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Kenneth
Law Office
C Brooks
of
SBN,167,792
Kennethzc Brooks
FaLED
1578 Centre Pointe Drive
Milpitas, CA 95035 llb NOV 2| P 3 nu
-Te1ephone: (408) 368—7997
Attorney for Plaintiff
SUPERIOR COURT OF THE STATE OF bALIFORNIA
FOR THE COUNTY OF STANISLAUS
10 UNLIMITED JURISDICTION
11
12 ANTHONY A. DAVIS, Case‘No.:2015010
Plaintiff,
l3 vs. MEMORANDUM OF POINTS AND
CITY OF MODESTO, Stephen G. AUTHORITIES IN SUPPORT IN
‘14 FJELLSTROM, ESTATE OF DCRISE A. SUPPORT OF MOTION To
GALLAGHER, Deceased, ROBERT L. CONSOLIDATE ACTIONS
15 LYNCH and DOES l— 20, Hearing Date: December 20, 2016
Defendants. Time:- 8: 30 a. m.
16 Dept. 21
17' Unlimited Ci_vi1 Action
Complaint Filed June 5, 2015
18
19 vvvvvvvvvvvvvvvvvvvvvvvyyvvVV
20
and Related'cross—actions.
21
INFINITY INSURANCE COMPANY, Case No. :2017893
22 Plaintiff,
vs. Interpleader
23 _TERRY BANKSTOW, ELIZABETH Complaint Filed Dec, 7, 2015
BAUTISTA, ANTOINETTE BLUNT,
2.4 RANDY BROOKS, ANTHONY DAVIS,
ISTEVEN.FJELLSTROM, EDWARD
25
GANTT, MELODY GANTT, ROBERT v
LEON_LYNCH, ROSANNA PIERSON,
MARISOTTI URJANGOS, MARTINA )
’YORK, CITY OF MODESTO/ TRANSDEV )
SERVICES, INC. (fka VEOLIA )
jTRANSPORTATION SERVICES), and )
‘DOEsl through so, )
Defendants. )
)
‘ and Related Cross-Actibns )
)
MARISCOTTI MIJANGOS, ) Case NO.:2017882
Plaintiff, )
’
'
v. -
~
-
44 > Unlimited Civil Action
ROBERT_LYNCH, the EXECUTOR(S)- ) ~Complaint Filed Dec. 4, 2015
0E THE ESTATE 0E DORISE ANN .1)
GALLAGHER, Deceased, and DOES 1)
through,25, Inclusive,
Defendants.
'
g
)
10
)
ll and-Related Cross—Actions )
)
12 ,TANYA KASZUBA, MEGAN SMITHSOM, ) case No.:2020493
RYAN GALLAGHER, JASON FARRAR, )
13 Plaintiffs, . ) Unlimited Civil Action
vs ) Complaint Filed Jun. 10,.2016
l4 'Robert Lynch )
and DOES 1—25, )
15 Defendants. )
)
16
17
II. FACTUAL AND PROCEDURAL BACKGROUND
18
A Complaint was filed in_the Stanislaus County
19
Superior Court on June 5,‘2015 as case number 2015010'and
‘29 subsequently amended twice ("DAVIS Complaint"). As set forth in
21 Ithe'DAVIs Complaint, on-June i3, 2014, at approximately 8:22
22
A;M., Anthony Davis (“DAVIS”)V Plaintiff in the DAVIS Complaint,
V23
was a-pasSenger on~a‘Modesto Area.Express'Bus having License
24
Number 1317064 (BUS)iduring which time a vehicle/ Nissan Altima,
25 v
driven‘by'Dorise Ann'Gallagher collided with.the rear portion of
the BUS while the BUS was stopped etzalgUS stop on North'9th
Street approximately 910 feet Sout of Coldwell Avenue; the
Nissan Altima collided'with thevBUS.while traveling at a high
rate of speed above the posted speed limit cauSing the
instantaneous death ofiDoriseIAnn Gallagher and the destruction
ofathe Nissan Altimalshe'was driving.t Complaint 7. DAVIS is
informed and believes‘that before’the collision between the
Nissan Altima and the.BUS, acollision occurred between the
vehicle driven by Robert L. Lynch,‘Dodge Ram Pickup Truck
10 carrying-a load in the bed thereof, and the vehicle driven by
11 ’Dorise Gallagher that resulted in DoriSe Ann Gallagher losing
.12 control_of the Nissan'Altima causing the Nissan Altima to_
13 ‘collide with the Bus. DAVIS Complaint 1 8. At the moment of
l4 impact between the Nissan Altima and the BUS, DAVIS was seated
15 in the.rear of the BUS along with his girlfriend) Martina York,
16 who DAVIS knew was pregnant'with'his unborn child. The impact.
17 of the.Nissan Altima with the BUS cause both DAVIS and Ms. York
18 to be propelled toward the front of theBUS-with PLAINTIFF’S
19 trajectory being‘abruptly halted by impactlwith a handrail of
I
I
_2o the'BUS, suffering injuries.
21 On December'7, 2016, an Interpleader Complaint waslfiled,
_
22. 'and‘subsequently amended,as'action number 2017893 by INFINITV
23 INSURANCE COMPANY (“INFINITY Complainti), naming'DAVIS, as well_
24_ as other parties, including Martina York as defendants,who DAVIS
25 is informedzand.believes were either passengers.on the BUS and'
or~owners of the BUS. The'INEINITY Cbmplaintlwas f1led.beCause
Dorise A.rGallagher was covered by an insurance policy,issues by
Infinity Insurance Company forithe collision between the Nissan.
=Altima and the BUS that_provided-$30,000.00 in coverage and the
.defendants named in‘the INFINITYnComplaint has made conflicting
bodily injury claims and that infinity Insurance Company is
exposed to double or’multilesliability. INFINITY COmplaint i?
18, l9, 22, 24'and 25. Also named in the INFINITY Conplaint as
a defendant is Stephen G. Fjellstrom, who is atnamed defendant
10 in the DAVIS Complaint. On‘or about February 2016, Mantina York
ll (“YORKF) filed a.Cross—complaint (“YORK Cross—Complaint”) in the
12 2017893-action naming Transdev Services, Inc. (fka-Veolia
13 Transportation Services) and Stephen G. Fjellstrom as
1A defendants. DAVIS filed a Cross—complaint in the 2017893.action
15 (“DAVIS Cross-Complaint”) naming Transdev Service, Inc.:(fka
-
1,6 Veolia Transportation Services)(“TRANSDEV”)7 TRANSDEV is
17 allegedlto be the owner and‘operator of the BUS on_the date and
18 time of the collision between.the Nissan and the‘BUS. DAVIS
.19A ,.Cross-Comp1aint 1 10,- yc-RK Cross-Complaint ] 12._ In the' YORK
20. .Cross—Complaint damages are=sought against the-named defendants
21 for‘injuries that arose from.the collision between the Nissan
.22. Altima and the BUS;‘.The DAVIS crOss-complaint also includes a,
23 single'cause of action against-TRANSDEV for FalseImprisOnment,
24., which is also present in the‘DAVIS Complaint-against defendant
25 Stephen G. Fjellstrom and the-City of Modesto. The YORK Crossj
Complaint also includes avcase‘of actio for False Imprisonment’
against both Stephen.G. Fjellstrom and TRANSDEV.
On December 4, 2015, a complaint was filed'as action number
2017882 with Mariscott.Mijangos (MIJANGOS Complaint) being the
~named Plaintiff and Robert L. Lynch and mm EXECUTOR(S) OF THE
ESTATE 0F DORISE ANN GALLAGHER, Deceased being named defendants.
In the 2017882Vaction’Mariscott Mijangos (“MIJANGOS“) seek
recovery for damages.as a
resultuof the collision between the
Nissan and the BUS. see MIJANGQS Complaint M 11—13.
10 Recently DAVIS haS'become aware of yet another'action filed
~11 'in the Stanislaus Superior Court.as action umber 2020493, filed
12 June 10, 2016 (1453"'action"). The Complaint in the 493 action
13 (“493'Complaint”) names Robert L. Lynch as a defendant and Tanya
14 Kaszuba; Megan Smithson,‘Ryan Gallagher-and Jason Farrar as
15 plaintiffs. The-493 Complaintqis an action for wrongful death
16 of motor vehicle and alleges that it occurred on June 13. 2014
17 near‘9m Street and Coldwell Ave.-in Modesto.‘ 493 Complaint $1
I
18 12 and MVl.
19 Now comes DAVIS seeking an order to grant consolidation-for
20 the four above—identified actions into the lead_case 2015010bdue
21 .to the overlapping number of-the‘claims, commonality of the
22 parties,~and the clear risk of inconsistent judgments, judicial
23 economy, consistent adjudication, and convenience of the parties
24
rand witnesses would be served by the requested‘consolidation.
'
25 II. STATMENT o1? THE LAW
California Code ofrCivil Proéedure section 1048 states in
I
pertinent part:
(a). When actions involving a common question of law
or fact are. pending before the court, it may'order a
joint hearingvor trial on any or all_the matters in
issue in the actionsf it may order all the actions
consolidated and 1t may make such orders concerning
proceedings therein as may tend to avoid unnecessary
V
costs or-delay. (Code Ciy. Proc. § 1048(a).
Consolidation is a matter within the judge's discretion. (Askew
10
A
_v. Askew (1994) 22 Cai.App.4th 942, 964.)
11
It cannot be disputed that the causes of action in the
l2
2015010 Complaint against Defendant LYNCH and GALLAGHER seek to
13
recover damages for the very same alleged misconduct‘as-set
14
forth in the 2017882 and the 2020493. Moreover, given that both
‘15
the DAVIS Complaint and the MIJANGOS Complaint make clear that
16’
the recovery is limited to the insurance proceeds of'the
17‘. insurance policy for which Gallagher had in force at the'time of.
18 the collision between‘the Nissan Altima and the BUS, it is
19 manifest that many of the issues and findings of the
..20 INTERPLEADER action will be identical_to those present in the
21 three remaining actions, particularly with the issues
22~ surrounding contributory negligence.
23 III. No Prejudice Will Result To Any Party As A Result Of
24 Consolidation
25
With consolidation, no party will suffer any harm to a
'substantial right. In fact, given the limited amount of money
available.to the Plaintiffs'from the insurance policy that is
the subject: of the, INTERPLEADER Complaint, it: is submitted that
all parties will gain a Substantial benefit ih cost savings by
censolidation of'the actions; Trial has not been schedUled in
any of the actiqns and discoverysis continuing. For that matter,
the YORK Cross-Complaint.is not:at issue, beeause Defendant
.Lynch has.not yet answered the same. Consolidation will prevent
all parties from having to proSecute and defend the same claims
among the same parties in different actions. Furthermore, the
‘judicial resources willvbe.preserved with consolidation by‘
10
having a single trial.
11
II I . CONCLUS ION
l2
Because the four actions involve the same claims,.identical
13
'parties, the law and facts involved in these actions are
l4. 1r
sufficiently common
.
such that trial convenience andvjudicial. _
is economy-will be by.consolidating these two actions.
promoted
16
Further, consolidation will not-adversely affect the substantial
17 rights of any parties herein. Therefore, Anthony A. Davis
18 respectfully requests that this Court grant the subject Motion
19 to Consolidate for all purposes.
20 Datedi November 18, 2016
21‘
22
23.
aw/a9Brow
Kenneth C.
Attorney for Plaintiff
24
25
Preview
. C ~11 r 32 '1'. J ‘ <"""“::‘§:x ' Kenneth Law Office C Brooks of SBN,167,792 Kennethzc Brooks FaLED 1578 Centre Pointe Drive Milpitas, CA 95035 llb NOV 2| P 3 nu -Te1ephone: (408) 368—7997 Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF bALIFORNIA FOR THE COUNTY OF STANISLAUS 10 UNLIMITED JURISDICTION 11 12 ANTHONY A. DAVIS, Case‘No.:2015010 Plaintiff, l3 vs. MEMORANDUM OF POINTS AND CITY OF MODESTO, Stephen G. AUTHORITIES IN SUPPORT IN ‘14 FJELLSTROM, ESTATE OF DCRISE A. SUPPORT OF MOTION To GALLAGHER, Deceased, ROBERT L. CONSOLIDATE ACTIONS 15 LYNCH and DOES l— 20, Hearing Date: December 20, 2016 Defendants. Time:- 8: 30 a. m. 16 Dept. 21 17' Unlimited Ci_vi1 Action Complaint Filed June 5, 2015 18 19 vvvvvvvvvvvvvvvvvvvvvvvyyvvVV 20 and Related'cross—actions. 21 INFINITY INSURANCE COMPANY, Case No. :2017893 22 Plaintiff, vs. Interpleader 23 _TERRY BANKSTOW, ELIZABETH Complaint Filed Dec, 7, 2015 BAUTISTA, ANTOINETTE BLUNT, 2.4 RANDY BROOKS, ANTHONY DAVIS, ISTEVEN.FJELLSTROM, EDWARD 25 GANTT, MELODY GANTT, ROBERT v LEON_LYNCH, ROSANNA PIERSON, MARISOTTI URJANGOS, MARTINA ) ’YORK, CITY OF MODESTO/ TRANSDEV ) SERVICES, INC. (fka VEOLIA ) jTRANSPORTATION SERVICES), and ) ‘DOEsl through so, ) Defendants. ) ) ‘ and Related Cross-Actibns ) ) MARISCOTTI MIJANGOS, ) Case NO.:2017882 Plaintiff, ) ’ ' v. - ~ - 44 > Unlimited Civil Action ROBERT_LYNCH, the EXECUTOR(S)- ) ~Complaint Filed Dec. 4, 2015 0E THE ESTATE 0E DORISE ANN .1) GALLAGHER, Deceased, and DOES 1) through,25, Inclusive, Defendants. ' g ) 10 ) ll and-Related Cross—Actions ) ) 12 ,TANYA KASZUBA, MEGAN SMITHSOM, ) case No.:2020493 RYAN GALLAGHER, JASON FARRAR, ) 13 Plaintiffs, . ) Unlimited Civil Action vs ) Complaint Filed Jun. 10,.2016 l4 'Robert Lynch ) and DOES 1—25, ) 15 Defendants. ) ) 16 17 II. FACTUAL AND PROCEDURAL BACKGROUND 18 A Complaint was filed in_the Stanislaus County 19 Superior Court on June 5,‘2015 as case number 2015010'and ‘29 subsequently amended twice ("DAVIS Complaint"). As set forth in 21 Ithe'DAVIs Complaint, on-June i3, 2014, at approximately 8:22 22 A;M., Anthony Davis (“DAVIS”)V Plaintiff in the DAVIS Complaint, V23 was a-pasSenger on~a‘Modesto Area.Express'Bus having License 24 Number 1317064 (BUS)iduring which time a vehicle/ Nissan Altima, 25 v driven‘by'Dorise Ann'Gallagher collided with.the rear portion of the BUS while the BUS was stopped etzalgUS stop on North'9th Street approximately 910 feet Sout of Coldwell Avenue; the Nissan Altima collided'with thevBUS.while traveling at a high rate of speed above the posted speed limit cauSing the instantaneous death ofiDoriseIAnn Gallagher and the destruction ofathe Nissan Altimalshe'was driving.t Complaint 7. DAVIS is informed and believes‘that before’the collision between the Nissan Altima and the.BUS, acollision occurred between the vehicle driven by Robert L. Lynch,‘Dodge Ram Pickup Truck 10 carrying-a load in the bed thereof, and the vehicle driven by 11 ’Dorise Gallagher that resulted in DoriSe Ann Gallagher losing .12 control_of the Nissan'Altima causing the Nissan Altima to_ 13 ‘collide with the Bus. DAVIS Complaint 1 8. At the moment of l4 impact between the Nissan Altima and the BUS, DAVIS was seated 15 in the.rear of the BUS along with his girlfriend) Martina York, 16 who DAVIS knew was pregnant'with'his unborn child. The impact. 17 of the.Nissan Altima with the BUS cause both DAVIS and Ms. York 18 to be propelled toward the front of theBUS-with PLAINTIFF’S 19 trajectory being‘abruptly halted by impactlwith a handrail of I I _2o the'BUS, suffering injuries. 21 On December'7, 2016, an Interpleader Complaint waslfiled, _ 22. 'and‘subsequently amended,as'action number 2017893 by INFINITV 23 INSURANCE COMPANY (“INFINITY Complainti), naming'DAVIS, as well_ 24_ as other parties, including Martina York as defendants,who DAVIS 25 is informedzand.believes were either passengers.on the BUS and' or~owners of the BUS. The'INEINITY Cbmplaintlwas f1led.beCause Dorise A.rGallagher was covered by an insurance policy,issues by Infinity Insurance Company forithe collision between the Nissan. =Altima and the BUS that_provided-$30,000.00 in coverage and the .defendants named in‘the INFINITYnComplaint has made conflicting bodily injury claims and that infinity Insurance Company is exposed to double or’multilesliability. INFINITY COmplaint i? 18, l9, 22, 24'and 25. Also named in the INFINITY Conplaint as a defendant is Stephen G. Fjellstrom, who is atnamed defendant 10 in the DAVIS Complaint. On‘or about February 2016, Mantina York ll (“YORKF) filed a.Cross—complaint (“YORK Cross—Complaint”) in the 12 2017893-action naming Transdev Services, Inc. (fka-Veolia 13 Transportation Services) and Stephen G. Fjellstrom as 1A defendants. DAVIS filed a Cross—complaint in the 2017893.action 15 (“DAVIS Cross-Complaint”) naming Transdev Service, Inc.:(fka - 1,6 Veolia Transportation Services)(“TRANSDEV”)7 TRANSDEV is 17 allegedlto be the owner and‘operator of the BUS on_the date and 18 time of the collision between.the Nissan and the‘BUS. DAVIS .19A ,.Cross-Comp1aint 1 10,- yc-RK Cross-Complaint ] 12._ In the' YORK 20. .Cross—Complaint damages are=sought against the-named defendants 21 for‘injuries that arose from.the collision between the Nissan .22. Altima and the BUS;‘.The DAVIS crOss-complaint also includes a, 23 single'cause of action against-TRANSDEV for FalseImprisOnment, 24., which is also present in the‘DAVIS Complaint-against defendant 25 Stephen G. Fjellstrom and the-City of Modesto. The YORK Crossj Complaint also includes avcase‘of actio for False Imprisonment’ against both Stephen.G. Fjellstrom and TRANSDEV. On December 4, 2015, a complaint was filed'as action number 2017882 with Mariscott.Mijangos (MIJANGOS Complaint) being the ~named Plaintiff and Robert L. Lynch and mm EXECUTOR(S) OF THE ESTATE 0F DORISE ANN GALLAGHER, Deceased being named defendants. In the 2017882Vaction’Mariscott Mijangos (“MIJANGOS“) seek recovery for damages.as a resultuof the collision between the Nissan and the BUS. see MIJANGQS Complaint M 11—13. 10 Recently DAVIS haS'become aware of yet another'action filed ~11 'in the Stanislaus Superior Court.as action umber 2020493, filed 12 June 10, 2016 (1453"'action"). The Complaint in the 493 action 13 (“493'Complaint”) names Robert L. Lynch as a defendant and Tanya 14 Kaszuba; Megan Smithson,‘Ryan Gallagher-and Jason Farrar as 15 plaintiffs. The-493 Complaintqis an action for wrongful death 16 of motor vehicle and alleges that it occurred on June 13. 2014 17 near‘9m Street and Coldwell Ave.-in Modesto.‘ 493 Complaint $1 I 18 12 and MVl. 19 Now comes DAVIS seeking an order to grant consolidation-for 20 the four above—identified actions into the lead_case 2015010bdue 21 .to the overlapping number of-the‘claims, commonality of the 22 parties,~and the clear risk of inconsistent judgments, judicial 23 economy, consistent adjudication, and convenience of the parties 24 rand witnesses would be served by the requested‘consolidation. ' 25 II. STATMENT o1? THE LAW California Code ofrCivil Proéedure section 1048 states in I pertinent part: (a). When actions involving a common question of law or fact are. pending before the court, it may'order a joint hearingvor trial on any or all_the matters in issue in the actionsf it may order all the actions consolidated and 1t may make such orders concerning proceedings therein as may tend to avoid unnecessary V costs or-delay. (Code Ciy. Proc. § 1048(a). Consolidation is a matter within the judge's discretion. (Askew 10 A _v. Askew (1994) 22 Cai.App.4th 942, 964.) 11 It cannot be disputed that the causes of action in the l2 2015010 Complaint against Defendant LYNCH and GALLAGHER seek to 13 recover damages for the very same alleged misconduct‘as-set 14 forth in the 2017882 and the 2020493. Moreover, given that both ‘15 the DAVIS Complaint and the MIJANGOS Complaint make clear that 16’ the recovery is limited to the insurance proceeds of'the 17‘. insurance policy for which Gallagher had in force at the'time of. 18 the collision between‘the Nissan Altima and the BUS, it is 19 manifest that many of the issues and findings of the ..20 INTERPLEADER action will be identical_to those present in the 21 three remaining actions, particularly with the issues 22~ surrounding contributory negligence. 23 III. No Prejudice Will Result To Any Party As A Result Of 24 Consolidation 25 With consolidation, no party will suffer any harm to a 'substantial right. In fact, given the limited amount of money available.to the Plaintiffs'from the insurance policy that is the subject: of the, INTERPLEADER Complaint, it: is submitted that all parties will gain a Substantial benefit ih cost savings by censolidation of'the actions; Trial has not been schedUled in any of the actiqns and discoverysis continuing. For that matter, the YORK Cross-Complaint.is not:at issue, beeause Defendant .Lynch has.not yet answered the same. Consolidation will prevent all parties from having to proSecute and defend the same claims among the same parties in different actions. Furthermore, the ‘judicial resources willvbe.preserved with consolidation by‘ 10 having a single trial. 11 II I . CONCLUS ION l2 Because the four actions involve the same claims,.identical 13 'parties, the law and facts involved in these actions are l4. 1r sufficiently common . such that trial convenience andvjudicial. _ is economy-will be by.consolidating these two actions. promoted 16 Further, consolidation will not-adversely affect the substantial 17 rights of any parties herein. Therefore, Anthony A. Davis 18 respectfully requests that this Court grant the subject Motion 19 to Consolidate for all purposes. 20 Datedi November 18, 2016 21‘ 22 23. aw/a9Brow Kenneth C. Attorney for Plaintiff 24 25