Rohn Battle vs. Dennis Carl England

Demurrer

Cal. Super. - 4th Dist.November 30, 2016

— O O © 0 N N O O O O » W N 24 25 26 27 28 McCLAUGHERTY & ASSOCIATES Jay S. McClaugherty, SBN 99063 John M. Natalizio, Esq. SBN 311482 250 West Colorado Blvd., Suite 250 Arcadia, California 91007 Telephone: (626) 821-1100 Facsimile: (626) 821-2626 Email: John.Natalizio@mcctrials.com Attorneys for Defendant, DENNIS CARL ENGLAND SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE ROHN BATTLE, Case No.: 30-2016-00889629-CU-NP-CJC Plaintiff, ENGLAND’S NOTICE OF DEMURRER AND DEMURRERTO PLAINTIFFROHN BATTLE’S COMPLAINT; VS. ) ) JDEFENDANT DENNIS CARL ) ) DENNIS CARL ENGLAND; and DOES Ito) 50, ) MEMORANDUM OF POINTS AND ) AUTHORITIES; DECLARATION OF Defendants. ) JOHN M. NATALIZIO Filed Concurrently with a Motion to Strike and Proposed Order] [C.C.P. § 430.10] [Assigned to Hon. Peter Wilson, Dept. C15] Date: May 4, 2017 Time: 2:00 p.m. Dept: C15 [RES NO: ] 72537537 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat on May 4, 2017 at 2:00 p.m. or as soonthereafter as the matter may be heard in Department C15 of the above-entitled Court, located at 700 W. Civic Center Dr., Santa Ana, CA. Defendant, DENNIS CARLENGLANDbyand through his attorneys ofrecord, 1 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO 1 will, and hereby do, move the Court for an order sustaining a Demurrer to Plaintiff ROHN 2 BATTLE’s Complaint on the following grounds: 3 1. The Causes of Action for 1) Negligence, 2) Negligence - Res Ipsa Loquitor, and 3) 4 Negligence Per Se as alleged against Defendant fail to state facts sufficient to 5 constitute causes of action; 6 2. The Causes of Action for 1) Negligence, 2) Negligence - Res Ipsa Loquitor, and 3) 7 Negligence Per Se are barred pursuant to the “firefighter rule;” 8 3. Plaintiffs SECOND CAUSE OF ACTION - Negligence- Res Ipsa Loguitoris not 9 an independent cause ofaction; 10 4. Plaintiff's THIRD CAUSE OF ACTION- Negligence Per Seis not an independent 11 cause ofaction; 12 This Motion is brought pursuant to California Code ofCivil Procedure (“CCP”) section 430. 13 This Motion is based on this Notice of Motion, the Demurrer, the accompanying Memorandum of 14 Points and Authorities, Declaration of John M. Natalizio,filed and served concurrently herewith, 15 and upon all papers, pleadings, and records offile herein, and upon such oral and documentary 16 evidence as may be presented at the hearing. 17 I 18 Dated: February 21, 2017 McCLAUGHERTY & ASSOCIATES 19 20 By: Igy/S. McClaugherty 21 Jolin M. Natalizio Altorneys for Defendant 22 DENNIS CARL ENGLAND 23 24 25 26 27 2 28 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTSAND AUTHORITIES; DECLARATION OF JOHN M. — © © O o N N o O o O b h W N DEMURRER Defendant demursto Plaintiff’s Complaint on the following grounds: DEMURRER TO THE FIRST CAUSE OF ACTION (Negligence) Plaintiff's First Cause of Action for Negligence fails to state facts sufficient to constitute a cause of action pursuant to CCP section 430. 10(e). Plaintiff's First Cause of Action for Negligence is barred by the “Firefighter Rule” set out in Giorgi v. Pacific Gas & Elect. Co. (1968) 266 Cal.App.3d 355; Knight v. Jewett (1992) 3 Cal.4th 296; Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 533; Farnam v. California (2000) 84 Cal.App.4th 1448 and their lineage. DEMURRER TO THE SECOND CAUSE OF ACTION (Negligence - Res Ipsa Loquitor) Plaintiff's Second Cause of Action for Negligence - Res Ipsa Loquitor is not an independent cause of action. Plaintiff's Second Cause of Action for Negligence - Res Ipsa Loquitorfails to state facts sufficient to constitute a cause ofaction pursuant to CCP section 430.10(e). Plaintiff's Second Cause of Action for Negligence - Res Ipsa Loquitor is barred by the “Firefighter Rule” set out in Giorgi v. Pacific Gas & Elect. Co. (1968) 266 Cal.App.3d 355; Knight v. Jewert (1992) 3 Cal.4th 296; Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 533; Farnamv. California (2000) 84 Cal.App.4th 1448 and their lineage. DEMURRER TO THE THIRD CAUSE OF ACTION (Negligence Per Se) Plaintiff's Third Cause of Action for Negligence PerSe is not an independent cause of action. 3 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO OO © 0 NN Oo OO H W N N = N N N D N N N N N N N m 2 a a a a a a a o d om a e s W O N N O O g O H p W N = O O © 0 N O O O D H W N = 7. Plaintiff's Third Cause of Action for Negligence PerSefails to state facts sufficient to constitute a cause of action pursuant to CCP section 430.10(e). 8. Plaintiff's Third Cause of Action for Negligence Per Se is barred by the “Firefighter Rule” set out in Giorgi v. Pacific Gas & Elect. Co. (1968) 266 Cal.App.3d 355; Knight v. Jewett (1992) 3 Cal.4th 296; Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 533; Farnamv. California (2000) 84 Cal.App.4th 1448 and their lineage. Dated: February 21, 2017 McCLAUGHERTY & ASSOCIATES By: Jay/§. McClaugherty Johg M. Natalizio Attorneys for Defendant DENNIS CARL ENGLAND 4 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO CO O W 0 NN OO O O HA W NN = N N N N N N N N N = a a a o m e a a m e a o m 0 N O O O h r W N = O © O N O C D A W N MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This lawsuit results from an incident that occurred after Defendant DENNIS CARL ENGLAND (“Defendant”) was pulled over by Plaintiff ROHN BATTLE (“Plaintiff”). At the time of the subject incident, Plaintiff was acting as an on-duty, uniformed police officer. Plaintiff's Complainthints atthis, but never expressly states it. Plaintiff's Complaint alleges almost no facts, making a description ofincidentdifficult. Plaintiff only alleges: “On or about 8/4/2015, Plaintiff was lawfully stopped on Coto De Caza Drive near Antonio Parkway in or near the City of Rancho Santa Margarita. At the time and place aforesaid, DENNIS CARL ENGLAND . .. so negligently . . . exited the SUBJECT VEHICLEas to attack Plaintiff.” The rest of the Complaint is pages of legal conclusions. IL ARGUMENT A. STANDARD FOR A DEMURRER. A defendant can file a general demurrer to a complaintif “the pleading does notstate facts sufficient to constitute a cause ofaction.” CCP section 430. 10(e). A demurrer can be made to an entire complaint or individual causes of action. CCP section 430.50(a). A demurrer must be based on a defect that appears on the face of the challenged pleading. County ofFresno v. Shelton (1998) 45 Cal.4th 996, 1009-09. A defect appears on the face of the pleading if it is clearly and affirmatively evident from the pleading itself without consideration of any extrinsic evidence. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998. A trial court does not abuseits discretion by sustaining a general demurrer without leave to amend if it appears from the complaint that under applicable substantive law there is no reasonable probability that an amendment could cure the complaint’s defect. Heckendorn v. San Marino (1986) 42 Cal.3d 481, 486. Moreover, when a complaintis successfully challenged by a general demurrer, 5 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE'’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO O O © W W W N N O O O O & W W N N = N N N D N N N M N N D N N N = a 3 a a e n e d c a e a e n o m 0 N N O O O O p b W N = O O O W © N N O O O O H H W N = the burdenis on the Plaintiff to demonstrate how the complaint might be amended to cure it of the defect. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302. CCP section 430.41 mandates a meet and conferat leastfive days before filing a demurrer. If the parties fail to meet and confer, the demurring partyis granted an automatic 30-day extension in which to file a responsive pleading by filing and serving (by the initial demurrer deadline) a declaration explaining why the meet and confer did not occur and stating that there was a good faith attempt to meet and confer. B. PLAINTIFF’S FIRST, SECOND,ANDTHIRD CAUSES OFACTION MUST FAILBECAUSEPLAINTIFFFAILS TOALLEGEFACTS SUFFICIENTTO SUPPORT A CAUSE OF ACTION. To sufficiently allege a cause of action, a complaint mustallege all the ultimate facts— that is, the facts needed to establish each element of the cause of action pleaded. Committee on Children’s TV, Inc. V. General Food Corp. (1983) 35 Cal.3d 197, 212. A pleading does not sufficient state a cause of action when the facts in the pleading establish any ofthe following: 1. An essential element of a cause ofaction is missing. Baldwin v. Marina City Props., Inc. (1978) 79 Cal.App.3d 292, 410; 2. The cause of action is not recognized in California; and 3. An affirmative defense bars the claim. McKenny v. Purepac Pharm. (2008) 167 Cal.App.4th 72, 78-79. 1. Plaintiff's First Cause ofAction for Negligence Must Fail. Plaintiff fails to allege sufficientfacts to establish any ofthe elements ofnegligence. Plaintiff simply alleges that “DENNIS CARL ENGLAND and DOES1 through 50, and each of them, so negligently, carelessly, recklessly, wantonly, and unlawfully exited the SUBJECT VEHICLEas fo attack Plaintiff.” (Emphasis added). Plaintiff neverstates that Defendantphysically attacked him. Plaintiff never provides any facts connecting Defendant's conduct and Plaintiff's injuries. Plaintiff 6 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO © O W 0 N N O O O F H h W N = N N N N N N N N N = 2 9 a a a « a a a o a 0 N O G O A W N = O O © 0 0 N O O R r W N merely claims that Defendant was negligent and Plaintiff sustained injures. Plaintiff merely concludes that Plaintiff was injured as a result of Defendant’s mysterious conduct. Plaintiff’s Complaintfails to demonstrate how Defendant owed a duty to Plaintiff. Plaintiff's Complaintfails to demonstrate how Defendant breached any duties owed to Plaintiff. Plaintiff's Complaintfails to demonstrate how Defendant’s breach of duty caused injury to Plaintiff. And further, Plaintiff's Complaint fails to demonstrate that Plaintiff suffered damages in any way. 2. Plaintiff's Second Cause ofAction for Negligence - Res Ipsa Loquitor Must Fail. Pursuantto the California Evidence Code section 646(b), “the judicial doctrine ofres ipsa loquituris a presumption affecting the burden of producing evidence.” The evidentiary doctrine of Res Ipsa Loquitor requires that Plaintiff prove: 1) That Plaintiff’s harm ordinarily would not have happened unless someone was negligent, 2) that the harm was caused by something that only Defendant controlled, and 3) that Plaintiff's voluntary actions did not cause or contribute to the events that harmed him. Res Ipsa Loquitur is an evidentiary rule for determining whether circumstantial evidence ofnegligenceis sufficient. Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163-64. The doctrine is based on a theory ofprobability where thereis no direct evidence of defendant’s conduct, permitting common sense inference of negligence from the happening ofthe accident. Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75. Therefore, Res Ipsa Loquitoris an evidentiary doctrine and not a stand-alone cause of action. Due to the above, Plaintiff's Res Ipsa Loquitor claim should be dismissed as it is not a cause of action that California recognizes. However, should the Court choose to recognize Res Ipsa Loquitor as a cause of action, the same argument as Section I applies. Plaintiff has not alleged any facts that support those elements. Plaintiff's attempt to pleadthis evidentiary principle does not even work within the premise of Res Ipsa Loquitur. Res Ipsa Loquituris for circumstantial evidence, not direct evidence. Plaintiffis trying to plead that Defendant directly injured Plaintiff. Therefore, should the court find Res Ipsa 7 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO O O O W 0 N N O O O O Hp » W N = N N N N N N N N N N = a a a c m oe m ea d e d oe m o m C C N O g p W N = O O © O N O O R W N = Loquitur as a cause of action, Plaintiff has failed to meet any of elements and this cause of action should be dismissed. 3. Plaintiff's Third Cause ofActionfor Negligence Per Se mustfail. The Court in Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1285 held that “to apply negligence perse is notto state an independent cause of action;the doctrine does not provide a private right of action.” In fact, negligence perse is an evidentiary doctrine that, if established, only raises a presumption of negligence. Id. Negligence Per Se requires showing: 1) a defendant violated a statute, ordinance,or regulation; 2)the violation proximately caused injury; 3) the injury resulted from an occurrence the enactment was designed to prevent; and 4) the plaintiff was a memberof the class of persons the statute was intended to protect. Ramirez v. Nelson (2008) 44 Cal .4th 908, 917-18. Due to the above, Plaintiff's Negligence Per Se claim should be dismissed, since it is not a cause ofaction. However, should the Court find that there is an independent cause of action for Negligence Per Se, Plaintiff has failed to state facts sufficient for Negligence Per Se. Particularly, Plaintifffails to establish the second and third prong re-iterated in Ramirez. Plaintiff pleads no facts that Defendant’s violation of a statute proximately caused Plaintiff's injuries. Plaintiff simply concludesthat he suffered “severe and seriousinjury to his person.” Plaintiff has failed to show how Plaintiff’s injuries stemmed from Defendant's violation of the statute. Because ofthis, the cause of action must be dismissed. C. PLAINTIFF’S FIRST, SECOND, AND THIRD CAUSES OFACTIONMUST FAIL BECAUSE PLAINTIFF IS BARRED FROM BRINGING TORT CLAIMS PURSUANT TO THE “FIREFIGHTER” RULE. The Firefighter's Rule stems from the doctrine of primary assumption oftherisk. Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355. The assumption of risk doctrine provides that plaintiff's recovery is completely barred where, by virtue ofthe nature ofthe activity and the parties’ relationship to the activity, defendant owes no legal duty to protect the plaintiff from the particular 8 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO — OO © 0 N N OO OO HH Ww W N risk of harm that causedthe injury. Knight v. Jewett (1992) 3 Cal.4th 296, 314-15. In essence, “the firefighter’s rule precludes recovery for injuries suffered a direct consequence ofresponding to calls in the line of duty.” City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 274. Thetest for applying the Firefighter's Rule is not “whether plaintiff was summoned due to defendant’s conduct,” butto “determine whether public policy considerations justify ‘exonerating defendants from their usual duty of care. ...” Farnamv. State ofCalifornia (2000) 84 Cal.App.4th 1448. There are four relevant public policy justifications for the Firefighter's Rule. First, police officers and firefighters may not complain of the very negligence that makes their employment necessary. Calatayud v. State of California (1998) 18 Cal.4th 1057. Second, police officers and firefighters are public employees who receive special salaries, disability, and retirement benefits to compensate them from confronting the dangers posed by negligence. Id. Third, permitting recovery would force the courts to determine the rights of indemnification among the employer,retirement system, and defendant’s insurer. Id. Fourth,the Firefighter's Rule is based on the decision to meet the public’s obligationsto its officers collectively through tax-supported compensation rather than through individual tort recoveries. Id.; Tilley v. Schulte (1999) 70 Cal.App.44th 79, 83. “In effect, the public has purchased exoneration from the duty of care and should not have to pay twice, through taxation and through individual liability, for that service.” Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532. With these legal principals in mind,it is evident that Plaintiff cannot bring this Complaint and/or any ofhis three causes ofaction, because he is barred from doing so. Plaintiff was working as an on-duty police officeratthe time of the subject incident. Plaintiff pulled Defendant over,at which time,Plaintiffthen claims he was mysteriously injured by Defendant. As discussed numerous times above, Plaintiff never alleges any facts of Defendant’s conduct towards Plaintiff that actually caused injury. Regardless,it does not matter because Plaintiffassumedthe risks ofan active police officer's duties. Asstated in Knight, Defendant owes no duty to Plaintiff to protect him from the risks 9 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO Q O O W 0 0 N N O O a A p W N = N N N N N N N N N N 2 3 @ a 2 3 G 9 3 a 2 0 ~ N O O O A W N = O O © 0 N N O O O o p p W N = inherent in his job. The bottom line is that Plaintiff responded to a call and was allegedly injured in the line of duty. Again, Farnam provides that the test for applying the Firefighter’s Rule is not “whether plaintiff was summoned due to defendant’s conduct,” but to “determine whether public policy considerations justify ‘exonerating defendants from their usual duty ofcare. . ..” The four major public policy considerations all support exonerating Defendant from his usual duty of care, in this case. First, Plaintiffcannot complain ofgetting injured while performing an essentialjob function. It is a police officer’s duty to respond to potentially negligent conduct. Arguendo, Defendant acted negligently-this is the exact reason why police officers are hired. It is not sufficient to impose a duty upon Defendantto protect Plaintiff. Second,ifPlaintiffwas injured, he has received treatment and monies through the generous state programs. Plaintiffcannot seek to recover medical expenses that were paid by his employer's insurance, and claim loss wages for missed work that were paid. This would go against the public policy decision of protecting the public from police officers “double dipping.” Third, if Plaintiffis permitted to pursue any causes ofaction, the Court will force Plaintiff’s employers insurance and Defendant’s insurance to engage in unnecessary litigation for who should cover costs. Fourth, police officers are paid through tax-supported compensation, and permitting Plaintiffto recover would, in essence, force the public and Defendant to pay for Plaintiff’s alleged injuries twice. Based on the above, the public policy considerations weigh strongly in favor ofexonerating Defendant from his usual duty ofcare. Because ofthis, Plaintiffshould be barred from bringing any tort claims against Defendant, and therefore, Plaintiff's Complaint and/or First, Second, and Third causes of actions should be dismissed. i 10 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO — © O W O W N N O& O 6 H p W N III. CONCLUSION Based on the foregoing, Defendant DENNIS CARL ENGLAND respectfully requests that the Court sustain the Demurrer to Plaintiff's Complaint, without leave to amend and dismiss Plaintiff’s First, Second, and Third Causes of Action. Dated: February 21, 2017 McCLAUGHERTY & ASSOCIATES By: Jay McClaughertyJohtY M. Natalizio Attorneys for Defendant DENNIS CARL ENGLAND 11 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO - — Q O W 00 N N OO O o pp W N DECLARATION OF JOHN M. NATALIZIO I. That] am an attorneyat law, duly licensedto practice law before all the Courts ofthe State of California, and I am an associate ofthe law firm of McClaugherty & Associates, attorneys of record for Defendant DENNIS CARL ENGLAND. 2. Thatifcalled upon to testify as to the matters hereinafter related, I could and would competently do so based upon my review ofthe litigation file herein and my personal participation as one of the attorneys ofrecord. 3. The original Complaint was filed November 30, 2016. (A true and correct copy of the Complaint is attached as “Exhibit A.”) 4. Defendant DENNIS CARL ENGLAND was served on January 21, 2017. 5. Defendant’s counsel attempted to meet and confer regarding the filing of this Demurrer. Defendant’s counsel called in the morning on February 16, 2017, but was sentto voice mail, where Defendant’s counsel left a message for Plaintiff's counsel explaining hiscall. 6. Defendant’s counsel called again on February 17, 2017 and spoke with an assistant at Plaintiff’s counsel’s office. Defendant’s counsel was informed that Plaintiff’s counsel was in trial and would return the call when he left trial. 7. On February 17, 2017, Defendant’s counsel faxed and emailed a confirming letter of his attempts to meet and confer regarding the Demurrer. (A true and correct copy ofthe letteris attached as “Exhibit B.”) 8. On February 17, 2017, Defendant’s counsel faxed a second letter providing Plaintiff's counsel his cell phone number to call, since Defendant’s office closed early due to the holiday weekend. (A true and correct copy ofthe letter is attached as “Exhibit C.”) 9. On February 21, 2017, Plaintiff's counsel contacted Defendant’s counsel via telephone. Counsel for both parties met and conferred regarding the Demurrer. Counsel for both parties discussed Defendant’s argumentsfor each cause ofaction. There was no resolution between 12 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO a d © O W 0 N N o O a pb » W N te parties. Plaintiff's counsel granted an extension to Defendant’s counselto file and serve the Demurrer and Motion to Strike to February 22, 2017, without penalty. (A true and correct copy of the letteris attached as “Exhibit D.”) I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is true and correct. Executed February 21, 2017, at Arcadia, CA John M. Natalizio 13 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO EXHIBIT “A” dan. 23. 2017 10:03AM No. 0673 PF. 3 ELECTRGNICALLYFILED Superior Court of Callfornla, : County of Orange Adam J, Krolikowski (SBN 202946) , 11/30/2018 at 10.53:44A Clerk of the Superior Court By Jeanette Tomes-Meniora,Deputy Clerk Irvine, California 92614 T. (949) 269-1869 F. (949) 269-1868 || Email: 2dam@usethelaw.com Attorneysfor ROHN BATTLE I SUPERIORCOURT OF CALIFORNIA COUNTY OF ORANGE 2 0 0 N W h a Ww W N D - — o Case No. 30:2016.00880629-CU-NP-CJC Assigned for all Purposes (0 Judge Pater Wilson ROHN BATTLE, P d — Plaintiff, 0 COMPLAINT FORDAMAGES FOR: (1) NEGLIGENCE (2) NEGLIGENCE ~RES IPSA LOQUITOR (3) NEGLICENCEPERSE — t w l — t n DENNIS CARLENGLAND and DOES 1 to 50, inclusive, — a N Damages In Excess of$25,000. Defendants. Jury Trial Demanded.— — - ) H o S r ? S e S a a l N t ” C a t t N a t ? N o u t ? N t N a ? N a t S u g c e l i ? b t 0 o o PlaintiffROHNBATTLE avers, alleges and sets forth the following facts and causes of action against Defendants DENNIS CARLENGLAND and DOES1 to 50, inclusive: FIRST CAUSE OFACTION NEGLIGENCE (Against All Defendants) 1. The true names and capacities of the defendants, DOES 1 through 50, whether individual, corporate,associate or otheriise, are unknown to Plaintiffat the time offiling this Complaint and Plaintiff, therefore, sues said defendants by such fictitious names and will ask leave ofcourt to amend this Complaint to show their true names or capacities when the same have been C N MN E Y R E A R B E N B COMPLAINT FORDAMAGES . PAGE 3/12 RCVD AT 1/23/2017 12:02:07 PM [Central Standard Time] * SVR:A0773-XFX0011-6/18 DNIS:89128 * CSID: * ANI: * DURATION (mm-2$):06-07 Jan. 23. 2017 10:03AM No. 0673 P. 4 ascertained. Plaintiff is informed and believes, andtherefore alleges,that each of the DOE defendants is, in some manner, responsible for the events and happenings herein set forth and proximately caused injury and damages to the Plaintiffas herein alleged. 2. At all times herein mentioned, eachofthe Defendants was the agent and employee of each of the remaining Defendants and was at all times herein mentioned acting within the scope ofsaid agency and employment. 3. Plaintiff is informed and believes, and hereby alleges, that Defendants DENNIS CARL ENGLAND and DOES1 through 50, inclusive, at all times relevant hereto were residing and/or doing business in the County ofORANGE, Califomia. 4. At all times herein mentioned, Defendants, DENNIS CARL ENGLANDand DOES 1 through 25, were operating a 2004 Expedition, CA License Number SEWA122, (hereinafter the «SUBEJCTVEHICLE") with the permission and consent ofthe and DOES 26 through 50, and Y U a ~ N 6 w n B a W N — e h pe e N N ~ ~ O O each ofthem. 5. Atoll times herein mentioned, Defendants, DENNIS CARL ENGLANDand DOES 26 through 50, and each ofthem were owners ofthe SUBJECT VEHICLE. 6. At all times herein mentioned, the highway of Coto De Caza Drive in the City ofRancho Santa Margarita is a public highwaytraversing the County ofORANGE,State of California. 7. On or about 8/4/2015, Plaintiffwas lawfully stopped on Coto De Caza Drive nearEEE e e o d i G S =~ ] O h W h A a W w Antonio Parkway in or near the City of Rancho Santa Margarita. 8. Atthe time and place aforesaid, DENNIS CARL ENGLAND and DOES 1 through 50, and each ofthem,eo negligently, carelessly, recklessly, wantonly, and unlawfully exited the SUBJECT VEHICLEss to attack Plaintiff. ~~ 9, As a direct and proximateresult ofthe negligénce, carelessness, recklessness, w antonness| and unlawfulness ofDefendants, and each ofthem, and the attack, as aforesaid, ROHN BAT TLE N O N o J S R B E B E S 8 G sustainedsevere andserious injury to his person,all to ROHN BATTLE's damage in a sum within the jurisdiction of this Court, in excess of$25000, and to be shown according to proof. 10. By reason ofthe foregoing, ROHN BATTLE has been required to employ the services ofN N ~ 3 o O hospitals, physicians, surgeons, nurses and ather professional services and ROHN BATTLE hasnN 0 COMPLAINT FORDAMAGES -2 PAGE 4/12" RCVD AT 1/23/2017 12:02:07 PM [Central Standard Time] * SVR:A0775-XFX0011-6/18 * DNIS:89128 * CSID: * ANI: * DURATION (mm-88):08-07 Jan. 23. 2017 10:04AM No. 0673 FP. 57 been compelled to incur expenses for ambulance service, machines, x-rays and other medical supplies and services. ROHN BATTLE is informed and believes, and thereon allege, that further services ofsaid nature will be required for ROHN BATTLE In an amountto be shown according to proof, 11. Atthe time ofthe injury, as aforesaid, ROHN BATTLE was able to be regularly and gainfully employed. By reason ofthe foregoing ROHN BATTLE experienced and will experience future pain and suffering which did and will likely affect his ability to engage in his employmentfor a time subsequent to said accident, and Plaintiff is informed and believes, and g o 0 0 I O A W h B s W w N e upon such information and belief, alleges that Plaintiff will be unable to work with the same earning capacity in the future, to Plaintiff*s damages in an amountto be shown according to t t pe ed — proof. 12. Plaintiff seeks damages as set forth below. SECOND CAUSE OF ACTION Negligence — Rea Ipsa Loquitor (AgainstDENNIS CARLENGLANDand DOES1 to 25) 13. Plaintiffincorporates by reference the allegations contained in paragraphs 1 through 12 of Plaintiff's First Cause of Action, as though fully set forth at length herein. 14. Defendants, DENNIS CARL ENGLAND and DOES1 through 25 inclusive, and each of them, undertook operating a motor vehicle, in or about 8/4/2015. 15. Atthe date and time aforesaid, the Defendants, and each of them,failed to exercise the B N O N r e e m b d e d e a be m be a — O O D O G 0 N I S Y W n s e W N proper degree ofknowledge and skill and so negligently,carelessly, recklessly, wantonly, and unlawfully attacked Plaintiff in violation ofPenal Code §§ 69 and 148(a)(1) proximately causing injuries to Plaintiff. ; 16. PlaintiffROHN BATTLE suffered harm that ordinarily would not have occurred unless> IN someone was negligent. The harm occurred while Plaintiffwas lawfully and carefully driving& and his voluntary action did not cause or contribute to the events that harmed his.nd on 17. Asa direct and proximate result ofthe negligence, carelessness, recklessness, wantonness5 and unfawfuiness of Defendants, and cach of them, and the resulting incident, as aforesaid,N oo COMPLAINT FORDAMAGES -3 PAGE 5/12* RCVD AT 1/23/2017 12:02:07 PM [Central Standard Time] * SVR:A0775-XFX0011-5/18 * DNIS:89128 * CSID: * ANI: * DURATION (mm-ss):06-07 Jan. 23. 2017 10:05AM No. 0673 P. 6 PlaintiffROHN BATTLE sustained severe and serious injury to his person,all to Plaintiff's— damage in a sum within the jurisdiction ofthis Court and to be shown according to proof. 18. Byreason of the foregoing, Plaintiffhas been and/or will be required to employ the services ofhospitals, physicians, surgeons, nurses and other professional services, and Plaintiff has been compelled to incur expenses for ambulance service, medicines, x-rays, and other medical supplies and services. Plaintiffis informed and believes, and thereonalleges,that further services ofsaid nature will be required by Plaintiff in an amountto be shown according 10 proof. 19. At the time ofthe injury, as aforesaid, ROHN BATTLE was able to be regularly and gainfully employed. By reason of the foregoing ROHN BATTLE experienced and will experience future pain and suffering which did and will likely affect his ability to engagein his W ® N A L ON p p _ - _ 0 employment for a time subsequentto said accident, and Plaintiff is informed and believes, andfo nN upon such information and belief, alleges that Plaintiff will be unable to work with the same _ — W w earning capacity in the future,to Plaintiff’s damages in an amountfo be shown according to — L h proof. 20. Plaintiffsecks damages as set forth below. THIRD CAUSE OF ACTION Negligence Per Se (Against DENNIS CARL ENGLAND and DOES1 to 25) 21. Plaintiffincorporates by reference the allegations contained in paragraphs 1 through 20 of Plaintiff's First and Second Cause ofAction, as though fully set forth at length herein. 22. Defendant DENNIS CARL ENGLAND was convicted ofviolating Penal Code § 69 and Penal Code § 148(a)(1) regarding his attack on the Plaintiffon 8/4/2015.N N N — 8 E B S = I a 23. The injuries to Plaintiffon said date resulting from the incident are those which thewD 5 aforementioned statutes were designed to prevent. 24. Atal times mentioned herein, Plaintiff was a member ofthe class ofpersons the states Penal Code § 69 and Penal Code § 148(a)(1) were intended to protect. R N N D o N 0 0 ~ ~ O N w v COMPLAINTFOR DAMAGES PAGE 6/12" RCVD AT 1/23/2017 12:02:07 PM [Central Standard Time] * SVR:A0775-XFX0011-5/18 * DNIS:89128 * CSID: * ANI: * DURATION (mm-g¢):06-07 Jan. 23. 2017 10:05AM No. 0673 PF. 7 25, | The violations ofPenal Code § 69 and Penal Code § 148(2)(1)for which De fendant DENNIS CARL ENGLAND was convicted caused PlaintiffROHN BATTLE to sustain s evere and serious Injury to his person,to Plaintiff's damage in a sum in excess of $25,000 a nd within thejurisdiction ofthis Court and to be shown according to proof, 26. By reason of the wrongful, intentional and malicious acts of Defendant DENNIS CARL ENGLAND, Plaintiff was injured in his health, strength and activity, sustaining serious bodi ly injury and shock to his nervous system, which has caused and will continue to cause Plaintiff great mental and physical pain and suffering,all to his general damage in an amountto b e proven at trial, 27. By reason ofthe injuries inflicted upon the Plaintiffby defendants, and each ofthem, O W 0 ~ ~ O N W n b h W D > Plaintiff was required to and did seek medical attention for an extended period ofthetime and,= — by reason thereof, incurred hospital expenses, and was compelled to hire nurses and doctors, and— no by reason thereof, incurred medical care and treatment expenses. Plaintiff is informed and— w believes and thereon alleges that he will be forced to expend additional sums in the future for the— o care and treatmentofhis aforementioned Injuries in an amount to be ascertained and according _ — p h N n W n to proof. 28. Atthe time of the injury,as aforesaid, ROHN BATTLE was able to be regularly and gainfully employed. By reason ofthe foregoing ROHN BATTLE experiencedand will experience future pain and suffering which did and will likely affecthis ability to engage i n his — p t O o 0 = employment for a time subsequent to said accident, and Plaintiffis informed and believes, andnD oo upon such information and belief, alleges that Plaintiffwill be unable to work with the sameN Pp earning capacity in the future,to Plaintiff's damages in an amount to be shown according to 3 B proof. 29. The aforementioned acts Defendant DENNIS CARL ENGLAND, and cach ofthem, willful, wanton, malicious and oppressive, therefore justify the awarding of exemplary and punitive damages as against Defendant DENNIS CARL ENGLAND. ft mnnN B N 2 N R E R COMPLAINT FOR DAMAGES -5 PAGE 7/12 * RCVD AT 1/23/2017 12:02:07 PM (Centra) Standard Time] * SVR:A0773-XFX0011-6/18 * DNIS:89128 * CSID: * ANI; * DURATION (mm-£$):08-07 Jan, 23. 2017 10:06AM No. 0673 P. 8 1 PRAYER 2 || WHEREFORE, PlaintiffROHN BATTLE prays forjudgmentagainst the Defendants, and each 3 ofthem, as follows: 4 |[As to the 1%, 2™ and 3" Causes ofAction: 5 1. General damages in the sum according to proofin excess of$25,000; 6 2. Special damages, including but not limited to sums incurred and to be incurred 7 for services ofhospitals, physicians, surgeons, nurses and other medical supplies and services; 8 3. Forinterest provided by law including, but not limited to, Civil Code § 3291; 9 4, Costs of suit; 10 gt For such other and further reliefas the court deems proper. 11 ||As to the3 Cause of Action Only: 12 6. Exemplary and/or punitive damages in an amount sufficientto deter and to make 13 {| an example of those defendants as to the Third Cause ofAction. 14 15 THE KROLIKOWSKI LAW FIRM 16 n 17 Date: October 25, 2016 a Adam J. kowski, Esq. 18 for PlaintiffROHN BATTLE 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR DAMAGES PAGE 8/12 * RCVD AT 1/23/2017 12:02:07 PM [Central Standard Time] * SYR:AD775-XFX0011-§/18 * DNIS:89128 * CID: * ANI: * DURATION (mm-s8):06-07 EXHIBIT “B” Jay S. McClaugherty Linda L. Hamlin Janet C. An Anthony L. Perez John M. Naealizio Of Counsel Christian E. Sanne PARALEGALS: Vickie Clayton William White Mercedes Padiermnuos IN REPLY REFER TO: nN 2 ol i McCLAUGHERTY & ASSOCIATES Trials. Results. john.natalizio@mcctrials.com February 17, 2017 VIA FACSIMILE: {949) 269-1869 Adam J. Krolikowski, Esq. The Krolikowski Law Firm 18022 Cowan, Suite 235 Irvine, CA 92614 Battle v. England, et al. 30-2016-00889629-CU-NP-CJC Dear Mr. Krolikowski: 250 WEST COLORADO BLVD SUITE 250 ARCADIA, CA 91007 626.821.1100 FAX 626.821.2626 www. mectrals.com OFFICES: LA County Inland Empire Orange County Palm Desert We are defense counsel for Mr. England in the above captioned matter. We have a responsive pleading due February 21, 2017. | called your office and left a message on February 16, 2017 to discuss the case and meet and confer regarding the potential demurrer | wish to file. Additionally, | will be filing a Motion to Strike the punitive damage claim. | called again today and was informed you were in trial. | hope all is going well. At your first convenience today, | request that you call me so that we may speak about this case. | look forward to speaking with you. For The Firm, = John M. Natalizio PERSONAL INJURY | INTELLECTUAL PROPERTY | BUSINESS EXHIBIT “C” Jay S. McClaugherty 250 WEST COLORADO BLVD Linda L. Hamlin SUITE 250 Janee C. An d ‘ . ARCADIA, CA 91007 Anthony L. Perez 626.821.1100 John M. Naralizio FAX 626.821.2626 Of Counsel C : Christian E. Sanne Mc LAUGHER TY www.mectrials.com & ASSOCIATES Ce PARALEGALS: } Vickie Clayton Trials. Resu lts. LA County William White Inland Empire Mercedes Padiernos Orange County [alm Desert IN REPLY REFER TO: john.natalizio@mcctrials.com February 17, 2017 VIA FACSIMILE: (949) 269-1868 Adam J. Krolikowski, Esq. The Krolikowski Law Firm 18022 Cowan, Suite 235 irvine, CA 92614 Re: Battle v. England, et al. 30-2016-00889629-CU-NP-CJC Dear Mr. Krolikowski: My office will be closing at 3:00 PM today, due to the holiday weekend. However, | will still be at the office during regular workings hours. When you are out of trial, please call my cell phone at (603) 540-2370. For The kirm, pity Johig M. Natalizio PERSONAL INJURY | INTELLECTUAL PROPERTY | BUSINESS EXHIBIT “D” Jay S. McClaugherty Linda L. Hamlin Janet C. An Anthony L. Perez John M. Natalizio Of Cannsel Christian E. Sanne PARALEGALS: Vickie Clayton William White Merecdes Padiernos IN REPLY REFER TO: o 8 il McCLAUGHERTY & ASSOCIATES Trials. Results. john.natalizio@mcctrials.com February 21, 2017 VIA FACSIMILE: (949) 269-1868 Adam J. Krolikowski, Esq. The Krolikowski Law Firm 18022 Cowan, Suite 235 Irvine, CA 92614 Dear Mr. Krolikowski: Battle v. England, et al. 30-2016-00889629-CU-NP-CJC 250 WEST COLORADO BLvD SUITE 250 ARCADIA, CA 91007 626.821.1100 FAX 626.821.2626 www.mcctrials.com OFTICES: LA County inland Empire Qrange County Palm Desert It was great speaking with you today. | wanted to send this letter for both of our files, memorializing what was discussed. Defendant's demurrer and the arguments laid out within. We met and conferred regarding Additionally, you were graciously enough to grant us an extension to file and serve the demurrer and motion to strike, until February 22, 2017. If this does not memorialize what was discussed, please contact me immediately. For he'Firm, Jahn M. Natalizio PERSONAL INJURY | INTELLECTUAL PROPERTY | BUSINESS - — O O © 0 0 N N O O O o h h W N PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I'am employed in the County of Los Angeles, State of California. Iam over the age of 18 and am nota party to the within action; my business address is 250 West Colorado Blvd., Suite 250, Arcadia, California 91007. On February 22, 2017, I served on the parties ofrecord in this action the foregoing document described as: DEFENDANT DENNIS CARL ENGLAND’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO by placing the __ originalX_ true copies thereof enclosed in sealed envelopes addressed as follows: Adam J. Krolikowski, Esq. THE KROLIKOWSKI LAW FIRM 18022 Cowan, Suite 235 Irvine, CA 92614 [X] BY MAIL - as follows: Iam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Arcadia, California, in the ordinary course of business. I am aware that on motion ofthe party served, serviceis presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 22, 2017, at Arcadia, California. 4 derata Davi 14 DEFENDANT DENNIS CARL ENGLAND'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF ROHN BATTLE’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN M. NATALIZIO