Preview
F Superior Court of California F
R. James Miller, SBN 170312
Katherine L. Marlink, SBN 272555
County of Butte
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POWERS MILLER 12/2/2020 L
3500 Douglas Boulevard, Suite 100
Roseville, California 95661
Telephone No. (916) 924-7900 rerchl. ot D
Telecopier No. (916) 924-7980 By Deputy
Electronically FILED
Attorneys for Defendant,
ROCKEY DEAN BURCH
SUPERIOR COURT OF CALIFORNIA
COUNTY OF BUTTE
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11 ADRIANA MARGARITA REYNOSO, an ) Case No.: 18CV01433
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individual; JOSE GONZALEZ, an individual;
CARLOS GONALEZ, JR., a minor by and
13 through his guardian ad litem ADRIANA
) REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF MOTION FOR SUMMARY
MARGARITA REYNOSO,
14 ADJUDICATION AS TO CAUSES OF
ACTION FOR SURVIVAL AND
15 Plaintiffs,
NEGLIGENT HIRING AND FOR
PUNITIVE DAMAGES CLAIMS [C.C.P. §
16 VS.
437¢]
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DEAN ROCKEY BURCH, and individual,
DATE: February 17, 2021
and DOES 1 through 10, and ROE
18 TIME: 9:00 a.m.
Corporations | through 10, inclusive,
DEPT: 1
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Defendants. ASSIGNED TO JUDGE TAMARA
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MOSBARGER FOR ALL PURPOSES
oo
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22 AND RELATED CROSS-ACTIONS
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tS”)
Defendant ROCKEY DEAN BURCH respectfully requests that, pursuant to California
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Evidence Code sections 452(d) and 452, the Court take judicial notice of the following
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documents in connection with the present Motion for Summary Judgment:
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Ml
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION AS TO
CAUSE OF ACTION FOR SURVIVAL, NEGLIGENT HIRING AND CLAIM FOR PUNITIVE DAMAGES
REQUEST FOR JUDICIAL NOTICE
2 1 Plaintiffs’ First Amended Complaint filed June 11, 2019. A true and correct copy of the
first amended complaint is attached hereto as Exhibit A.
DATED: December 2, 2020 POWERS MILLER
By:
R. James Miller
Katherine L. Marlink
Attorneys for Defendant
ROCKEY DEAN BURCH
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT oF MOTION FOR SUMMARY ADJUDICATION AS TO
CAUSE OF ACTION FOR SURVIVAL, NEGLIGENT HIRING AND CLAIM FOR PUNITIVE DAMAGES,
Reynoso v. Burch
Butte County Superior Court No. 18CV01433
PROOF OF SERVICE
I am a citizen of the United States, employed in the County of
Placer, State of California. My business address is 3500 Douglas
Boulevard, Suite 100, Roseville, California 95661. I am over the
age of 18 years and not a party to the above-entitled action.
On December 2, 2020, I caused the within, REQUEST FOR JUDICIAL
NOTICE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION AS TO CAUSES
OF ACTION FOR SURVIVAL AND NEGLIGENT HIRING AND FOR PUNITIVE
DAMAGES CLAIMS, the original of which was produced on recycled
paper, to be served as follows:
XX MAIL - I am readily familiar with Powers Miller’s practice for
collection and processing of correspondence for mailing with
10 the United States Postal Services. Pursuant to said practice,
each document is placed in an envelope, the envelope is
11 sealed, the appropriate postage is placed thereon and the
sealed envelope is placed in the office mail receptacle. Each
12 day’s mail is collected and deposited in a U.S. mailbox at
Roseville, California at or before the close of each day’s
13 business. (CCP Section 1013a(3).)
14 —_— FACSIMILE - December 2, 2020 at a.m./p.m., by use of
facsimile machine telephone number (916) 924-7980, I served a
15 true copy of the aforementioned document(s) on the parties in
said action by transmitting by facsimile machine to the
16 numbers as set forth below. The facsimile machine I used
complied with California Rules of Court, Rule 2003(3) and no
17 error was reported by the machine. Pursuant to California
Rules of Court, Rule 2008(e), I caused the machine to print a
18 transmission records of the transmission, a copy of which is
attached to this Declaration.
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XX EMAIL -
December 2, 2020, pursuant to the agreement of the
20 parties, by use of email, I served a true copy of the
aforementioned document(s) on the parties in said action to
21 the email addresses as listed below.
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Trevor Quirk Joe Mueller
23 QUIRK LAW Matheny Sears, et al
4222 Market Street, Suite Cc 3638 American River Dr.
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Ventura, CA 93003 Sacramento,
7 CA 95864
tmg@qlflaw.com muller@mathenysears.com
eg@giflaw.com a rios@mathenysears.com
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egm@qiflaw.com
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I declare under penalty of perjury under the laws of the State
27 of California that the foregoing is true and correct, and that this
declaration was ee LIS , aty Roseville,
28 California.
MAData\Attys\RIMReynoso v. Burch!POS.wpd RACHEL M. STANT
EXHIBIT A
F Superior Court of California F
County of Butte
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QuIRK LAW FIRM, LLP L 6/11/2019 L
Trevor Quirk (SBN: 241626)
4222 Market Street, Suite C
Ventura, CA 93003,
D D
Tel: (805) 650-7778 By Deputy
Fax: (866) 728-7721
Attorneys for Plaintiffs Adriana Margarita Reynoso, Jose Gonzalez and Carlos Gonzalez
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF BUTTE
ADRIANA MARGARITA REYNOSO, an (Case No.: 18 CV 01433
individual, JOSE GONZALEZ, an individual;
CARLOS GONZALEZ, JR., minor, by and [Unlimited Jurisdiction
through his guardian ad litem ADRIANA
10 PLAINTIFFS’ FIRST AMENDED COMPLAINT
MARGARITA REYNOSO,
11 IFOR:
Plaintiffs,
12 Vv, 1 WRONGFUL DEATH BASED ON
NEGLIGENCE AGAINST ROCKEY DEAN
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ROCKEY DEAN BURCH, an individual, BURCH;
RICHARD THOMPSON, an individual,
MARY LAKE-THOMPSON, an individual, WRONGFUL DEATH BASED ON
DOES | through 10 and ROE Corporations 1 NEGLIGENCE AGAINST RICHARD
through 10, Inclusive, THOMPSON AND MARY LAKE
a THOMPSON;
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Defendants SURVIVOR ACTION AGAINST ALL
18 DEFENDANTS; FOR PUNITIVE DAMAGES
PURSUANT TO CIVIL CODE § 3294
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AGAINST BURCH; & FOR ATTORNEY
20 FEES PURSUANT TO CODE OF CIVIL
PROCEDURE § 1021.4 AGAINST BURCH;
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22 NEGLIGENT HIRING, SUPERVISION;
TRAINING; AND RETENTION; &
23 PUNITIVE DAMAGES PURSUANT TO
CIVIL CODE § 3294; AND
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25 PREMISES LIABILITY AGAINST
RICHARD THOMPSON AND MARY
26 LAKE-THOMPSON;
27
IDEMAND FoR JURY TRIAL
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
Plaintiffs ADRIANA MARGARITA REYNOSO, JOSE GONZALEZ and CARLOS
GONZALEZ, a minor, by and through his guardian ad litem ADRIANA MARGARITA
REYNOSO (“PLAINTIFFS”), as and for a Complaint against Defendants, and each of them,
allege:
PARTIES
1 All allegations of the Complaint are based on information and belief and are
likely to have evidentiary support after a reasonable opportunity for investigation and discovery.
2 At all times mentioned in this Complaint, PLAINTIFFS were and are residents of
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the County of Ventura, State of California.
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3 Plaintiff Adriana Margarita Reynoso is the surviving wife of Carlos Gonzalez
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13 (“DECEDENT”).
4. Plaintiffs Jose and Carlos Gonzalez are DECEDENT’S only surviving children.
5 PLAINTIFFS are informed and believe, and based on such information and
a
belief, allege that at all times mentioned herein, Defendant ROCKEY DEAN BURCH
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18 (“BURCH”) is and was a resident of the County of Butte, State of California.
19 6 PLAINTIFFS are informed and believe, and based upon such information and
20 belief allege that at all times mentioned in this Complaint, Defendants BURCH, Does 1-5, Roe
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Corporations 1-5, and each of them, were the owners of that certain vehicle (“VEHICLE”) that
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struck and killed DECEDENT.
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24 7 PLAINTIFFS are informed and believe, and based upon such information and
25 belief allege that at all times mentioned in this Complaint, Defendants BURCH, Does 1-5, Roe
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Corporations 1-5, and each of them, were the operators of the VEHICLE that struck and killed
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DECEDENT.
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
8 PLAINTIFFS are informed and believe, and based upon such information and
belief allege that at all times mentioned in this Complaint, Defendants BURCH, Does 1-5, and
each of them was/were driving the VEHICLE with Defendant, Does 1-5 and Roe Corporations
1-5, and each of their knowledge, consent and permission.
9 PLAINTIFFS are informed and believe, and based upon such information
and belief allege that at all times mentioned in this Complaint, Defendant BURCH, Does 1-5 and
each of them was/were driving the VEHICLE while in the course and scope of employment with
Defendant Does 1-5 and Roe Corporations 1-5, and each of them.
10 10. PLAINTIFFS are informed and believe, and based on such information and
11 belief, allege that at all times mentioned herein, Defendant Richard Thompson (“R.
12 THOMPSON”) is and was a resident of the County of Butte, State of California.
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11. PLAINTIFFS are informed and believe, and based on such information and
belief, allege that at all times mentioned herein, Defendant Mary Lake-Thompson (“M.
THOMPSON”) is and was a resident of the County of Butte, State of California.
a
17 12. PLAINTIFFS are informed and believe, and based on such information and
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belief, allege that at all times mentioned herein, Defendants R. THOMPSON and M.
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THOMPSON (“THOMPSONS”) were and are the owners of that certain real property located at
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3986 Foothill Boulevard, Oroville, CA 95966 (“PROPERTY”).
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22 GENERAL ALLEGATIONS
23 13. On or about April 19, 2018, DECEDENT was performing landscaping work with
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his brother at the PROPERTY for which a California C-27 Landscaping Contractor license was
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required.
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27 14. On or about April 19, 2018, Neither DECEDENT, nor his brother, had a C-27
28 License. Labor Code § 2750.5 provides in pertinent part: [t]here is a rebuttable presumption
PLAINTIFFS’ FIRST AMENDED COMPLAINT
affecting the burden of proof that a worker performing services for which a license is required
pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code, or who is performing such services for a person who is required to obtain such
a license is an employee rather than an independent contractor. Therefore, pursuant to Labor
Code § 2750.5, DECEDENT is presumed an employee of Defendants THOMPSONS,
Does 1-5 and Roe Corporations 1-5, and each of them.
15. On or about April 19, 2018, DECEDENT was the THOMPSONS’ employee
pursuant to, inter alia, Labor Code § 2750.5, 3351, 6303(b).
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16. Labor Code § 6400 (a) provides “[e]very employer shall furnish employment and
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a place of employment that is safe and healthful for the employees therein.”
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13 17. California Code of Regulations, Title 8, Section 1598 (c) requires “[e]mployees
(on foot) exposed to the hazard of vehicular traffic shall wear warning garments such as vests,
jackets, or shirts manufactured in accordance with the requirements of the American National
a
Standards Institute (ANSD/International Safety Equipment Association (ISEA) 107-2004, High
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18 Visibility Safety Apparel and Headwear.
19 18. On or about April 19, 2018, and prior to that date, DECEDENT was working at
20 the PROPERTY at the direct command and at the direction of Defendants THOMPSONS, and/on
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DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them.
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19. On or about April 19, 2018, and prior to that date, Defendants THOMPSONS,
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24 and/or DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them, provided
25 DECEDENT with defective tools and/or defective equipment to perform work at their direction
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on their PROPERTY.
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20. The THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of them, as
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
employers and/or landowners, had a duty to DECEDENT to act as a reasonably prudent
employer and/or landowner in the same or similar circumstance.
21. On or about April 19, 2018, the THOMPSONS, Does 1-5 and Roe Corporations
1-5, and each of them, breached their duty to DECDENT by failing to act as reasonably
prudent employer and/or landowner in the same or similar circumstance by, inter alia,
negligently directing DECEDENT to work in an area they knew or should have known was
exposed to the hazard of vehicular traffic, and/or by negligently failing to provide DECDENT
traffic cones, flares, a reflective vest, helmet or any vehicular/traffic safety and/or personal safety]
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devices whatsoever, and/or by failing to “furnish employment and a place of employment that is
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safe and healthful for the employees therein” in violation of Labor Code § 6400 (a); by failing to
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13 provide DECEDENT any warning garments, such as a vest, jacket or shirt manufactured in
accordance with the requirements of the American National Standards Institute in violation of
California Code of Regulations, Title 8, Section 1598 (c); by failing to put out any traffic control
a
or warning devices on the road in violation of the basic duty of care and California Code of
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18 Regulations, Title 8, Section 1598 (c).
19 22. On or about April 19, 2018, DECEDENT was working at the PROPERTY at the
20 direction and command of Defendants THOMPSONS, Does 1-5, Roe Corporations 1-5, and eac!
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of them, near a highway, with no safety gear, when, Defendant BURCH, who was operating his
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vehicle, failed to observe DECEDENT, in part due to the lack of warning garments and/or traffic
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24 safety devices and/or the THOMPSON’s negligent direction to and placement of DECEDENT
25 near a busy highway, when Defendant BURCH struck DECEDENT with his vehicle, causing
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DECEDENT injuries and his eventual death.
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23. PLAINTIFFS are informed and believe, and based thereon alleges, that at all
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
Times herein mentioned, including April 19, 2018, the time of the injury to DECEDENT, in the
course and scope of employment, Defendant THOMPSONS, Does 1-5 and Roe Corporations 1-
5, and each of them, had no workers compensation insurance for DECEDENT.
24. Plaintiff is informed and believes, and thereon alleges, that at all times material
herein, Defendants THOMPSON, Does 1-5, inclusive, and DECEDENT were subject
to the workers’ compensation insurance and safety laws, and that these Defendants, and each of
them, failed to secure the payment of compensation in one or more of the ways specified in
California Labor Code section 3700 et seq.
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25. On or about April 19, 2018, DECEDENT was working at the PROPERTY
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alongside his brother, when the VEHICLE entered the property, struck DECEDENT and caused
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13 him fatal injuries. BURCH, the operator of the VEHICLE that struck DECEDENT, knew the
vehicle he was operating left the road; knew the VEHICLE sustained major damage; knew the
VEHICLE he was operating struck an innocent person, knew the innocent person sustain serious
a
injuries as a result of being hit by the VEHICLE he was operating, yet BURCH did not call
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18 authorities; BURCH did not call medical help; BURCH did not render aid, and instead, BURCH
19 willfully, knowingly and intentionally fled the incident scene in the VEHICLE. BURCH’s
20 conduct in fleeing the incident scene and failing to render immediate aid may have caused or
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contributed to additional injuries above and beyond the damages caused in the collision.
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26. The conduct of Defendant BURCH, as described herein, to wit, BURCH
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24 knowingly left the road in a vehicle, knowingly struck DECEDENT; knowingly injured
25 DECEDENT; BURCH failed to call authorities, BURCH failed to call medical help, BURCH
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failed to render aid, and instead BURCH knowingly, willfully and purposefully fled the
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INCIDENT scene after striking DECEDENT, BURCH’s conduct in fleeing the incident scene
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
increased and contributed to DECEDENT’s injuries and eventual death, all constitute conduct
invoking the provisions of Civil Code § 3294 because a person who intentionally leaves an
incident scene after knowingly striking an injuring a person, and who increases the injuries
and/or damages to such a person as a result of fleeing the incident scene, demonstrates such a
conscious and deliberate disregard of the interests of others that the conduct of the Defendant
BURCH was willful and wanton and in reckless disregard for the safety and well-being of
DECEDENT. PLAINTIFFS are heretofore entitled to punitive and exemplary damages for sake
of example and by way of punishing Defendants BURCH, and each of them.
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27. PLAINTIFFS are informed and believe after BURCH struck DECEDENT,
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DECEDENT survived the collision before succumbing to his injuries and therefore
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13 PLAINTIFFS are entitled to punitive and exemplary damages for sake of example and by way
of punishing BURCH.
28. The true names and capacities, whether individual, corporate, associate or
a
otherwise, of Defendants named herein as Does | through 10 and Roe Corporations 1 through 10
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are unknown to PLAINTIFFS, who therefore sues such Defendants by such fictitious names and
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19 will amend this Complaint to show their true names and capacities when ascertained together
20 with the proper charging allegations.
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29. At all times herein mentioned, Defendants Does | through 10 and Roe
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Corporations | through 10, inclusive, were the agents, servants and employees of their co-
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Defendants, and in doing the things hereinafter alleged were acting within the scope of their
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25 authority as such agents, servants and employees and with the consent and permission of their
26 co-Defendants.
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30. PLAINTIFFS are informed and believe and thereupon allege that each of the
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
Defendants designated herein as a DOE or ROE is responsible in some manner and liable herein
by reason of negligence, malfeasance, nonfeasance, wanton and reckless misconduct, and
conscious disregard, and said Defendants directly, legally and proximately caused the injuries
and damages asserted in this Complaint by such wrongful conduct.
31. The acts, conduct, and nonfeasance herein carried out by each and every
representative, employee or agent of each and every corporate or business defendant, were
authorized, ordered, and directed by the respective Defendant’s corporate or business employers,
officers, directors and/or managing agents; that in addition thereto, said corporate or business
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employers, officers, directors and/or managing agents had advance knowledge of, authorized,
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and participated in the herein described acts, conduct and nonfeasance of their representatives,
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13 employees, agents and each of them; and that in addition thereto, upon the completion of the
aforesaid acts, conduct and nonfeasance of the employees and agents, the aforesaid corporate and
business employers, officers, directors and/or managing agents respectively ratified, accepted the
a
benefits of, condoned and approved of each and all of said acts, conduct or nonfeasance of their
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18 co-employees, employers, and agents.
19 32. In addition, at all times herein relevant, each defendant, whether named herein or
20 designated as a DOE or ROE, was a principal, master, employer and joint venturer of every other
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defendant, and every defendant was acting within the scope of said agency authority,
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employment and joint venture.
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24 JURISDICTION AN ENUE
25 33. This Court has jurisdiction in this matter pursuant to Code of Civil Procedure
26
section 410.10 because the accident and/or injury occurred within Butte County, State of
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California.
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
34. Venue is proper in this Court pursuant to the provisions of Code of Civil
Procedure sections 395 and 395.5, in that the accident occurred and Defendants’ obligations and
liability arose in Butte County, State of California.
FIRST CAUSE OF ACTION
FOR WRONGFUL DEATH BASED UPON NEGLIGENCE
(Against Defendants BURCH, Does 1-5, and each of them)
35. PLAINTIFFS repeat and reallege the preceding paragraphs as though fully set
forth herein.
36. On April 19, 2018, DECEDENT was performing landscaping work alongside his
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brother at the PROPERTY.
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37. On that date and at that time and place, BURCH, who was operating the
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13 VEHICLE, failed to operate the VEHICLE as a reasonably prudent person in the same or similar
circumstances, failed to operate the VEHICLE at a reasonable rate of speed given the
circumstances, failed to maintain the VEHICLE on the road/highway, failed to keep a lookout
a for pedestrian(s), obstacles, and/or other vehicles, failed to maintain, inspect and/or repair the
17 VEHICLE, failed to control the speed and movement of the VEHICLE, allowed, permitted
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and/or caused the VEHICLE to leave the road/highway, allowed, permitted and/or caused the
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VEHICLE to strike DECEDENT and thereby caused DECEDENT’s injuries and/or death.
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38. All operators of motor vehicles have a general duty to exercise reasonable care
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and skill in the operation of their vehicles. The duty of care includes operating a vehicle in a safe
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23 and prudent manner and heeding all traffic ordinances. Operators of motor vehicles must operate
24 their vehicle such as a reasonable and prudent person would in the same or similar
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circumstances.
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39. On the date and at the time and place above, Defendants, and each of them, failed
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to operate their respective vehicles as reasonably prudent persons in the same or similar
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
circumstances thereby causing DECEDENT’S injuries and/or death.
40. At the time and place of the accident described above, there was in effect
California Vehicle Code §22350, which provides: "[n]o person shall drive a vehicle upon a
highway at a speed greater than is reasonable or prudent having due regard for weather,
visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed
which endangers the safety of persons or property."
Al. At this time and place, Defendants, and each of them, violated California Vehicle
Code §22350 by driving at a speed greater than was reasonable and consequently causing
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DECEDENT?’S injuries and/or death.
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42. At the time and place of the accident described above, there was in effect
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13 California Vehicle Code §21658, which provides: “[a] vehicle shall be driven as nearly as
practical entirely within a single lane and shall not be moved from the lane until such movement
can be made with reasonable safety.”
a
43. At this time and place, Defendants, and each of them, violated California Vehicle
17
18 Code §21658 by failing to drive the VEHICLE within its lane of travel and by moving the
19 VEHICLE from its lane of travel when it was not reasonably safe to do so.
20 44. At the time and place of the accident described above, there was in effect
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California Vehicle Code §20001, which provides: “[t]he driver ofa vehicle involved in an
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accident resulting in injury to a person, other than himself or herself, or in the death ofa person
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24 shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements
25 of Sections 20003 and 20004.”
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45. At this time and place, Defendants, and each of them, violated California Vehicle
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Code sections yet to be determined. PLAINTIFFS reserve the right to amend this Complaint
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
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when the information is ascertained.
46. California Vehicle Codes §22350, §21658 and§20001 were enacted to prevent the
type of accident Defendants, and each of them, caused.
47. DECEDENT was within the class of people California Vehicle Codes §22350,
§21658 and §20001intend to protect. The vehicle codes exist to ensure the safety of all vehicle
motorists and to deter the negligent driving hereinabove alleged.
48. According to California Evidence Code § 669 the failure to exercise due care is
presumed if the defendant violates a statute, ordinance or regulation from a public entity; the
10
violation proximately caused person or property injury; the injury resulted from the occurrence
11
of the nature which the statute, ordinance or regulation was designed to prevent; and the person
12
13 sustaining the injury was one of the classes of people protected under the statute, ordinance or
regulation.
49, On that date and at that time and place, Defendants, and each of them, so
a
negligently, carelessly, recklessly and/or unlawfully entrusted, managed, drove and operated
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18 their respective vehicles so as to proximately cause the collision as described above causing
19 DECEDENT?’S injuries and death.
20 50. At the time of the events described herein and prior thereto, DECEDENT was
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PLAINTIFFS’ spouse and father providing love, comfort, companionship, society, moral advice,
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care, support and other physical and emotional benefits to PLAINTIFFS.
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24 S51. As a direct result of the above-described accident and the death of DECEDENT,
25 PLAINTIFFS have sustained a loss of love, companionship, comfort, affection, society, solace,
26
moral support, financial support and/or other economic entitlement, loss of physical assistance in
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the operation and maintenance of their home in an amount as yet unknown, but in the excess of
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PLAINTIFFS’ FIRST AMENDED COMPLAINT
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the minimum jurisdictional limits of this Court. Said losses will be proven with reasonable
particularity in the course of the instant lawsuit.
§2. By reason of all of the foregoing and the death of DECEDENT, PLAINTIFFS
incurred funeral and burial expenses.
SECOND CAUSE OF ACTION
FOR WRONGFUL DEATH BASED UPON NEGLIGENCE
(Against Defendants RICHARD THOMPSON, an individual,
MARY LAKE-THOMPSON, an individual, Does 1-5, Roes 1-5, and each of them)
53. PLAINTIFFS repeat and reallege the preceding paragraphs as though fully set
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forth herein.
11
54. PLAINTIFFS are informed and believe, and based on such information and
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13 belief, allege that at all times mentioned herein, Defendants R. THOMPSON and M.
THOMPSON (“THOMPSONS”) were and are the owners of that certain real property located at
3986 Foothill Boulevard, Oroville, CA 95966 (“PROPERTY”).
a
55. On or about April 19, 2018, and prior to that date, DECEDENT was working at
17
18 the PROPERTY at the direct command and at the direction of Defendants THOMPSONS, and/o:
19 DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them.
20 56. On or about April 19, 2018, DECEDENT was performing landscaping work with
21
his brother at the PROPERTY for which a California C-27 Landscaping Contractor license was
22
required.
23
24 57. On or about April 19, 2018, Neither DECEDENT, nor his brother, had a C-27
25 License. Labor Code § 2750.5 provides in pertinent part: “[t]here is a rebuttable presumption
26
affecting the burden of proof that a worker performing services for which a license is required
27
pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and
28
PLAINTIFFS’ FIRST AMENDED COMPLAINT
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Professions Code, or who is performing such services for a person who is required to obtain such
a license is an employee rather than an independent contractor.” Therefore, pursuant to Labor
Code § 2750.5, DECEDENT is presumed an employee of Defendants THOMPSONS,
Does 1-5 and Roe Corporations 1-5, and each of them.
58. On or about April 19, 2018, DECEDENT was the THOMPSONS’ employee
pursuant to, inter alia, Labor Code § 2750.5, 3351, 6303(b).
59. At all times relevant to the acts and omissions herein alleged, THOMPSONS,
Does 1-5 and Roe Corporations 1-5, and each of them, as landowners and/or employers, had a
10
duty to DECEDENT to act as a reasonably prudent employer and/or landowner in the same or
11
similar circumstance; a duty to exercise reasonable and ordinary care in the use, inspection,
12
13 maintenance and or management of such PROPERTY to avoid exposing any and all persons,
including DECEDENT, to an unreasonable risk of harm.
60. Labor Code § 6400 (a) provides “[e]very employer shall furnish employment and
a
a place of employment that is safe and healthful for the employees therein.”
17
18 61. California Code of Regulations, Title 8, Section 1598 (c) requires “[e]mployees
19 (on foot) exposed to the hazard of vehicular traffic shall wear warning garments such as vests,
20 jackets, or shirts manufactured in accordance with the requirements of the American National
21
Standards Institute (ANSI)/International Safety Equipment Association (ISEA) 107-2004, High
22
Visibility Safety Apparel and Headwear.
23
24 62. On or about April 19, 2018, and prior to that date, Defendants THOMPSONS,
25 and/or DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them, provided
26
DECEDENT with defective tools and/or defective equipment to perform work at their direction
27
on their PROPERTY.
28
PLAINTIFFS’ FIRST AMENDED COMPLAINT
- -
63. On or about April 19, 2018, the THOMPSONS, Does 1-5 and Roe Corporations
1-5, and each of them, breached their duty to DECDENT by failing to act as reasonably
prudent employer and/or landowner in the same or similar circumstance by, inter alia,
negligently directing DECEDENT to work in an area they knew or should have known was
exposed to the hazard of vehicular traffic, and/or by negligently failing to provide DECDENT
traffic cones, flares, a reflective vest, helmet or any vehicular/traffic safety and/or personal safety]
devices whatsoever, and/or by failing to “furnish employment and a place of employment that is
safe and healthful for the employees therein” in violation of Labor Code § 6400 (a); by failing to
10
provide DECEDENT any warning garments, such as a vest, jacket or shirt manufactured in
11
accordance with the requirements of the American National Standards Institute in violation of
12
13 California Code of Regulations, Title 8, Section 1598 (c); by failing to put out any traffic control
or warning devices on the road in violation of the basic duty of care and California Code of
Regulations, Title 8, Section 1598 (c).
a
64. On or about April 19, 2018, DECEDENT was working at the PROPERTY at the
17
18 direction and command of Defendants THOMPSONS, Does 1-5, Roe Corporations 1-5, and eac!
19 of them, near a highway, with no safety gear, when, Defendant BURCH, who was operating his
20 vehicle, failed to observe DECEDENT, due to the lack of warning garments and/or traffic
21
safety devices and/or the THOMPSON’s negligent direction to and/or placement of DECEDENT|
22
near a busy highway with no safety precautions whatsoever, when Defendant BURCH struck
23
24 DECEDENT with his vehicle, causing DECEDENT injuries and his eventual death.
25 65. PLAINTIFFS are informed and believe, and based thereon alleges, that at all
26
times herein mentioned, including April 19, 2018, the time of the injury to DECEDENT, in the
27
course and scope of employment, Defendant THOMPSONS, Does 1-5 and Roe Corporations 1-
28
PLAINTIFFS’ FIRST AMENDED COMPLAINT
- -
5, and each of them, had no workers compensation insurance for DECEDENT.
66. Plaintiff is informed and believes, and thereon alleges, that at all times material
herein, Defendants THOMPSON, Does 1-5, inclusive, and DECEDENT were subject
to the workers’ compensation insurance and safety laws, and that these Defendants, and each of
them, failed to secure the payment of compensation in one or more of the ways specified in
California Labor Code section 3700 et seq.
67. On or about April 19, 2018, DECEDENT was working at the PROPERTY at the
Direct command of Defendants THOMPSONS and/or Does 1-5 and/or Roe Corporations 1-5,
10
and each of them. On said date, while in the scope and course of employment with Defendants,
11
DECEDENT was killed on the PROPERTY, which was negligently maintained, supervised,
12
13 managed, and controlled by Defendants THOMPSONS and/or Does 1-5 and/or Roe
Corporations 1-5, inclusive. As a result of the negligence of these Defendants, DECEDENT was
struck and killed.
a
68. Defendants, and each of them, negligently, carelessly, and recklessly owned,
17
18 controlled, managed, inspected and maintained the work environment located on the
19 PROPERTY, so as to proximately cause the injuries to the DECEDENT as described in the
20 foregoing paragraphs of this complaint.
21
69. Defendants THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of
22
them, inclusive, were subject to and violated, inter alia, Sections 1511, 1514, 1598, 1599 of Title
23
24 8 of Code of Regulations (Cal-OSHA regulations), Labor Code sections 6400, 6401, 6401.7,
25 6402, 6403 and 6404.
26
70. According to California Evidence Code § 669 the failure to exercise due care is
27
presumed if the defendant violates a statute, ordinance or regulation from a public entity; the
28
PLAINTIFFS’ FIRST AMENDED COMPLAINT
- -
violation proximately caused person or property injury; the injury resulted from the occurrence
of the nature which the statute, ordinance or regulation was designed to prevent; and the person
sustaining the injury was one of the classes of people protected under the statute, ordinance or
regulation.
71. DECEDENT was in the class of persons to be protected by the above-referenced
statutes, and Defendants’ failure to abide by said statutes were the actual and proximate cause of
DECEDENT?’S injuries as alleged herein. The above-referenced statutes were enacted to prevent
the type of harm suffered by DECEDENT.
10
72. On that date and at that time and place, Defendants, and each of them, breached
11
their duty to DECEDENT, negligently, carelessly, recklessly and/or unlawfully entrusted,
12
13 managed, and/or operated the PROPERTY so as to proximately cause and/or contribute to the
incident as described above causing DECEDENT’S injuries and death.
73. At the time of the events described herein and prior thereto, DECEDENT was
a
PLAINTIFFS’ spouse and father providing love, comfort, companionship, society, moral advice,
17
18 care, support and other physical and emotional benefits to PLAINTIFFS.
19 74. As a direct result of the above-described accident and the death of DECEDENT,
20 PLAINTIFFS have sustained a loss of love, companionship, comfort, affection, society, solace,
21
moral support, financial support and/or other economic entitlement, loss of physical assistance in
22
the operation and maintenance of their home in an amount as yet unknown, but in the excess of
23
24 the minimum jurisdictional limits of this Court. Said losses will be proven with reasonable
25 particularity in the course of the instant lawsuit.
26
75. By reason of all of the foregoing and the death of DECEDENT, PLAINTIFFS
27
incurred funeral and burial expenses.
28
PLAINTIFFS’ FIRST AMENDED COMPLAINT
-16-
THIRD CAUSE OF ACTION FOR SURVIVOR CLAIM
(CODE CIV. PROC. § 377.30)
BY DECEDENT’S SUCCESSORS IN INTEREST FOR
PUNITIVE DAMAGES PURSUANT TO CIVIL CODE § 3294 &
FOR ATTORNEY FEES PURSUANT TO CODE OF CIVIL PROCEDURE § 1021.4
(Against Defendants BURCH, RICHARD THOMPSON, MARY LAKE-THOMPSON,
Does 1-5, and each of them)
76. PLAINTIFFS repeat and reallege the preceding paragraphs as though fully set
forth herein.
77. PLAINTIFFS are DECEDENT’S wife and children, DECEDENT’S heir, and
DECEDENT’S successor in interest under California Code of Civil Procedure §377.30.
10
78. PLAINTIFFS bring this action as specified in §377.60(a) of the Code of Civil
11
Procedure on behalf
of and for the benefit of all survivors, heirs at law and next of kin of
12
13 DECEDENT.
79. As a direct and proximate result of the acts and omissions and negligence of
Defendants, and each of them, PLAINTIFFS are entitled to recover of them, DECEDENT'S
a
survival damages, including, but not limited to, DECEDENT'S necessary medical and related
17
18 expenses, as proven at time of trial. The total amount of DECEDENT'S damages is presently
19 unknown but is reasonably believed to be in excess of the minimum jurisdictional limit of this
20 Court.
21
80. BURCH’s conduct, as described above, demonstrates such a conscious and
22
deliberate disregard of the interests of others that the conduct of the BURCH was willful and
23
24 wanton and in reckless disregard for the safety and well-being of PLAINTIFFS and
25 DECEDENT.
26
81. BURCH’s conduct was authorized or ratified by a Roe | officer, director or
27
managing agent as it/he/she they failed to terminate Roe 1.
28
PLAINTIFFS’ FIRST AMENDED COMPLAINT
- -
82. Roe | had advanced knowledge of BURCH’s unfitness and employed and
continued employing BURCH with a conscious disregard of the rights or safety of others.
83. Roe 1’s conduct, as described above, was malicious, was done with a conscious
and deliberate disregard of the interests of others, and was ratified by a Roe | officer, director or
managing agent.
84. PLAINTIFFS are informed and believe DECEDENT survived the collision before
eventually succumbing to his injur
Preview
F Superior Court of California F R. James Miller, SBN 170312 Katherine L. Marlink, SBN 272555 County of Butte | POWERS MILLER 12/2/2020 L 3500 Douglas Boulevard, Suite 100 Roseville, California 95661 Telephone No. (916) 924-7900 rerchl. ot D Telecopier No. (916) 924-7980 By Deputy Electronically FILED Attorneys for Defendant, ROCKEY DEAN BURCH SUPERIOR COURT OF CALIFORNIA COUNTY OF BUTTE 10 11 ADRIANA MARGARITA REYNOSO, an ) Case No.: 18CV01433 12 individual; JOSE GONZALEZ, an individual; CARLOS GONALEZ, JR., a minor by and 13 through his guardian ad litem ADRIANA ) REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY MARGARITA REYNOSO, 14 ADJUDICATION AS TO CAUSES OF ACTION FOR SURVIVAL AND 15 Plaintiffs, NEGLIGENT HIRING AND FOR PUNITIVE DAMAGES CLAIMS [C.C.P. § 16 VS. 437¢] 17 DEAN ROCKEY BURCH, and individual, DATE: February 17, 2021 and DOES 1 through 10, and ROE 18 TIME: 9:00 a.m. Corporations | through 10, inclusive, DEPT: 1 19 Defendants. ASSIGNED TO JUDGE TAMARA 20 MOSBARGER FOR ALL PURPOSES oo 21 22 AND RELATED CROSS-ACTIONS 23 tS”) Defendant ROCKEY DEAN BURCH respectfully requests that, pursuant to California 24 Evidence Code sections 452(d) and 452, the Court take judicial notice of the following 25 documents in connection with the present Motion for Summary Judgment: 26 Ml 27 Mt 28 1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION AS TO CAUSE OF ACTION FOR SURVIVAL, NEGLIGENT HIRING AND CLAIM FOR PUNITIVE DAMAGES REQUEST FOR JUDICIAL NOTICE 2 1 Plaintiffs’ First Amended Complaint filed June 11, 2019. A true and correct copy of the first amended complaint is attached hereto as Exhibit A. DATED: December 2, 2020 POWERS MILLER By: R. James Miller Katherine L. Marlink Attorneys for Defendant ROCKEY DEAN BURCH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR JUDICIAL NOTICE IN SUPPORT oF MOTION FOR SUMMARY ADJUDICATION AS TO CAUSE OF ACTION FOR SURVIVAL, NEGLIGENT HIRING AND CLAIM FOR PUNITIVE DAMAGES, Reynoso v. Burch Butte County Superior Court No. 18CV01433 PROOF OF SERVICE I am a citizen of the United States, employed in the County of Placer, State of California. My business address is 3500 Douglas Boulevard, Suite 100, Roseville, California 95661. I am over the age of 18 years and not a party to the above-entitled action. On December 2, 2020, I caused the within, REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION AS TO CAUSES OF ACTION FOR SURVIVAL AND NEGLIGENT HIRING AND FOR PUNITIVE DAMAGES CLAIMS, the original of which was produced on recycled paper, to be served as follows: XX MAIL - I am readily familiar with Powers Miller’s practice for collection and processing of correspondence for mailing with 10 the United States Postal Services. Pursuant to said practice, each document is placed in an envelope, the envelope is 11 sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each 12 day’s mail is collected and deposited in a U.S. mailbox at Roseville, California at or before the close of each day’s 13 business. (CCP Section 1013a(3).) 14 —_— FACSIMILE - December 2, 2020 at a.m./p.m., by use of facsimile machine telephone number (916) 924-7980, I served a 15 true copy of the aforementioned document(s) on the parties in said action by transmitting by facsimile machine to the 16 numbers as set forth below. The facsimile machine I used complied with California Rules of Court, Rule 2003(3) and no 17 error was reported by the machine. Pursuant to California Rules of Court, Rule 2008(e), I caused the machine to print a 18 transmission records of the transmission, a copy of which is attached to this Declaration. 19 XX EMAIL - December 2, 2020, pursuant to the agreement of the 20 parties, by use of email, I served a true copy of the aforementioned document(s) on the parties in said action to 21 the email addresses as listed below. 22 Trevor Quirk Joe Mueller 23 QUIRK LAW Matheny Sears, et al 4222 Market Street, Suite Cc 3638 American River Dr. 24 Ventura, CA 93003 Sacramento, 7 CA 95864 tmg@qlflaw.com muller@mathenysears.com eg@giflaw.com a rios@mathenysears.com 25 egm@qiflaw.com 26 I declare under penalty of perjury under the laws of the State 27 of California that the foregoing is true and correct, and that this declaration was ee LIS , aty Roseville, 28 California. MAData\Attys\RIMReynoso v. Burch!POS.wpd RACHEL M. STANT EXHIBIT A F Superior Court of California F County of Butte | QuIRK LAW FIRM, LLP L 6/11/2019 L Trevor Quirk (SBN: 241626) 4222 Market Street, Suite C Ventura, CA 93003, D D Tel: (805) 650-7778 By Deputy Fax: (866) 728-7721 Attorneys for Plaintiffs Adriana Margarita Reynoso, Jose Gonzalez and Carlos Gonzalez SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF BUTTE ADRIANA MARGARITA REYNOSO, an (Case No.: 18 CV 01433 individual, JOSE GONZALEZ, an individual; CARLOS GONZALEZ, JR., minor, by and [Unlimited Jurisdiction through his guardian ad litem ADRIANA 10 PLAINTIFFS’ FIRST AMENDED COMPLAINT MARGARITA REYNOSO, 11 IFOR: Plaintiffs, 12 Vv, 1 WRONGFUL DEATH BASED ON NEGLIGENCE AGAINST ROCKEY DEAN 13 ROCKEY DEAN BURCH, an individual, BURCH; RICHARD THOMPSON, an individual, MARY LAKE-THOMPSON, an individual, WRONGFUL DEATH BASED ON DOES | through 10 and ROE Corporations 1 NEGLIGENCE AGAINST RICHARD through 10, Inclusive, THOMPSON AND MARY LAKE a THOMPSON; 17 Defendants SURVIVOR ACTION AGAINST ALL 18 DEFENDANTS; FOR PUNITIVE DAMAGES PURSUANT TO CIVIL CODE § 3294 19 AGAINST BURCH; & FOR ATTORNEY 20 FEES PURSUANT TO CODE OF CIVIL PROCEDURE § 1021.4 AGAINST BURCH; 21 22 NEGLIGENT HIRING, SUPERVISION; TRAINING; AND RETENTION; & 23 PUNITIVE DAMAGES PURSUANT TO CIVIL CODE § 3294; AND 24 25 PREMISES LIABILITY AGAINST RICHARD THOMPSON AND MARY 26 LAKE-THOMPSON; 27 IDEMAND FoR JURY TRIAL 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT Plaintiffs ADRIANA MARGARITA REYNOSO, JOSE GONZALEZ and CARLOS GONZALEZ, a minor, by and through his guardian ad litem ADRIANA MARGARITA REYNOSO (“PLAINTIFFS”), as and for a Complaint against Defendants, and each of them, allege: PARTIES 1 All allegations of the Complaint are based on information and belief and are likely to have evidentiary support after a reasonable opportunity for investigation and discovery. 2 At all times mentioned in this Complaint, PLAINTIFFS were and are residents of 10 the County of Ventura, State of California. 11 3 Plaintiff Adriana Margarita Reynoso is the surviving wife of Carlos Gonzalez 12 13 (“DECEDENT”). 4. Plaintiffs Jose and Carlos Gonzalez are DECEDENT’S only surviving children. 5 PLAINTIFFS are informed and believe, and based on such information and a belief, allege that at all times mentioned herein, Defendant ROCKEY DEAN BURCH 17 18 (“BURCH”) is and was a resident of the County of Butte, State of California. 19 6 PLAINTIFFS are informed and believe, and based upon such information and 20 belief allege that at all times mentioned in this Complaint, Defendants BURCH, Does 1-5, Roe 21 Corporations 1-5, and each of them, were the owners of that certain vehicle (“VEHICLE”) that 22 struck and killed DECEDENT. 23 24 7 PLAINTIFFS are informed and believe, and based upon such information and 25 belief allege that at all times mentioned in this Complaint, Defendants BURCH, Does 1-5, Roe 26 Corporations 1-5, and each of them, were the operators of the VEHICLE that struck and killed 27 DECEDENT. 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT 8 PLAINTIFFS are informed and believe, and based upon such information and belief allege that at all times mentioned in this Complaint, Defendants BURCH, Does 1-5, and each of them was/were driving the VEHICLE with Defendant, Does 1-5 and Roe Corporations 1-5, and each of their knowledge, consent and permission. 9 PLAINTIFFS are informed and believe, and based upon such information and belief allege that at all times mentioned in this Complaint, Defendant BURCH, Does 1-5 and each of them was/were driving the VEHICLE while in the course and scope of employment with Defendant Does 1-5 and Roe Corporations 1-5, and each of them. 10 10. PLAINTIFFS are informed and believe, and based on such information and 11 belief, allege that at all times mentioned herein, Defendant Richard Thompson (“R. 12 THOMPSON”) is and was a resident of the County of Butte, State of California. 13 11. PLAINTIFFS are informed and believe, and based on such information and belief, allege that at all times mentioned herein, Defendant Mary Lake-Thompson (“M. THOMPSON”) is and was a resident of the County of Butte, State of California. a 17 12. PLAINTIFFS are informed and believe, and based on such information and 18 belief, allege that at all times mentioned herein, Defendants R. THOMPSON and M. 19 THOMPSON (“THOMPSONS”) were and are the owners of that certain real property located at 20 3986 Foothill Boulevard, Oroville, CA 95966 (“PROPERTY”). 21 22 GENERAL ALLEGATIONS 23 13. On or about April 19, 2018, DECEDENT was performing landscaping work with 24 his brother at the PROPERTY for which a California C-27 Landscaping Contractor license was 25 required. 26 27 14. On or about April 19, 2018, Neither DECEDENT, nor his brother, had a C-27 28 License. Labor Code § 2750.5 provides in pertinent part: [t]here is a rebuttable presumption PLAINTIFFS’ FIRST AMENDED COMPLAINT affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor. Therefore, pursuant to Labor Code § 2750.5, DECEDENT is presumed an employee of Defendants THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of them. 15. On or about April 19, 2018, DECEDENT was the THOMPSONS’ employee pursuant to, inter alia, Labor Code § 2750.5, 3351, 6303(b). 10 16. Labor Code § 6400 (a) provides “[e]very employer shall furnish employment and 11 a place of employment that is safe and healthful for the employees therein.” 12 13 17. California Code of Regulations, Title 8, Section 1598 (c) requires “[e]mployees (on foot) exposed to the hazard of vehicular traffic shall wear warning garments such as vests, jackets, or shirts manufactured in accordance with the requirements of the American National a Standards Institute (ANSD/International Safety Equipment Association (ISEA) 107-2004, High 17 18 Visibility Safety Apparel and Headwear. 19 18. On or about April 19, 2018, and prior to that date, DECEDENT was working at 20 the PROPERTY at the direct command and at the direction of Defendants THOMPSONS, and/on 21 DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them. 22 19. On or about April 19, 2018, and prior to that date, Defendants THOMPSONS, 23 24 and/or DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them, provided 25 DECEDENT with defective tools and/or defective equipment to perform work at their direction 26 on their PROPERTY. 27 20. The THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of them, as 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT employers and/or landowners, had a duty to DECEDENT to act as a reasonably prudent employer and/or landowner in the same or similar circumstance. 21. On or about April 19, 2018, the THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of them, breached their duty to DECDENT by failing to act as reasonably prudent employer and/or landowner in the same or similar circumstance by, inter alia, negligently directing DECEDENT to work in an area they knew or should have known was exposed to the hazard of vehicular traffic, and/or by negligently failing to provide DECDENT traffic cones, flares, a reflective vest, helmet or any vehicular/traffic safety and/or personal safety] 10 devices whatsoever, and/or by failing to “furnish employment and a place of employment that is 11 safe and healthful for the employees therein” in violation of Labor Code § 6400 (a); by failing to 12 13 provide DECEDENT any warning garments, such as a vest, jacket or shirt manufactured in accordance with the requirements of the American National Standards Institute in violation of California Code of Regulations, Title 8, Section 1598 (c); by failing to put out any traffic control a or warning devices on the road in violation of the basic duty of care and California Code of 17 18 Regulations, Title 8, Section 1598 (c). 19 22. On or about April 19, 2018, DECEDENT was working at the PROPERTY at the 20 direction and command of Defendants THOMPSONS, Does 1-5, Roe Corporations 1-5, and eac! 21 of them, near a highway, with no safety gear, when, Defendant BURCH, who was operating his 22 vehicle, failed to observe DECEDENT, in part due to the lack of warning garments and/or traffic 23 24 safety devices and/or the THOMPSON’s negligent direction to and placement of DECEDENT 25 near a busy highway, when Defendant BURCH struck DECEDENT with his vehicle, causing 26 DECEDENT injuries and his eventual death. 27 23. PLAINTIFFS are informed and believe, and based thereon alleges, that at all 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT Times herein mentioned, including April 19, 2018, the time of the injury to DECEDENT, in the course and scope of employment, Defendant THOMPSONS, Does 1-5 and Roe Corporations 1- 5, and each of them, had no workers compensation insurance for DECEDENT. 24. Plaintiff is informed and believes, and thereon alleges, that at all times material herein, Defendants THOMPSON, Does 1-5, inclusive, and DECEDENT were subject to the workers’ compensation insurance and safety laws, and that these Defendants, and each of them, failed to secure the payment of compensation in one or more of the ways specified in California Labor Code section 3700 et seq. 10 25. On or about April 19, 2018, DECEDENT was working at the PROPERTY 11 alongside his brother, when the VEHICLE entered the property, struck DECEDENT and caused 12 13 him fatal injuries. BURCH, the operator of the VEHICLE that struck DECEDENT, knew the vehicle he was operating left the road; knew the VEHICLE sustained major damage; knew the VEHICLE he was operating struck an innocent person, knew the innocent person sustain serious a injuries as a result of being hit by the VEHICLE he was operating, yet BURCH did not call 17 18 authorities; BURCH did not call medical help; BURCH did not render aid, and instead, BURCH 19 willfully, knowingly and intentionally fled the incident scene in the VEHICLE. BURCH’s 20 conduct in fleeing the incident scene and failing to render immediate aid may have caused or 21 contributed to additional injuries above and beyond the damages caused in the collision. 22 26. The conduct of Defendant BURCH, as described herein, to wit, BURCH 23 24 knowingly left the road in a vehicle, knowingly struck DECEDENT; knowingly injured 25 DECEDENT; BURCH failed to call authorities, BURCH failed to call medical help, BURCH 26 failed to render aid, and instead BURCH knowingly, willfully and purposefully fled the 27 INCIDENT scene after striking DECEDENT, BURCH’s conduct in fleeing the incident scene 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT increased and contributed to DECEDENT’s injuries and eventual death, all constitute conduct invoking the provisions of Civil Code § 3294 because a person who intentionally leaves an incident scene after knowingly striking an injuring a person, and who increases the injuries and/or damages to such a person as a result of fleeing the incident scene, demonstrates such a conscious and deliberate disregard of the interests of others that the conduct of the Defendant BURCH was willful and wanton and in reckless disregard for the safety and well-being of DECEDENT. PLAINTIFFS are heretofore entitled to punitive and exemplary damages for sake of example and by way of punishing Defendants BURCH, and each of them. 10 27. PLAINTIFFS are informed and believe after BURCH struck DECEDENT, 11 DECEDENT survived the collision before succumbing to his injuries and therefore 12 13 PLAINTIFFS are entitled to punitive and exemplary damages for sake of example and by way of punishing BURCH. 28. The true names and capacities, whether individual, corporate, associate or a otherwise, of Defendants named herein as Does | through 10 and Roe Corporations 1 through 10 17 are unknown to PLAINTIFFS, who therefore sues such Defendants by such fictitious names and 18 19 will amend this Complaint to show their true names and capacities when ascertained together 20 with the proper charging allegations. 21 29. At all times herein mentioned, Defendants Does | through 10 and Roe 22 Corporations | through 10, inclusive, were the agents, servants and employees of their co- 23 Defendants, and in doing the things hereinafter alleged were acting within the scope of their 24 25 authority as such agents, servants and employees and with the consent and permission of their 26 co-Defendants. 27 30. PLAINTIFFS are informed and believe and thereupon allege that each of the 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants designated herein as a DOE or ROE is responsible in some manner and liable herein by reason of negligence, malfeasance, nonfeasance, wanton and reckless misconduct, and conscious disregard, and said Defendants directly, legally and proximately caused the injuries and damages asserted in this Complaint by such wrongful conduct. 31. The acts, conduct, and nonfeasance herein carried out by each and every representative, employee or agent of each and every corporate or business defendant, were authorized, ordered, and directed by the respective Defendant’s corporate or business employers, officers, directors and/or managing agents; that in addition thereto, said corporate or business 10 employers, officers, directors and/or managing agents had advance knowledge of, authorized, 11 and participated in the herein described acts, conduct and nonfeasance of their representatives, 12 13 employees, agents and each of them; and that in addition thereto, upon the completion of the aforesaid acts, conduct and nonfeasance of the employees and agents, the aforesaid corporate and business employers, officers, directors and/or managing agents respectively ratified, accepted the a benefits of, condoned and approved of each and all of said acts, conduct or nonfeasance of their 17 18 co-employees, employers, and agents. 19 32. In addition, at all times herein relevant, each defendant, whether named herein or 20 designated as a DOE or ROE, was a principal, master, employer and joint venturer of every other 21 defendant, and every defendant was acting within the scope of said agency authority, 22 employment and joint venture. 23 24 JURISDICTION AN ENUE 25 33. This Court has jurisdiction in this matter pursuant to Code of Civil Procedure 26 section 410.10 because the accident and/or injury occurred within Butte County, State of 27 California. 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT 34. Venue is proper in this Court pursuant to the provisions of Code of Civil Procedure sections 395 and 395.5, in that the accident occurred and Defendants’ obligations and liability arose in Butte County, State of California. FIRST CAUSE OF ACTION FOR WRONGFUL DEATH BASED UPON NEGLIGENCE (Against Defendants BURCH, Does 1-5, and each of them) 35. PLAINTIFFS repeat and reallege the preceding paragraphs as though fully set forth herein. 36. On April 19, 2018, DECEDENT was performing landscaping work alongside his 10 brother at the PROPERTY. 11 37. On that date and at that time and place, BURCH, who was operating the 12 13 VEHICLE, failed to operate the VEHICLE as a reasonably prudent person in the same or similar circumstances, failed to operate the VEHICLE at a reasonable rate of speed given the circumstances, failed to maintain the VEHICLE on the road/highway, failed to keep a lookout a for pedestrian(s), obstacles, and/or other vehicles, failed to maintain, inspect and/or repair the 17 VEHICLE, failed to control the speed and movement of the VEHICLE, allowed, permitted 18 and/or caused the VEHICLE to leave the road/highway, allowed, permitted and/or caused the 19 VEHICLE to strike DECEDENT and thereby caused DECEDENT’s injuries and/or death. 20 38. All operators of motor vehicles have a general duty to exercise reasonable care 21 and skill in the operation of their vehicles. The duty of care includes operating a vehicle in a safe 22 23 and prudent manner and heeding all traffic ordinances. Operators of motor vehicles must operate 24 their vehicle such as a reasonable and prudent person would in the same or similar 25 circumstances. 26 39. On the date and at the time and place above, Defendants, and each of them, failed 27 to operate their respective vehicles as reasonably prudent persons in the same or similar 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT circumstances thereby causing DECEDENT’S injuries and/or death. 40. At the time and place of the accident described above, there was in effect California Vehicle Code §22350, which provides: "[n]o person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property." Al. At this time and place, Defendants, and each of them, violated California Vehicle Code §22350 by driving at a speed greater than was reasonable and consequently causing 10 DECEDENT?’S injuries and/or death. 11 42. At the time and place of the accident described above, there was in effect 12 13 California Vehicle Code §21658, which provides: “[a] vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.” a 43. At this time and place, Defendants, and each of them, violated California Vehicle 17 18 Code §21658 by failing to drive the VEHICLE within its lane of travel and by moving the 19 VEHICLE from its lane of travel when it was not reasonably safe to do so. 20 44. At the time and place of the accident described above, there was in effect 21 California Vehicle Code §20001, which provides: “[t]he driver ofa vehicle involved in an 22 accident resulting in injury to a person, other than himself or herself, or in the death ofa person 23 24 shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements 25 of Sections 20003 and 20004.” 26 45. At this time and place, Defendants, and each of them, violated California Vehicle 27 Code sections yet to be determined. PLAINTIFFS reserve the right to amend this Complaint 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT - - when the information is ascertained. 46. California Vehicle Codes §22350, §21658 and§20001 were enacted to prevent the type of accident Defendants, and each of them, caused. 47. DECEDENT was within the class of people California Vehicle Codes §22350, §21658 and §20001intend to protect. The vehicle codes exist to ensure the safety of all vehicle motorists and to deter the negligent driving hereinabove alleged. 48. According to California Evidence Code § 669 the failure to exercise due care is presumed if the defendant violates a statute, ordinance or regulation from a public entity; the 10 violation proximately caused person or property injury; the injury resulted from the occurrence 11 of the nature which the statute, ordinance or regulation was designed to prevent; and the person 12 13 sustaining the injury was one of the classes of people protected under the statute, ordinance or regulation. 49, On that date and at that time and place, Defendants, and each of them, so a negligently, carelessly, recklessly and/or unlawfully entrusted, managed, drove and operated 17 18 their respective vehicles so as to proximately cause the collision as described above causing 19 DECEDENT?’S injuries and death. 20 50. At the time of the events described herein and prior thereto, DECEDENT was 21 PLAINTIFFS’ spouse and father providing love, comfort, companionship, society, moral advice, 22 care, support and other physical and emotional benefits to PLAINTIFFS. 23 24 S51. As a direct result of the above-described accident and the death of DECEDENT, 25 PLAINTIFFS have sustained a loss of love, companionship, comfort, affection, society, solace, 26 moral support, financial support and/or other economic entitlement, loss of physical assistance in 27 the operation and maintenance of their home in an amount as yet unknown, but in the excess of 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT - - the minimum jurisdictional limits of this Court. Said losses will be proven with reasonable particularity in the course of the instant lawsuit. §2. By reason of all of the foregoing and the death of DECEDENT, PLAINTIFFS incurred funeral and burial expenses. SECOND CAUSE OF ACTION FOR WRONGFUL DEATH BASED UPON NEGLIGENCE (Against Defendants RICHARD THOMPSON, an individual, MARY LAKE-THOMPSON, an individual, Does 1-5, Roes 1-5, and each of them) 53. PLAINTIFFS repeat and reallege the preceding paragraphs as though fully set 10 forth herein. 11 54. PLAINTIFFS are informed and believe, and based on such information and 12 13 belief, allege that at all times mentioned herein, Defendants R. THOMPSON and M. THOMPSON (“THOMPSONS”) were and are the owners of that certain real property located at 3986 Foothill Boulevard, Oroville, CA 95966 (“PROPERTY”). a 55. On or about April 19, 2018, and prior to that date, DECEDENT was working at 17 18 the PROPERTY at the direct command and at the direction of Defendants THOMPSONS, and/o: 19 DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them. 20 56. On or about April 19, 2018, DECEDENT was performing landscaping work with 21 his brother at the PROPERTY for which a California C-27 Landscaping Contractor license was 22 required. 23 24 57. On or about April 19, 2018, Neither DECEDENT, nor his brother, had a C-27 25 License. Labor Code § 2750.5 provides in pertinent part: “[t]here is a rebuttable presumption 26 affecting the burden of proof that a worker performing services for which a license is required 27 pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT - - Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.” Therefore, pursuant to Labor Code § 2750.5, DECEDENT is presumed an employee of Defendants THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of them. 58. On or about April 19, 2018, DECEDENT was the THOMPSONS’ employee pursuant to, inter alia, Labor Code § 2750.5, 3351, 6303(b). 59. At all times relevant to the acts and omissions herein alleged, THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of them, as landowners and/or employers, had a 10 duty to DECEDENT to act as a reasonably prudent employer and/or landowner in the same or 11 similar circumstance; a duty to exercise reasonable and ordinary care in the use, inspection, 12 13 maintenance and or management of such PROPERTY to avoid exposing any and all persons, including DECEDENT, to an unreasonable risk of harm. 60. Labor Code § 6400 (a) provides “[e]very employer shall furnish employment and a a place of employment that is safe and healthful for the employees therein.” 17 18 61. California Code of Regulations, Title 8, Section 1598 (c) requires “[e]mployees 19 (on foot) exposed to the hazard of vehicular traffic shall wear warning garments such as vests, 20 jackets, or shirts manufactured in accordance with the requirements of the American National 21 Standards Institute (ANSI)/International Safety Equipment Association (ISEA) 107-2004, High 22 Visibility Safety Apparel and Headwear. 23 24 62. On or about April 19, 2018, and prior to that date, Defendants THOMPSONS, 25 and/or DOES 1-5 and/or ROE CORPORATIONS 1-5, and each of them, provided 26 DECEDENT with defective tools and/or defective equipment to perform work at their direction 27 on their PROPERTY. 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT - - 63. On or about April 19, 2018, the THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of them, breached their duty to DECDENT by failing to act as reasonably prudent employer and/or landowner in the same or similar circumstance by, inter alia, negligently directing DECEDENT to work in an area they knew or should have known was exposed to the hazard of vehicular traffic, and/or by negligently failing to provide DECDENT traffic cones, flares, a reflective vest, helmet or any vehicular/traffic safety and/or personal safety] devices whatsoever, and/or by failing to “furnish employment and a place of employment that is safe and healthful for the employees therein” in violation of Labor Code § 6400 (a); by failing to 10 provide DECEDENT any warning garments, such as a vest, jacket or shirt manufactured in 11 accordance with the requirements of the American National Standards Institute in violation of 12 13 California Code of Regulations, Title 8, Section 1598 (c); by failing to put out any traffic control or warning devices on the road in violation of the basic duty of care and California Code of Regulations, Title 8, Section 1598 (c). a 64. On or about April 19, 2018, DECEDENT was working at the PROPERTY at the 17 18 direction and command of Defendants THOMPSONS, Does 1-5, Roe Corporations 1-5, and eac! 19 of them, near a highway, with no safety gear, when, Defendant BURCH, who was operating his 20 vehicle, failed to observe DECEDENT, due to the lack of warning garments and/or traffic 21 safety devices and/or the THOMPSON’s negligent direction to and/or placement of DECEDENT| 22 near a busy highway with no safety precautions whatsoever, when Defendant BURCH struck 23 24 DECEDENT with his vehicle, causing DECEDENT injuries and his eventual death. 25 65. PLAINTIFFS are informed and believe, and based thereon alleges, that at all 26 times herein mentioned, including April 19, 2018, the time of the injury to DECEDENT, in the 27 course and scope of employment, Defendant THOMPSONS, Does 1-5 and Roe Corporations 1- 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT - - 5, and each of them, had no workers compensation insurance for DECEDENT. 66. Plaintiff is informed and believes, and thereon alleges, that at all times material herein, Defendants THOMPSON, Does 1-5, inclusive, and DECEDENT were subject to the workers’ compensation insurance and safety laws, and that these Defendants, and each of them, failed to secure the payment of compensation in one or more of the ways specified in California Labor Code section 3700 et seq. 67. On or about April 19, 2018, DECEDENT was working at the PROPERTY at the Direct command of Defendants THOMPSONS and/or Does 1-5 and/or Roe Corporations 1-5, 10 and each of them. On said date, while in the scope and course of employment with Defendants, 11 DECEDENT was killed on the PROPERTY, which was negligently maintained, supervised, 12 13 managed, and controlled by Defendants THOMPSONS and/or Does 1-5 and/or Roe Corporations 1-5, inclusive. As a result of the negligence of these Defendants, DECEDENT was struck and killed. a 68. Defendants, and each of them, negligently, carelessly, and recklessly owned, 17 18 controlled, managed, inspected and maintained the work environment located on the 19 PROPERTY, so as to proximately cause the injuries to the DECEDENT as described in the 20 foregoing paragraphs of this complaint. 21 69. Defendants THOMPSONS, Does 1-5 and Roe Corporations 1-5, and each of 22 them, inclusive, were subject to and violated, inter alia, Sections 1511, 1514, 1598, 1599 of Title 23 24 8 of Code of Regulations (Cal-OSHA regulations), Labor Code sections 6400, 6401, 6401.7, 25 6402, 6403 and 6404. 26 70. According to California Evidence Code § 669 the failure to exercise due care is 27 presumed if the defendant violates a statute, ordinance or regulation from a public entity; the 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT - - violation proximately caused person or property injury; the injury resulted from the occurrence of the nature which the statute, ordinance or regulation was designed to prevent; and the person sustaining the injury was one of the classes of people protected under the statute, ordinance or regulation. 71. DECEDENT was in the class of persons to be protected by the above-referenced statutes, and Defendants’ failure to abide by said statutes were the actual and proximate cause of DECEDENT?’S injuries as alleged herein. The above-referenced statutes were enacted to prevent the type of harm suffered by DECEDENT. 10 72. On that date and at that time and place, Defendants, and each of them, breached 11 their duty to DECEDENT, negligently, carelessly, recklessly and/or unlawfully entrusted, 12 13 managed, and/or operated the PROPERTY so as to proximately cause and/or contribute to the incident as described above causing DECEDENT’S injuries and death. 73. At the time of the events described herein and prior thereto, DECEDENT was a PLAINTIFFS’ spouse and father providing love, comfort, companionship, society, moral advice, 17 18 care, support and other physical and emotional benefits to PLAINTIFFS. 19 74. As a direct result of the above-described accident and the death of DECEDENT, 20 PLAINTIFFS have sustained a loss of love, companionship, comfort, affection, society, solace, 21 moral support, financial support and/or other economic entitlement, loss of physical assistance in 22 the operation and maintenance of their home in an amount as yet unknown, but in the excess of 23 24 the minimum jurisdictional limits of this Court. Said losses will be proven with reasonable 25 particularity in the course of the instant lawsuit. 26 75. By reason of all of the foregoing and the death of DECEDENT, PLAINTIFFS 27 incurred funeral and burial expenses. 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT -16- THIRD CAUSE OF ACTION FOR SURVIVOR CLAIM (CODE CIV. PROC. § 377.30) BY DECEDENT’S SUCCESSORS IN INTEREST FOR PUNITIVE DAMAGES PURSUANT TO CIVIL CODE § 3294 & FOR ATTORNEY FEES PURSUANT TO CODE OF CIVIL PROCEDURE § 1021.4 (Against Defendants BURCH, RICHARD THOMPSON, MARY LAKE-THOMPSON, Does 1-5, and each of them) 76. PLAINTIFFS repeat and reallege the preceding paragraphs as though fully set forth herein. 77. PLAINTIFFS are DECEDENT’S wife and children, DECEDENT’S heir, and DECEDENT’S successor in interest under California Code of Civil Procedure §377.30. 10 78. PLAINTIFFS bring this action as specified in §377.60(a) of the Code of Civil 11 Procedure on behalf of and for the benefit of all survivors, heirs at law and next of kin of 12 13 DECEDENT. 79. As a direct and proximate result of the acts and omissions and negligence of Defendants, and each of them, PLAINTIFFS are entitled to recover of them, DECEDENT'S a survival damages, including, but not limited to, DECEDENT'S necessary medical and related 17 18 expenses, as proven at time of trial. The total amount of DECEDENT'S damages is presently 19 unknown but is reasonably believed to be in excess of the minimum jurisdictional limit of this 20 Court. 21 80. BURCH’s conduct, as described above, demonstrates such a conscious and 22 deliberate disregard of the interests of others that the conduct of the BURCH was willful and 23 24 wanton and in reckless disregard for the safety and well-being of PLAINTIFFS and 25 DECEDENT. 26 81. BURCH’s conduct was authorized or ratified by a Roe | officer, director or 27 managing agent as it/he/she they failed to terminate Roe 1. 28 PLAINTIFFS’ FIRST AMENDED COMPLAINT - - 82. Roe | had advanced knowledge of BURCH’s unfitness and employed and continued employing BURCH with a conscious disregard of the rights or safety of others. 83. Roe 1’s conduct, as described above, was malicious, was done with a conscious and deliberate disregard of the interests of others, and was ratified by a Roe | officer, director or managing agent. 84. PLAINTIFFS are informed and believe DECEDENT survived the collision before eventually succumbing to his injur