~·
1 2 3 4 5 6 7Franklin C. Aghassi/SBN 159355
BRADY, VORWERCK, RYDER & CASPINO A Law Corporation .
1855 Gateway Boulevard, Suite 650 Concord, California 94520 ·
Telephone: (925) 274-9500 Fax: (925) 274-9501 F aghassi @bvrclaw. com
Attorneys for Cross-Defendant ESTEBAN CARDIEL dba CARDIEL FLOOR COVERING, erroneously sued and served herein as ESTEBAN FLOOR COVERING
11111111111111111111111111111111111111111111111111 *11466850*
A~~~;J;?TY
JUN
2
0
2013
· . ·
~~RKdf
.roflcourn
DepbJJy
8 9
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA
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11 JONATHAN POOL, 12 Plaintiff, 13 v.
14 BERKELEY TOWN HOUSE COOP ERA TTVE CORPORATION, 15 ALMALEE HENDERSON,JUDITH
WEHLAU, CHARLES TUGGLE,
16 KATHERINE MILES, NANCY EPANCHIN, RAYMOND DIRODIS, RITA ZWERDLING, 17 CHERYL L. SAMSON, DOES I THROUGH
1 00, INCLUSIVE, 18
19
Defendants.
ESTEBAN CARDIEL dba CARDIEL FLOOR 20 COVERING,
21 Cross-Complainant,
22 v.
23 BERKELEY TOWN HOUSE COOPERATIVE CORPORATION, 24 ALMALEE HENDERSON,JUDITH
WEHLAU, CHARLES TUGGLE,
25 KATHERINE MILES, NANCY EPANCHIN, RAYMOND DIRODIS, RITA ZWERDLING, 26 CHERYL L. SAMSON, and MOES 1
THROUGH I 00, INCLUSIVE, 27
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Cross-Defendants.
Case No. RG12620088
Complaint Filed: March 6, 2012
ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR INDEMNITY, EQUITABLE CONTRIBUTION AND DECLARATORY RELIEF
BR.OJJY, VOR\\-'ERCK.
RYDER&CASP!NO
1855 ("""""' ~,.ro
ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR INDEMNITY, £QUIT ABLE CONTRIBUTION AND DECLARATORY RELIEF
Suile6so
AND RELATED CROSS-ACTIONS.
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4 GENERAL ALLEGATIONS
5 COMES NOW Cross-Complainant ESTEBAN CARDIEL DBA CARDIEL FLOOR 6 COVERING (hereinafter referred to as "Cross-Complainant") and files this Cross-Complaint for 7 causes of action against cross-defendants and, and each ofthem and alleges as follows:
8 1. Cross-Complainant was at all times alleged in the cross-complaint a licensed contractor 9 qualified to do business in California.
10 2. Cross-Complainant is informed and believes and thereon alleges that cross-defendants 11 BERKELEY TOWN HOUSE COOPERATIVE CORPORATION, ALMA LEE 12 HENDERSON,JUDITH WEHLAU, CHARLES TUGGLE, KATHERINE MILES, NANCY 13 EPANCHIN, RAYMOND DIRODIS, RITA ZWERDLING, CHERYL L. SAMSON, and MOES 1 14 THROUGH 100, INCLUSIVE (hereinafter "Cross-Defendants") are individuals or business entities 15 organized and existing under and by virtue of the laws of the State of California and doing business in 16 the County of Alameda, State of California.
17 3. Cross-Complainant is presently unaware of the true names and capacities and liability 18 of Cross-Defendants named herein as MOES 1 through 100, inclusive, and Cross-Complainant will 19 seek leave of court to amend the Cross-Complaint to allege their true names and capacities after the 20 same have been ascertained.
21 4. Cross-Complainant is informed and believes and, based thereon, alleges that at all 22 times herein mentioned Cross-Defendants MOES l through 100, inclusive and each of them are 23 individuals and/or business entities of unknown form doing business in the County of Alameda and 24 are responsible, directly or vicariously, for the events and happenings herein referred to and caused, or 25 are responsible for, the damages sustained by Plaintiffs herein, if any there may be.
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5. At all times mentioned herein, Cross-Defendants, including MOES 1 through 100, and 27 each ofthem were agents, servants, and employees of each of the other Cross-Defendants and were 28 acting at all times mentioned herein within the course and scope of said agency and employment.BRADY. VOR\I'ERCK. RYDER & C.<\SPINO
--~~~~~~~~=-~~~~~~~~2~~~=-~~~~~~~~~~~~---ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR INDEMNITY,
1855 Galev.1!y llrubard
Suilo650 EQUITABLE CONTRIBUTION AND DECLARATORY RELIEF
6. Plaintiff JONATHAN POOL (hereinafter "PLAINTIFF"), filed a complaint in civil 2 action No. RG 12620088 in the Superior Court ofCalifomia, Countyof Alameda, against Defendants 3 BERKELEY TOWN HOUSE COOPERATIVE CORPORATION, ALMALEE 4 HENDERSON,JUDITH WEHLAU, CHARLES TUGGLE, KATHERINE MILES, NANCY 5 EPANCHIN, RAYMOND DIRODIS, RITA ZWERDLING, CHERYL L. SAMSON, and DOES 1 6 THROUGH 100, INCLUSIVE . (Plaintiffs complaint is incorporated by reference, as though fully 7 set forth herein, the contents of the Complaint, without admitting the allegations therein, the truth of 8 which is expressly denied.)
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7.
Thereafter, Defendant and Cross-Complainant, ESTEBAN CARDIEL DBA CARDIEL 1 0 FLOOR COVERING, filed their first amended cross-complaint naming various entities, including 11 ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERING, erroneously sued and served herein as I 2 ESTEBAN FLOOR COVERING as Cross-Defendants.13 8. Cross-Complainant incorporates herein by reference, as though fully set forth the 14 contents of the Cross-Complaint without admitting the allegations contained therein, the truth of 15 which is expressly denied.
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19 9.
FIRST CAUSE OF ACTION
(Equitable Indemnity)
(As to All Cross-Defendants, including ALL MOES)
Cross-Complainant refers to and incorporates herein by reference each and every 20 allegation contained in paragraphs 1 through 8 of this pleading as though fully set forth herein. 21 10. Cross-Complainant herein denies any negligence or other liability in connection with 22 the matters complained of in the complaint and Cross-Complaint; however, in the event cross-23 complainant herein is held liable to plaintiff or any other cross complainant, such liability will be the 24 result of and caused by the negligence, carelessness, acts, or omissions and/or other fault of Cross-25 Defendants, and each of them, and not the result of or caused by the negligence, carelessness, acts, or 26 omissions of cross-complainant herein.
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II.
In the event that Cross-Complainant is held liable to the Plaintiff, or any other cross-28 complainant, or any other party in the principle action, such liability arises only by reason ofthe active3
BRADY, VORWERCK. RYTlfoR&CASPINO
185 5 Gateway IJoolcv.lld
Suit€650 C<.nXXd. Cant<•nia 94520
ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR INDEMNITY, EQUITABLE CONTRIBUTION AND DECLARATORY RELIEF
and primary negligence or other faults of Defendants, and each of them, and through no fault of cross-2 complainant, whose fault, if any, is secondary and passive.
3 12. By reason of the foregoing, Cross-Complainant is entitled to equitable indemnification 4 and/or equitable contribution from said cross-defendants and each of them.
5 13. By service of this cross-complaint, Cross-Complainant is advising Defendants of this 6 action and requesting Cross-Defendants to provide Cross-Complainant with a defense in the 7 underlying action.
8 14. Cross-complainant has and will incur expenses in the form of attorneys' fees, court 9 costs and other litigation expenses in the defense of this action. By reason of the foregoing, Cross-1 0 Complainant is entitled to recovery from Cross-Defendants and each of them, such reasonable 11 attorneys' fees, court costs, and other litigation expenses necessarily incurred in the principle action. 12 The amount of these expenses is currently unknown but will be established and proven at time of trial. 13 WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, as 14 hereinafter set forth.
15 SECOND CAUSE OF ACTION
16 (Comparative Indemnity)
17 (As to A11 Cross-Defendants, including ALL MOES)
18 15. Cross-Complainant incorporates by reference paragraphs I through 14 above and each · 19 and every allegation contained in Cross-Complainant's first cause of action to the same force and
20 effect as though fully set forth herein.
21 16. In the event that Cross-Complainant is held liable either in whole or in part to Plaintiff, 22 or any other cross-complainant, or any other party in the underlying action, such liability is either fully 23 or in part caused by the acts, negligence, omissions and/or other fault of the cross-defendants, and 24 each of them.
25 17. By reason of such acts, omissions, negligence and/or other fault of the Cross-26 Defendants and each of them, Cross-Complainant is entitled to comparative indemnification from the 27 ·Cross-Defendants, and each of them, for any and all damages which might be adjudged to be due and 28 owing to the Plaintiff or any other party in the underlying action from Cross-Complainant, and costs
BRADY, V(JR\\IERCK. RYDER&CASPIN!l
4
ESTEBAN CARDlEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR INDEMNITY, EQUITABLE CONTRIBUTION AND DECLARATORY RELIEF
1855Gak.'Way Bmb:od
Suilc650
and expenses, incurred by Cross-Complainant, in proportion to the percentage of responsibility or
. . . .
2 · liability which the Cross-Defendants and each of them, bear for the injuries or other damages to the 3 Plaintiff or any other party under the doctrine of comparative fault pursuant to the rulings of the 4 California Supreme Court in American Motor Cycle v. Superior Court and Li v. Yellow Cab.
5 WHEREFORE, Cross-Complainant prays for judgment against the cross-defendants, and each 6 of them, as hereinafter set forth.
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10 18.
THIRD CAUSE OF ACTION (Declaratory Reliet)
(As to All Cross-Defendants, including ALL MOES)
Cross-Complainant hereby incorporates by reference Paragraphs 1 through 17 above as 11 though fully set forth herein.
12 19. A dispute and actual controversy has arisen and now exists among Cross-Complainant 13 and Defendants, as to whether Defendants must defend and indemnify Cross-14 Complainant.
15 20. Cross-Complainant therefore requests a judicial declaration that Defendant/Cross-16 Defendant is obligated under principles of implied, comparative, equitable or express contractual 17 indemnity to defend and indemnify Cross-Complainant from the claims made by plaintiff.
18 WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants, as 19 hereinafter set forth.
20 PRAYER FOR RELIEF
21 Cross-Complainant prays for judgment against Cross-Defendants, and each of them, as 22 follows:
23 1. In the event that it be determined that there is any sum awarded to any party to this 24 action as against Cross-Complainant: For judgment in said amount as against Cross-Defendants, 25 including such other damages and costs which Cross-Complainant has incurred or suffered herein;
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2.
In the event that any party to this action recovers a judgment against Cross-27 Complainant: For indemnification against cross-defendants based upon a comparison offault among 28 Cross-Complainant and Cross-Defendants;BRADY, VORWERC'K.
RYDER&CASPJNO
ISSS Gatewll)' lloubanl
5
ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR INDEMNITY, EQUITABLE CONTRIBUTION AND DECLARATORY RELIEF
Sullc650
3. In the event that any party to this action recovers a judgment against Cross-2 Complainant: For comparative contribution against Dross-Defendants;
3 4. For a declaratory judgment that Defendants are obligated to indemnify Cross-4 Complainant for the fu11 amount of any loss suffered and judgment paid by the Cross-Complainant as
5 a result of the prosecution by the parties of this action in this court, and for the full amount of such 6 costs, attorney's fees, and other expenses as Cross-Complainant may be required to incur in the 7 conduct of the defense of this action; and
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BRADY. VORWERCK, RYDFJ\&CASPI:'O
1855 Gaow.iy lloolcv.ud
Suilr:(JSO
[mccrd. [alif<rraa'H5l0
5. For such other and further relief as the Court deems just and proper.
DATED: June 20, 2013 ER&CASPINO
Attorneys for Defend t/Cross-Complainant ESTEBAN CARDIEL DBA C IEL FLOOR COVERING, erroneously sued a d served herein as ESTEBAN FLOOR COVER G
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ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERlNG'S CROSS-COMPLAINT FOR INDEMNITY, EQUITABLE CONTRIBUTION AND DE CLARA TORY RELIEF
PROOF OF SERVICE
2 STATE OF
C~LIFORNIA,
COUNTY OF. CONTRA COST A ·. .
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At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County dfContra Costa, State of California. My business address is 1855 Gateway Boulevard, 4 Suite 650, Codcord, CA 94520.
On
Jun~Jt),
2013, I served true copies ofthe following document(s) described as ESTEBAN CARDIEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR6 INDEMNITY~ EQUITABLE CONTRIBUTION AND DECLARATORY RELIEF on the
interested parties in this action as follows: 3
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SEE ATTACHED SERVICE LIST 78
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the 9 persons at the ~ddresses listed in the Service List and placed the envelope for collection and mailing, following our brdinary business practices. I am readily familiar with Brady, Vorwerck, Ryder & 10 Caspino's pract.ke for collecting and processing correspondence for mailing. On the same day that the correspondenc~ is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service, in a sealed envelope with postage fully prepaid.
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I declar~ under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
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ExecutJd on June }42013, at Concord, California.
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BMDY, VORWERCK. RYOER&CASPINO 1855 l~ llour.ml
Suile650
('oorod (alil<rnia 94520
I }
ESTEBAN GARDIEL DBA CARDIEL FLOOR COVERING'S CROSS-COMPLAINT FOR INDEMNITY,
I
EQUITABLE CONTRIBUTION AND DECLARATORY RELIEFI
I
SERVICE LIST
Pool v. Berkeley Town House, et at Case No. RG12620088
BVRC File No. 16717
PJrty
Phone/Fax/E-Mail DescriptionI
David H. Schwartz, EsqJ (415) 399-9301 Plaintiff LAw OFFICES OF DAIID H. SCHWARTZ (415) 399-9878
60 1 California Street, # 1800 San Francisco, CA 94 I 08
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Fred M. Feller, Esq. \ (510) 548-7474 Berkeley Town House BURESH, KAPLAN, JANG & FELLER (510) 548-7488 Cooperative Corporation; 2298 Durant A venue I ffeller@bkjf.com Almalee Henderson; Judith Berkeley, CA 94704
I Wehlau; Charles Tuggle;
I Katherine Miles; Nancy
I
Epanchin; Raymond Dirodis; andI
Rita Zwerdling
I
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Charles A. Koss, Esq. [ (925) 837-0585 Garry Secrest; American Pacific GAGEN, MCCOY, MCMAHON & (925) 838-5985 Coatings Inc.
ARMSTRONG 1
. 279 Front Street [
Danville, CA 94526-0218