Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 1 of 28

1 2 .3 4 5 6 7 8 9

TERESA TRUCCHI SBN# 13554 SUPPA, TRUCCHI, AND HENEIN, LLP 3055 India Street ~,,~i San Diego, CA 92103 U~ ~u- "/~ Telephone: (619) 297-73,~.0~ Telefax : (619) Attorneys for PLAINTIFFS ~ ~Je ~/~ ..... FRANCISCO JAVIER RIVERA~'~D~O and ALFONSO CALDERON LEON

UNITED IN AND FOR THE

STATES SOUTHERN

DISTRICT DISTRICT

COURT OF CALIFORNIA

,~~c~sco
and ALFONSO CALDERON Plaintiffs,
Vo

~ORE0~O
LEON; COMPLAINT FOR D~GES i. Negligence 2. Breach of contract 3. Breach of Implied Covenant of Good 4. Fraud/Int. Misrep. 5. Negligent Misrep. 6. Negligent Infliction of Emotional Distress 7. Intentional Infliction of Emotional Distress 8. Violation of CLRA (CC §1770 et. seq.)

UNITED STATES OF AMERICA/DEPARTMENT OF THE TREASURY/U.S. CUSTOMS SERVICES and EG&G INC., A corp., status unknown; MCCORMACK AUCTION COMPANY, status unknown

Plaintiffs CALDERON LEON

FRANCISCO

JAVIER

RIVERA

AGREDANO

and

ALFONSO

allege: BASIS OF FEDERAL is brought and COURT under JURISDICTION the The Federal Torts Claims of this on 28 and

i. This Act, court USC 28 USC

action §§1346(b)

2671-2680. of this

jurisdiction

over the subject as this

matter

action the

is predicated United States

§1331

is an action States

against

agencies employees

of the United in the course

for torts

committed

by governmental

and scope

of their

employment.

Def App. 20

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

Page 2 of 28

2. The jurisdiction 28 USC §1332 as this

of this

court

is further

predicated States

on and in

is an action

against

the United

its agencies

by citizens exceeds

of a foreign

state wherein

the amount

3

controversy

$75,000~00. in the Southern as the all subject District matter are of California of this action

3. Venue

is proper §1391

5

pursuant arose

to 28 USC

in this

district,

defendants and there

subject

to personal in which

jurisdiction the action

in this district, may otherwise

is no district

be brought. ALLEGATIONS RIVERA AGREDANO was, the (hereinafter a citizen United of

INTRODUCTORY 4. Plaintiff RIVERA) the is, FRANCISCO times

JAVIER

and at all of Mexico business.

mentioned

herein to enter

Country

and authorized

States

to conduct

5. Plaintiff is, and at all

ALFONSO

CALDERON

LEON

(hereinafter was,

CALDERON) of the to

times

mentioned

herein to

a citizen

Country conduct 6.

of Mexico business. Defendant

and authorized

enter

the United

States

UNITED

STATES

OF

AMERICA/DEPARTMENT CUSTOMS) entity is,

OF THE and

TREASURY/U.S. all times under

CUSTOM

SERVICES herein the

(hereinafter

mentioned

was,

a governmental to sue

organized CUSTOMS acts of

Federal sued

law with

capacity

and be sued, of the taken

is hereby its

on its own right agents,

and on the basis which were

officials,

and employees, customs, INC.,

pursuant

to CUSTOMS' 7. presently

regulations, Defendant

and policies. a corporation in the State current status

EG&G,

unknown,

conducts

business

of California,

....

Def. App.21

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 3 of 28

County

of San Diego general

and contracts public

with

CUSTOMS have

to assist been

in the by

1 2 3 4 5 6 7 8 9

sale

to the

vehicles

which

seized

CUSTOMS. 8. current conducts and Defendant status business MCCORMACK AUCTION COMPANY, a corporation MCCORMACK), of San Diego general

presently

unknown

(hereinafter Count~

in the State CUSTOMS have

of California,

contracts vehicles

with

to assist been seized

in the sale by CUSTOMS.

to the

public

which

STATEMENT 9. This 1987 Nissan case involves the

O~ FACTS seizure and subsequent sale of a

Pathfinder

VIN:JNSHDI6Y7HW029972

(hereinafter

SUHJECT

11 12

VEHICLE). I0. imported Jose Armando Jimenez VEHICLE January Coronel into purchased and thereafter 12, 2000. was arrested 21 USC952; and

the SUBJECT

Mexico

on December Mr. Jimenez 18USC545;

Ii. On or about and the SUBJECT 19CFRI62.45(A) States border.) Coronel On of that

25, 2001, under

VEHICLE

was seized

(for transportation The SUBJECT by CUSTOMS. January California he "knowingly 30, 2001, VEHICLE

of marijuana was seized

across from

the United

Jose Armando

]8 ~9 20 2] 22

Jimenez 12.

Mr. and

Jimenez Safety

pled Code

guilty §11359

to and for

violation admitted purposes

Health

possessed

59 pounds

of marijuana

of sale." 20, 2001, sentenced in fines Mr. Jimenez to time and was granted served (39 probation days)

13. On February

24 25 26 27

for

three

(3)

years, $400.00

ordered

to pay

restitution.

In exchange,

the balance

of the charges

against

him were dismissed.

Def. App.22

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

Page 4 of 28

by failing

to conduct

a reasonable authorizing

and

thorough sale of

search the

of the same to

1 2

SUBJECT RIVERA,

VEHICLE a third This

before party

the

purchaser. caused they damage were to RIVERA and CALDERON on

3

29. January

breach when

24, 2002

arrested

and imprisoned

by the left in

5 6 7

Mexican

authorities VEHICLE

after

the discovery

of the marijuana

the SUBJECT 30.

by CUSTOMS. of this breach, RIVERA and CALDERON have

As a result damages

8 9 10 11 12

sustained

including, physical emotional general

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering, earning damages, capability, and other

lost wages, mental damages

anguish,

and special

in an amount

established

at trial. SECOND CAUSE OF ACTION

BREACH AGAINST 31. Plaintiffs CUSTOMS reallege fully

OF CONTRACT BY RIVERA paragraphs AND CALDERON one (i) through twenty-

~7 ]8 ]9 20

one (21) 32. contract

as though On or with

set forth 5,

herein. 2001, RIVERA entered into a

about

September

CUSTOMS. was ~emorialized TITLE by written documents such

33. The contract as a CERTIFICATE

TO OBTAIN

TO A VEHICLE agent provided CUSTOMS. VEHICLE

executed

by RIVERA

22 23 2~ 25 26

and Guiseppe 34. purchase The the

A. Vaccano terms SUBJECT was that

as authorized contract from

for CUSTOMS. that RIVERA would of

of the

VEHICLE

An implied

term

the contract

the SUBJECT

would

be reasonably

28

Def. App. 23

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

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clear

of the contraband in January CUSTOMS to RIVERA

that

caused

its seizure

from

Mr. Jimenez

1 2

by CUSTOMS 35.

of 2001. the contract of by selling marijuana the SUBJECT in a

breached with 17

3
VEHICLE kilograms further conduct before stored

4 5

hidden the

compartment. by

CUSTOMS to

breached

the implied and

term of thorough of the

contract

failing

a reasonable authorizing

6 7 8 9 10 11 12

search

of the SUBJECT party

VEHICLE

the sale

same to a third 36. foreseeable ensure that

purchaser. of the transaction, the it was reasonably duty clear to of said

At the that the

time

a failure SUBJECT cause

to fulfill VEHICLE was

contractual

reasonably who

contraband vehicle was

would

damage at the law

to any time

person that the

occupied

in the

event by any

and

hidden

marijuana As such of the

discovered was

other

enforcement party

agency. benef$ciary

CALDERON contract.

a foreseeable

third

16 17 18 19 20 21 22 23 24 25 26 27 28

37. January Mexican

This 24,

breach when

caused they

damage

to RIVERA and

and

CALDERON

on the in

2002

were

arrested

imprisonedby left

authorities VEHICLE

after

the discovery

of the marijuana

the SUBJECT 38. sustained

by CUSTOMS. of this breach, RIVERA and CALDERON have

As a result damages

including, physical emotional general

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering, earning damages, capability, and other

lost wages, mental damages

anguish,

and special

in an amount

established

at trial.

....

Def. App,24

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

Page 6 of 28

THIRD

CAUSE OF BY

OF

ACTION FAITH AND one AND FAIR DEALING

!
BREACH OF IMPLIED AGAINST COVENANT CUSTOMS reallege fully set GOOD

2
RIVERA CALDERON (i) through twenty-

3
39. Plaintiffs as on with The though or paragraphs forth 5,

4
one {21) 40. contract 41. as and herein. 2001, RIVERA entered into a

5
about September CUSTOMS. contract TO was OBTAIN as the ~emorialized TITLE TO by written docttments by such RIVERA

a CERTIFICATE Guiseppe 42. The the A.

A VEHICLE agent provided CUSTOMS. VEHICLE its

executed for CUSTOMS.

Vaccano of

authorized contract from

terms SUBJECT was

that An would

RIVERA

would term of

purchase the clear by was

VEHICLE the

implied be

contract of the in that

that

SUBJECT caused An

reasonably Mr. Jimenez contract of the

contraband January CUSTOMS to

that of

seizure term

from of

CUSTOMS also

2001.

implied a did

the

would

conduct that it and the

thorough not expose

search an for

SUBJECT purchaser left in 43. VEHICLE hidden good and sale

VEHICLE to the

ensure

innocent contraband

criminal SUBJECT

prosecution VEHICLE at the 17

imprisonment of by of sale. selling

time

CUSTOMS to RIVERA

breache~ with

contract

the

SUBJECT in a of

kilograms breached by failing

marijuana implied conduct before

stored covenant

compartment. faith and fair

CUSTOMS dealing of the

the to

a reasonable authorizing the

thorough of 44. the

search same At to the

SUBJECT party the to

VEHICLE purchaser. transaction,

a third time of

it

was

reasonably duty to

foreseeable

that

a failure

fulfill

the

contractual

Def App. 25

Case 1:05-cv-00608-ECH

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ensure

that

the

SUBJECT cause

VEHICLE to any time

was

reasonably who

clear

of said

contraband

would

damage

person that the

occupied

2 3 4 5 6 7 8 9 I0 II 12

vehicle was

in the

event

and at the law

hidden

marijuana As such of the

discovered ~as

by any other a foreseeable

enforcement party

agency. beneficiary

CALDERON contract. 45. January Mexican

third

This

breach when

caused they

damage were

to RIVERA and

and

CALDERON

on

24, 2002

arrested

imprisoned

by the left in

authorities VEHICLE

after

the discovery

of the marijuana

the SUBJECT 46. sustained

by CUSTOMS. of this breach, RIVERA and CALDERON have

As a result damages

including, physical emotional general

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering, earning capability, and other

lost wages, mental damages

anguish,

{619) 2~7-7330

damages,

and special

in an amount

15 16 I7

established

at trial. FOURTH CAUSE OF ACTION MISREPRESENTATION BY RIVERA AND CALDERON twenty-

FRAUD/INTENTIONAL AGAINST EG&G, INC. and

MCCORMACK

47. Plaintiffs

reallege fully

paragraphs

one (i) through

20 2! 22 23

one (21)

as though INC.

set forth

herein. made or ratified the following

48. EG&G,

and MCCORMACK of fact:

misrepresentations a. contraband the

SUBJECT

VEHICLE

was

reasonably and,

clear

of

at the time b. CUSTOMS before

of the sale had conducted

to RIVERA;

25 26 27 28
SUBJECT

a thorough to RIVERA.

search

of

the

VEHICLE

selling

the same

Def. App.26

Case 1:05-cv-00608-ECH

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Page 8 of 28

49.

These a. the

statements SUBJECT

were VEHICLE

untrue. was

The not

truth

was: clear of

reasonably and,

2 3

contraband

at the time b. CUSTOMS

of the sale

to RIVERA;

had not selling

conducted

a thorough

search

of the

SUBJECT

VEHICLE The in the

before actions

the same to RIVERA. CUSTOMS' and sale officials and agents VEHICLE knowledge and/or

5

50. involved

of the search

seizure,

of the SUBJECT through their

were ratified (actual and/or

by EG&G, INCo and MCCORMACK constructive)

of the same and ratification

acquiescence 51. not have 52. sustained pain lost and Had

thereto. the RIVERA been aware of the true facts, he would

purchased As

the SUBJECT of this

VEHICLE breach,

at the auction. RIVERA and CALDERON have

a result

damages

including, wrongful of future

but not limited imprisonment, earning

to, loss of liberty, physical injuries, emotional general and

suffering, loss

wages,

capability, and other

distress, special

mental damages

anguish,

property

damages,

in an amount FIFTH NEGLIGENT

to be established CAUSE OF ACTION

at trial.

MISREPRESENTATION MCCORMACK BY RIVERA one AND CALDERON twenty-

AGAINST

EG&G,

INC.

and

53. Plaintiffs one (21) 54. as though EG&G, INC.

reallege fully and

paragraphs

(i) through

set forth MCCORMACK

herein. negligently made or ratified

the following a. contraband

misrepresentations the SUBJECT

of fact: was reasonably and, clear of

VEHICLE

at the time of the sale to RIVERA;

Def App. 27

Case 1:05-cv-00608-ECH

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Page 9 of 28

b.

CUSTOMS before

had

conducted

a thorough to RIVERA. The not truth

search

of

the

1 2

SUBJECT 55.

VEHICLE These a. the

selling were

the same untrue. was

statements SUBJECT

was: clear of

3 4
contraband

VEHICLE

reasonably and,

at the time b. CUSTOMS

of the sale

to RIVERA;

had not conducted selling of the same

a thorough to RIVERA.

search

of the

SUBJECT 56.

VEHICLE The

before

actions

the

CUSTOMS ~ officials and sale

and

agents VEHICLE

8 9 10
11

involved

in the seizure, by EG&G,

search

of the SUBJECT through their

were ratified (actual and/or

INC. and MCCORMACK

knowledge and/or

constructive)

of the same and ratification

acquiescence 57.

thereto. RIVERA been aware of the true facts, he would

12

Had the

not have purchased 58. sustained As

the SUBJECT of this

VEHICLE breach,

at the auction. RIVERA and CALDERON have

a result

damages

including, wrongful of future

but not limited imprisonment, earning

to, loss of liberty, physical injuries, emotional and

16

pain lost

and

suffering, loss

wages,

capability,

18 19 2O 21
22 23

distress, special

mental damages

anguish,

property

damages,

and other general at trial.

in an amount SIXTH

to be established CAUSE OF ACTION of Emotional

(Neqliqent

Infliction (Against

Distress)

All Defendants) paragraphs one (i) through twenty-

59. Plaintiffs one (21) as though

reallege fully

24 25

set forth

herein. were aware of the fact that one of them,

60. Defendants the plaintiff relied

and each of them upon the

defendants,

and each

2? 28

Def. App.28

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

Page 10 of 28

to

act

with

good and

faith

and

act

in to

a manner criminal

that

would

not

1
interfere expose plaintiffs damages. and each of them were aware of the prosecution, imprisonment, and other Defendants reliance

3
61.

4
plaintiffs' as outlined disregard above. for the same, the defendants throughout

5 6 7 8 9 10 11 12

62. and each

With

negligent

one of them engaged

in the conduct

set forth

this complaint. 63. The offensive, acts alleged throughout this complaint were to

upsetting,

embarrassing,

degrading, acts

and humiliating

the plaintiffs° to suffer

The effects mental

of these and

caused

the plaintiffs all to

severe damages

emotional

distress, at trial. and

plaintiffs' 64. sustained

in a sum to be proven of this breach,

As a result damages

RIVERA

CALDERON

have

including, physical emotional

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

15 16 17 18 19 20 2!

pain and suffering, earning damages, capability,

lost wages, mental damages

anguish,

and other general at trial.

and special

in an amount

established

SEVENTH (Intentional

CAUSE

OF ACTION of Emotional Distress)

Infliction (Against

All Defendants) paragraphs one (I) through twenty-

65.

Plaintiffs as though Defendants relied good

reallege fully

23 24 25 ~6

one (21) 66.

set forth

herein.

and each of them were aware of the fact that upon the defendants, and act in and each one of them, would not

the plaintiff to act with

faith

a manner

that

28

Def. App. 29

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

Page 11 of 28

interfere

and

expose

plaintiffs damages. and each

to

criminal

prosecution,

imprisonment, 67. plaintiffs' 68.

and other Defendants reliance

of

them

were

aware

of

the

as outlined disregard

above. for the same, the defendants throughout

With

reckless

and each one of them this complaint. 69. offensive, the to The acts

engaged

in the conduct

set forth

alleged

throughout

this

complaint

were to

upsetting, The

embarrassing, effects mental

degrading, acts

and humiliating

plaintiffs. suffer

of these and

caused

the plaintiffs all to

severe damages

emotional

distress, at trial. and

plaintiffs' 70. sustained

in a sum to be proven of this breach,

As a result damages

RIVERA

CALDERON

have

including, physical emotional

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering, earning damages, capability,

lost wages, mental damages

anguish,

and other general at trial. EIGHTH (Violation

and special

in an amount

established

CAUSE

OF ACTION Leqal Remedies Act)

of Consumer's (Against

All Defendants) paragraphs one (I) through twenty-

71. Plaintiffs one (21) as though 72. Civil

reallege fully

set forth one

herein. of them, violated that the California transaction which by it

Defendants, §1770(a)

and each (14) by

Code

representing remedies which

conferred did not

or involved, have or

rights, or

or obligations prohibited

involve,

were

law,

De£ App. 30

Case 1:05-cv-00608-ECH

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Page 12 of 28

specifically, large amount 73. kilograms

that

the SUBJECT

VEHICLE

would

not also

contain

a

of marijuana By selling

in a hidden the SUBJECT

compartment. VEHICLE to RIVERA and State each with one 17 of

of marijuana in

in the same, of the

defendants and

4
them, acted violation Federal laws that

5
prohibits the sale of marijuana the sale in the State of the of California. VEHICLE and the to

6
74. As such, SUBJECT

7 8 9 10 11 12

marijuana criminal 75. pursuant §1780(d). 76. TERESA

was in violation prosecution Plaintiffs, to CC §1780(a)

of the law

and exposed in Mexico. of them, will

plaintiffs

and imprisonment and each and one

seek

damage CC

(i)

attorney

fees

pursuant

As required hereby

by

California

civil

Code This

§1780(c), county is the in

TRUCCHI, venue

declare

as follows:

14

proper this

for this and all

action

because

the transaction conduct that best

occurred

county

of the defendants penalty

business

in this of

16 17 I8 19 2O 21 22 2~ 24 25 26 27 28

county. this

I declare are

under true

of perjury to the

the contents

paragraph and

and correct This

of my personal ~n SaWn Diego

knowledge county.

belief.

declaration ~~

wa~gned ~~ each

77. Plaintiffs with the notice November damages period

provided

I~
will

-~- TRUC~61 SA and

defendants,

one

of them, mail on to seek

required

by Civil Code §1782 amend after

by certified complaint

12, 2002. under Civil

Plaintiffs

this

Code §1780(a)(i)

the thirty

day notice

has expired.

....

Def. App. 31

Case 1:05-cv-00608-ECH

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JURY 78. Plaintiffs hereby

DEMAND a jury.

demand PRAYER

WHEREFORE

plaintiff and

prays special

judgment damages

as follows: according to proof; to proof;

i. For general 2. 3. Statutory As against Interest

attorneys defendants

fees

and costs

according

MCCORMACK rate

and EG&G,

INC.: (10%) per

at the legal

of ten percent according

annum/prejudgment 4. 5. For costs For such

interest

to proof;

of suit herein other

incurred; relief as the court may deem

and further

DATED:

SA ~R~C~OR!~EY FOR PLAINTIFFS FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON

......

De£

App.

32

.....

Case 1:05-cv-00608-ECH

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1 2

SUPPA, TRUCCHI, AND HENEIN, LLP 3055 India Street San Diego, CA 92103 Telephone. (619) 297-7~Q~.d,4%~/~6~c~u~O~ Telefax : (619) 297-9~-'" Attorneys for PLAINTIFF~~ AGR~D~NO and

_

FRANCISCO JAVIER RIVER~" ALFONSO CALDERON LEON

6 ?
UNITED STATES DISTRICT DISTRICT COURT OF CALIFORNIA IN AND FOR THE SOUTHERN

;F~CISCO ~AV~ER and ALFONSO CALDERON LEON;
10 11 12
Vo

I~ON

Plaintiffs,

. . COMPLAINT FOR DAMAGES

8 [I~LSJ

UNITED STATES OF AMERICA/DEPARTMENT OF THE TREASURY/U.S. CUSTOMS SERVICES and EG&G INC., A corp., status unknown; MCCORMACK AUCTION COMPANY, status unknown

16 17 18 19 2O
2l
Act, i. This 28 USC Plaintiffs CALDERON LEON FRANCISCO JAVIER

1. Negligence 2. Breach of contract 3. Breach of Implied Covenant of Good 4. Fraud/Int. Misrep. 5. Negligent Misrep. 6. Negligent Infliction of Emotional Distress 7° Intentional Infliction of Emotional Distress 8. Violation of CLRA (CC §1770 et. seq.)

RIVERA

AGREDANO

and

ALFONSO

allege: BASIS action §§1346(b) OF FEDERAL is brought and COURT under JURISDICTION the The Federal Torts Claims of this on 28 and

2671-2680.

jurisdiction

23

court USC

over the subject as this is

matter

of this action against the

is predicated United States

§1331

an action States

25 26 27

agencies employees

of the United in the course

for torts committed of their

by governmental

and scope

employment.

Def. App.33

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

Page 15 of 28

2. The 28 USC §1332 its agencies controversy

jurisdiction as this

of this

court

is further

predicated States

on and in

is an action

against state

the United wherein

by citizens exceeds

of a foreign

the amount

$75,000~00. in the Southern as the all subject District matter of California of this action

3. Venue pursuant arose

is proper §1391

to 28 USC

in this

district,

defendants and there

are subject

to personal in which

jurisdiction the action

in this district, may otherwise

is no district

be brought. ALLEGATIONS RIVERA AGREDANO was, the (hereinafter a citizen United of

INTRODUCTORY 4. Plaintiff RIVERA) FRANCISCO times

JAVIER

is, and at all of Mexico business.

mentioned

herein to enter

the Country to conduct

and authorized

States

5. Plaintiff is, and at all

ALFONSO

CALDERON

LEON

(hereinafter was, the

CALDERON) of the to

times

mentioned

herein

a citizen United

Country conduct

of Mexico business.

and authorized

to enter

States

6. Defendant TREASURY/UoS. all times under

UNITED

STATES

OF

AMERICA/DEPARTMENT CUSTOMS) entity is,

OF THE and

CUSTOM

SERVICES herein was,

(hereinafter

mentioned

a governmental

organized CUSTOMS acts of pursuant

Federal sued

law with

the capacity

to sue and be sued. of the taken

is hereby

on its own right agents,

and on the basis which were

its officials, to CUSTOMS' 7. presently

and employees, customs, INC.,

regulations, Defendant

and policies. a corporation in the State current status

EG&G,

unknown,

conducts

business

of California,

....

Def. App.34

-

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Page 16 of 28

County

of to

San

Diego general

and

contracts

with

CUSTOMS which have

to

assist been

in

the by

1 2 3 4 5 6 7 8 9 10 11 12

sale

the

public

vehicles

seized

CUSTOMS. 8. current conducts and Defendant status business with MCCORMACK AUCTION COMPANY, a corporation MCCORMACK), of San Diego

presently in the

unknown State to been of

(hereinafter County sale to

California, in the by

contracts vehicles

CUSTOMS have

assist seized OF

the

general

public

which

CUSTOMS.

S~ATEME~T 9. 1987 This case involves the

FACTS and subsequent (hereinafter sale of a

seizure

Nissan

Pathfinder

VIN:JNSHDI6Y7HW029972

SUBJECT

VEHICLE). I0. imported Ii. and the Jose the On Armando SUBJECT or about Jimenez VEHICLE January was Coronel into 25, seized Mexico 2001, under of purchased on Mr. and thereafter 12, was 21 2000. arrested and

December Jimenez

SUBJECT

VEHICLE (for The by

18USC545;

USC952; the

16 17 18 19 20 21 22

19CFR162.45(A) State~ Jimenez 12. violation admitted purposes 13. of that of On border.) Coronel On

transportation SUBJECT CUSTOMS. 30, 2001, VEHICLE

marijuana seized

across from

United Armando

was

Jose

January California

Mr. and

Jimenez Safety

pled Code of

guilty §11359

to and for

Health

he

"knowingly

possessed

59

pounds

marijuana

sale." February (3) pay of years, $400.00 the 20, 2001, Mr. Jimenez to and time was granted (39 In probation days) exchange,

24 25 26 27 28

for

three to

sentenced in fines against

served

ordered the

restitution. were

balance

charges

him

dismissed.

Def. App. 35

_

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 17 of 28

14.

Thereafter public

the SUBJECT through

VEHICLE

was made

available Sale.

for

1 2 3 4 5 6 7 8 9 10 11 12

sale

to the

a Federal

Forfeiture

CUSTOMS

contracted

the sale

to EG&G INC.

The auction

company

at the sale

was MCCORMACK. 15. VEHICLE following 16. from On September the 5, 2001, of RIVERA acquired in the SUBJECT Auction Sale. in to by

Department Service

Treasury

a Public Forfeiture

a Customs

Department 24, 2002

Federal RIVERA

On Thursday, VEHICLE

January

was traveling Baja California was accompanied

the SUBJECT the City

from the City of Ensenada, Baja California. were as RIVERA stopped E1 Sauzal,

of Tijuana, RIVERA the and

CALDERON. Point at

CALDERON known

at a Highway Ensenada,

Check Baja

location

California 17. authorities marijuana

by Mexican

authorities. VEHICLE twenty kilograms walls and was two searched. (22) packages The The Mexican

The SUBJECT discovered (weighing the 17

containing were (close

total.) the body

packages

16 17 18 19 2O 21 22 23 24 25 26 27 28

between

upholstery well.) and

of the vehicle

to the wheel 18. Federal 19.

RIVERA Prison

CALDERON from

were

arrested January

and

have

been

in

in Mexico

and after

24, 2002. the Office of

Jose Blanco General

Loya,

an expert

witness

from

the Attorney 25, 2002.

(in Mexico), 13, 2002, Court

tested

the marijuana testified

on January before the

On February District

Mr. Blanco that

llth Federal by the

of Ensenada on January

the marijuana 2002 lost, change was and

found

Mexican

authorities and

24, been ....

"highly due to

dehydrated, color lost,

consistency

texture

had

it had a 'brownie'

color trend

in texture

Def. App.36

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 18 of 28

and

consistency to is

is

also

due

to or

they

(sic)

have

been

stored change

1 2

exposed in color 20.

certain due On to

physical an old Ii, or

atmospherical marijuana

conditions, .... " Rafael as

stored

March

2002,

expert

chemists qualified "(the ... it

Garcia in

4 5

Guterrez the

and

Miguel Court,

Carrillo testified it that has has

Mendivil, as

experts

Federal

follows: color for

marijuana) is observable and not ....

highly that only it is

dehydrated, marijuana

a brownie been

stored odor

a long

time

that, is

at opening that and

a 'rotten' such illegal

comes

from

the packages to

assumed

drug

was for

exposed

adverse

atmospherical 21. Act

physical in by

conditions a response to

a long

time." of Information were Mexican had not

Thereafter, filed CUSTOMS

a Freedom

request by

plaintiffs' that

counsel, the in or area

photographs wherein of INC. CUSTOMS October on or i0, the 2002

produced officials been

showing the

discovered by

marijuana MCCO~SACK, was

January EG&G, to about

searched 22.

CUSTOMS,

A government 2002. The claim

claim was

submitted on OF or

about 2002.

July

4,

denied CAUSE

FIRST

ACTION

19
20 ~I 22 ~311 one AGAINST 22. (21) 23. CUSTOMS/EG&G, Plaintiffs as On though or

NEGLIGENCE INC./MCCORMACK paragraphs forth 5, in BY RIVERA (i) AND CALDERON twenty-

reallege fully set

one

through

herein. 2001, RIVERA conducted and in thereon sale by purchased by the

about from

September CUSTOMS and also

2411 SUBJECT

VEHICLE are EG&G,

a sale

MCCORMACK. allege storing that the

25 26 27 28

Plaintiffs defendant

informed Inc. was

believe involved

the

Def. App.37

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 19 of 28

vehicle,

assisting

in the sale of the SUBJECT of CUSTOMS. and each of them upon

VEHICLE,

and taking

1
other acts on behalf 24. Defendants

2
were aware of the fact that one of them, and and to of

3 4 5 6 7

the

plaintiff

relied and

the defendants, that

and each would not

to act expose other ensure

reasonably plaintiffs damages. that

in a manner

interfere

to criminal

prosecution,

imprisonment, had a duty clear

Defendants, the SUBJECT releasing

and each VEHICLE the

one of them. was

reasonably for sale to

contraband

before

same

plaintiff

9 10 11 12

RIVERA. 25. plaintiffs' Defendants reliance and each of them were aware of the

as outlined disregard

above. for the same, the defendants throughout

26. with

negligent

and each one of them |4~ this complaint. ,5,, 27. At the time

engaged

in the conduct

set forth

of

the

transaction,

it

was

reasonably that the cause and

1611 foreseeable 17 SUBJECT |8 damage

that a failure was

to fulfill clear said

the duty to ensure of contraband vehicle

VEHICLE to any

reasonably

would

person

who occupied

in the

event

|9 at the time that

the hidden agency.

marijuana

was discovered

by any other that damage above. breached with the 17 The duties a third if the

20 21 22 23 24 25 26 27 28

law enforcement party passenger defendants 28. contract kilograms defendants,

As such,

it was foreseeable would suffer

in the SUBJECT to perform

VEHICLE

failed The by

the duties and each one

as outlined of them, to

defendants, the

selling

SUBJECT

VEHICLE

RIVERA

of marijuana and each

stored

in a hidden further

compartment. breached their

one of them,

Def. App. 38

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 20 of 28

by failing

to conduct before party breach when

a reasonable authorizing

and the

thorough sale of

search the

of the same to

1 2

SUBJECT RIVERA,

VEHICLE a third This 24,

purchaser. caused they damage were to RIVERA and and CALDERON on

3

29. January

2002

arrested

imprisoned

by the left in

5 6 7 8 9 10 11 12

Mexican

authorities VEHICLE

after

the discovery

of the marijuana

the SUBJECT 30. sustained

by CUSTOMS. of this breach, RIVERA and CALDERON have

As a result damages

including, physical emotional

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering, earning damages, capability,

lost wages, mental damages

anguish,

and other general at trial. SECOND

and special

in an amount

established

CAUSE

OF ACTION

~RE~CH AGAINST 31. Plaintiffs one (21) as though 32. contract On CUSTOMS reallege fully

OF CONTRA~ BY RIVERA paragraphs AND CALDERON twenty-

one (i) through

set forth

herein. RIVERA entered into a

or about

September

5, 2001,

with CUSTOMS. was memorialized TITLE by written documents such

33. The contract as a CERTIFICATE and Guiseppe 34. purchase the The the

TO OBTAIN

TO A VEHICLE agent provided CUSTOMS. VEHICLE

executed

by RIVERA

A. Vaccano terms

as authorized contract from

for CUSTOMS. that RIVERA would of

of the

SUBJECT was that

VEHICLE

An implied

term

contract

the SUBJECT

would

be reasonably

Def. App.39

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 21 of 28

clear

of the contraband in January CUSTOMS to RIVERA compartment. by

that caused of 2001. the

its seizure

from

Mr. Jimenez

1 2 3 4 5 6 7

by CUSTOMS 35. VEHICLE hidden the

breached with 17

contract of

by selling marijuana

the

SUBJECT in a of

kilograms further

stored

CUSTOMS

breached

the implied and

term

contract

failing

to conduct before

a reasonable authorizing

thorough

search same

of the SUBJECT party

VEHICLE

the sale of the

to a third 36.

purchaser. of the transaction, the it was reasonably duty clear to of said

At the that the

time

9 10 11 12

foreseeable ensure that

a failure SUBJECT cause

to fulfill VEHICLE was

contractual

reasonably who

contraband vehicle

would

damage

to any time

person that the

occupied

in the event by any

and at the other

hidden

marijuana As such of the

was discovered CALDERON contract. was

law enforcement third party

agency. benef$ciary

a foreseeable

~6

37. January

This 24, 2002

breach when

caused they

damage

to RIVERA

and

CALDERON

on the

were

arrested

and imprisoned~by

]8 ]9 2O

Mexican

authorities VEHICLE

after

the discovery

of the marijuana

left in

the SUBJECT 38. sustained

by CUSTOMS. of this breach, RIVERA and CALDERON have

As a result damages

including, physical emotional general

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering,

lost wages, mental damages

23

earning damages,

capability, and other

anguish,

and special

in an amount

25 26 2? 28

established

at trial.

Def. App. 40 ._

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 22 of 28

THIRD BREACH OF IMPLIED AGAINST 39. Plaintiffs one (21) as though 40. contract

CAUSE

OF ACTION AND FAIR DEALING

COVENANT CUSTOMS reallege

OF GOOD FAITH BY RIVERA paragraphs

AND CALDERON one (1) through twenty-

fully

set forth

herein. RIVERA entered into a

On or about with CUSTOMS.

September

5, 2001,

7 8 9

41. The contract as a CERTIFICATE and Guiseppe 42. The the

was ~emorialized TITLE

by written

documents

such

TO OBTAIN

TO A VEHICLE agent provided CUSTOMS. VEHICLE

executed

by RIVERA

A. Vaccano terms SUBJECT was that

as authorized contract from

for CUSTOMS. that An RIVERA would of

of the

11 12'

purchase the

VEHICLE the

implied

term

contraot

SUBJECT

would

be reasonably

clear

of the contraband in January that VEHICLE CUSTOMS

that caused of 2001. would

its seizure term

from Mr. Jimenez of the search contract of the

by CUSTOMS was also

An implied

conduct

a thorough not

16 17 18

SUBJECT purchaser left

~o ensure

that

it did

expose

an innocent for contraband

to criminal

prosecution VEHICLE

and imprisonment of sale. by selling marijuana the

in the SUBJECT 43. CUSTOMS to RIVERA compartment. and fair search

at the time the contract of

breache~ with 17

the

SUBJECT in a of

20 21 22 23 25 26 27 28

VEHICLE hidden good

kilograms

stored

CUSTOMS dealing

breached

implied

covenant

faith

by failing

to conduct before

a reasonable the

and thorough

of the SUBJECT party

VEHICLE

authorizing

sale of the same 44. foreseeable

to a third time

purchaser. it was reasonably duty to

At the that

of the

transaction, the

a failure

to fulfill

contractual

Def. App.41

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 23 of 28

ensure

that

the

SUBJECT cause

VEHICLE to any time

was

reasonably who

clear

of said

1 2 3 4 5 6 7 8 9 10 11 12

contraband vehicle

would

damage at the law

person that the

occupied

in the

event by any

and

hidden

marijuana As such of the

was discovered CALDERON contract. 45. January Mexican This 24, was

other

enforcement party

agency. beneficiary

a foreseeable

third

breach when

caused they

damage were

to RIVERA

and

CALDERON

on

2002

arrested

and imprisoned

by the left in

authorities VEHICLE

after

the discovery

of the marijuana

the SUBJECT 46. sustained

by CUSTOMS. of this breach, RIVERA and CALDERON have

As a result damages

including, physical emotional

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering, earning capability,

lost wages, mental damages

anguish,

(619) 297-7330

damages,

and other general at trial. FOURTH

and special

in an amount

'15; established ]6

CAUSE

OF ACTION MISREPRESENTATION BY RIVERA one (i) AND CALDERON through twenty-

FRAUD/INTENTIONAL

]8 ]9 20

AGAINST

EG&G,

INC.

and MCCORMACK

47. Plaintiffs one (21) as though

reallege fully

paragraphs

set forth

herein. made or ratified the following

48. EG&G,

INC. and MCCORMACK of fact: SUBJECT VEHICLE

misrepresentations

23
contraband

a.

the

was

reasonably and,

clear

of

at the time b. CUSTOMS before

of the sale had conducted

to RIVERA;

a thorough to RIVERA.

search

of

the

26

SUBJECT

VEHICLE

selling

the same

Def App. 42

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 24 of 28

49.

These a. the

statements SUBJECT

were VEHICLE

untrue. was

The not

truth

was: clear of

1
contraband

reasonably and,

at the time of the sale to RIVERA; b. CUSTOMS had not conducted

a thorough

search

of the

SUBJECT

VEHICLE The

before actions

selling

the same to RIVERA. CUSTOMS' and sale officials and agents VEHICLE

5

50. involved

of the search

in the seizure, by EG&G,

of the SUBJECT through

were ratified (actual and/or

INC. and MCCORMACK

their knowledge and/or

constructive)

of the same and ratification

acquiescence 51. not have 52. sustained pain lost and

thereto. RIVERA been aware of the true facts, he would

Had the purchased

the SUBJECT of this

VEHICLE breach,

at the auction. RIVERA and CALDERON have

As a result damages

including, wrongful of future

but not limited imprisonment, earning

to, loss of liberty, physical injuries, emotional general and

suffering, loss

wages,

capability, and other

distress, special

mental damages

anguish,

property

damages,

in an amount FIFTH NEGLIGENT

to be established CAUSE OF ACTION

at trial.

MISREPRESENTATION BY RIVERA AND CALDERON twenty-

AGAINST 53. one (21) 54.

EG&G,

INC.

and MCCORMACK

Plaintiffs as though EG&G,

reallege fully

paragraphs

one (i) through

set forth

herein. negligently made or ratified

INC.

and MCCORMACK

the following a. contraband

misrepresentations the SUBJECT

of fact: was reasonably and, clear of

VEHICLE

at the

time of the sale to RIVERA;

Def. App.43

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 25 of 28

bo

CUSTOMS before

had

conducted

a thorough to RIVERA. The not truth

search

of

the

1
SUBJECT VEHICLE These selling were the same untrue. was

2 3 4 5

55.

statements SUBJECT

was: clear of

a. the contraband

VEHICLE

reasonably and,

at the time b. CUSTOMS

of the sale

to RIVERA;

had not conducted selling of

a thorough

search

of the

SUBJECT

VEHICLE The

before actions

the same to RIVERA. CUSTOMS' and sale officials and agents VEHICLE

7 8 9 10 11 12

56. involved

the

in the seizure,

search

of the SUBJECT through

were ratified (actual and/or

by EG&G, INC. and MCCORMACK constructive)

their knowledge and/or

of the same and ratification

acquiescence 57. not have

thereto. RIVERA been aware of the true facts, he would

Had the purchased

the SUBJECT of this

VEHICLE breach,

at the auction. RIVERA and CALDERON have

92103-8013

14

58. sustained

As a result damages

including, wrongful of future

but not limited imprisonment, earning

to, loss of liberty, physical injuries, emotional general and

16 ]7 18 19 20 21 22 23

pain lost

and

suffering, loss

wages,

capability, and other

distress, special

mental damages

anguish,

property

damages,

in an amount SIXTH

to be established CAUSE OF ACTION of Emotional

at trial.

(Neqliqent

Infliction (Against

Distress)

All Defendants) paragraphs one (i) through twenty-

59.

Plaintiffs

reallege fully

one (21) as though

set forth

herein. were aware of the fact that

25 26 27 28

60. Defendants the plaintiff relied

and each of them upon the

defendants,

and each

one of them,

Def. App. 44

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 26 of 28

to

act

with

good and

faith

and

act

in to

a manner criminal

that

would

not

1
interfere expose plaintiffs damages. and each of them were aware of the prosecution, imprisonment, and other Defendants reliance

3
61.

4 5 6 7 8 9 10 11 12

plaintiffs'

as outlined disregard

above. for the same, the defendants throughout

62. With and each

negligent

one of them engaged

in the conduct

set forth

this complaint. 63. The offensive, acts alleged throughout this complaint were to

upsetting,

embarrassing,

degrading, acts

and humiliating the

the plaintiffs. to suffer

The effects mental

of these and

caused

plaintiffs all to

severe damages

emotional

distress, at trial. and

plaintiffs' 64. sustained

in a sum to be proven of this breach,

As a result damages

RIVERA

CALDERON

have

including, physical emotional general

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering,

lost wages, mental damages

16 17 18 19 20 21 22 23

earning damages,

capability, and other

anguish,

and special

in an amount

established

at trial. SEVENTH CAUSE OF ACTION of Emotional Distress)

(Intentional

Infliction (Against

All Defendants) paragraphs one (i) through twenty-

65. Plaintiffs one (21) as though 66. Defendants

reallege fully

set forth

herein. aware of the fact that one of them, would not

and each upon

of them were

25 26 27 28

the plaintiff to act with

relied good

the defendants, and act in

and each

faith

a manner

that

Def. App. 45

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 27 of 28

interfere

and

expose

plaintiffs damages. and each

to

criminal

prosecution,

1 2 3 4 5 6 7 8 9 I0 II 12

imprisonment, 67. plaintiffs' 68. and each

and other Defendants reliance

of

them

were

aware

of

the

as outlined disregard

above. for the same, the defendants throughout

With

reckless

one of them engaged

in the conduct

set forth

this complaint. 69. offensive, The acts alleged throughout this complaint were to

upsetting,

embarrassing,

degrading, acts

and humiliating

the plaintiffs. to suffer

The effects mental

of these and

caused

the plaintiffs all to

severe damages

emotional

distress, at trial. and

plaintiffs' 70. sustained

in a sum to be proven of this breach,

As a result damages

RIVERA

CALDERON

have

including, physical emotional general

but not limited injuries, distress,

to, loss of liberty, loss of future property to be

pain and suffering, earning capability, and other

lost wages, mental damages

anguish,

16 17 18 19 2O 21

damages,

and special

in an amount

established

at trial. EIGHTH (violation CAUSE OF ACTION Leqal Remedies Act)

of Consumer's (Against

All Defendants) paragraphs one (I) through twenty-

71. Plaintiffs one (21) as though

reallege fully and

set forth each

herein. violated that the California transaction which by it

72. Defendants,

one of them,

2~ 25 26 27 28

Civil

Code

§1770(a)(14) or involved,

by representing rights, or remedies which

conferred did not

or obligations prohibited

have

or

involve,

were

law,

_

Def. App.46

Case 1:05-cv-00608-ECH

Document 8-4

Filed 09/30/2005

Page 28 of 28

specifically,

that

the SUBJECT

VEHICLE

would

not also

contain

a

1
large amount 73. kilograms of marijuana By selling in a hidden the SUBJECT same, the compartment. VEHICLE to RIVERA and State each laws with 17

of marijuana in

in the of

defendants and

one of that

4
them, acted violation Federal

5
prohibits the sale of marijuana As such, the sale in the State of the of California. VEHICLE and the to

6 7 8 9 10 11 12

74. marijuana criminal 75. pursuant

SUBJECT

was in violation prosecution

of the

law and exposed in Mexico. of them, fees

plaintiffs

and imprisonment and (i) each and one

Plaintiffs, to CC §1780(a)

will

seek

damage to

attorney

pursuant

§1780(d).
76. TERESA proper this AS required hereby by California declare civil Code This §1780(c), county is the in

TRUCCHI, venue

as follows:

for this action and all

because

the transaction conduct that best

occurred

county

of the defendants penalty and This

business

in this of

county. this

I declare are

under true

of perjury to the

the contents

paragraph and

correct

of my personal ~n San~Diego

;8

knowledge

belief.

declaration

wa~gned

c°until.

Plaintiffs

provided

d~fe

enff~d~~dd~c~h

chef'of

them,

with the notice November damages

required

by civil Code §1782 will amend after

by certified complaint

mail on to seek

12, 2002. under civil

Plaintiffs

this

Code §1780(a)(I)

the thirty

day notice

25 26 27 28

period

has expired.

.__

Def. App. 47

-