events and happenings referred to herein and proximately caused or contributed to the injuries and damages to the Plaintiff, if any there were. Wherever in this Cross-Complaint, any Cross- Defendant is subject to any charging allegation by this Cross-Complaint, it shall be deemed that said Cross-Defendants, Roes 1 through 50, inclusive, and each of them, are likewise the subject of said charging allegation. 8. The City is informed and believe and thereon alleges, that at all times herein mentioned, the Cross-Defendants, and each of them, were the agents, servants and employees of each of the remaining cross-defendants and in doing the acts herein alleged, were acting within the purpose and scope of said agency or employment, and with the consent, permission, and knowledge of each of the other cross-defendants. FIRST CAUSE OF ACTION (Equitable Indemnity) 9. City re-alleges and incorporates herein by reference each and every allegation set forth above in Paragraphs 1 through 8, as if fully set forth herein. 10. City, at all times, denies any and all liability in connection with the action in chief, but in the event premises liability or any other liability is established in connection with the action in chief, the City alleges that if such liability exists, it would be based solely upon a derivative form of liability not resulting from City’s conduct, but from an obligation imposed by law or as a direct and legal result of the active and primary negligence, carelessness, acts and omissions of Cross-Defendants, and each of them. The City’s liability, if any, is passive and secondary in relation to the conduct of Cross-Defendants, and each of them. _ 3 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA 11. Therefore, the City is entitled to indemnification from Cross-Defendants, and each of them, for total, and/or partial implied comparative indemnity. 12. The City is informed and believes and thereon alleges that on the dates of the events and happenings referred to in Plaintiff’s Complaint, there were in full force and effect certain implied agreements between the City and Cross-Defendants, and each of them, to the effect that the City shall have either compete and/or partial indemnity from Cross- Defendants, and each of them, further providing that Cross-Defendants, and each of them, shall hold the City harmless and further providing that Cross-Defendants, and each of them, shall defend the City with regard to any and all claims made by Plaintiff, and that the City has fulfilled all terms, covenants and conditions of the said implied agreements. 13. An actual controversy has arisen and now exists between City and Cross- Defendants, and each of them, in that City contends, and Cross-Defendants deny, the following: (a) As between City and Cross-Defendants, responsibility, if any, for the damages claimed by Plaintiff herein, rests entirely or partially with Cross-Defendants, and each of them; (b) As a result, Cross-Defendants, and each of them, are obligated to partially or fully indemnify City for any sums that City may be compelled to pay as the result of any damages, judgment, or other awards recovered by Plaintiff against City. (c) This Cross-Complaint shall serve as notification to Cross- Defendants, and each of them, that the City hereby tenders to Cross-Defendants, and each of them, the obligation to defend and indemnify the City pursuant to, without limitation, Code of Civil Procedure section 1021 .6 in this action. The City is informed and believes and thereon alleges that each of the said Cross-Defendants refuse the City’s tender of defense and indemnity. WHEREFORE, City prays for relief as hereinafter set forth. _ 4 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA SECOND CAUSE OF ACTION (Contribution) (Against All Defendants) 14. City re-alleges and incorporates herein by reference each and every allegation set forth in Paragraphs 1 through 13, as if fully set forth herein. 15. In the event liability should be established on the part of City, which liability is expressly denied, City is informed and believes, and thereon alleges, that it may be obligated to pay sums representing a percentage of liability not City’s own, but rather that of Cross- Defendants, and each of them, because each Cross-Defendant was responsible, in whole or in part, for the injuries, if any, suffered by Plaintiff. 16. City seeks an apportionment of fault by an adjudication and determination of the respective degrees of liability, if any, by which City is found liable, if at all, which actually represents the proportionate degree of fault of each Cross-Defendant. 17. City seeks contribution in that each Cross-Defendant be required to: 1) pay a share of Plaintiff’s judgment which is in proportion to the comparative liability of each Cross- Defendant in causing Plaintiff damages, if any; and 2) to reimburse City for any payments made or required to be made to Plaintiff arising out of this litigation in excess of any proportional share of all Cross-Defendants’ liability. WHEREFORE, CITY prays for relief as hereinafter set forth. THIRD CAUSE OF ACTION (Declaratory Relief) (Against All Defendants) 18. City re-alleges and incorporates herein by reference, each and every allegation set forth in Paragraphs 1 through 17, as if fully set forth herein. 19. A determination of liability, if any, ofthe City and Cross-Defendants, and each of them, is necessary to protect the rights of City against said Cross-Defendants and each of them. /// _ 5 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA 20. An actual controversy has arisen and now exists between City and Cross- Defendants, and each of them, in that City contends, and Cross-Defendants deny, the following: (a) As between City and Cross-Defendants, responsibility, if any, for the damages claimed by Plaintiff herein rests entirely or partially with Cross-Defendants, and each of them; (b) As a result, Cross-Defendants, and each of them, are obligated to partially or fully indemnify City for any sums that City may be compelled to pay as the result of any damages, judgment, or other awards recovered by Plaintiff against Cross-Defendants. 21. City desires a judicial determination of the respective rights and duties of City and Cross-Defendants with respect to the damages claimed in Plaintiff’s Complaint. In particular, City desires a declaration of the liability of City and Cross-Defendants, and each of them, for Plaintiff's damages, if any, and a declaration of Cross-Defendants' responsibility for indemnity to City for any sums that City may be compelled to pay and for which Cross- Defendants are determined to be responsible for, either in whole or in part. 22. Such a declaration is necessary and appropriate at this time in order that City may ascertain its rights and duties with respect to Plaintiff's claim for damages. Furthermore, the claim of Plaintiff and the claim of City arise out of the same transaction, and determination of both in one proceeding is necessary and appropriate in order to avoid the multiplicity of actions that would result if City is required now t0 defend against the claim of Plaintiff and then bring a separate action against Cross-Defendants for indemnification of sums that City may be compelled to pay as a result of any damages, judgment, or other awards recovered by Plaintiff against City. WHEREFORE, CITY prays for relief as hereinafter set forth. /// /// _ 6 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA PRAYER WHEREFORE, City prays forjudgment against Cross-Defendants, and each of them, as follows: 1. For a declaration ofthe right of indemnity, including, without limitation, implied indemnity owing to City by each of the Cross-Defendants; 2. For a declaration that City is entitled to full and complete indemnity and is to be held harmless by Cross-Defendants, and each of them, from any and all costs, attorney’s fees, expert witness fees, and other expenses expended by City in preparation of its defense and in prosecution of this Cross-Complaint, in addition to any monies expended in settlement of this action, in satisfaction of judgment and for any other costs or attorney’s fees that City may be required to incur or pay in this action; 3. That the Court declare the respective rights and duties of City and Cross- Defendants and further declare that City is entitled to indemnity and/or contribution from Cross-Defendants, and each of them, in proportion to the relative responsibilities of the parties under the concept of comparative contribution according to each party's comparative fault; 4. That City have judgment against Cross-Defendants, and each of them, for contribution and/or indemnity in an amount which is proportional to the percentage of liability attributable to each Cross-Defendant; 5. For costs, expenses, expert witness fees, and attorneys' fees incurred herein; and 6. For such other and further relief as the Court may deem just and proper. Respectfully submitted, Dated: August 26, 2021 NORA FRIMANN, City Attorney By: /s/Gabriel A. Rodriquez GABRIEL A. RODRIGUEZ Attorneys for Defendant and Cross- Complainant, CITY OF SAN JOSE _ 7 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc OOWNGU‘I-POON-K NNNNNNNNNAAAAAAAAAA mNmm-thAOQmem-POONA PROOF OF SERVICE CASE NAME: Nayong Lee v. Raul Arias, et al. CASE NO.: 21CV381 190 I, the undersigned declare as follows: | am over 18 years of age and not a party to this action. My business address is 200 East Santa Clara Street, San Jose, California 951 13-1905, and is located in the county where the service described below occurred. On August 26, 2021 caused to be served the within: DEFENDANT CITY OF SAN JOSE’S CROSS-COMPLAINT AGAINST RAUL ARIAS, D INDIVIDUAL, JOSE MENDOZA, INDIVIDUAL AKA CESARIO CRUZ FOR: 1. EQUITABLE INDEMNITY; 2. CONTRIBUTION; AND 3. DECLARATORY RELIEF. by MAIL, with a copy of this declaration, by depositing them into a sealed envelope, with postage fully prepaid, and causing the envelope to be deposited for collection and mailing on the date indicated above. | further declare that | am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. Said correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business. by PERSONAL DELIVERY, with a copy of this declaration, by causing to be Belrsonally delivered a true copy thereof to the person at the address set forth e ow. by ELECTRONIC SERVICE listed below, transmitted using the One Legal Process Service electronic filing system. The document(s) listed above was/were electronically served to the electronic address(s) below: by ELECTRONIC TRANSMISSION, with a copy of this declaration, to an electronic address listed below. | further declare that the electronic transmission was sent on , before 5:00 p.m., and that the City of San Jose, City Attorney’s electronic address is CAO.Main@sanioseca.qov. The above-described transmission was reported as sent by a transmission report available for printing from the computer. by EXPRESS MAIL, with a copy of this declaration, by depositing them into a sealed envelope, with postage fully prepaid, and causing the envelope to be deposited for collection and mailing on the date indicated above. CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc OOWNGU‘I-POONA NNNNNNNNNAAAAAAAAAA mNOUU‘l-PCDNAOCOWVGU'I-POONA | further declare that | am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. Said correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business. D by OVERNIGHT DELIVERY, with a copy of this declaration, by depositing them into a sealed envelope/package, with delivery fees fully prepaid/provided for, and D causing the envelope/package to be deposited for collection D causing the envelope/package to be delivered to an authorized courier or driver to receive the envelope/package designated by the express service carrier for next day delivery. | further declare that | am readily familiar with the business’ practice for collection and processing of correspondence for overnight delivery by an express courier service. Such correspondence would be deposited with the express service or delivered t0 the authorized express service courier/driver to receive an gnvglope/package for the express service that same day in the ordinary course 0f usmess. Addressed as follows: James J. Kim Charles J. Smith Kim & Associates Law Offices of Charles J. Smith 1970 Broadway, Suite 1030 777 Marshall Street Oakland, CA 94612 Redwood City, CA 94063 51 0-444-0709 650-568-2820 51 0-444-1 291 smith@hslawoffice.com ikim@roklaw.com Attorney for Defendant, Raul Arias Attorney for Plaintiff Nayoung Lee | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 26, 2021, at San Jose, California. ls/Tammv Clark TAMMY CLARK _ 9 _ CITY’S CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF 21 cv381 190 1845935.doc