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Electronically Filed
12/8/2020 6:02 PM
1 BANAFSHEH, DANESH & JAVID, PC Superior Court of California
SHAWN J. McCANN, ESQ. [SBN 227553] County of Stanislaus
2
sm@bhattorneys.com Clerk of the Court
3 LAUREN E.S. HORWITZ, ESQ. [SBN 271858] By: Mouang Saechao, Deputy
lh@bhattorneys.com
4 9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
5
Telephone: (310) 887-1818
6 Facsimile: (424) 290-8284
7 Attorneys for PLAINTIFFS, ALCIRA LIZ PADILLA-VEGA, an
8
Individual; ISMAEL MARTINEZ, JR., a minor by and through his
Guardian ad Litem, Alcira Liz Padilla-Vega; and SYLUS MARTINEZ,
9 a minor by and through his Guardian ad Litem, Alcira Liz Padilla-Vega.
10
11
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 FOR THE COUNTY OF STANISLAUS
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13
14 ALCIRA LIZ PADILLA-VEGA, an individual; Case No.: CV-20-004147
ISMAEL MARTINEZ, JR., a minor by and
15 through his Guardian ad Litem, Alcira Liz Honorable Judge Sonny S. Sandhu
Padilla-Vega; and SYLUS MARTINEZ, a Department: 24
16
minor by and through his Guardian ad Litem,
17 Alcira Liz Padilla-Vega; FIRST AMENDED COMPLAINT FOR
DAMAGES
18 PLAINTIFFS,
DEMAND FOR JURY TRIAL
19
vs.
20 Action Filed: 09/24/20
LABRIE ENVIROQUIP GROUP, a business Trial Date: Not Set
21 organization, form unknown; CITY OF
RIVERBANK, a government entity; COUNTY
22
OF STANISLAUS, a government entity; STATE
23 OF CALIFORNIA, a government entity; and
DOES 1-30, inclusive;
24
DEFENDANTS.
25
26
27
28
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1
1 COME NOW PLAINTIFFS AND ALLEGE ON INFORMATION AND BELIEF:
2 I. PARTIES
3 1. Decedent Ismael Martinez-Huertas was involved in the August 26, 2019 incident
4 which is the subject of this Complaint. Decedent Ismael Martinez-Huertas is referred to as
5 “DECEDENT” herein.
6 2. Plaintiff ISMAEL MARTINEZ, JR. is, and at the time of the incident alleged
7 herein was, a resident of Modesto, California.
8 3. Plaintiff ISMAEL MARTINEZ, JR. brings this lawsuit by and through his
9 guardian ad litem, ALCIRA LIZ PADILLA-VEGA.
10 4. Plaintiff ISMAEL MARTINEZ, JR. is the son of DECEDENT.
11 5. Plaintiff SYLUS MARTINEZ is, and at the time of the incident alleged herein
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 was, a resident of Modesto, California.
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 6. Plaintiff SYLUS MARTINEZ brings this lawsuit by and through his guardian ad
14 litem, ALCIRA LIZ PADILLA-VEGA.
15 7. Plaintiff SYLUS MARTINEZ is the son of DECEDENT.
16 8. Plaintiff ALCIRA LIZ PADILLA-VEGA is, and at the time of the incident alleged
17 herein was, a resident of Modesto, California.
18 9. Plaintiff ALCIRA LIZ PADILLA-VEGA was the partner of DECEDENT.
19 10. Plaintiff ISMAEL MARTINEZ, JR., Plaintiff SYLUS MARTINEZ, and Plaintiff
20 ALCIRA LIZ PADILLA-VEGA are collectively referred to as “PLAINTIFFS” herein.
21 11. At the times and places hereinafter alleged, PLAINTIFFS are informed, believe and
22 thereon allege that Defendant CITY OF RIVERBANK was a government entity.
23 12. At the times and places hereinafter alleged, PLAINTIFFS are informed, believe and
24 thereon allege that Defendant LABRIE ENVIROQUIP GROUP was a business entity of an
25 unknown type, doing business in Stanislaus County, California.
26 13. The true names and/or capacities, whether individual, corporate, associate or
27 otherwise, of Defendants Does 1 through 30, inclusive, and each of them, are unknown to
28 PLAINTIFFS, who therefore sue said defendants by such fictitious names pursuant to California
_____________________________________________________________________________________________
FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
2
1 Code of Civil Procedure § 474. PLAINTIFFS are informed and believe, and upon such
2 information and belief allege, that each of the defendants fictitiously named herein as a Doe is
3 legally responsible, negligently or in some other actionable manner, for the events and happenings
4 hereinafter referred to, and proximately caused the damages to PLAINTIFFS hereinafter alleged.
5 PLAINTIFFS will seek leave of court to amend this Complaint to assert the true names and/or
6 capacities of such fictitiously named defendants when the same have been ascertained.
7 14. PLAINTIFFS are informed, believe and thereon allege that at all times relevant
8 hereto each of the DEFENDANTS, including without limitation the Doe Defendants, was the
9 contractor, agent, affiliate, officer, director, manager, principal, alter-ego and/or employee of the
10 other DEFENDANTS and were at all times acting within the scope of such agreement, agency,
11 affiliation, alter-ego relationship and/or employment and actively participated in, or subsequently
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 ratified and adopted, or both, each and all of the acts or conduct alleged herein, with full
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 knowledge of all the facts and circumstances, including, but not limited to, full knowledge of each
14 and all of the violations of DECEDENT’S rights, PLAINTIFFS’ rights, and the harm and
15 damages to DECEDENT and PLAINTIFFS proximately caused thereby.
16 15. Defendant CITY OF RIVERBANK, Defendant LABRIE ENVIROQUIP GROUP,
17 and Defendants Does 1 through 30 are collectively referred to as “DEFENDANTS” herein.
18 16. DEFENDANTS were engaged in the business of manufacturing, distributing,
19 selling, designing, supplying, installing, inspecting, repairing, and/or renting, and/or holding itself
20 out as having special knowledge or skill regarding the Labrie waste collection vehicle at issue in
21 this lawsuit, including but not limited to the component parts and systems thereof (“SUBJECT
22 PRODUCT”).
23 II. GENERAL ALLEGATIONS
24 17. Prior to the time of the incident on August 26, 2019, and at the time of the incident,
25 DEFENDANTS participated in manufacturing, distributing, selling, designing, supplying,
26 installing, inspecting, repairing, and/or renting, and/or holding itself out as having special
27 knowledge or skill regarding the SUBJECT PRODUCT, and manufactured, distributed, sold,
28 designed, supplied, installed, inspected, repaired, rented, and/or held itself out as having special
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
3
1 knowledge or skill regarding the SUBJECT PRODUCT and the component parts therein.
2 18. On August 26, 2019, DECEDENT was operating the SUBJECT PRODUCT at
3 approximately 5301 Homewood Way in Riverbank, CA 95367.
4 19. While DECEDENT was operating the SUBJECT VEHICLE, the SUBJECT
5 PRODUCT failed to operate correctly and/or as anticipated.
6 20. DECEDENT used the SUBJECT PRODUCT in its intended and/or reasonably
7 foreseeable way.
8 21. As a result of the SUBJECT PRODUCT failing to operate correctly and/or as
9 anticipated, DECEDENT was harmed and passed away due to his injuries.
10 22. California Government Code § 820(a) and related case law imposes liability on
11 any public employee for injury caused by their act or omission to the same extent as a private
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 person, including but not limited to the acts and omissions of DEFENDANTS alleged herein.
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 23. California Government Code § 815.2(a) and related case law imposes liability on
14 any public entity for injury proximately caused by an act or omission of an employee of the public
15 entity within the scope of their employment if the act or omission would have given rise to a
16 cause of action against that employee or his personal representative, including but not limited to
17 the acts and omissions of DEFENDANTS alleged herein.
18 24. California Government Code § 815.4 and related case law imposes liability on any
19 public entity for injury proximately caused by an independent contactor’s tortious act or omission
20 to the same extent the entity would be subject to liability if it were a private person, including but
21 not limited to the acts and omissions of DEFENDANTS alleged herein.
22 25. PLAINTIFFS allege DEFENDANTS retained control over all or part of a
23 contractor’s work and affirmatively contributed to DECEDENT’S harm and death. PLAINTIFFS
24 further allege that DEFENDANTS failed to exercise the control with reasonable care.
25 26. California Government Code § 815.6 imposes a mandatory duty on public entities
26 where an enactment exists that is designed to protect against the risk of a particular kind of injury,
27 making the public entity liable for an injury of that kind proximately caused by its failure to
28 discharge the duty. PLAINTIFFS allege that such a duty existed in relation to the SUBJECT
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
4
1 PRODUCT and DECEDENT’S eventual operation of it.
2 27. DEFENDANTS’ agents and/or employees acted on their behalfs.
3 28. DEFENDANTS’ agents and/or employees were acting within the scope of their
4 agency and/or employment at all times alleged herein.
5 29. DEFENDANTS’ acts and/or omissions caused the SUBJECT PRODUCT to
6 operate in such a way that caused harm to DECEDENT.
7 30. DECEDENT was harmed.
8 31. ISMAEL MARTINEZ, JR. was harmed.
9 32. SYLUS MARTINEZ was harmed.
10 33. ALCIRA LIZ PADILLA-VEGA was harmed.
11 34. DEFENDANTS’ acts and/or omissions were a substantial factor in causing
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 DECEDENT’s harm.
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 35. DEFENDANTS’ acts and/or omissions were a substantial factor in causing
14 DECEDENT’s death.
15 36. DEFENDANTS’ acts and/or omissions were a substantial factor in causing
16 ISMAEL MARTINEZ, JR.’s harm.
17 37. DEFENDANTS’ acts and/or omissions were a substantial factor in causing
18 SYLUS MARTINEZ’s harm.
19 38. DEFENDANTS’ acts and/or omissions were a substantial factor in causing
20 ALCIRA LIZ PADILLA-VEGA’S harm.
21 39. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
22 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
23 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
24 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
25 DECEDENT would have provided, and are each entitled to special damages. As a further direct
26 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost
27 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society,
28 moral support, and training and guidance, and are each entitled to general damages. Plaintiff
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
5
1 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with
2 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims.
3 40. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a
4 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as
5 described herein.
6 III. FIRST CAUSE OF ACTION
7 For Strict Liability – Manufacturing Defect
8 (Against all DEFENDANTS)
9 41. PLAINTIFFS reallege each and every previous paragraph and incorporate them
10 herein by reference as though set forth in full.
11 42. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 PRODUCT.
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 43. The SUBJECT PRODUCT contained a manufacturing defect when it left
14 DEFENDANTS’ possession.
15 44. DECEDENT was harmed.
16 45. The SUBJECT PRODUCT’S defect was a substantial factor in causing
17 DECEDENT’s harm.
18 46. The SUBJECT PRODUCT’S defect was a substantial factor in causing
19 DECEDENT’s death.
20 47. ISMAEL MARTINEZ, JR. was harmed.
21 48. SYLUS MARTINEZ was harmed.
22 49. ALCIRA LIZ PADILLA-VEGA was harmed.
23 50. The SUBJECT PRODUCT’S defect was a substantial factor in causing ISMAEL
24 MARTINEZ, JR.’s harm.
25 51. The SUBJECT PRODUCT’S defect was a substantial factor in causing SYLUS
26 MARTINEZ’s harm.
27 52. The SUBJECT PRODUCT’S defect was a substantial factor in causing ALCIRA
28 LIZ PADILLA-VEGA’S harm.
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
6
1 53. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
2 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
3 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
4 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
5 DECEDENT would have provided, and are each entitled to special damages. As a further direct
6 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost
7 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society,
8 moral support, and training and guidance, and are each entitled to general damages. Plaintiff
9 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with
10 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims.
11 54. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 described herein.
14 IV. SECOND CAUSE OF ACTION
15 For Strict Liability – Design Defect
16 (Against all DEFENDANTS)
17 55. PLAINTIFFS reallege each and every previous paragraph and incorporate them
18 herein by reference as though set forth in full.
19 56. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT
20 PRODUCT.
21 57. The SUBJECT PRODUCT did not perform as safely as an ordinary consumer
22 would have expected it to perform when used or misused in an intended or reasonably foreseeable
23 way.
24 58. DECEDENT was harmed.
25 59. ISMAEL MARTINEZ, JR. was harmed.
26 60. SYLUS MARTINEZ was harmed.
27 61. ALCIRA LIZ PADILLA-VEGA was harmed.
28 62. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in
_____________________________________________________________________________________________
FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
7
1 causing DECEDENT’S harm.
2 63. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in
3 causing DECEDENT’s death.
4 64. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in
5 causing ISMAEL MARTINEZ, JR.’s harm.
6 65. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in
7 causing SYLUS MARTINEZ’s harm.
8 66. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in
9 causing ALCIRA LIZ PADILLA-VEGA’S harm.
10 67. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
11 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
14 DECEDENT would have provided, and are each entitled to special damages. As a further direct
15 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost
16 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society,
17 moral support, and training and guidance, and are each entitled to general damages. Plaintiff
18 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with
19 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims.
20 68. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a
21 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as
22 described herein.
23 V. THIRD CAUSE OF ACTION
24 Strict Liability – Failure to Warn
25 (Against all DEFENDANTS)
26 69. PLAINTIFFS reallege each and every previous paragraph and incorporate them
27 herein by reference as though set forth in full.
28 70. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
8
1 PRODUCT.
2 71. The SUBJECT PRODUCT had potential risks and/or side effects that were known
3 and/or knowable in light of the scientific knowledge that was generally accepted in the scientific
4 community at the time of the manufacture and/or distribution and/or sale.
5 72. The potential risks and/or side effects presented a substantial danger when the
6 SUBJECT PRODUCT was used or misused in an intended or reasonably foreseeable way.
7 73. Ordinary consumers would not have recognized the potential risks and/or side
8 effects.
9 74. DEFENDANTS failed to adequately warn and/or instruct of the potential risks
10 and/or side effects.
11 75. DECEDENT was harmed.
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 76. ISMAEL MARTINEZ, JR. was harmed.
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 77. SYLUS MARTINEZ was harmed.
14 78. ALCIRA LIZ PADILLA-VEGA was harmed.
15 79. The lack of sufficient instructions or warnings was a substantial factor in causing
16 DECEDENT’s harm.
17 80. The lack of sufficient instructions or warnings was a substantial factor in causing
18 DECEDENT’s death.
19 81. The lack of sufficient instructions or warnings was a substantial factor in causing
20 ISMAEL MARTINEZ, JR.’s harm.
21 82. The lack of sufficient instructions or warnings was a substantial factor in causing
22 SYLUS MARTINEZ’s harm.
23 83. The lack of sufficient instructions or warnings was a substantial factor in causing
24 ALCIRA LIZ PADILLA-VEGA’S harm.
25 84. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
26 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
27 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
28 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
9
1 DECEDENT would have provided, and are each entitled to special damages. As a further direct
2 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost each
3 decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral
4 support, and training and guidance, and are each entitled to general damages. Plaintiff ALCIRA
5 LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with DECEDENT.
6 PLAINTIFFS claim all legally cognizable damages claims.
7 85. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a
8 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as
9 described herein.
10 VI. FOURTH CAUSE OF ACTION
11 Express Warranty
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12 (Against all DEFENDANTS)
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 86. PLAINTIFFS reallege each and every previous paragraph and incorporate them
14 herein by reference as though set forth in full.
15 87. DEFENDANTS made a statement of fact and/or promise received by
16 DECEDENT, and/or those in privity with him, that the SUBJECT PRODUCT was safe.
17 88. The SUBJECT PRODUCT did not perform as stated and/or promised.
18 89. DECEDENT, and/or those in privity with him, took reasonable steps to notify
19 DEFENDANTS within a reasonable time that the SUBJECT PRODUCT was not as represented.
20 90. DEFENDANTS failed to repair and/or remedy the SUBJECT PRODUCT as
21 required by the warranty.
22 91. DECEDENT was harmed.
23 92. ISMAEL MARTINEZ, JR. was harmed.
24 93. SYLUS MARTINEZ was harmed.
25 94. ALCIRA LIZ PADILLA-VEGA was harmed.
26 95. The failure of the SUBJECT PRODUCT to be as represented was a substantial
27 factor in causing DECEDENT’s harm.
28 96. The failure of the SUBJECT PRODUCT to be as represented was a substantial
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
10
1 factor in causing DECEDENT’s death.
2 97. The failure of the SUBJECT PRODUCT to be as represented was a substantial
3 factor in causing ISMAEL MARTINEZ, JR.’s harm.
4 98. The failure of the SUBJECT PRODUCT to be as represented was a substantial
5 factor in causing SYLUS MARTINEZ’s harm.
6 99. The failure of the SUBJECT PRODUCT to be as represented was a substantial
7 factor in causing ALCIRA LIZ PADILLA-VEGA’S harm.
8 100. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
9 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
10 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
11 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 DECEDENT would have provided, and are each entitled to special damages. As a further direct
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost
14 DECEDENT t’s love, companionship, comfort, care, assistance, protection, affection, society,
15 moral support, and training and guidance, and are each entitled to general damages. Plaintiff
16 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with
17 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims.
18 101. PLAINTIFFS’ injuries, harm, and resulting general and special damages
19 were a direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of
20 them, as described herein.
21 VII. FIFTH CAUSE OF ACTION
22 Implied Warranty of Merchantability
23 (Against all DEFENDANTS)
24 102. PLAINTIFFS reallege each and every previous paragraph and incorporate them
25 herein by reference as though set forth in full.
26 103. DECEDENT, and/or those in privity with him, bought the SUBJECT PRODUCT
27 from DEFENDANTS.
28 104. DEFENDANTS were in the business of selling these goods and/or held themselves
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
11
1 out as having special knowledge or skill regarding these goods.
2 105. The SUBJECT PRODUCT was not of the same quality as those generally
3 acceptable in the trade and/or was not fit for the ordinary purposes for which such goods are used
4 and/or did not conform to the quality established by usage of trade.
5 106. DECEDENT, and/or those in privity with him, took reasonable steps to notify
6 DEFENDANTS within a reasonable time that the SUBJECT PRODUCT did not have the
7 expected quality.
8 107. DECEDENT was harmed.
9 108. ISMAEL MARTINEZ, JR. was harmed.
10 109. SYLUS MARTINEZ was harmed.
11 110. ALCIRA LIZ PADILLA-VEGA was harmed.
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 111. The failure of the SUBJECT PRODUCT to have the expected quality was a
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 substantial factor in causing DECEDENT’s harm.
14 112. The failure of the SUBJECT PRODUCT to have the expected quality was a
15 substantial factor in causing DECEDENT’s death.
16 113. The failure of the SUBJECT PRODUCT to have the expected quality was a
17 substantial factor in causing ISMAEL MARTINEZ, JR.’s harm.
18 114. The failure of the SUBJECT PRODUCT to have the expected quality was a
19 substantial factor in causing SYLUS MARTINEZ’s harm.
20 115. The failure of the SUBJECT PRODUCT to have the expected quality was a
21 substantial factor in causing ALCIRA LIZ PADILLA-VEGA’S harm.
22 116. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
23 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
24 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
25 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
26 DECEDENT would have provided, and are each entitled to special damages. As a further direct
27 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost
28 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society,
_____________________________________________________________________________________________
FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
12
1 moral support, and training and guidance, and are each entitled to general damages. Plaintiff
2 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with
3 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims.
4 117. PLAINTIFFS’ injuries, harm, and resulting general and special damages
5 were a direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of
6 them, as described herein.
7 VIII. SIXTH CAUSE OF ACTION
8 Negligence – Products Liability
9 (Against all DEFENDANTS)
10 118. PLAINTIFFS reallege each and every previous paragraph and incorporate them
11 herein by reference as though set forth in full.
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Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 119. DEFENDANTS designed, manufactured, supplied, installed, inspected, repaired,
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13 and/or rented the SUBJECT PRODUCT.
14 120. DEFENDANTS were negligent in designing, manufacturing, supplying,
15 installing, inspecting, repairing, and/or renting the SUBJECT PRODUCT.
16 121. DECEDENT was harmed.
17 122. ISMAEL MARTINEZ, JR. was harmed.
18 123. SYLUS MARTINEZ was harmed.
19 124. ALCIRA LIZ PADILLA-VEGA was harmed.
20 125. DEFENDANTS’ negligence was a substantial factor in causing DECEDENT’s
21 harm.
22 126. DEFENDANTS’ negligence was a substantial factor in causing DECEDENT’s
23 death.
24 127. DEFENDANTS’ negligence was a substantial factor in causing ISMAEL
25 MARTINEZ, JR.’s harm.
26 128. DEFENDANTS’ negligence was a substantial factor in causing SYLUS
27 MARTINEZ’s harm.
28 129. DEFENDANTS’ negligence was a substantial factor in causing ALCIRA LIZ
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
13
1 PADILLA-VEGA’S harm.
2 130. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
3 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
4 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
5 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
6 DECEDENT would have provided, and are each entitled to special damages. As a further direct
7 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost
8 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society,
9 moral support, and training and guidance, and are each entitled to general damages. Plaintiff
10 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with
11 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims.
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 131. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as
14 described herein.
15 IX. SEVENTH CAUSE OF ACTION
16 Negligence – Negligent Failure to Warn
17 (Against all DEFENDANTS)
18 132. PLAINTIFFS reallege each and every previous paragraph and incorporate them
19 herein by reference as though set forth in full.
20 133. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT
21 PRODUCT.
22 134. DEFENDANTS knew or reasonably should have known that the SUBJECT
23 PRODUCT was dangerous or was likely to be dangerous when used or misused in a reasonably
24 foreseeable manner.
25 135. DEFENDANTS knew or reasonably should have known that users would not
26 realize the danger.
27 136. DEFENDANTS failed to adequately warn of the danger or instruct on the safe use
28 of the SUBJECT PRODUCT.
_____________________________________________________________________________________________
FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
14
1 137. A reasonable manufacturer and/or distributor and/or seller under the same or
2 similar circumstances would have warned of the danger and/or instructed on the safe use of the
3 SUBJECT PRODUCT.
4 138. DECEDENT was harmed.
5 139. ISMAEL MARTINEZ, JR. was harmed.
6 140. SYLUS MARTINEZ was harmed.
7 141. ALCIRA LIZ PADILLA-VEGA was harmed.
8 142. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing
9 DECEDENT’s harm.
10 143. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing
11 DECEDENT’s death.
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 144. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 ISMAEL MARTINEZ, JR.’s harm.
14 145. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing
15 SYLUS MARTINEZ’s harm.
16 146. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing
17 ALCIRA LIZ PADILLA-VEGA’S harm.
18 147. As a direct and proximate result of DEFENDANTS’ acts and/or omissions,
19 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to
20 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from
21 DECEDENT, funeral and burial expenses, and the reasonable value of household services that
22 DECEDENT would have provided, and are each entitled to special damages. As a further direct
23 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost
24 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society,
25 moral support, and training and guidance, and are each entitled to general damages. Plaintiff
26 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with
27 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims.
28 148. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a
_____________________________________________________________________________________________
FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
15
1 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as
2 described herein.
3 X. EIGHTH CAUSE OF ACTION
4 Negligence – Recall/Retrofit
5 (Against all DEFENDANTS)
6 149. PLAINTIFFS reallege each and every previous paragraph and incorporate them
7 herein by reference as though set forth in full.
8 150. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT
9 PRODUCT.
10 151. DEFENDANTS knew or reasonably should have known that the SUBJECT
11 PRODUCT was dangerous or was likely to be dangerous when used in a reasonably foreseeable
BANAFSHEH, DANESH & JAVID, PC
Telephone: (310) 887-1818 Facsimile: (424) 290-8284
12 manner.
9701 Wilshire Boulevard, 12th Floor
Beverly Hills, California 90212
13 152. DEFENDANTS became aware of this defect after the SUBJECT PRODUCT was
14 sold.
15 153. DEFENDANTS failed to recall and/or retrofit and/or w
Preview
Electronically Filed 12/8/2020 6:02 PM 1 BANAFSHEH, DANESH & JAVID, PC Superior Court of California SHAWN J. McCANN, ESQ. [SBN 227553] County of Stanislaus 2 sm@bhattorneys.com Clerk of the Court 3 LAUREN E.S. HORWITZ, ESQ. [SBN 271858] By: Mouang Saechao, Deputy lh@bhattorneys.com 4 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 5 Telephone: (310) 887-1818 6 Facsimile: (424) 290-8284 7 Attorneys for PLAINTIFFS, ALCIRA LIZ PADILLA-VEGA, an 8 Individual; ISMAEL MARTINEZ, JR., a minor by and through his Guardian ad Litem, Alcira Liz Padilla-Vega; and SYLUS MARTINEZ, 9 a minor by and through his Guardian ad Litem, Alcira Liz Padilla-Vega. 10 11 SUPERIOR COURT FOR THE STATE OF CALIFORNIA BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 FOR THE COUNTY OF STANISLAUS 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 14 ALCIRA LIZ PADILLA-VEGA, an individual; Case No.: CV-20-004147 ISMAEL MARTINEZ, JR., a minor by and 15 through his Guardian ad Litem, Alcira Liz Honorable Judge Sonny S. Sandhu Padilla-Vega; and SYLUS MARTINEZ, a Department: 24 16 minor by and through his Guardian ad Litem, 17 Alcira Liz Padilla-Vega; FIRST AMENDED COMPLAINT FOR DAMAGES 18 PLAINTIFFS, DEMAND FOR JURY TRIAL 19 vs. 20 Action Filed: 09/24/20 LABRIE ENVIROQUIP GROUP, a business Trial Date: Not Set 21 organization, form unknown; CITY OF RIVERBANK, a government entity; COUNTY 22 OF STANISLAUS, a government entity; STATE 23 OF CALIFORNIA, a government entity; and DOES 1-30, inclusive; 24 DEFENDANTS. 25 26 27 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 1 COME NOW PLAINTIFFS AND ALLEGE ON INFORMATION AND BELIEF: 2 I. PARTIES 3 1. Decedent Ismael Martinez-Huertas was involved in the August 26, 2019 incident 4 which is the subject of this Complaint. Decedent Ismael Martinez-Huertas is referred to as 5 “DECEDENT” herein. 6 2. Plaintiff ISMAEL MARTINEZ, JR. is, and at the time of the incident alleged 7 herein was, a resident of Modesto, California. 8 3. Plaintiff ISMAEL MARTINEZ, JR. brings this lawsuit by and through his 9 guardian ad litem, ALCIRA LIZ PADILLA-VEGA. 10 4. Plaintiff ISMAEL MARTINEZ, JR. is the son of DECEDENT. 11 5. Plaintiff SYLUS MARTINEZ is, and at the time of the incident alleged herein BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 was, a resident of Modesto, California. 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 6. Plaintiff SYLUS MARTINEZ brings this lawsuit by and through his guardian ad 14 litem, ALCIRA LIZ PADILLA-VEGA. 15 7. Plaintiff SYLUS MARTINEZ is the son of DECEDENT. 16 8. Plaintiff ALCIRA LIZ PADILLA-VEGA is, and at the time of the incident alleged 17 herein was, a resident of Modesto, California. 18 9. Plaintiff ALCIRA LIZ PADILLA-VEGA was the partner of DECEDENT. 19 10. Plaintiff ISMAEL MARTINEZ, JR., Plaintiff SYLUS MARTINEZ, and Plaintiff 20 ALCIRA LIZ PADILLA-VEGA are collectively referred to as “PLAINTIFFS” herein. 21 11. At the times and places hereinafter alleged, PLAINTIFFS are informed, believe and 22 thereon allege that Defendant CITY OF RIVERBANK was a government entity. 23 12. At the times and places hereinafter alleged, PLAINTIFFS are informed, believe and 24 thereon allege that Defendant LABRIE ENVIROQUIP GROUP was a business entity of an 25 unknown type, doing business in Stanislaus County, California. 26 13. The true names and/or capacities, whether individual, corporate, associate or 27 otherwise, of Defendants Does 1 through 30, inclusive, and each of them, are unknown to 28 PLAINTIFFS, who therefore sue said defendants by such fictitious names pursuant to California _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 2 1 Code of Civil Procedure § 474. PLAINTIFFS are informed and believe, and upon such 2 information and belief allege, that each of the defendants fictitiously named herein as a Doe is 3 legally responsible, negligently or in some other actionable manner, for the events and happenings 4 hereinafter referred to, and proximately caused the damages to PLAINTIFFS hereinafter alleged. 5 PLAINTIFFS will seek leave of court to amend this Complaint to assert the true names and/or 6 capacities of such fictitiously named defendants when the same have been ascertained. 7 14. PLAINTIFFS are informed, believe and thereon allege that at all times relevant 8 hereto each of the DEFENDANTS, including without limitation the Doe Defendants, was the 9 contractor, agent, affiliate, officer, director, manager, principal, alter-ego and/or employee of the 10 other DEFENDANTS and were at all times acting within the scope of such agreement, agency, 11 affiliation, alter-ego relationship and/or employment and actively participated in, or subsequently BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 ratified and adopted, or both, each and all of the acts or conduct alleged herein, with full 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 knowledge of all the facts and circumstances, including, but not limited to, full knowledge of each 14 and all of the violations of DECEDENT’S rights, PLAINTIFFS’ rights, and the harm and 15 damages to DECEDENT and PLAINTIFFS proximately caused thereby. 16 15. Defendant CITY OF RIVERBANK, Defendant LABRIE ENVIROQUIP GROUP, 17 and Defendants Does 1 through 30 are collectively referred to as “DEFENDANTS” herein. 18 16. DEFENDANTS were engaged in the business of manufacturing, distributing, 19 selling, designing, supplying, installing, inspecting, repairing, and/or renting, and/or holding itself 20 out as having special knowledge or skill regarding the Labrie waste collection vehicle at issue in 21 this lawsuit, including but not limited to the component parts and systems thereof (“SUBJECT 22 PRODUCT”). 23 II. GENERAL ALLEGATIONS 24 17. Prior to the time of the incident on August 26, 2019, and at the time of the incident, 25 DEFENDANTS participated in manufacturing, distributing, selling, designing, supplying, 26 installing, inspecting, repairing, and/or renting, and/or holding itself out as having special 27 knowledge or skill regarding the SUBJECT PRODUCT, and manufactured, distributed, sold, 28 designed, supplied, installed, inspected, repaired, rented, and/or held itself out as having special _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 3 1 knowledge or skill regarding the SUBJECT PRODUCT and the component parts therein. 2 18. On August 26, 2019, DECEDENT was operating the SUBJECT PRODUCT at 3 approximately 5301 Homewood Way in Riverbank, CA 95367. 4 19. While DECEDENT was operating the SUBJECT VEHICLE, the SUBJECT 5 PRODUCT failed to operate correctly and/or as anticipated. 6 20. DECEDENT used the SUBJECT PRODUCT in its intended and/or reasonably 7 foreseeable way. 8 21. As a result of the SUBJECT PRODUCT failing to operate correctly and/or as 9 anticipated, DECEDENT was harmed and passed away due to his injuries. 10 22. California Government Code § 820(a) and related case law imposes liability on 11 any public employee for injury caused by their act or omission to the same extent as a private BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 person, including but not limited to the acts and omissions of DEFENDANTS alleged herein. 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 23. California Government Code § 815.2(a) and related case law imposes liability on 14 any public entity for injury proximately caused by an act or omission of an employee of the public 15 entity within the scope of their employment if the act or omission would have given rise to a 16 cause of action against that employee or his personal representative, including but not limited to 17 the acts and omissions of DEFENDANTS alleged herein. 18 24. California Government Code § 815.4 and related case law imposes liability on any 19 public entity for injury proximately caused by an independent contactor’s tortious act or omission 20 to the same extent the entity would be subject to liability if it were a private person, including but 21 not limited to the acts and omissions of DEFENDANTS alleged herein. 22 25. PLAINTIFFS allege DEFENDANTS retained control over all or part of a 23 contractor’s work and affirmatively contributed to DECEDENT’S harm and death. PLAINTIFFS 24 further allege that DEFENDANTS failed to exercise the control with reasonable care. 25 26. California Government Code § 815.6 imposes a mandatory duty on public entities 26 where an enactment exists that is designed to protect against the risk of a particular kind of injury, 27 making the public entity liable for an injury of that kind proximately caused by its failure to 28 discharge the duty. PLAINTIFFS allege that such a duty existed in relation to the SUBJECT _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 4 1 PRODUCT and DECEDENT’S eventual operation of it. 2 27. DEFENDANTS’ agents and/or employees acted on their behalfs. 3 28. DEFENDANTS’ agents and/or employees were acting within the scope of their 4 agency and/or employment at all times alleged herein. 5 29. DEFENDANTS’ acts and/or omissions caused the SUBJECT PRODUCT to 6 operate in such a way that caused harm to DECEDENT. 7 30. DECEDENT was harmed. 8 31. ISMAEL MARTINEZ, JR. was harmed. 9 32. SYLUS MARTINEZ was harmed. 10 33. ALCIRA LIZ PADILLA-VEGA was harmed. 11 34. DEFENDANTS’ acts and/or omissions were a substantial factor in causing BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 DECEDENT’s harm. 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 35. DEFENDANTS’ acts and/or omissions were a substantial factor in causing 14 DECEDENT’s death. 15 36. DEFENDANTS’ acts and/or omissions were a substantial factor in causing 16 ISMAEL MARTINEZ, JR.’s harm. 17 37. DEFENDANTS’ acts and/or omissions were a substantial factor in causing 18 SYLUS MARTINEZ’s harm. 19 38. DEFENDANTS’ acts and/or omissions were a substantial factor in causing 20 ALCIRA LIZ PADILLA-VEGA’S harm. 21 39. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 22 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to 23 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 24 DECEDENT, funeral and burial expenses, and the reasonable value of household services that 25 DECEDENT would have provided, and are each entitled to special damages. As a further direct 26 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost 27 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society, 28 moral support, and training and guidance, and are each entitled to general damages. Plaintiff _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 5 1 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with 2 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims. 3 40. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a 4 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as 5 described herein. 6 III. FIRST CAUSE OF ACTION 7 For Strict Liability – Manufacturing Defect 8 (Against all DEFENDANTS) 9 41. PLAINTIFFS reallege each and every previous paragraph and incorporate them 10 herein by reference as though set forth in full. 11 42. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 PRODUCT. 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 43. The SUBJECT PRODUCT contained a manufacturing defect when it left 14 DEFENDANTS’ possession. 15 44. DECEDENT was harmed. 16 45. The SUBJECT PRODUCT’S defect was a substantial factor in causing 17 DECEDENT’s harm. 18 46. The SUBJECT PRODUCT’S defect was a substantial factor in causing 19 DECEDENT’s death. 20 47. ISMAEL MARTINEZ, JR. was harmed. 21 48. SYLUS MARTINEZ was harmed. 22 49. ALCIRA LIZ PADILLA-VEGA was harmed. 23 50. The SUBJECT PRODUCT’S defect was a substantial factor in causing ISMAEL 24 MARTINEZ, JR.’s harm. 25 51. The SUBJECT PRODUCT’S defect was a substantial factor in causing SYLUS 26 MARTINEZ’s harm. 27 52. The SUBJECT PRODUCT’S defect was a substantial factor in causing ALCIRA 28 LIZ PADILLA-VEGA’S harm. _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 6 1 53. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 2 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to 3 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 4 DECEDENT, funeral and burial expenses, and the reasonable value of household services that 5 DECEDENT would have provided, and are each entitled to special damages. As a further direct 6 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost 7 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society, 8 moral support, and training and guidance, and are each entitled to general damages. Plaintiff 9 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with 10 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims. 11 54. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 described herein. 14 IV. SECOND CAUSE OF ACTION 15 For Strict Liability – Design Defect 16 (Against all DEFENDANTS) 17 55. PLAINTIFFS reallege each and every previous paragraph and incorporate them 18 herein by reference as though set forth in full. 19 56. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT 20 PRODUCT. 21 57. The SUBJECT PRODUCT did not perform as safely as an ordinary consumer 22 would have expected it to perform when used or misused in an intended or reasonably foreseeable 23 way. 24 58. DECEDENT was harmed. 25 59. ISMAEL MARTINEZ, JR. was harmed. 26 60. SYLUS MARTINEZ was harmed. 27 61. ALCIRA LIZ PADILLA-VEGA was harmed. 28 62. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 7 1 causing DECEDENT’S harm. 2 63. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in 3 causing DECEDENT’s death. 4 64. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in 5 causing ISMAEL MARTINEZ, JR.’s harm. 6 65. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in 7 causing SYLUS MARTINEZ’s harm. 8 66. The SUBJECT PRODUCT’S failure to perform safely was a substantial factor in 9 causing ALCIRA LIZ PADILLA-VEGA’S harm. 10 67. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 11 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 DECEDENT, funeral and burial expenses, and the reasonable value of household services that 14 DECEDENT would have provided, and are each entitled to special damages. As a further direct 15 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost 16 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society, 17 moral support, and training and guidance, and are each entitled to general damages. Plaintiff 18 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with 19 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims. 20 68. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a 21 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as 22 described herein. 23 V. THIRD CAUSE OF ACTION 24 Strict Liability – Failure to Warn 25 (Against all DEFENDANTS) 26 69. PLAINTIFFS reallege each and every previous paragraph and incorporate them 27 herein by reference as though set forth in full. 28 70. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 8 1 PRODUCT. 2 71. The SUBJECT PRODUCT had potential risks and/or side effects that were known 3 and/or knowable in light of the scientific knowledge that was generally accepted in the scientific 4 community at the time of the manufacture and/or distribution and/or sale. 5 72. The potential risks and/or side effects presented a substantial danger when the 6 SUBJECT PRODUCT was used or misused in an intended or reasonably foreseeable way. 7 73. Ordinary consumers would not have recognized the potential risks and/or side 8 effects. 9 74. DEFENDANTS failed to adequately warn and/or instruct of the potential risks 10 and/or side effects. 11 75. DECEDENT was harmed. BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 76. ISMAEL MARTINEZ, JR. was harmed. 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 77. SYLUS MARTINEZ was harmed. 14 78. ALCIRA LIZ PADILLA-VEGA was harmed. 15 79. The lack of sufficient instructions or warnings was a substantial factor in causing 16 DECEDENT’s harm. 17 80. The lack of sufficient instructions or warnings was a substantial factor in causing 18 DECEDENT’s death. 19 81. The lack of sufficient instructions or warnings was a substantial factor in causing 20 ISMAEL MARTINEZ, JR.’s harm. 21 82. The lack of sufficient instructions or warnings was a substantial factor in causing 22 SYLUS MARTINEZ’s harm. 23 83. The lack of sufficient instructions or warnings was a substantial factor in causing 24 ALCIRA LIZ PADILLA-VEGA’S harm. 25 84. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 26 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to 27 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 28 DECEDENT, funeral and burial expenses, and the reasonable value of household services that _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 9 1 DECEDENT would have provided, and are each entitled to special damages. As a further direct 2 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost each 3 decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral 4 support, and training and guidance, and are each entitled to general damages. Plaintiff ALCIRA 5 LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with DECEDENT. 6 PLAINTIFFS claim all legally cognizable damages claims. 7 85. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a 8 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as 9 described herein. 10 VI. FOURTH CAUSE OF ACTION 11 Express Warranty BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 (Against all DEFENDANTS) 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 86. PLAINTIFFS reallege each and every previous paragraph and incorporate them 14 herein by reference as though set forth in full. 15 87. DEFENDANTS made a statement of fact and/or promise received by 16 DECEDENT, and/or those in privity with him, that the SUBJECT PRODUCT was safe. 17 88. The SUBJECT PRODUCT did not perform as stated and/or promised. 18 89. DECEDENT, and/or those in privity with him, took reasonable steps to notify 19 DEFENDANTS within a reasonable time that the SUBJECT PRODUCT was not as represented. 20 90. DEFENDANTS failed to repair and/or remedy the SUBJECT PRODUCT as 21 required by the warranty. 22 91. DECEDENT was harmed. 23 92. ISMAEL MARTINEZ, JR. was harmed. 24 93. SYLUS MARTINEZ was harmed. 25 94. ALCIRA LIZ PADILLA-VEGA was harmed. 26 95. The failure of the SUBJECT PRODUCT to be as represented was a substantial 27 factor in causing DECEDENT’s harm. 28 96. The failure of the SUBJECT PRODUCT to be as represented was a substantial _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 10 1 factor in causing DECEDENT’s death. 2 97. The failure of the SUBJECT PRODUCT to be as represented was a substantial 3 factor in causing ISMAEL MARTINEZ, JR.’s harm. 4 98. The failure of the SUBJECT PRODUCT to be as represented was a substantial 5 factor in causing SYLUS MARTINEZ’s harm. 6 99. The failure of the SUBJECT PRODUCT to be as represented was a substantial 7 factor in causing ALCIRA LIZ PADILLA-VEGA’S harm. 8 100. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 9 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to 10 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 11 DECEDENT, funeral and burial expenses, and the reasonable value of household services that BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 DECEDENT would have provided, and are each entitled to special damages. As a further direct 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost 14 DECEDENT t’s love, companionship, comfort, care, assistance, protection, affection, society, 15 moral support, and training and guidance, and are each entitled to general damages. Plaintiff 16 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with 17 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims. 18 101. PLAINTIFFS’ injuries, harm, and resulting general and special damages 19 were a direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of 20 them, as described herein. 21 VII. FIFTH CAUSE OF ACTION 22 Implied Warranty of Merchantability 23 (Against all DEFENDANTS) 24 102. PLAINTIFFS reallege each and every previous paragraph and incorporate them 25 herein by reference as though set forth in full. 26 103. DECEDENT, and/or those in privity with him, bought the SUBJECT PRODUCT 27 from DEFENDANTS. 28 104. DEFENDANTS were in the business of selling these goods and/or held themselves _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 11 1 out as having special knowledge or skill regarding these goods. 2 105. The SUBJECT PRODUCT was not of the same quality as those generally 3 acceptable in the trade and/or was not fit for the ordinary purposes for which such goods are used 4 and/or did not conform to the quality established by usage of trade. 5 106. DECEDENT, and/or those in privity with him, took reasonable steps to notify 6 DEFENDANTS within a reasonable time that the SUBJECT PRODUCT did not have the 7 expected quality. 8 107. DECEDENT was harmed. 9 108. ISMAEL MARTINEZ, JR. was harmed. 10 109. SYLUS MARTINEZ was harmed. 11 110. ALCIRA LIZ PADILLA-VEGA was harmed. BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 111. The failure of the SUBJECT PRODUCT to have the expected quality was a 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 substantial factor in causing DECEDENT’s harm. 14 112. The failure of the SUBJECT PRODUCT to have the expected quality was a 15 substantial factor in causing DECEDENT’s death. 16 113. The failure of the SUBJECT PRODUCT to have the expected quality was a 17 substantial factor in causing ISMAEL MARTINEZ, JR.’s harm. 18 114. The failure of the SUBJECT PRODUCT to have the expected quality was a 19 substantial factor in causing SYLUS MARTINEZ’s harm. 20 115. The failure of the SUBJECT PRODUCT to have the expected quality was a 21 substantial factor in causing ALCIRA LIZ PADILLA-VEGA’S harm. 22 116. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 23 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to 24 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 25 DECEDENT, funeral and burial expenses, and the reasonable value of household services that 26 DECEDENT would have provided, and are each entitled to special damages. As a further direct 27 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost 28 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society, _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 12 1 moral support, and training and guidance, and are each entitled to general damages. Plaintiff 2 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with 3 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims. 4 117. PLAINTIFFS’ injuries, harm, and resulting general and special damages 5 were a direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of 6 them, as described herein. 7 VIII. SIXTH CAUSE OF ACTION 8 Negligence – Products Liability 9 (Against all DEFENDANTS) 10 118. PLAINTIFFS reallege each and every previous paragraph and incorporate them 11 herein by reference as though set forth in full. BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 119. DEFENDANTS designed, manufactured, supplied, installed, inspected, repaired, 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 and/or rented the SUBJECT PRODUCT. 14 120. DEFENDANTS were negligent in designing, manufacturing, supplying, 15 installing, inspecting, repairing, and/or renting the SUBJECT PRODUCT. 16 121. DECEDENT was harmed. 17 122. ISMAEL MARTINEZ, JR. was harmed. 18 123. SYLUS MARTINEZ was harmed. 19 124. ALCIRA LIZ PADILLA-VEGA was harmed. 20 125. DEFENDANTS’ negligence was a substantial factor in causing DECEDENT’s 21 harm. 22 126. DEFENDANTS’ negligence was a substantial factor in causing DECEDENT’s 23 death. 24 127. DEFENDANTS’ negligence was a substantial factor in causing ISMAEL 25 MARTINEZ, JR.’s harm. 26 128. DEFENDANTS’ negligence was a substantial factor in causing SYLUS 27 MARTINEZ’s harm. 28 129. DEFENDANTS’ negligence was a substantial factor in causing ALCIRA LIZ _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 13 1 PADILLA-VEGA’S harm. 2 130. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 3 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to 4 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 5 DECEDENT, funeral and burial expenses, and the reasonable value of household services that 6 DECEDENT would have provided, and are each entitled to special damages. As a further direct 7 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost 8 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society, 9 moral support, and training and guidance, and are each entitled to general damages. Plaintiff 10 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with 11 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims. BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 131. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as 14 described herein. 15 IX. SEVENTH CAUSE OF ACTION 16 Negligence – Negligent Failure to Warn 17 (Against all DEFENDANTS) 18 132. PLAINTIFFS reallege each and every previous paragraph and incorporate them 19 herein by reference as though set forth in full. 20 133. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT 21 PRODUCT. 22 134. DEFENDANTS knew or reasonably should have known that the SUBJECT 23 PRODUCT was dangerous or was likely to be dangerous when used or misused in a reasonably 24 foreseeable manner. 25 135. DEFENDANTS knew or reasonably should have known that users would not 26 realize the danger. 27 136. DEFENDANTS failed to adequately warn of the danger or instruct on the safe use 28 of the SUBJECT PRODUCT. _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 14 1 137. A reasonable manufacturer and/or distributor and/or seller under the same or 2 similar circumstances would have warned of the danger and/or instructed on the safe use of the 3 SUBJECT PRODUCT. 4 138. DECEDENT was harmed. 5 139. ISMAEL MARTINEZ, JR. was harmed. 6 140. SYLUS MARTINEZ was harmed. 7 141. ALCIRA LIZ PADILLA-VEGA was harmed. 8 142. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing 9 DECEDENT’s harm. 10 143. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing 11 DECEDENT’s death. BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 144. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 ISMAEL MARTINEZ, JR.’s harm. 14 145. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing 15 SYLUS MARTINEZ’s harm. 16 146. DEFENDANTS’ failure to warn or instruct was a substantial factor in causing 17 ALCIRA LIZ PADILLA-VEGA’S harm. 18 147. As a direct and proximate result of DEFENDANTS’ acts and/or omissions, 19 PLAINTIFFS have lost the financial support that DECEDENT would have contributed to 20 PLAINTIFFS, gifts or benefits that PLAINTIFFS would have expected to receive from 21 DECEDENT, funeral and burial expenses, and the reasonable value of household services that 22 DECEDENT would have provided, and are each entitled to special damages. As a further direct 23 and proximate result of DEFENDANTS’ acts and/or omissions, PLAINTIFFS have lost 24 DECEDENT’s love, companionship, comfort, care, assistance, protection, affection, society, 25 moral support, and training and guidance, and are each entitled to general damages. Plaintiff 26 ALCIRA LIZ PADILLA-VEGA has also lost the enjoyment of sexual relations with 27 DECEDENT. PLAINTIFFS claim all legally cognizable damages claims. 28 148. PLAINTIFFS’ injuries, harm, and resulting general and special damages were a _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 15 1 direct and proximate result of the acts and/or omissions of DEFENDANTS, and each of them, as 2 described herein. 3 X. EIGHTH CAUSE OF ACTION 4 Negligence – Recall/Retrofit 5 (Against all DEFENDANTS) 6 149. PLAINTIFFS reallege each and every previous paragraph and incorporate them 7 herein by reference as though set forth in full. 8 150. DEFENDANTS manufactured and/or distributed and/or sold the SUBJECT 9 PRODUCT. 10 151. DEFENDANTS knew or reasonably should have known that the SUBJECT 11 PRODUCT was dangerous or was likely to be dangerous when used in a reasonably foreseeable BANAFSHEH, DANESH & JAVID, PC Telephone: (310) 887-1818 Facsimile: (424) 290-8284 12 manner. 9701 Wilshire Boulevard, 12th Floor Beverly Hills, California 90212 13 152. DEFENDANTS became aware of this defect after the SUBJECT PRODUCT was 14 sold. 15 153. DEFENDANTS failed to recall and/or retrofit and/or w