On May 07, 2003 a
Complaint,Petition
was filed
involving a dispute between
Fernando Carlos,
and
Alcide.E. Benardin,
for Limited Civil
in the District Court of Alameda County.
Preview
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, a and address):
Oe err
Gustavo Pena #168725
Law Offices of Gustavo Pena
Ae
a
39675 Cedar Blvd. Suite 295A
Newark CA 94560
TELEPHONE NO 510-661-9361 FAXNO. (Optiona): 510-661-9301
E-MAIL ADDRESS (Optional):
ATTORNEY
FOR (Name): Plaintiff Fernando Carlos
nameorcourr ALAMEDA COUNTY SUPERIOR COURT
STREET ADDRESS 39439 Paseo Padre Pkwy
MAILING ADDRESS
ciyANDZPcoDE Fremont CA 94538
BRANCH NAME: Fremont Hall of Justice
PLAINTIFF: Fernando Carlos
FILED
ALAMEDA COUNTY
DEFENDANT: AE Benardin T/A McDonalds
[4] poEs1To 10
COMPLAINT-Personal Injury, Property Damage, Wrongful Death
[_] AMENDED (Number):
Type (check all that apply):
[_] MoTORVEHICLE [xl OTHER (specify): Negligence
Property Damage [-_] Wrongful Death
[_y ] Personal Injury [__] Other Damages (specify):
Jurisdiction (check aff that apply):
Lec] ACTION IS A LIMITED CIVIL CASE CASE NUMBER:
Amount demanded [__] does not exceed $10,000
[y.| exceeds $10,000, but does not exceed $25,000
ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) Feos-95288
ACTION IS RECLASSIFIED by this amended complaint
L__] from limited to unlimited
[__] from unlimited to limited
1. PLAINTIFF (name): Fernando Carlos
alleges causes of action against DEFENDANT (name):A E Benardin T/A McDonalds and does 1-10
2. This pleading, including attachments and exhibits, consists of the following number of pages: 5
3. Each plaintiff named above is a competent adult
a [_] except plaintiff (name):
(1)L__] a corporation qualified to do business in California
(2)[—_] an unincorporated entity (describe):
(3)[__] a public entity (describe):
(4).-_] aminor ["_] anadutt
(a) [_~"] for whom a guardian or conservator of the estate or a guardian ad litern has been appointed
)C_] other (specify):
(5)[__] other (specify):
b [__] except plaintiff (name):
(1) [| acorporation qualified to do business in California
(2)[-_] an unincorporated entity (describe):
(3)[-_] a public entity (describe):
(4) ] aminor [] anadult
{a) [| for whom a guardian or conservator of the estate or a guardian ad litem has been appointed
(b) __] other (specify):
(©) other (specify): ”
[_] information about additional plaintiffs who are not competent adults is shown in Complaint-Attachment 3.
(Continued on reverse) Page one of three
Form Approved Use
for Optional COMPLAINT-Personal Injury, Property Re ee || Code of Civil Procedure, § 425.12
962.111) IRev. January
1, 20011 Damaae. Wronaful Death Law Publishers
SHORT TITLE: @ ‘CASE NUMBER:
-~ CARLOS V. A E BENARDIN T/A MCDONALDS
4. (_] Plaintiff (name):
is doing business under the fictitious name (specify):
and has complied with the fictitious business name laws.
5. Each defendant named above is a natural person
a. Ly] except defendant (name): AE, Benardin « CJ except defendant (name):
(1) Ly] a business organization, form unknown (1)[__] a business organization, form unknown
(2) [_] a corporation (2)[__] a corporation
(3)[_] an unincorporated entity (describe): (3) [| an unincorporated entity (describe):
(4) [__] a public entity (describe): (4)__] a public entity (describe):
(6)L_] other (specify): (5) __] other (specify):
b LI except defendant (name): d CI except defendant (name):
(1)L__] a business organization, form unknown (1)[__] a business organization, form unknown
(2)[—__] a corporation (2) [_] a corporation
(3)[__] an unincorporated entity (describe): (3) [| an unincorporated entity (describe):
(4)[_] a public entity (describe): (4)[] a public entity (describe):
(5)L__] other (specify): (5)L_] other (specify):
CJ Information about additional defendants who are not natural persons is contained in Complaint-Attachment 5.
6. Thetrue names and capacities of defendants sued as Does are unknown to plaintiff.
7. [__] Defendants who are joined pursuant to Code of Civil Procedure section 382 are (names):
8. This court is the proper court because
a. Lx] at least one defendant now resides in its jurisdictional area.
b. [ ] the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area.
c. La] injury to person or damage to personal property occurred in its jurisdictional area.
d. L_] other (specify):
9. [_] Plaintitfis required to comply with a claims statute, and
a L_] plaintiff has complied with applicable claims statutes, or
b. L__] plaintiff is excused from complying because (specify):
(Continued on page three)
982.4(1) [Rev. January 4, 2001} COMPLAINT-Personal Injury, Property Damage, Wrongful Death —_[\agginor3.02009 || Page
two of three
SHORT TITLE: ASE NUMBER
CARLOS V. AE BERNARDIN T/A MCDONALDS
10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more
causes of action affached):
a. [__] Motor Vehicle
b. [41 General Negligence
c. [_] Intentional Tort
d. C4¢] Products Liability
e. [_] Premises Liability
f. [--] Other (specify):
11. Plaintiff has suffered
wage loss
loss of use of property
amoanep
ima hospital and medical expenses
general damage
Ly] property damage
[3c] loss of eaming capacity
[J other damage (specify):
12 [ | The damages claimed for wrongful death and the relationships of plaintiff to the deceased are
a. [_] listed in Complaint-Attachment 12.
b. L__] as follows:
13. The relief sought in this complaint is within the jurisdiction of this court.
14. PLAINTIFF PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable; and for
a. [yx] compensatory damages
(1)[-_] (unlimited civil cases) according to proof.
(2) 41 (limited civil cases) in the amount of. $ 25,000.
b. L_] other (specify):
15. [__] The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers):
Date. MAY 06, 2003
GUSTAVO PENA
(TYPE OR PRINT NAME}
> {SIGNATURE OF PLAINTIEFOR ATTORNEY)
sy
9821(1) [Rev. January1,2001] COMPLAINT- Personal Injury, Property Damage, Wrongful Death —_([[Rggoe 7200 | Page three
of three
SHORT TITLE: @ CASE NUMBER:
CARLOS V. AEB BENARDIN MCDONALDS
ongE CAUSE OF ACTION—General Negligence Page 4
(number)
ATTACHMENT TO Complaint [—] Cross-Complaint
(Use a separate cause of action form for each cause of action.)
GN-1. Plaintiff (name}i FERNANDO CARLOS
alleges that defendant (name):
AE BENARDIN T/A MCDONALDS AND
Does 1 to 10
was the legal (proximate} cause of damages to plaintiff. By the following acts or omissions to act, defendant
negligently caused the damage to plaintiff
on (date): 05-07-02
at (place). FREMONT CA
(description of reasons for liability).
PLAINTIFF PURCHASED A CHICKEN SANDWHICH AT MCDONALDS RESTAURANT
OWNED AND OPERATED BY DEFENDANT. WHILE HATING THE CHICKEN
SANDWICH PLAINTIFF BIT INTO A FOREIGN OBJECT WHICH PUNCTURED THE
ROOF OF HIS MOUTH AND TONGUE. THE OBJECT WAS LATER IDENTIFIED AS
A NEEDLE. DEFENDANT SOLD, PERPARED AND SERVED THE CHICKEN
SANDWICH TO PLAINTFF IN SUCH A NEGLIGENT MANNER THAT A NEEDLE WAS
ALLOWED TO BE IN THE SANDWHICH AND THERBY CASUE THE INJURIES AND
DAMAGES ALLEGED HEREIN. DEFENDANT PATLED TO USE ORDINARY CARE TO
INSURE THAT THE CHICKEN SANDWHICH WAS SERVED IN A MANNER THAT WAS
NOT LIKLELY TO RESULT IN INJURY TO THE CONSUMER.
Form Approved by the . ciectonic form 2001 CCP 425.12
Judicial Council of California CAUSE OF ACTION—General Negligence Law Publishers
Effective January 1, 1982
Rule 982.1(3)
SHORT TITLE: ® © CASE NUMBER:
CARLOS V. AE BENARDIN T/A MCDONALDS
two CAUSE OF ACTION—Products Liability Page 5
(number)
ATTACHMENT TO [_| Complaint [_] Cross-Complaint
(Use a separate cause of action form for each cause of action.)
Plaintiff (name). FERNANDO CARLOS
Prod.L-1. On or about (date):May 7, 2002 plaintiff was injured by the following product:
MCDONALDS CHICKEN SANDWHICH
Prod.L-2. Each of the defendants knew the product would be purchased and used without inspection for defects.
The product was defective when it left the contro] of each defendant. The product at the time of injury
was being
used in the manner intended by the defendants.
[| used in a manner that was reasonably foreseeable by defendants as involving a substantial danger not
readily apparent. Adequate warnings of the danger were not given.
Prod.L-3. Plaintiff was a
purchaser of the product. [Lx] user of the product.
[_] bystander to the use of the product. [_] other (specify):
PLAINTIFF'S INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE FOLLOWING:
Prod.L-4. Count One—Strict liability of the following defendants who
a. manufactured or assembled the product (names):AE. BENARDIN T/A MCDONALDS
Does 1 to 10
b. designed and manufactured component parts supplied to the manufacturer (names):
AE BENARDIN T/A MCDONALDS
Does 1 to 10
c. sold the productto the public (names):AE BENARDIN T/A MCDONALDS
Does 1 to 10
Prod.L-5. Count Two—Negligence of the following defendants who owed a duty to plaintiff (names):
AE BENARDIN T/A MCDONALDS
Does 1 to 10
Prod.L-6. Count Three—Breach of warranty by the following defendants (names):
AE BENARDIN A/T MCDONALDS
Does 1 to 10
a. [DX] who breached an implied warranty
b. E-] who breached an express warranty which was
[-] written [_] oral
Prod.L-7. [| The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are
[_] listed in Attachment—Prod.-7 [_]| as follows:
Form Approved by the 4 Electronic Form © 1995
idicial Councilof Califor
Judicial Council of Califomia CAUSE OF ACTION—Products
, —| Liability
i Hr daygascon
wew. lawca.com
Rule 982.1(6)
Document Filed Date
May 07, 2003
Case Filing Date
May 07, 2003
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ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, a and address): Oe err Gustavo Pena #168725 Law Offices of Gustavo Pena Ae a 39675 Cedar Blvd. Suite 295A Newark CA 94560 TELEPHONE NO 510-661-9361 FAXNO. (Optiona): 510-661-9301 E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name): Plaintiff Fernando Carlos nameorcourr ALAMEDA COUNTY SUPERIOR COURT STREET ADDRESS 39439 Paseo Padre Pkwy MAILING ADDRESS ciyANDZPcoDE Fremont CA 94538 BRANCH NAME: Fremont Hall of Justice PLAINTIFF: Fernando Carlos FILED ALAMEDA COUNTY DEFENDANT: AE Benardin T/A McDonalds [4] poEs1To 10 COMPLAINT-Personal Injury, Property Damage, Wrongful Death [_] AMENDED (Number): Type (check all that apply): [_] MoTORVEHICLE [xl OTHER (specify): Negligence Property Damage [-_] Wrongful Death [_y ] Personal Injury [__] Other Damages (specify): Jurisdiction (check aff that apply): Lec] ACTION IS A LIMITED CIVIL CASE CASE NUMBER: Amount demanded [__] does not exceed $10,000 [y.| exceeds $10,000, but does not exceed $25,000 ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) Feos-95288 ACTION IS RECLASSIFIED by this amended complaint L__] from limited to unlimited [__] from unlimited to limited 1. PLAINTIFF (name): Fernando Carlos alleges causes of action against DEFENDANT (name):A E Benardin T/A McDonalds and does 1-10 2. This pleading, including attachments and exhibits, consists of the following number of pages: 5 3. Each plaintiff named above is a competent adult a [_] except plaintiff (name): (1)L__] a corporation qualified to do business in California (2)[—_] an unincorporated entity (describe): (3)[__] a public entity (describe): (4).-_] aminor ["_] anadutt (a) [_~"] for whom a guardian or conservator of the estate or a guardian ad litern has been appointed )C_] other (specify): (5)[__] other (specify): b [__] except plaintiff (name): (1) [| acorporation qualified to do business in California (2)[-_] an unincorporated entity (describe): (3)[-_] a public entity (describe): (4) ] aminor [] anadult {a) [| for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) __] other (specify): (©) other (specify): ” [_] information about additional plaintiffs who are not competent adults is shown in Complaint-Attachment 3. (Continued on reverse) Page one of three Form Approved Use for Optional COMPLAINT-Personal Injury, Property Re ee || Code of Civil Procedure, § 425.12 962.111) IRev. January 1, 20011 Damaae. Wronaful Death Law Publishers SHORT TITLE: @ ‘CASE NUMBER: -~ CARLOS V. A E BENARDIN T/A MCDONALDS 4. (_] Plaintiff (name): is doing business under the fictitious name (specify): and has complied with the fictitious business name laws. 5. Each defendant named above is a natural person a. Ly] except defendant (name): AE, Benardin « CJ except defendant (name): (1) Ly] a business organization, form unknown (1)[__] a business organization, form unknown (2) [_] a corporation (2)[__] a corporation (3)[_] an unincorporated entity (describe): (3) [| an unincorporated entity (describe): (4) [__] a public entity (describe): (4)__] a public entity (describe): (6)L_] other (specify): (5) __] other (specify): b LI except defendant (name): d CI except defendant (name): (1)L__] a business organization, form unknown (1)[__] a business organization, form unknown (2)[—__] a corporation (2) [_] a corporation (3)[__] an unincorporated entity (describe): (3) [| an unincorporated entity (describe): (4)[_] a public entity (describe): (4)[] a public entity (describe): (5)L__] other (specify): (5)L_] other (specify): CJ Information about additional defendants who are not natural persons is contained in Complaint-Attachment 5. 6. Thetrue names and capacities of defendants sued as Does are unknown to plaintiff. 7. [__] Defendants who are joined pursuant to Code of Civil Procedure section 382 are (names): 8. This court is the proper court because a. Lx] at least one defendant now resides in its jurisdictional area. b. [ ] the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area. c. La] injury to person or damage to personal property occurred in its jurisdictional area. d. L_] other (specify): 9. [_] Plaintitfis required to comply with a claims statute, and a L_] plaintiff has complied with applicable claims statutes, or b. L__] plaintiff is excused from complying because (specify): (Continued on page three) 982.4(1) [Rev. January 4, 2001} COMPLAINT-Personal Injury, Property Damage, Wrongful Death —_[\agginor3.02009 || Page two of three SHORT TITLE: ASE NUMBER CARLOS V. AE BERNARDIN T/A MCDONALDS 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action affached): a. [__] Motor Vehicle b. [41 General Negligence c. [_] Intentional Tort d. C4¢] Products Liability e. [_] Premises Liability f. [--] Other (specify): 11. Plaintiff has suffered wage loss loss of use of property amoanep ima hospital and medical expenses general damage Ly] property damage [3c] loss of eaming capacity [J other damage (specify): 12 [ | The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. [_] listed in Complaint-Attachment 12. b. L__] as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. 14. PLAINTIFF PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. [yx] compensatory damages (1)[-_] (unlimited civil cases) according to proof. (2) 41 (limited civil cases) in the amount of. $ 25,000. b. L_] other (specify): 15. [__] The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers): Date. MAY 06, 2003 GUSTAVO PENA (TYPE OR PRINT NAME} > {SIGNATURE OF PLAINTIEFOR ATTORNEY) sy 9821(1) [Rev. January1,2001] COMPLAINT- Personal Injury, Property Damage, Wrongful Death —_([[Rggoe 7200 | Page three of three SHORT TITLE: @ CASE NUMBER: CARLOS V. AEB BENARDIN MCDONALDS ongE CAUSE OF ACTION—General Negligence Page 4 (number) ATTACHMENT TO Complaint [—] Cross-Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff (name}i FERNANDO CARLOS alleges that defendant (name): AE BENARDIN T/A MCDONALDS AND Does 1 to 10 was the legal (proximate} cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on (date): 05-07-02 at (place). FREMONT CA (description of reasons for liability). PLAINTIFF PURCHASED A CHICKEN SANDWHICH AT MCDONALDS RESTAURANT OWNED AND OPERATED BY DEFENDANT. WHILE HATING THE CHICKEN SANDWICH PLAINTIFF BIT INTO A FOREIGN OBJECT WHICH PUNCTURED THE ROOF OF HIS MOUTH AND TONGUE. THE OBJECT WAS LATER IDENTIFIED AS A NEEDLE. DEFENDANT SOLD, PERPARED AND SERVED THE CHICKEN SANDWICH TO PLAINTFF IN SUCH A NEGLIGENT MANNER THAT A NEEDLE WAS ALLOWED TO BE IN THE SANDWHICH AND THERBY CASUE THE INJURIES AND DAMAGES ALLEGED HEREIN. DEFENDANT PATLED TO USE ORDINARY CARE TO INSURE THAT THE CHICKEN SANDWHICH WAS SERVED IN A MANNER THAT WAS NOT LIKLELY TO RESULT IN INJURY TO THE CONSUMER. Form Approved by the . ciectonic form 2001 CCP 425.12 Judicial Council of California CAUSE OF ACTION—General Negligence Law Publishers Effective January 1, 1982 Rule 982.1(3) SHORT TITLE: ® © CASE NUMBER: CARLOS V. AE BENARDIN T/A MCDONALDS two CAUSE OF ACTION—Products Liability Page 5 (number) ATTACHMENT TO [_| Complaint [_] Cross-Complaint (Use a separate cause of action form for each cause of action.) Plaintiff (name). FERNANDO CARLOS Prod.L-1. On or about (date):May 7, 2002 plaintiff was injured by the following product: MCDONALDS CHICKEN SANDWHICH Prod.L-2. Each of the defendants knew the product would be purchased and used without inspection for defects. The product was defective when it left the contro] of each defendant. The product at the time of injury was being used in the manner intended by the defendants. [| used in a manner that was reasonably foreseeable by defendants as involving a substantial danger not readily apparent. Adequate warnings of the danger were not given. Prod.L-3. Plaintiff was a purchaser of the product. [Lx] user of the product. [_] bystander to the use of the product. [_] other (specify): PLAINTIFF'S INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE FOLLOWING: Prod.L-4. Count One—Strict liability of the following defendants who a. manufactured or assembled the product (names):AE. BENARDIN T/A MCDONALDS Does 1 to 10 b. designed and manufactured component parts supplied to the manufacturer (names): AE BENARDIN T/A MCDONALDS Does 1 to 10 c. sold the productto the public (names):AE BENARDIN T/A MCDONALDS Does 1 to 10 Prod.L-5. Count Two—Negligence of the following defendants who owed a duty to plaintiff (names): AE BENARDIN T/A MCDONALDS Does 1 to 10 Prod.L-6. Count Three—Breach of warranty by the following defendants (names): AE BENARDIN A/T MCDONALDS Does 1 to 10 a. [DX] who breached an implied warranty b. E-] who breached an express warranty which was [-] written [_] oral Prod.L-7. [| The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are [_] listed in Attachment—Prod.-7 [_]| as follows: Form Approved by the 4 Electronic Form © 1995 idicial Councilof Califor Judicial Council of Califomia CAUSE OF ACTION—Products , —| Liability i Hr daygascon wew. lawca.com Rule 982.1(6)