UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0 Roger P. Bingham, Esq. (SBN Attorneys At Law rpb@rbinghamlaw.com Facsimile: ( 0-00 Attorneys for Third-Party Plaintiffs SAN DIEGO METROPOLITAN TRANSIT SYSTEM, a public entity; SAN DIEGO TROLLEY, INC., a California Corporation; SAN DIEGO TRANSIT CORPORATION, a California corporation; UNIVERSAL PROTECTION SERVICE GP, INC., a California corporation; BILL BUCK, an individual; CHRIS MINER, an individual ALLEN KOKA, an individual, v. Plaintiff, SAN DIEGO METROPOLITAN TRANSIT SYSTEM, a public entity, SAN DIEGO TROLLEY, INC., a California corporation; SAN DIEGO TRANSIT CORPORATION, a California corporation; UNIVERSAL PROTECTION SERVICE GP, INC., a California corporation; BILL BUCK, an individual; CHRIS MINER, an individual; and DOES - 0, inclusive, Defendants. SAN DIEGO METROPOLITAN TRANSIT SYSTEM, a public entity; SAN DIEGO TROLLEY, INC., a California Corporation; SAN DIEGO TRANSIT CORPORATION, a California corporation; UNIVERSAL PROTECTION SERVICE GP, INC., a California corporation; BILL BUCK, an individual; CHRIS MINER, an individual v. Third-Party Plaintiffs, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Nov 0 0 s/ danielles CASE NO. CV 0 AJB KSC THIRD-PARTY COMPLAINT AGAINST NMS MANAGEMENT, INC. FOR INDEMNIFICATION, CONTRIBUTION AND DECLARATORY RELIEF Judge: Anthony J. Battaglia Magistrate Judge: Karen S. Crawford [Complaint Filed: 0/0/] [DEMAND FOR JURY TRIAL]

2 Case :-cv-00-ajb-ksc Document Filed /0/ Page of NMS MANAGEMENT, INC., a California Corporation, and ROES - 0, inclusive. Third-Party Defendants. 0 0 Third-Party Plaintiffs SAN DIEGO METROPOLITAN TRANSIT SYSTEM, a public entity; SAN DIEGO TROLLEY, INC., a California Corporation; SAN DIEGO TRANSIT CORPORATION, a California corporation; UNIVERSAL PROTECTION SERVICE GP, INC., a California corporation; BILL BUCK, an individual; CHRIS MINER, an individual (hereinafter collectively referred to as MTS by and through their counsel, Wheatley Bingham & Baker, LLP, for its Third-Party Complaint against NMS Management, Inc. ( NMS, a California corporation, and ROE Defendants -0, alleges on knowledge as to itself and its conduct and upon information and belief as to all other matters as follows: NATURE OF ACTION. This is a Third-Party Complaint for indemnification, contribution and declaratory relief. In the original complaint filed in the above-captioned action, styled Allen Koka v. San Diego Metropolitan Transit System, et al. (the Koka Complaint Allen Koka alleges inter alia, claims against MTS for Civil Rights violations pursuant to U.S.C. and California Civil Code.,., as well as various state law claims for assault, battery, false imprisonment/arrest, intentional infliction of emotional distress, negligence and negligent hiring/supervision of employees. The matter arises from the arrest and detention of Koka by MTS at Metropolitan Transit System s secured facility located at Imperial Avenue, in San Diego, for violation of MTDB Ordinance No.. Entering a transit property not open to the public; and Penal Code. Willfully resisting a public officer. Koka was at all relevant times herein, an employee of NMS, a vendor under contract with Metropolitan Transit System to / / / CASE NO. CV 0 AJB KSC

3 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0 perform cleaning services with respect to San Diego Trolley, Inc. s light rail vehicles.. NMS executed a contract with Metropolitan Transit System to provide cleaning services for the light rail vehicles (LRVs operated by San Diego Trolley, Inc. The relevant contract is identified as Standard Service Agreement; MTS Doc. No. G.0- Janitorial Services ( Service Agreement. Pursuant to paragraph Indemnity of the Service Agreement, NMS (aka Contractor agrees as follows: As between MTS and Contractor, Contractor is deemed to assume responsibility and liability for, and Contractor shall indemnify and hold harmless, MTS, SDTI, SDTC, SD&AE, SD&IV and any and all of its directors, officers, agents or employees from and against any and all claims, loss, damage, charge or expense, whether direct or indirect, which MTS, SDTI, SDTC, SD&AE, SD&IV or such directors, officers, agents or employees may be put or subjected, by reason of any damage, loss, or injury of any kind or nature whether to persons or property caused by or resulting from or in connection with any negligent act or action, or any neglect, omission, or failure to act when under a duty to act on the part of Contractor or any of its officers, agents, servants or subcontractors in its or their performance under this Agreement. In addition to any other remedy authorized by law, so much of the money due Contractor under the Agreement as shall be considered necessary by MTS may be retained until disposition has been made of any claim for damages.. Pursuant to paragraphs B.. and B.. of the Service Agreement, NMS acknowledges and agrees that All MTS facilities are secured facilities and require access control devices (identification cards, known as ID cards. Upon award of the contract, the Contractor s employees will be issued photo ID cards [ ] The Contractor and their employees must have visible MTS identification on their persons at all times. / / / CASE NO. CV 0 AJB KSC

4 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0. NMS breached its duties and responsibilities under the terms/conditions of the Service Agreement and said breach was the proximate cause of Plaintiff s alleged damages. Specifically, NMS engaged in the following acts or omissions: (a Koka was permitted by NMS to commence employment at Metropolitan Transit System s secured A-Yard without issuing him the requisite identification card/badge in violation of the Service Agreement; (b NMS failed to train, instruct and/or otherwise supervise Koka regarding Metropolitan Transit System s prohibition against any persons entering Metropolitan Transit System s secured facilities without displaying the requisite identification card/badge; (c NMS nighttime supervisory/management staff allowed, encouraged and/or otherwise ratified Koka and other cleaning staff personnel to enter Metropolitan Transit System s secured facilities without the requisite identification card/badge as mandated by the Service Agreement; (d NMS administered indoctrination training to Koka at Metropolitan Transit System s secured facility prior to completion of the requisite background investigation as opposed to conducting said training at NMS off-site office in violation of the Service Agreement, as well as NMS policies/procedures; and (e NMS failed to instruct Koka regarding his obligation to submit to the authority/instruction of Code Compliance Inspectors/Transit System Security officers while on Metropolitan Transit System s secured facilities.. Pursuant to Rule (a of the Federal Rules of Civil Procedure, MTS as Third-Party Plaintiff, brings this Third-Party Complaint against NMS to protect and secure its indemnification rights under the Service Agreement and in equity. To the extent that MTS may be found liable to Koka for the claims alleged in the Koka Complaint, or otherwise incurs costs in defending said claims, NMS is contractually and equitably required to indemnify MTS for any liabilities or costs incurred in this action. / / / / / / CASE NO. CV 0 AJB KSC

5 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0 PARTIES. Metropolitan Transit System is a public entity authorized and existing as such in and under the laws of the State of California, with its primary offices located at Imperial Avenue, San Diego, California 0. Metropolitan Transit System is responsible for the implementation, management and operation of public transit services in the City of San Diego and other cities/jurisdictions within the County of San Diego.. San Diego Trolley, Inc. (SDTI is a California public corporation and subsidiary of Metropolitan Transit System who is responsible for the implementation, management and operation of a public transit light rail system within the boundaries of the County of San Diego.. San Diego Transit Corporation (SDTC is a California public corporation and subsidiary of Metropolitan Transit System who is responsible for the implementation, management and operation of a public transit bus service in the City of San Diego and other cities/municipalities within the boundaries of the County of San Diego.. Universal Protection Service GP, Inc. (UPS is a California corporation engaged in a contract to provide security/law enforcement services to Metropolitan Transit System and its subsidiaries under the title Transit System Security. UPS provides a contracted security force to be utilized onboard Metropolitan Transit System s vehicles and in its transit facilities/properties located in the City of San Diego and other cities/municipalities in the County of San Diego. 0. NMS Management, Inc. (NMS is a California corporation doing business in the City and County of San Diego, California. NMS is under contract with Metropolitan Transit System to provide cleaning services to the light rail vehicles (LRVs operated by San Diego Trolley, Inc.. MTS is ignorant of the true names and capacities of Third-Party Defendants sued herein as ROE DEFENDANTS -0, and therefore sues these CASE NO. CV 0 AJB KSC

6 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0 Third-Party Defendants by such fictitious names. MTS will amend this Third-Party Complaint to allege their true names and capacities when ascertained. JURISDICTION AND VENUE. The Koka Complaint arises under U.S.C. and California law. This Court has subject matter jurisdiction over this action pursuant to U.S.C... This Court further has subject matter jurisdiction over Koka s state law claims based on supplemental jurisdiction under U.S... This Court likewise has jurisdiction over this matter and the corporate defendants pursuant to U.S.C. (b((a.. Venue is proper in this District pursuant to U.S.C. (b because the actions challenged herein occurred in the Southern District of California. STATEMENT OF FACTS I. The Failure of NMS and Terms of the Service Agreement.. On November, 0, at approximately 0:0 p.m., Code Compliance Inspectors (CCI Bill Buck (Buck and Chris Miner (Miner were on duty in full uniform as public officers employed by San Diego Trolley, Inc. (SDTI, when they observed Koka in Metropolitan Transit System s secured A-Yard at Imperial Avenue in San Diego, which is used to accommodate and house SDTI s trains and operations/maintenance facilities. The area is secured and not open to the public in order to preserve the security and integrity of the light rail vehicles and system.. Koka was not displaying an MTS badge or authorized clearance identification. CCI Buck and Miner contacted Koka and inquired whether he possessed a badge authorizing him to be on the premises. Koka denied having a badge or authorization but reported being a contract cleaner employed by NMS to clean SDTI s light rail vehicles (LRVs. Koka was advised that he still required a badge whether or not he was a contract cleaner for NMS. / / / CASE NO. CV 0 AJB KSC

7 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0. Inspector Buck instructed Plaintiff that he would be issuing Plaintiff a citation for violation of MTDB Ordinance. entering a transit property not open to the public. Koka was otherwise to leave the property after receiving the citation. CCI Buck prepared the citation and requested that Plaintiff sign it. Plaintiff nevertheless refused to sign the citation. CCI Buck instructed Plaintiff that if he did not sign the citation, the other alternative would be to place Koka under arrest and transport him to San Diego County Jail.. Koka continued in his refusal to sign the citation. CCI Buck with the assistance of other Code Compliance Inspectors and Transit System Security officers attempted to take Koka into custody by placing him in handcuffs. A physical altercation subsequently ensued resulting in Koka being taken to the ground and handcuffs placed on his wrists behind his back. Koka was taken into custody and cited for violation of MTDB Ordinance No.., as well as Penal Code. willfully resisting a public officer. 0. Koka denies that NMS ever issued him an identification card/badge and he was previously allowed by NMS to work on Metropolitan Transit System s secured facilities without a badge, in violation of the Service Agreement.. NMS President David Guaderrama concedes that Koka was allowed by NMS to commence his employment with NMS at Metropolitan Transit System s secured facilities without first issuing Koka the requisite identification card/badge as mandated by the Service Agreement.. NMS President Guaderrama nevertheless indicates that Our policy is never to permit an employee to perform any work on MTS property without complete safety training and MTS badging [ ] NMS s Company policy mandates that all interviewing, training and orientation must occur at NMS Corporate Office in National City, and not until completion of NMS s training regimen and results of background investigation are completed, no employee is permitted to enter onto MTS grounds. CASE NO. CV 0 AJB KSC

8 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0. Notwithstanding the aforementioned NMS s policy, NMS admittedly allowed Koka to enter and perform training without an MTS badge on Metropolitan Transit System s secured facilities on November -, 0, in violation of the Service Agreement and NMS s policy.. Security is of utmost importance to MTS as a public transit provider. MTS is reliant on NMS to perform the requisite background investigation with respect to its employees before issuing an MTS badge allowing him or her to enter MTS secured facilities.. NMS s written policy is that If employee does not have proper identification, he/she will not be allowed to enter MTS property.. NMS President Guaderrama further indicates that NMS instructs/trains NMS employees that (a NMS employees will only have access to Metropolitan Transit System s property thirty (0 minutes before their working shift starts and thirty (0 minutes after ending their shift; (b NMS employees are not allowed to be inside Metropolitan Transit System s secured facilities on their days off; (c All employees must be wearing their Metropolitan Transit System badge at all times during working hours and are not authorized to give access to others to the property; (d For all employees that have family members, friends or others that provide transportation, they must advise them to wait outside of Metropolitan Transit System s property; (e NMS and Metropolitan Transit System do not allow family members, friends or others as visitors to the Metropolitan Transit System s property; and (f Any NMS employee who trespasses onto Metropolitan Transit System s property, is subject to a written citation from Metropolitan Transit System s Security Department and will be escorted off the premises and risk possible arrest and termination.. NMS breached its duties and responsibilities under the terms and conditions of the Service Agreement by (a Allowing Koka to commence employment on behalf of NMS at Metropolitan Transit System s secured facilities CASE NO. CV 0 AJB KSC

9 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0 without issuing him the requisite identification card/badge; (b Failing to train, instruct and otherwise supervise Koka regarding Metropolitan Transit System s prohibition against any person entering Metropolitan Transit System s secured facilities without displaying the requisite identification card/badge; (c Allowing NMS s nighttime supervisory personnel as required by Section B.. of the Service Agreement, to allow, encourage and/or otherwise ratify cleaning staff personnel, including Koka, to enter Metropolitan Transit System s secured facilities without the requisite identification card/badge; and (d Failing to train, instruct and advise NMS employees, including Koka, of the requirement to submit to the authority of Code Compliance Inspectors/Transit System Security Officers tasked with maintaining security on Metropolitan Transit System s facilities/vehicles.. The Service Agreement expressly states that Contractor shall be responsible for its own acts and those of its agents and employees during the term of this Agreement. Koka s non-compliance with the instructions of the uniformed public officer violated the aforementioned provision and otherwise caused the circumstances/events which are the subject of the instant lawsuit.. Under the Service Agreement, NMS agrees to indemnify MTS for, among other things, All claims, loss, damage, charge or expense, whether direct or indirect, which MTS, SDTI, SDTC, SD&AE, SD&IV or such directors, officers, agents or employee may be put or subjected, by reason of any damage, loss, or injury of any kind or nature whether to persons or property caused by or resulting from or in connection with any negligent act or action, or any neglect, omission, or failure to act when under a duty to act on the part of Contractor or any of its officers, agents, servants or subcontractors in its or their performance under this Agreement II. Liabilities and Costs Relating to Koka Complaint. 0. In the Koka Complaint, Koka is seeking to hold MTS liable for the arrest and detention of Koka after being contacted on Metropolitan Transit System s CASE NO. CV 0 AJB KSC

10 Case :-cv-00-ajb-ksc Document Filed /0/ Page 0 of 0 0 secured facilities without an identification card/badge. Koka alleges in part that MTS unreasonably and unlawfully seized [Koka], used excessive and unreasonable force against [Koka], unlawfully arrested [Koka], and conspired together to justify and conceal their actions against [Koka]. (Complaint, at p. :-. In particular, Koka claims that Koka was authorized to be on MTS property [ ] for work, to report to work, and for all work-related matters. (Complaint, at p. :-. Koka was contacted by CCI Buck and Miner and asked to present an identification card/badge. (Complaint, at p. :-. Koka nevertheless indicated he was a new employee and had not yet been issued an identification card/badge. (Complaint, at p. :-. CCI Buck and Miner told Koka they were going to cite Koka for trespassing. (Complaint, at p. :-. Koka refused to sign the citation. (Complaint, at p. :. CCI Buck and Miner told [Koka] that, if he did not sign the ticket, they would arrest him, put him in handcuffs, and take him to jail. (Complaint, at p. :-0. Koka still refused to sign the citation resulting in his arrest. (Complaint, at p. :-. Koka, however, has not named NMS as a defendant in the Koka Complaint despite NMS being the entity responsible for issuing an identification card/badge to Koka and ensuring he is trained/instructed as to the requirements of having such a badge when on the premises and submitting to the authority of Code Compliance Inspectors and Transit System Security Officers while located on said property.. Under the Service Agreement, MTS did not assume liabilities for the acts and omissions of NMS that are alleged in the Koka Complaint. NMS is responsible for (a Conducting the requisite background checks of each employee hired by NMS to work on Metropolitan Transit System s secured facilities; (b Issuing the mandatory identification cards/badges to each employee before allowing the employee to perform work on behalf of NMS on Metropolitan Transit System s secured facilities; (c Training, instructing and supervising NMS employees regarding rules/regulations for being on Metropolitan Transit System s secured facilities, including but not limited to the possession of the requisite badge; and (d 0 CASE NO. CV 0 AJB KSC

11 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0 Training, instructing and supervising NMS employees regarding the authority of Code Compliance Inspectors/Transit System Security Officers for enforcing the rules/regulations on Metropolitan Transit System s secured facilities.. In the Service Agreement, NMS agrees to indemnify MTS against claims arising from the acts and/or omissions of NMS and/or its officers, agents, servants or subcontractors in its or their performance under the Service Agreement, which would include liabilities or costs incurred in defending the claims asserted in the Koka Complaint.. Even if the Koka Complaint is dismissed, MTS is entitled to indemnification from NMS for any costs and expenses, including attorney fees, incurred in defending the claims associated in the Koka Complaint. CLAIM FOR RELIEF First Cause of Action (Indemnification. MTS realleges and incorporates by reference each and every allegation set forth above in paragraphs -, as though fully set forth herein.. As set forth above, NMS has agreed to indemnify and hold MTS harmless from and against any and all claims, loss, damage, charge or expense which MTS may be subjected by any reason of any damage, loss or injury of any kind resulting from or in connection with any negligent act or action, or any neglect, omission or failure to act by NMS and/or its agents in its or their performance under the Service Agreement.. While denying the allegations in the Koka Complaint, MTS alleges that in the event Koka suffered damages as therein alleged, that said damages and injuries were proximately caused and contributed to by the acts and/or omissions of NMS, and each of them, and that if MTS is found liable and responsible to Koka under any theory of law, then, in that event, MTS alleges that NMS contributed to / / / CASE NO. CV 0 AJB KSC

12 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0 the happening of the incident and/or events described in the Koka Complaint and caused in some degree the alleged loss, damage and detriment to Koka.. The conduct of MTS with respect to the events and occurrences referenced in the Koka Complaint which allegedly produced injuries and damages to Koka, if any, was passive, secondary and remote.. By reason of the foregoing, MTS is entitled by reasons of the Service Agreement, as well as the principles of equity and justice, to indemnity from and to be harmless by NMS because of its aforesaid direct, primary, immediate and foreseeable conduct.. Counsel for MTS notified NMS by letter dated September, 0, that MTS is entitled to indemnification for any liability or costs incurred with respect to the Koka Complaint, including the costs of defending the claims and allegations asserted therein. 0. NMS has declined its indemnification obligations to MTS in the instant matter. SECOND CAUSE OF ACTION (Comparative Indemnity. MTS realleges and incorporates by reference each and every allegation set forth above in paragraphs -0, as though fully set forth herein.. If MTS is held liable to Koka either by way of judgment or settlement for any claim alleged in the Koka Complaint, MTS is entitled to recover from NMS an amount which bears the same ratio to the total recovery of Koka as the ratio of fault on the part of NMS when compared to the total fault of all persons and/or entities whose conduct contributed to the injuries and damages of Koka, if any. THIRD CAUSE OF ACTION (Contribution. MTS realleges and incorporates by reference each and every allegation set forth above in paragraphs -, as though fully set forth herein. CASE NO. CV 0 AJB KSC

13 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 0. In order to prevent a multiplicity of litigation, a determination of the comparative fault, if any, of MTS and NMS, and each of them, should be had at the time of trial of the principal action herein. If Koka recovers judgment against MTS and NMS, or any of them, the amount of damages awarded to Koka should be apportioned between MTS and NMS, and each of them, equitably based upon a comparison of fault of NMS for the amount of any damage awarded in favor of Koka and against MTS, pursuant to the degree of relative fault attributed to MTS and NMS and each of them. FOURTH CAUSE OF ACTION (Declaratory Relief. MTS realleges and incorporates by reference each and every allegation set forth above in paragraphs -, as though fully set forth herein.. A dispute has arisen and an actual controversy exists between MTS and NMS, and each of them, as to whether NMS must indemnify MTS and pay for reasonable attorneys fees, costs and expenses on account of the events and occurrences alleged in the Koka Complaint and this Third-Party Complaint, and whether NMS must compensate MTS for any liability sustained by MTS in proportion to the respective ratios of fault.. A declaration of rights of the parties in this action is necessary in order to avoid a multiplicity of suits and because MTS may have no adequate remedy of law. WHEREFORE, MTS respectfully prays for judgment as follows:. That MTS be awarded judgment against NMS in the amount of any judgment by Koka against MTS, or in the amount of any settlement payment by MTS to Koka;. For any and all costs, losses, liabilities, expenses, attorneys fees, liens, and/or fines incurred by MTS as a result of this action based on the conduct of NMS; and CASE NO. CV 0 AJB KSC

14 Case :-cv-00-ajb-ksc Document Filed /0/ Page of 0 proper.. For such additional relief to MTS as the Court may deem just and Dated: October 0, 0 By: s/roger P. Bingham ROGER P. BINGHAM Attorneys for Third-Party Plaintiffs SAN DIEGO METROPOLITAN TRANSIT SYSTEM, a public entity; SAN DIEGO TROLLEY, INC., a California Corporation; SAN DIEGO TRANSIT CORPORATION, a California corporation; UNIVERSAL PROTECTION SERVICE GP, INC., a California corporation; BILL BUCK, an individual; CHRIS MINER, an individual 0 CASE NO. CV 0 AJB KSC