Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
CHRISTOPHER J. NEVIS, SB# 162812
2 E-Mail: Christopher.Nevis@lewisbrisbois.com
STEFFANIE A. MALLA, SB# 266120
3 E-Mail: Steffanie.Malla@lewisbrisbois.com
45 Fremont Street, Suite 3000
4 San Francisco, California 94105
Telephone: 415.362.2580
5 Facsimile: 415.434.0882
6 Attorneys for Defendant/Cross-Defendant/Cross-Complainant,
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10
11 REGINA GLORIOSO-EMERSON; ESTATE Case No. 22-CIV-05181
OF ROLANDO GLORIOSO; CHRISTIAN
12 CUNANAN; KATRYNE PIOQUINTO; CROSS-DEFENDANT SAN FRANCISCO
JOHN MATTHEW CUNANAN; and BAY AREA RAPID TRANSIT DISTRICT’S
13 ESTATE OF SUSANA GLORIOSO, ANSWER TO CROSS-COMPLAINANTS
SAN MATEO COUNTY TRANSIT
14 Plaintiffs, DISTRICT AND PENINSULA CORRIDOR
JOINT POWERS BOARD’S FIRST
15 vs. AMENDED CROSS-COMPLAINT
16 CITY OF MILLBRAE; STATE OF Action Filed: December 9, 2022
CALIFORNIA; CITY AND COUNTY OF Trial Date: None Set
17 SAN FRANCISCO; COUNTY OF SAN
MATEO; CITY OF SAN BRUNO; SAN
18 FRANCISCO AREA RAPID TRANSIT
DISTRICT; SAN MATEO COUNTY
19 TRANSIT DISTRICT; PENINSULA
CORRIDOR JOINT POWERS BOARD; and
20 DOES 1-20,
21 Defendants.
22
SAN MATEO COUNTY TRANSIT
23 DISTRICT and PENINSULA CORRIDOR
JOINT POWERS BOARD,
24
Cross-Complainants,
25
vs.
26
SAN FRANCISCO BAY AREA RAPID
27 TRANSIT DISTRICT, INCORRECTLY
SUED AS SAN FRANCISCO AREA RAPID
28 TRANSIT DISTRICT, and CITY OF
LEWIS
BRISBOIS 92950052.1 1 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 MILLBRAE,
2 Cross-Defendants.
3
4 COMES NOW, Cross-Defendant SAN FRANCISCO BAY AREA RAPID TRANSIT
5 DISTRICT (“BART”) hereby submits the following answer to Cross-Complainants SAN MATEO
6 COUNTY TRANSIT DISTRICT and PENINSULA CORRIDOR JOINT POWERS BOARD’S
7 (“Cross-Complainants”) First Amended Cross-Complaint (“Cross-Complaint”).
8 BART denies, responds, and alleges as follows:
9 GENERAL DENIAL
10 Pursuant to California Code of Civil Procedure section 431.30, subdivision (d), BART
11 denies each, every, and all of the allegations in the Cross-Complaint. BART also denies each and
12 every cause of action stated therein, and the whole thereof, and denies that Cross-Complainants have
13 sustained damages in the sums alleged, or in any other sum, or at all.
14 AFFIRMATIVE DEFENSES
15 Without conceding that it has the burden of proof as to any of these matters, BART asserts
16 the following defenses:
17 FIRST AFFIRMATIVE DEFENSE
18 (Failure to State a Claim)
19 1. The Cross-Complaint and each purported cause of action therein, fails to state a claim
20 for which relief can be granted against BART.
21 SECOND AFFIRMATIVE DEFENSE
22 (Statute of Limitations)
23 2. The causes of action set forth in the Cross-Complaint are barred by the statute of
24 limitations as set forth in sections 335, 335.1, 337, 337(1), 338, 338(a), 338(d), 339, 339(1), 340,
25 340.2, 340.8, 343, 366.3, and all other applicable provisions of the Code of Civil Procedure.
26 / / /
27 / / /
28 / / /
LEWIS
BRISBOIS 92950052.1 2 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 THIRD AFFIRMATIVE DEFENSE
2 (Immunity)
3 3. BART is informed and believes, and on that basis alleges, that it is immune from
4 liability pursuant to applicable provisions of the Government Code, including but not limited to
5 sections 814 et seq., 815, 815.2, 820.2, 820.4, 820.8, and 845.
6 FOURTH AFFIRMATIVE DEFENSE
7 (Untimely Claim)
8 4. BART is informed and believes, and on that basis alleges, that the Cross-Complaint,
9 and each and every cause of action alleged therein, is barred because Plaintiffs’ and/or Cross-
10 Complainants’ claim(s) was untimely submitted under Government Code section 900 et seq., and
11 therefore Cross-Complainants are barred from recovery.
12 FIFTH AFFIRMATIVE DEFENSE
13 (Untimely Complaint)
14 5. BART is informed and believes, and on that basis alleges, that the Cross-Complaint,
15 and each and every cause of action alleged therein, is barred because Plaintiffs and/or Cross-
16 Complainants did not timely file the Complaint and/or Cross-Complaint pursuant to Government
17 Code section 945.6, subdivision (a)(1), after issuance of a notice of rejection of claim.
18 SIXTH AFFIRMATIVE DEFENSE
19 (Action against Public Entity Barred by Variation of Facts from Claim)
20 6. BART is informed and believes, and on that basis alleges, that the Plaintiffs and/or
21 Cross-Complainants failed to plead facts in the Complaint and/or Cross-Complaint which
22 substantially correspond to the claim submitted to BART, and therefore Cross-Complainants’ action
23 is barred.
24 SEVENTH AFFIRMATIVE DEFENSE
25 (Costs)
26 7. BART is informed and believes, and on that basis alleges, that the Cross-Complaint
27 was brought without reasonable cause and without a good faith belief that there was a justifiable
28 controversy under the facts of the law which warranted the filing of the Cross-Complaint against
LEWIS
BRISBOIS 92950052.1 3 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 BART. Cross-Complainants should therefore be responsible for all of BART’s necessary and
2 reasonable defense costs, as more particularly set forth in Code of Civil Procedure section 1038.
3 EIGHTH AFFIRMATIVE DEFENSE
4 (Failure to Join Indispensable Parties)
5 8. BART is informed and believes, and on that basis alleges, that each cause of action
6 for relief in the Cross-Complaint is barred because Cross-Complainants have failed to join
7 indispensable parties. These parties are necessary parties to this action in that their actions are solely
8 responsible for all liabilities allegedly incurred by BART. Cross-Complainants’ refusal to join these
9 parties in this current litigation will prevent BART from obtaining information necessary to
10 adequately defend itself against the underlying causes of action, cause duplicative litigation, and
11 expose BART to additional liabilities after termination of this litigation.
12 NINTH AFFIRMATIVE DEFENSE
13 (Standing)
14 9. BART is informed and believes, and on that basis alleges, that Cross-Complainants
15 are not the real party in interest and therefore lack standing to assert a claim for damages.
16 TENTH AFFIRMATIVE DEFENSE
17 (Comparative Negligence)
18 10. BART is informed and believes, and on that basis alleges, that any and all events and
19 happenings, damages, losses, and expenditures referred to in the Cross-Complaint were directly and
20 proximately caused and contributed to, in whole or in part, by the carelessness and negligence of
21 the decedents Rolando Glorioso and/or Susana Glorioso and/or Cross-Complainants, and therefore,
22 the extent of loss, damage, or expenditures sustained by Cross-Complainants, if any, should be
23 reduced in proportion to the amount of negligence or fault attributable to the decedents Rolando
24 Glorioso and/or Susana Glorioso and/or Cross-Complainants.
25 ELEVENTH AFFIRMATIVE DEFENSE
26 (Comparative Fault of Third Parties)
27 11. The damages, if any, allegedly suffered by Cross-Complainants, were proximately
28 caused and contributed to by the negligence of third parties (not BART) and said third parties failed
LEWIS
BRISBOIS 92950052.1 4 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 to exercise reasonable care at and prior to the time of said damages, and by reason thereof, any
2 recovery by Cross-Complainants against BART must be reduced by an amount equal to the
3 proportionate fault of said third parties.
4 TWELFTH AFFIRMATIVE DEFENSE
5 (No Duty)
6 12. BART is informed and believes, and on that basis alleges, that BART owed no duty
7 or obligation to the decedents Rolando Glorioso and/or Susana Glorioso or Cross-Complainants.
8 THIRTEENTH AFFIRMATIVE DEFENSE
9 (No Causation)
10 13. BART is informed and believes, and on that basis alleges, that there is no causal
11 relationship between any injuries or damages allegedly sustained by the decedents Rolando Glorioso
12 and/or Susana Glorioso or Cross-Complainants and any alleged wrongful act by BART.
13 FOURTEENTH AFFIRMATIVE DEFENSE
14 (Proposition 51)
15 14. BART is informed and believes, and on that basis alleges, that parties both served
16 and unserved, named and unnamed, Plaintiffs, and Cross-Complainants, are in some manner or
17 percentage responsible for Plaintiffs’ and/or Cross-Complainants’ damages or non-economic
18 damages, if any, and an order from the trier of fact is required that sets forth separate judgments,
19 against each and every party, named and unnamed, served and unserved, Plaintiffs, and Cross-
20 Complainants, for the amount of all non-economic damages that may be recovered by Plaintiffs
21 and/or Cross-Complainants in direct proportion to the percentage of fault of each party, named and
22 unnamed, served and unserved, Plaintiffs, and Cross-Complainants, pursuant to Civil Code section
23 1431.2.
24 FIFTEENTH AFFIRMATIVE DEFENSE
25 (Failure to Mitigate)
26 15. Cross-Complainants, Plaintiffs, and/or the decedents Rolando Glorioso and Susana
27 Glorioso, though under a duty to do so, failed and neglected to mitigate their alleged damages and
28 therefore cannot recover against BART, whether as alleged or otherwise.
LEWIS
BRISBOIS 92950052.1 5 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 (Laches)
3 16. Cross-Complainants and/or Plaintiffs have unreasonably delayed in bringing this
4 action to the prejudice of BART, and therefore, the Cross-Complaint is barred by the doctrine of
5 laches.
6 SEVENTEENTH AFFIRMATIVE DEFENSE
7 (Unclean Hands)
8 17. Cross-Complainants and/or Plaintiffs are barred by the equitable doctrine of unclean
9 hands from obtaining the relief requested.
10 EIGHTEENTH AFFIRMATIVE DEFENSE
11 (Waiver)
12 18. Cross-Complainants and/or Plaintiffs have engaged in conduct and activities
13 sufficient to constitute a waiver of any alleged breach of duty, negligence, act, omission, or other
14 conduct, if any.
15 NINETEENTH AFFIRMATIVE DEFENSE
16 (Lack of Evidentiary Support for Claims)
17 19. BART is informed and believes, and on that basis alleges, that Cross-Complainants
18 brought claims against BART without having evidentiary support for same. Accordingly, pursuant
19 to Code of Civil Procedure section 128.7, BART requests reasonable expenses, including attorneys’
20 fees.
21 TWENTIETH AFFIRMATIVE DEFENSE
22 (Estoppel)
23 20. Cross-Complainants and/or Plaintiffs engaged in conduct and activities with respect
24 to the subject of the Cross-Complaint, and, by reason of said activities and conduct, are estopped
25 from asserting any claims for damages or seeking any other relief against BART.
26 / / /
27 / / /
28 / / /
LEWIS
BRISBOIS 92950052.1 6 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 TWENTY-FIRST AFFIRMATIVE DEFENSE
2 (Non-Delegable Duty)
3 21. BART is informed and believes, and on that basis alleges, that it cannot be held liable
4 to Plaintiffs or Cross-Complainants because other parties owed a non-delegable duty of care to the
5 decedents Rolando Glorioso and/or Susana Glorioso, Plaintiffs, and/or Cross-Complainants, which
6 duty, if breached at all, was not breached through any conduct legally attributable to BART.
7 TWENTY-SECOND AFFIRMATIVE DEFENSE
8 (Intervening and Superseding Causes)
9 22. The injuries and damages allegedly suffered by the decedents Rolando Glorioso
10 and/or Susana Glorioso, Plaintiffs, and/or Cross-Complainants were proximately caused by or
11 contributed to by the acts of other persons and/or other entities, and said acts were an intervening
12 and superseding cause of the injuries and damages, if any, of the decedents Rolando Glorioso and/or
13 Susana Glorioso, Plaintiffs, and/or Cross-Complainants, thus barring Cross-Complainants from any
14 recovery against BART.
15 TWENTY-THIRD AFFIRMATIVE DEFENSE
16 (Assumption of Risk)
17 23. The Cross-Complaint is barred under the doctrine of primary assumption of risk
18 because the decedents Rolando Glorioso and/or Susana Glorioso, Plaintiffs, and/or Cross-
19 Complainants voluntarily participated in the activities alleged in the Complaint and/or Cross-
20 Complaint and knew of and appreciated the specific risk which resulted in their alleged damages,
21 thereby relieving BART of any legal duty to protect them from that risk.
22 TWENTY-FOURTH AFFIRMATIVE DEFENSE
23 (Lack of Notice)
24 24. BART had no notice, either actual or constructive, of any allegedly dangerous
25 condition; nor did BART have any duty concerning the subject area where the incident purportedly
26 occurred.
27 / / /
28 / / /
LEWIS
BRISBOIS 92950052.1 7 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 (Trivial Defect Doctrine)
3 25. Upon information and belief, the condition complained of in the Complaint and/or
4 Cross-Complaint herein was not dangerous because any risk created by the condition was of such a
5 minor, trivial, or insignificant nature in view of the surrounding circumstances that no reasonable
6 person would conclude that the condition created a substantial risk of injury when such property or
7 adjacent property was used with due care in a manner in which it was reasonably foreseeable that it
8 would be used. (See Gov. Code § 830.2.)
9 TWENTY-SIXTH AFFIRMATIVE DEFENSE
10 (Reasonableness of Public Entity and/or Employee)
11 26. Any acts or omissions that created the condition complained of herein, and the action
12 taken to protect against any risk of injury created by the condition, or failure to take such action,
13 were reasonable and BART is therefore immune from liability herein under the provisions of
14 Government Code sections 835.4 and 840.6.
15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
16 (Acts of God)
17 27. The damages complained of in the Complaint and the Cross-Complaint, if any,
18 resulted from an unforeseeable act of God, thereby barring, either partially or totally, Plaintiffs’ and
19 Cross-Complainants’ claimed damages.
20 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
21 (Reservation)
22 28. BART presently has insufficient knowledge or information on which to form a belief
23 as to whether it may have additional, as yet unstated affirmative defenses available. BART reserves
24 the right to assert additional defenses in the event that discovery indicates they would be appropriate.
25 WHEREFORE, BART prays for judgment as follows:
26 1. That Cross-Complainants take nothing by way of their Cross-Complaint;
27 2. That judgment be entered for BART and against Cross-Complainants;
28 3. That BART recovers any and all fees, costs, and expenses it is authorized to recover
LEWIS
BRISBOIS 92950052.1 8 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 under the law, including but not limited to attorney's fees;
2 4. For attorneys’ fees under Code of Civil Procedure section 1038; and
3 5. For such other and further relief as the Court may deem just and proper.
4 DATED: May 2, 2023 LEWIS BRISBOIS BISGAARD & SMITH LLP
5
6
By:
7 Christopher J. Nevis
Steffanie A. Malla
8 Attorneys for Defendant/Cross-Defendant/Cross-
Complainant, SAN FRANCISCO BAY AREA
9
RAPID TRANSIT DISTRICT
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LEWIS
BRISBOIS 92950052.1 9 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 CALIFORNIA STATE COURT PROOF OF SERVICE
2 Regina Glorioso-Emerson, et al. v. City of Millbrae, et al.
San Mateo County Superior Court, Case No. 22-CIV-05181
3
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
4
At the time of service, I was over 18 years of age and not a party to this action. My
5 business address is 45 Fremont Street, Suite 3000, San Francisco, CA 94105.
6 On May 2, 2023, I served true copies of the following document(s):
7 CROSS-DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT
DISTRICT’S ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY
8 TRANSIT DISTRICT AND PENINSULA CORRIDOR JOINT POWERS BOARD’S
FIRST AMENDED CROSS-COMPLAINT
9
I served the documents on the following persons at the following addresses (including fax
10 numbers and e-mail addresses, if applicable):
11 SEE ATTACHED SERVICE LIST
12 The documents were served by the following means:
13 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused the
14 documents to be sent from e-mail address lucia.suazo@lewisbrisbois.com to the persons at
the e-mail addresses listed above. I did not receive, within a reasonable time after the
15 transmission, any electronic message or other indication that the transmission was
unsuccessful.
16
I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct.
18 Executed on May 2, 2023, at Pittsburg, California.
19
20
Lucia Suazo
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LEWIS
BRISBOIS 92950052.1 10 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
1 SERVICE LIST
2 Regina Glorioso-Emerson, et al. v. City of Millbrae, et al.
San Mateo County Superior Court, Case No. 22-CIV-05181
3
Attorney for Plaintiffs Attorney for Plaintiffs
4
Robert J. Ounjian, Esq. Lemuel L. Garcia, Esq.
5 Paul S. Zuckerman, Esq. Lem Garcia Law, PC
Carpenter & Zuckerman, Esq. 1720 West Cameron Ave., Suite 210
6 8827 West Olympic Blvd. West Covina, California 91790
Beverly Hills, California 90211 Tel.: (626) 337-1111
7 Tel.: (310) 273-1230 Fax: (626) 337-1112
Fax: (310) 858-1063 Email: lem@lemgarcialaw.com
8 Email: robert@cz.law
Email: paul@cz.law
9 Email: steve@cz.law
Email: angela@cz.law
10
Attorneys for Defendants/Cross-Complainants, Attorneys for Defendant, State of California,
11 San Mateo County and Transit District acting by and through the Department of
Peninsula Corridor Joint Powers Board Transportation
12
Kenneth D. Simoncini, Esq. Erin E. Holbrook, Esq.
13 Eric Steinle, Esq. G. Michael Harrington, Esq.
Simoncini & Associates Samuel C. Law, Esq.
14 1694 The Alameda California Department of Transportation –
San Jose, California 95126 Legal
15 Tel.: (408) 280-7711 111 Grand Avenue, Suite 11-100
Fax: (408) 280-1330 Oakland, California 94612
16 Email: kds@simoncini-law.com Tel.: (510) 433-9100
Fax: (510) 433-9167
17 Email: mike.harrington@dot.ca.gov
Email: samuel.c.law@dot.ca.gov
18
Attorneys for Defendant, City of Millbrae
19
Todd H. Master, Esq.
20 Ridley Master
1900 O’Farrell Street, Suite 280
21 San Mateo, California 94403
Tel.: (650) 365-7715
22 Fax: (650) 364-5297
Email: tmaster@hrmrlaw.com
23 Email: fkelly@hrmrlaw.com
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LEWIS
BRISBOIS 92950052.1 11 Case No. 22-CIV-05181
BISGAARD
& SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA
ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT
Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP CHRISTOPHER J. NEVIS, SB# 162812 2 E-Mail: Christopher.Nevis@lewisbrisbois.com STEFFANIE A. MALLA, SB# 266120 3 E-Mail: Steffanie.Malla@lewisbrisbois.com 45 Fremont Street, Suite 3000 4 San Francisco, California 94105 Telephone: 415.362.2580 5 Facsimile: 415.434.0882 6 Attorneys for Defendant/Cross-Defendant/Cross-Complainant, SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 REGINA GLORIOSO-EMERSON; ESTATE Case No. 22-CIV-05181 OF ROLANDO GLORIOSO; CHRISTIAN 12 CUNANAN; KATRYNE PIOQUINTO; CROSS-DEFENDANT SAN FRANCISCO JOHN MATTHEW CUNANAN; and BAY AREA RAPID TRANSIT DISTRICT’S 13 ESTATE OF SUSANA GLORIOSO, ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT 14 Plaintiffs, DISTRICT AND PENINSULA CORRIDOR JOINT POWERS BOARD’S FIRST 15 vs. AMENDED CROSS-COMPLAINT 16 CITY OF MILLBRAE; STATE OF Action Filed: December 9, 2022 CALIFORNIA; CITY AND COUNTY OF Trial Date: None Set 17 SAN FRANCISCO; COUNTY OF SAN MATEO; CITY OF SAN BRUNO; SAN 18 FRANCISCO AREA RAPID TRANSIT DISTRICT; SAN MATEO COUNTY 19 TRANSIT DISTRICT; PENINSULA CORRIDOR JOINT POWERS BOARD; and 20 DOES 1-20, 21 Defendants. 22 SAN MATEO COUNTY TRANSIT 23 DISTRICT and PENINSULA CORRIDOR JOINT POWERS BOARD, 24 Cross-Complainants, 25 vs. 26 SAN FRANCISCO BAY AREA RAPID 27 TRANSIT DISTRICT, INCORRECTLY SUED AS SAN FRANCISCO AREA RAPID 28 TRANSIT DISTRICT, and CITY OF LEWIS BRISBOIS 92950052.1 1 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 MILLBRAE, 2 Cross-Defendants. 3 4 COMES NOW, Cross-Defendant SAN FRANCISCO BAY AREA RAPID TRANSIT 5 DISTRICT (“BART”) hereby submits the following answer to Cross-Complainants SAN MATEO 6 COUNTY TRANSIT DISTRICT and PENINSULA CORRIDOR JOINT POWERS BOARD’S 7 (“Cross-Complainants”) First Amended Cross-Complaint (“Cross-Complaint”). 8 BART denies, responds, and alleges as follows: 9 GENERAL DENIAL 10 Pursuant to California Code of Civil Procedure section 431.30, subdivision (d), BART 11 denies each, every, and all of the allegations in the Cross-Complaint. BART also denies each and 12 every cause of action stated therein, and the whole thereof, and denies that Cross-Complainants have 13 sustained damages in the sums alleged, or in any other sum, or at all. 14 AFFIRMATIVE DEFENSES 15 Without conceding that it has the burden of proof as to any of these matters, BART asserts 16 the following defenses: 17 FIRST AFFIRMATIVE DEFENSE 18 (Failure to State a Claim) 19 1. The Cross-Complaint and each purported cause of action therein, fails to state a claim 20 for which relief can be granted against BART. 21 SECOND AFFIRMATIVE DEFENSE 22 (Statute of Limitations) 23 2. The causes of action set forth in the Cross-Complaint are barred by the statute of 24 limitations as set forth in sections 335, 335.1, 337, 337(1), 338, 338(a), 338(d), 339, 339(1), 340, 25 340.2, 340.8, 343, 366.3, and all other applicable provisions of the Code of Civil Procedure. 26 / / / 27 / / / 28 / / / LEWIS BRISBOIS 92950052.1 2 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 (Immunity) 3 3. BART is informed and believes, and on that basis alleges, that it is immune from 4 liability pursuant to applicable provisions of the Government Code, including but not limited to 5 sections 814 et seq., 815, 815.2, 820.2, 820.4, 820.8, and 845. 6 FOURTH AFFIRMATIVE DEFENSE 7 (Untimely Claim) 8 4. BART is informed and believes, and on that basis alleges, that the Cross-Complaint, 9 and each and every cause of action alleged therein, is barred because Plaintiffs’ and/or Cross- 10 Complainants’ claim(s) was untimely submitted under Government Code section 900 et seq., and 11 therefore Cross-Complainants are barred from recovery. 12 FIFTH AFFIRMATIVE DEFENSE 13 (Untimely Complaint) 14 5. BART is informed and believes, and on that basis alleges, that the Cross-Complaint, 15 and each and every cause of action alleged therein, is barred because Plaintiffs and/or Cross- 16 Complainants did not timely file the Complaint and/or Cross-Complaint pursuant to Government 17 Code section 945.6, subdivision (a)(1), after issuance of a notice of rejection of claim. 18 SIXTH AFFIRMATIVE DEFENSE 19 (Action against Public Entity Barred by Variation of Facts from Claim) 20 6. BART is informed and believes, and on that basis alleges, that the Plaintiffs and/or 21 Cross-Complainants failed to plead facts in the Complaint and/or Cross-Complaint which 22 substantially correspond to the claim submitted to BART, and therefore Cross-Complainants’ action 23 is barred. 24 SEVENTH AFFIRMATIVE DEFENSE 25 (Costs) 26 7. BART is informed and believes, and on that basis alleges, that the Cross-Complaint 27 was brought without reasonable cause and without a good faith belief that there was a justifiable 28 controversy under the facts of the law which warranted the filing of the Cross-Complaint against LEWIS BRISBOIS 92950052.1 3 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 BART. Cross-Complainants should therefore be responsible for all of BART’s necessary and 2 reasonable defense costs, as more particularly set forth in Code of Civil Procedure section 1038. 3 EIGHTH AFFIRMATIVE DEFENSE 4 (Failure to Join Indispensable Parties) 5 8. BART is informed and believes, and on that basis alleges, that each cause of action 6 for relief in the Cross-Complaint is barred because Cross-Complainants have failed to join 7 indispensable parties. These parties are necessary parties to this action in that their actions are solely 8 responsible for all liabilities allegedly incurred by BART. Cross-Complainants’ refusal to join these 9 parties in this current litigation will prevent BART from obtaining information necessary to 10 adequately defend itself against the underlying causes of action, cause duplicative litigation, and 11 expose BART to additional liabilities after termination of this litigation. 12 NINTH AFFIRMATIVE DEFENSE 13 (Standing) 14 9. BART is informed and believes, and on that basis alleges, that Cross-Complainants 15 are not the real party in interest and therefore lack standing to assert a claim for damages. 16 TENTH AFFIRMATIVE DEFENSE 17 (Comparative Negligence) 18 10. BART is informed and believes, and on that basis alleges, that any and all events and 19 happenings, damages, losses, and expenditures referred to in the Cross-Complaint were directly and 20 proximately caused and contributed to, in whole or in part, by the carelessness and negligence of 21 the decedents Rolando Glorioso and/or Susana Glorioso and/or Cross-Complainants, and therefore, 22 the extent of loss, damage, or expenditures sustained by Cross-Complainants, if any, should be 23 reduced in proportion to the amount of negligence or fault attributable to the decedents Rolando 24 Glorioso and/or Susana Glorioso and/or Cross-Complainants. 25 ELEVENTH AFFIRMATIVE DEFENSE 26 (Comparative Fault of Third Parties) 27 11. The damages, if any, allegedly suffered by Cross-Complainants, were proximately 28 caused and contributed to by the negligence of third parties (not BART) and said third parties failed LEWIS BRISBOIS 92950052.1 4 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 to exercise reasonable care at and prior to the time of said damages, and by reason thereof, any 2 recovery by Cross-Complainants against BART must be reduced by an amount equal to the 3 proportionate fault of said third parties. 4 TWELFTH AFFIRMATIVE DEFENSE 5 (No Duty) 6 12. BART is informed and believes, and on that basis alleges, that BART owed no duty 7 or obligation to the decedents Rolando Glorioso and/or Susana Glorioso or Cross-Complainants. 8 THIRTEENTH AFFIRMATIVE DEFENSE 9 (No Causation) 10 13. BART is informed and believes, and on that basis alleges, that there is no causal 11 relationship between any injuries or damages allegedly sustained by the decedents Rolando Glorioso 12 and/or Susana Glorioso or Cross-Complainants and any alleged wrongful act by BART. 13 FOURTEENTH AFFIRMATIVE DEFENSE 14 (Proposition 51) 15 14. BART is informed and believes, and on that basis alleges, that parties both served 16 and unserved, named and unnamed, Plaintiffs, and Cross-Complainants, are in some manner or 17 percentage responsible for Plaintiffs’ and/or Cross-Complainants’ damages or non-economic 18 damages, if any, and an order from the trier of fact is required that sets forth separate judgments, 19 against each and every party, named and unnamed, served and unserved, Plaintiffs, and Cross- 20 Complainants, for the amount of all non-economic damages that may be recovered by Plaintiffs 21 and/or Cross-Complainants in direct proportion to the percentage of fault of each party, named and 22 unnamed, served and unserved, Plaintiffs, and Cross-Complainants, pursuant to Civil Code section 23 1431.2. 24 FIFTEENTH AFFIRMATIVE DEFENSE 25 (Failure to Mitigate) 26 15. Cross-Complainants, Plaintiffs, and/or the decedents Rolando Glorioso and Susana 27 Glorioso, though under a duty to do so, failed and neglected to mitigate their alleged damages and 28 therefore cannot recover against BART, whether as alleged or otherwise. LEWIS BRISBOIS 92950052.1 5 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 (Laches) 3 16. Cross-Complainants and/or Plaintiffs have unreasonably delayed in bringing this 4 action to the prejudice of BART, and therefore, the Cross-Complaint is barred by the doctrine of 5 laches. 6 SEVENTEENTH AFFIRMATIVE DEFENSE 7 (Unclean Hands) 8 17. Cross-Complainants and/or Plaintiffs are barred by the equitable doctrine of unclean 9 hands from obtaining the relief requested. 10 EIGHTEENTH AFFIRMATIVE DEFENSE 11 (Waiver) 12 18. Cross-Complainants and/or Plaintiffs have engaged in conduct and activities 13 sufficient to constitute a waiver of any alleged breach of duty, negligence, act, omission, or other 14 conduct, if any. 15 NINETEENTH AFFIRMATIVE DEFENSE 16 (Lack of Evidentiary Support for Claims) 17 19. BART is informed and believes, and on that basis alleges, that Cross-Complainants 18 brought claims against BART without having evidentiary support for same. Accordingly, pursuant 19 to Code of Civil Procedure section 128.7, BART requests reasonable expenses, including attorneys’ 20 fees. 21 TWENTIETH AFFIRMATIVE DEFENSE 22 (Estoppel) 23 20. Cross-Complainants and/or Plaintiffs engaged in conduct and activities with respect 24 to the subject of the Cross-Complaint, and, by reason of said activities and conduct, are estopped 25 from asserting any claims for damages or seeking any other relief against BART. 26 / / / 27 / / / 28 / / / LEWIS BRISBOIS 92950052.1 6 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 TWENTY-FIRST AFFIRMATIVE DEFENSE 2 (Non-Delegable Duty) 3 21. BART is informed and believes, and on that basis alleges, that it cannot be held liable 4 to Plaintiffs or Cross-Complainants because other parties owed a non-delegable duty of care to the 5 decedents Rolando Glorioso and/or Susana Glorioso, Plaintiffs, and/or Cross-Complainants, which 6 duty, if breached at all, was not breached through any conduct legally attributable to BART. 7 TWENTY-SECOND AFFIRMATIVE DEFENSE 8 (Intervening and Superseding Causes) 9 22. The injuries and damages allegedly suffered by the decedents Rolando Glorioso 10 and/or Susana Glorioso, Plaintiffs, and/or Cross-Complainants were proximately caused by or 11 contributed to by the acts of other persons and/or other entities, and said acts were an intervening 12 and superseding cause of the injuries and damages, if any, of the decedents Rolando Glorioso and/or 13 Susana Glorioso, Plaintiffs, and/or Cross-Complainants, thus barring Cross-Complainants from any 14 recovery against BART. 15 TWENTY-THIRD AFFIRMATIVE DEFENSE 16 (Assumption of Risk) 17 23. The Cross-Complaint is barred under the doctrine of primary assumption of risk 18 because the decedents Rolando Glorioso and/or Susana Glorioso, Plaintiffs, and/or Cross- 19 Complainants voluntarily participated in the activities alleged in the Complaint and/or Cross- 20 Complaint and knew of and appreciated the specific risk which resulted in their alleged damages, 21 thereby relieving BART of any legal duty to protect them from that risk. 22 TWENTY-FOURTH AFFIRMATIVE DEFENSE 23 (Lack of Notice) 24 24. BART had no notice, either actual or constructive, of any allegedly dangerous 25 condition; nor did BART have any duty concerning the subject area where the incident purportedly 26 occurred. 27 / / / 28 / / / LEWIS BRISBOIS 92950052.1 7 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (Trivial Defect Doctrine) 3 25. Upon information and belief, the condition complained of in the Complaint and/or 4 Cross-Complaint herein was not dangerous because any risk created by the condition was of such a 5 minor, trivial, or insignificant nature in view of the surrounding circumstances that no reasonable 6 person would conclude that the condition created a substantial risk of injury when such property or 7 adjacent property was used with due care in a manner in which it was reasonably foreseeable that it 8 would be used. (See Gov. Code § 830.2.) 9 TWENTY-SIXTH AFFIRMATIVE DEFENSE 10 (Reasonableness of Public Entity and/or Employee) 11 26. Any acts or omissions that created the condition complained of herein, and the action 12 taken to protect against any risk of injury created by the condition, or failure to take such action, 13 were reasonable and BART is therefore immune from liability herein under the provisions of 14 Government Code sections 835.4 and 840.6. 15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 16 (Acts of God) 17 27. The damages complained of in the Complaint and the Cross-Complaint, if any, 18 resulted from an unforeseeable act of God, thereby barring, either partially or totally, Plaintiffs’ and 19 Cross-Complainants’ claimed damages. 20 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 21 (Reservation) 22 28. BART presently has insufficient knowledge or information on which to form a belief 23 as to whether it may have additional, as yet unstated affirmative defenses available. BART reserves 24 the right to assert additional defenses in the event that discovery indicates they would be appropriate. 25 WHEREFORE, BART prays for judgment as follows: 26 1. That Cross-Complainants take nothing by way of their Cross-Complaint; 27 2. That judgment be entered for BART and against Cross-Complainants; 28 3. That BART recovers any and all fees, costs, and expenses it is authorized to recover LEWIS BRISBOIS 92950052.1 8 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 under the law, including but not limited to attorney's fees; 2 4. For attorneys’ fees under Code of Civil Procedure section 1038; and 3 5. For such other and further relief as the Court may deem just and proper. 4 DATED: May 2, 2023 LEWIS BRISBOIS BISGAARD & SMITH LLP 5 6 By: 7 Christopher J. Nevis Steffanie A. Malla 8 Attorneys for Defendant/Cross-Defendant/Cross- Complainant, SAN FRANCISCO BAY AREA 9 RAPID TRANSIT DISTRICT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS 92950052.1 9 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 CALIFORNIA STATE COURT PROOF OF SERVICE 2 Regina Glorioso-Emerson, et al. v. City of Millbrae, et al. San Mateo County Superior Court, Case No. 22-CIV-05181 3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 At the time of service, I was over 18 years of age and not a party to this action. My 5 business address is 45 Fremont Street, Suite 3000, San Francisco, CA 94105. 6 On May 2, 2023, I served true copies of the following document(s): 7 CROSS-DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY 8 TRANSIT DISTRICT AND PENINSULA CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 9 I served the documents on the following persons at the following addresses (including fax 10 numbers and e-mail addresses, if applicable): 11 SEE ATTACHED SERVICE LIST 12 The documents were served by the following means: 13 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the 14 documents to be sent from e-mail address lucia.suazo@lewisbrisbois.com to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the 15 transmission, any electronic message or other indication that the transmission was unsuccessful. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. 18 Executed on May 2, 2023, at Pittsburg, California. 19 20 Lucia Suazo 21 22 23 24 25 26 27 28 LEWIS BRISBOIS 92950052.1 10 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT 1 SERVICE LIST 2 Regina Glorioso-Emerson, et al. v. City of Millbrae, et al. San Mateo County Superior Court, Case No. 22-CIV-05181 3 Attorney for Plaintiffs Attorney for Plaintiffs 4 Robert J. Ounjian, Esq. Lemuel L. Garcia, Esq. 5 Paul S. Zuckerman, Esq. Lem Garcia Law, PC Carpenter & Zuckerman, Esq. 1720 West Cameron Ave., Suite 210 6 8827 West Olympic Blvd. West Covina, California 91790 Beverly Hills, California 90211 Tel.: (626) 337-1111 7 Tel.: (310) 273-1230 Fax: (626) 337-1112 Fax: (310) 858-1063 Email: lem@lemgarcialaw.com 8 Email: robert@cz.law Email: paul@cz.law 9 Email: steve@cz.law Email: angela@cz.law 10 Attorneys for Defendants/Cross-Complainants, Attorneys for Defendant, State of California, 11 San Mateo County and Transit District acting by and through the Department of Peninsula Corridor Joint Powers Board Transportation 12 Kenneth D. Simoncini, Esq. Erin E. Holbrook, Esq. 13 Eric Steinle, Esq. G. Michael Harrington, Esq. Simoncini & Associates Samuel C. Law, Esq. 14 1694 The Alameda California Department of Transportation – San Jose, California 95126 Legal 15 Tel.: (408) 280-7711 111 Grand Avenue, Suite 11-100 Fax: (408) 280-1330 Oakland, California 94612 16 Email: kds@simoncini-law.com Tel.: (510) 433-9100 Fax: (510) 433-9167 17 Email: mike.harrington@dot.ca.gov Email: samuel.c.law@dot.ca.gov 18 Attorneys for Defendant, City of Millbrae 19 Todd H. Master, Esq. 20 Ridley Master 1900 O’Farrell Street, Suite 280 21 San Mateo, California 94403 Tel.: (650) 365-7715 22 Fax: (650) 364-5297 Email: tmaster@hrmrlaw.com 23 Email: fkelly@hrmrlaw.com 24 25 26 27 28 LEWIS BRISBOIS 92950052.1 11 Case No. 22-CIV-05181 BISGAARD & SMITH LLP ANSWER TO CROSS-COMPLAINANTS SAN MATEO COUNTY TRANSIT DISTRICT AND PENINSULA ATTORNEYS AT LAW CORRIDOR JOINT POWERS BOARD’S FIRST AMENDED CROSS-COMPLAINT