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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
.....
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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
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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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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
-