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1 Anna J. Monteleone, State Bar No. 177700
Michael Sullivan & Associates LLP
2 PO Box 85059
3 San Diego, CA 92186-5059
Tel (714) 202-3440 Fax (844) 910-1850
4 amonteleone@sullivanattorneys.com
5
Attorneys for Plaintiff-in-Intervention, UPS OF AMERICA, INC. permissibly self-insured and
6 administered by LIBERTY MUTUAL INSURANCE COMPANY
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF MONTEREY
10
11 QUINCE MCALLISTER, an individual, ) Case No: 22CV002248
)
12 Plaintiff, ) NOTICE AND MOTION TO
) INTERVENE; MEMORANDUM OF
13 vs. ) POINTS AND AUTHORITIES;
) DECLARATION OF ANNA J.
14 KC AUTO SERVICE LLC, a business entity; ) MONTELEONE; [PROPOSED]ORDER
15 KING CITY AUTO dba CARQUEST, a )
business entity; CARQUEST, a business entity; )
16 GOLDEN STATE SUPPLY, LLC. dba ) Date: November 18, 2022
ADVANCE AUTO PARTS, a business entity; ) Time: 8:30AM
17 GOLDEN STATE SUPPLY, LLC., a business ) Dept: 15
Entity; ADVANCE AUTO PARTS, a business )
18
entity; WESTERN HARVESTING, LLC., a )
19 business entity; WESTERN HARVESTING )
TRANSPORT, LLC., a business entity; RIO )
20 FARMS, LLC., a business entity; JAVIER )
GARCIA, an individual; JOHN GILL, an )
21 individual; DAVID GILL, an individual; )
SUSAN GILL, an individual; and DOES 1 )
22
through 100, Inclusive, )
23 )
Defendants. )
24 ______________________________________ )
)
25 UPS OF AMERICA, INC. permissibly self- )
insured and administered by LIBERTY )
26
MUTUAL INSURANCE COMPANY, )
27 )
Plaintiff-in-Intervention, )
28 _______________________________________________________________________________________________
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NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER
1 )
vs. )
2 )
3 KC AUTO SERVICE LLC, a business entity; )
KING CITY AUTO dba CARQUEST, a )
4 business entity; CARQUEST, a business entity; )
GOLDEN STATE SUPPLY, LLC. dba )
5 ADVANCE AUTO PARTS, a business entity; )
GOLDEN STATE SUPPLY, LLC., a business )
6
Entity; ADVANCE AUTO PARTS, a business )
7 entity; WESTERN HARVESTING, LLC., a )
business entity; WESTERN HARVESTING )
8 TRANSPORT, LLC., a business entity; RIO )
FARMS, LLC., a business entity; JAVIER )
9 GARCIA, an individual; JOHN GILL, an )
individual; DAVID GILL, an individual; )
10
SUSAN GILL, an individual; and DOES 1 )
11 through 100, Inclusive, )
)
12 Defendants-in-Intervention. )
)
13 )
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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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YOU ARE HEREBY NOTIFIED that on November 18, 2022, at 8:30 a.m. in
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Department 15 of this court, plaintiff-in-intervention, UPS OF AMERICA, permissibly self-
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18 insured and administered by Liberty Mutual, (hereinafter “UPS”) will move the court for an
19 order permitting intervention pursuant to Code of Civil Procedure § 387(b) and Labor Code §
20 3850, et seq.
21 This motion is made on the grounds that plaintiff-in-intervention, UPS, will be unduly
22
burdened if it is not allowed to intervene and recover costs that it has expended in paying
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workers' compensation benefits to plaintiff, Quince McAllister. California Labor
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Code §3853 provides a conditional right to intervene and that permitting intervention under
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26 California Code of Civil Procedure §387(b) is mandatory upon timely application.
27 ///
28 _______________________________________________________________________________________________
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NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER
1 ///
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The motion will be based upon this notice, the attached memorandum of points and
3
authorities and the declaration of Anna J. Monteleone, and the records and files in this action.
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Dated: September 16, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP
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8 ___________________________________
ANNA J. MONTELEONE
9 Attorney at Law
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28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER
1 MEMORANDUM OF POINTS AND AUTHORITIES
2
3 I. STATEMENT OF FACTS
4 This case arises out of an incident that took place on October 28, 2020, when the
5 defendants’ forklift in King City, California struck Quince McAllister. Defendant’s
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employee operated the forklift in such a manner to injure Quince McAllister’s hand. Quince
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McAllister was acting in the course and scope of his employment with UPS when he was
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struck by the defendants employee who was working in the course and scope of his
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employment with the defendant.
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11 II. LEGAL ARGUMENT
12 A. Intervention Is Mandatory
13 California Labor Code § 3852 states in pertinent part: "… The employer [and/or
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insurance company] may recover in the same suit, in addition to the total amount of
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compensation, damages for which he or she was liable …"
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The California Labor Code makes clear that the employer may bring an action on its
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18 own or intervene in the employee's action against third party tort feaser who injured the
19 employee and caused damages to the benefits provider. [Labor Code §3852]. California
20 Labor Code §3853 provides that "If an action is brought by either the employer or the
21 employee, the other may, at any time before trial on the facts showing as a party plaintiff' or
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shall consolidate his action, if sought separately." [Labor Code § 3853] In this matter, the
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plaintiff has filed an action in which the plaintiff-in-intervention has an unconditional
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statutory right to intervene under Labor Code § 3853.
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27 _______________________________________________________________________________________________
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28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER
1 Code of Civil Procedure §387(b) requires the court to grant a timely application for
2
intervention on the following terms:
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(b) If any provision of law confers an unconditional right to intervene … the
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court shall, upon timely application, permit that person to intervene. [Code of Civil
5
Procedures § 387(b).] .
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7 In this matter, as the plaintiff-in-intervention has an unconditional right to intervene,
8 and the within motion is timely as a trial on the facts has not commenced [see Labor Code
9 § 3853], Code of Civil Procedures § 387(b) requires that his motion be granted and that the
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[proposed] Complaint-in-Intervention attached hereto as Exhibit A be filed.
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Dated: September 16, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP
13
14
15 ___________________________________
ANNA J. MONTELEONE
16 Attorney at Law
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27 _______________________________________________________________________________________________
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28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER
1 DECLARATION OF ANNA J. MONTELEONE
2
3 I, ANNA J. MONTELEONE, DECLARE:
4 1. I am an attorney duly licensed to practice law in the State of California and
5 am the attorney for plaintiff-in-intervention, UPS of AMERICA, permissibly self-insured and
6
administered by LIBERTY MUTUAL INSURANCE COMPANY.
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2. This motion is made upon the grounds that UPS of AMERICA, permissibly
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self-insured and administered by LIBERTY MUTUAL INSURANCE COMPANY, claims
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unconditional right to intervene pursuant to Code of Civil Procedure No. 387(b) and Labor
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11 Code No. 3850 et seq.
12 3. In support of this motion, I make the following statement based on
13 information and belief.
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4. Plaintiff, Quince McAllister has received workers' compensation benefits
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paid to him and paid on his behalf from UPS of AMERICA, permissibly self-insured and
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administered by LIBERTY MUTUAL INSURANCE COMPANY.
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18 5. Plaintiff-in-intervention, UPS of AMERICA, permissibly self-insured and
19 administered by LIBERTY MUTUAL INSURANCE COMPANY has paid and continues to
20 pay benefits to Quince McAllister as a result of injuries he sustained in an accident caused by
21 defendants, which is the subject of his complaint entitled Quince McAllister v. KC Auto
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Service, LLC et al , Monterey Superior Court Case number 22CV002248.
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6. A true and correct copy of the proposed Complaint-in-Intervention is attached
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hereto as Exhibit A.
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27 _______________________________________________________________________________________________
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28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER
1 WHEREFORE, UPS of AMERICA, permissibly self-insured and administered by
2
LIBERTY MUTUAL INSURANCE COMPANY, prays the court grant mandatory
3
intervention under the Labor Code and that the attached [proposed] Complaint-in-
4
intervention be deemed filed herein.
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I declare under penalty of perjury that the foregoing is true and correct executed this
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7 September 16, 2022 at Orange, California 92868
8 ___________________________________
ANNA J. MONTELEONE
9 Attorney at Law
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28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER
EXHIBIT A
1 Anna J. Monteleone, State Bar No. 177700
Michael Sullivan & Associates LLP
2
PO Box 85059
3 San Diego, CA 92186-5059
Tel (714) 202-3440 Fax (844) 910-1850
4 amonteleone@sullivanattorneys.com
5
Attorneys for Plaintiff-in-Intervention, UPS OF AMERICA, INC. permissibly self-insured and
6 administered by LIBERTY MUTUAL INSURANCE COMPANY
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF MONTEREY
10
11 QUINCE MCALLISTER, an individual, ) Case No: 22CV002248
)
12 Plaintiff, ) COMPLAINT-IN-INTERVENTION;
) REIMBURSEMENT FOR WORKERS’
13 vs. ) COMPENSATION EXPENDITURES
) AND DEMAND FOR JURY(LAB C
14 KC AUTO SERVICE LLC, a business entity; ) §§3852–3853)
15 KING CITY AUTO dba CARQUEST, a )
business entity; CARQUEST, a business entity; ) AMOUNT IN CONTROVERY
16 GOLDEN STATE SUPPLY, LLC. dba ) EXCEEDS $25,000
ADVANCE AUTO PARTS, a business entity; )
17 GOLDEN STATE SUPPLY, LLC., a business )
Entity; ADVANCE AUTO PARTS, a business )
18
entity; WESTERN HARVESTING, LLC., a )
19 business entity; WESTERN HARVESTING )
TRANSPORT, LLC., a business entity; RIO )
20 FARMS, LLC., a business entity; JAVIER )
GARCIA, an individual; JOHN GILL, an )
21 individual; DAVID GILL, an individual; )
SUSAN GILL, an individual; and DOES 1 )
22
through 100, Inclusive, )
23 )
Defendants. )
24 ______________________________________ )
)
25 UPS OF AMERICA, INC. permissibly self- )
insured and administered by LIBERTY )
26
MUTUAL INSURANCE COMPANY, )
27 )
Plaintiff-in-Intervention, )
28
_______________________________________________________________________________________________
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COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND
DEMAND FOR JURY TRIAL
1 )
vs. )
2
)
3 KC AUTO SERVICE LLC, a business entity; )
KING CITY AUTO dba CARQUEST, a )
4 business entity; CARQUEST, a business entity; )
GOLDEN STATE SUPPLY, LLC. dba )
5 ADVANCE AUTO PARTS, a business entity; )
GOLDEN STATE SUPPLY, LLC., a business )
6
Entity; ADVANCE AUTO PARTS, a business )
7 entity; WESTERN HARVESTING, LLC., a )
business entity; WESTERN HARVESTING )
8 TRANSPORT, LLC., a business entity; RIO )
FARMS, LLC., a business entity; JAVIER )
9 GARCIA, an individual; JOHN GILL, an )
individual; DAVID GILL, an individual; )
10
SUSAN GILL, an individual; and DOES 1 )
11 through 100, Inclusive, )
)
12 Defendants-in-Intervention. )
)
13 )
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By leave of court, Plaintiff-in-Intervention, UPS OF AMERICA, INC. permissibly self-
15
insured and administered by LIBERTY MUTUAL INSURANCE COMPANY, (hereinafter
16
“UPS” ) files this Complaint-in-Intervention and thereby intervenes in this action. UPS joins with
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18 Plaintiff, QUINCE McALLISTER) alleging as follows:
19 1. As shown by the facts alleged below and pursuant to California Civil Procedures Code section
20 387(b), Plaintiff-in-Intervention, UPS has an unconditional right to intervene in this action
21
under California Labor Code section 3853 because UPS expended workers’ compensation
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benefits to and on behalf of QUINCE McALLISTER.
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PARTIES:
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2. Plaintiff-in-Intervention, UPS, was, and now is a corporation organized and authorized to do
25
26 business in California, and at all times herein mentioned complied with their obligations for
27 compensation benefits under the workers’ compensation laws of the State of California.
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_______________________________________________________________________________________________
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COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND
DEMAND FOR JURY TRIAL
1 3. At all times herein mentioned, UPS of AMERICA, INC. was the employer of Quince
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McAllister.
3
4. All times herein mentioned, Defendants-in-Intervention, refers to KC Auto Service, LLC.;
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King City Auto dba Carquest; Carquest; Golden State Supply, LLC. dba Advance Auto Parts;
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Golden State Supply LLC.; Advance Auto Parts; Western Harvesting, LLC.; Western
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7 Harvesting; Western Harvesting Transport, LLC.; Rio Farms, LLC.; Javier Garcia; John Gill;
8 David Gill; Susan Gill and Does 1 to 100, inclusive.
9 5. Plaintiff-in-Intervention, UPS alleges the true names or capacities whether individual,
10
representative or otherwise of Defendants-in-Intervention names herein as Does 1-100,
11
inclusive, and each of them, are presently unknown to Plaintiff-in-Intervention and Plaintiff-
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in-Intervention will seek leave of Court to amend this Complaint-in-Intervention to allege
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14 their true names and capacities when the same have been ascertained.
15 6. Plaintiff-in-Intervention is informed and believes, and thereon alleges, that at all times alleged
16 herein, each of the Defendants-in-Intervention named herein was the agent, servant and
17 employee of each and every other Defendant-in-Intervention named herein and at all times
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alleged herein were acting within the course and scope of said agency and employment.
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7. At all times alleged herein, Plaintiff-in-Intervention is paying the plaintiff workers’
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compensation benefits. At all times alleged herein, Plaintiff, Quince McAllister, was an
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22 employee of UPS of America, Inc, and Plaintiff-in-Intervention is informed and believes and
23 thereon alleges that Plaintiff, Quince McAllister, was acting within the course and scope of
24 employment with UPS of America, Inc.
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8. As a proximate and actual result of the negligent and careless conduct of Defendants-in-
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Intervention, KC Auto Service, LLC.; King City Auto dba Carquest; Carquest; Golden State
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Supply, LLC. dba Advance Auto Parts; Golden State Supply LLC.; Advance Auto Parts;
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_______________________________________________________________________________________________
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COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND
DEMAND FOR JURY TRIAL
1 Western Harvesting, LLC.; Western Harvesting; Western Harvesting Transport, LLC.; Rio
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Farms, LLC.; Javier Garcia; John Gill; David Gill; Susan Gill and Does 1 to 100, inclusive, as
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alleged herein, and the physical injuries sustained by Plaintiff, Quince McAllister, Plaintiff-
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in-Intervention has been required to provide workers’ compensation benefits to and on behalf
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of plaintiff, Quince McAllister.
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7 9. Attached hereto as Exhibit “A” and incorporated herein by reference is the Complaint for
8 Damages filed by Plaintiff, Quince McAllister, in this matter. Plaintiff-In-Intervention
9 incorporates herein by reference all of the allegations set forth in the Complaint of Plaintiff,
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Quince McAllister. Thus, Plaintiff-in-Intervention is pursuing claims against Defendants-in-
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Intervention, KC Auto Service, LLC.; King City Auto dba Carquest; Carquest; Golden State
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Supply, LLC. dba Advance Auto Parts; Golden State Supply LLC.; Advance Auto Parts;
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14 Western Harvesting, LLC.; Western Harvesting; Western Harvesting Transport, LLC.; Rio
15 Farms, LLC.; Javier Garcia; John Gill; David Gill; Susan Gill and Does 1 to 100, inclusive,
16 the same as Plaintiff, Quince McAllister is pursuing against these same parties as defendants.
17 10. Plaintiff-in-Intervention is informed and believes and thereon alleges, that its damages as
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herein alleged which are being paid to the plaintiff and are continuing, according to proof, and
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Plaintiff-In Intervention will seek leave of Court to amend this Complaint –In-Intervention to
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allege its full damages at the time of trial. Plaintiff-in-Intervention requests that its damages
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22 herein bear interest at the legal rate from the due date.
23 11. By reason of those payments, intervenor is entitled to intervene as a plaintiff in this action
24 under California Code of Civil Procedure §387 and Labor Code §3853.
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WHEREFORE, Plaintiff-in-Intervention prays for judgment against defendants-in-
27
intervention, and each of them, as follows:
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_______________________________________________________________________________________________
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COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND
DEMAND FOR JURY TRIAL
1 1. For damages according to proof, and Plaintiff-in-Intervention will seek leave of court
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to amend this complaint to allege its full damages at the time of trial;
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2. For costs of suit incurred herein;
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3. For interest on said damages at the legal rate from the due date;
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4. For such other and further relief as this Court deems just and proper.
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DATED: September 13, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP
8
___________________________________
9 ANNA J. MONTELEONE
Attorney at Law
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DEMAND FOR JURY TRIAL
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Plaintiff-in-Intervention, UPS, hereby demands a jury on all claims.
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18 DATED: September 13, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP
19 ___________________________________
ANNA J. MONTELEONE
20 Attorney at Law
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_______________________________________________________________________________________________
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COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND
DEMAND FOR JURY TRIAL
EXHIBIT A
I Evan J. Spano, SBN 311309
Philip Alexander, SBN 235216
2 Harris Personal Injury Lawyers, Inc.
1025 Farmhouse Lane 2nd Floor
3
San Luis Obispo, CA 93401
P: 805.544.0100 ELECTRONICALLY FILED BY
4
F: 805.544.0101 Superior Court of California,
5
County of Monterey
Attorneys for Plaintiff On 8/1/2022 3:33 PM
6 Quince McAllister By: Kemar Davis, Deputy
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF MONTEREY- UNLIMTED CIVIL
9
IO QUINCE MCALLISTER, an individual; CASE NO. 22CV002248
11 Plaintiff, COMPLAINT FOR DAMAGES
12 1. Negligence
vs.
2. Negligent Supervision
13 3. Premises Liability
14 KC AUTO SERVICE LLC, a business entity;
KING CITY AUTO dba CARQUEST, a
15
business entity; CARQUEST, a business
16 entity; GOLDEN STATE SUPPLY LLC dba
ADVANCE AUTO PARTS, a business entity;
17 GOLDEN STATE SUPPLY LLC, a business
entity; ADVANCE AUTO PARTS, a business
18
entity; WESTERN HARVESTING LLC, a
19 business entity; WESTERN HARVESTING
TRANSPORT LLC, a business entity; RIO
20 FARMS LLC, a business entity; JAVIER
GARCIA, an individual; JOHN GILL, an
21
individual; DAVID GILL, an individual;
22 SUSAN GILL, an individual; and DOES 1
through 100, Inclusive;
23
24 Defendants.
25
26 Plaintiff QUINCE MCALLISTER alleges as follows:
27 Ill
28 Ill
- 1-
COMPLAINT FOR DAMAGES
22CV002248
THE PARTIES
2 1. Plaintiff QUINCE MCALLISTER ("Plaintiff') is an individual residing in L
3 Vegas, NV.
4 2. Defendant KC AUTO SERVICE LLC, upon information and belief, is a busines
5 entity doing business in the State of California.
6 3. Defendant KING CITY AUTO dba CARQUEST, upon information and belief, i
7 a business entity doing business in the State of California.
8 4. Defendant CARQUEST, upon information and belief, is a business entity doin
9 business in the State of California.
10 5. Defendant GOLDEN STATE SUPPLY LLC dba ADVANCE AUTO PARTS
11 upon information and belief, is a business entity doing business in the State of California.
12 6. Defendant GOLDEN STATE SUPPLY LLC, upon information and belief, is
13 business entity doing business in the State of California.
14
7. Defendant ADVANCE AUTO PARTS, upon information and belief, is a busines
15 entity doing business in the State of California.
16 8. Defendant WESTERN HARVESTING LLC, upon information and belief, is
17 business entity doing business in the State of California.
18 9. Defendant WESTERN HARVESTING TRANSPORT LLC, upon information an
19 belief, is a business entity doing business in the State of California.
20 10. Defendant RIO FARMS LLC, upon information and belief, is a business enti
21 doing business in the State of California.
22 11. Defendant JAVIER GARCIA, upon information and belief, is an individua
23 residing in the State of California.
24 12. Defendant JOHN GILL, upon information and belief, is an individual residing i
25 the State of California.
26 13. Defendant DAVID GILL, upon information and belief, is an individual residing i
27 the State of California.
28
COMPLAINT FOR DAMAGES
22CV002248
14. Defendant SUSAN GILL, upon information and belief, is an individual residing i
2 the State of California.
3 15. Plaintiff is unaware of the true names and capacities ofDefendants DOES 1 throug
4 100 inclusive, and therefore sues them by fictitious names. Plaintiff will amend this Complaint t
5 show the true names and capacities of these Defendants once they are ascertained. Plaintiff i
6 informed and believes and thereon alleges that each of these Defendants are responsible in som
7 manner for the wrongful acts alleged in this Complaint with respect to the forklift incident tha
8 occurred in King City, California on or about October 28, 2020, and proximately caused Plaintiff
9 damages.
10 VENUE
11 16. At all times herein mentioned, the incident on which this action is based occurre
12 within the boundaries of the Superior Court of the State of California, County of Monterey, sai
13 incident in King City, California, Monterey County.
14 GENERAL ALLEGATIONS
15 17. Plaintiff hereby incorporates by reference all above paragraphs as though fully se
16 forth herein.
17 18. At all times herein mentioned "DEFENDANTS" refers to KC AUTO SERVIC
18 LLC, a business entity; KING CITY AUTO dba CARQUEST, a business entity; CARQUEST,
19 business entity; GOLDEN STATE SUPPLY LLC dba ADVANCE AUTO PARTS, a busines
20 entity; GOLDEN STATE SUPPLY LLC, a business entity; ADVANCE AUTO PARTS,
21 business entity; WESTERN HARVESTING LLC, a business entity; WESTERN HARVESTIN
22 TRANSPORT LLC, a business entity; RIO FARMS LLC, a business entity; JAVIER GARCIA
23 an individual; JOHN GILL, an individual; DAVID GILL, an individual; SUSAN GILL,
24 individual; and DOES 1 through 100, Inclusive.
25 19. At all times herein mentioned DEFENDANTS operated a certain forklift owned b
26 DEFENDANTS that caused an injury to Plaintiff.
27 20. At all times herein mentioned, DEFENDANTS were the operator and/or permissiv
28 user of that certain forklift owned by DEFENDANTS that caused an injury Plaintiff.
COMPLAINT FOR DAMAGES
22CV002248
21. At all times herein mentioned DEFENDANTS were acting within the course an
2 scope of their employment with DEFENDANTS.
3 22. At all times herein mentioned, DEFENDANTS operated DEFENDANTS' forkli
4 as an agent for and in the course of employment with DEFENDANTS.
5 23. At all times herein mentioned DEFENDANTS owed Plaintiff a duty of care.
6 24. On or about October 28,2020, DEFENDANTS operated DEFENDANTS' forkli
7 in King City, State of California, in such a negligent manner as to injure Plaintiffs hand wi
8 DEFENDANTS' forklift, all of which caused serious injuries to Plaintiff.
9 25 . Upon information and belief, at said time and place, DEFENDANT, an employe
10 of DEFENDANTS, was operating a forklift owned, operated, maintained, and/or controlled b
11 DEFENDANTS.
12 26. At all times herein mentioned DEFENDANT was an employee of DEFENDANT
13 and was the operator of that certain forklift owned by DEFENDANTS that caused an injury t
14 Plaintiff.
15 27. DEFENDANT, an employee of DEFENDANTS, caused the aforementione
16 damage while in the course and scope of his employment with DEFENDANTS, and while actin
17 as an agent for them. Therefore DEFENDANTS are fully responsible for DEFENDANT's conduc
18 through the doctrine of respondeat superior.
19 28. Plaintiff is informed and believes that, at all times relevant herein, each of th
20 Defendants were acting as the agents, employees, alter egos or joint venturers of the other, an
21 were at all times or are otherwise vicariously liable to Plaintiffs.
22 FIRST CAUSE OF ACTION
23 Negligence
24 (As to All Defendants)
25 29. Plaintiff hereby incorporates by reference all above paragraphs as though fully se
26 forth herein.
27 Ill
28 Ill
COMPLAINT FOR DAMAGES
22CV002248
30. On or about October 28, 2020, DEFENDANTS operated DEFENDANTS' forkli
2 in such a negligent manner as to cause an incident between DEFENDANTS' forklift and Plainti
3 all of which caused serious injuries to Plaintiff.
4 31. At said times and places, DEFENDANTS negligently, carelessly, and without du
5 care or regard for the life, safety, and rights of Plaintiff, did so own, entrust, maintain, operate
6 and/or failed to maintain the forklift driven by DEFENDANTS in a safe manner, causing th
7 subject incident, all of which caused serious injuries to Plaintiff.
8 32. DEFENDANTS, employees of DEFENDANTS, caused the aforementione
9 incident while in the course and scope of their employment with, and while acting as an agent fo
10 them. Therefore, DEFENDANTS are all fully responsible for DEFENDANTS' conduct throug
II the doctrine of respondeat superior. DEFENDANT employees, through their employment wit
12 DEFENDANT employers, were required to use the forklift for work as an express or implie
13 condition of employment or, in the alternative, DEFENDANT employees expressly or implicit!
14 agreed to make the forklift available to DEFENDANT employers such that the DEFENDAN
15 employers had reasonably come to rely upon the forklift's use and to expect DEFENDAN
16 employees to make the forklift available on a regular basis while still not requiring it as a conditio
17 of employment. As such, DEFENDANT employers derived an incidental benefit from the use o
18 that certain forklift that was operated by DEFENDANTS at all times herein mentioned.
19 33. On October 28, 2020, DEFENDANT, an employee of DEFENDANTS w
20 operating a forklift owned, operated, maintained, and/or controlled by DEFENDANTS.
21 DEFENDANT was operating the forklift with DEFENDANTS permission and consent.
22 34. DEFENDANT owed Plaintiff a duty to operate the forklift in compliance with an
23 applicable workplace rules, and in a reasonable and safe manner.
24 35. DEFENDANT further owed Plaintiff a duty to warn or advise that he was operatin
25 the forklift, and to take all precautions necessary to safely operate the forklift.
26 36. DEFENDANT, while performing his duties as an employee of DEFENDANTS
27 did so negligently, carelessly and without due care or rega
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1 Anna J. Monteleone, State Bar No. 177700 Michael Sullivan & Associates LLP 2 PO Box 85059 3 San Diego, CA 92186-5059 Tel (714) 202-3440 Fax (844) 910-1850 4 amonteleone@sullivanattorneys.com 5 Attorneys for Plaintiff-in-Intervention, UPS OF AMERICA, INC. permissibly self-insured and 6 administered by LIBERTY MUTUAL INSURANCE COMPANY 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF MONTEREY 10 11 QUINCE MCALLISTER, an individual, ) Case No: 22CV002248 ) 12 Plaintiff, ) NOTICE AND MOTION TO ) INTERVENE; MEMORANDUM OF 13 vs. ) POINTS AND AUTHORITIES; ) DECLARATION OF ANNA J. 14 KC AUTO SERVICE LLC, a business entity; ) MONTELEONE; [PROPOSED]ORDER 15 KING CITY AUTO dba CARQUEST, a ) business entity; CARQUEST, a business entity; ) 16 GOLDEN STATE SUPPLY, LLC. dba ) Date: November 18, 2022 ADVANCE AUTO PARTS, a business entity; ) Time: 8:30AM 17 GOLDEN STATE SUPPLY, LLC., a business ) Dept: 15 Entity; ADVANCE AUTO PARTS, a business ) 18 entity; WESTERN HARVESTING, LLC., a ) 19 business entity; WESTERN HARVESTING ) TRANSPORT, LLC., a business entity; RIO ) 20 FARMS, LLC., a business entity; JAVIER ) GARCIA, an individual; JOHN GILL, an ) 21 individual; DAVID GILL, an individual; ) SUSAN GILL, an individual; and DOES 1 ) 22 through 100, Inclusive, ) 23 ) Defendants. ) 24 ______________________________________ ) ) 25 UPS OF AMERICA, INC. permissibly self- ) insured and administered by LIBERTY ) 26 MUTUAL INSURANCE COMPANY, ) 27 ) Plaintiff-in-Intervention, ) 28 _______________________________________________________________________________________________ -1- NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER 1 ) vs. ) 2 ) 3 KC AUTO SERVICE LLC, a business entity; ) KING CITY AUTO dba CARQUEST, a ) 4 business entity; CARQUEST, a business entity; ) GOLDEN STATE SUPPLY, LLC. dba ) 5 ADVANCE AUTO PARTS, a business entity; ) GOLDEN STATE SUPPLY, LLC., a business ) 6 Entity; ADVANCE AUTO PARTS, a business ) 7 entity; WESTERN HARVESTING, LLC., a ) business entity; WESTERN HARVESTING ) 8 TRANSPORT, LLC., a business entity; RIO ) FARMS, LLC., a business entity; JAVIER ) 9 GARCIA, an individual; JOHN GILL, an ) individual; DAVID GILL, an individual; ) 10 SUSAN GILL, an individual; and DOES 1 ) 11 through 100, Inclusive, ) ) 12 Defendants-in-Intervention. ) ) 13 ) 14 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 15 YOU ARE HEREBY NOTIFIED that on November 18, 2022, at 8:30 a.m. in 16 Department 15 of this court, plaintiff-in-intervention, UPS OF AMERICA, permissibly self- 17 18 insured and administered by Liberty Mutual, (hereinafter “UPS”) will move the court for an 19 order permitting intervention pursuant to Code of Civil Procedure § 387(b) and Labor Code § 20 3850, et seq. 21 This motion is made on the grounds that plaintiff-in-intervention, UPS, will be unduly 22 burdened if it is not allowed to intervene and recover costs that it has expended in paying 23 workers' compensation benefits to plaintiff, Quince McAllister. California Labor 24 Code §3853 provides a conditional right to intervene and that permitting intervention under 25 26 California Code of Civil Procedure §387(b) is mandatory upon timely application. 27 /// 28 _______________________________________________________________________________________________ -2- NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER 1 /// 2 The motion will be based upon this notice, the attached memorandum of points and 3 authorities and the declaration of Anna J. Monteleone, and the records and files in this action. 4 5 Dated: September 16, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP 6 7 8 ___________________________________ ANNA J. MONTELEONE 9 Attorney at Law 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 _______________________________________________________________________________________________ -3- 28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 3 I. STATEMENT OF FACTS 4 This case arises out of an incident that took place on October 28, 2020, when the 5 defendants’ forklift in King City, California struck Quince McAllister. Defendant’s 6 employee operated the forklift in such a manner to injure Quince McAllister’s hand. Quince 7 McAllister was acting in the course and scope of his employment with UPS when he was 8 struck by the defendants employee who was working in the course and scope of his 9 employment with the defendant. 10 11 II. LEGAL ARGUMENT 12 A. Intervention Is Mandatory 13 California Labor Code § 3852 states in pertinent part: "… The employer [and/or 14 insurance company] may recover in the same suit, in addition to the total amount of 15 compensation, damages for which he or she was liable …" 16 The California Labor Code makes clear that the employer may bring an action on its 17 18 own or intervene in the employee's action against third party tort feaser who injured the 19 employee and caused damages to the benefits provider. [Labor Code §3852]. California 20 Labor Code §3853 provides that "If an action is brought by either the employer or the 21 employee, the other may, at any time before trial on the facts showing as a party plaintiff' or 22 shall consolidate his action, if sought separately." [Labor Code § 3853] In this matter, the 23 plaintiff has filed an action in which the plaintiff-in-intervention has an unconditional 24 statutory right to intervene under Labor Code § 3853. 25 26 27 _______________________________________________________________________________________________ -4- 28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER 1 Code of Civil Procedure §387(b) requires the court to grant a timely application for 2 intervention on the following terms: 3 (b) If any provision of law confers an unconditional right to intervene … the 4 court shall, upon timely application, permit that person to intervene. [Code of Civil 5 Procedures § 387(b).] . 6 7 In this matter, as the plaintiff-in-intervention has an unconditional right to intervene, 8 and the within motion is timely as a trial on the facts has not commenced [see Labor Code 9 § 3853], Code of Civil Procedures § 387(b) requires that his motion be granted and that the 10 [proposed] Complaint-in-Intervention attached hereto as Exhibit A be filed. 11 12 Dated: September 16, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP 13 14 15 ___________________________________ ANNA J. MONTELEONE 16 Attorney at Law 17 18 19 20 21 22 23 24 25 26 27 _______________________________________________________________________________________________ -5- 28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER 1 DECLARATION OF ANNA J. MONTELEONE 2 3 I, ANNA J. MONTELEONE, DECLARE: 4 1. I am an attorney duly licensed to practice law in the State of California and 5 am the attorney for plaintiff-in-intervention, UPS of AMERICA, permissibly self-insured and 6 administered by LIBERTY MUTUAL INSURANCE COMPANY. 7 2. This motion is made upon the grounds that UPS of AMERICA, permissibly 8 self-insured and administered by LIBERTY MUTUAL INSURANCE COMPANY, claims 9 unconditional right to intervene pursuant to Code of Civil Procedure No. 387(b) and Labor 10 11 Code No. 3850 et seq. 12 3. In support of this motion, I make the following statement based on 13 information and belief. 14 4. Plaintiff, Quince McAllister has received workers' compensation benefits 15 paid to him and paid on his behalf from UPS of AMERICA, permissibly self-insured and 16 administered by LIBERTY MUTUAL INSURANCE COMPANY. 17 18 5. Plaintiff-in-intervention, UPS of AMERICA, permissibly self-insured and 19 administered by LIBERTY MUTUAL INSURANCE COMPANY has paid and continues to 20 pay benefits to Quince McAllister as a result of injuries he sustained in an accident caused by 21 defendants, which is the subject of his complaint entitled Quince McAllister v. KC Auto 22 Service, LLC et al , Monterey Superior Court Case number 22CV002248. 23 6. A true and correct copy of the proposed Complaint-in-Intervention is attached 24 hereto as Exhibit A. 25 26 27 _______________________________________________________________________________________________ -6- 28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER 1 WHEREFORE, UPS of AMERICA, permissibly self-insured and administered by 2 LIBERTY MUTUAL INSURANCE COMPANY, prays the court grant mandatory 3 intervention under the Labor Code and that the attached [proposed] Complaint-in- 4 intervention be deemed filed herein. 5 I declare under penalty of perjury that the foregoing is true and correct executed this 6 7 September 16, 2022 at Orange, California 92868 8 ___________________________________ ANNA J. MONTELEONE 9 Attorney at Law 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 _______________________________________________________________________________________________ -7- 28 NOTICE AND MOTION TO INTERVENE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANNA J. MONTELEONE; [PROPOSED]ORDER EXHIBIT A 1 Anna J. Monteleone, State Bar No. 177700 Michael Sullivan & Associates LLP 2 PO Box 85059 3 San Diego, CA 92186-5059 Tel (714) 202-3440 Fax (844) 910-1850 4 amonteleone@sullivanattorneys.com 5 Attorneys for Plaintiff-in-Intervention, UPS OF AMERICA, INC. permissibly self-insured and 6 administered by LIBERTY MUTUAL INSURANCE COMPANY 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF MONTEREY 10 11 QUINCE MCALLISTER, an individual, ) Case No: 22CV002248 ) 12 Plaintiff, ) COMPLAINT-IN-INTERVENTION; ) REIMBURSEMENT FOR WORKERS’ 13 vs. ) COMPENSATION EXPENDITURES ) AND DEMAND FOR JURY(LAB C 14 KC AUTO SERVICE LLC, a business entity; ) §§3852–3853) 15 KING CITY AUTO dba CARQUEST, a ) business entity; CARQUEST, a business entity; ) AMOUNT IN CONTROVERY 16 GOLDEN STATE SUPPLY, LLC. dba ) EXCEEDS $25,000 ADVANCE AUTO PARTS, a business entity; ) 17 GOLDEN STATE SUPPLY, LLC., a business ) Entity; ADVANCE AUTO PARTS, a business ) 18 entity; WESTERN HARVESTING, LLC., a ) 19 business entity; WESTERN HARVESTING ) TRANSPORT, LLC., a business entity; RIO ) 20 FARMS, LLC., a business entity; JAVIER ) GARCIA, an individual; JOHN GILL, an ) 21 individual; DAVID GILL, an individual; ) SUSAN GILL, an individual; and DOES 1 ) 22 through 100, Inclusive, ) 23 ) Defendants. ) 24 ______________________________________ ) ) 25 UPS OF AMERICA, INC. permissibly self- ) insured and administered by LIBERTY ) 26 MUTUAL INSURANCE COMPANY, ) 27 ) Plaintiff-in-Intervention, ) 28 _______________________________________________________________________________________________ -1- COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND DEMAND FOR JURY TRIAL 1 ) vs. ) 2 ) 3 KC AUTO SERVICE LLC, a business entity; ) KING CITY AUTO dba CARQUEST, a ) 4 business entity; CARQUEST, a business entity; ) GOLDEN STATE SUPPLY, LLC. dba ) 5 ADVANCE AUTO PARTS, a business entity; ) GOLDEN STATE SUPPLY, LLC., a business ) 6 Entity; ADVANCE AUTO PARTS, a business ) 7 entity; WESTERN HARVESTING, LLC., a ) business entity; WESTERN HARVESTING ) 8 TRANSPORT, LLC., a business entity; RIO ) FARMS, LLC., a business entity; JAVIER ) 9 GARCIA, an individual; JOHN GILL, an ) individual; DAVID GILL, an individual; ) 10 SUSAN GILL, an individual; and DOES 1 ) 11 through 100, Inclusive, ) ) 12 Defendants-in-Intervention. ) ) 13 ) 14 By leave of court, Plaintiff-in-Intervention, UPS OF AMERICA, INC. permissibly self- 15 insured and administered by LIBERTY MUTUAL INSURANCE COMPANY, (hereinafter 16 “UPS” ) files this Complaint-in-Intervention and thereby intervenes in this action. UPS joins with 17 18 Plaintiff, QUINCE McALLISTER) alleging as follows: 19 1. As shown by the facts alleged below and pursuant to California Civil Procedures Code section 20 387(b), Plaintiff-in-Intervention, UPS has an unconditional right to intervene in this action 21 under California Labor Code section 3853 because UPS expended workers’ compensation 22 benefits to and on behalf of QUINCE McALLISTER. 23 PARTIES: 24 2. Plaintiff-in-Intervention, UPS, was, and now is a corporation organized and authorized to do 25 26 business in California, and at all times herein mentioned complied with their obligations for 27 compensation benefits under the workers’ compensation laws of the State of California. 28 _______________________________________________________________________________________________ -2- COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND DEMAND FOR JURY TRIAL 1 3. At all times herein mentioned, UPS of AMERICA, INC. was the employer of Quince 2 McAllister. 3 4. All times herein mentioned, Defendants-in-Intervention, refers to KC Auto Service, LLC.; 4 King City Auto dba Carquest; Carquest; Golden State Supply, LLC. dba Advance Auto Parts; 5 Golden State Supply LLC.; Advance Auto Parts; Western Harvesting, LLC.; Western 6 7 Harvesting; Western Harvesting Transport, LLC.; Rio Farms, LLC.; Javier Garcia; John Gill; 8 David Gill; Susan Gill and Does 1 to 100, inclusive. 9 5. Plaintiff-in-Intervention, UPS alleges the true names or capacities whether individual, 10 representative or otherwise of Defendants-in-Intervention names herein as Does 1-100, 11 inclusive, and each of them, are presently unknown to Plaintiff-in-Intervention and Plaintiff- 12 in-Intervention will seek leave of Court to amend this Complaint-in-Intervention to allege 13 14 their true names and capacities when the same have been ascertained. 15 6. Plaintiff-in-Intervention is informed and believes, and thereon alleges, that at all times alleged 16 herein, each of the Defendants-in-Intervention named herein was the agent, servant and 17 employee of each and every other Defendant-in-Intervention named herein and at all times 18 alleged herein were acting within the course and scope of said agency and employment. 19 7. At all times alleged herein, Plaintiff-in-Intervention is paying the plaintiff workers’ 20 compensation benefits. At all times alleged herein, Plaintiff, Quince McAllister, was an 21 22 employee of UPS of America, Inc, and Plaintiff-in-Intervention is informed and believes and 23 thereon alleges that Plaintiff, Quince McAllister, was acting within the course and scope of 24 employment with UPS of America, Inc. 25 8. As a proximate and actual result of the negligent and careless conduct of Defendants-in- 26 Intervention, KC Auto Service, LLC.; King City Auto dba Carquest; Carquest; Golden State 27 Supply, LLC. dba Advance Auto Parts; Golden State Supply LLC.; Advance Auto Parts; 28 _______________________________________________________________________________________________ -3- COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND DEMAND FOR JURY TRIAL 1 Western Harvesting, LLC.; Western Harvesting; Western Harvesting Transport, LLC.; Rio 2 Farms, LLC.; Javier Garcia; John Gill; David Gill; Susan Gill and Does 1 to 100, inclusive, as 3 alleged herein, and the physical injuries sustained by Plaintiff, Quince McAllister, Plaintiff- 4 in-Intervention has been required to provide workers’ compensation benefits to and on behalf 5 of plaintiff, Quince McAllister. 6 7 9. Attached hereto as Exhibit “A” and incorporated herein by reference is the Complaint for 8 Damages filed by Plaintiff, Quince McAllister, in this matter. Plaintiff-In-Intervention 9 incorporates herein by reference all of the allegations set forth in the Complaint of Plaintiff, 10 Quince McAllister. Thus, Plaintiff-in-Intervention is pursuing claims against Defendants-in- 11 Intervention, KC Auto Service, LLC.; King City Auto dba Carquest; Carquest; Golden State 12 Supply, LLC. dba Advance Auto Parts; Golden State Supply LLC.; Advance Auto Parts; 13 14 Western Harvesting, LLC.; Western Harvesting; Western Harvesting Transport, LLC.; Rio 15 Farms, LLC.; Javier Garcia; John Gill; David Gill; Susan Gill and Does 1 to 100, inclusive, 16 the same as Plaintiff, Quince McAllister is pursuing against these same parties as defendants. 17 10. Plaintiff-in-Intervention is informed and believes and thereon alleges, that its damages as 18 herein alleged which are being paid to the plaintiff and are continuing, according to proof, and 19 Plaintiff-In Intervention will seek leave of Court to amend this Complaint –In-Intervention to 20 allege its full damages at the time of trial. Plaintiff-in-Intervention requests that its damages 21 22 herein bear interest at the legal rate from the due date. 23 11. By reason of those payments, intervenor is entitled to intervene as a plaintiff in this action 24 under California Code of Civil Procedure §387 and Labor Code §3853. 25 26 WHEREFORE, Plaintiff-in-Intervention prays for judgment against defendants-in- 27 intervention, and each of them, as follows: 28 _______________________________________________________________________________________________ -4- COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND DEMAND FOR JURY TRIAL 1 1. For damages according to proof, and Plaintiff-in-Intervention will seek leave of court 2 to amend this complaint to allege its full damages at the time of trial; 3 2. For costs of suit incurred herein; 4 3. For interest on said damages at the legal rate from the due date; 5 4. For such other and further relief as this Court deems just and proper. 6 7 DATED: September 13, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP 8 ___________________________________ 9 ANNA J. MONTELEONE Attorney at Law 10 11 12 13 14 DEMAND FOR JURY TRIAL 15 Plaintiff-in-Intervention, UPS, hereby demands a jury on all claims. 16 17 18 DATED: September 13, 2022 MICHAEL SULLIVAN & ASSOCIATES LLP 19 ___________________________________ ANNA J. MONTELEONE 20 Attorney at Law 21 22 23 24 25 26 27 28 _______________________________________________________________________________________________ -5- COMPLAINT FOR REIMBURSEMENT FOR WORKERS’ COMPENSATION EXPENDITURES AND DEMAND FOR JURY TRIAL EXHIBIT A I Evan J. Spano, SBN 311309 Philip Alexander, SBN 235216 2 Harris Personal Injury Lawyers, Inc. 1025 Farmhouse Lane 2nd Floor 3 San Luis Obispo, CA 93401 P: 805.544.0100 ELECTRONICALLY FILED BY 4 F: 805.544.0101 Superior Court of California, 5 County of Monterey Attorneys for Plaintiff On 8/1/2022 3:33 PM 6 Quince McAllister By: Kemar Davis, Deputy 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF MONTEREY- UNLIMTED CIVIL 9 IO QUINCE MCALLISTER, an individual; CASE NO. 22CV002248 11 Plaintiff, COMPLAINT FOR DAMAGES 12 1. Negligence vs. 2. Negligent Supervision 13 3. Premises Liability 14 KC AUTO SERVICE LLC, a business entity; KING CITY AUTO dba CARQUEST, a 15 business entity; CARQUEST, a business 16 entity; GOLDEN STATE SUPPLY LLC dba ADVANCE AUTO PARTS, a business entity; 17 GOLDEN STATE SUPPLY LLC, a business entity; ADVANCE AUTO PARTS, a business 18 entity; WESTERN HARVESTING LLC, a 19 business entity; WESTERN HARVESTING TRANSPORT LLC, a business entity; RIO 20 FARMS LLC, a business entity; JAVIER GARCIA, an individual; JOHN GILL, an 21 individual; DAVID GILL, an individual; 22 SUSAN GILL, an individual; and DOES 1 through 100, Inclusive; 23 24 Defendants. 25 26 Plaintiff QUINCE MCALLISTER alleges as follows: 27 Ill 28 Ill - 1- COMPLAINT FOR DAMAGES 22CV002248 THE PARTIES 2 1. Plaintiff QUINCE MCALLISTER ("Plaintiff') is an individual residing in L 3 Vegas, NV. 4 2. Defendant KC AUTO SERVICE LLC, upon information and belief, is a busines 5 entity doing business in the State of California. 6 3. Defendant KING CITY AUTO dba CARQUEST, upon information and belief, i 7 a business entity doing business in the State of California. 8 4. Defendant CARQUEST, upon information and belief, is a business entity doin 9 business in the State of California. 10 5. Defendant GOLDEN STATE SUPPLY LLC dba ADVANCE AUTO PARTS 11 upon information and belief, is a business entity doing business in the State of California. 12 6. Defendant GOLDEN STATE SUPPLY LLC, upon information and belief, is 13 business entity doing business in the State of California. 14 7. Defendant ADVANCE AUTO PARTS, upon information and belief, is a busines 15 entity doing business in the State of California. 16 8. Defendant WESTERN HARVESTING LLC, upon information and belief, is 17 business entity doing business in the State of California. 18 9. Defendant WESTERN HARVESTING TRANSPORT LLC, upon information an 19 belief, is a business entity doing business in the State of California. 20 10. Defendant RIO FARMS LLC, upon information and belief, is a business enti 21 doing business in the State of California. 22 11. Defendant JAVIER GARCIA, upon information and belief, is an individua 23 residing in the State of California. 24 12. Defendant JOHN GILL, upon information and belief, is an individual residing i 25 the State of California. 26 13. Defendant DAVID GILL, upon information and belief, is an individual residing i 27 the State of California. 28 COMPLAINT FOR DAMAGES 22CV002248 14. Defendant SUSAN GILL, upon information and belief, is an individual residing i 2 the State of California. 3 15. Plaintiff is unaware of the true names and capacities ofDefendants DOES 1 throug 4 100 inclusive, and therefore sues them by fictitious names. Plaintiff will amend this Complaint t 5 show the true names and capacities of these Defendants once they are ascertained. Plaintiff i 6 informed and believes and thereon alleges that each of these Defendants are responsible in som 7 manner for the wrongful acts alleged in this Complaint with respect to the forklift incident tha 8 occurred in King City, California on or about October 28, 2020, and proximately caused Plaintiff 9 damages. 10 VENUE 11 16. At all times herein mentioned, the incident on which this action is based occurre 12 within the boundaries of the Superior Court of the State of California, County of Monterey, sai 13 incident in King City, California, Monterey County. 14 GENERAL ALLEGATIONS 15 17. Plaintiff hereby incorporates by reference all above paragraphs as though fully se 16 forth herein. 17 18. At all times herein mentioned "DEFENDANTS" refers to KC AUTO SERVIC 18 LLC, a business entity; KING CITY AUTO dba CARQUEST, a business entity; CARQUEST, 19 business entity; GOLDEN STATE SUPPLY LLC dba ADVANCE AUTO PARTS, a busines 20 entity; GOLDEN STATE SUPPLY LLC, a business entity; ADVANCE AUTO PARTS, 21 business entity; WESTERN HARVESTING LLC, a business entity; WESTERN HARVESTIN 22 TRANSPORT LLC, a business entity; RIO FARMS LLC, a business entity; JAVIER GARCIA 23 an individual; JOHN GILL, an individual; DAVID GILL, an individual; SUSAN GILL, 24 individual; and DOES 1 through 100, Inclusive. 25 19. At all times herein mentioned DEFENDANTS operated a certain forklift owned b 26 DEFENDANTS that caused an injury to Plaintiff. 27 20. At all times herein mentioned, DEFENDANTS were the operator and/or permissiv 28 user of that certain forklift owned by DEFENDANTS that caused an injury Plaintiff. COMPLAINT FOR DAMAGES 22CV002248 21. At all times herein mentioned DEFENDANTS were acting within the course an 2 scope of their employment with DEFENDANTS. 3 22. At all times herein mentioned, DEFENDANTS operated DEFENDANTS' forkli 4 as an agent for and in the course of employment with DEFENDANTS. 5 23. At all times herein mentioned DEFENDANTS owed Plaintiff a duty of care. 6 24. On or about October 28,2020, DEFENDANTS operated DEFENDANTS' forkli 7 in King City, State of California, in such a negligent manner as to injure Plaintiffs hand wi 8 DEFENDANTS' forklift, all of which caused serious injuries to Plaintiff. 9 25 . Upon information and belief, at said time and place, DEFENDANT, an employe 10 of DEFENDANTS, was operating a forklift owned, operated, maintained, and/or controlled b 11 DEFENDANTS. 12 26. At all times herein mentioned DEFENDANT was an employee of DEFENDANT 13 and was the operator of that certain forklift owned by DEFENDANTS that caused an injury t 14 Plaintiff. 15 27. DEFENDANT, an employee of DEFENDANTS, caused the aforementione 16 damage while in the course and scope of his employment with DEFENDANTS, and while actin 17 as an agent for them. Therefore DEFENDANTS are fully responsible for DEFENDANT's conduc 18 through the doctrine of respondeat superior. 19 28. Plaintiff is informed and believes that, at all times relevant herein, each of th 20 Defendants were acting as the agents, employees, alter egos or joint venturers of the other, an 21 were at all times or are otherwise vicariously liable to Plaintiffs. 22 FIRST CAUSE OF ACTION 23 Negligence 24 (As to All Defendants) 25 29. Plaintiff hereby incorporates by reference all above paragraphs as though fully se 26 forth herein. 27 Ill 28 Ill COMPLAINT FOR DAMAGES 22CV002248 30. On or about October 28, 2020, DEFENDANTS operated DEFENDANTS' forkli 2 in such a negligent manner as to cause an incident between DEFENDANTS' forklift and Plainti 3 all of which caused serious injuries to Plaintiff. 4 31. At said times and places, DEFENDANTS negligently, carelessly, and without du 5 care or regard for the life, safety, and rights of Plaintiff, did so own, entrust, maintain, operate 6 and/or failed to maintain the forklift driven by DEFENDANTS in a safe manner, causing th 7 subject incident, all of which caused serious injuries to Plaintiff. 8 32. DEFENDANTS, employees of DEFENDANTS, caused the aforementione 9 incident while in the course and scope of their employment with, and while acting as an agent fo 10 them. Therefore, DEFENDANTS are all fully responsible for DEFENDANTS' conduct throug II the doctrine of respondeat superior. DEFENDANT employees, through their employment wit 12 DEFENDANT employers, were required to use the forklift for work as an express or implie 13 condition of employment or, in the alternative, DEFENDANT employees expressly or implicit! 14 agreed to make the forklift available to DEFENDANT employers such that the DEFENDAN 15 employers had reasonably come to rely upon the forklift's use and to expect DEFENDAN 16 employees to make the forklift available on a regular basis while still not requiring it as a conditio 17 of employment. As such, DEFENDANT employers derived an incidental benefit from the use o 18 that certain forklift that was operated by DEFENDANTS at all times herein mentioned. 19 33. On October 28, 2020, DEFENDANT, an employee of DEFENDANTS w 20 operating a forklift owned, operated, maintained, and/or controlled by DEFENDANTS. 21 DEFENDANT was operating the forklift with DEFENDANTS permission and consent. 22 34. DEFENDANT owed Plaintiff a duty to operate the forklift in compliance with an 23 applicable workplace rules, and in a reasonable and safe manner. 24 35. DEFENDANT further owed Plaintiff a duty to warn or advise that he was operatin 25 the forklift, and to take all precautions necessary to safely operate the forklift. 26 36. DEFENDANT, while performing his duties as an employee of DEFENDANTS 27 did so negligently, carelessly and without due care or rega