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FREEMAN MATHIS & GARY, LLP
Lizel R. Cerezo, Esq., SBN 224655
550 South Hope Street, 22nd Floor
Los Angeles, California 90071-2627
(213) 615-7000 — Fax: (833) 264-2083
Lizel.Cerezo@ fmglaw.com
Attomeys for Defendant
OREY DIS LEZCANO PACHECO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF KERN
10
11 JAMES RAMIREZ, an individual; CASE NO.: BCV-23-102262
[Assigned to Hon. Thomas S. Clark, Dept. 17]
12 Plaintiff,
13 vs. NOTICE TO ADVERSE PARTIES AND
THE SUPERIOR COURT OF REMOVAL
14 OREY DIS LEZCANO PACHECO, an OF ACTION
individual; OMAR FRAGA ZAYAS, an
15 individual; YANISLEY DY CALVO
RUMAY OR, an individual; F&F Amended Complaint Filed: July 26, 2023
16 TRANSPORT, LLC, a business entity; and Trial Date: None Set
DOES 1 through 50, Inclusive,
17
Defendants.
18
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20 TO ALL PARTIES
AND THEIR ATTORNEYS OF RECORD, AND TO THE CLERK|
21 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE
22 COUNTY OF KERN:
23 PLEASE TAKE NOTICE that Defendant OREY DIS LEZCANO PACHECO, pursuant to 28
24 U.S.C. § 1441, filed a Notice of Removal of this action in the United States District Court for the
25 Eastem District of California on March 25, 2024. The Superior Court of the State of California,
26 County of Kem, is hereby advised that, pursuant to 28 U.S.C. §§ 1446, the filing of the Notice of
27 Removal in the United States District Court, together with the service and filing of a copy of that
Freeman Mathis
Gary, LP
Atomeys at Law 28 Notice with this Court, effects the removal of the above-entitled action, which can proceed no further
1
NOTICE TO ADVERSE PARTIES AND THE SUPERIOR COURT OF REMOVAL OF ACTION
in this action, unless and until such time as the action may be remanded by order of the United States
District Court. A copy of the Notice of Removal is attached to this Notice as Exhibit 1, and is served
and filed herewith.
Defendants therefore reserve all defenses and objections to Plaintiffs First Amended
Complaint, including but not limited to, lack of personal jurisdiction, improper venue, forum non
conveniens, insufficiency of process, insufficiency of service of process, and failure to state a claim
upon which relief can be granted.
Dated: April 16, 2024 FREEMAN MATHIS & GARY, LLP
eae —
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By:
11
LIZEL R. CEREZO
12 Attomeys for Defendant
OREY DIS LEZCANO PACHECO
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Freeman Mathis
Gary, LP
Atomeys at Law 28
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NOTICE TO ADVERSE PARTIES AND THE SUPERIOR COURT OF REMOVAL OF ACTION
EXHIBIT1
Case 1:24-at-00247 Document1 Filed 03/25/24 Page 1 of 49
FREEMAN MATHIS & GARY, LLP
Lizel R. Cerezo, Esq., SBN 224655
550 South Hope Street, 22nd Floor
Los Angeles, Califomia 90071-2627
(213) 615-7000 - Fax: (833) 264-2083
Lizel.Cerezo@fmglaw.com
Attomeys for Defendant
OREY DIS LEZCANO PACHECO
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA.
10
11 JAMES RAMIREZ, an individual; CASE NO.: 24-247
12 Plaintiff,
13 vs. NOTICE OF REMOVALO!
ACTION UNDER 28 U.S.C. 5 1441
14 OREY DIS BEANO PA CHRO. an
i ivi ZAYA
15 an individual; YANISLEY DY. CALVO
RUMAYO an indivi
16 TRANSPOR LLC, a business entity;
and DOES 1 through 50, Inclusive, Complaint Filed: § 07/13/2023
17
Defendants.
18
19
20 PLEASE TAKE NOTICE that Defendant, OREY DIS LEZCANO PACHECO)
21 hereby removes the above-captioned action from the Superior Court of the State of|
Califomia, County of Kem, where it is currently pending as Case No. BCV-23-
102262, to the United States District Court for the Eastem District of Califomia.
24 Removal is warranted
under 28 U.S.C. §1441(b) because
this is a civil action!
25 over which this Court has subject matter jurisdiction
under 28 U.S.C. §1332, onthe|
26 grounds that complete diversity exists between the parties and the amount in|
27 controversy exceeds the sum of $75,000.
Freeman Mahi
‘Gary, LLP
Altomeys aL Ml
1
NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441
Case 1:24-at-00247 Document1 Filed 03/25/24 Page 2 of 49
Plaintiff is a resident of the State of Texas. Defendant OREY DIS LEZCANO
PACHECO (hereinafter “PACHECO”), is a resident of Nevada. Defendants OMAR!
FRAGA ZAYAS, YANISLEYDY CALVO RUMAY OR, AND F&F TRANSPORT,
LLC have all been dismissed from the state court case. Pursuant to 28 U.S.C.
§1332(c)(1) full diversity exists among the parties in this action since both Plaintiff and]
PACHECO reside outside of Califomia where the state court case is currently venued.
BACKGROUND
On or about July 13, 2023, Plaintiff, JAMES RAMIREZ commenced an action]
in the Superior Court of the State of Califomia
in the County of Kem, entitled
J AMES|
10 RAMIREZ v. OREYDIS LEZCANO PACHECO, an individual; OMAR FRAGA|
11 ZAYAS, an individual; YANISLEYDY CALVO RUMAYOR, an individual; F&F
12 TRANSPORT, LLC, a business entity; and DOES 1 through 50, Inclusive; Case No.
13 BCV-23-102262. On July 26, 2023, Plaintiff filed a First Amended Complaint. On|
14 January 12, 2024, Plaintiff served PACHECO’s counsel of record with a Notice and|
15 Acknowledgment of Receipt which was signed and retumed on February 1, 2024.
16 Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders served]
17 upon Defendant PACHECO are attached hereto as Exhibit A. Plaintiffs complaint}
18 asserts a single cause of action for Negligence against PACHECO.
19 GROUNDS FOR REMOVAL
20 This is a civil action
over which this Court has subject matter jurisdiction
under
21 28 U.S.C. §1332, which confers original jurisdiction of “all civil actions where the}
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and]
costs, and is between... citizens of different States and in which citizens or subjects}
24 of a foreign state are additional parties[.]”
25 AMOUNT INCONTROVERSY
26 The amount in controversy exceeds $75,000.00, as evidenced by Plaintiff’s|
27 Statement of Damages which is attached hereto as Exhibit D.
Freeman Mathis
‘Gary, LLP
‘Atomeys at Lan
2
NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441
Case 1:24-at-00247 Document1 Filed 03/25/24 Page 3 of 49
DIVERSITY OF CITIZENSHIP
Plaintiff is a resident of the State of Texas. Defendant OREY DIS LEZCANO
PACHECO is a resident of Nevada Defendant’ OMAR FRAGA ZAYAS,
YANISLEYDY CALVO RUMAYOR, AND F&F TRANSPORT, LLC, residents of|
Texas, were all dismissed from the state court case on March 13, 2024. Pursuantto 28}
U.S.C. §1332(c)(1) full diversity exists among the parties in this action since both|
Plaintiff and PACHECO reside outside of Califomia where the state court case is
currently venued.
TIMING OF REMOVAL
10 Counsel for Plaintiff and PACHECO had been in communication regarding the|
11 dismissal of Defendants OMAR FRAGA ZAYAS, YANISLEYDY CALVO)
12 RUMAY OR, AND F&F TRANSPORT, LLC, residents of Texas (emails attached as|
13 Exhibit E). Plaintiff agreed to dismiss Defendants OMAR FRAGA ZAYAS,
14 YANISLEYDY CALVO RUMAY OR, AND F&F TRANSPORT, LLC and dismissal
15 ‘was entered
as to said Defendants on March 13, 2023. Once the dismissal was entered,
16 diversity jurisdiction was met.
17 Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders|
18 served upon Defendant PACHECO are attached hereto as Exhibit A. Pursuant
to 28
19 U.S.C. § 1446(d), a Notice to Adverse Parties of Removal to Federal Court, attached]
20 hereto
as Exhibit B, together
with this Noticeof Removal, is being served
upon|
21 counsel for Plaintiff and will be filed with the Clerk of the Superior Court of the State}
of Califomia, County of Kem. A copy of Defendant PACHECO’s Answer is attached]
hereto
as Exhibit C.
24 Based on the foregoing, this Court has jurisdiction over this action. No previous|
25 application has been made for the relief requested herein. Accordingly, this action is}
26 properly removed.
27 WHEREFORE, Defendant files this Notice of Removal so that the entire action]
Freeman Mathis
‘Gary, LLP
‘Atomeys at Lan 28 | JAMES RAMIREZ.v. OREYDIS LEZCANO PACHECO, an individual; OMAR FRAGA|
3
NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441
Case 1:24-at-00247 Document1 Filed 03/25/24 Page 4 of 49
1} ZAYAS, an individual; YANISLEYDY CALVO RUMAYOR, an individual; F&F
2] TRANSPORT, LLC, a business entity; and DOES 1 through 50, Inclusive; Case No.
3] BCV-23-102262, now pending in the Superior Court of Califomia, Kem County, shall|
4 || be removedto this Court
for all further proceedings.
5
6} Dated: March 25, 2024 FREEMAN MATHIS & GARY, LLP
7
By:
aR
LIZEL R. CEREZO
10 OREY SP EZCANO PACHECO
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Freeman Mathis
‘Gary, LLP
‘Atomeys at Lan
4
NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441
Case 1:24-at-00247 Document1 Filed 03/25/24 Page 5 of 49
EXHIBIT A
Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 6 of 49
kin
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ELECTRONICALLY FILED *2>
GOOD|GUSTAFSON|AUMA
IS LLP
7/26/2023 11:15 AM
Kern County Superior Court Q2
Christopher T, Aumais, SBN By Vanessa Castro, Deputy
24990]
cta@ allp.com
J.R. McCorkle, SBN 339594
irm wUpog Cc
2330 Westwood Bivd., Suite 103
Los Angele s, alifornia 90064
Tel: (310) 274-4663
|
Attomcys for Plaintiff
JAMES RAMIREZ
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
°| FOR THE COUNTY OF KERN
10
ll
JAMES RAMIREZ, an individual;
Case No. BCV-23-102262
12 Complaint filed: 7/13/23
Plaintiff, (Assigned to the Hon. Thomas S. Clark, Dept. 17)
Zz 13
Vv FIRST AMENDED COMPLAINT FOR
14 DAMAGES:
OREYDIS LEZCANO PACHECO, an
15 individual; OMAR FRAGA ZAYAS, an (1) NEGLIGENCE ~ LACK OF
individual, YANISLEYDY CALVO REASONABLE CARE IN OPERATIO
16 RUMAYOR, an individual: F&F TRANSPORT, OF MOTOR VEHICLE;
LLC, a business entity; and DOES | through 50, (2) NEGLIGENT HIRING, SUPERVISION,
17 inclusive, AND RETENTION; |
(3) NEGLIGENT ENTRUSTMENT
18 Defendants.
-and-
19
DEMAND FOR TRIAL BY JURY
20
21
22 |
Plaintiff JAMES RAMIREZ, an individual, (“PLAINTIFF”) brings causes of action against
23
Defendant OREYDIS LEZCANO PACHECO, an individual; Defendant F&F TRANSPORT, LLC,
24
a business entity, OMAR FRAGA ZAYAS, an individual; YANISLEYDY CALVO RUMAYOR,
25
an individual; and DOES 1 through 50; inclusive, inclusive (collectively “DEFENDANTS”) and
26
each of them, hereby complains and alleges as follows:
ZL
Hf
28
Hf
safes
FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
—__~SS
Case 1:24-at-00247 D ocumen' t 1 Filed 03/25/24 Page 7 of 49
SUMMOFATHR CASE
E Y
O PACHECO, while driving a
] On or about August 9, 2021, Defendant OREYDIS LEZCAN
Fre igh tli ner truc k wit h an att ach ed gre y 200 8 Fon tai ne Fla tbe d, att emp ted to
3] red 2008 20 Century
4] merge into the left lane, dire ctly into the path of Plai ntif f JAM ES RAM IRE Z, driv ing a red 2015
5 | Ford Fiesta. As a result, Defendant OREYDIS LEZCANO PACHECO negligently collided with
RAMIREZ severe and significant bodily
| Plaintiff JAMES RAMIREZ causing Plaintiff JAMES
injuries and general damages (“SUBJECT INCIDENT”).
JURISDICTION AND VENUE
9 2 Jurisdiction and Venue are proper in the County of KERN pursuant to § 395(a) of the
10 | Califomia Code of Civil Procedure. The accident giving rise to the injuries sustained by Plaintiff
11 | JAMES RAMIREZ occurred in an unincorporated area of Kern County on California State Route
12 | 14 southbound just south of Camelot Boulevard.
13 3. The California Superior Court has jurisdiction over all Defendants because, based on
14 information and belief, each is a corporation and/or entity and or person organized under the laws of
|
15 or having its principal place of business in the State of California, a foreign corporation or association
16 | authorized to do business in California and registered with the California Secretary of State, or that
17 has sufficient minimum contacts in California, is a citizen of California, or otherwise intentionally
18 | avails itself of the California market so as to render the exercise of jurisdiction over it by the
19 | California courts consistent with traditional notions of fair play and substantial justice.
20 | THE PARTIES
Zi | 4. Plaintiff JAMES RAMIREZ is an individual, a citizen of the State of Texas, residing in the
22 | County of Willacy, and residing in the city of Lyford.
23 | 5, Defendant OREYDIS LEZCANO PACHECO, an individual, a citizen of the State of
|
24 Nevada, residing in the County of Clark, residing in the city of Las Vegas. Defendant OREYDIS
Zo LEZCANO PACHECO was operating a red 2008 20" Century Freightliner truck, with a Nevada
26 license plate number PTL9000, and an attached grey 2008 Fontaine Flatbed, with a Nevada license
2 plate number 13362PT, owned by Defendant F&F TRANSPORT, LLC.
28 Hf
iP
FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR Te Nae
JURY TRIAL
LS
Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 8 of 49
1 || 6. Plaintiff is informed and believes, and thereon alleges, Defendant F&F TRANSPORT, LLC,
a California Limited Liability Company (hereinafter “F&F”) and/or Does 1-10 are corporations
and/or business entities of a form unknown, which run a commercial vehicle and transportation
company. On information and belief, Defendant F&F continues to systematically conduct business
in the State of California and the State of Nevada.
i Defendant OMAR FRAGA ZAYAS, an individual, a citizen of the State of Texas, residing
in Brazoria County, residing in the city of Alvin. On information and belief, Defendant OMAR
FRAGA ZAYAS is an officer of Defendant F&F.
8 Defendant YANISLEYDY CALVO RUMAYOR an individual, a citizen of the State of
10 Texas, residing in Brazoria County, residing in the city of Alvin. On information and belief,
11 Defendant YANISLEYDY CALVO RUMAYOR is an officer of Defendant F&F.
12 9 Plaintiff is informed and believes, and on the basis of said information and belief, alleges,
13 that on August 9, 2021, at the time of this collision, Defendant OREYDIS LEZCANO PACHECO
14 was a driver who was operating a vehicle owned by Defendant F&F and as such was an agent of
15 Defendant F&F and/or Does 1 through 50.
16 10. The true names and/or capacities, whether individual, corporate, associate, or otherwise, of
17 Defendant DOES | to 50, inclusive, and of each of them, are unknown to Plaintiff, who therefore
18 sues said Defendants by such fictitious names. Plaintiff is informed and believes, and upon such
19 information and belief alleges, that each of the Defendants fictitiously named herein as a DOE is
20 legally responsible, negligently or in some other actionable manner, for the events and happenings
21
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hereinafter referred to and proximately caused the damages to Plaintiff hereinafter alleged. Plaintiff
Z2 | will seek leave of Court to amend this Complaint to assert the true names and/or capacities of such
23 | fictitiously named Defendants when they have been ascertained.
24 id. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein,
25 | Defendants, and each of them, including DOES 1 to 50, were the agents, servants, employees, and/or
26 joint venturers of their co-Defendants, and were, as such, acting within the course, scope, and
2 authority of said agency, employment, and/or joint venture, and that each and every Defendant, as
28
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—$$ __— ee
FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
Case 1:24-at-00247 D t 1 Filed 03/25/24 Page 9 of 49
I aforesaid, when acting as a principal, was negligent in the selection and/or hiring of each and every
2 agent, servant, employee, and/or joint venturer.
3 12; Defendants are liable for the acts of each other through principals of respondeat superior,
4 | agency, ostensible agency, partnership, alter-ego, and other forms of vicarious liability.
5 | GENERAL ALLEGATIONS
6 13. On or about August 9, 2021, Plaintiff JAMES RAMIREZ was a driver of a 2015 Ford Fiesta.
7
Defendant OREYDIS LEZCANO PACHECO, driving a red 2008 20° Century Freightliner truck
8 with an attached grey 2008 Fontaine Flatbed, attempted to merge into the left lane, directly into the
9 path of Plaintiff JAMES RAMIREZ, driving a red 2015 Ford Fiesta, and negligently collided with
10 the rear passenger’s side of his vehicle causing him severe and significant physical
11 and emotional injuries and general damages.
12 FIRST CAUSE OF ACTION
13 Negligence
14 (By Plaintiff Against all Defendants)
15 1 14. Plaintiff JAMES RAMIREZ incorporates by reference, as though fully set forth herein, the
16 contents of the preceding paragraphs, | through 13.
Ie | 15: Defendants and each of them owed Plaintiff JAMES RAMIREZ a duty of reasonable/due
18 care as well as statutory duties established in California Vehicle Code 21658.
19 | 16. At all times mentioned, Defendant OREYDIS LEZCANO PACHECO was operating a red
20 | 2008 20" Century Freightliner track with an attached grey 2008 Fontaine Flatbed, which was owned
21 | by Defendant F&F.
Ze 17. At all times mentioned, Plaintiff JAMES RAMIREZ drove and owned a 2015 Ford Fiesta.
23 18. As a direct and proximate result of Defendant’s negligence, Plaintiff JAMES RAMIREZ
24 suffered significant bodily and emotional injuries. These injuries have caused Plaintiff JAMES
25 |i RAMIREZ to suffer general damages in an amount to be determined by proof at trial.
26 || 19. As a direct and proximate result of the dangerous condition created by the negligence of
24 Defendants, Plaintiff JAMES RAMIREZ was required to, did, and will in the future, employ
28 || physicians and surgeons to examine, treat and care for his injuries. Plaintiff JAMES RAMIREZ will
$$$
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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 10 of 49
a“
employ specially trained persons to supply care and services. As a further direct and proximate result
and substantial factor of the negligence of Defendants, Plaintiff JAMES RAMIREZ did and will in
the future, incur medical and incidental expenses for such care and services. The exact amount of
such expenses is unknown to Plaintiff JAMES RAMIREZ at this time and the exact amounts of said
damages, including prejudgment interest, will be determined according to proof.
20. As a further and direct and proximate result and substantial factor of the negligence of
Defendants, Plaintiff JAMES RAMIREZ was prevented from attending to his usual occupation and
in the future will again be prevented from attending to his usual occupation, all due to his present
and future damage in a sum including prejudgment interest, according to proof.
10 PAs As a direct proximate result of the negligence of Defendants, Plaintiff JAMES RAMIREZ
11 suffered pain, suffering, disfigurement, loss of enjoyment of life, loss of recreation and emotional
12 distress, all in an amount according to proof at trial.
13 SECOND CAUSE OF ACTION
14 Negligent Hiring, Supervision, and Retention
15 (By Plaintiff Against Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS,
16 YANISLEYDY CALVO RUMAYOR; and DOES 1 through 50, inclusive)
17 22. Plaintiff hereby incorporates by reference all paragraphs of this Complaint, and repeats all
18 allegations of said paragraphs as though fully set forth in detail below.
19 23. Upon information and belief, Defendants F&F TRANSPORT, LLC, OMAR FRAGA
20 ZAYAS, YANISLEYDY CALVO RUMAYOR; and DOES 1 through 50, inclusive, hire, train,
a1 | supervise, and/or certify employees and/or agents as drivers, including but not limited to
22 | Defendant OREYDIS LEZCANO PACHECO.
23 24. Defendant OREYDIS LEZCANO PACHECO was unfit and/or incompetent to perform the
24 work for which he was hired, trained, supervised, and/or certified, and Defendants F &F
25 TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR; and DOES
26|| ] through 50, inclusive, knew and/or should have known that Defendant OREYDIS LEZCANO
Za PACHECO was unfit and/or incompetent and that this unfitness and/or incompetence created a risk
28 of bodily harm and injuries to the person of Plaintiff.
-5-—_
FIRST AMENDED COMPLAINT FOR DAMAGES; DEMA
FORND
JURY TRIAL
Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 11 of 49
25. As a direct and proximate result of the acts, omissions, and conduct of Defendants, and each
of them, Plaintiff suffered serious bodily injuries requiring him to receive medical treatment.
26. As a further direct and proximate result of the acts, omissions and conduct of Defendants,
and each of them, Plaintiff suffered serious bodily injuries requiring him to receive medical
treatment.
Lh As a further direct and proximate result of the acts, omissions, and conduct of Defendants,
and each of them, Plaintiff has incurred, continues to incur, and will in the future incur, expenses for
medical procedures, physical therapy, and care of Plaintiff, in an amount according to proof at the
|
time of trial.
10 28. As a further direct and proximate result of the acts, omissions, and conduct of Defendants,
11 and each of them, Plaintiff has suffered and continues to suffer emotional distress, pain, frustration,
12 and inconvenience.
13 29. As a further direct and proximate result of the acts, omissions, and conduct of Defendants,
14 | and each of them, Plaintiff has incurred expenses and losses, which would not have otherwise been
15 incurred. Plaintiff is informed and believes and based thereon alleges that he will continue to incur
16 various losses and expenses, the exact nature and amount of which Plaintiff does not know at this
17 | time. Plaintiff will offer proof thereon at the time of trial.
18 | THIRD CAUSE OF ACTION
19 | Negligent Entrustment
{
20 | (By Plaintiff Against DEFENDANTS F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS,
21 YANISLEYDY CALVO RUMAYOR; and DOES 1 through 50, inclusive)
22 |} 30. Plaintiff hereby incorporates by reference all paragraphs of this Complaint, and repeats all
23 | allegations of said paragraphs as though fully set forth in detail below.
24 | 31. Defendant OREYDIS LEZCANO PACHECO was negligent in his operation of the red 2008
25 20 Century Freightliner truck, with a Nevada license plate number PTL9000, and an attached grey
26 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT at the time of the SUBJECT
Zi INCIDENT.
28
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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 12 of 49
32. Defendant F&F TRANSPORT owned the red 2008 20" Century Freightliner truck, with a
Nevada license plate number PTL9000, and an attached grey 2008 Fontaine Flatbed, with a Nevada
license plate number 13362PT, and Defendant OREYDIS LEZCANO PACHECO operated the red
2008 20" Century Freightliner truck, with a Nevada license plate number PTL9000, and an attached
grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT with the permission of
Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO
RUMAYOR, and DOES 1 through 50, inclusive.
33. At the time of the Subject Incident, when Defendant OREYDIS LEZCANO PACHECO was}
9 || driving the red 2008 20" Century Freightliner truck, with a Nevada license plate number PTL9000,
10 | and an attached grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT,|
11 Defendant OREYDIS LEZCANO PACHECO was acting within the scope of him employment with |
12 | Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO]
13 RUMAYOR, and DOES 1 through 50, inclusive, and driving for the financial gain of Defendants
14 F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR; and
15 DOES 1 through 50, inclusive.
16 34. Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO
17 RUMAYOR, and DOES 1 through 50, inclusive, knew, or should have known, that Defendant
18 OREYDIS LEZCANO PACHECO was incompetent or unfit to drive the red 2008 20" Century
19 Freightliner truck, with a Nevada license plate number PTL9000, and an attached grey 2008 Fontaine
20 | Flatbed, with a Nevada license plate number 13362PT.
21 35. Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO
22 | RUMAYOR, and DOES 1 through 50, inclusive, permitted Defendant OREYDIS LEZCANO}]
23 | PACHECO to drive the red 2008 20" Century Freightliner truck, with a Nevada license plate number|
24 || PTL9000, and an attached grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT
25 at the time of the SUBJECT INCIDENT.
26 || 36. Defendant OREYDIS LEZCANO PACHECO’s incompetence or unfitness to drive the red
27 || 2008 20" Century Freightliner truck, with a Nevada license plate number PTL9000, and an attached
28 |
'
ee
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FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL
Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 13 of 49
grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT at the time of the
SUBJECT INCIDENT was a substantial factor in causing harm to Plaintiff. |
37. As a direct and proximate result of the acts, omissions and conduct of Defendants F&F
4 || TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR, and DOES |
] through 50, inclusive, and each of them, Plaintiff has suffered economic and non-economic
6 || damages and harm. |
PRAYER FOR RELIEF |
8 |
WHEREFORE, Plaintiff JAMES RAMIREZ prays for judgment against Defendants, and
each of them, as follows:
10 | 1. For compensatory and general damages according to proof;
11
2. For special and incidental damages according to proof;
12
3. For economic and non-economic damages according to proof;
13
14 4. For costs of suit incurred herein;
15 5. For pre-judgment interest according to law and proof:
°|
6. For such other and further relief as the Court deems just and proper.
17
JURY DEMAND
18 Plaintiff JAMES RAMIREZ hereby demands a trial by jury on all claims so triable.
19 |}
20 || Dated: July 26, 2023 GOOD GUSTAFSON AUMAIS LLP
21
22 ||
23 |] » LA —
CHRISTOPHER T. AUMAIS
24 Ii J.R. MCCORKLE
Attormeys for Plaintiff, JAMES RAMIREZ
25
26
27 |
28 |
a
—8-—
FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRI AL
Sr
Case 1:24-at-00247 Document1 Filed 03/25/24 Page 14 of 49
SUMMONS SUM -100
:
FOR COUUSE
RT ONLY
(CITACION JUDICIAL) (SOLO PARA USO DE LA CORTE]
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO): ELECTRONICALLY FILED
OREYDIS LEZCANO PA CHECO,
an indiv Idual; OMAR FR AGA
YANISLEYDY CALVO R UMAYO
R an individual F&FT RANS
ZAYAS, an individual 7/20/2023
and DOES 1 thro val 50 in
cl us
PORT, LLC a business entity
YOU ARE iv e,
BEIN D BY PLAINTIFF:
(LO ESTA DEMANDA NDO Kem County Superior Court
EL DEMANDANTE):
JAMES RAMIREZ, an indi
vidual, By Marina Mercado, Deputy
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FREEMAN MATHIS & GARY, LLP Lizel R. Cerezo, Esq., SBN 224655 550 South Hope Street, 22nd Floor Los Angeles, California 90071-2627 (213) 615-7000 — Fax: (833) 264-2083 Lizel.Cerezo@ fmglaw.com Attomeys for Defendant OREY DIS LEZCANO PACHECO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN 10 11 JAMES RAMIREZ, an individual; CASE NO.: BCV-23-102262 [Assigned to Hon. Thomas S. Clark, Dept. 17] 12 Plaintiff, 13 vs. NOTICE TO ADVERSE PARTIES AND THE SUPERIOR COURT OF REMOVAL 14 OREY DIS LEZCANO PACHECO, an OF ACTION individual; OMAR FRAGA ZAYAS, an 15 individual; YANISLEY DY CALVO RUMAY OR, an individual; F&F Amended Complaint Filed: July 26, 2023 16 TRANSPORT, LLC, a business entity; and Trial Date: None Set DOES 1 through 50, Inclusive, 17 Defendants. 18 19 20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, AND TO THE CLERK| 21 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE 22 COUNTY OF KERN: 23 PLEASE TAKE NOTICE that Defendant OREY DIS LEZCANO PACHECO, pursuant to 28 24 U.S.C. § 1441, filed a Notice of Removal of this action in the United States District Court for the 25 Eastem District of California on March 25, 2024. The Superior Court of the State of California, 26 County of Kem, is hereby advised that, pursuant to 28 U.S.C. §§ 1446, the filing of the Notice of 27 Removal in the United States District Court, together with the service and filing of a copy of that Freeman Mathis Gary, LP Atomeys at Law 28 Notice with this Court, effects the removal of the above-entitled action, which can proceed no further 1 NOTICE TO ADVERSE PARTIES AND THE SUPERIOR COURT OF REMOVAL OF ACTION in this action, unless and until such time as the action may be remanded by order of the United States District Court. A copy of the Notice of Removal is attached to this Notice as Exhibit 1, and is served and filed herewith. Defendants therefore reserve all defenses and objections to Plaintiffs First Amended Complaint, including but not limited to, lack of personal jurisdiction, improper venue, forum non conveniens, insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted. Dated: April 16, 2024 FREEMAN MATHIS & GARY, LLP eae — 10 By: 11 LIZEL R. CEREZO 12 Attomeys for Defendant OREY DIS LEZCANO PACHECO 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Freeman Mathis Gary, LP Atomeys at Law 28 2 NOTICE TO ADVERSE PARTIES AND THE SUPERIOR COURT OF REMOVAL OF ACTION EXHIBIT1 Case 1:24-at-00247 Document1 Filed 03/25/24 Page 1 of 49 FREEMAN MATHIS & GARY, LLP Lizel R. Cerezo, Esq., SBN 224655 550 South Hope Street, 22nd Floor Los Angeles, Califomia 90071-2627 (213) 615-7000 - Fax: (833) 264-2083 Lizel.Cerezo@fmglaw.com Attomeys for Defendant OREY DIS LEZCANO PACHECO UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA. 10 11 JAMES RAMIREZ, an individual; CASE NO.: 24-247 12 Plaintiff, 13 vs. NOTICE OF REMOVALO! ACTION UNDER 28 U.S.C. 5 1441 14 OREY DIS BEANO PA CHRO. an i ivi ZAYA 15 an individual; YANISLEY DY. CALVO RUMAYO an indivi 16 TRANSPOR LLC, a business entity; and DOES 1 through 50, Inclusive, Complaint Filed: § 07/13/2023 17 Defendants. 18 19 20 PLEASE TAKE NOTICE that Defendant, OREY DIS LEZCANO PACHECO) 21 hereby removes the above-captioned action from the Superior Court of the State of| Califomia, County of Kem, where it is currently pending as Case No. BCV-23- 102262, to the United States District Court for the Eastem District of Califomia. 24 Removal is warranted under 28 U.S.C. §1441(b) because this is a civil action! 25 over which this Court has subject matter jurisdiction under 28 U.S.C. §1332, onthe| 26 grounds that complete diversity exists between the parties and the amount in| 27 controversy exceeds the sum of $75,000. Freeman Mahi ‘Gary, LLP Altomeys aL Ml 1 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441 Case 1:24-at-00247 Document1 Filed 03/25/24 Page 2 of 49 Plaintiff is a resident of the State of Texas. Defendant OREY DIS LEZCANO PACHECO (hereinafter “PACHECO”), is a resident of Nevada. Defendants OMAR! FRAGA ZAYAS, YANISLEYDY CALVO RUMAY OR, AND F&F TRANSPORT, LLC have all been dismissed from the state court case. Pursuant to 28 U.S.C. §1332(c)(1) full diversity exists among the parties in this action since both Plaintiff and] PACHECO reside outside of Califomia where the state court case is currently venued. BACKGROUND On or about July 13, 2023, Plaintiff, JAMES RAMIREZ commenced an action] in the Superior Court of the State of Califomia in the County of Kem, entitled J AMES| 10 RAMIREZ v. OREYDIS LEZCANO PACHECO, an individual; OMAR FRAGA| 11 ZAYAS, an individual; YANISLEYDY CALVO RUMAYOR, an individual; F&F 12 TRANSPORT, LLC, a business entity; and DOES 1 through 50, Inclusive; Case No. 13 BCV-23-102262. On July 26, 2023, Plaintiff filed a First Amended Complaint. On| 14 January 12, 2024, Plaintiff served PACHECO’s counsel of record with a Notice and| 15 Acknowledgment of Receipt which was signed and retumed on February 1, 2024. 16 Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders served] 17 upon Defendant PACHECO are attached hereto as Exhibit A. Plaintiffs complaint} 18 asserts a single cause of action for Negligence against PACHECO. 19 GROUNDS FOR REMOVAL 20 This is a civil action over which this Court has subject matter jurisdiction under 21 28 U.S.C. §1332, which confers original jurisdiction of “all civil actions where the} matter in controversy exceeds the sum or value of $75,000, exclusive of interest and] costs, and is between... citizens of different States and in which citizens or subjects} 24 of a foreign state are additional parties[.]” 25 AMOUNT INCONTROVERSY 26 The amount in controversy exceeds $75,000.00, as evidenced by Plaintiff’s| 27 Statement of Damages which is attached hereto as Exhibit D. Freeman Mathis ‘Gary, LLP ‘Atomeys at Lan 2 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441 Case 1:24-at-00247 Document1 Filed 03/25/24 Page 3 of 49 DIVERSITY OF CITIZENSHIP Plaintiff is a resident of the State of Texas. Defendant OREY DIS LEZCANO PACHECO is a resident of Nevada Defendant’ OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR, AND F&F TRANSPORT, LLC, residents of| Texas, were all dismissed from the state court case on March 13, 2024. Pursuantto 28} U.S.C. §1332(c)(1) full diversity exists among the parties in this action since both| Plaintiff and PACHECO reside outside of Califomia where the state court case is currently venued. TIMING OF REMOVAL 10 Counsel for Plaintiff and PACHECO had been in communication regarding the| 11 dismissal of Defendants OMAR FRAGA ZAYAS, YANISLEYDY CALVO) 12 RUMAY OR, AND F&F TRANSPORT, LLC, residents of Texas (emails attached as| 13 Exhibit E). Plaintiff agreed to dismiss Defendants OMAR FRAGA ZAYAS, 14 YANISLEYDY CALVO RUMAY OR, AND F&F TRANSPORT, LLC and dismissal 15 ‘was entered as to said Defendants on March 13, 2023. Once the dismissal was entered, 16 diversity jurisdiction was met. 17 Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders| 18 served upon Defendant PACHECO are attached hereto as Exhibit A. Pursuant to 28 19 U.S.C. § 1446(d), a Notice to Adverse Parties of Removal to Federal Court, attached] 20 hereto as Exhibit B, together with this Noticeof Removal, is being served upon| 21 counsel for Plaintiff and will be filed with the Clerk of the Superior Court of the State} of Califomia, County of Kem. A copy of Defendant PACHECO’s Answer is attached] hereto as Exhibit C. 24 Based on the foregoing, this Court has jurisdiction over this action. No previous| 25 application has been made for the relief requested herein. Accordingly, this action is} 26 properly removed. 27 WHEREFORE, Defendant files this Notice of Removal so that the entire action] Freeman Mathis ‘Gary, LLP ‘Atomeys at Lan 28 | JAMES RAMIREZ.v. OREYDIS LEZCANO PACHECO, an individual; OMAR FRAGA| 3 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441 Case 1:24-at-00247 Document1 Filed 03/25/24 Page 4 of 49 1} ZAYAS, an individual; YANISLEYDY CALVO RUMAYOR, an individual; F&F 2] TRANSPORT, LLC, a business entity; and DOES 1 through 50, Inclusive; Case No. 3] BCV-23-102262, now pending in the Superior Court of Califomia, Kem County, shall| 4 || be removedto this Court for all further proceedings. 5 6} Dated: March 25, 2024 FREEMAN MATHIS & GARY, LLP 7 By: aR LIZEL R. CEREZO 10 OREY SP EZCANO PACHECO 11 12 13 14 15 16 17 18 19 20 21 24 25 26 27 Freeman Mathis ‘Gary, LLP ‘Atomeys at Lan 4 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441 Case 1:24-at-00247 Document1 Filed 03/25/24 Page 5 of 49 EXHIBIT A Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 6 of 49 kin | ELECTRONICALLY FILED *2> GOOD|GUSTAFSON|AUMA IS LLP 7/26/2023 11:15 AM Kern County Superior Court Q2 Christopher T, Aumais, SBN By Vanessa Castro, Deputy 24990] cta@ allp.com J.R. McCorkle, SBN 339594 irm wUpog Cc 2330 Westwood Bivd., Suite 103 Los Angele s, alifornia 90064 Tel: (310) 274-4663 | Attomcys for Plaintiff JAMES RAMIREZ 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA °| FOR THE COUNTY OF KERN 10 ll JAMES RAMIREZ, an individual; Case No. BCV-23-102262 12 Complaint filed: 7/13/23 Plaintiff, (Assigned to the Hon. Thomas S. Clark, Dept. 17) Zz 13 Vv FIRST AMENDED COMPLAINT FOR 14 DAMAGES: OREYDIS LEZCANO PACHECO, an 15 individual; OMAR FRAGA ZAYAS, an (1) NEGLIGENCE ~ LACK OF individual, YANISLEYDY CALVO REASONABLE CARE IN OPERATIO 16 RUMAYOR, an individual: F&F TRANSPORT, OF MOTOR VEHICLE; LLC, a business entity; and DOES | through 50, (2) NEGLIGENT HIRING, SUPERVISION, 17 inclusive, AND RETENTION; | (3) NEGLIGENT ENTRUSTMENT 18 Defendants. -and- 19 DEMAND FOR TRIAL BY JURY 20 21 22 | Plaintiff JAMES RAMIREZ, an individual, (“PLAINTIFF”) brings causes of action against 23 Defendant OREYDIS LEZCANO PACHECO, an individual; Defendant F&F TRANSPORT, LLC, 24 a business entity, OMAR FRAGA ZAYAS, an individual; YANISLEYDY CALVO RUMAYOR, 25 an individual; and DOES 1 through 50; inclusive, inclusive (collectively “DEFENDANTS”) and 26 each of them, hereby complains and alleges as follows: ZL Hf 28 Hf safes FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL —__~SS Case 1:24-at-00247 D ocumen' t 1 Filed 03/25/24 Page 7 of 49 SUMMOFATHR CASE E Y O PACHECO, while driving a ] On or about August 9, 2021, Defendant OREYDIS LEZCAN Fre igh tli ner truc k wit h an att ach ed gre y 200 8 Fon tai ne Fla tbe d, att emp ted to 3] red 2008 20 Century 4] merge into the left lane, dire ctly into the path of Plai ntif f JAM ES RAM IRE Z, driv ing a red 2015 5 | Ford Fiesta. As a result, Defendant OREYDIS LEZCANO PACHECO negligently collided with RAMIREZ severe and significant bodily | Plaintiff JAMES RAMIREZ causing Plaintiff JAMES injuries and general damages (“SUBJECT INCIDENT”). JURISDICTION AND VENUE 9 2 Jurisdiction and Venue are proper in the County of KERN pursuant to § 395(a) of the 10 | Califomia Code of Civil Procedure. The accident giving rise to the injuries sustained by Plaintiff 11 | JAMES RAMIREZ occurred in an unincorporated area of Kern County on California State Route 12 | 14 southbound just south of Camelot Boulevard. 13 3. The California Superior Court has jurisdiction over all Defendants because, based on 14 information and belief, each is a corporation and/or entity and or person organized under the laws of | 15 or having its principal place of business in the State of California, a foreign corporation or association 16 | authorized to do business in California and registered with the California Secretary of State, or that 17 has sufficient minimum contacts in California, is a citizen of California, or otherwise intentionally 18 | avails itself of the California market so as to render the exercise of jurisdiction over it by the 19 | California courts consistent with traditional notions of fair play and substantial justice. 20 | THE PARTIES Zi | 4. Plaintiff JAMES RAMIREZ is an individual, a citizen of the State of Texas, residing in the 22 | County of Willacy, and residing in the city of Lyford. 23 | 5, Defendant OREYDIS LEZCANO PACHECO, an individual, a citizen of the State of | 24 Nevada, residing in the County of Clark, residing in the city of Las Vegas. Defendant OREYDIS Zo LEZCANO PACHECO was operating a red 2008 20" Century Freightliner truck, with a Nevada 26 license plate number PTL9000, and an attached grey 2008 Fontaine Flatbed, with a Nevada license 2 plate number 13362PT, owned by Defendant F&F TRANSPORT, LLC. 28 Hf iP FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR Te Nae JURY TRIAL LS Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 8 of 49 1 || 6. Plaintiff is informed and believes, and thereon alleges, Defendant F&F TRANSPORT, LLC, a California Limited Liability Company (hereinafter “F&F”) and/or Does 1-10 are corporations and/or business entities of a form unknown, which run a commercial vehicle and transportation company. On information and belief, Defendant F&F continues to systematically conduct business in the State of California and the State of Nevada. i Defendant OMAR FRAGA ZAYAS, an individual, a citizen of the State of Texas, residing in Brazoria County, residing in the city of Alvin. On information and belief, Defendant OMAR FRAGA ZAYAS is an officer of Defendant F&F. 8 Defendant YANISLEYDY CALVO RUMAYOR an individual, a citizen of the State of 10 Texas, residing in Brazoria County, residing in the city of Alvin. On information and belief, 11 Defendant YANISLEYDY CALVO RUMAYOR is an officer of Defendant F&F. 12 9 Plaintiff is informed and believes, and on the basis of said information and belief, alleges, 13 that on August 9, 2021, at the time of this collision, Defendant OREYDIS LEZCANO PACHECO 14 was a driver who was operating a vehicle owned by Defendant F&F and as such was an agent of 15 Defendant F&F and/or Does 1 through 50. 16 10. The true names and/or capacities, whether individual, corporate, associate, or otherwise, of 17 Defendant DOES | to 50, inclusive, and of each of them, are unknown to Plaintiff, who therefore 18 sues said Defendants by such fictitious names. Plaintiff is informed and believes, and upon such 19 information and belief alleges, that each of the Defendants fictitiously named herein as a DOE is 20 legally responsible, negligently or in some other actionable manner, for the events and happenings 21 | hereinafter referred to and proximately caused the damages to Plaintiff hereinafter alleged. Plaintiff Z2 | will seek leave of Court to amend this Complaint to assert the true names and/or capacities of such 23 | fictitiously named Defendants when they have been ascertained. 24 id. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein, 25 | Defendants, and each of them, including DOES 1 to 50, were the agents, servants, employees, and/or 26 joint venturers of their co-Defendants, and were, as such, acting within the course, scope, and 2 authority of said agency, employment, and/or joint venture, and that each and every Defendant, as 28 ~i- —$$ __— ee FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL Case 1:24-at-00247 D t 1 Filed 03/25/24 Page 9 of 49 I aforesaid, when acting as a principal, was negligent in the selection and/or hiring of each and every 2 agent, servant, employee, and/or joint venturer. 3 12; Defendants are liable for the acts of each other through principals of respondeat superior, 4 | agency, ostensible agency, partnership, alter-ego, and other forms of vicarious liability. 5 | GENERAL ALLEGATIONS 6 13. On or about August 9, 2021, Plaintiff JAMES RAMIREZ was a driver of a 2015 Ford Fiesta. 7 Defendant OREYDIS LEZCANO PACHECO, driving a red 2008 20° Century Freightliner truck 8 with an attached grey 2008 Fontaine Flatbed, attempted to merge into the left lane, directly into the 9 path of Plaintiff JAMES RAMIREZ, driving a red 2015 Ford Fiesta, and negligently collided with 10 the rear passenger’s side of his vehicle causing him severe and significant physical 11 and emotional injuries and general damages. 12 FIRST CAUSE OF ACTION 13 Negligence 14 (By Plaintiff Against all Defendants) 15 1 14. Plaintiff JAMES RAMIREZ incorporates by reference, as though fully set forth herein, the 16 contents of the preceding paragraphs, | through 13. Ie | 15: Defendants and each of them owed Plaintiff JAMES RAMIREZ a duty of reasonable/due 18 care as well as statutory duties established in California Vehicle Code 21658. 19 | 16. At all times mentioned, Defendant OREYDIS LEZCANO PACHECO was operating a red 20 | 2008 20" Century Freightliner track with an attached grey 2008 Fontaine Flatbed, which was owned 21 | by Defendant F&F. Ze 17. At all times mentioned, Plaintiff JAMES RAMIREZ drove and owned a 2015 Ford Fiesta. 23 18. As a direct and proximate result of Defendant’s negligence, Plaintiff JAMES RAMIREZ 24 suffered significant bodily and emotional injuries. These injuries have caused Plaintiff JAMES 25 |i RAMIREZ to suffer general damages in an amount to be determined by proof at trial. 26 || 19. As a direct and proximate result of the dangerous condition created by the negligence of 24 Defendants, Plaintiff JAMES RAMIREZ was required to, did, and will in the future, employ 28 || physicians and surgeons to examine, treat and care for his injuries. Plaintiff JAMES RAMIREZ will $$$ _4- FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 10 of 49 a“ employ specially trained persons to supply care and services. As a further direct and proximate result and substantial factor of the negligence of Defendants, Plaintiff JAMES RAMIREZ did and will in the future, incur medical and incidental expenses for such care and services. The exact amount of such expenses is unknown to Plaintiff JAMES RAMIREZ at this time and the exact amounts of said damages, including prejudgment interest, will be determined according to proof. 20. As a further and direct and proximate result and substantial factor of the negligence of Defendants, Plaintiff JAMES RAMIREZ was prevented from attending to his usual occupation and in the future will again be prevented from attending to his usual occupation, all due to his present and future damage in a sum including prejudgment interest, according to proof. 10 PAs As a direct proximate result of the negligence of Defendants, Plaintiff JAMES RAMIREZ 11 suffered pain, suffering, disfigurement, loss of enjoyment of life, loss of recreation and emotional 12 distress, all in an amount according to proof at trial. 13 SECOND CAUSE OF ACTION 14 Negligent Hiring, Supervision, and Retention 15 (By Plaintiff Against Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, 16 YANISLEYDY CALVO RUMAYOR; and DOES 1 through 50, inclusive) 17 22. Plaintiff hereby incorporates by reference all paragraphs of this Complaint, and repeats all 18 allegations of said paragraphs as though fully set forth in detail below. 19 23. Upon information and belief, Defendants F&F TRANSPORT, LLC, OMAR FRAGA 20 ZAYAS, YANISLEYDY CALVO RUMAYOR; and DOES 1 through 50, inclusive, hire, train, a1 | supervise, and/or certify employees and/or agents as drivers, including but not limited to 22 | Defendant OREYDIS LEZCANO PACHECO. 23 24. Defendant OREYDIS LEZCANO PACHECO was unfit and/or incompetent to perform the 24 work for which he was hired, trained, supervised, and/or certified, and Defendants F &F 25 TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR; and DOES 26|| ] through 50, inclusive, knew and/or should have known that Defendant OREYDIS LEZCANO Za PACHECO was unfit and/or incompetent and that this unfitness and/or incompetence created a risk 28 of bodily harm and injuries to the person of Plaintiff. -5-—_ FIRST AMENDED COMPLAINT FOR DAMAGES; DEMA FORND JURY TRIAL Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 11 of 49 25. As a direct and proximate result of the acts, omissions, and conduct of Defendants, and each of them, Plaintiff suffered serious bodily injuries requiring him to receive medical treatment. 26. As a further direct and proximate result of the acts, omissions and conduct of Defendants, and each of them, Plaintiff suffered serious bodily injuries requiring him to receive medical treatment. Lh As a further direct and proximate result of the acts, omissions, and conduct of Defendants, and each of them, Plaintiff has incurred, continues to incur, and will in the future incur, expenses for medical procedures, physical therapy, and care of Plaintiff, in an amount according to proof at the | time of trial. 10 28. As a further direct and proximate result of the acts, omissions, and conduct of Defendants, 11 and each of them, Plaintiff has suffered and continues to suffer emotional distress, pain, frustration, 12 and inconvenience. 13 29. As a further direct and proximate result of the acts, omissions, and conduct of Defendants, 14 | and each of them, Plaintiff has incurred expenses and losses, which would not have otherwise been 15 incurred. Plaintiff is informed and believes and based thereon alleges that he will continue to incur 16 various losses and expenses, the exact nature and amount of which Plaintiff does not know at this 17 | time. Plaintiff will offer proof thereon at the time of trial. 18 | THIRD CAUSE OF ACTION 19 | Negligent Entrustment { 20 | (By Plaintiff Against DEFENDANTS F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, 21 YANISLEYDY CALVO RUMAYOR; and DOES 1 through 50, inclusive) 22 |} 30. Plaintiff hereby incorporates by reference all paragraphs of this Complaint, and repeats all 23 | allegations of said paragraphs as though fully set forth in detail below. 24 | 31. Defendant OREYDIS LEZCANO PACHECO was negligent in his operation of the red 2008 25 20 Century Freightliner truck, with a Nevada license plate number PTL9000, and an attached grey 26 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT at the time of the SUBJECT Zi INCIDENT. 28 ~6- FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 12 of 49 32. Defendant F&F TRANSPORT owned the red 2008 20" Century Freightliner truck, with a Nevada license plate number PTL9000, and an attached grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT, and Defendant OREYDIS LEZCANO PACHECO operated the red 2008 20" Century Freightliner truck, with a Nevada license plate number PTL9000, and an attached grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT with the permission of Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR, and DOES 1 through 50, inclusive. 33. At the time of the Subject Incident, when Defendant OREYDIS LEZCANO PACHECO was} 9 || driving the red 2008 20" Century Freightliner truck, with a Nevada license plate number PTL9000, 10 | and an attached grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT,| 11 Defendant OREYDIS LEZCANO PACHECO was acting within the scope of him employment with | 12 | Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO] 13 RUMAYOR, and DOES 1 through 50, inclusive, and driving for the financial gain of Defendants 14 F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR; and 15 DOES 1 through 50, inclusive. 16 34. Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO 17 RUMAYOR, and DOES 1 through 50, inclusive, knew, or should have known, that Defendant 18 OREYDIS LEZCANO PACHECO was incompetent or unfit to drive the red 2008 20" Century 19 Freightliner truck, with a Nevada license plate number PTL9000, and an attached grey 2008 Fontaine 20 | Flatbed, with a Nevada license plate number 13362PT. 21 35. Defendants F&F TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO 22 | RUMAYOR, and DOES 1 through 50, inclusive, permitted Defendant OREYDIS LEZCANO}] 23 | PACHECO to drive the red 2008 20" Century Freightliner truck, with a Nevada license plate number| 24 || PTL9000, and an attached grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT 25 at the time of the SUBJECT INCIDENT. 26 || 36. Defendant OREYDIS LEZCANO PACHECO’s incompetence or unfitness to drive the red 27 || 2008 20" Century Freightliner truck, with a Nevada license plate number PTL9000, and an attached 28 | ' ee -7—_ $$ FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL Case 1:24-at-00247 D it 1 Filed 03/25/24 Page 13 of 49 grey 2008 Fontaine Flatbed, with a Nevada license plate number 13362PT at the time of the SUBJECT INCIDENT was a substantial factor in causing harm to Plaintiff. | 37. As a direct and proximate result of the acts, omissions and conduct of Defendants F&F 4 || TRANSPORT, LLC, OMAR FRAGA ZAYAS, YANISLEYDY CALVO RUMAYOR, and DOES | ] through 50, inclusive, and each of them, Plaintiff has suffered economic and non-economic 6 || damages and harm. | PRAYER FOR RELIEF | 8 | WHEREFORE, Plaintiff JAMES RAMIREZ prays for judgment against Defendants, and each of them, as follows: 10 | 1. For compensatory and general damages according to proof; 11 2. For special and incidental damages according to proof; 12 3. For economic and non-economic damages according to proof; 13 14 4. For costs of suit incurred herein; 15 5. For pre-judgment interest according to law and proof: °| 6. For such other and further relief as the Court deems just and proper. 17 JURY DEMAND 18 Plaintiff JAMES RAMIREZ hereby demands a trial by jury on all claims so triable. 19 |} 20 || Dated: July 26, 2023 GOOD GUSTAFSON AUMAIS LLP 21 22 || 23 |] » LA — CHRISTOPHER T. AUMAIS 24 Ii J.R. MCCORKLE Attormeys for Plaintiff, JAMES RAMIREZ 25 26 27 | 28 | a —8-— FIRST AMENDED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRI AL Sr Case 1:24-at-00247 Document1 Filed 03/25/24 Page 14 of 49 SUMMONS SUM -100 : FOR COUUSE RT ONLY (CITACION JUDICIAL) (SOLO PARA USO DE LA CORTE] NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): ELECTRONICALLY FILED OREYDIS LEZCANO PA CHECO, an indiv Idual; OMAR FR AGA YANISLEYDY CALVO R UMAYO R an individual F&FT RANS ZAYAS, an individual 7/20/2023 and DOES 1 thro val 50 in cl us PORT, LLC a business entity YOU ARE iv e, BEIN D BY PLAINTIFF: (LO ESTA DEMANDA NDO Kem County Superior Court EL DEMANDANTE): JAMES RAMIREZ, an indi vidual, By Marina Mercado, Deputy NOTICE! You have been sued The court may decide against you without your being heard unless you respond within 30 days. Read the information oe You have 30 CALEND. AR DAYS after this su Immons and legal papers Served on the Plaintiff. A are served on you to file a written response call will not protect you Your writte at this court and have a copy Case. The mayrbeeaco n res ponse must be in proper legal form if you want the court to hear your you can use for your response You can Online Self-Help Center (www. find these court f orms and more information at courtin fo ca. gov/selfhelp) your the California Courts Court clerk for a fee waiy co un ty law library, of the courthouse nearest you. If you cannot er form If yo u do not file your re pay the filing fee, ask the be taken without further wami sp on se on ti me, yOu may lose the case by default, and your wages, money, ng from the court. and property may There are other | egal re quirements. You ma y want to call an referral service. If you cann attorney right aw ay. If you do not know an ot afford an attome attomey, you may want fo call an attorney these nonprofit g roups at the Call you may be ali gibl e for free legal servicas from a nonprofit legal se rvice fomia Legal Servi icas Web sit © (www Jaw s program. You can locate (www. courtinfo ca gov/selfhe helpcalifomia org), the Califomia Courts Online Self-Help lp), or by contacting y our local court or Center costs on any se ttlement or arbitration awar cou nty bar association NOTE The court has a Statutory lien d of $1 0,000 or more in a civil cas for waived fees and jAVISO! Lo ha n demandado. Si a - The court's lien must be paid before the court will dismiss no responde de intro de 30 dia $, fa corte the case. contin uacion. pue de decidiren su cont ra sin escuchar su version. Lea la informacion a corteninat oe DE CALENDARIO después de que le entreguen esta citacién Y papeles legales para presen coe ntrague una copia al tar una respuesta por escrito en esta demandante. Une yta o una llamada telefonica no fo protegen. Su respuesta por escri en formato Si desea que procesen su caso en la corte. to tene que estar Puede encontrar estos fi Es posible que haya un formutano que usted pueda usar para lanos de la corte y més informa cién en ef Cen su respuesta biblioteca de leyes de su co ndado o en fa tro de A lyuda de las Cortes de California (www sucorte.ca. gov),