Rosemary Newcombe vs. Dennis Buster

Motion for Leave to Amend

Cal. Super. - 4th Dist.October 13, 2015

= W w W S N e e 1 O N L n 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BISNAR|CHASE ONE NEWPORT PLACE 1301 Dove Street, Suite 120 Newport Beach, CA 92660 Phone: (949) 752-2999 Facsimile: (949) 752-2777 BRIAN D, CHASE, STATE BAR NO. 1641{9 H. GAVIN LONG, STATE BAR NO. 204034 Attorneys for Plaintiff ROSEMARY NEWCOMBE SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ROSEMARY NEWCOMBE, Plaintiff, vs. DENNIS BUSTER; and DOES 1 to 10, inclusive, Defendants.. CASE NO. 30-2015-00814388 Assigned for All Purposes to: Judge Craig Griffin Department C-17 NOTICE OF MOTION and MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF H. GAVIN LONG IN SUPPORT Case Filed: October 13, 2015 Trial Date: November 28, 2016 Hearing Date: July 25, 2015 Time: 2:00 p.m. Dept: C-17 RESERVATION NO. 72393409 TO DEFENDANT DENNIS BUSTER AND TO LAW OFFICE OF STEVEN D. LEVINE, HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 25, 2016, at 2:00 p.m. or as soon thereafter as the matter may be heard in Department C-17 of the above-captioned Court, located at 700 Civic Center Drive, Santa Ana, California, Plaintiff ROSEMARY NEWCOMBE will and hereby does move, pursuant to C.C.P. § 473(a)(1), for leave to file a first-amended complaint seeking NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT punitive and exemplary damages as against Defendant DENNIS BUSTER, and adding supporting charging factual allegations at § 10 of the proposed First-Amended Complaint. This motion is made on the grounds that the discovery and evidence in this matter reveals the willful and reckless manner in which Mr. Buster was driving leading up to the accident which is the subject matter of this action. This case is heading to trial and Plaintiff seeks to prepare for that trial to put at issue all possible claims for recovery, including the imposition of punitive damages. Because the allegations contained in the proposed Paragraph 10 evidence Mr, Buster’s conscious disregard of Plaintiff's (and other drivers’) rights and safety by deliberately and willfully exposing Plaintiff to the risk of death and/or serious injury solely for the Mr. Truong’s self-consumed aggrandizement, an award of punitive and exemplary damages is proper and appropriate under well-established California law directly on point. Accordingly, Plaintiff hereby move for leave pursuant to C.C.P. § 473(a)(1) to file her first-amended complaint seeking an award of punitive damages as well as containing supporting charging factual allegations, as against Defendant DENNIS BUSTER. This motion is based on this Notice and accompanying Memorandum of Points and Authorities and Declaration of H. Gavin Long; upon such matters of which this Court must and may take judicial notice; the pleadings in the court’s file; and upon such other than further oral and documentary evidence as may be presented at the time of the hearing hereon. DATED: June {2016 /i ICAASE l IAN/D. CHASE, Esq. IN LONG, Esq. orngys for Plaintiff 2NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES IL PERTINENT FACTUAL BACKGROUND This accident was caused by the dangerous driving of Defendant DENNIS BUSTER in which he approached an intersection, controlled by a traffic control signal, at a high rate of speed. He ignored the fact that the light was RED for his direction oftravel on Ave Vista Hermosa, and charged into the intersection, where another car was turning left. He hit that car then, as his car rebounded from that collision, spun across the intersection to the point that Plaintiff was waiting, stopped by a red light at the limit line for traffic on Camino Farro at the intersection. Under these pleaded facts, set out in Paragraphs 10 to 13 ofthe proposed First Amended Complaint, Plaintiffs are entitled to an award of exemplary damages against Dennis Buster, pursuant to Civ.C. § 3294(c)(1), and the rule enunciated in Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115; Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal.App.3d 374, 381-382; and Dawes v. Superior Court (Mardian) (1980) 111 CalApp.3d 82, 89. Because ofthe reckless and willful conduct evidencing a conscious disregard for the safety of drivers on the roadway, like Plaintiff, and since Mr. Buster disregarded the “probable risk of injury” he created for the other drivers on the roadway by those acts, an award of punitive and exemplary damages is proper and appropriate to compensate Plaintiff and to punish the Defendant and to deter such conduct in the future. Accordingly, Plaintiff hereby seeks leave to amend her complaint accordingly. II. THE POLICY OF LIBERALITY IN THE AMENDMENT OF PLEADINGS MANDATES PERMITTING THE AMENDMENT SOUGHT HEREIN. Liberality in permitting amendmentis the rule of law in California and is established under Code ofCivil Procedure § 473(a), which provides that the “court may, in the interests of justice, and on such termsand may be proper, allow a party to amend any pleading...” C.C.P. § 473(a)(1); Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19; Nestle v. Santa Monica (1972) 3NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT L e e 1 S y t h l m w d R N ) B R B N N N D = = = = e e e d e d e e e e d o c 1 O y L h B R W N = O O e y h B R W N = D 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. This policy favoring amendmentis so strong that it is a rare case in which denial of leave to amend can be justified: If the motion to amend is timely made, and will not prejudice the opposing parties, it is error to refuse the amendment sought; and, where the refusal also results in a party being deprived ofthe right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie, supra, 61 Cal.App.4th at 596.) Another court has described the error for refusing leave to allow an amended pleading “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; see also Mesler v. Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 297.) Prejudice is demonstrated when trial must be delayed resulting in an impending loss of critical evidence, or when the proposed amendment would unjustly increase the cost of preparing the case for trial. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488; sce also P & D Consultants, Inc. v. City ofCarlsbad (2010) 190 Cal.App.4th 1332, 1345.) This motion presents no prejudice to Defendant. Mr. Buster cannot claim that he has been surprised by the factual allegations or now must restructure his defense. (See Mesler, supra, 39 Cal.3d at 297 - no surprise to defendant because parties had conducted discovery on the issues sought to be raised by amendment.) Plaintiff has made this motion very timely,i.c., well before any trial or other “case determining” motion can be heard. With this proposed pleading, there is no significant change in the pleadings, there is no new information. Ample time remains before trial and discovery cut-off for the defense to explore the factual basis for the claim for punitive damages, the common nucleus of facts remains unchanged, and there accordingly more than ample time for the parties to complete all of their discovery and pretrial preparation unchanged from what could be expected before this motion was ever filed. Moreover, as the amendment in question is relatively minor as it involves the same core nucleus of fact as the causes of action already within the initial complaint, adds no new cause of 4NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N O o o ~ ] S A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action against the driver but merely prays additional relief for punitive damages based on facts already knownto the parties (with appropriate charging factual allegations at 49 10 to 13 of the First-Amended Complaint) there is no conceivable prejudice in granting this motion, which public policy favors. The amendment is appropriate and necessary for two reasons. First, judicial policy favors resolution of all related, disputed matters and claims for relief among the parties in the same lawsuit: under these circumstances, denial of leave to amend would be contrary to public policy and prevailing law, and thus reversible error. (Mabie v. Hyatt, supra, 61 Cal.App.4th at 596; Morgan, supra, 172 Cal.App.2d at 530.) Second, and perhaps more poignant, it would be unjust to deny Plaintiff’s understandable and proper expression, through the vehicle ofthis lawsuit, of her justifiable outrage at the egregious facts of this case, by seeking the full measure of punitive damages appropriately assessed under the law against Mr. Buster, given his cavalier and conscious disregard of the rights and safety of Plaintiff and others who were driving along the same roads as he was, people who were seriously injured for no reason save Mr. Buster’s apparent need to get where he was going as quickly as was physically possible, even if that possibility included taking risks with the safety and well-being of others. II IT WILL BE IMPROPER FOR DEFENDANT TO ATTACK THE GRANTING OF LEAVE BY CLAIMING THAT THE PROPOSED PLEADING FAILS TO ALLEGE RECOVERABLE DAMAGE: THAT TASK MUST BE LEFT TO A MOTION TO STRIKE It is foreseeable that Defendant will oppose this motion by claiming that Defendant’s conduct was nothing more than “ordinary negligence” and incapable of being the basis for an award of punitive damages. It is well established under California law that an opposition to a motion for leave to amend is an improper vehicle for disputing the factual allegations or the legal consequences of the proposed first-amended complaint. “Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. Grounds for demurrer 5NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N o e 1 O N t e B e W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or motion to strike are premature. After leave is granted, the opposing party will have the opportunity to attack the validity of the amended pleading.” Weil & Brown, Cal. Civ.Proc. Before Trial (TRG 2002) 1 6:644, citing, Kitiridge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [Bold emphasis added].) It is anticipated that Defendant might attempt to rely on cases such as Cal. Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274 which allowed a general demurrer attack under the guise of an opposition for leave to file an amended complaint. While that case stands for the proposition that leave to amend may be denied whenit is clear as a matter of law that the new proposed cause of action fails to state a cognizable cause of action (thus being subject to general demurrer without leave to amend), that case does not stand for the proposition that a motion for leave to amend may be denied where the proposed amendment adds no new cause of action but merely supplies appropriate charging allegations supporting a prayer for additional punitive damages on an already existing cause of action as to which the appropriate challenging may be a motion to strike (and not a general demurrer). As correctly stated in Weil & Brown, Cal.Civ.Proc.Bef. Tr. (TRG 2003) q 7:42.1: “A motion to strike, not a general demurrer, is the procedure to attack an improper claim for punitive damages or other remedy demanded in the complaint.” (Jd. at p. 7- 18, citing, Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164-165.) Mr. Buster will, in due course, have his opportunity to ask the Court to determine whether or not the prayer for punitive and exemplary damages and the supporting allegations of Paragraphs 10 to 13 should be stricken from the First Amended Complaint afterit is filed. It would be error for the Court to deny leave to plead these allegations. 11 HH 6NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT O 90 ~ Oh th B W R ) h o B R B O R N R N R N R e m m m e m e m e d e d e m e m e d e e 0 0 ~~ ] O h t h h k W N = D Y Y n R W RN ) e e O D IV. CONCLUSION For all of the foregoing reasons, Plaintiff respectfully submits that this motion for leave to amend must be granted and the First Amended Complaint should be ordered filed and deemed served on all parties as of the date of the hearing ofthis motion. DATED: June 177, 2016 BISN 0 Attorneys isPlaintiffs By: 7NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT O 0 ~1 On ow BR W R ) O R O R O N O R N R N = = e m = e s e s e e e m 0 1 h h R k W N = © N Y 0 1 y h R W N N — D S SUPPORTING DECLARATION OF H. GAVIN LONG I, H. GAVIN LONG, do hereby state and declare as follows: 1. { am an attorney duly licensed to practice before this Court and before all of the courts of the State of California. | am an associate of the law firm of Bisnar|Chase, counsel of record for Plaintiffs in the instant action. 2. I have personal knowledge of the matters set forth herein, and if called upon as a witness, { could and would competently testify thereto. 3. This case is presently set for trial on November 28, 2016. This is an action arising from multiple motor vehicle collisions which occurred in a chain of events begun by Defendant DENNIS BUSTER’s dangerous and aggressive driving leading up to the multi-car accident. A true and correct copy of the Traffic Collision Report which was prepared for that chain of events is attached hereto as Exhibit “1”: it includes a description of driving as he approached the accident scene, as evidenced by the firsthand observations of witnesses Melissa Hood and Kevin Hood. These statements, plus additional witness testimony which has been obtained through investigation and discovery, serve as the basis for the allegations of Paragraphs 10 to 13 of the proposed First Amended Complaint. 4. This motion is timely: there is no significant change in the pleadings, four months remain before pre-trial discovery cutoff during which the parties can continue discovery into the factual basis of the allegations which has already begun, the common nucleus of facts remains unchanged, and thus more than ample time exists for the parties to complete all of their discovery and pretrial preparation including the defense’s preparation to convince the jury that Mr. Buster's aggressive driving was nothing more than “ordinary negligence”. 5. The defense cannot convincingly argue that it would be unjustly prejudiced by the requested order allowing this amended complaint. The amendment in question is relatively minor as it involves the same core nucleus of fact as the causes of action already within the initial complaint, adds no new cause of action, introduces no new facts not already well known to the defense. All it does is add a prayer for punitive damages which is based on facts already known to the parties (with appropriate charging factual allegations at §910 to 13 of the First Amended 7NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT N O 0 0 1 N h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint). 6. A true and correct copy of the proposed First Amended Complaint is attached hereto as Exhibit “2.” I declare under penalty of perjury under the laws of the State of £alifgenia that the foregoing is true and correct. /7, Dated: June Hh 2016 ~~ aL 8NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT h h k A Ww W N o ~ 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 EXHIBIT 1 9NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT SE UC LAL INIA TRAFFIC COLLISION REPORT/ CHP 555 CARS PAGE 1 (REV 11-06) OPI 065 pace | oF q— | {SPECIAL CONDITIEAS NUMBER HT & RUA city JUDICIAL DISTRICT LOCAL REPORT NUMBER i INJURED FELONY a ge rn SAN CLEMENTE HARBOR JUSTICE CTR 14-039435 | NuMBER KitLeo| HTBRUE1 COUNTY REPORTING DISTRICT BEAT DAY OF WEEK TOW AWAY 0 ORANGE 9921 776 TUESDAY kK ]ves [wo COLLISION OCCURRED ON MO DAY YEAR TIME (2400) NCIC # DFFICER I.D © = FAVE VISTA HERMOSA 03/04/2014 1000 3000 05271 { | 2 MILEPOST INFORMATIDN: GPS COORDINATES PHOTOGRAPHS BY: NONE 3 LATITUDE LONGITUDE DEP. JOHNSTON o AT INTERSECTION WITH STATE HWY REL i TX|ok 16'] FEET EAST OF CAMINO FARO ves [| wo [UARTY DRIVER'S LICENSE NUMBER STATE CLASS AIRBAG SAFETY EQUIP VEH YEAR MAKE / MODEL / COLOR LICENSE NUMBER STATE 1] K0O712207 CA ( 1. G 2008 BMW 3281 GRY 1VDYO074 CA | DRIVER| NAME(FIRST. MIDDLE. LAST) [X] DENNIS CHARLES BUSTER OWNER'S NAME SAME AS DRIVER - | PEDES.| STREET ADDRESS I TRIAN = 18 CALLE ALTEA OWNER'S ADDRES § SAME AS DRIVER ! [PARKED city STATE 1 210 ' [VEHICLE Orr | MM SAN CLEMENTE cA 92073 DISPOSITION OF VEHICLE ON ORDERS OF: [x] OFFICER [Joriver OTHER ! [8c Tsex [mam EYES | HEIGHT WEIGHT BIRTHDATE RACE PREFERRED TOW- (949)365-1717 oo ha cus] . MO oav YEAR W . - | \ 5. 2 : REFER TO NARRATIVECIN BR BRN 5-10 190 07/02/1946 PRIOR MECH, DEFECTS x]none are [rere | OTHER HOME PHONE BUSINESS PHONE VEHICLE IDENTIFICATION NUMBER [ (949)388-3548 (949)349-9217 VENICLE TYFE DESCRIBE VEHICLE DAMAGE SHADEIN DAMAGED AREA INSURANCE CARRIER POLICY NUMBER UNK NONE M i. x wos ALLSTATU 067950990 01 | mop X|mator ROLL-OVER DIR OF TRAVEL ON STREET OR HIGHWAY SPECD LIMIT ca bot | Ww AVE VISTA HHERMOSA 45 cALT tepipsc MCIMX | we [paRTY DRIVER'S LICENSE NUMBER STATE CLASS AIR BAG SAFETY EQUIP VEH. YEAR MAKE / MODEL / COLOR LICENSE NUMBER STATE 5 K0283470 CA 6 1 G 2009 LEXUS RXN350 GOL oUCC295 CA DRIVER| NAME(FIRST, MIDDLE, LASY) x] PHILLIP LEGRAND WOOLLEY OWNERS NAML [x SAME AS DRIVER PEDES. | STREET ADDRESS | TRIAN . 354 CALLE BURRO OWNER'S ADDRESS [x] SAME AS DRIVER PARKED! CITY STATE. ZIP TH] SAN CLEMENTE CA 92673 0 []Ne SLM ‘ = DISPOSITION OF VEHICLE ON ORDERS OF: X officer DRIVER OTHER 8ICY- SEX HAIR EYES HEIGHT WEIGHT BIRTHDATE RACE PREFERR ED TOW - (949)369-1717 CLISY Mo DAY YEAR - [] Mo BRN BRN 6-1 175 02/17/1945 W PRIOR MECHANICAL DEFECTS [X]none are. [| reeen To narrative OTHER HOME PHONE BUSINESS PHONE VEHICLE IDENTIFICATION NUMBER: [1] (949)498-7494 (949)637-0796 VEHICLE TYFE DESCRIBE VEHICLE DAMAGE SHADE IN DAMAGED AREA [INSURANCE CARRIER POLICY NUMBER UNK NONE MINOR EVD vo | AAA CAAN0T7T7273036 07 MOD X [maJor ROLL-OVER ¢ DIR OF TRAVEL ON STREET OR HIGHWAY SPEED LIMIT ca bor RN | E AVE VISTA HERMOSA 1s ori errse — beeeen PARTY DRIVER'S LICENSE NUMBER STATE CLASS AIR BAG SAFETY EOUIP VEH. YEAR MAKE / MODEL / COLOR LICENSE NUMBER STATE N2321051 CA ( M G 2012 HYUNDAI ELANTRA BLU 6ROF059 CA 3 i DRIVER : NAME(FIRST, MIDDLE, LAST) 1x] {ROSEMARY KATHLEEN NEW COMBE OWNER'S NAME SAME AS DRIVER |PEDES- STREET ADDRESS | Il 2417 CAMINO CORSO RIO S81 OWNER'S ADDRESS [X]sane nS DRIVER PARKED| CITY: STATE: ZIP VERESAN CLEMENTE CA 92673Ne AEA LE ‘ ’ DISPOSITION OF VEHIGLE ON ORDERS OF: OFFICER |[omen [Joes BICY: SEX HAIR EYES HEIGHT WEIGHT BIRTHDATE race PREFERRED TOW - (949)369-1717 CLISY } } Mo DAY YEAR [] F BRN BLU [5.9 140 12/10/1955 WwW PRIOR MECHANCIAL DEFECTS X]wone APP. [reper TO NARRATIVE ! OTHER HOME PHONE BUSINESS PHONE VEHICLE IDENTIFICATION NUMBER: i ] Po (949)369-9798 VEHICLE TYPE DESCRIBE VEHICLE DAMAGE SHADE IN DAMAGED AREA INSURANCE CARRIER POLICY NUMBER UNK NONE MINOR me i | AAA CAADT0063194 02 [X]woo [~]wasomeficpven By i { DIR OF TRAVE] ON STREET DR HIGHWAY SPEED LIMIT c J. | i i . . A A 3| | 5 CAMINO FARO 25 CAL TCPIPSC MC/MX XK PREPARER'S NAME DISPATCH NOTIFIED REVIEWER'S NAME DATE REVIEWED | ye ~~ . CYL TOPETE 05271 ves vo NA ee -~ €or | DEP WW. HOWARD #968 ~ hy| Xe [= STi. TE OF CALIFORNIA TRAFFIC COLLISION CODING CHP 555 CARS PAGE2 (REV. 11-06) OPI 065 PAGE, of [ore OF COLLISION IMU DAY YEAR! TIME(2400} NCIC # OFFICER ILD NUMBER H30472014 1000 3000 05271 14-039435 OWNER OWNER ADDRESS NOTIFIED PROPERTY [Ives [no DAMAGE vescripTion OF DAMAGE SEATING POSITION SAFETY EQUIPMENT INATTENTION CODES OCCUPANTS L - AIR BAG DEPLOYED BICYCLE - NONE IN VEHICLE - UNKNOWN - LAP BELT USED - LAP BELT NOT USED - AIRBAG NOT DEPLOYED - OTHER M N P - NOT REQUIRED DRIVER PASSENGER V-NO X- NO W- YES Y - YES A - CELL PHONE HANDHELD B - CELL PHONE HANDSFREE C - ELECTRONIC EQUIPMENT D -RADIO/ CD A B Cc 1- DRIVER D E - SMOKING 2706 - PASSENGERS E - SHOULDER HARNESS USED CHILDRESTRAINT EJECTED FROM VEHICLE F-EATING 7. STA. WGN REAR F - SHOULDER HARNESS NOT USED Q - IN VEHICLE USED 0.NOTEJECTED ©- CHILDREN § RR OCC TRK. OR VAN GLAP/SHOULDER HARNESS USED R - IN VEHICLE NOT USED + FULLY EJECTED H - ANIMALS i 5 pDSITION UNKNOWN H* LAPISHOULDER HARNESS NOTUSED gy yEHICLE USE UNKNOWN, pacSeren 1+ PERSONAL HYGIENE 0 OTHER .aERENTNOTUSED TIN VEHICLE IMPROPER USE 3 1kNOWN J - READING : U - NONE IN VEHICLE K - OTHER - ITEMS MARKED BELOW FOLLOWED BY AN ASTERISK (*) SHOULD BE EXPLAINED IN THE NARRATIVE. | POFowut TRAFFIC CONTROL DEVICES 11213 SPECIAL INFORMATION 112|3| MOvEmeeepie | ve section vioLaTED: re X |A CONTROLS FUNCTIONING A HAZARDOUS MATERIAL X| A STOPPED 21453(A) NO B CONTROLS NOT FUNCTIONING® B CELL PHONE HANDHELD IN USE X B PROCEEDING STRAIGHT } r g OTHER IMPROPER DRIVING’ C CONTROLS OBSCURED C CELL PHONE HANDSFREE IN USE C RAN OFF ROAD | D NO CONTROLS PRESENT / FACTOR" x x xD CELL PHONE NOT IN USE D MAKING RIGHT TURN C OTHER THAN DRIVER' TYPE OF COLLISION E SCHOOL BUS RELATED x E MAKING LEFT TURN § D UNKNOWN:* A HEAD - ON F 75 FT MOTORTRUCK COMBO F MAKING U TURN : B SIDE SWIPE G 32 FT TRAILER COMBO G BACKING C REAR END H H SLOWING / STOPPING WEATHER {MARK 1 TO 2 ITEMS) X 0 BROADSIDE | I” PASSING OTHER VEHICLE X|A CLEAR E HIT OBJECT J J CHANGING LANES B CLOUDY F OVERTURNED K K PARKING MANEUVER C RAINING G VEHICLE / PEDESTRIAN L L ENTERING TRAFFIC D SNOWING H OTHER*: mM M OTHER UNSAFE TURNING [E Fog visiBILITY FT. N N XING INTO OPPOSING LANE | © |F OTHER: MOTOR VEHICLE INVOLVED WITH 0 O PARKED [G WIND A NON - COLLISION P P MERGING i LIGHTING B PEDESTRIAN Q Q TRAVELING WRONG WAY X [A DAYLIGHT X|C OTHER MOTOR VEHICLE 112] 3| OTHER ASSOCIATED FACTORS R OTHER": ” B DUSK - DAWN D MOTOR VEHICLE ON OTHER ROADWAY (MARK 1 TO 2 ITEMS) C DARK - STREET LIGHTS E PARKED MOTOR VEHICLE A VC SECTION VIOLATED CITED YES | |D DARK - NO STREET LIGHTS F TRAIN Hs i |E DARK - STREET LIGHTS NOT G BICYCLE § Ve SECTION VIOLATED. CITED YES — | FUNCTIONING® H ANIMAL: Hie SOBRIETY-DRUG RDADWAY SURFACE VC SECTION VIOLATED CITED YES X|A DRY | FIXED OBJECT ¢ His 123 (MARK 170 2 ITEMS) j {|B WET D X| X| x| A HAD NOT BEEN DRINKING [Jc snowy icy , OTHER OBJECT: E VISION OBSCUREMENT: B HBD - UNDER INFLUENCE IID SLIPPERY (MUDDY,OILY, ETC.) F INATTENTION': C HBD- NOT UNDER INFLUENCE* i ROADWAY CONDITION(S) G STOP & GO TRAFFIC D HBD - IMPAIRMENT UNKNOWN" (MARK 170 2 ITEMS) PEDESTRIAN'S ACTIONS H ENTERING / LEAVING RAMP E UNDER DRUG INFLUENCE® A HOLES, DEEP RUT X| A NO PEDESTRIANS INVOLVED I” PREVIOUS COLLISION F IMPAIRMENT - PHYSICAL" B LOOSE MATERIAL ON ROADWAY" B CROSSING IN CROSSWALK J UNFAMILIAR WITH ROAD G IMPAIRMENT NOT KNOWN C OBSTRUCTION ON ROADWAY" AT INTERSECTION K DEFECTIVE VEH. EQUIP.: CITED H NOT APPLICABLE D CONSTRUCTION - REPAIR ZONE C CROSSING IN CROSSWALK - NOT He | SLEEPY /FATIGUED E REDUCED ROADWAY WIDTH AT INTERSECTION NO F FLOODED D CROSSING - NOT IN CROSSWALK L UNINVOLVED VEHICLE G OTHER" E IN ROAD - INCLUDES SHOULDER M OTHER': X|H NO UNUSUAL CONDITIONS F NOTIN ROAD X |X| X|N NONE APPARENT G APPROACHING / LEAVING SCHOOL BUS 0 RUNAWAY VEHICLE SKETCH PE \ MISCELLANEOUS LJ . SEE SKETCH DIAGRAM. ON PAGE 4 INDICATE NORTH STATE OF CALIFORNIA INJURED / WITNESSES / PASSENGERS CHP 555 CARS PAGE 3 (REV 11-06) OPI 065 PAGE 3 OF “9 DATE OF COLLISION (MO DAY YEAR) TIME(2400) NCIC # OFFICER 1.D NUMBER 03/04/2014 1000 3000 05271 14-039435 WITNESS | PASSENGER | EXTENT OF INJURY('X' ONE) INJURED WAS ('X' ONE) PARTY |SEAT AIR SAFETY |_ooo ONLY ONLY ’ NUMBER Pos [BAG EQUIP ! FATAL SEVERE OTHER VISIBLE COMPLAINT DRIVER PASS PED. BICYCLIST OTHER | INJURY INJURY INJURY DF PAIN # TT . O70 OO se O10 LJ Od OO) O [Os |v me Jo NAME / D.0.B. ADDRESS TELEPHONE ROSEMARY KATHLEEN NEWCOMBE (12/10/1955) 2417 CAMINO CORSO R10 ST SAN CLEMENTE CA 92673 (949)369-9798 {INJURED ONLY) TRANSPORTED BY: TAKEN TO: ORANGE COUNTYFIRE AUTHORIY SAN CLEMENTE HOSPTIAL DESCRIBE INJURIES: (0) | 1'F'I' SHOULDER AND NECK PAIN [] victim or vioLenT criME NOTIFIED[i [] lo wo LO | 1] [x] or Ort toe Je Ho! NAME / D.0.B. / ADDRESS TELEPHONEPHILLIP LEGRAND WOOLLEY (02/17/1945) 354 CALLL BURRO SAN CLEMENTE CA 92673 (949)498-7494 (INJURED ONLY) TRANSPORTED) BY: TAKEN TO: SELL DOCTOR DESCRIBE INJURIES © C/O LEFT SHOULDER AND NECK PAIN [] VICTIM OF VIOLENT CRIME NOTIFIED # —J ok olo® olooo olol bolle NAME / D.0.B. / ADDRESS TELEPHONE DENNIS CHARLES BUSTER (07/02/1946) 18 CALLE ALTEA SAN CLEMENTE CA 92673 (949)388-3548 (INJURED ONLY} TRANSPORTED BY: TAKEN TO: SELF DOCTOR DESCRIBE INJURIES: LEFT THUMB BASE OF PALNMEAND RIGHT FOREARM SMALL LACERATION 1 [] VICTIM OF VIOLENT CRIME NOTIFIED [J =owiwlaolol ol ololool oo NAME / D.O.B. - ADDRESS TELEPHONE (949)275-7299 TAKEN TO: SHERI ROUS (10/15/1967) 2175 VIA TECA SAN CLEMENTE CA 92673 {INJURED ONLY) TRANSPDRTED BY: DESCRIBE INJURIES [] VICTIM OF VIOLENT CRIME NOTIFIED # Lc] OO pe O00 OF pO O00) ofl NAME / D.O.B. / ADDRESS TELEPHONE MELISSA ANN HOOD (06/12/1979) 32 CORTE VIDRIOSO SAN CLEMENTE CA 92673 (949)350-5490 (INJURED ONLY) TRANSPORTED BY: TAKEN TO: DESCRIBE INJURIES: [1] VICTIM OF VIOLENT CRIME NOTIFIED : # HO pie OO OO Ogg Of NAME / D.0.B. | ADDRESS TELEPHONE KEVIN JOHN HOOD (04/17/1974) 32 CORTE VIDRIOSO SAN CLEMENTE CA 92673 (949)350-5495 (INJURED ONLY) TRANSPORTED BY: TAKEN TO: DESCRIBE INJURIES® | I [1] VICTIM OF VIOLENT CRIME NOTIFIED | PREPARER'S NAME I.D. NUMBER MO. DAY YEAR REVIEWER'S NAME MO. DAY YEAR| \. TOPETE 05271 03/04/2014 OEP VU RUVAR: kak 3 AD STATE OF CALIFORNIA FACT AGRA oh boc chSsPageines$01OPI 042 [ S keetddy ] _ Foo Of ot 7 DATE oF COLLISION MO DAY EAR) “TIME(2400) NCIC © OFFICER | D {NUMBER 3-9 Jy Jove Jouve 5322, TTY077ARR ALL MEASUREMENTS ARE APPROXIMATE AND NOT TO SCALE UKLESS STATED (SCALE = i700 RST | | TIN ; i wn N : “ CANN N\ : | 2 NoSl INDICATE | 5 NORTH ay ' | {cl ' i Hi i i yo | 1 }; : } RES ty Lat Aa vs fy 2 , Go! 2 C & “ © i { L SSE “ < Pe £ - ‘ ’ Lo ’ \ oo < f= — — way { WE J. / Lopel Ce ag£icy ol |& \ ) giCAD | \; RY 7 “Ll i eV : ~ JC ce bi i < NT———& ) ~O | | i | = —WE : i | | i uf - | [ i a i | | i i ( vo | t i i ! i i . 1 | i ! hs i | | | Co | | Cl | - i i LpGeds i i } | m= rer Ay ! i Go —_tpnl- Oi W= wee oer | {=o by al: NO LT) | % | | wy oy ; ‘ Lhe I}, : | : wv! i | | ge i | 7 pd Ca vow in 'b" i one sae on Wi- —1006-~ ! SN ~ ~ - ~ yd / e e — — e e m e e r e m | I : PREPARED BY , ID NUMBER IMO. DAY YEAR | REVIEWER'S NAME Imo DAY YEAR C5 F-Tapede S2713Y-jl|DEPW.HOWRRDs%EE QSP 99 28973 STATE OF CALIFORNIA FACTUAL DIAGRAM Ce CHP 555 Page 4(Rev. 8-97) OPI 042 Page o G .- - = ~~ DATE OF COLLISION (MO DAY YEAR) TIME (2400) het OFFICER 1D. {NUMBER ] gos - vq vet syd Tie77S ALL MEASUREMENTS ARE APPROXIMATE AKD NOT TO SCALE UNLESS STATED (SCALE 5 fr TUE eT i ee . | £we T= | Ws | ) FNN a. : N INDICATE ' 3 NORTH 2 {ol ; Ps , » ~ - BE Gre a2 oo « Coe LENE- fo ) | % 0 he CL a ‘ SI - 5 ~ / aSmeme S Tr — PE Ux / © | ) Po ! adi | i oo \ | PAu iC Cx =0 - —— HEChe | (od : Iv -: | 3 oo ¥ — i LT b) y N Zh [a Lo a | x ' oy | p | ro ! ! 1 i (7 ; ! ; b i Co { : : i ! 1 . i » i j | ! | | i ! i fo i i ; , LEED : | ; ! [I ER ~o me : Suh LnIER Lo Ag - = | : pve : ) : ‘ : 5 GE Ne Uo | | ; S ) i : ! Ay A ; i RL Co | : | { ; VY i i; H) TOON \ i a i ~N No | | PREPARED BY 1D NUMBER IMO DAY YEAR | REVIEWER'S NAME = Cd Q . opeTe | S27 Imem $9HH iERME TCi 1 i OSP 99 28473 STATE OF CALIFORNIA FACTUAL DIAGRAM CHP 555 Page 4(Rev. 8-97) OP1042 PAGEL or 9 DATE OF INCIDENT TIME NCIC NUMBER OFFICER ID. NUMBER 03/04/2014 1000 3000 05271 14-039435 ALL MEASUREMENTS ARE APPROXIMATE AND NOT TO SCALE UNLESS STATED (SCALE= ) FACTUAL DIAGRAM LEGEND POINTS OF REST: V-1 (Bmw): RF Tire: 97" E/WCL of Camino Faro and 17'6" N/NCL of Ave Vista Hermosa RR Tire: 117" E/WCL of Camino Faro and 7°11” N/NCL of Ave Vista Hermosa V-3 (Hyundai): RF Tire: 211” W/WCL of Camino Faro and 13'5” N/NCL of Ave Vista Hermosa RR Tire: © WCLof Camino Farc and 21'8” N/NCL of Ave Vista Hermosa PREPARED BY |.D. NUMBER DATE REVIEWER'S NAME DATE Y. TOPETE 05271 03/04/2014 OEE SL HGVERD HEE 30D vy © o O ~ N O O T S W N — STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL pace / or 9. DATE OF INCIDENT TIME NCIC NUMBER OFFICER I.D. "NUMBER 03/04/2014 1000 3000 05271 14-039435 FACTS NOTIFICATION: | was dispatched to an injury collision at 1004 hours. | responded from the San Clemente Station and arrived on scene at 1007 hours. V-2 (Lexus) moved prior to my arrival. All times, speeds and measurements are approximate. SCENE: At this location, is a designated, four way intersection. Ave Vista Hermosa is an east/west, level, asphalt-concrete roadway. The roadway is divided by a raised concrete median. The posted speed limit on Ave Vista Hermosa is 45 mph. Camino Faro is a north/south residential roadway. There were no visual obstructions noted or claimed and the weather was clear and the roadway dry. PARTIES: PARTY #1 (Buster) was located standing next to his vehicle, V-1 (Bmw) on Camino Faro. Party Buster was identified by a valid CA. driver's license. Party Buster was placed as a party by the following items: -D-1's statements -D-1 is the registered owner of V-1 and in possession of keys -D-2’s statement -D-3's statement -Witness statements BMW 328l was located parked, northwest on Camino Faro and Vista Hermosa. V-1 (Bmw) sustained major damage to the left front corner and left front side, consisting of the left front corner, hood, pushed in, broken left front headlight, etc. PARTY #2 (Woolley) was located standing on the sidewalk on the northwest corner of Ave Vista Hermosa. Party Woolley was identified by a valid CA. driver's license. Party Woolley was placed as a party by the following items: -D-2's statement -D-2 is the registered owner of V-2 and in possession of keys -D-1's statement -D-3's statement -Witness statements LEXUS RX350 was located parked, westbound on Ave Vista Hermosa next to the north curb line. V-2 sustained major damage to the right front corner and front end, consisting of the right front corner, hood, pushed in, broken right headlight, etc. PREPARED BY ID. NUMBER DATE REVIEWER'S NAME DATE Y. TOPETE 056271 03/04/2014 DER he ET Rb 30D O O O ~ N O O h W N = STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL pacE © oF G DATE OF INCIDENT TIME NCIC NUMBER OFFICER TD. INUMB ER 03/04/2014 1000 3000 oo 05271 14 -039435 PARTY #3 Newcombe was located sitting in a chair on the sidewalk on the northwest corner of Ave Vista Hermosa. Party Newcombe was identified by a valid CA. driver's license. Party Newcombe was placed as a party by the following items: -D-3's statement -D-3 is the registered owner of V-3 and in possession of keys -D-1's statement -D-2's statement -Witness statement HYUNDAI Elantra was located. parked southbound on Camino Faro. V-3 (Hyundai) sustained moderate damage to the left front door, consisting of scrapes and a dent. PHYSICAL EVIDENCE: Deputy Johnston took 20 digital photographs of the scene and of V-1, V-2 and V-3. The CD was booked into the San Clemente Evidence locker. STATEMENT PARTY #1 (Buster) D-1 (Buster) stated he was traveling westbound on Ave Vista Hermosa. He is was not sure which lane he was in but thinks it was the number two lane. He was debating which lane he was going to merge into because he was going to get on the freeway. He saw the light was red and was going 40-45 mph when he tried to slow down. He put on the brakes three to four times and they did not work. But then the brakes work because he left a skid mark. He first hit V-2 (Lexus) that was making a left turn and then V-3 (Hyundai). He had a small laceration on his left thumb base and one on his right forearm. PARTY #2 (Woolley) D-2 (Woolley) stated he was stopped at the red light, eastbound on Ave Vista Hermosa in the left turn lane. The left arrow turned green and he started to accelerate and make a left turn, when D-1 (Buster) who was going westbound on Ave Vista Hermosa ran the red light, hitting the right front corner of his vehicle, V-2 (Lexus). He moved V-2 out of the way. His neck and left shoulder were hurting him. PARTY #3 (Newcombe) D-3 (Newcombe) stated she was waiting at the red light, southbound on Camino Faro. She was waiting to make a right turn onto Ave Vista Hermosa. All of a sudden a vehicle, V-1 (Bmw) going westbound on Ave Vista Hermosa hit a vehicle, V-2 (Lexus) and then slammed into her vehicle, V- 3 (Hyundai). She yelled at D-1 (Buster) to turn off V-1 because it seemed like he was stepping on the accelerator and making a lot of noise. A lady opened her door and told her to get out because there was gas leaking. Her neck and left shoulder were hurting her. PREPARED BY I.D. NUMBER DATE REVIEWER'S NAME me DATE Y. TOPETE 05271 03/04/2014 JER MeprsRD sae 3s od O O O N O O Y h h W N — STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL PAGE G OF G DATE OF INCIDENT TIME NCIC NUMBER OFFICER ID. INUMBER 03/04/2014 1000 3000 05271 14-039435 WITNESS #1 (Rous) W-1 (Rous) stated she was stopped at the red light, northbound on Camino Laurel. She saw D-2 (Woolley) in the left turn lane, eastbound on Ave Vista Hermosa. D-3 (Newcombe) was stopped, southbound on Camino Faro. D-2 made a left turn, when D-1 (Buster) traveling westbound on Ave Vista Hermosa and ran the red light. V-1 (Bmw) slammed into V-2 (Lexus) and then V-3 (Hyundai). She pulled overto see if everyone was ok. WITNESS #2 (M. Hood) See Deputy Morphew's narrative attached for statement. WITNESS #3 (K. Hood) See Deputy Morphew's narrative attached for statement. OPINIONS AND CONCLUSIONS SUMMARY: D-1 (Buster) was traveling westbound on Ave Vista Hermosa in the number two lane. D-2 (Woolley) was stopped at the red light, eastbound on Ave Vista Hermosa in the left turn lane. D-3 (Newcombe) was stopped, southbound on Camino Faro. D-2 started to make a left turn on a green arrow when D-1 ran the red light. The left front corner of V-1 (Bmw) struck the right front corner of V-2 (Lexus). The impact pushed V-1 into V-3. The left front corner of V-1 struck the left front door of V-3 (Hyundai). Deputy Morphew, check the brakes and the brake lights and they were working properly. See narrative attached. AREA OF IMPACT: The AOI was determined by Deputy Johnston and by using a rolatape as being: AOI #1 (Bmw vs Lexus): 161" E/WCL of Camino Faro and 19'0” S/NCL of Ave Vista Hermosa AOI #2 (Bmw vs Hyundai): 40" E/WCL of Camino Faro and 16'5" N/NCL of Ave Vista Hermosa CAUSE: D-1 (Buster) caused this collision by violating CVC 21453(a) red or stop, at limit or x-walk. RECOMMENDATIONS: D-1 (Buster) caused this collision by violating CVC 21453(a) red or stop, at limit or x-walk PREPARED BY ID NUMBER DATE REVIEWER'S NAME DATE Y. TOPETE 05271 03/04/2014 DEF WEOWARD Bb 4 mie STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL CHP 556 (Rev 12-94) OP1 042 Page 1 Uj .Zz "DATE OF INCIDENT/OCCURRENCE TIME (2400) NCIC NUMBER OFFICER | D NUMBER NUMBER 3/4/14 [000 3000 521 14-039435 “X* ONE *X* ONE TYPE SUPPLEMENTAL (“X” APPLICABLE] [] Narrative x Collision report ] BA update ] Fatal ] Hit and run update xX Supplemental ] Other: ] Hazardous materials ] School Bus ] Other: CITY/COUNTY/JUDICIAL DISTRICT REPORTING DISTRICT/BEAT CIATION NUMBER San Clemente / Orange / Harbor Justice Center 992G1/6M75 LOCATION/SUBJECT STATE HIGHWAY RELATED Ave Vista Hermosa /Camino Faro, San Clemente CA. 92672 [ves No Witness #2 NAME: Hood, Melissa Ann (6-12-79) Address: 32 Corte Vidrioso San Clemente CA. 92673 (949) 369-0834 (Home) (949) 350-5496 (Cell) Witness #3 NAME: Hood, Kevin John (4-17-74) Address: 32 Corte Vidrioso San Clemente CA. 92673 (949) 369-0834 (Home) (949) 350-5495 (Cell) Narrative: On 3-4-14 at approximately 1004 hours, | was dispatched to the area of Ave Vista Hermosa and Camino Faro in San Clemente to assist C.S.0. Topete #5271 with an injury traffic accident. I spoke to W-2 (Hood, Melissa). W-2 to me that she was driving westbound on Ave Vista Hermosa from Ave La Pata when she observed V-1 (BMW) directly behind her in the #1 lane. W-2 said she was travelling approximately 45 mph and V-1 was “tailgating” her vehicle within a few feet. V-1 changed into the # 2 lane and passed her vehicle west of Camino Vera Cruz. After V-1 passed W-2. V-1 was swerving back and forth in the westbound #2 lane. As V-1 approached the red light at Camino Faro, V-1 appeared to accellerate and enter the intersection. V-2 (Lexus) was making a left turn onto Camino Faro from eastbound Ave Vista Hermosa and collided with V-1. After V-2 collided with V-1, V-1 swerved to the right and struck V-3(Hyundia) that was stopped at the limit line on southbound Camino Faro. I asked W-2 if she noticed wetheror not the brake lights were illuminated on V-1 asit entered the intersection. W-2 said she never saw brake lights from V-1. PREPARER’'S NAME AND [.D. NUMBER Dep. R. Morphew #5348 DATE 3/5/14 REVIEWER'S NAME LE Ve mrDug anil) #ybe DATE 3a 0 ~ J N o n B s ) B o — O o STATE OF CALIFORNIA NARRATIVE/SUPPLEMENTAL CHP 556 (Rev 12-94)OPI 042 Page 2 (4 2 DATE OF INCIDENT/OCCURRENCE 3/4/14 TIME (2400) | OCC NCIC NUMBER 3000 OFFICER (D NUMBER << zy NUMBER 14-039435 I spoke to W-3 (Hood, Kevin). W-3 told my he was riding in the right front passenger seat of W-2's (Hood. Melissa) vehicle. W-3 said he first saw V-1 (BMW) whenit passed their vehicle in the #2 lane. W-3 said he was watching V-1 as it approached the red light at Camino Faro. V-1 was not slowing and the brake lights were not illuminated. W-3 told W-2 “He’s gonna run the red light.” V-1 continued into the intersection where it was struck by V-2 (Lexus) as V-2 made a left turn onto Camino Faro from eastbound Ave Vista Hermosa. V-1 then swerved to the right and struck V-3(Hyundia) that was stopped at the limit line on southbound Camino Faro. I check the brakes and brake lights on V-1 (BMW). The brake pedal was firm and they appeared to be functioning properly. Both the left and right brake lights illuminated brightly when the brake pedal was pressed. PREPARER'S NAME AND | D. NUMBER Dep. R. Morphew #5348 DATE 3/5/14 REVIEWER'S NAME DES Wi Hu wo bop DATE rat Rou ~\ W N v e 1 O v L h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 2 10NOTICE OF MOTION FOR ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT ~ ~ N L l s W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BISNAR|CHASE ONE NEWPORT PLACE 1301 Dove Street, Suite 120 Newport Beach, CA 92660 Phone: (949) 752-2999 Facsimile: (949) 752-2777 Brian D. CHASE, STATE Bar NO. 164109 H. GAVIN LONG, STATE BAR NO. 204034 Attorneys for Plaintiffs ROSEMARY NEWCOMBE SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ROSEMARY NEWCOMBE, CASE NO. 30-2015-00814388 Plaintiff, Assigned for All Purposes to: Judge Craig Griffin VS. Department C-17 DENNIS BUSTER; and DOES 1 to 10, [proposed] FIRST AMENDED inclusive, COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES: MOTOR Defendants. VEHICLE NEGLIGENCE DEMAND FOR JURY TRIAL Filed: October 13, 2015 Trial Date: November 28, 2016 COMES NOW, Plaintiff ROSEMARY NEWCOMBE,to allege causes of action against the Defendants, and each of them, as follows: 1. The automobile accident which is the subject matter of the Complaint, and the incident which caused the personal injury damages alleged herein, occurred on or about March 4, 2014, in and around the intersection ofAve Vista Hermosa and Camino Faro in the City of San Clemente, County of Orange, State of California (this accident is hereinafter referred to as “the SUBJECT ACCIDENT.”) 2. At all times relevant herein, Plaintiff ROSEMARY NEWCOMBE was, and is now, an adult individual resident of Orange County, State of California. 3. Plaintiff has information and belief and, based thereon, alleges thatat all times 1[proposed] FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL o e 3 9 O o W n dl s W W B Y e e P O N Y M N N R R E e e e e e e e e p p d e h C 0 = N A p s W N = O D 0 O y B W = O relevant Defendant DENNIS BUSTER was, and is, an individual resident of Orange County, State of California. 4. Plaintiff is ignorant of the true names and capacities of the Defendants sued herein as DOES 1 to 10, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will amend this Complaintto allege the true names and capacities when that information is ascertained. Plaintiff is informed and believes and, based on that information and belief, alleges that each such fictitiously named Defendant is legally responsible in some manner for the occurrences alleged herein, and that Plaintiff’s injuries and damages were proximately caused by each such Defendant's actions. 5. Plaintiff is informed and believes and, based on this information and belief, alleges that Defendants, and each of them, were the agents, servants and employees of their Co- Defendants, and in doing the things herein alleged were acting within the course, scope, purpose, and authority of such agency and employment with the full knowledge, permission and consent of each of their co-Defendants. 6. Plaintiff is informed and believes and, based upon such information and belief, alleges that at all times mentioned herein, Defendants were the owners, operators, and drivers, or the employers, agents and employees of the owners, operators, drivers, owners, operators, drivers of the certain motor vehicles which were involved in and caused or contributed to the SUBJECT ACCIDENT. 7. Atthe time of the accident which is the subject matter ofthis action, Defendants, and each of them, negligently, carelessly, recklessly, willfully, wantonly, and tortiously operated a motor vehicle, or owned a motor vehicle which was operated, or maintained or repaired or was somehow involved in causing or failing to correct the defective mechanical condition of a motor vehicle, or employed a person who was operating a motor vehicle, or maintained or repaired a motor vehicle, in such a manner so as to strike, or to cause the violent striking, of the motor vehicle occupied by Plaintiff ROSEMARY NEWCOMBE at the time and place of the SUBJECT ACCIDENT, causing her physical, bodily, mental, and emotional injury. 8. As a legal result of the SUBJECT ACCIDENTand the negligence ofthe 2{proposed] FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL N 0 0 1 S y b h R w N D N O O R R N R R N R R N e e m d m d m e d m e e m t e t f e d p e m a d c K ~ ~ O N L h R k W N = D Y 8 0 s y B R W N e e O D Defendants, and each of them, Plaintiff ROSEMARY NEWCOMBE was injured in her health, strength, and activities, and sustained injury to her body and shock and injury to her nerves and nervous system, all of which have caused and continue to cause her great mental, physical and emotional pain and suffering, disfigurement, permanent partial and total disability, physical impairment, loss of enjoyment oflife, and other general and non-economic damages. Plaintiff is informed and believes, and based thereupon, alleges that her injuries will result in permanent injury and disability all to her general damage in an amount not presently ascertained, but in excess ofthe minimum jurisdictional amount ofthis court. 9. As a direct and legal result of the SUBJECT ACCIDENT Plaintiff ROSEMARY NEWCOMBEsustained serious and permanent physical injuries, and as a legal result of those injuries, has incurred and will incur in the future, the expense of medical treatmentto treat those injuries; has lost and will lose in the future income from work and/or the full or partial ability to work; and other special and economic damages in an amount which exceeds the minimum jurisdictional amount ofthis court, according to proof at trial. ALLEGATIONS RELATED TO PUNITIVE DAMAGES AGAINST DEFENDANT DENNIS BUSTER, ONLY 10. Plaintiffalleges on information and beliefthat, in performing the acts and omissions alleged above, Defendant DENNIS BUTLER acted oppressively and maliciously, entitling Plaintiff to recover damages for the sake of example and by way of punishing Defendant for his conduct, as alleged herein. Eyewitnesses to the accident observed that before and at the time ofthe SUBJECT ACCIDENT, Defendant DENNIS BUTLER was driving at an excessive rate of speed, tailgating and making unsafe and aggressive lane changes in the moderately heavy traffic and ignoring or failing to respond to red traffic signals on the surface roads in San Clemente, California. 11. The SUBJECT ACCIDENT occurred at about 10 am on a Tuesday morning, at or near the intersection of Ave Vista Hermosa and Camino Faro in the City of San Clemente, California. The roadway of Ave Vista Hermosa at the accident scene consists of 4 lanes ofthrough travel (2 in each direction) with a left-hand turn pocket in each direction at the intersection with Camino Faro. The eastbound lanes of travel for Ave Vista Hermosa have a posted 45 MPH speed 3|proposed] FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL r o N O = O y t h B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 limit. Two of the cars involved in the SUBJECT ACCIDENT were on Ave Vista Hermosa, and Ms. Newcombe was stopped at the intersection in the southbound lanes of Camino Faro. 12. Asis reported by witnesses, Mr. Buster was tailgating and then speeding around cars that were travelling at the speed limit. As Mr. Buster in his BMW approached the intersection with Camino Faro, he came up within a few feet behind the car occupied by Melissa Hood and Kevin Hood at high speed, swerved into the number 2 lane at that same high speed, and then drove forward toward the intersection with Camino Faro, despite the fact that the traffic signalfor their direction of travel was red. He neverhit the brakes before he entered the intersection as the same high speed. Mr. Buster intentionally chose to place himself in charge of the safety of the occupants of the cars he was approaching at excessive speeds, and then passing, let alone the visible cars ahead of him who were exercising their right of way. Eventually physics and Mr. Buster's speed and unsafe lane changes caught up to him, when he refused to stop at the red light, failed to avoid and then hit the car driven by Philip Woolley which was making a left hand turn, which caused Mr. Buster’s BMW to bounce off and spin around and travel across the traffic lanes to then hit Ms. Newcombe’s Hyundai Elantra. The SUBJECT ACCIDENT evidences the high speed and transfer of momentum initiated by the speeding BMW. 13. The choice of driving at excessive speed, making sudden and dangerous lane changes to speed by cars driving at or below the speed limit, and positioning himself to speed through intersections without having to slow or to beat other cars “off the line”, Mr. Buster was displaying despicable road racing aggressiveness and speed, driving in such an aggressive and unsafe manner in combination with a willful and conscious disregard ofthe safety of the other drivers on the roadway, thereby creating an unjust, serious, and unreasonable risk of harm to the drivers and occupants of the vehicles on the roadway. His actions created an unreasonable risk of injury for those other drivers, and Mr. Buster willfully disregarded that unreasonable risk of injury. Under the totality of the circumstances, and if proven true, a trier of fact can find that this conduct was despicable, evidencing the Defendant’s extreme indifference to the safety of the other drivers on the roadway, and evidences the state of mind of malice and oppression that supports an award of exemplary damages against Defendant Dennis Buster. 4[proposed] FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL W e e 1 S y t h b s W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Plaintiffprays judgment against Defendants, and each ofthem,as follows: 1. General damages including damages for pain and suffering, physical and mental injuries, including serious emotional distress, disfigurement, and loss of enjoyment of life in an amountin excess of the minimum jurisdictional limit of this court, according to proof; 2. Past and future hospital, medical, and other health care expenses according to proof; 3. Loss of wages and/or earning capacity, both past and future, in an amount according to proof; 4. As to Defendant Dennis Buster, punitive and exemplary damages in an amount sufficient to punish and make an example of Dennis Buster; 5. Costs of suit incurred herein; and 6. Such other and further relief as the Court deems just and proper. Dated: June; 2016 y/4 BRYAN DIHASE VIN LONG rneys for Plaintiff DEMAND FOR JURY TRIAL Plaintiff hereby demands trial by jury ofthis action. Dated: July I , 2016 BIS fir B JCHASEa Attorneys for Plaintiff 5[proposed] FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL O o 0 N N n t B A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BISNAR | CHASE PROOF OF SERVICE Newcombe v. Buster, et al. Orange County Superior Court Case No.: 30-2015-00814388 I am a citizen of the United States and employed in Orange County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 1301 Dove Street, Suite 120, Newport Beach, CA 92660. 1 am readily familiar with this firm’s practice for collection and processing of correspondence for mailing. On June 17, 2016, 1 served a correct copy of the within document(s) NOTICE OF MOTION and MOTION FOR LEAVE TO AMEND COMPLAINT, MEMORANDUM AND DECLARATION IN SUPPORT on the parties to the action listed below: *+**SEE ATTACHED LIST*** X BY MAIL, by placing a true copy thereof, in a sealed envelope to the addressee(s) below, and depositing the same into the United States mail at the address located set forth herein above, with sufficient first-class postage thereon pre-paid: 0 BY OVERNIGHT PRIORITY MAIL WITH NEXT BUSINESS DAY DELIVERY GUARANTEED by placing a true copy thereof, in an sealed envelope to the addressee(s) below, and depositing the same into the FEDERAL EXPRESS mail drop at the address located set forth herein above, with postage pre-paid. UJ BY PERSONAL SERVICE, by personally delivering the same to the addressee(s) listed below: UJ BY FACSIMILE, by transmitting by facsimile transmission a true and correct copy of the same to the addressee(s) listed below: J BY EMAIL, pursuant to agreement by the parties the above referenced document was emailed to: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 17, 2016, at Newport Beach, California. “FineDARA Edward Spilsbury \ 1 PROOF OF SERVICE O O © 9 O N W n B s W N N O N N N N N N N N N m m m m m m e m e d e d e d e d e e K R N O N n n B R A W N = O O N S N l A W N = O BISNAR | CHASE SERVICE LIST Newcombe v. Buster, et al. Orange County Superior Court Case No.: 30-2015-00814388 F. Lee Christensen, Esq. Attorneys For Defendant LAW OFFICE OF STEVEN D. LEVINE DENNIS BUSTER 990 West 190" Street, Suite 350 Torrance, CA 90502 Tel: (310) 965-5113 Fax: (310)965-5155 2 PROOF OF SERVICE