Laurence Harper vs. Raul Najera Lopez

Motion for Leave to Amend

Cal. Super. - 4th Dist.April 13, 2016

10 11 12 13 14. 15 16 17 18 19 20 21 22 23 24 25 ATTICUS N. WEGMAN, ESQ. (SBN 273496) AITKEN4AITKEN4COHN 3 MACARTHUR PLACE, SUITE 800 P.0. BOX 2555 ol SANTA ANA, CA 92707-2555 (714) 434-1424/(714) 434-3600 FAX Attorneys for Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER CASE NO: 30-2016-00846007 [Hon. Theodore Howard, Dept. C18] LAURENCE HARPER,an individual; MICHAELYN MILOSEVICH-HARPER, an individual; Co Plaintiff, NOTICE AND MOTION FOR LEAVE TOAMEND FIRST - AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; VS. RAUL NAJERA LOPEZ, an individual; CAPISTRANO FORD, a business organization, form unknown; DOES 1 to 10, inclusive; Defendants. [PROPOSED] ORDER Date: April 6,2017 Time: 1:30 p.m. AND RELATED CROSS-ACTIONS. Dept.: C18 RESERVATION NUMBER 72542662 [Filed concurrently with a stipulation signed by allparties as ExhibitA, and the proposed SecondAmended Complaint as Exhibit B] Complaint Filed: 4/13/16 Trial Date: 8/7/17 111 NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER1 10 11 12 13 14 15 16 C17 18 19 20 21 22 23 24 25 TO ALL PARTIES HEREIN AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat on April 6, 2017 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department C18 of the above-entitled Court, Plaintiffs will move the | Court for an order permitting Plaintiffs to file a Second Amended Complaint. | This motion is made under Code ofCivil Procedure sections 473 and 576 on the grounds that the amendmentis in furtherance ofjustice and is done in order for the complaint onfile herein to properly include all necessary parties including additional parties that were not known at the timeof filing the initial Complaint or First Amended Complaint, and to clarify the factual scenario around which this claim arose and allegations set forth by the Plaintiffs. Further,the instant motion will not cause any existing party any prejudice which is supported by the fact that all parties, including the newly added parties, have signed a stipulation permitting the filing and serving of the Second Amended Complaint, which is attached hereto as Exhibit A. A copy of the proposed Second Amended Complaintis also attached hereto as Exhibit B for filing and service. This motion will be based on all pleadings, papers, and recordsin this action andon the attached memorandum ofpoints and authorities and the proposed second amended complaint, a copy of whichis attached, and any oral argumentto be presented at the hearing. Dated: March 2, 2017 AITKEN 4+AITKEN 4+COHN ATTICUS N. WEGN Attorney for Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPAINT I INTRODUCTION Plaintiff Laurence Harper, a sixty-seven year old male, was severely and permanently injured when Defendant Raul Lopez pulled out of a driveway and collided into him while he was operating a motor vehicle on December 7,2015 in San Juan Capistrano. Plaintiff was and is at all times married to his wife Plaintiff Michaelyn Harper. Plaintiffsinitially filed their complaint on April 13, 2016 naming Defendant Raul Lopez and his employer Capistrano Ford as defendants. See Declaration ofAtticus N. Wegman. Plaintiffs subsequently filed their First Amended Complaint on April 22, 2016, to correct aclerical error as box 6.b was inadvertently left unchecked on the form complaint. See Declaration ofAtticus N. Wegman. This was done before any party answered pursuant to Code ofCivil Procedure section 472. See Declaration ofAtticus N. Wegman. Defendants Raul Lopez andCapistrano Ford answered on May 19, 2016, and noted that Capistrano Ford was erroneously sued and served as Capistrano Ford, when in fact the proper entity name is Tuttle Click’s Capistrano Ford, Inc. See Declaration ofAtticus N. Wegman. During litigation ofthe First Amended Complaint, Plaintiffs and Defendants Raul Lopez and Tuttle Click’s Capistrano Ford, Inc. (erroneously sued and served as Capistrano Ford) discovered that a vehicle had been illegally parked at the time of the impact and thus impeded both Plaintiff Laurence Harper's and Defendant Lopez’ line of sight. See Declaration ofAtticus N. Wegman. Initially it was believed that the newly discovered owner and operator ofthat vehicle was Donald Pinkus working in the course and scope of his employment with a company called DNJ Services. See Declaration ofAtticus N. Wegman. As such, Plaintiffs filed two DOE amendments to add these new parties as defendants. See Declaration ofAtticus N. Wegman. Tt was later determined that the newly discovered driver may also be named Cervando Salgado, who is believed to have been in the course and scope ofhis employment with a company called URS Midwest Inc. See Declaration ofAtticus N. Wegman. Once this information became clear, Plaintiffs and Defendants Lopez, Tuttle Click’s Capistrano Ford, Inc., DNJ Services, and Donald Pinkus, approved the filing and service of NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proposed Second Amended Complaint whereby each party signed a stipulation to that effect. See Declaration ofAtticus N. Wegman. The stipulation allowed for the Second Amended Complaint to be deemed filed and thus become the operative complaint in this matter, and also deemed that service on all parties be effectuated upon signing. See Declaration ofAtticus N. Wegman. The Court noted that a motion must also be filed. As such, Plaintiffs are filing the instant motion with Exhibits A (signed Stipulation) and B (proposed Second Amended Complaint). See Declaration ofAtticus N. Wegman. | | It should also be noted that the newly added parties Cervando Salgado and URS Midwest Inc.are represented by counselthat is already representing Defendants DNJ Services and Donald Pinkus and have agreed to accept service on the newly named defendants’ behalf. Defendants | Raul Lopez and Tuttle Click Capistrano Ford Inc. have filed ROE amendments naming Defendants URS Midwest Inc. and Cervando Salgado as cross-defendants. See Declaration of Atticus N. Wegman. Plaintiffs' amendments make no change in the same general set of facts upon which theirrelief is based and there is no display ofprejudice toward the defendants in this matter. See Declaration ofAtticus N. Wegman. IL POLICY FAVORS GRANTING AMENDMENTS TO PLEADINGS The judicial policy favors resolution of all disputed matter between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939." The policy favoring amendmentis so strong that denial ofleave to amend can rarely be justified: “Ifthe motion to amend is timely and the granting ofthe motion will not prejudice the opposing party,it is error to refuse permission to amend and where there refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense,it is not I See also Board ofTrustees ofLeland Stanford Jr. University v. Superior Court (2007) 149 Cal. App. 4™ 1154 (holding that there is greatliberality in allowing amendments to pleadings where there is no showing of prejudice to the adverse party.). NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 only error but an abuse of discretion." Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. | | Here; the newly discovered defendants are indispensable parties to this litigation and are believed to share in the fault of the subject incident which caused permanentinjuries to Plaintiffs. See Declaration ofAtticus N. Wegman. As such, good cause exists to allow the filing of the Second Amended Complaint to incorporate all proper parties and provide a clean, working, operative complaint for all parties to understand, prosecute, and defend claims. See || Declaration ofAtticus N. Wegman. Further, the Second Amended Complaint is necessary and proper to preventirreparable harm and prejudice that would befall Plaintiffs ifthey are not allowed to amendtheir Complaint as they would be forced to litigate their cause against some, but not all,ofthe proper defendants that share liability in this matter. See Declaration ofAtticus N. Wegman. Plaintiffs, within the past few months, discovered the name and involvement of the newly added defendants. See Declaration ofAtticus N. Wegman. As such, Plaintiffs have not delayed in bringing the instant butrather tried to eliminate the need for Court intervention by requesting a signed stipulation from all parties. III. STATUTORY LAW PROVIDES THAT PARTIES ARE ALLOWED TO AMEND THEIR PLEADINGS In pertinent part C.C.P. section 473 (a) (1) reads: The court may likewise,in its discretion, after notice to the adverse party, allow, upon terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. C.C.P. section 576 also reads in pertinent part: Any judge, at any time before or after commencementoftrial, in the furtherance ofjustice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. As noted above, Defendants will not suffer any prejudice and have already agreed to the filing and acceptance ofthe service of the Second Amended Complaint attached hereto. If this NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion is denied, however, Plaintiffs will suffer irreparable harm and prejudice and will thus be unable to exercise their constitutional rights. | | IV. REQUEST THAT THE PROPOSED SECOND AMENDED COMPLAINT BE DEEMED TO BE THE AMENDED PLEADING AND THAT IT BE DEEMED FILED AND SERVED | } To speed up the process, Plaintiffs hereby request that that proposed Second Amended Complaint be deemed to be the amended pleading and that it be deemed filed and served as of the date of the hearing. Doing so will avoid the necessity offiling and serving the amended pleading;all that needs to be done is for a party to serve a notice of rulingincorporating the above-noted language. V. CONCLUSION Plaintiffs respectfully ask this Court to grant the instant motion in its entirety. Dated: March 2, 2017 AITKEN 4+AITKEN +COHN Clee blgg- ATTICUS N. WEGMANZSQ. Attorney for Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER6 EXHIBIT A Pa h. f t as k e d fe mk pe ed e d pe d S\ N t h H W N N = O 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 f t ~ 3 A I T K E N + A I T K E N + 4 C O H N 3 M A C A R T H U R P L A C E , S U I T E 80 0 “ | N R R R B R E E E 3 o C - $9 PRINTED ON RECYCLED PAPER © 0 ~ 1 A N w n A W N ATTICUS N. WEGMAN, ESQ. (SBN 273496) AITKEN4AITKEN 4+ COHN 3 MACARTHUR PLACE, SUITE 800 P.0.BOX 2555 : SANTA ANA, CA 92707-2555 (714) 434-1424/(714) 434-3600 FAX Attomeyfor Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER LAURENCE HARPER,an individual; CASE NO: 30-2016 -00846007 MICHAELYN MILOSEVICH-HARPER, an [Hon. Theodore Howard,Dept. C18] individual; Co Plaintiff, STIPULATION TO AMEND FIRST . VS. AMENDED COMPLAINT RAUL NAJERA LOPEZ, an individual; ) Complaint Filed: 4/13/16 CAPISTRANO FORD,a business organization, ) Trial Date: 3/1 3/17 form unknown; DOES 1 to 10, inclusive; Defendants. AND RELATED CROSS-ACTIONS. ) TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RE CORD: Whereas Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HAR PER intend to. amend their First Amended Complaint to correct the names ofparties and cl arify causes of action and prayers for relief. | Whereas the parties have had the opportunity to review the proposed Second Am ended Complaint, which will supersede and replace the previously filed and served First A mended Complaint on all parties, and have no objection thereto. : 1 STIPULATION TO AMEND FIRST AMENDED COMPLAINT A I T K E N + A X T K E N + C O H N 1 Whereasthe parties agree that the proposed Second Amended Complaint, aftached hereto 2 as Exhibit “A”, be deemed to be theoperative amended pleading and that it be deened filed and 3 |} servedas ofthe date ofthe signing ofthis stipulation. 4 Whereas the parties stipulate that each defendant's answer to the previous First Amended 5 Complaint be deemed its answer to the Second Amended Complaint. 6 {IT ISso stipulated. 7 ¥ x 3 || Dated: December 22, 2016 AITKEN+AITKEN4COHN ; ow (LobAy10 BesN.TTR 11 Attorney for Plaintiffs 12 . LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER £ 13 Es 14 §f dog8 1s Dated: of it . BROWN, BONN& FRIEDMAN,LLP38 3312 3 16 ‘2 2 17 To Attorneys for ” 19 TUTTLE CLICK'S CAPISTRANO FORD | and RAULNAJERA LOPEZ : 20 y | 21 || Dated: / 2.11 MURCHISON & CUMMING LLP 22 | 24| 25 toestor Dx =5Q 2% DNJ SERVICES LLCEdDONALD PINKUS 27 li . 28 5 Paov STIPULATIONTO AMEND FIRST AMENDED COMPLAINT EXHIBIT B PLD-PI-001 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address). FOR COURT USE ONLY |Atticus N. Wegman, State Bar No. 273496 AITKEN*AITKEN*COHN ’ 3 MacArthur Place, Suite 800 Santa Ana, CA 92707 : TELEPHONE NO: 714.434.1424 FAX NO. (optional). 114.434.3600 E-MAIL ADDRESS (Optional): . ATTORNEY FOR (Name): Plaintiffs : SUPERIOR COURT OF CALIFORNIA, COUNTY OF Orange streeTappress: 700 Civic -Center Drive West MAILING ADDRESS: ctryanp ze cope; Santa Ana, CA 92701 prancinave: Central Justice Center PLAINTIFF: LAURENCE HARPER, an individual; MICHAELYN MILOSEVICH-HARPER, an individual; DEFENDANT: RAUL NAJERA LOPEZ, an individual; CAPISTRANO FORD, a business organization, form unknown; and 3 [X] poEs 1710 10,inclusive COMPLAINT-Personal Injury, Property Damage, Wrongful Death [X_] AMENDED (Number): Second Type (check all that apply): MOTOR VEHICLE ["] OTHER (specify): [1] Property Damage - [7] wrongful Death Personal Injury {1 Other Damages (specify): Jurisdiction (check all that apply): . [1 ACTION iS A LIMITED CIVIL CASE CASE NUMBER: ~ Amount demanded does not exceed $10,000 30-2015-00846007 exceeds $10,000, but does not exceed $25,000 ACTION iS AN UNLIMITED CIVIL CASE (exceeds $25,000) ACTION iS RECLASSIFIED by this amended complaint [] from limited to unlimited [__] ‘from unlimited to limited 1. Plaintiff (name or names): LAURENCE HARPER, an individual; MICHAELYN MILOSEVICH-HARPER, individual; an alleges causes of action against defendant (name or names): RAUL NAJERA LOPEZ, TUTTLE CLICK'S CAPISTRANO FORD (erroneously sued and served as "Capsitrano Ford"), DONALD PINKUS, DNJ SERVICES, CERVANDO SALGADO, URS MIDWEST INC, and DOES 1 TO 10 2. This pleading, including attachments and exhibits, consists of the following number of pages: 7 3. Each plaintiff named above is a competent adult a. [] except plaintiff (name): (1) [J] a corporation qualified to do business in California (2) [_] an unincorporated entity (describe): (3) [_] a public entity (describe): @ [J aminor [|] an adult (a) [_1 for whom a guardian or conservator of the estate or a guardian ad litem has been appointed by [__] other (specify): (6) [_] other(specify): b. [1 except plaintiff (name): (1) [] a corporation qualified to do business in California 2 [1 an unincorporated entity (describe): (3) [_] a public entity (describe): @ [] aminor [1] anadut (a) [1 for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) [1 other (specify): 5) [| other (specify): {7 Information about additional plaintiffs who are not competent adults is shown in Attachment 3. Page 1 of 3 Form Approved for Optional Use CONMPLAINT-Personal Injury, Property g bi Code of Civil Procedure, § 425.12 8 IS Judicial Councof California PLD-PI-001 [Rev. January 1. 2007} : Damage, Wrongful Death Plus PLD-PI-001 SHORT TITLE: HARPER, et al. v. LOPEZ, et al. CASE NUMBER: 30-2015-00846007 4. [J Plaintiff (name): is doing business under the fictitious name (specify). and has complied with the fictitious business name laws. 5. Each defendant named above is a natural person : a. except defendant (name): TUTTLE CLICK'S ~~ c[X] except defendant (name): URS MIDWEST, INC. CAPISTRANO FORD (erroneously sued and served as "Capsitrano Ford") 1) a business organization, form unknown mn a business organization, form unknown (2) [1 a corporation (2) [__] a corporation 3) [1 an unincorporated entity (describe): (3 [J an unincorporated entity (describe): 4) [1] a public entity (describe): @) [J a public entity (describe): (8) [_] other (specify): (5) [_] other (specify): b. except defendant (name): DNJ SERVICES d. [1 except defendant (name): (1) a business organization, form unknown (1) [J a business organization, form unknown (2) [1 a corporation (2) [1 a corporation (3) [1 an unincorporated entity (describe): (3) [__] an unincorporated entity (describe): 4) [_] a public entity (describe): (4) [_] a public entity (describe): (6) [1 other (specify): (6) [1 other(specify): [information about additional defendants who are not natural personsis contained in Attachment 5. 8. The true names of defendants sued as Does are unknown to plaintiff. a. Doe defendants (specify Doe numbers): 1-10 were the agents or employees of other named defendants and acted within the scope of that agency or employment. bh. Doe defendants (specify Doe numbers): 1=10 are persons whose capacities are unknown to plaintiff. : 7. [_] Defendants who are joined under Code of Civil Procedure section 382 are (names): 8. This court is the proper court because a. [| atleast one defendant now residesin its jurisdictional area. b. [_] the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area. Cc. injury to person or damage to personal property occurred in its jurisdictional area. d. [__] other (specify): 9. [7] Plaintiff is required to comply with a claims statute, and a. [| has complied with applicable claims statutes, or b. |__| is excused from complying because (specify): PLD-PI-001 {Rev. January 1, 2007) COMPL.AINT-Personal Inju ry, Property Page 20f 3 Damage, Wrongful Death \ PLD-PI-001 SHORT TITLE: HARPER, et al. v. LOPEZ, et al. CASE NUMBER: o 30-2015-00846007 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes ofaction attached): a. Motor Vehicle b. [X_] General Negligence c. [] intentional Tort d. [_] Products Liability &. [__] Premises Liability f. [_] Other (specify): 11. Plaintiff has suffered a. [__] wage!loss [XT toss of use of property hospital and medical expenses b. c. (XJ d. [X] general damage e. property damage f. [] toss of earning capacity . g. [(¥] other damage (specify): loss of consortium; any other relief the Court deems proper. 12. [1 The damagesclaimed for wrongful death and therelationshipsof plaintiff to the deceased are a. [_] listed in Attachment 12. : b.[_] as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. 14. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. (1) [X] compensatory damages (3) X Interest 2) [1 punitive damages (4) X Trial by Jury The amount of damages is (in cases forpersonal injury or wrongful death, you must ch eck (1)): (4) [X] according to proof 2) [J inthe amountof. § 15. [X] The paragraphs of this complaint alleged on information and belief are as follow s (specify paragraph numbers): 6, 10 and 11 : Date; December 22, 2016 (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF QR.ATTG RNEY) PLO-PI-001 {Rev. January 1, 2007] COMPLAINT --Personal Injury, Property Page 3 of 3 : Damage, Wrongful Death SHORT TITLE: HARPER, et al. v. LOPEZ, et al. C ASE NUMBER: PLD-P|-001(1 30~2016-00846007 First CAUSE OF ACTION--Motor Vehicle . (number) ATTACHMENT TO [X_] Complaint [___] Cross - Complaint (Use a separate cause ofaction form for each cause ofaction.) ‘Plaintiff (name): LAURENCE HARPER, an individual; MICHAELYN MILOSEVICH-HARPER , an MV-1. Orange, MV-2, PLD-P1-001(1) [Rov. January 1, 2007) individual; Plaintiff alleges the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries’ and damages to plaintiff; the acts occurred on (date): December 7, 2015 at (place): Camino Capistrano Blvd., in San Juan Capistrano, County of State of California : DEFENDANTS a. The defendants who operated a motor vehicle are (names): RAULNAJERA LOPEZ, an individual; TUTTLE CLICK'S CAPISTRANO FORD,a business organization, form unknown; DONALD PINKUS, an individual; DNJ SERVICES, a business organization, form unknown; CERVANDO SALGADO, an individual; URS MIDWEST, a business organization, form unknown; and [X] Does 1 to 10 : b. [XJ The defendants who employed the persons who operated a motor vehicle in the course of their employment are (names): RAUL NAJERA LOPEZ, an individual; TUTTLE CLICK'S CAPISTRANO FORD,a busiftess organization, form unknown; DONALD PINKUS, an individual; DNJ SERVICES, a business organization, form unknown; CERVANDO SALGADO, an individual; URS MIDWEST, a business organization, form unknown; and Does 1 to : ¢. [X|The defendants who owned the motor vehicle which was operated with their permission are (names): RAUL NAJERA LOPEZ, an individual; TUTTLE CLICK'S CAPISTRANO FORD, 2 business organization, form unknown; DONALD PINKUS,an individual; DNJ SERVICES,a business organization, form unknown; CERVANDO SALGADO, an individual; URS MIDWEST, a business organization, form unknown; and Does 1 to 10 d. [XJThe defendants who entrusted the motor vehicle are (names): RAULNAJERA LOPEZ, an individual; TUTTLE CLICK'S CAPISTRANO FORD, a business organization, form unknown; DONALD PINKUS, an individual; DNJ SERVICES, a business organization, form unknown; CERVANDO SALGADO,an individual, URS MIDWEST,a business organization, form unknown; and : [X1 Does 1 “to 10 e.[XThe defendants who were the agents and employees of the other defendants and acted within the scope of the agency were (names): RAUL NAJERA LOPEZ, an individual; TUTTLE CLICK'S CAPISTRANO FORD,a business organization, form unknown; DONALD PINKUS,an individual; DNJ SERVICES, a business organization, form unknown; CERVANDC SALGADO, an individual; URS MIDWEST,a business organization, form unknown; and Does l __ to10 f. [JThe defendants who are liable to plaintiffs for other reasons and the reasons for the liability are [J tisted in Attachment Mv-2f [Jas follows: (JDces to. : Pags 1.011 FormZpprovediOptionalor cAUSE OF ACTION-Motor Vehicl oe Codeof Civil Procedure 425.12 ta As PLD-PI-001(2) SHORT TITLE: Harper, et al. v. Lopez, et al. CASE NUMBER; 30-2016-00846007 Second SE CAUSE OF ACTION-General Negligence Page 5 (number) . ATTACHMENT TO [X Complaint [__] Cross - Complaint (Use a separate cause ofaction form for each cause of action.) GN-1. Plaintiff (name): LAURENCE HARPER, an individual; MICHAELYN MILOSEVICH~HAPER, an individual; alleges that defendant (name): RAUL NAJERA LOPEZ, an individual; TUTTLE CLICK'S CAPISTRANO FORD, a business organization, form unknown; and [X] poes 1 tol0. was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff : on {date}: December 7, 2015 at (place): Camino Capistrano Blvd., in San Juan Capistrano, County of Orange, State of California {description ofreasons for liability): 1. At all times herein mentioned, each of the Defendants was the agent and employee of each of the remaining Defendants and was at all times mentioned acting within the scope of said agency and employment. 2. On or around December 7, 2015, at or near Camino Capistrano Blvd., in San Juan Capistrano, County of Orange, State. of California, Defendants RAUL NAJE RA LOPEZ, an individual; TUTTLE CLICK'S CAPISTRANO FORD, a business organization, . form unknown; and Does 1 to 10 inclusive failed to properly control their motor vehicle, among other things, whilemaking a turn onto Capistrano Blvd. and collided with a vehicle being driven by Plaintiff LAURENCE HARPER. Defendants, and each of them, negligently, wantonly, recklessly, unlawfully, wrongfully, a nd carelessly caused their vehicle to strike a vehicle being driven by Plaintiff LAURENCE HARPER. Plaintiff LAURENCE HARPER did not have any warning or any ability to prevent this collision. 3. Bs a direct and legal cause of the negligent, wanton, reckless, unl awful, wrongful, and careless actions or inactions of defendants, and each of them, plaintiff Laurence Harper suffered severe and permanent injuries within the ) unlimited jurisdiction of the Court and according to proof. 4. As a result of the negligence and other wrongful acts of defendants , and each of them, as described above, Plaintiff LAURENCE HARPER has suffered both general damages and special damages to his person, and will continue to su ffer damages in the future. These damages include, without limitation, past and future hospital and medical expenses, past and future pain and suffering, household services, emotional distress and other damages as allowed by this Court according to proof. (Continued on attachment) Page 1 of 1 Form Approved fos Optional Use Code of Civil Procedure 426.12 Judiotal Council of California CAUSE OF ACTION--General Negligence Solutions te, PLD-PI-001(2) {Rev. January 1, 2007) PLD-PI-001{2 SHORT TITLE: HARPER, et al. v. LOPEZ, et al. GASE NUMBER: : 30-2016-00846007 Third CAUSE OF ACTION-General Negligence Page 6 me ATTACHMENT TO [XJ Complaint [_] Cross - Complaint (Use a separate cause ofaction form for each cause ofaction.) GN-1. Plaintiff (name): LAURENCE HARPER, an individual; MICHAELYN M ILOSEVICH-HARPER, - an individual; alleges that defendant (name); DONALD PINKUS, an individual; DNJ SERVICES, a business organization, form unknown; CERVANDO SALGADO, an in dividual; URS MIDWEST, a business organization, form unknown; and : : [X] Does 1 to 10 was the legal (proximate) cause of damages to plaintiff. By the following acts or omission s to. act, defendant negligently caused the damage to plaintiff on (date): December 7, 2015 at (place): Camino Capistrano Blvd., in San Juan Capistrano, County of Orange, State of California * (description ofreasons for fiability): 5. Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH-HARPER inco rporate by reference the allegations containedin paragraphs 1~4 and each and every p art thereof, with the same force and effect as though set out at length herein. 6. At all times herein mentioned, each of the Defendants w as the agent and amployee of each of the remaining Defendants and was at all times mentioned act ing within the scope of said agency and employment. 7. On or around December 7, 2015, at or near Camino Capist rano Blvd., in San Juan Capistrano, C unty of Orange, State of Californiag, Defendants DONALD P INKUS, an individual; DNJ SERVICES, a business organization, form unknown; CERVANDO SALGADO, an individual; URS MIDWEST, a business organization, form unknown; and Does 1 to 10 inclusive f ailed toproperly park, stop, position, and orient their motor vehicle on the roadway, and in doi ng s¢ created an sight line obstruction, among other things, which impeded the visibility of Plaintiff LA URENCE HARPER and Defendants RAUL NAJERA LOPEZ, TUTTLE CLICK'S CAPISTRANO FORD, and DOES 1 to 10 inclusive, causing their vehicles to collide. Defendants, and each of them, negligently, wanto nly, recklessly, unlawfully, wrongfully, and carelessly obstructed the line of sight, among other t hings, for Plaintiff LAURENCE BARPER and Defendant RAUL NAJERA LOPEZ and DOES 1 to 10. Plaintiff LAURENCE HARPER did not have any warning or ability to prevent this collision. 8. As a direct and legal cause of the negligent, wanton , reckless, unlawful, wrongful, and careless actions or imactions of Defendants, and each o f them, Plaintiff Laurence Harper suffered gevere and permanent injuries within the unlimited juris diction of the Court and according to proof. 9. As a result of the negligence and other wrongful ac ts of defendants, and each of them, as described above, Plaintiff LAURENCE HARPER has suffered damages to his person, both past and future general damages and special damages, and will continue to suffer damages in the future, These damages include, without limitation, hospital and m edical expenses, pain and suffering, emotional distress and other damages as allowed by this Court according to proof. Paps 1 of 1 Farm Approvad for Optional Usa Code of Civil Pracature 425.12 Judiclal Council of Galifomia CAUSE OF ACTION-General Negligence oii no th PLD-RI-001(2) Rev. January 1, 2007) us PLD-P1-001(2) SHORT TITLE: HARPER, et al. v. LOPEZ, et al, CASE NUMBER: ' ) 30-2016-00846007 Fourth CAUSE OF ACTION-GEMmsalNogiigence Page7 (number) Loss of Consortium ATTACHMENT TO [XJ Complaint [_] Cross - Complaint (Use a separate cause of action form foreach cause ofaction.) GN-1. Plaintiff (name): LAURENCE HARPER, an individual; MICHAELYN M ILOSEVICH-HARPER, an individual; alleges that defendant (name): RAUL NAJERA LOPEZ, an individual; TUTTLE CLICK' S CAPISTRANO FORD, a business organization, form unknown; DONALD PIN KUS, an individual; DNJ SERVICES, a business organization, form unknown; CERVAN DO SALGADO, an individual; URS MIDWEST, a business organization, for m unknown; and [XIDoes 1 to 10. was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act , defendant negligently caused the damage to plaintiff on (date): December 7, 2015 at (place): Camino Capistrano Blvd., in San Juan Capistrano, County of Orange, State of California : oo (description of reasons forliability): 10. Plaintiffs LAURENCE HARPER and MICHAELYN MILOSEVICH~HA RPER incorporate by reference the allegations contained in paragraphs 1-9 and each and every part thereof, with the same force and effect as though set out at leng th herein. 11. At all times herein mentioned, Plaintiffs LAURENCE HARPERand MICHAELYN MILOSEVICH~HARPER were and now are married as husband and wife. 12. As a further legal result of the conduct of Defend ants, and each of them, and of his resulting injuries, Plaintiff MICHAELYN MIL OSEVICH-HARPER has been deprived of the services of her said husband by reason of his inability to carry _on his usual duties as a husband. Plaintiff is inform ed and believes, and thereon alleges, that said injuries to her husband are of a permanent nature and that she will be deprived of his services in the future, all to her further damage in an amount to be shown according to proof. 13. By reason of said injuries suffered and sustained b y him, Plaintiff MICHAELYN MILOSEVICH-HARPER has been deprived of love, c ompanionship, affection, society, and solace of Plaintiff LAURENCE HARPER, all to Plaintiff's further damage. Page 10f1 Form Approved for Optlanal Use Codes of Civil Procedures 425.12 Judiciel Council of California CAUSE OF ACTION-Gseneral Negligence sok 5 PLO-PI001{2) [Rev. January 1, 2007) 10 11 12 13 14 15 i6 17 18 19 20 21 22 23 24 25 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. 1am over the age of 18 and not a party to the within action; my business address is 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On March 2, 2017 I served the foregoing documents described as NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER on the parties herein in this action by placing ( ) the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached service list. (X) BYMAIL (X) Asfollows: Tam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S.postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. Iam aware that on motion of the party served, service is presumed invalid if postal cancellation date or ostage meter date is more than one day after date of deposit for mailing an idavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. ( ) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of ervice list. () By Email Transmission: I caused the above-referenced document(s) to be transmitted to the personslisted in the attached Proof of Servicelists. Executed on March 2, 2017 at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws ofthe State of California the above is true and correct. ~ | )dp // Kristin McCarthy 7 NOTICE AND MOTION FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT; MEMORANDUMOF POINTS AND AUTHORITIES; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER7 O o o o a N w n A W w N o - o h p d f k p d e t p d fe d S N W n H W N o _ - O D 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E [o y ~ S A N T A A N A , C A 9 2 7 0 7 AI TK EN 4 AI TK EN + C O H N 3 M A C A R T H U R PL AC E, SU IT E 80 0 [\ ] fe ) n o N o n o [\ ] N o r o N o - p - o o ~ ~ a N w h + 2 N o fo d < < 0 o o <9 PRINTED ON RECYCLED PAPER HARPER v. LOPEZ, et al. SERVICE LIST Debra L. Braasch BROWN, BONN & FRIEDMAN, LLP 4 Hutton Center, Suite 350 Santa Ana,CA 92707 714-427-3900 714-427-5449-fax Attorneys for Defendants/ Cross- Complainants/Cross-Defendants TUTTLE CLICK'S CAPISTRANO FORD, INC.(erroneously sued and served as "Capistrano Ford") and RAUL NAJERA LOPEZ Richard C. Moreno, Esq. Steven J.McEvoy, Esq. MURCHISON & CUMMING LLP 801 South Grand Ave., 9th Floor Los Angeles, CA 90017 (213) 623-7400 (213) 623-6336-fax Attorneys for Defendants/Cross- ‘Complainants /Cross-Defendants DNJ SERVICES LLC, DONALD PINKUS; Defendants/Cross-Defendants CERVANDO SALGADO, ROE 1 AND URS MIDWEST, INC., ROE 2 2PROOF OF SERVICE