cross complaint for indemnity and contribution

Cal. Super. - 1st Dist.September 16, 2021

CROSS-COMPLAINT FOR INDEMNITY AND CONTRIBUTION Case No.: CGC-20-586274 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Francisco A. Gutierrez (SBN 238483) THE LAW OFFICE OF FRANCISCO GUTIERREZ 455 Market Street, Suite 2020 San Francisco CA 94105 Telephone: (415) 805-6508 Fax: (415) 484-7832 Email: francisco@gtzlegal.com Attorney for Defendant and Cross-complainant FABIOLA A. LARA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION SETH BERTENTHAL, Plaintiff, vs. DAVE OLSON, an individual; FABIOLA A. LARA, an individual; and DOES 1-10, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CGC-20-586274 CROSS-COMPLAINT FOR INDEMNITY AND CONTRIBUTION FABIOLA A. LARA, Cross-Complainant, vs. DAVE OLSON and ROES 1 through 20, Cross-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Defendant and Cross-Complainant FABIOLA A. LARA (“Cross-Complainant”) hereby complains against cross-defendant DAVE OLSON and ROES 1 to 20 (collectively “Cross- Defendant”), and each of them, as follows: 1. The true names and capacities, whether individual, corporate, general or associate, of the cross-defendants, and each of them, named herein as ROES, are unknown ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 08/10/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk CROSS-COMPLAINT FOR INDEMNITY AND CONTRIBUTION Case No.: CGC-20-586274 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to cross-complainant, who therefore sue said cross-defendants, and each of them, by such fictitious names. Cross-complainant prays leave to amend this cross-complaint to show their true names and capacities when the same have been fully determined. 2. Cross-complainant is informed and believes and thereon alleges, that each of the cross-defendants designated as a ROE is negligently, intentionally, or strictly responsible in some manner for the events and happenings herein referred to, and negligently, intentionally, or strictly caused the injuries and damages, if any, to the plaintiff and cross- complainants. 3. At all times herein mentioned, each of the cross-defendants named herein were the agent, servant, employee and/or employer of each of the remaining cross- defendants, and at all times herein, each of such cross-defendants was acting within the course and scope of such agency, service and/or employment. 4. There is currently on file with the Superior Court, County of San Francisco, a Complaint for Damages (the “Complaint”) in case number CGC-20-586274, captioned Seth Bertenthal v. Dave Olson, et al. The allegations of the Complaint are incorporated herein in their entirety for reference only and not to admit any allegations therein, all of which are denied. FIRST CAUSE OF ACTION (Indemnity) 5. Cross-Complainant incorporates by this reference each and all of the allegations of paragraphs 1 through 4 as fully as though set forth herein. 6. An actual controversy exists between the Cross-Complainant and Cross- Defendants, and each of them, in that Cross-Complainant alleges that if any liability or responsibility is imposed upon Cross-Complainant, said liability or responsibility, if any, rests upon Cross-Defendants, and each of them. 7. Cross-Complainant contends that if she is found to be liable to Plaintiff as a result of any act or omission in this matter, any liability will be the direct and proximate result of the acts, omissions, breaches of contract, negligence, or other conduct of the Cross-Defendants, and CROSS-COMPLAINT FOR INDEMNITY AND CONTRIBUTION Case No.: CGC-20-586274 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 each of them. 8. Under the decision of Am. Motorcycle Ass’n v. Superior Court, 20 Cal. 3d 578 (1978), Cross-Complainant is entitled to a determination of each party’s respective share of the legal responsibility for any damages sustained herein. 9. Therefore, Cross-Complainant is entitled as a matter of law to a judicial determination apportioning and fixing the comparative fault of each cross-defendant for any damages awarded to Plaintiffs in this action. WHEREFORE, Cross-Complainant prays for judgment as set forth below. SECOND CAUSE OF ACTION (Implied Indemnity) 10. Cross-Complainant incorporates by this reference each and all of the allegations of paragraphs 1 through 9 as fully as though set forth herein. 11. At all times herein mentioned, Cross-Defendants, and each of them, were negligent, or otherwise responsible in total, or in part, for the injuries, losses and/or damages complained of by Plaintiffs. 12. Any liability that Cross-Complainant may incur as a result of the allegations of the Complaint will be the result of the active and primary negligence and/or fault, or misconduct of Cross-Defendants, and each of them. 13. In equity and good conscience, if Plaintiffs recover against Cross-Complainant, then Cross-Complainant is entitled to equitable indemnity, apportionment of liability, and contribution for any and all liability among and from Cross-Defendants, and each of them, according to their respective fault, for the injuries and damages allegedly sustained by Plaintiffs, by way of sums paid in settlement, or judgment rendered against Cross-Complainant in the action based upon Plaintiff’s Complaint. Such indemnification and/or contribution shall include any and all attorneys’ fees and court costs incurred by Cross-Complainant in the defense of Plaintiffs’ Complaint. The service of this Cross-Complaint shall serve as a tender of such defense and indemnification from each Cross-Defendant, to the extent that such a tender has not been made previously. CROSS-COMPLAINT FOR INDEMNITY AND CONTRIBUTION Case No.: CGC-20-586274 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. Pursuant to California Code of Civil Procedure Section 1021.6, Cross- Complainant demands that Cross-Defendants defend Cross-Complainant and notify Cross- Defendants that the failure to do so may entitle Cross-Complainant to an award of attorneys’ fees under California Code of Civil Procedure Section 1021.6. WHEREFORE, Cross-Complainant prays for judgment as set forth below. THIRD CAUSE OF ACTION (Express Indemnity) 15. Cross-Complainant incorporates by this reference each and all of the allegations of paragraphs 1 through 9 as fully as though set forth herein. 16. Cross-Complainant and Cross-Defendants, and each of them, entered into a contractual relationship prior to the matters alleged and described in Plaintiff’s Complaint. Cross-Complainant has performed all the conditions and terms which were required under the contract(s). Said contract(s)requires Cross-Defendants, and each of them, to indemnify and hold Cross-Complainant harmless from the liability of damages alleged by Plaintiff, as well as for all costs, expenses, judgments, attorneys’ fees or other expenses paid or incurred as a result of Plaintiff’s complaint. 17. Should Cross-Complainant be legally responsible to Plaintiffs, it would be solely by reason of acts, omissions or conduct for which Cross-Defendants are contractually obligated to indemnify her. 18. Cross-Complainant has tendered, and by way of this Cross-Complaint tender, the defense of this lawsuit to Cross-Defendants, and each of them, who have rejected or neglected to assume said tender. Cross-Complainant has incurred, and will in the future incur, costs expenses, attorneys’ fees and damages by reason of Cross-Defendants and failure to assume the tender of defense. WHEREFORE, Cross-Complainant prays for judgment as set forth below. PRAYER FOR RELIEF WHEREFORE, Cross-Complainant prays for relief as follows: CROSS-COMPLAINT FOR INDEMNITY AND CONTRIBUTION Case No.: CGC-20-586274 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. For a declaration of the rights of Cross-Complainant to total or partial indemnification from the Cross-Defendants, and each of them, in regard to the matters alleged in the pleadings in this action; 2. For a determination finding that Cross-Complainant is entitled to indemnity from Cross-Defendants, and each of them, in sufficient sums so that Cross-Complainant is required to pay a sum no greater than the amount computed by multiplying the judgment by the percentage of Cross-Complainant’s legal responsibility for damages herein; 3. For a declaratory judgment adjudicating the obligations of Cross-Defendants, and each of them, to defend Cross-Complainant in this action, to represent the interests of Cross- Complainant herein, and hold Cross-Complainant harmless from any judgment or settlement, either entirely or in proportion to the relative fault of the parties, to reimburse Cross- Complainant for all costs, expenses, legal fees and other damages incurred in defending this action; 4. For an award of attorneys’ fees and costs; and for such other and further relief as the Court deems just and proper. Dated: August 10, 2021 THE LAW OFFICES OF FRANCISCO GUTIERREZ By: Francisco A. Gutierrez Attorney for Defendant and Cross-complainant FABIOLA A. LARA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE - CIVIL I, Francisco Gutierrez, hereby certify that I am an active member of the State Bar of California, and I am not a party to the within action. That my business address is 455 Market Street, Suite 2020, San Francisco California 94105. That my email address is: francisco@gtzlegal.com. That I served a copy of the foregoing CROSS-COMPLAINT FOR INDEMNITY AND CONTRIBUTION. That I served the document on the person or persons below, as follows: BY ELECTRONIC SERVICE Jonathan Joiner (jj@humphreysjoiner.com) Benjamin Humphreys (bh@humphreysjoiner.com) Humphreys Joiner Law Group, LLP 870 Market Street, Suite 841 San Francisco, CA 94102 Attorneys for plaintiffs Seth Bertenthal BY ELECTRONIC SERVICE AND US MAIL David Olson (dolsonm@gmail.com) 1300 S. Miami Avenue, Unit 1911 Miami, FL 33130 Defendant in pro per That the document was served by the following means: BY ELECTRONIC SERVICE. That on August 10, 2021, I electronically served a true and correct copy of the document to the persons named above. BY UNITED STATES MAIL. That on August 10, 2021, I caused a true and correct copy of the document, by following ordinary business practices, to be placed and sealed in an envelope addressed to the addressee with United States First Class Mail postage fully prepaid thereon, and for collection and mailing with the United States Postal Service in the ordinary course of business, correspondence placed for collection on a particular day, which is deposited with the United States Postal Service that same day. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this document was executed at San Francisco, California on August 10, 2021. _________________________ Francisco Gutierrez