Preview
Electronically
by Superior Court of California, County of San Mateo
ON 3/8/2023
LEWIS BRISBOIS BISGAARD & SMITH LLP
CHRISTOPHER J. NEVIS, SB# 162812 By. /s/ Nesha Gaines
E-Mail: Christopher.Nevis@lewisbrisbois.com Deputy Clerk
STEFFANIE A. MALLA, SB# 266120
E-Mail: Steffanie.Malla@lewisbrisbois.com
45 Fremont Street, Suite 3000
San Francisco, California 94105
Telephone: 415.362.2580
Facsimile: 415.434.0882
Attorneys for Defendant/Cross-Complainant,
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 COMPLEX CIVIL
11
12 REGINA GLORIOSO-EMERSON; ESTATE Case No. 22-CIV-05181
OF ROLANDO GLORIOSO; CHRISTIAN
13 CUNANAN; KATRYNE PIOQUINTO; [Assigned for All Purposes to Judge Robert D.
JOHN MATTHEW CUNANAN; and Foiles, Dept. 21]
14 ESTATE OF SUSANA GLORIOSO,
DEFENDANT SAN FRANCISCO BAY
15 Plaintiffs, AREA RAPID TRANSIT DISTRICT’S
CROSS-COMPLAINT
16 vs.
Action Filed: December 9, 2022
17 CITY OF MILLBRAE; STATE OF Trial Date: None Set
CALIFORNIA; CITY AND COUNTY OF
18 SAN FRANCISCO; COUNTY OF SAN
MATEO; CITY OF SAN BRUNO; SAN
19 FRANCISCO AREA RAPID TRANSIT
DISTRICT; SAN MATEO COUNTY
20 TRANSIT DISTRICT; PENINSULA
CORRIDOR JOINT POWERS BOARD; and
21 DOES 1-20,
22 Defendants.
23
SAN FRANCISCO BAY AREA RAPID
24 TRANSIT DISTRICT,
25 Cross-Complainant,
26 vs.
27 ESTATE OF ROLANDO GLORIOSO; CITY
OF MILLBRAE; and ROES | to 50,
28
LEWIS
BRISBOIS
BISGAARD
‘& SMITH LLP
80047010.1 1 Case No. 22-CIV-05181
ATTORNEYS ATLA DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT
Cross-Defendants.
Cross-Complainant SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
(“Cross-Complainant”) complain and allege against ESTATE OF ROLANDO GLORIOSO; CITY
OF MILLBRAE; and ROES | to 50, inclusive, and each of them, as follows:
GENERAL ALLEGATIONS
1 Cross-Complainant SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT
is a public entity that operates in various Bay Area cities and counties, including San Mateo County,
California.
10 2. On information and belief, Cross-Defendant ESTATE OF ROLANDO GLORIOSO.
11 was at all relevant times is the lawful successor in interest for Decedent Rolando Glorioso, who was
12 born on July 24, 1958, and passed away on December 23, 2021, in San Mateo County, California.
13 3 On information and belief, Cross-Defendant CITY OF MILLBRAE is a public entity
14 in San Mateo County, California.
15 4 Cross-Complainants are presently unaware of the true names, capacities, and liability
16 of ROES 1-50, inclusive, and Cross-Complainants will amend this Cross-Complaint to allege their
17 true names and capacities after the same has been ascertained.
18 5 Plaintiffs filed their Complaint in this action on December 9, 2022. A true and
19 correct copy of Plaintiffs’ Complaint is attached hereto as Exhibit A. Said Complaint and any future
20 amended complaints filed in this action are incorporated herein by reference as though fully set forth
21 herein, said incorporation by reference being solely for the purpose of identification. Cross-
22 Complainant does not admit the truth of any allegations contained in the Complaint.
23 6. In pertinent part, the Complaint alleges that on or about December 23, 2021, the
24 negligence of Cross-Complainant and others caused the death of Decedents ROLANDO
25 GLORIOSO and SUSANA GLORIOSO.
26 7 If Plaintiffs’ allegations are proved at trial, Cross-Complainant will be entitled to
27 contribution, indemnity and all of the other relief sought in the instant Cross-Complaint because
28 Cross-Defendants are responsible for the events and damages referred to in the Complaint in that
LEWIS
BRISBOIS
BISGAARD
‘& SMITH LLP
80047010.1 2 Case No. 22-CIV-05181
ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT
they negligently, intentionally, or otherwise caused the injury and damages claimed by Plaintiffs.
FIRST CAUSE OF ACTION
(Equitable Indemnity)
8 Cross-Complainants hereby incorporate by reference the allegations set forth in
Paragraphs | through 7 above, as though fully set forth herein.
9 If Plaintiffs recover against Cross-Complainant in this action, then Cross-
Complainant is entitled to equitable indemnity and apportionment of liability among and from
Cross-Defendants and ROES 1-50, and each of them, according to their respective fault, for the
injuries and damages allegedly sustained by Plaintiffs, if any, by way of sums paid by settlement,
10 or, in the alternative, any judgments rendered against Cross-Complainant in the action herein based
11 upon Plaintiffs’ Complaint.
12 10. Cross-Complainants expressly deny the allegations of the Complaint and any
13 wrongdoing on Cross-Complainant’s fault. Should Cross-Complainant nevertheless be found liable
14 to Plaintiffs on any of the causes of action included in the Complaint or any other alleged
15 wrongdoings with respect to the allegations of the Complaint, Cross-Complainant allege that the
16 acts and/or omissions of Cross-Complainants were passive and secondary, while those of Cross-
17 Defendants and ROES 1-50, and each of them, were active, primary and superseding. Thus, as a
18 direct, proximate, and foreseeable result of the wrongdoing of Cross-Defendants and ROES 1- 50,
19 and each of them, Cross-Complainant is entitled to total equitable indemnity from any and all
20 liability adjudged against them by Plaintiffs.
21 11. As a direct, proximate and foreseeable result of the filing of the Complaint, Cross-
22 Complainant has been compelled to incur attorneys’ fees, court costs, and the expense of this cross-
23 action, and Cross-Complainant will seek leave of court to amend this Cross-Complaint to set forth
24 the amount of said damages when the same have been ascertained.
25 12. Should Plaintiffs recover any amount of damages against Cross-Complainant by way
26 of judgment, settlement or otherwise, then Cross-Complainant by reason of the foregoing , is entitled
27 to an equitable apportionment of the liability of Cross-Defendants and ROES 1-50, and each of
28 them, on a comparative fault basis and a judgment against Cross-Defendants and ROES 1-50, and
LEWIS
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BISGAARD
‘& SMITH LLP
80047010.1 3 Case No. 22-CIV-05181
ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT
each of them, under the doctrine of equitable indemnity and in an amount equal to their respective
liabilities as so apportioned.
SECOND CAUSE OF ACTION
(Contribution)
13. Cross-Complainant hereby incorporates by reference the allegations set forth in
paragraphs | through 12 above, as though fully set forth herein.
14. If Plaintiffs recover against Cross-Complainant in this action, then Cross-
Complainant assert that said damages were proximately caused by the primary and active negligence
or other fault of Cross-Defendants and ROES 1-50, and each of them, and any acts or omissions on
10 the part of Cross-Complainant’s were passive in nature and/or secondary to the acts and/or
11 omissions of Cross-Defendants and ROES 1-50, and each of them.
12 15. As a direct and proximate result of the primary, active negligence or other fault of
13 Cross-Defendants and ROES 1-50, and each of them, Cross-Complainant has incurred and continue
14 to incur costs, attorneys’ fees and other losses and damages in responding to the Complaint.
15 16. By reason of the foregoing, Cross-Complainant is entitled to contribution from
16 Cross-Defendants and ROES 1-50, and each of them, in the amount of any damages awarded against
17 Cross-Complainant in this action, plus costs of defense and attorneys’ fees incurred representing the
18 proportion of the amount recovered against Cross-Complainant in excess of the amount of fault, if
19 any, attributable to Cross-Complainant.
20 THIRD CAUSE OF ACTION
21 (Negligence)
22 17. Cross-Complainant hereby incorporates by reference the allegations set forth in
23 paragraphs | through 16 above, as though fully set forth herein.
24 18. Cross-Complainant is informed and believe, and based thereon alleges, that Cross-
25 Defendants, including ROES 1-50, and each of them, had a duty to exercise reasonable care and
26 diligence.
27 19. Cross-Complainant is further informed and believes, and based thereon alleges, that
28 Cross-Defendants, including ROES 1-50, and each of them, negligently and carelessly breached
LEWIS
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BISGAARD
‘& SMITH LLP
80047010.1 4 Case No. 22-CIV-05181
ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT
their duties to exercise reasonable care and diligence to avoid loss and to minimize and mitigate
damages which could have been prevented by reasonable efforts on the part of said Cross-
Defendants, including ROES 1-50, and each of them.
20. Cross-Complainant is informed and believe, and based thereon alleges, that the
failures and damages alleged by Plaintiffs, if any, occurred because of the negligence of Cross-
Defendants and ROES 1-50, and each of them.
21. As a direct and proximate result of the negligence of Cross-Defendants, including
ROES 1-50, and each of them, it is herein alleged that Cross-Complainant has incurred and
continues to incur costs and expenses, including, but not limited to, litigation costs, attorneys’ fees,
10 and consultants’ fees to defend against Plaintiffs’ action herein.
11 FOURTH CAUSE OF ACTION
12 (Declaratory Relief)
13 22. Cross-Complainant hereby incorporates by reference the allegations set forth in
14 paragraphs | through 22 above, as though fully set forth herein.
15 23. Cross-Complainant seeks a Declaration by this Court as to its respective rights and
16 the duties and obligations of Cross-Defendants and ROES 1-50, and each of them, as to the matters
17 herein alleged, and a judgment in Cross-Complainant’s favor. Judicial determination is necessary
18 and appropriate at this time so that Cross-Complainant and Cross-Defendants, including ROES 1-
19 50, and each of them, may ascertain their rights and duties between them to the extent they relate to
20 the occurrences alleged in the Complaint and the Cross-Complaint, and to avoid a multiplicity of
21 lawsuits.
22 WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, including
23 ROES 1-50, and each of them, as follows:
24 1 That Cross-Complainant is entitled to total equitable indemnity from Cross-
25 Defendants and ROES 1-50, and each of them, in accordance with their respective faults;
26 2 That Cross-Complainant is entitled to contribution from Cross-Defendants and
27 ROES 1-50, and each of them;
28 3 That Cross-Complainants is entitled to damages for the negligence of Cross-
LEWIS
BRISBOIS
BISGAARD
‘& SMITH LLP
80047010.1 5 Case No. 22-CIV-05181
ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT
Defendants and ROES 1-50, and each of them; and
4 For a judicial determination of the rights and duties of Cross-Defendants and ROES
1-50, and each of them, relating to Cross-Complainant’s claims herein;
5 For costs of suit and expenses incurred in the defense of the Complaint, any Cross-
Complaints, and in the prosecution of this Cross-Complaint;
6. For attorneys’ fees incurred in the defense of the Complaint, any Cross-Complaints,
and in the prosecution of this Cross-Complaint; and
7 For such other and further relief as the Court may deem just and proper.
DATED: March 8, 2023 LEWIS BRISBOIS BISGAARD & SMITH LLP
10
11
By.
12 Christopher J. "Nevis
Steffanie A. Malla
13 Attorneys for Defendant/Cross-Complainant, SAN
FRANCISCO BAY AREA RAPID TRANSIT
14
DISTRICT
15
16
17
18
19
20
21
22
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LEWIS
BRISBOIS
BISGAARD
‘& SMITH LLP
80047010.1 6 Case No. 22-CIV-05181
ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT
EXHIBIT A
Rotert J. Ounjian, SBN 210213
Car enter & Zuckerman
8827 West Olympic Boulevard
Beverly Hills, California 90211
Telephone: (310) 273-1230; Fax: (310) 858-1063
Emuail: robert@cz.law
Lemuel L. Garcia, SBN 288695 Electronically
Lem Garcia Law, PC by sine OF GSB 2D ‘of San Mateo
172) West Cameron Avenue, Suite 210
West Covina, California 91790 &y__is/Jeonifer Torres ___
Telephone: (626) 337-1111; Fax: (626) 337-1112
Email: lem@lemgarcialaw.com
9 Attorneys for Plaintiffs
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF SAN MATEO
12
22-ClV-05181
13 REGINA GLORIOSO-EMERSON; ESTATE CASE NO.:
14 OF ROLANDO GLORIOSO; CHRISTIAN
CUNANAN: KATRYNE PIOQUINTO; COMPLAINT FOR DAMAGES
15 JOFIN MATTHEW CUNANAN; and
ESTATE OF SUSANA GLORIOSO 1. Dangerous Condition of Public
16 Property (Wrongful Death)
17 Plaintiffs,
Negligence (Wrongful Death)
18 vs.
19 Continuation of Decedent Rolando
CITY OF MILLBRAE; STATE OF Glorioso’s Causes of Action (Survival
20 CA_IFORNIA; CITY AND COUNTY OF Action)
SAIN FRANCISCO; COUNTY OF SAN
a MATEO; CITY OF SAN BRUNO; SAN
FRANCISCO AREA RAPID TRANSIT Continuation of Decedent Susana
22
DISTRICT; SAN MATEO COUNTY Glorioso’s Causes of Action (Survival
23 TRANSIT DISTRICT; PENINSULA Action)
CORRIDOR JOINT POWERS BOARD; and
24 DOES 1-20. *** DEMAND FOR JURY TRIAL ***
25
Defendants.
26
2
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1
COMPLAINT FOR DAMAGES
COME NOW Plaintiffs Regina Glorioso-Emerson, Estate of Rolando Glorioso,
Christian Cunanan, Katryne Pioquinto, John Matthew Cunanan, and Estate of Susana Glorioso
who for causes of action against defendants City of Millbrae, State of California, City and
County of San Francisco, County of San Mateo, City of San Bruno, San Francisco Area Rapid
Transit District, San Mateo County Transit District, Peninsula Corridor Joint Powers Board, and
Does I-20, complain and allege as follows:
THE PARTIES
1 Decedent Rolando Glorioso (hereinafter, “Decedent Rolando”) was born on
10 July 24, 1958, and passed away on December 23, 2021, in San Mateo County, California.
11 Decedent Rolando appears in this action through Plaintiff Estate of Rolando Glorioso
12 (hereinafter, “Estate of Rolando”).
13 2 Plaintiff Regina Glorioso-Emerson (hereinafter, “Regina’”) is an individual
14 residing in the State of California. Regina is the sole survivor of Decedent Rolando. Pursuant
15 to the operation of Code of Civil Procedure § 377.60, Regina is the heir, successor in interest,
16 and the person lawfully entitled to assert a cause of action for the wrongful death of Decedent
17 Rolando. No other person has any claim, right, or interest in the cause of action for wrongful
18 death of Decedent Rolando that is superior to the claims by Regina.
19 a At the time of his death, Decedent Rolando had no children and his
20 parents had pre-deceased him. Decedent Rolando and his spouse, Decedent Susana Glorioso,
21 died on the same day. Regina is Decedent Rolando’s only surviving sibling.
22 3 Decedent Susana Glorioso (hereinafter, “Decedent Susana”) was born on
a February 3, 1959, and passed away on December 23, 2021, in San Mateo County, California.
24 Decedent Susana appears in this action through Plaintiff Estate of Susana Glorioso (hereinafter,
25 “Estate of Susana”). Decedent Rolando and Decedent Susana will sometimes be referred to
26 herein collectively as “Decedents.”
27 a. At the time of her death, Decedent Susana’s parents had pre-deceased
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28 her. Decedent Susana and her spouse, Decedent Rolando, died on the same day. Plaintiffs
2
COMPLAINT FOR DAMAGES
Christian Cunanan, Katryne Pioquinto, and John Matthew Cunanan are Decedent Susana’s only
surviving children.
4 Plaintiffs Christian Cunanan (hereinafter, “Christian”), Katryne Pioquinto
(hereinafter, “Katryne”), and John Matthew Cunanan (hereinafter, “John”) are individuals
residing in Canada. Christian, Katryne, and John are sometimes referred to herein collectively
as “Susana’s Survivors.” Pursuant to the operation of Code ofCivil Procedure §377.60,
Susana’s Survivors are the heirs, successors in interest, and the persons lawfully entitled to
assert a cause of action for the wrongful death of Decedent Susana. No other person has any
clain, right, or interest in the cause of action for wrongful death of Decedent Susana that is
10 superior to the claims by Susana’s Survivors.
a
11 D) Plaintiffs Estate of Rolando, Regina, Estate of Susana, and Susana’s Survivors
12 are sometimes referred to herein collectively as the “Plaintiffs.”
13 6. Defendant State of California (hereinafter, “State”) is a public entity.
14 7. Defendant City and County of San Francisco (hereinafter, “San Francisco”) is a
15 public entity in the State of California.
16 8 Defendant County of San Mateo (hereinafter, “San Mateo”) is a public entity in
17 the State of California.
18 9 Defendant City of Millbrae (hereinafter, “Millbrae”) is a public entity in the
19 County of San Mateo, State of California.
20 10. Defendant City of San Bruno (hereinafter, “San Bruno”) is a public entity in the
21 County of San Mateo, State of California.
22 ll. Defendant San Francisco Area Rapid Transit District (hereinafter, “BART”) is
23 a ptblic entity in the County of Alameda, State of California with substantial operations in the
24 cou ities of San Francisco, San Mateo, Alameda, Contra Costa, and Santa Clara.
25 125 Defendant San Mateo County Transit District (hereinafter, “SAMTRANS’”) is a
26 public entity in the County of San Mateo, State of California
13; Defendant Peninsula Corridor Joint Powers Board (hereinafter, “CALTRAIN”
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is a public entity in the County of San Mateo, State of California.
Ss
COMPLAINT FOR DAMAGES
14. The true names and/or capacities, whether individual, corporate, associate or
otherwise of Defendants Does | through 20, inclusive, and each of them, are unknown to the
Plaintiffs who therefore sue said defendants by such fictitious names. Plaintiffs are informed
and believe and thereon allege that each of the defendants fictitiously named herein as a Doe is
legally responsible, negligent. or in some other actionable manner liable for the events and
happenings referred to herein, and proximately and legally caused the injuries to plaintiffs as
hereinafter alleged. Plaintiffs will seek leave of the court to amend this Complaint to insert the
true names and/or capacities of such fictitiously named defendants as and when ascertained.
15. Plaintiffs are informed and believe and thereon allege that at all times
10 mentioned herein, each of defendants State, San Francisco, San Mateo, Millbrae, San Bruno,
Il BART, SAMTRANS, CALTRAIN, and Does | through 20. inclusive, was the agent, servant,
12 employee, independent contractor, and/or joint venturer ofeach of the other defendants, and
13 was acting within the course, scope, and authority of said relationship(s) and that each such
14 defendant acting as a principal was negligent in the selection and hiring of each and every other
15 defendant as an agent, servant, employee, independent contractor, and/or joint venturer.
16 Defendants State, San Francisco, San Mateo, Millbrae, San Bruno, BART, SAMTRANS,
17 CALTRAIN, and Does | through 20, inclusive are sometimes referred to herein individually as
18 a “Defendant” and collectively as “Defendants.”
19 16. Each of the public entity Defendants is liable to the plaintiffs pursuant to,
20 without limitation, Government Code §§ 815.2, 815.4, 820, 830.8, 831, and 835.
21
22 PLAINTIFFS COMPLIED WITH CLAIMS PRESENTATION REQUIRE TS
23 17. The Plaintiffs have complied with the applicable government claims statutes.
24 18. On or about June 21, 2022, each of the Plaintiffs timely presented a claim to
BS) State in compliance with California Government Code, sections 910, et seq. By letters dated
26 November 9, 2022, the California Department of General Services rejected each of the
Plaintiffs’ said claims.
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28
4
COMPLAINT FOR DAMAGES
19. On or about June 21, 2022, each of the Plaintiffs timely presented a claim to
San Francisco in compliance with California Government Code, sections 910, et seq. By letters
dated June 24, 2022, San Francisco rejected each of the Plaintiffs’ claims other than the Estate
of Rolando, on which the public entity has never taken any action. Pursuant to Government
Cocle, section 912.4, said claim by the Estate of Rolando was rejected by operation of law on or
abo it August 5, 2022.
20. On or about June 15, 2022, each of the Plaintiffs timely presented a claim to
8 San Mateo in compliance with California Government Code, sections 910, et seq. By letters
9 dated August 9, 2022, San Mateo notified the Plaintiffs that it had rejected each of the
10 Plaintiffs’ claims.
II 21. On or about June 15, 2022, each of the Plaintiffs timely presented a claim to
12 Mil brae in compliance with California Government Code, sections 910, et seq. Pursuant to
is Government Code, section 912.4, each said claim was rejected by operation of law on or about
14 July 30, 2022.
1S 22. On or about June 15, 2022, each of the Plaintiffs timely presented a claim to
16 San Bruno in compliance with California Government Code, sections 910, et seq. By letters
17 dated July 27, 2022, San Bruno notified the Plaintiffs that it had rejected each of the Plaintiffs”
18 clains.
19 Z3. On or about June 16, 2022, each of the Plaintiffs timely presented a claim to
20 BART in compliance with California Government Code, sections 910, et seq. By letters dated
21 August 5, 2022, BART notified the Plaintiffs that each of the Plaintiffs’ claims had been
22 rejected by operation of law on August 5, 2022.
23 24. On or about June 16, 2022, each of the Plaintiffs timely presented a claim to
24 SAMTRANS in compliance with California Government Code, sections 910, et seq. By letters
25 dated August 5, 2022, SAMTRANS notified the Plaintiffs that each of the Plaintiffs’ claims had
26 been rejected by operation of law on August 4, 2022.
27 25: On or about June 15, 2022, each of the Plaintiffs timely presented a claim to
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CA_TRAIN in compliance with California Government Code, sections 910, et seq. By letters
5
COMPLAINT FOR DAMAGES
dated August 5, 2022, CALTRAIN notified the Plaintiffs that each of the Plaintiffs’ claims had
been rejected by operation of law on August 4, 2022.
26. To any extent that any Plaintiff may have not complied with any requirement
pertaining to the presentment of any government claim, said Plaintiff was not required to so
comply, the time period to so comply is equitably or otherwise tolled, the time to present a late
claim application has not yet expired, said Plaintiff's presentment is excused, the said Plaintiff
should be relieved of the requirement, and/or the pertinent public entity has failed to supply
correct and complete information to the roster of public agencies (see Government Code, secs.
946.4(a) and 53051, and Wilson v. San Francisco Redevelopment Agency (1977) 19 Cal.3d 555.
10 560).
Il DECEDENTS DROWNED IN THE DEFENDANTS’ UNDERPASS
12 2s Each of the Defendants substantially participated in the ownership, design,
13 construction, control, operation, maintenance, oversight, supervision, and repair of a public
14 work in or near Millbrae, California which includes, without limitation, a below-grade
15 underpass of Hillcrest Boulevard below at-grade rail lines that run roughly parallel to and
16 between Aviador Avenue and Hemlock Avenue (hereinafter, the “Underpass”) and appurtenant
17 street, rail, and drainage facilities and improvements, and adjacent and surrounding areas
18 (hereinafter, together with the Underpass, the “Public Property”).
19 28. The safety of motorists within the Underpass is dependent upon water
20 pumps evacuating water from the Underpass faster than water enters the Underpass.
21 During certain storm events the Public Property may cause or permit water to flow into
B2 the Underpass at a greater rate than the pumps and other drainage facilities and
23 improvements of the Public Property are capable of evacuating water and result in
24 flooding within the Underpass.
25 29. On or about December 23, 2021, Decedent Rolando was driving a 2018 Nissan
26 Frontier (hereinafter, the “Pickup”) and Decedent Susana was riding in the passenger seat of the
Pickup. At approximately 5:49 a.m., the couple entered the Underpass. The Underpass served as
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28 the only route of access to and from the Decedents’ neighborhood and home.
6
COMPLAINT FOR DAMAGES
30. After Decedents entered the Underpass, the Underpass filled with water, and
the depth of water within the Underpass rendered the Pickup non-operational. Decedents
Rolando and Susana attempted to extricate themselves from the Pickup and to summon help
from bystanders. Two bystanders attempted to help the Decedents escape the Pickup without
success. The depth of water within the Underpass rapidly increased. The rising water caused the
bystanders to discontinue efforts to rescue the Decedents. The rising water submerged the
Pick-up within minutes of the Decedents entering the Underpass.
BL. After the water within the Underpass receded, Decedents Rolando and Susana
9 wer? found together in the back seat of the Pickup. Both died of asphyxiation from drowning in
10 thei: submerged Pickup. Decedent Rolando appeared to have broken the driver’s side rear
11 window of the Pickup before he drowned. He was found with his foot protruding through the
12 broken window.
13 FIRST CAUSE OF ACTION
Dangerous Condition of Public Property (Wrongful Death)
14
(By Plaintiffs Regina Glorioso-Emerson, Christian Cunanan, Katryne Pioquinto, and John
15 Matthew Cunanan; Against Defendants State, San Francisco, San Mateo, Millbrae, San Bruno,
BART, SAMTRANS, CALTRAIN, and DOES | through 20, inclusive.)
16
17 B25 Plaintiffs re-allege as though fully set forth at length, and incorporate herein by
18 this reference, each of the allegations and statements contained in this Complaint.
19 33, The Plaintiffs are informed and believe that at pertinent times each of the
20 Defzndants had ongoing and continuous ownership and/or control over, without limitation, the
21 Public Property. Each of the Defendants treated the Public Property as if it were its property and
22 had the power to prevent, fix, or guard against the dangerous condition of the Public Property
23 alle zed herein.
24 34. The Public Property was in a dangerous condition at the time of the incident
25 alle zed herein. The condition of the Public Property put the Underpass at risk of abrupt and life-
26 threatening flooding. Such dangerous condition would not be anticipated by a reasonably
2 care ful person. The condition of the Public Property thereby created a substantial risk ofinjury,
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7
COMPLAINT FOR DAMAGES
including without limitation a risk of drowning, to members of the general public when used
with reasonable care and in a reasonably foreseeable manner.
35. The dangerous condition of the Public Property was created by wrongful
conduct of one or more employees of the Defendants, and of each of them, acting within the
scope of employment or the Defendants, and each of them, had notice of the dangerous
condition for a long enough time to have protected against the dangerous condition. Each of the
Defendants voluntarily undertook to maintain the Underpass in a condition safe to motorists and
negligently failed to do so.
36. Without limitation, each of the Defendants negligently designed, managed,
10 constructed, repaired, inspected, and maintained the Underpass and failed to remedy deficient
11 drainage of which it knew or should have known, failed to install warning signs or otherwise
12 warn of the potential for the Underpass to become flooded with water, failed to close the
13 Underpass to vehicular traffic when it flooded with water on December 23, 2021, and failed to
14 properly supervise, educate, train, monitor, and test workers including employees and
15 independent contractors who were responsible for the Public Property and for doing the acts and
16 tasks above.
17 37. The dangerous condition of the Public Property was a substantial factor in
18 causing the death of each of the Decedents.
19 38. Prior to his death, Decedent Rolando was the loving brother of Plaintiff Regina
20 As a direct, proximate, and legal cause of the Defendants’ negligence and wrongful conduct
21 alleged herein, and of the death of Decedent Rolando, Plaintiff Regina has suffered, without
22 limitation, severe emotional distress and the full extent of damages set forth in CACI 3921 and
23 the wrongful death statute including, without limitation:
24 a. Economic damages including, without limitation:
#5 i The value of the financial support that Decedent Rolando would
26 have contributed to Plaintiff Regina during the life expectancy of Decedent
Rolando and/or the life expectancy of Plaintiff Regina:
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8
COMPLAINT FOR DAMAGES.
ii. The loss of gifts and benefits that Plaintiff Regina could have
expected to receive from Decedent Rolando;
iii. Funeral and burial expenses; and
iv. The reasonable value of household services that Decedent
Rolando would have provided to Plaintiff Regina.
b Such non-economic damages include:
1 The loss of Decedent Rolando’s love, companionship, comfort,
care, assistance, protection, affection, society, and moral support; and
ii. The loss of Decedent Rolando’s future training and guidance.
10 39: Prior to her death, Decedent Susana was the loving mother of each of Susana’s
11 Survivors. As a direct, proximate, and legal cause of the Defendants’ negligence and wrongful
12 conduct alleged herein, and of the death of Decedent Susana, each of Susana’s Survivors has
13 suffered, without limitation, severe emotional distress and the full extent of damages set forth in
14 CAI 3921 and the wrongful death statute including, without limitation:
15 a. Economic damages including, without limitation:
16 i The value of the financial support that Decedent Susana would
17 have contributed to said Susana’s Survivor during the life expectancy of
18 Decedent Susana and/or the life expectancy of said Susana’s Survivor;
19 ii. The loss of gifts and benefits that said Susana’s Survivor could
20 have expected to receive from Decedent Susana;
21 iii. Funeral and burial expenses; and
22 iv. The reasonable value of household services that Decedent Susana
23 would have provided to said Susana’s Survivor.
24 b. Such non-economic damages include:
25 i The loss of Decedent Susana’s love, companionship, comfort,
26 care, assistance, protection, affection, society, and moral support: and
ii. The loss of Decedent Susana’s future training and guidance.
Carpenter &
Zuckerman
28
9
COMPLAINT FOR DAMAGES
I 40. As a direct, proximate, and legal result of the dangerous condition as alleged
herein, Plaintiffs Regina and Susana’s Survivors suffered injuries and damages according to
3 proofat time of trial in amounts which exceed the minimum jurisdictional limits of this court.
SECOND CAUSE OF ACTION
Negligence (Wrongful Death)
(By Plaintiffs Regina Glorioso-Emerson, Christian Cunanan, Katryne Pioquinto, and John
Matthew Cunanan; Against Defendants State, San Francisco, San Mateo, Millbrae, San Bruno,
BART, SAMTRANS, CALTRAIN, and DOES | through 20, inclusive.)
41. Plaintiffs re-allege as though fully set forth at length, and incorporate herein by
this reference, each of the allegations and statements contained in this Complaint.
10
42. The Plaintiffs are informed and believe that at pertinent times each of the
Il
Defendants, without limitation, owned, designed, constructed, operated, controlled, maintained,
12;
oversaw, supervised, and/or repaired the Public Property. Each of the Defendants owed a duty
13
of care not to harm the Decedents as they travelled into and through the Underpass. Moreover,
14
each of the Defendants voluntarily undertook to maintain the Underpass in a safe condition and
15
negligently failed to do so.
16
43. Each of the Defendants negligently owned, designed, constructed, operated,
17
controlled, maintained, oversaw, supervised, and/or repaired the Public Property so as to create
18
arisk of abrupt and life-threatening flooding within the Underpass, create a risk that the
19
Decedents would enter the Underpass and become trapped therein by water, and create a risk
20
that having become trapped within the Underpass by water the Decedents would suffer physical
21
injury or death.
22
44. Each of the Defendants treated the Public Property as its own with power to
prevent, warn of, mitigate, and/or guard against both the risk of the Underpass flooding and the
24
flooding of the Underpass alleged herein. Said risk and flooding were foreseeable to, and were
25
known or should have been known by, each of the Defendants. Each of the Defendants
26
negligently failed to prevent, warn of, mitigate. and guard against the risk of flooding within the
Carpenter &
Zuckerman Underpass and the flooding of the Underpass alleged herein.
28
10
COMPLAINT FOR DAMAGES
45. Each of the Defendants violated its duties to the Decedents and to the Plaintiffs
by failing to own, design, operate, maintain, inspect, construct, control, oversee, supervise, and
repzir the Public Property in a reasonably safe manner. Each of the Defendants further violated
its cuties to the Decedents and to the Plaintiffs by failing to hire,
Preview
Electronically by Superior Court of California, County of San Mateo ON 3/8/2023 LEWIS BRISBOIS BISGAARD & SMITH LLP CHRISTOPHER J. NEVIS, SB# 162812 By. /s/ Nesha Gaines E-Mail: Christopher.Nevis@lewisbrisbois.com Deputy Clerk STEFFANIE A. MALLA, SB# 266120 E-Mail: Steffanie.Malla@lewisbrisbois.com 45 Fremont Street, Suite 3000 San Francisco, California 94105 Telephone: 415.362.2580 Facsimile: 415.434.0882 Attorneys for Defendant/Cross-Complainant, SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 COMPLEX CIVIL 11 12 REGINA GLORIOSO-EMERSON; ESTATE Case No. 22-CIV-05181 OF ROLANDO GLORIOSO; CHRISTIAN 13 CUNANAN; KATRYNE PIOQUINTO; [Assigned for All Purposes to Judge Robert D. JOHN MATTHEW CUNANAN; and Foiles, Dept. 21] 14 ESTATE OF SUSANA GLORIOSO, DEFENDANT SAN FRANCISCO BAY 15 Plaintiffs, AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT 16 vs. Action Filed: December 9, 2022 17 CITY OF MILLBRAE; STATE OF Trial Date: None Set CALIFORNIA; CITY AND COUNTY OF 18 SAN FRANCISCO; COUNTY OF SAN MATEO; CITY OF SAN BRUNO; SAN 19 FRANCISCO AREA RAPID TRANSIT DISTRICT; SAN MATEO COUNTY 20 TRANSIT DISTRICT; PENINSULA CORRIDOR JOINT POWERS BOARD; and 21 DOES 1-20, 22 Defendants. 23 SAN FRANCISCO BAY AREA RAPID 24 TRANSIT DISTRICT, 25 Cross-Complainant, 26 vs. 27 ESTATE OF ROLANDO GLORIOSO; CITY OF MILLBRAE; and ROES | to 50, 28 LEWIS BRISBOIS BISGAARD ‘& SMITH LLP 80047010.1 1 Case No. 22-CIV-05181 ATTORNEYS ATLA DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT Cross-Defendants. Cross-Complainant SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT (“Cross-Complainant”) complain and allege against ESTATE OF ROLANDO GLORIOSO; CITY OF MILLBRAE; and ROES | to 50, inclusive, and each of them, as follows: GENERAL ALLEGATIONS 1 Cross-Complainant SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT is a public entity that operates in various Bay Area cities and counties, including San Mateo County, California. 10 2. On information and belief, Cross-Defendant ESTATE OF ROLANDO GLORIOSO. 11 was at all relevant times is the lawful successor in interest for Decedent Rolando Glorioso, who was 12 born on July 24, 1958, and passed away on December 23, 2021, in San Mateo County, California. 13 3 On information and belief, Cross-Defendant CITY OF MILLBRAE is a public entity 14 in San Mateo County, California. 15 4 Cross-Complainants are presently unaware of the true names, capacities, and liability 16 of ROES 1-50, inclusive, and Cross-Complainants will amend this Cross-Complaint to allege their 17 true names and capacities after the same has been ascertained. 18 5 Plaintiffs filed their Complaint in this action on December 9, 2022. A true and 19 correct copy of Plaintiffs’ Complaint is attached hereto as Exhibit A. Said Complaint and any future 20 amended complaints filed in this action are incorporated herein by reference as though fully set forth 21 herein, said incorporation by reference being solely for the purpose of identification. Cross- 22 Complainant does not admit the truth of any allegations contained in the Complaint. 23 6. In pertinent part, the Complaint alleges that on or about December 23, 2021, the 24 negligence of Cross-Complainant and others caused the death of Decedents ROLANDO 25 GLORIOSO and SUSANA GLORIOSO. 26 7 If Plaintiffs’ allegations are proved at trial, Cross-Complainant will be entitled to 27 contribution, indemnity and all of the other relief sought in the instant Cross-Complaint because 28 Cross-Defendants are responsible for the events and damages referred to in the Complaint in that LEWIS BRISBOIS BISGAARD ‘& SMITH LLP 80047010.1 2 Case No. 22-CIV-05181 ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT they negligently, intentionally, or otherwise caused the injury and damages claimed by Plaintiffs. FIRST CAUSE OF ACTION (Equitable Indemnity) 8 Cross-Complainants hereby incorporate by reference the allegations set forth in Paragraphs | through 7 above, as though fully set forth herein. 9 If Plaintiffs recover against Cross-Complainant in this action, then Cross- Complainant is entitled to equitable indemnity and apportionment of liability among and from Cross-Defendants and ROES 1-50, and each of them, according to their respective fault, for the injuries and damages allegedly sustained by Plaintiffs, if any, by way of sums paid by settlement, 10 or, in the alternative, any judgments rendered against Cross-Complainant in the action herein based 11 upon Plaintiffs’ Complaint. 12 10. Cross-Complainants expressly deny the allegations of the Complaint and any 13 wrongdoing on Cross-Complainant’s fault. Should Cross-Complainant nevertheless be found liable 14 to Plaintiffs on any of the causes of action included in the Complaint or any other alleged 15 wrongdoings with respect to the allegations of the Complaint, Cross-Complainant allege that the 16 acts and/or omissions of Cross-Complainants were passive and secondary, while those of Cross- 17 Defendants and ROES 1-50, and each of them, were active, primary and superseding. Thus, as a 18 direct, proximate, and foreseeable result of the wrongdoing of Cross-Defendants and ROES 1- 50, 19 and each of them, Cross-Complainant is entitled to total equitable indemnity from any and all 20 liability adjudged against them by Plaintiffs. 21 11. As a direct, proximate and foreseeable result of the filing of the Complaint, Cross- 22 Complainant has been compelled to incur attorneys’ fees, court costs, and the expense of this cross- 23 action, and Cross-Complainant will seek leave of court to amend this Cross-Complaint to set forth 24 the amount of said damages when the same have been ascertained. 25 12. Should Plaintiffs recover any amount of damages against Cross-Complainant by way 26 of judgment, settlement or otherwise, then Cross-Complainant by reason of the foregoing , is entitled 27 to an equitable apportionment of the liability of Cross-Defendants and ROES 1-50, and each of 28 them, on a comparative fault basis and a judgment against Cross-Defendants and ROES 1-50, and LEWIS BRISBOIS BISGAARD ‘& SMITH LLP 80047010.1 3 Case No. 22-CIV-05181 ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT each of them, under the doctrine of equitable indemnity and in an amount equal to their respective liabilities as so apportioned. SECOND CAUSE OF ACTION (Contribution) 13. Cross-Complainant hereby incorporates by reference the allegations set forth in paragraphs | through 12 above, as though fully set forth herein. 14. If Plaintiffs recover against Cross-Complainant in this action, then Cross- Complainant assert that said damages were proximately caused by the primary and active negligence or other fault of Cross-Defendants and ROES 1-50, and each of them, and any acts or omissions on 10 the part of Cross-Complainant’s were passive in nature and/or secondary to the acts and/or 11 omissions of Cross-Defendants and ROES 1-50, and each of them. 12 15. As a direct and proximate result of the primary, active negligence or other fault of 13 Cross-Defendants and ROES 1-50, and each of them, Cross-Complainant has incurred and continue 14 to incur costs, attorneys’ fees and other losses and damages in responding to the Complaint. 15 16. By reason of the foregoing, Cross-Complainant is entitled to contribution from 16 Cross-Defendants and ROES 1-50, and each of them, in the amount of any damages awarded against 17 Cross-Complainant in this action, plus costs of defense and attorneys’ fees incurred representing the 18 proportion of the amount recovered against Cross-Complainant in excess of the amount of fault, if 19 any, attributable to Cross-Complainant. 20 THIRD CAUSE OF ACTION 21 (Negligence) 22 17. Cross-Complainant hereby incorporates by reference the allegations set forth in 23 paragraphs | through 16 above, as though fully set forth herein. 24 18. Cross-Complainant is informed and believe, and based thereon alleges, that Cross- 25 Defendants, including ROES 1-50, and each of them, had a duty to exercise reasonable care and 26 diligence. 27 19. Cross-Complainant is further informed and believes, and based thereon alleges, that 28 Cross-Defendants, including ROES 1-50, and each of them, negligently and carelessly breached LEWIS BRISBOIS BISGAARD ‘& SMITH LLP 80047010.1 4 Case No. 22-CIV-05181 ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT their duties to exercise reasonable care and diligence to avoid loss and to minimize and mitigate damages which could have been prevented by reasonable efforts on the part of said Cross- Defendants, including ROES 1-50, and each of them. 20. Cross-Complainant is informed and believe, and based thereon alleges, that the failures and damages alleged by Plaintiffs, if any, occurred because of the negligence of Cross- Defendants and ROES 1-50, and each of them. 21. As a direct and proximate result of the negligence of Cross-Defendants, including ROES 1-50, and each of them, it is herein alleged that Cross-Complainant has incurred and continues to incur costs and expenses, including, but not limited to, litigation costs, attorneys’ fees, 10 and consultants’ fees to defend against Plaintiffs’ action herein. 11 FOURTH CAUSE OF ACTION 12 (Declaratory Relief) 13 22. Cross-Complainant hereby incorporates by reference the allegations set forth in 14 paragraphs | through 22 above, as though fully set forth herein. 15 23. Cross-Complainant seeks a Declaration by this Court as to its respective rights and 16 the duties and obligations of Cross-Defendants and ROES 1-50, and each of them, as to the matters 17 herein alleged, and a judgment in Cross-Complainant’s favor. Judicial determination is necessary 18 and appropriate at this time so that Cross-Complainant and Cross-Defendants, including ROES 1- 19 50, and each of them, may ascertain their rights and duties between them to the extent they relate to 20 the occurrences alleged in the Complaint and the Cross-Complaint, and to avoid a multiplicity of 21 lawsuits. 22 WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, including 23 ROES 1-50, and each of them, as follows: 24 1 That Cross-Complainant is entitled to total equitable indemnity from Cross- 25 Defendants and ROES 1-50, and each of them, in accordance with their respective faults; 26 2 That Cross-Complainant is entitled to contribution from Cross-Defendants and 27 ROES 1-50, and each of them; 28 3 That Cross-Complainants is entitled to damages for the negligence of Cross- LEWIS BRISBOIS BISGAARD ‘& SMITH LLP 80047010.1 5 Case No. 22-CIV-05181 ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT Defendants and ROES 1-50, and each of them; and 4 For a judicial determination of the rights and duties of Cross-Defendants and ROES 1-50, and each of them, relating to Cross-Complainant’s claims herein; 5 For costs of suit and expenses incurred in the defense of the Complaint, any Cross- Complaints, and in the prosecution of this Cross-Complaint; 6. For attorneys’ fees incurred in the defense of the Complaint, any Cross-Complaints, and in the prosecution of this Cross-Complaint; and 7 For such other and further relief as the Court may deem just and proper. DATED: March 8, 2023 LEWIS BRISBOIS BISGAARD & SMITH LLP 10 11 By. 12 Christopher J. "Nevis Steffanie A. Malla 13 Attorneys for Defendant/Cross-Complainant, SAN FRANCISCO BAY AREA RAPID TRANSIT 14 DISTRICT 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD ‘& SMITH LLP 80047010.1 6 Case No. 22-CIV-05181 ATTORNEYS AT LAW DEFENDANT SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT’S CROSS-COMPLAINT EXHIBIT A Rotert J. Ounjian, SBN 210213 Car enter & Zuckerman 8827 West Olympic Boulevard Beverly Hills, California 90211 Telephone: (310) 273-1230; Fax: (310) 858-1063 Emuail: robert@cz.law Lemuel L. Garcia, SBN 288695 Electronically Lem Garcia Law, PC by sine OF GSB 2D ‘of San Mateo 172) West Cameron Avenue, Suite 210 West Covina, California 91790 &y__is/Jeonifer Torres ___ Telephone: (626) 337-1111; Fax: (626) 337-1112 Email: lem@lemgarcialaw.com 9 Attorneys for Plaintiffs 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SAN MATEO 12 22-ClV-05181 13 REGINA GLORIOSO-EMERSON; ESTATE CASE NO.: 14 OF ROLANDO GLORIOSO; CHRISTIAN CUNANAN: KATRYNE PIOQUINTO; COMPLAINT FOR DAMAGES 15 JOFIN MATTHEW CUNANAN; and ESTATE OF SUSANA GLORIOSO 1. Dangerous Condition of Public 16 Property (Wrongful Death) 17 Plaintiffs, Negligence (Wrongful Death) 18 vs. 19 Continuation of Decedent Rolando CITY OF MILLBRAE; STATE OF Glorioso’s Causes of Action (Survival 20 CA_IFORNIA; CITY AND COUNTY OF Action) SAIN FRANCISCO; COUNTY OF SAN a MATEO; CITY OF SAN BRUNO; SAN FRANCISCO AREA RAPID TRANSIT Continuation of Decedent Susana 22 DISTRICT; SAN MATEO COUNTY Glorioso’s Causes of Action (Survival 23 TRANSIT DISTRICT; PENINSULA Action) CORRIDOR JOINT POWERS BOARD; and 24 DOES 1-20. *** DEMAND FOR JURY TRIAL *** 25 Defendants. 26 2 Carpenter & Zuckerman 28 1 COMPLAINT FOR DAMAGES COME NOW Plaintiffs Regina Glorioso-Emerson, Estate of Rolando Glorioso, Christian Cunanan, Katryne Pioquinto, John Matthew Cunanan, and Estate of Susana Glorioso who for causes of action against defendants City of Millbrae, State of California, City and County of San Francisco, County of San Mateo, City of San Bruno, San Francisco Area Rapid Transit District, San Mateo County Transit District, Peninsula Corridor Joint Powers Board, and Does I-20, complain and allege as follows: THE PARTIES 1 Decedent Rolando Glorioso (hereinafter, “Decedent Rolando”) was born on 10 July 24, 1958, and passed away on December 23, 2021, in San Mateo County, California. 11 Decedent Rolando appears in this action through Plaintiff Estate of Rolando Glorioso 12 (hereinafter, “Estate of Rolando”). 13 2 Plaintiff Regina Glorioso-Emerson (hereinafter, “Regina’”) is an individual 14 residing in the State of California. Regina is the sole survivor of Decedent Rolando. Pursuant 15 to the operation of Code of Civil Procedure § 377.60, Regina is the heir, successor in interest, 16 and the person lawfully entitled to assert a cause of action for the wrongful death of Decedent 17 Rolando. No other person has any claim, right, or interest in the cause of action for wrongful 18 death of Decedent Rolando that is superior to the claims by Regina. 19 a At the time of his death, Decedent Rolando had no children and his 20 parents had pre-deceased him. Decedent Rolando and his spouse, Decedent Susana Glorioso, 21 died on the same day. Regina is Decedent Rolando’s only surviving sibling. 22 3 Decedent Susana Glorioso (hereinafter, “Decedent Susana”) was born on a February 3, 1959, and passed away on December 23, 2021, in San Mateo County, California. 24 Decedent Susana appears in this action through Plaintiff Estate of Susana Glorioso (hereinafter, 25 “Estate of Susana”). Decedent Rolando and Decedent Susana will sometimes be referred to 26 herein collectively as “Decedents.” 27 a. At the time of her death, Decedent Susana’s parents had pre-deceased Carpenter & Zuckerman 28 her. Decedent Susana and her spouse, Decedent Rolando, died on the same day. Plaintiffs 2 COMPLAINT FOR DAMAGES Christian Cunanan, Katryne Pioquinto, and John Matthew Cunanan are Decedent Susana’s only surviving children. 4 Plaintiffs Christian Cunanan (hereinafter, “Christian”), Katryne Pioquinto (hereinafter, “Katryne”), and John Matthew Cunanan (hereinafter, “John”) are individuals residing in Canada. Christian, Katryne, and John are sometimes referred to herein collectively as “Susana’s Survivors.” Pursuant to the operation of Code ofCivil Procedure §377.60, Susana’s Survivors are the heirs, successors in interest, and the persons lawfully entitled to assert a cause of action for the wrongful death of Decedent Susana. No other person has any clain, right, or interest in the cause of action for wrongful death of Decedent Susana that is 10 superior to the claims by Susana’s Survivors. a 11 D) Plaintiffs Estate of Rolando, Regina, Estate of Susana, and Susana’s Survivors 12 are sometimes referred to herein collectively as the “Plaintiffs.” 13 6. Defendant State of California (hereinafter, “State”) is a public entity. 14 7. Defendant City and County of San Francisco (hereinafter, “San Francisco”) is a 15 public entity in the State of California. 16 8 Defendant County of San Mateo (hereinafter, “San Mateo”) is a public entity in 17 the State of California. 18 9 Defendant City of Millbrae (hereinafter, “Millbrae”) is a public entity in the 19 County of San Mateo, State of California. 20 10. Defendant City of San Bruno (hereinafter, “San Bruno”) is a public entity in the 21 County of San Mateo, State of California. 22 ll. Defendant San Francisco Area Rapid Transit District (hereinafter, “BART”) is 23 a ptblic entity in the County of Alameda, State of California with substantial operations in the 24 cou ities of San Francisco, San Mateo, Alameda, Contra Costa, and Santa Clara. 25 125 Defendant San Mateo County Transit District (hereinafter, “SAMTRANS’”) is a 26 public entity in the County of San Mateo, State of California 13; Defendant Peninsula Corridor Joint Powers Board (hereinafter, “CALTRAIN” Carpenter & Zuckerman 28 is a public entity in the County of San Mateo, State of California. Ss COMPLAINT FOR DAMAGES 14. The true names and/or capacities, whether individual, corporate, associate or otherwise of Defendants Does | through 20, inclusive, and each of them, are unknown to the Plaintiffs who therefore sue said defendants by such fictitious names. Plaintiffs are informed and believe and thereon allege that each of the defendants fictitiously named herein as a Doe is legally responsible, negligent. or in some other actionable manner liable for the events and happenings referred to herein, and proximately and legally caused the injuries to plaintiffs as hereinafter alleged. Plaintiffs will seek leave of the court to amend this Complaint to insert the true names and/or capacities of such fictitiously named defendants as and when ascertained. 15. Plaintiffs are informed and believe and thereon allege that at all times 10 mentioned herein, each of defendants State, San Francisco, San Mateo, Millbrae, San Bruno, Il BART, SAMTRANS, CALTRAIN, and Does | through 20. inclusive, was the agent, servant, 12 employee, independent contractor, and/or joint venturer ofeach of the other defendants, and 13 was acting within the course, scope, and authority of said relationship(s) and that each such 14 defendant acting as a principal was negligent in the selection and hiring of each and every other 15 defendant as an agent, servant, employee, independent contractor, and/or joint venturer. 16 Defendants State, San Francisco, San Mateo, Millbrae, San Bruno, BART, SAMTRANS, 17 CALTRAIN, and Does | through 20, inclusive are sometimes referred to herein individually as 18 a “Defendant” and collectively as “Defendants.” 19 16. Each of the public entity Defendants is liable to the plaintiffs pursuant to, 20 without limitation, Government Code §§ 815.2, 815.4, 820, 830.8, 831, and 835. 21 22 PLAINTIFFS COMPLIED WITH CLAIMS PRESENTATION REQUIRE TS 23 17. The Plaintiffs have complied with the applicable government claims statutes. 24 18. On or about June 21, 2022, each of the Plaintiffs timely presented a claim to BS) State in compliance with California Government Code, sections 910, et seq. By letters dated 26 November 9, 2022, the California Department of General Services rejected each of the Plaintiffs’ said claims. Carpenter & Zuckerman 28 4 COMPLAINT FOR DAMAGES 19. On or about June 21, 2022, each of the Plaintiffs timely presented a claim to San Francisco in compliance with California Government Code, sections 910, et seq. By letters dated June 24, 2022, San Francisco rejected each of the Plaintiffs’ claims other than the Estate of Rolando, on which the public entity has never taken any action. Pursuant to Government Cocle, section 912.4, said claim by the Estate of Rolando was rejected by operation of law on or abo it August 5, 2022. 20. On or about June 15, 2022, each of the Plaintiffs timely presented a claim to 8 San Mateo in compliance with California Government Code, sections 910, et seq. By letters 9 dated August 9, 2022, San Mateo notified the Plaintiffs that it had rejected each of the 10 Plaintiffs’ claims. II 21. On or about June 15, 2022, each of the Plaintiffs timely presented a claim to 12 Mil brae in compliance with California Government Code, sections 910, et seq. Pursuant to is Government Code, section 912.4, each said claim was rejected by operation of law on or about 14 July 30, 2022. 1S 22. On or about June 15, 2022, each of the Plaintiffs timely presented a claim to 16 San Bruno in compliance with California Government Code, sections 910, et seq. By letters 17 dated July 27, 2022, San Bruno notified the Plaintiffs that it had rejected each of the Plaintiffs” 18 clains. 19 Z3. On or about June 16, 2022, each of the Plaintiffs timely presented a claim to 20 BART in compliance with California Government Code, sections 910, et seq. By letters dated 21 August 5, 2022, BART notified the Plaintiffs that each of the Plaintiffs’ claims had been 22 rejected by operation of law on August 5, 2022. 23 24. On or about June 16, 2022, each of the Plaintiffs timely presented a claim to 24 SAMTRANS in compliance with California Government Code, sections 910, et seq. By letters 25 dated August 5, 2022, SAMTRANS notified the Plaintiffs that each of the Plaintiffs’ claims had 26 been rejected by operation of law on August 4, 2022. 27 25: On or about June 15, 2022, each of the Plaintiffs timely presented a claim to Carpenter & Zuckerman 28 CA_TRAIN in compliance with California Government Code, sections 910, et seq. By letters 5 COMPLAINT FOR DAMAGES dated August 5, 2022, CALTRAIN notified the Plaintiffs that each of the Plaintiffs’ claims had been rejected by operation of law on August 4, 2022. 26. To any extent that any Plaintiff may have not complied with any requirement pertaining to the presentment of any government claim, said Plaintiff was not required to so comply, the time period to so comply is equitably or otherwise tolled, the time to present a late claim application has not yet expired, said Plaintiff's presentment is excused, the said Plaintiff should be relieved of the requirement, and/or the pertinent public entity has failed to supply correct and complete information to the roster of public agencies (see Government Code, secs. 946.4(a) and 53051, and Wilson v. San Francisco Redevelopment Agency (1977) 19 Cal.3d 555. 10 560). Il DECEDENTS DROWNED IN THE DEFENDANTS’ UNDERPASS 12 2s Each of the Defendants substantially participated in the ownership, design, 13 construction, control, operation, maintenance, oversight, supervision, and repair of a public 14 work in or near Millbrae, California which includes, without limitation, a below-grade 15 underpass of Hillcrest Boulevard below at-grade rail lines that run roughly parallel to and 16 between Aviador Avenue and Hemlock Avenue (hereinafter, the “Underpass”) and appurtenant 17 street, rail, and drainage facilities and improvements, and adjacent and surrounding areas 18 (hereinafter, together with the Underpass, the “Public Property”). 19 28. The safety of motorists within the Underpass is dependent upon water 20 pumps evacuating water from the Underpass faster than water enters the Underpass. 21 During certain storm events the Public Property may cause or permit water to flow into B2 the Underpass at a greater rate than the pumps and other drainage facilities and 23 improvements of the Public Property are capable of evacuating water and result in 24 flooding within the Underpass. 25 29. On or about December 23, 2021, Decedent Rolando was driving a 2018 Nissan 26 Frontier (hereinafter, the “Pickup”) and Decedent Susana was riding in the passenger seat of the Pickup. At approximately 5:49 a.m., the couple entered the Underpass. The Underpass served as Carpenter & Zuckerman 28 the only route of access to and from the Decedents’ neighborhood and home. 6 COMPLAINT FOR DAMAGES 30. After Decedents entered the Underpass, the Underpass filled with water, and the depth of water within the Underpass rendered the Pickup non-operational. Decedents Rolando and Susana attempted to extricate themselves from the Pickup and to summon help from bystanders. Two bystanders attempted to help the Decedents escape the Pickup without success. The depth of water within the Underpass rapidly increased. The rising water caused the bystanders to discontinue efforts to rescue the Decedents. The rising water submerged the Pick-up within minutes of the Decedents entering the Underpass. BL. After the water within the Underpass receded, Decedents Rolando and Susana 9 wer? found together in the back seat of the Pickup. Both died of asphyxiation from drowning in 10 thei: submerged Pickup. Decedent Rolando appeared to have broken the driver’s side rear 11 window of the Pickup before he drowned. He was found with his foot protruding through the 12 broken window. 13 FIRST CAUSE OF ACTION Dangerous Condition of Public Property (Wrongful Death) 14 (By Plaintiffs Regina Glorioso-Emerson, Christian Cunanan, Katryne Pioquinto, and John 15 Matthew Cunanan; Against Defendants State, San Francisco, San Mateo, Millbrae, San Bruno, BART, SAMTRANS, CALTRAIN, and DOES | through 20, inclusive.) 16 17 B25 Plaintiffs re-allege as though fully set forth at length, and incorporate herein by 18 this reference, each of the allegations and statements contained in this Complaint. 19 33, The Plaintiffs are informed and believe that at pertinent times each of the 20 Defzndants had ongoing and continuous ownership and/or control over, without limitation, the 21 Public Property. Each of the Defendants treated the Public Property as if it were its property and 22 had the power to prevent, fix, or guard against the dangerous condition of the Public Property 23 alle zed herein. 24 34. The Public Property was in a dangerous condition at the time of the incident 25 alle zed herein. The condition of the Public Property put the Underpass at risk of abrupt and life- 26 threatening flooding. Such dangerous condition would not be anticipated by a reasonably 2 care ful person. The condition of the Public Property thereby created a substantial risk ofinjury, Carpenter & Zuckerman 28 7 COMPLAINT FOR DAMAGES including without limitation a risk of drowning, to members of the general public when used with reasonable care and in a reasonably foreseeable manner. 35. The dangerous condition of the Public Property was created by wrongful conduct of one or more employees of the Defendants, and of each of them, acting within the scope of employment or the Defendants, and each of them, had notice of the dangerous condition for a long enough time to have protected against the dangerous condition. Each of the Defendants voluntarily undertook to maintain the Underpass in a condition safe to motorists and negligently failed to do so. 36. Without limitation, each of the Defendants negligently designed, managed, 10 constructed, repaired, inspected, and maintained the Underpass and failed to remedy deficient 11 drainage of which it knew or should have known, failed to install warning signs or otherwise 12 warn of the potential for the Underpass to become flooded with water, failed to close the 13 Underpass to vehicular traffic when it flooded with water on December 23, 2021, and failed to 14 properly supervise, educate, train, monitor, and test workers including employees and 15 independent contractors who were responsible for the Public Property and for doing the acts and 16 tasks above. 17 37. The dangerous condition of the Public Property was a substantial factor in 18 causing the death of each of the Decedents. 19 38. Prior to his death, Decedent Rolando was the loving brother of Plaintiff Regina 20 As a direct, proximate, and legal cause of the Defendants’ negligence and wrongful conduct 21 alleged herein, and of the death of Decedent Rolando, Plaintiff Regina has suffered, without 22 limitation, severe emotional distress and the full extent of damages set forth in CACI 3921 and 23 the wrongful death statute including, without limitation: 24 a. Economic damages including, without limitation: #5 i The value of the financial support that Decedent Rolando would 26 have contributed to Plaintiff Regina during the life expectancy of Decedent Rolando and/or the life expectancy of Plaintiff Regina: Carpenter & Zuckerman 28 8 COMPLAINT FOR DAMAGES. ii. The loss of gifts and benefits that Plaintiff Regina could have expected to receive from Decedent Rolando; iii. Funeral and burial expenses; and iv. The reasonable value of household services that Decedent Rolando would have provided to Plaintiff Regina. b Such non-economic damages include: 1 The loss of Decedent Rolando’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support; and ii. The loss of Decedent Rolando’s future training and guidance. 10 39: Prior to her death, Decedent Susana was the loving mother of each of Susana’s 11 Survivors. As a direct, proximate, and legal cause of the Defendants’ negligence and wrongful 12 conduct alleged herein, and of the death of Decedent Susana, each of Susana’s Survivors has 13 suffered, without limitation, severe emotional distress and the full extent of damages set forth in 14 CAI 3921 and the wrongful death statute including, without limitation: 15 a. Economic damages including, without limitation: 16 i The value of the financial support that Decedent Susana would 17 have contributed to said Susana’s Survivor during the life expectancy of 18 Decedent Susana and/or the life expectancy of said Susana’s Survivor; 19 ii. The loss of gifts and benefits that said Susana’s Survivor could 20 have expected to receive from Decedent Susana; 21 iii. Funeral and burial expenses; and 22 iv. The reasonable value of household services that Decedent Susana 23 would have provided to said Susana’s Survivor. 24 b. Such non-economic damages include: 25 i The loss of Decedent Susana’s love, companionship, comfort, 26 care, assistance, protection, affection, society, and moral support: and ii. The loss of Decedent Susana’s future training and guidance. Carpenter & Zuckerman 28 9 COMPLAINT FOR DAMAGES I 40. As a direct, proximate, and legal result of the dangerous condition as alleged herein, Plaintiffs Regina and Susana’s Survivors suffered injuries and damages according to 3 proofat time of trial in amounts which exceed the minimum jurisdictional limits of this court. SECOND CAUSE OF ACTION Negligence (Wrongful Death) (By Plaintiffs Regina Glorioso-Emerson, Christian Cunanan, Katryne Pioquinto, and John Matthew Cunanan; Against Defendants State, San Francisco, San Mateo, Millbrae, San Bruno, BART, SAMTRANS, CALTRAIN, and DOES | through 20, inclusive.) 41. Plaintiffs re-allege as though fully set forth at length, and incorporate herein by this reference, each of the allegations and statements contained in this Complaint. 10 42. The Plaintiffs are informed and believe that at pertinent times each of the Il Defendants, without limitation, owned, designed, constructed, operated, controlled, maintained, 12; oversaw, supervised, and/or repaired the Public Property. Each of the Defendants owed a duty 13 of care not to harm the Decedents as they travelled into and through the Underpass. Moreover, 14 each of the Defendants voluntarily undertook to maintain the Underpass in a safe condition and 15 negligently failed to do so. 16 43. Each of the Defendants negligently owned, designed, constructed, operated, 17 controlled, maintained, oversaw, supervised, and/or repaired the Public Property so as to create 18 arisk of abrupt and life-threatening flooding within the Underpass, create a risk that the 19 Decedents would enter the Underpass and become trapped therein by water, and create a risk 20 that having become trapped within the Underpass by water the Decedents would suffer physical 21 injury or death. 22 44. Each of the Defendants treated the Public Property as its own with power to prevent, warn of, mitigate, and/or guard against both the risk of the Underpass flooding and the 24 flooding of the Underpass alleged herein. Said risk and flooding were foreseeable to, and were 25 known or should have been known by, each of the Defendants. Each of the Defendants 26 negligently failed to prevent, warn of, mitigate. and guard against the risk of flooding within the Carpenter & Zuckerman Underpass and the flooding of the Underpass alleged herein. 28 10 COMPLAINT FOR DAMAGES 45. Each of the Defendants violated its duties to the Decedents and to the Plaintiffs by failing to own, design, operate, maintain, inspect, construct, control, oversee, supervise, and repzir the Public Property in a reasonably safe manner. Each of the Defendants further violated its cuties to the Decedents and to the Plaintiffs by failing to hire,