Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
7
SUPERIOR COURT OF CALIFORNIA
8
COUNTY OF ORANGE – CENTRAL JUSTICE CENTER
9
13 v.
14 STERLING PROPERTY MANAGEMENT, PLAINTIFFS REQUEST FOR
15 INC., a California corporation; PRISON JUDICIAL NOTICE IN SUPPORT OF
MUTINY GENERAL PARTNERSHIP, a MOTION TO CONSOLIDATE CASES
16 business entity of unknown form;
CAPITALVEST, INC., a California
17 corporation; BART C. RAINONE,
Individually and doing business as PRISON Action Filed: January 2, 2018
18 MUTINY; BENITA RAINONE-JONES, Trial Date: November 4, 2019
19 individually, and doing business as PRISON
MUTINY; BRANDON RAINONE, an Date: st
20 individually and doing business as PRISON e: . .
MUTINY;; and DOES 1-25, inclusive at : De a t ent
21 e e at
Defendants.
22
23
24
25
26
27
28
Plaintiffs Request For Judicial Notice
1
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
1
2 Plaintiffs Bernardo Magana and Yesenia Gonzales ("Plaintiffs"), under the provisions
3 of Evidence Code Sections 452(d) and 453, requests that the court take judicial notice of the
4 following documents::
5
1. The Record of Action for this matter Case No. 30-2018-00964428-CU-PO-CJC
6
filed in the Orange County Superior Court and identified . A true and correct copy of this
7
document is attached hereto as Exhibit A.
8
11 Management, Inc., dated April 23, 2019 For 1) Equitable Indemnity and 2) Declaratory Relief
12 Case #30-2019-01042858-CU-PO-CJC.A true and correct copy of which attached as Exhibit B.
13
3. Proof of Electronic Service
14
June 6, 2019 in response to Sterling Property Management, Inc. and each purported
15
cause of action thereof, on file herein , and by virtue of the provisions of California Code of
16
17 Civil Procedure Section 431.30, and the Answer to all of the allegations thereof, This Cross-
25 (2) any court of record of the United States or of any state of the United States." Evidence
26 Codesection 453 provides that "[t]he trial court shall take judicial notice of any matter specified
27 in Section 452 if a party requests it and: (a) [g]ives each adverse party sufficient notice of the
28
request, through the pleadings or otherwise, to enable such adverse party to
2 to take judicial notice of the matter." The operative complaint initially filed by Dongbu
3 Insurance Co., LTD. (US) and Cross Complaint filed by Robert M Dickson on behalf of
4 Sterling Property Management, Inc., and subsequent Answer filed in response by Dongbu
5
Insurance Co., are all records of the Superior Court of California, County of Orange, and
6
therefore judicially noticeable under California Evidence Code § 452(d).
7
The Complaint, Cross Complaint and Answer are all relevant to this action in
8
supporting Plaintiffs s s ss s s
9
10 s ss s s ss s s
15
Dated: July , 2019
16
17
18
19
20 The Law Office of Ryan James Smythe
21
22
23
_____________________________
24
Ryan James Smythe, Esq
25
Attorney for Plaintiffs
26
27
28
Plaintiffs Request For Judicial Notice
3
1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs Request For Judicial Notice
4
EXHIBIT
10
18
COMES NOW Plaintiff, DONGBU INSURANCE CO., LTD. (U.S. BRANCH) (“Plaintiff”)
19
alleges upon information and belief, and subject to additional investigation and discovery as follows:
20
1. Plaintiff is, and at all times mentioned herein, was authorized to do business in the
21
state of California. Plaintiff brings this action as subrogee under a policy of property insurance issued
22
to Prison Mutiny General Partners (“Insured”).
23
2. The Insured operates the Avalon Apartments at 14382 Red Hill Avenue, Tustin,
24
California (“Subject Property”).
25
3. Defendant RICHARD HARRIS dba VIKING 2000 PLUMBING, is, and at all times
26
herein, was authorized to do business under the laws of the State of California performing
27
plumbing related work.
28
2 through 100 inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will
3 amend this complaint to allege their true names and capacities when ascertained.
4 5. Plaintiff is informed and believes, and on that basis alleges, that at all times mentioned
5 herein, each of the Defendants were the supervisors, agents, representatives, alter ego’s and/or
6 employees of the remaining Defendants and were at all times acting within the purpose and scope of
7 such capacities.
8 6. This is the proper court because the case arises from injuries to property, contents and
9 remediation expenses at the Subject Property. The amount in controversy exceeds the minimum
11 7. On or about January 16, 2017, while Defendants were working at the Subject Property
12 a fire happened. Defendants’ negligent actions/conduct actively created and/or increased the risk of
13 fire, caused the fire by using a torch while sweating pipes/igniting nearby combustibles.
16 9. As a direct result of the fire, the Subject Property was substantially damaged.
17 10. As a direct and concurrent legal consequence of said acts and omissions by
18 Defendants, the resulting fire damage legally caused a covered loss under Plaintiff’s policy with the
19 Insured.
20 11. An insurance claim was submitted to Plaintiff for fire and related damages.
21 Consequently, Plaintiff was obligated to pay, and did pay its Insured in excess of the jurisdictional
22 minimum of this court, under the insurance policy applicable, amount to be proven at trial. Plaintiff
23 is therefore subrogated to the insured’s rights to the extent of its payment and pursues Defendants
24 pursuant to its equitable/legal right to do so. Plaintiff is pursuing its insured’s deductible as part of
26 12. Plaintiff has filed this action to recover losses from the Defendants.
27
28 ///
2
COMPLAINT FOR DAMAGES
LEGAL\39213632\1 16097.0001.000/433296.000
1 FIRST CAUSE OF ACTION
5 complaint.
6 14. On or about January 16, 2017, Defendants were working at the Subject Property.
7 Defendants caused the fire by using a torch while sweating pipes igniting nearby combustibles.
8 Defendant’s activities caused/unreasonably spread the fire damage at the Subject Property, contents
10 15. As a concurrent result of the negligence of Defendant, the fire loss damaged the
11 Subject Property caused resultant damage to the property, its contents, business interruption,
13 16. Pursuant to its policy of insurance with Plaintiff’s Insured, Plaintiff is legally and
14 equitably subrogated to the rights of its insured in full amount of its damages it paid, an amount to
16 PRAYER
17 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as
18 follows:
23 4. For such other relief as the Court deems just and share.
Defendants.
Cross-Complainant,
v.
Cross-Defendant.
cause of action thereof, on file herein, and by virtue of the provisions of California Code of Civil
each cause of action thereof, and in Answer to all of the allegations thereof, this Cross-Defendant
damaged as a result of any act or omission on the part of this Answering Cross-Defendant.
AFFIRMATIVE DEFENSES
ACTION THEREOF, this Answering Cross-Defendant alleges that said Cross-Complaint, and each
cause of action thereof, fails to state facts sufficient to constitute a cause of action against this
Answering Cross-Defendant.
ACTION THEREOF, this Answering Cross-Defendant alleges that Cross-Complainant was itself
careless, negligent and responsible in and about the matters alleged in the Cross-Complaint, and
that said carelessness, negligence and responsibility on Cross-Complainant's own part proximately
contributed to or caused the happening of the loss and damages complained of, if any there were,
and that Cross-Complainant's contributory negligence shall reduce any and all damages sustained
by Cross-Complainant.
ACTION THEREOF, this Answering Cross-Defendant alleges that said damages sustained by
Cross-Complainant were either fully or in part the fault of others, whether that fault by the
proximate-result of negligence, strict liability, breach of warranty, breach of contract, or any other
type of fault caused by persons, firms, corporations or entities other than this answering Cross-
Defendant, and that said negligence or fault comparatively reduces the percentage of fault or
ACTION THEREOF, this Answering Cross-Defendant alleges that the Cross-Complaint, and each
cause of action thereof, fails to state facts sufficient to constitute a cause of action in that said
Cross-Complaint, and each cause of action thereof, is barred by the statute of limitations stated in
Part 2, Title 2, Chapter 3, of the California Code of Civil Procedure, beginning with Section 335,
and continuing through Section 349.4 and, more particularly, but not limited to, Sections 337,
ACTION THEREOF, this Answering Cross-Defendant alleges that said Cross-Complaint contains
a defect in the parties whereby certain Cross-Complainants lack capacity to sue for those claims set
forth therein.
ACTION THEREOF, this Answering Cross-Defendant alleges that said Cross-Complaint arises
from a misjoinder of named parties whereby certain Cross-Complainants lack capacity to sue for
those claims set forth therein. Such misjoinder will result in prejudice to Cross-Defendant.
ACTION THEREOF, this Answering Cross-Defendant alleges that certain Cross-Complainants are
not the real parties in interest, and lack standing to bring the claims set forth therein.
ACTION THEREOF, this Answering Cross-Defendant alleges that Cross-Complainant has failed
to comply with California Civil Code Sections 910 et seq. and Cross-Complainant' claims are
barred accordingly.
ACTION THEREOF, this Answering Cross-Defendant alleges that the claims set forth in the
Cross-Complaint are barred by the principals of res judicata and collateral estoppel.
ACTION THEREOF, this Answering Cross-Defendant alleges that an accord and satisfaction has
occurred in that Cross-Defendant paid specific sums or other consideration in settlement and
payment, which was accepted in full and final satisfaction of any and all liability, known or
and knowingly entered into and engaged in the conduct alleged in said Cross-Complaint and
voluntarily and knowingly assumed all of the risks incident to said conduct at the time and place
from bringing this action because it previously elected another remedy and cannot maintain the
present action, including, but not limited to, failing to join previous lawsuits of which Cross-
ACTION THEREOF, this Answering Cross-Defendant alleges that anything received by Cross-
Defendant.
ACTION THEREOF, this Answering Cross-Defendant alleges that any statements made by this
answering Cross-Defendant was merely affirmations of the value and/or statements solely
ACTION THEREOF, this Answering Cross-Defendant alleges that the provisions of the "Fair
Responsibility Act of 1986" (commonly known as Proposition 51, Civil Code Sections 1430, 1431,
1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the extent that
Cross-Complainant' injuries and damages, if any, were proximately caused or contributed to by the
carelessness, negligence or fault of persons or entities other than this answering Cross-Defendant.
ACTION THEREOF, this Answering Cross-Defendant alleges that the Cross-Complaint and each
cause of action thereof is barred by the following provisions of the California Commercial Code
sections 1201(25)(c); 2601, 2513(1), (3); 2510(1); 2605(l)(a), (b); 2602(1), (2)(a), (b); 2607,
persons, firms, corporation or entities other than this answering Cross-Defendant, misused, abused,
failed to use said product or materials for the purpose for which said product or materials were
intended, modified and/or altered the product and/or materials causing the alleged damages and
unreasonably delayed in bringing this action to the prejudice of this Cross-Defendant and this action
either in whole or in part, from all persons or entities whose negligence, responsibility or fault
directed, ordered, approved and ratified Cross-Defendant's conduct and Cross-Complainant is barred
ACTION THEREOF, this Answering Cross-Defendant alleges that prior to the commencement of
this action, this answering Cross-Defendant duly performed, satisfied and discharged all duties and
with Cross-Complainant and that this action is therefore barred by reason of California Civil Code
section 1473.
barred by reason of waiver, estoppel, release, acquiescence, and accord and satisfaction.
ACTION THEREOF, this Answering Cross-Defendant alleges that the Cross-Complaint and each
and every cause of action thereof is barred as to this answering Cross-Defendant by reason of
California Civil Code sections 1473 through 1476 and 1624 and each and every subsection thereof.
ACTION THEREOF, this Answering Cross-Defendant alleges that Cross-Complainant has failed to
meet and perform all necessary covenants, conditions and promises required of Cross-Complainant
to be performed in accordance with the terms and conditions of the alleged contract.
intentionally or negligently, failed to preserve the primary evidence relevant to this litigation, thus
failing to afford this answering Cross-Defendant an opportunity to inspect such evidence, thereby
ACTION THEREOF, this Answering Cross-Defendant alleges that Cross-Complainant has not and
from recovering damages against this answering Cross-Defendant by virtue of the California
Agreement.
from recovering damages against this answering Cross-Defendant by virtue of Section VII Insurance
from recovering damages against this answering Cross-Defendant by virtue of Section XIV
from recovering damages against this answering Cross-Defendant by virtue of Section XXIX
from recovering damages against this answering Cross-Defendant by virtue of Section XXX
3. That judgment be entered for this answering Cross-Defendant; and for such other
and further relief as the Court may deem just and proper.
By:
PETER A. LYNCH
Attorneys for Plaintiff
DONGBU INSURANCE CO., LTD. (U.S.
BRANCH)
PROOF OF SERVICE
At the time of service I was over 18 years of age and not a party to this action. My business address
is 501 West Broadway, Suite 1610, San Diego, California 92101. On the date indicated below, I
served the following document(s):
________________________________________
Nelia Ferreira
SERVICE LIST
LEGAL\40152709\1
26
_____________________________
27
Ryan Smythe
28
1
1
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28