Preview
E-FILED
Robert T. Bryson, Esq. (SBN 156953) 10/10/2017 2:56 PM
Kevin M. Pollack, Esq. (SBN 272786) FRESNO COUNTY SUPERIOR COURT
ROBINS CLOUD LLP By: T. Moua, Deputy
808 Wilshire Boulevard, Suite 450
Santa Monica, California 90401
Tel.: (310) 929-4200 / Fax: (310) 566-5900
rbryson@robinscloud.com
kpollack@robinscloud.com
Attorneys for Plaintiff,
SHARON LEE MACK
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
10
SHARON LEE MACK, ) CASENO: 17CECG03458
il
) [UNLIMITED CIVIL ACTION]
12 Plaintiff,
)
13 vs. ) COMPLAINT FOR DAMAGES AND
) DEMAND FOR JURY TRIAL
14
CERTIFIED ROI, a California Corporation;
15 CARWIDE.COM; RENTFIT.COM; CITY OF)
)
FRESNO; and DOES 1-50, inclusive, )
16
)
17 Defendants. )
)
18
19 Plaintiff, SHARON LEE MACK (“Mack” or “Plaintiff’), by and through the undersigned
20 counsel, hereby brings this Complaint for Damages against Defendants CERTIFIED ROI,
21 CARWIDE.COM, RENTFIT.COM, CITY OF FRESNO, and DOES 1-59, inclusive.
22 PARTIES, VENUE AND JURISDICTION
23 1 At all times herein mentioned, Plaintiff Sharon Mack was and is a resident of the City of
24 Fresno, State of California.
25 2. Plaintiff is informed and believes and thereon alleges that at all time relevant hereto,
26 Defendant CERTIFIED ROI is a California corporation doing business in the State of California, and
27 that its principal place of business is located in the City of Fresno.
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COMPLAINT FOR DAMAGES
3 Plaintiff is informed and believes and thereon alleges that Defendant RENTFIT.COM is
California business of unknown entity type that is regularly engaged in business in the City of Fresno,
and has its principal place of business located in the City of Fresno.
4 Plaintiff is informed and believes and thereon alleges that Defendant CARWIDE.COM is
California business of unknown entity type that is regularly engaged in business in the City of Fresno.
5 Defendant CITY OF FRESNO is a governmental entity organized and existing under the
laws of the State of California.
6 Plaintiff does not know the true names and identities of those Defendants designated as
DOES 1 through 50, inclusive, but allege that each of the said fictitiously named Defendants was
10 intentionally, negligently, and unlawfully responsible for the events herein described, and for the
11 injuries and damages sustained by Plaintiff. Plaintiff is informed and believes, and thereon alleges that
12 at all times herein mentioned, DOES 1-50 perpetrated some or all of the wrongful acts alleged herein
13 and at least one of such fictitiously named DOE Defendants is a resident of the State of California.
14 Therefore, each is responsible in some manner for the allegations set forth herein, and is jointly and
15 severally liable to Plaintiff. Plaintiff will seek leave of court to amend this Complaint to state the true
16 name and capacities of such fictitiously named Doe Defendants when ascertained.
17 7. The combined acts and/or omissions of each Defendant resulted in indivisible injuries to
18 Plaintiff. Each of the above-named Defendants is a joint tortfeasor and/or agent of one another and is
19 jointly and severally liable to Plaintiff for the negligent and/or intentional acts and omissions alleged
20 herein. Each of the above-named Defendants directed, authorized or ratified the conduct of each and
21 every other Defendant and/or their employees or agents, or are jointly and vicariously liable for the acts
22 of each other Defendant. At all relevant times, each Defendant acted in all aspects as the agent,
23 employee and/or alter ego of each other.
24 8 Defendants CERTIFIED ROI, CARWIDE.COM, RENTFIT.COM, CITY OF FRESNO
25 and Does 1-50 are collectively referred to as Defendants.
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COMPLAINT FOR DAMAGES
9 This Court has personal jurisdiction over Defendants. Defendants are and were at all
relevant times residents of and/or authorized to conduct business in the State of California and
Defendants conducted such business within the State including the performance of acts that caused or
contributed to the harm giving rise to this action.
10. Venue in this matter is proper in the County of Fresno because that it where the injury
complained of occurred. See C.C.P. § 395.
ll. This Court has subject matter jurisdiction of this matter, as the action incorporates an
amount in controversy which exceeds the minimum jurisdictional limits.
E XHAUSTION OF ADMINISTRATIVE REMEDIES
10 12. Plaintiff exhausted all her administrative remedies prior to bringing this action.
11 13. On February 28, 2017, Plaintiff timely served Defendant with a Government Claim
12 pursuant to California Government Code § 910. Plaintiff received on August 29, 2017 a Notice of
13 Rejection of Claim indicating that Plaintiffs claim had been rejected by operation of law on
14 April 14, 2017. (A true and correct copy of which is attached hereto as Exhibit 1 and incorporated by
15 reference.) This action was timely filed within six (6) months of said rejection letter.
16 FACTUAL BACKGROUND
17 14. Plaintiff is a 67 year old woman who resides in the City of Fresno. On or about
18 September 1, 2016, at approximately 4:35 p.m., Plaintiff was leaving work and attempting to catch the
19 local bus (Bus #430) to make her way home. At the time, and unbeknownst to Plaintiff, Defendants
20 had removed a magazine rack/newsstand that was located close to the bus stop on First Street near East
21 Herndon. Although Defendants had removed the newsstand/magazine rack, the metal spikes used to
22 secure the newsstand/magazine rack to the sidewalk were left protruding from the sidewalk.
23 15. Defendants did nothing to call attention to the danger the metal spikes posed to
24 pedestrians such as Plaintiff.
25 16. As Plaintiff was walking toward the bus stop, she tripped over the metal spikes, and fell
26 to the pavement.
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COMPLAINT FOR DAMAGES
17. As a result of Defendants’ negligence, Plaintiff sustained physical injuries, pain and
suffering which necessitated medical treatment. Plaintiff was also disabled from work for a period of
time.
FIRST CAUSE OF ACTION
Negligence
(By Plaintiff as Against Defendants CERTIFIED ROI, CARWIDE.COM, RENTFIT.COM)
18. Plaintiff incorporates by reference each and every paragraph of this Complaint as though
set forth in full in this cause of action.
19. Defendants owed Plaintiff a duty to exercise reasonable care.
10 20. Defendants failed to exercise reasonable care as Defendants, after removing the
11 newsstand/magazine rack from the sidewalk, left metal spikes protruding from the sidewalk in an
12 unsafe manner and without any notification to pedestrians to avoid the danger. At all relevant times, it
13 was foreseeable to Defendants that upon leaving the unmarked metal spikes protruding from the
14 sidewalk in a high foot traffic area such the location where Plaintiff was injured, pedestrians, such as
15 Plaintiff, were likely to, and would sustain injury as a result of the metal spikes.
16 21. As a direct and proximate result of Defendants’ conduct, Plaintiff tripped over the metal
17 spikes while walking to the bus stop, fell to the pavement. As a further direct and proximate result of
18 Defendants’ conduct, Plaintiff has suffered and continues to suffer from physical injuries.
19 22. As a direct and proximate result of Defendants’ conduct, Plaintiff has suffered, and
20 continues to suffer, general damages, pain, suffering and emotional distress in an amount that will be
21 proven at time of trial.
22 23. As a further direct and proximate result of Defendants’ conduct, Plaintiff has suffered,
23 and continues to suffer, economic loss including, but not limited to, loss of earnings, loss of earning
24 potential, out-of-pocket medical expenses in an amount that will be proven at time of trial.
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27 Mt
28 M/
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COMPLAINT FOR DAMAGES
SECOND CAUSE OF ACTION
(@angerous Condition of Public Property - Govt. Code §§ 830, 835
Against City of Fresno and DOES 1 through 50)
24. Plaintiffs hereby incorporate each of the preceding paragraphs, as though fully set forth
herein.
25. At all times mentioned herein, Defendant City’of Fresno owned, managed and maintained
the public sidewalk where the newsstand/magazine rack was located and later removed, and where the
metal spikes protruding from the sidewalk were negligently maintained and appeared when Plaintiff
was injured.
10 26. The City of Fresno knew or should have known that failing to ensure the removal of the
ll metal spikes and failing to implement safety precautions concerning the same was likely to and would
12 create an unsafe condition on public property that was likely to and would cause foreseeable injury to
13 person(s) and/or property.
14 27. As a direct and proximate result of the City of Fresno’s knowledge of the dangerous
15 condition specified above, and its failure to reasonably act to prevent injury and damage to persons and
16 property, Plaintiff has suffered injuries to her person, economic interests, general pain and suffering,
17 and emotional distress, all as stated herein. All of the above damages are in an amount presently
18 unknown but will be established at the time of trial.
19 PRAYER FOR RELIEF
20 WHEREFORE, Plaintiff prays for judgment against Defendant, as follows:
21 1 For general damages in a sum in excess of the minimum jurisdiction of this Court;
22 2 For special damages, including but not limited to past and future medical expenses, loss
23 of earnings, loss of earning capacity, out-of-pocket medical expenses according to proof;
24 For costs of suit and pre-judgment interest, according to proof; and
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COMPLAINT FOR DAMAGES
1 4 For such other and further relief as the Court deems just and proper.
2
3|| Dated: October 10, 2017 ROBINS CLOUD LLP
wy ZN
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Robert T. Bryson, Esq.
6 Kevin M. Pollack, Esq.
Attorneys for Plaintiff, SHARON LEE MACK
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a jury trial on all issues so triable.
10
ZA
Dated: October 10, 2017 ROBINS CLOUD LLP
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14 Robert T. Bryson, Esq.
Kevin M. Pollack, Esq.
15 Attorneys for Plaintiff, SHARON LEE MACK
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COMPLAINT FOR DAMAGES
EXHIBIT 1
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E-FILED Robert T. Bryson, Esq. (SBN 156953) 10/10/2017 2:56 PM Kevin M. Pollack, Esq. (SBN 272786) FRESNO COUNTY SUPERIOR COURT ROBINS CLOUD LLP By: T. Moua, Deputy 808 Wilshire Boulevard, Suite 450 Santa Monica, California 90401 Tel.: (310) 929-4200 / Fax: (310) 566-5900 rbryson@robinscloud.com kpollack@robinscloud.com Attorneys for Plaintiff, SHARON LEE MACK SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO 10 SHARON LEE MACK, ) CASENO: 17CECG03458 il ) [UNLIMITED CIVIL ACTION] 12 Plaintiff, ) 13 vs. ) COMPLAINT FOR DAMAGES AND ) DEMAND FOR JURY TRIAL 14 CERTIFIED ROI, a California Corporation; 15 CARWIDE.COM; RENTFIT.COM; CITY OF) ) FRESNO; and DOES 1-50, inclusive, ) 16 ) 17 Defendants. ) ) 18 19 Plaintiff, SHARON LEE MACK (“Mack” or “Plaintiff’), by and through the undersigned 20 counsel, hereby brings this Complaint for Damages against Defendants CERTIFIED ROI, 21 CARWIDE.COM, RENTFIT.COM, CITY OF FRESNO, and DOES 1-59, inclusive. 22 PARTIES, VENUE AND JURISDICTION 23 1 At all times herein mentioned, Plaintiff Sharon Mack was and is a resident of the City of 24 Fresno, State of California. 25 2. Plaintiff is informed and believes and thereon alleges that at all time relevant hereto, 26 Defendant CERTIFIED ROI is a California corporation doing business in the State of California, and 27 that its principal place of business is located in the City of Fresno. 28 Ml 1 COMPLAINT FOR DAMAGES 3 Plaintiff is informed and believes and thereon alleges that Defendant RENTFIT.COM is California business of unknown entity type that is regularly engaged in business in the City of Fresno, and has its principal place of business located in the City of Fresno. 4 Plaintiff is informed and believes and thereon alleges that Defendant CARWIDE.COM is California business of unknown entity type that is regularly engaged in business in the City of Fresno. 5 Defendant CITY OF FRESNO is a governmental entity organized and existing under the laws of the State of California. 6 Plaintiff does not know the true names and identities of those Defendants designated as DOES 1 through 50, inclusive, but allege that each of the said fictitiously named Defendants was 10 intentionally, negligently, and unlawfully responsible for the events herein described, and for the 11 injuries and damages sustained by Plaintiff. Plaintiff is informed and believes, and thereon alleges that 12 at all times herein mentioned, DOES 1-50 perpetrated some or all of the wrongful acts alleged herein 13 and at least one of such fictitiously named DOE Defendants is a resident of the State of California. 14 Therefore, each is responsible in some manner for the allegations set forth herein, and is jointly and 15 severally liable to Plaintiff. Plaintiff will seek leave of court to amend this Complaint to state the true 16 name and capacities of such fictitiously named Doe Defendants when ascertained. 17 7. The combined acts and/or omissions of each Defendant resulted in indivisible injuries to 18 Plaintiff. Each of the above-named Defendants is a joint tortfeasor and/or agent of one another and is 19 jointly and severally liable to Plaintiff for the negligent and/or intentional acts and omissions alleged 20 herein. Each of the above-named Defendants directed, authorized or ratified the conduct of each and 21 every other Defendant and/or their employees or agents, or are jointly and vicariously liable for the acts 22 of each other Defendant. At all relevant times, each Defendant acted in all aspects as the agent, 23 employee and/or alter ego of each other. 24 8 Defendants CERTIFIED ROI, CARWIDE.COM, RENTFIT.COM, CITY OF FRESNO 25 and Does 1-50 are collectively referred to as Defendants. 26 Ml 27 H/ 28 MM) 2 COMPLAINT FOR DAMAGES 9 This Court has personal jurisdiction over Defendants. Defendants are and were at all relevant times residents of and/or authorized to conduct business in the State of California and Defendants conducted such business within the State including the performance of acts that caused or contributed to the harm giving rise to this action. 10. Venue in this matter is proper in the County of Fresno because that it where the injury complained of occurred. See C.C.P. § 395. ll. This Court has subject matter jurisdiction of this matter, as the action incorporates an amount in controversy which exceeds the minimum jurisdictional limits. E XHAUSTION OF ADMINISTRATIVE REMEDIES 10 12. Plaintiff exhausted all her administrative remedies prior to bringing this action. 11 13. On February 28, 2017, Plaintiff timely served Defendant with a Government Claim 12 pursuant to California Government Code § 910. Plaintiff received on August 29, 2017 a Notice of 13 Rejection of Claim indicating that Plaintiffs claim had been rejected by operation of law on 14 April 14, 2017. (A true and correct copy of which is attached hereto as Exhibit 1 and incorporated by 15 reference.) This action was timely filed within six (6) months of said rejection letter. 16 FACTUAL BACKGROUND 17 14. Plaintiff is a 67 year old woman who resides in the City of Fresno. On or about 18 September 1, 2016, at approximately 4:35 p.m., Plaintiff was leaving work and attempting to catch the 19 local bus (Bus #430) to make her way home. At the time, and unbeknownst to Plaintiff, Defendants 20 had removed a magazine rack/newsstand that was located close to the bus stop on First Street near East 21 Herndon. Although Defendants had removed the newsstand/magazine rack, the metal spikes used to 22 secure the newsstand/magazine rack to the sidewalk were left protruding from the sidewalk. 23 15. Defendants did nothing to call attention to the danger the metal spikes posed to 24 pedestrians such as Plaintiff. 25 16. As Plaintiff was walking toward the bus stop, she tripped over the metal spikes, and fell 26 to the pavement. 27 Ml 28 Mf 3 COMPLAINT FOR DAMAGES 17. As a result of Defendants’ negligence, Plaintiff sustained physical injuries, pain and suffering which necessitated medical treatment. Plaintiff was also disabled from work for a period of time. FIRST CAUSE OF ACTION Negligence (By Plaintiff as Against Defendants CERTIFIED ROI, CARWIDE.COM, RENTFIT.COM) 18. Plaintiff incorporates by reference each and every paragraph of this Complaint as though set forth in full in this cause of action. 19. Defendants owed Plaintiff a duty to exercise reasonable care. 10 20. Defendants failed to exercise reasonable care as Defendants, after removing the 11 newsstand/magazine rack from the sidewalk, left metal spikes protruding from the sidewalk in an 12 unsafe manner and without any notification to pedestrians to avoid the danger. At all relevant times, it 13 was foreseeable to Defendants that upon leaving the unmarked metal spikes protruding from the 14 sidewalk in a high foot traffic area such the location where Plaintiff was injured, pedestrians, such as 15 Plaintiff, were likely to, and would sustain injury as a result of the metal spikes. 16 21. As a direct and proximate result of Defendants’ conduct, Plaintiff tripped over the metal 17 spikes while walking to the bus stop, fell to the pavement. As a further direct and proximate result of 18 Defendants’ conduct, Plaintiff has suffered and continues to suffer from physical injuries. 19 22. As a direct and proximate result of Defendants’ conduct, Plaintiff has suffered, and 20 continues to suffer, general damages, pain, suffering and emotional distress in an amount that will be 21 proven at time of trial. 22 23. As a further direct and proximate result of Defendants’ conduct, Plaintiff has suffered, 23 and continues to suffer, economic loss including, but not limited to, loss of earnings, loss of earning 24 potential, out-of-pocket medical expenses in an amount that will be proven at time of trial. 25 Ml 26 MI 27 Mt 28 M/ 4 COMPLAINT FOR DAMAGES SECOND CAUSE OF ACTION (@angerous Condition of Public Property - Govt. Code §§ 830, 835 Against City of Fresno and DOES 1 through 50) 24. Plaintiffs hereby incorporate each of the preceding paragraphs, as though fully set forth herein. 25. At all times mentioned herein, Defendant City’of Fresno owned, managed and maintained the public sidewalk where the newsstand/magazine rack was located and later removed, and where the metal spikes protruding from the sidewalk were negligently maintained and appeared when Plaintiff was injured. 10 26. The City of Fresno knew or should have known that failing to ensure the removal of the ll metal spikes and failing to implement safety precautions concerning the same was likely to and would 12 create an unsafe condition on public property that was likely to and would cause foreseeable injury to 13 person(s) and/or property. 14 27. As a direct and proximate result of the City of Fresno’s knowledge of the dangerous 15 condition specified above, and its failure to reasonably act to prevent injury and damage to persons and 16 property, Plaintiff has suffered injuries to her person, economic interests, general pain and suffering, 17 and emotional distress, all as stated herein. All of the above damages are in an amount presently 18 unknown but will be established at the time of trial. 19 PRAYER FOR RELIEF 20 WHEREFORE, Plaintiff prays for judgment against Defendant, as follows: 21 1 For general damages in a sum in excess of the minimum jurisdiction of this Court; 22 2 For special damages, including but not limited to past and future medical expenses, loss 23 of earnings, loss of earning capacity, out-of-pocket medical expenses according to proof; 24 For costs of suit and pre-judgment interest, according to proof; and 25 M1 26 MI 27 HI 28 Ml 5 COMPLAINT FOR DAMAGES 1 4 For such other and further relief as the Court deems just and proper. 2 3|| Dated: October 10, 2017 ROBINS CLOUD LLP wy ZN 4 5 Robert T. Bryson, Esq. 6 Kevin M. Pollack, Esq. Attorneys for Plaintiff, SHARON LEE MACK DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial on all issues so triable. 10 ZA Dated: October 10, 2017 ROBINS CLOUD LLP 12 13 14 Robert T. Bryson, Esq. Kevin M. Pollack, Esq. 15 Attorneys for Plaintiff, SHARON LEE MACK 16 17 18 19 20 21 22 23 24 25 26 27 28 6 COMPLAINT FOR DAMAGES EXHIBIT 1