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  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
  • GREGG, ROBERT vs ATLAS VAN LINES INCOther Personal Injury: Unlimited  document preview
						
                                

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FREEMAN MATHIS & GARY, LLP Electronically Filed PAUL A. BIGLEY / Bar No. 119462 KENNETH H. CORONEL / Bar No. 137225 10/8/2020 7:23 PM 44 Montgomery Street, Suite 3580 Superior Court of California San Francisco, California 94104-6702 County of Stanislaus (415) 627-9000; FAX: (213) 615-7100 Clerk of the Court By: Sonia Krohn, Deputy Mailing Address: 550 South Hope Street, 22nd Floor Los Angeles, California 90071-2627 Attomeys for Defendants $435 PAID ATLAS VAN LINES, INC. and SOTERO SALAZAR ROMAN SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF STANISLAUS 11 12 ROBERT GREGG, SUZANNE GREGG, and Case No. CV-19-005163 13 KEAGHAN PATRICK, (Consolidated with Case No. CV-20-000811) 14 Plaintiffs, Vv. 15 NOTICE OF MOTION AND MOTION ATLAS VAN LINES, INC., SOTERO FOR LEAVE TO FILE CROSS- 16 SALAZAR ROMAN, JAIME RAMIREZ- COMPLAINT IN CASE NO. CV-19- TORRES, MARK WEBSTER PEREZ, and DOES 005163; MEMORANDUM OF POINTS 17 1 through 50, inclusive, AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY; AND 18 Defendants. [PROPOSED] ORDER 19 20 AND RELATED AND CONSOLIDATED Date: November 13, 2020 CROSS-ACTIONS. Time: 8:30 am. 21 Dept.: 24 22 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 23 Please take notice that on November 13, 2020 at 8:30 a.m. or as soon thereafter as the 24 matter may be heard in Department 24 of the above entitled Court, located at 801 10" Street, 25 Modesto, CA 95354, Defendants Atlas Van Lines, Inc. and Sotero Salazar Roman (collectively 26 (“Defendants”) will and hereby do move this Court for an order granting Defendants leave to file a 27 Freeman Mathis Cross-Complaint for equitable indemnity in Case No. CV-19-005163, a copy of which is attached Gary, LP Atomeys at Law 28 1 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 hereto as ExhibitA. (This motion is filed with a companion motion for Leave to File a Cross-Complaint in the consolidated action, Case No. CV-20-000811.) This motion is made pursuant to Code of Civil Procedure sections 426.50, 428.50 and 473 and California Rules of Court, Rule 3.110. This motion is based on the following Memorandum of Points and Authorities, the Declaration of Paul Bigley and proposed attached Cross-Complaint filed and served herewith, any further papers and the oral argument offered in support of the motion, and the Court’s complete file for this matter. 10 11 Dated: October 8, 2020 FREEMAN MATHIS & GARY, LLP 12 13 ay, Meet Pinal 14 KENNETH H. CORONEL Attorneys for Defendants 15 ATLAS VAN LINES, INC. and SOTERO SALAZAR ROMAN 16 17 18 19 20 21 22 23 24 25 26 27 Freeman Mathis Gary, LP ‘Atomeys at Law 28 2 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 MEMORANDUM OF POINTS AND AUTHORITIES A. FACTUAL BACKGROUND OF THE CASE This case pertains to a motor vehicle accident which occurred about noon on June 27, 2019 on State Route 120 in San Joaquin County. The accident resulted in the tragic death of Mikayla Ann Gregg, age 21. It was clear and dry on the day of the accident. Keaghan Patrick was driving a red Hyundai Accent eastbound on SR-120 in Manteca with Ms. Gregg as a passenger. Eastbound SR-120 consists of two lanes and a shoulder. He wanted to take the upcoming exit on the right to Modesto 10 but, there were trucks and traffic in lane No. 2 which were moving at 55 miles per hour and 11 blocking access to the lane. He merged into a small gap in between two large trucks. Mr. Patrick 12 told an investigating officer that he was going between 70 to 75 miles per hour when he squeezed 13 into the No. 2 lane. 14 Thus, as he was going about 10 to 15 miles per hour faster in the No. 1 lane than the No. 2 15 lane, he had to slow to enter the No. 2 lane. Making the situation more precarious, traffic in the No. 16 2 lane was braking hard when Mr. Patrick drove into it because it was stopping ahead. 17 When he merged into the No. 2 lane, Mr. Patrick slid behind a tractor-trailer driven by Mr. 18 Ramirez-Torres. Directly behind him was a box truck driven by Mr. Roman. As a result, when Mr. 19 Patrick entered the No. 2 lane he robbed Mr. Roman of valuable stopping distance which was 20 between him and the Torres truck in front of him. Mr. Roman, in the box truck behind Mr. 21 Patrick’s car, was not able to slow sufficiently before hitting the Patrick car, which was then 22 pushed forward, into and undemeath the tractor trailer ahead of Mr. Patrick. 23 Defense counsel now believes that Mr. Patrick’s conduct was a substantial, if not the sole, 24 cause of the accident. As set forth below and in the Bigley Declaration, the facts supporting a 25 cross-complaint against Mr. Patrick were very recently learned. It has also recently been learned 26 that Defendant Jaime Ramirez-Torres was a probable contributing cause of the accident, the details 27 of which are set forth in the supporting declaration, below. Freeman Mathis Gary, LP Atomeys at Law 28 Il 3 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 B. PROCEDURAL STATUS OF THE CASE The decedent’s parents, Robert Gregg and Suzanne Gregg, filed a wrongful death action on August 6, 2019 in the San Joaquin Superior Court. A separate action was filed in the Stanislaus Superior Court by the occupants of a car caught up in the crash, Mark Perez for personal injuries and his wife Natalie Perez for loss of consortium. The two cases have been consolidated into the Stanislaus case and the San Joaquin action has been dismissed. Trial has not been set. C. THE PROPOSED CROSS-COMPLAINT The proposed Cross-Complaint, Ex. A hereto, is brought by Defendants Sotero Salazar 10 Roman (“Roman”) and Atlas Van Lines, Inc. (“Atlas”) against K eaghan Patrick and Jaimie 11 Ramirez-Torres, stating causes of action for Equitable Indemnity, Declaratory Relief, and 12 Contribution. 13 14 D. AUTHORITY FOR THE MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT 15 An order allowing leave to file a cross-complaint may be obtained under Code of Civil 16 Procedure section 426.50: 17 “A party who fails to plead a cause of action subject to the requirements of this article, 18 whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the 19 court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at 20 any time during the course of the action. The court, after notice to the adverse party, shall 21 22 grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file 23 the cross-complaint, to assert such cause if the party who failed to plead the cause acted in 24 good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of 25 action.” 26 Leave is also requested under Code of Civil Procedure section 473 which allows 27 Freeman Mathis Gary, LP amendment “in the furtherance of justice.” Atomeys at Law 28 4 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 E. LEAVE TO FILE A CROSS-COMPLAINT SHOULD BE LIBERALLY PERMITTED California has long embraced the policy of allowing liberal amendment of pleadings based 4} on the strong public policy of disposing of cases on their merits, rather than on procedural grounds. See, e.g., Weingarten v. Block (1980) 102 Cal.App. 3d 129; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920; Permalab-Metalab Equip. Corp. v. Md. Cas. Co. (1972) 25 Cal.App.3d 466; Klopstock v. Superior Court (1941) 17 Cal.2d 13. Desny v. Wilder (1956) 46 Cal.2d 715, 751. It is an abuse of discretion to deny a timely motion to amend when the refusal deprives a 10 party of the right to assert a meritorious cause of action or defense, as long as granting the motion 11 will not prejudice the opposing party. Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 12 1024, 1031. 13 Code Civ. Proc. § 473(a) provides that the court, in its discretion and in furtherance of 1 justice, may allow any party to amend a pleading or proceeding for mistake or upon any terms “as 1 may be proper.” Similarly, Code Civil Procedure § 576 also permits a judge to allow the 1 amendment of any pleading in the “furtherance of justice.” California courts apply a liberal 17 standard in allowing such amendments to pleadings at any stage of the proceeding, even during 18 trial. See Cal. Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal. App.3d 274, 278; Saari v. 1 Superior Court of Humboldt County (1960) 178 Cal.App.2d 175); Legg v. Mutual Ben. Health & 2 Acci. Asso. (1958) 162 Cal.App.2d 409; Youngblood v. Los Angeles (1958) 160 Cal. App.2d 481; 2 Eng v. Brown (2018) 21 Cal.App.5th 675, 706. 22 23 F. COUNSEL FOR DEFENDANTS HAS RECENTLY LEARNED FACTS 24 SUPPORTING AN EQUITABLE INDEMNITY CROSS-COMPLAINT AGAINST 25 PATRICK AND RAMIREZ-TORRES 26 Defendants’ counsel learned of the dangerous situation created by Mr. Patrick from the 2 Freeman Mathis deposition testimony of an eye witness involved in the crash. Gary, LP ‘Atomeys at Law 28 5 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 Jaime Ramirez-Torres, the man driving the tractor trailer in lane No. 2 ahead of Patrick, was deposed on June 19, 2020. He testified: e that he had traveled that route many times before and was familiar with it; e that shortly before the accident he recalled seeing the cars ahead of him breaking; e that his speed was about 55 miles per hour when he began to brake; that he was moving about 25 miles per hour when the Patrick car hit the rear of his rig; that the Patrick car was not fully in Lane No. 2 when it struck his truck; that at the time he was checking his rear view mirrors on each side every two to three seconds; 10 that at no time did he see Patrick’s car behind him; 11 that he checked his rear view mirror two or three seconds before being struck by the Patrick 12 car and he saw only Roman’s Atlas box truck. (See Bigley Decl.) 13 Mr. Ramirez-Torres’ testimony is consistent with the statements of an eye witness taken at 14 the scene by a CHP officer from a Mr. Whisenton. Mr. Whisenton said that he saw the Patrick car 15 waiting to merge into lane No. 2 which was traveling at 50-55 mph. He saw Patrick merge into the 16 No. 2 lane directly in front of the Atlas box truck and then he immediately observed brake lights 17 ahead of him and a big dust cloud. He also said that he did not believe that Patrick did not make it 18 all the way into lane No. 2 before being struck by the box truck. 19 Unfortunately, Mr. Whisenton has something of a checkered past and despite diligent 20 efforts counsel has been unable to serve him with a subpoena. 21 Nevertheless, we now have credible evidence of Patrick’s dangerous move. As such, 22 Defendants see no need to wait to request leave to amend until after Whisenton is found, served 23 and deposed. 24 25 G. DEFENDANTS’ COUNSEL HAS ALSO RECENTLY LEARNED, FROM MR. 26 RAMIREZ-TORRES HIMSELF HOW HIS CONDUCT MAY HAVE 27 CONTRIBUTED TO THE ACCIDENT Freeman Mathis Gary, LP Atomeys at Law 28 Mr. Ramirez-Torres aggravated the situation because he was careless and inattentive. He 6 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 was on the phone at the time of the accident, not realizing that traffic ahead was coming to a stop, his large truck blocking the view of traffic ahead. When Mr. Ramirez-Torres did not have enough room to stop, he swerved his truck to the right, onto the shoulder, suddenly revealing stopped traffic, robbing those behind him of stopping distance. H. NEITHER MR. PATRICK NOR MR. RAMIREZ-TORRES WILL BE PREJUDICED BY THE CROSS-COMPLAINT The actions taken by Mr. Patrick and Mr. Ramirez-Torres will be examined by the parties in detail and with great scrutiny. In discovery, the parties will study their conduct under a microscope because they are entitled to a reduction in damages (assuming any are to be found 10 against Defendants) due to his comparative negligence. The conduct of Patrick and Ramirez-Torres 11 is therefore “front and center” in terms of discovery, regardless of whether or not there is a cross- 12 complaint against them. Furthermore, a trial date has not yet been set and the Cross-Defendants 13 will have ample time to respond to the Cross-Complaint and conduct discovery. 14 15 I. CONCLUSION 16 Motions for leave to amend or file pleadings in California are liberally granted. The public 17 interest in conducting fair, equitable, and just trials trumps formal pleading requirements. As such, 18 unless the opposing party is prejudiced by the filing of a cross-complaint, it is rare in California 19 that a motion to amend or to file a cross-complaint is not granted. As good cause exists, it is 20 respectfully requested that this motion be granted. 21 22 Respectfully submitted, 23 Dated: October 8, 2020 FREEMAN MATHIS & GARY, LLP 24 25 Ment fa 26 KENNETH H. CORONEL 27 Attorneys for Defendants Freeman Mathis Gary, LP ATLAS VAN LINES, INC. and ‘Atomeys at Law 28 SOTERO SALAZAR ROMAN 7 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 DECLARATION OF PAUL A. BIGLEY I, PAULA. BIGLEY, declare as follows: 1 I am an attorney at law duly licensed to practice before all of the courts in the State of California. I am a member of the law firm Freeman Mathis & Gary, LLP, counsel of record for Defendants Atlas Van Lines., and Sotero Salazar Roman in this action (“Defendants”). Except for those facts asserted on information and belief, I have personal knowledge of the facts set forth in this Declaration and, if called as a witness, could and would testify competently to such facts under oath. As to matters stated which are on information and belief, I believe them to be true. 2 This Declaration is submitted in support of Defendant’s Motion for Leave to File a 10 Cross-Complaint. 11 3 This consolidated case arises out of a traffic accident which occurred on June 27, 12 2019 in Manteca, San Joaquin, CA. The accident resulted in the tragic death of a young woman, 13 Mikayla Ann Gregg, age 21. At the time of the incident, she was a passenger in a car driven by her 14 boyfriend, Keaghan Patrick. 15 4 On or about July 27, 2020, the firm of Cholakian & Associates filed a Substitution 16 of Attorney, substituting this firm as counsel of record in the consolidated cases for Defendants 17 Atlas Van Lines, Inc. and Sotero Salazar Roman. In connection with the transition, we have 18 recently received and are currently in the course of reviewing the extensive case file. My review of 19 the file reveals some investigation and discovery have been conducted to date. However, the pace 20 of the case has undoubtedly been slowed by the pandemic. 21 5. Based on my review of the file materials and particularly the recent deposition of an 22 eye witness involved in the crash, I have reached the opinion that Mr. Patrick was driving 23 carelessly, if not recklessly. We have learned that Mr. Patrick made a dangerous lane change, 24 squeezing in between big rigs that were travelling much slower than he was. 25 6 This conclusion is premised on the deposition testimony of Jaime Ramirez-Torres. 26 The deposition was taken via Zoom on June 19, 2020. I attended the deposition. In summary, Mr. 27 Ramirez-Torres testified: Freeman Mathis Gary, LP ‘Atomeys at Law 28 e that he had traveled that route many times before and was familiar with it; 8 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 that shortly before the accident he recalled seeing the cars ahead of him breaking; that his speed was about 55 miles per hour when he began to brake; that he was moving about 25 miles per hour when the Patrick car hit the rear of his rig; that the Patrick car was not fully in lane No. 2 when it struck his truck; that at the time he was checking his rear view mirrors on each side every two to three seconds; that at no time did he see Patrick’s car behind him; that he checked his rear view mirror two or three seconds before being struck by the Patrick car and he saw only Roman’s Atlas box truck. 10 Mr. Ramirez-Torres was believable. Further, his testimony was consistent with statements made by 11 an eye witness at the accident scene. 12 7 Mr. Ramirez-Torres’ testimony is supported by statement made by Harvey 13 Whisenton which was taken by a CHP officer. According to the CHP Incident Detail Report dated 14 May 7, 2020 which summarizes his statement, Mr. Whisenton said that he saw the Patrick car 15 merge into lane No. 2 directly in front of the A tlas truck, followed immediately by seeing brake 16 lights ahead of him and a big dust cloud. He did not believe that the Patrick car had merged all the 17 way into lane No. 2 before it was hit. 18 8 Tam informed and believe that Mr. Cholakian’s office has diligently tried to serve 19 Mr. Whisenton with a subpoena without success. In light of the fact that we now have credible 20 testimony, taken under oath from a credible witness, I see no need to wait to depose Mr. Whisenton 21 to file this motion. 22 9 If the defense is upheld, the effect will be to shield the Defendants from liability 23 which they are not responsible for due to the dangerous actions of Mr. Patrick and the chaos he 24 created on the roadway. 25 10. The facts giving rise to the defense were recently discovered by me. 26 11. I have also recently learned that one or more of the parties intends to bring Mr. 27 Ramirez-Torres back into the case as a party. Freeman Mathis Gary, LP ‘Atomeys at Law 28 12. Mr. Ramirez-Torres aggravated the situation because he was careless and 9 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 inattentive. He was on the phone at the time of the accident, not realizing that traffic ahead was coming to a stop, his large truck blocking the view of traffic ahead. When Mr. Ramirez-Torres did not have enough room to stop, he swerved his truck to the right, onto the shoulder, suddenly revealing stopped traffic, robbing those behind him of stopping distance. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct. Executed on this 7 day of October, 2020, at Los Angeles, Califomia. ep Npmee PAUL A. BIGLEY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Freeman Mathis Gary, LP Atomeys at Law 28 -10- NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 Exhibit “A” FREEMAN MATHIS & GARY, LLP PAUL A. BIGLEY / Bar No. 119462 KENNETH H. CORONEL / Bar No. 137225 44 Montgomery Street, Suite 3580 San Francisco, California 94104-6702 (415) 627-9000; FAX: (213) 615-7100 Mailing Address: 550 South Hope Street, 22nd Floor Los Angeles, California 90071-2627 Attomeys for Defendants and Cross-Complainants ATLAS VAN LINES, INC. and SOTERO SALAZAR ROMAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF STANISLAUS 10 ROBERT GREGG, SUZANNE GREGG, and Case No. CV-19-005163 KEAGHAN PATRICK, (Consolidated with 11 Case No. CV-20-000811) Plaintiffs, 12 Vv. CROSS-COMPLAINT OF 13 ATLAS VAN LINES, INC., SOTERO DEFENDANTS ATLAS VAN LINES, SALAZAR ROMAN, JAIME RAMIREZ- INC. AND SOTERO SALAZAR ROMAN 14 TORRES, MARK WEBSTER PEREZ, and DOES AGAINST KEAGHAN PATRICK AND 1 through 50, inclusive, JAIME RAMIREZ-TORRES IN CASE 15 NO. CV-19-005163 FOR EQUITABLE Defendants. INDEMNITY, DECLARATORY RELIER 16 AND CONTRIBUTION 17 ATLAS VAN LINES, INC., SOTERO 18 SALAZAR ROMAN, 19 Cross-Complainants, 20 Vv. 21 KEAGHAN PATRICK, JAIME RAMIREZ TORRES and ROES 1 through 20, 22 23 Cross-Defendants. 24 —a- a AND RELATED AND CONSOLIDATED 25 CROSS-ACTIONS. 26 27 28 1 CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, DECLATORY RELIEF AND CONTRIBUTION 16891488.1 7104-84240 Cross-Complainants ATLAS VAN LINES, INC. and SOTERO SALAZAR ROMAN allege: 1 At all times mentioned herein, Cross-Complainant SOTERO SALAZAR ROMAN (“ROMAN”) was an individual with his place of residence in the State of California. 2 At all times mentioned herein, Cross-Complainant ATLAS VAN LINES, INC. (“ATLAS”) was a corporation licensed to and doing business in the State of California. 3 Atall times mentioned herein, Cross-Defendant KEAGHAN PATRICK (“PATRICK”) was an individual with his place of residence in the State of Missouri. 4 At all times mentioned herein, Cross-Defendant JAIME RAMIREZ-TORRES 10 (“RAMIREZ-TORRES) was an individual with his place of residence in the State of Califomia. 11 5. Cross-Complainants are ignorant of the true names and capacities of cross- 12 defendants designated as ROES 1-20 and sue said cross-defendants by fictitious names. Cross- 13 Complainants contend that each ROE cross-defendant is liable, in some manner, for the events and 14 damages alleged by Cross-Complainants. Cross-Complainants will ask leave of Court, if 15 necessary, to insert the true names and capacities of the fictitiously named cross-defendants when 16 they have been learned. 17 6 Atall times herein mentioned, each Cross-Defendant was the agent, servant and 18 employee of the remaining Cross-Defendants and was acting within the course and scope of said 19 agency and employment. 20 7 On or about August 6, 2019, ROBERT GREGG, SUZANNE GREGG and 21 KEAGHAN PATRICK (“PATRICK”) filed an unverified Complaint in the San Joaquin Superior 22 Court, Case No. STK-CV-UAT-2019-10142. This lawsuit has been transferred to the Stanislaus 23 Superior Court and consolidated with Case No. CV-20-000811 and has been assigned Case No. 24 CV-19-005163 (“Complaint”). Cross-Complainants incorporate by reference herein the entire 25 content of Plaintiffs' unverified Complaint as though set forth in full without admitting the truth of 26 any of its allegations. 27 8 Cross-Complainants filed an Answer to the Complaint denying its allegations. 28 2 CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, DECLATORY RELIEF AND CONTRIBUTION 16891488.1 7104-84240 9 These consolidated cases arise out of a motor vehicle accident which occurred on June 27, 2019 on State Route 120 in Manteca, San Joaquin County. PATRICK was the driver of a 2019 Hyundai Accent. As a result of the accident, PATRICK’S girlfriend, Mikayla Gregg, who was in the passenger seat of the Hyundai, lost her life at age 21. 10. Cross-Complainants are informed and believe that just prior to the accident, PATRICK was driving eastbound on SR-120 in the No. 1 lane between 70 to 75 miles per hour. SR-120 in Manteca is two lanes in each direction. PATRICK wanted to take the upcoming off- ramp to the right to go to Modesto. He merged into a gap between a tractor-trailer truck ahead of him, driven by Cross-Defendant RA MIREZ-TORRES, and the A tlas box truck driven behind him, 10 driven by Cross-Complainant ROMAN. At the time, traffic in lane No. 2 was going 60 to 65 miles 11 per hour. Just after PATRICK squeezed into lane No. 2 immediately in front of ROMAN, traffic in 12 that lane was slowing as traffic ahead was stopping. As a result, Cross-Defendant PATRICK 13 braked aggressively at the very moment he commenced his lane change, denying Cross- 14 Complainant ROMAN reasonable stopping distance. Cross-Complainants are informed and believe 15 that RA MIREZ-TORRES aggravated the perilous situation because he was careless and inattentive, 16 being on the phone at the time of the accident, not appreciating the fact that traffic ahead of him 17 was coming to a stop, such that the large truck, with its wide and high profile blocked the view of 18 the traffic behind. When RAMIREZ-TORRES swerved his truck to the right onto the shoulder, he 19 suddenly revealed to those behind that traffic was stopping, robbing those behind him of valuable 20 stopping distance. 21 11. Plaintiffs ROBERT GREGG and SUZANNE GREGG are the parents of Mikayla 22 Gregg and they have brought this action for Wrongful Death and Negligence. 23 12. Cross-Complainants are informed and believe that the conduct of PATRICK and 24 RAMIREZ-TORRES was either a substantial contributing factor causing the accident and the 25 damages arising therefrom or the sole factor. 26 13. Cross-Complainants contend that those legally responsible for the Plaintiffs’ 27 damages as asserted in the Complaint include the Cross-Defendants. 28 3 CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, DECLATORY RELIEF AND CONTRIBUTION 16891488.1 7104-84240 14. If, upon trial of this matter, it is found that Cross-Complainants were negligent, which negligence is not admitted, but is alleged only for the purpose of pleading this cause of action, then Cross-Complainants will be exposed to liability and damages in excess of the liability attributed to the negligence of the Cross-Defendants. As a direct and proximate result of the acts and omissions of Cross-Defendants, Cross-Complainants will be damaged in an amount equal to that portion of the total amount of the verdict which is attributable to the acts and omissions of Cross-Defendants, in that Cross-Complainants would be liable for the total amount of such verdict. 15. Asa further proximate result of the acts and omissions of Cross-Defendants, Cross- Complainants have been required and in the future will be required to incur costs, expenses and 10 attorneys’ fees in defending against Plaintiffs’ claims, in an amount now unknown, but which will 11 be proven at trial. 12 16. An actual controversy exists between Cross-Complainants and Cross-Defendants, 13 and each of them. Cross-Complainants allege: 14 (a) The damages suffered by the Plaintiffs, as alleged in the unverified 15 Complaint, were proximately caused by the conduct and/or liability of Cross-Defendants, 16 and each of them; and 17 (b) In the event the trier of fact determines that Plaintiffs suffered damages as a 18 proximate result of any negligence of Cross-Defendants, then Cross-Complainants are 19 entitled to recover as indemnity, implied indemnity and/or comparative equitable indemnity 20 from Cross-Defendants that portion of the judgment in the underlying action that is 21 attributable to the percentage of comparative fault assessed or assessable against Cross- 22 Defendants. 23 17. A judicial declaration is necessary to resolve the dispute set forth herein as no other 24 || adequate remedy at law exists to provide a prompt, speedy and timely resolution of this dispute. 25 26 WHEREFORE, Cross-Complainants pray for a judicial declaration and a judgment against 27 Cross-Defendants, and each of them, as follows: 28 4 CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, DECLATORY RELIEF AND CONTRIBUTION 16891488.1 7104-84240 1 For a declaration of rights, duties and percentages of liability as to all parties to this action; 2 For indemnity from Cross-Defendants, and each of them in an amount which reflects the percentage of fault attributable to the acts and omissions of the Cross- Defendants; 3 For reasonable attorneys' fees and costs, including expenses for preparation, investigation and defending the above-entitled action, and in prosecuting this Cross- Complaint; 4 For such other and further relief as the Court may deem just and proper. 10 11 12 Dated: October 7, 2020 FREEMAN MATHIS & GARY, LLP Rin Poa — 13 14 15 KENNETH H. CORONEL Attorneys for Defendants and 16 Cross-Complainants ATLAS VAN LINES, INC. and 17 SOTERO SALAZAR ROMAN 18 19 20 21 22 23 24 25 26 27 28 5 CROSS-COMPLAINT FOR EQUITABLE INDEMNITY, DECLATORY RELIEF AND CONTRIBUTION 16891488.1 7104-84240 PROOF OF SERVICE I declare that I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years at the time of service and not a p to the within cause. My business address is 550 South Hope Street, 22nd Floor, Los Angeles, California 90071-2627. On October 8, 2020, I served copies of the attached document(s) entitled: NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS- COMPLAINT IN CASE NO. CV-19-005163; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY; AND [PROPOSED] ORDER on the interested parties in this action addressed as follows: Ryan L. Dostart, Esq. Attorneys for Plaintiffs DREYER BABICH BUCCOLA WOOD Robert Suzanne Gregg and Keaghan CAMPORA, LLP Patrick 20 Bicentennial Circle 10 Sacramento, CA 95826 Tel: (916) 379-3500 11 Fax: (916) 379-3599 E-mail: rdostart@ dbbwc.com 12 jorona@ dbbwe.com Michael Karns, Esq. Attorneys for Plaintiffs 13 William Karns, Esq. Mark Perez and Natalie Perez Timothy P. Mitchell, Esq. 14 KARNS & KARNS, LLP 800 West 6" Street, Suite 800 15 Los Angeles, CA 90017 Tel: (310) 623-9032 16 Fax: (310) 623-9033 E-mail: Tim@kamsandkams.com 17 leah@ karsandkarns.com 18 *MAIL and E-MAIL Thomas J. Murray, Esq. Attorneys for Defendants 19 aron R. Lines, Esq. Mark Perez and Natalie Perez KERN SEGAL & MURRAY, LLC 20 15 Southgate Avenue, Suite 200 Daly City, CA 94015 21 Tel: (415) 474-1900 Fax: (415) 474-0302 22 23 mall Hines@ Kemlawcom voong@ kernlaw.com 24 Jenn Crittondon, Esq. Attorneys for Defendant/C ross- 25 Shellie Weidemann, Esq. Complainant TYSON & MENDES, LLP Jaime Ramirez Torres 26 523 Fourth Street, Suite 100 San Rafael, CA 94901 27 Tel: (628) 253-5070 Freeman Mathis Fax: (415) 785-3165 Gary, LP E-mail: jcittondon@ tysonmendes.com Atomeys at Law 28 -l1- NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 Eric S. Wong, Esq. Attorneys for Defendants/Cross-D efendant WILSON, ELSER, MOSKOWITZ, Atlas Van Lines, Inc. and Sotero Roman EDELMAN, & DICKER, LLP Salazar 525 Market Street, 17" Floor San Francisco, CA 94105 Tel: (415) 433-0990 Fax: (415) 434-1370 E-mail: eric.wong@ wilsonelser.com Steven J. Joffe, Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN, & DICKER, LLP 555 South Flower Street, Suite 2900 Los Angeles, CA 90071 Tel: (213) 443-5100 Fax: (213) 443-5101 E-mail: steven.joffe@ wilsonelser.com 10 Michael C. Kronlund, Esq. Attorneys for Cross-Defendant Nancy D. Hart, Esq. Beverly Y vonne Parcaiso 11 QUINN & KRONLUND, LLP 509 West Weber Avenue, Suite 400 12 Stockton, CA 95203 Tel: (209) 943-3950 13 Fax: (209) 943-3505 E-mail: tami@ quinnlaw.net 14 Nicholas Burke, Esq. Attorneys for Cross-Defendants 15 Angela Allard, Esq. Keaghan Patrick and Hertz Vehicles, LLC RESNICK & LOUIS, P.C. 16 1215 K Street, 17" Floor Sacramento, CA 95814 17 Tel: (714) 613-1860 Fax: (714) 613-1860 18 E-mail: nburke@ rlattorneys.com aallard@ rlattomeys.com 19 Ibremmer@ rattorneys.com 20 in the manner set forth below: 2 BY U.S. MAIL. I placed such envelope, addressed as above by first-class mail, 22 postage prepaid, for collection and mailing at my business address following our ordinary business practices. I am readily familiar with our ordinary business course 23 of collection and processing of correspondence for mailing with the U.S. Postal 24 Service. In the ordinary course of business on the same day that correspondence is placed for collection and mailing, it is deposited with the U.S. Postal Service for 25 delivery to the addressee. 26 BY ELECTRONIC MAIL. I transmitted such document(s) via electronic mail to the electronic mail addresses of the addressee(s). 27 Freeman Mathis Gary, LP Atomeys at Law 28 -12- NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PAUL A. BIGLEY 16907828.1 07104-8240 Executed on October 8, 2020 at Los Angeles, Califomia. Brigit Trujillo Brigit Tryillo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Freeman Mathis Gary, LP Atomeys at Law 28 -13- NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; MEMORANDUM OF POINTS AND