LEWIS OWEN AMACK, Esq., California Bar No. 177774

Post Office Box 888

Hollywood, CA 90078-0888

Voice/Fax:  (323) 881-0600, Voice: (323) 268-8766

Email:  LAlawMed@aol.com

 

Attorney for Plaintiffs

 

 

 

SUPERIOR COURT OF LOS ANGELES COUNTY

STATE OF CALIFORNIA

 

 

The ESTATE OF

DESTINY WILLEEN JACOBO;

MARY LOUISE JACOBO;

WILLIAM JACOBO, Jr.;

PATRICIA INEZ VILDOSOLA;

WILLIAM JACOBO III;

MICHAEL WILLIAM JACOBO;

MARINA FRANCINE NERIA;

ANTHONY JAMES JACOBO;

DANIEL WILLIAM JACOBO; and

NICOLE CHRISTINE JACOBO;

individuals,

 

                        Plaintiffs,

 

            vs.

 

LOS ANGELES COUNTY

DEPARTMENT OF

CHILDREN’S SERVICES and the

LOS ANGELES COUNTY

CORONER’S OFFICE, public entities;

SANTA MARTA HOSPITAL,

a California corporation;

JOSEPH BOGGS, M.D.; JAMES RIBE, M.D.;

CYNTHIA ROMERO, ESQ.;

GUY EDWARD O’BRIEN, ESQ.;

RAYMOND SANTANA, ESQ.;

MICHAEL BRUSH, ESQ.;

JULIANA DROUS, ESQ.;

RENE BILSON, ESQ.;

FRANK SHERIDAN, M.D.;

NENITA DUAZO, M.D.;

THOMAS LIN, M.D.;

THE HONORABLE GOVERNOR OF THE STATE OF CALIFORNIA GRAY DAVIS;

THE HONORABLE ATTORNEY GENERAL OF CALIFORNIA BILL LOCKYER;

the Honorable

Judge Janice Claire Croft;

CHERI LEWIS, ESQ.;

AUGUSTINE VARGAS, ESQ.;

NATHANIEL HOFFMAN, ESQ.;

LINDA NAKAMURA, ESQ.;

JOHN PATRICK RYAN, M.D.;

TRICIA HIGA; HENRY BARBOSA;

DANIEL GARZA, Jr.; JOANNE GARZA,

individuals; and

DOES 1-200,

 

                        Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO. 01-CV-_______

 

COMPLAINT FOR DAMAGES,

Exemplary Damages, and Equitable Relief FOR:

 

1.        WRONGFUL DEATH;

2.        MEDICAL MALPRACTICE/

  NEGLIGENCE BY PHYSICIAN;

3.        MEDICAL MALPRACTICE/

  NEGLIGENCE BY HOSPITAL;

4.        LEGAL MALPRACTICE/

  NEGLIGENCE BY ATTORNEY;

5.        DEFAMATION/LIBEL/SLANDER;

6.        FALSE LIGHT INVASION OF

  PRIVACY;

7.        FALSE ARREST/IMPRISONMENT;

8.        MALICIOUS PROSECUTION;

9.        PROSECUTORIAL MISCONDUCT;

10.    OUTRAGEOUS CONDUCT;

11.    INTENTIONAL INFLICTION OF

  EMOTIONAL DISTRESS;

12.    NEGLIGENT INFLICTION OF

  EMOTIONAL DISTRESS;

13.    LOSS OF SERVICES OF A CHILD;

14.    LOSS OF CONSORTIUM;

15.    BREACH OF FIDUCIARY DUTY;

16.    BREACH OF IMPLIED COVENANT

  OF GOOD FAITH AND

  FAIR DEALING;

17.    CONSPIRACY;

18.    FRAUD and DECEIT

19.    CONSTRUCTIVE FRAUD;

20.    INTENTIONAL

  MISREPRESENTATION;

21.    NEGLIGENT MISREPRESENTATION;

22.    NEGLIGENCE;

23.    NEGLIGENT SUPERVISION;

24.    ABUSE OF DISCRETION;

 

Constitutional Violations

25.    VIOLATION OF CIVIL RIGHTS;

26.    DENIAL OF DUE PROCESS RIGHTS;

27.    DENIAL OF EQUAL PROTECTION;

 

Equitable Claims

28.    DECLARATORY RELIEF; and

29.    INJUNCTIVE RELIEF.

 

JURY TRIAL DEMANDED

 

COME NOW the aforenamed PLAINTIFFS, BY AND THROUGH THEIR ATTORNEY, to state the following CAUSES OF ACTION AGAINST THE DEFENDANTS:

 

NATURE OF THE ACTION

 

1.  This action seeks monetary and exemplary damages, as well as declaratory and injunctive relief, resulting from, inter alia:  (1) the wrongful death of DESTINY WILLEEN JACOBO (hereinafter “decedent” or “Destiny”), born on Tuesday, March 29, 1994; died at the age of twenty (20) months and eight (8) days on Wednesday, December 6, 1995; (2) the malicious prosecution of the decedent’s parents, WILLIAM JACOBO, Jr. (hereinafter “Mr. Jacobo”) and PATRICIA INEZ VILDOSOLA (hereinafter “Ms. Vildosola”), for, inter alia, child abuse, child endangerment, and murder; (3) the false imprisonment of decedent’s aforenamed parents; (4) violations of constitutional and civil rights, including the rights to due process and equal protection; (5) the disruption of the family of Mr. Jacobo and Ms. Vildosola, particularly the unjustified, ongoing, total separation from three of their children, DANIEL WILLIAM JACOBO, NICOLE CHRISTINE JACOBO, and MARINA FRANCINE NERIA, as well as the loss of custody of all of their other children, including WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, and ANTHONY JAMES JACOBO; and (6) related acts or omissions, including, inter alia, fraud, conspiracy, abuse of process, breach of professional duties, violation of constitutional protections, misrepresentations, and outrageous conduct.

2.  This action arises under, inter alia:  (1) the common law of the State of California and the United States, including the laws of equity and tort; (2) the California Constitution, including Article I § 24 (equal protection; due process; assistance of counsel; personal presence with counsel during trial; compelling attendance of witnesses); (3) the statutes and court rules of the State of California, including, inter alia (see Table 1, “Selected Statutes and Rules Applicable to the Claims of this Complaint,” infra);


 

Table 1

SELECTED STATUTES & RULES

APPLICABLE TO THE CLAIMS OF THIS COMPLAINT

Claim

Statute or Rule

(C. = [California] Code)

Description

1

Wrongful Death

C. Civ. Proc. § 377.60

Wrongful Death

C. Civ. Proc. § 340

Personal Injury; Wrongful Death; Torts

C. Civ. Proc. § 376

Action by Parents of Child for Injuries

C. Civ. Proc. § 425.11(b)

Damages statement; wrongful death

Prob. C. § 9835

Wrongful Death & Personal Injury Claims

2

&

3

MEDICAL MALPRACTICE/

NEGLIGENCE

Civ. C. § 1714.8

Liability of health care provider for negligence or malpractice

Bus. & Prof. C. § 2221

Medicine; Probationary License

C. Civ. Proc. § 340.5

Professional negligence of health care provider

Civ. C. § 3333.2

Noneconomic losses in medical malpractice action

C. Civ. Proc. § 425.13

Claim for punitive damages against health care provider

Health & Saf. C. § 1799.110

Actions against physicians & surgeons

3

MEDICAL MALPRACTICE/ NEGLIGENCE BY HOSPITAL

Civ. C. § 1714

Responsibility for willful acts or negligence

Civ. C. § 2338

Principal’s responsibility for agent’s negligence or omission

Civ. C. § 3333.1

Collateral benefits in medical malpractice actions

C. Civ. Proc. § 667.7

Medical negligence actions

Evid. C. § 646

RES IPSA LOQUITUR

2-4

(Professional Negligence/

Malpractice)

C. Civ. Proc. § 364

Commencement of actions based upon professional negligence

Bus. & Prof. C. § 2234

Unprofessional Conduct

4

LEGAL MALPRACTICE/

NEGLIGENCE BY ATTORNEY

C. Civ. Proc. § 340.6

Action against attorney for wrongful act or omission

Bus. & Prof. C. § 6068

Duties as an Attorney

Cal. Bar Rules, Prof. Conduct R. 1-100

Rules of Professional Conduct

Cal. Bar Rules, Prof. Conduct R. 3-110

Failing to act competently

5

DEFAMATION/

LIBEL/

SLANDER

Civ. C. § 48.7

Civil Action for Libel or Slander Arising from Child Abuse prosecution

Civ. C. § 44

Defamation

Civ. C. § 45

Libel

Civ. C. § 46

Slander

C. Civ. Proc. § 460

Libel and slander

C. Civ. Proc. § 830

Actions for Libel and Slander

6

FALSE LIGHT INVASION OF PRIVACY

Civ. C. § 43

General Personal Rights

Cal. Const., Art. I § 1

Inalienable Rights

7

DUE PROCESS

Const. Art. I § 24

Due Process; Right to [Effective] Assistance of Counsel, etc.

U.S. Const., 14th Amend.

Due Process Clause

8

EQUAL PROTECTION

Cal. Const. Art. I § 24

Equal Protection

U.S. Const., 14th Amend.

Equal Protection Clause

9

FALSE IMPRISONMENT

Pen. C. §§ 236 & 237

False Imprisonment

Gov. C. § 820.4

Liability of Public Employees; Absence of Immunity for false arrest or imprisonment

10

MALICIOUS PROSECUTION

Pen. C. § 1447

Costs of Malicious Prosecution

Gov. C. § 821.6

Liability of Public Employees; Institution or Prosecution of Judicial or Administrative Proceeding

11

PROSECUTORIAL MISCONDUCT

Evid. C. § 353

Erroneous Admission of Evidence; Miscarriage of Justice

Pen. C. § 686

Rights of Defendant

Cal. Const., Art. VI § 13

Overturning Erroneous Judgments; Miscarriage of Justice

12

OUTRAGEOUS CONDUCT

Civ. C. § 3294

Exemplary Damages

Civ. C. § 3333

Measure of Damages for Wrongs

15

LOSS OF SERVICES OF A CHILD

Fam. C. § 7500

Right of Parent to Services and Earnings of Unemancipated Minor Child

16

LOSS OF CONSORTIUM

Fam. C. § 781

Damages for injuries to married person

17-18

 

BREACH OF FIDUCIARY DUTY

&

BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING

Bus. & Prof. C. § 4301

Healing Arts; Unprofessional Conduct

Bus. & Prof. C. § 4992.3

Social Workers; Unprofessional Conduct

Bus. & Prof. C. § 4982

Unprofessional Conduct; Marriage, Family & Child Counselors

Gov. C. § 820.21

Tort Liability of Specified Public Employees

19

CONSPIRACY

Pen. C. § 184

Conspiracy

Pen. C. § 182

Criminal Conspiracy

Evid. C. § 1223

Admission of co-conspirator

20

FRAUD AND DECEIT

Civ. C. § 1711

Deceit upon the Public

Wel. & Inst. C. § 14107.11

Fraud or willful misrepresentation; public social services

21

CONSTRUCTIVE FRAUD

Civ. C. § 1573

Constructive Fraud

22-23

MISREPRESENTATION

Bus. & Prof. C. § 2261

False Representations; Medicine

Gov. C. § 822.2

Misrepresentations by Public Employees

Gov. C. § 818.8

Liability of Public Entities for Employee Misrepresentation

24-25

NEGLIGENCE

Evid. C. § 669

Failure to exercise due care

26

ABUSE OF PROCESS

C. Civ. Proc. § 128.5

Expenses for frivolous action, bad faith or delay; punitive damages

Gov. C. §§ 815 & 815.2

Liability of Public Entities and Public Employees

Gov. C. § 12550

Attorney General; supervision of District Attorneys

Pen. Code § 133

Crimes Against Public Justice; Falsifying Evidence, Intimidating or Threatening Witnesses

27

DECLARATORY RELIEF

C. Civ. Proc. §§ 1061 & 1062

Declaratory Relief

28

INJUNCTIVE RELIEF

C. Civ. Proc. § 525

Injunction

Civ. C. §§ 3420 & 3422

Preventive relief

Civ. C. § 52.1

Interference with enjoyment of legal rights

29

RESTITUTION

Gov. C., prec. §§ 13959-13967

Indemnification of Private Citizens; Victims of Crime

Cal. Const., Art. I § 28

Victims’ Bill of Rights

(4) the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; and (5) all applicable state and federal provisions for the protection of civil rights.


JURISDICTION & VENUE

 
3.  This Superior Court of the County of Los Angeles, State of California, has jurisdiction over the subject matter of all causes of action in this complaint, pursuant to Cal. Const., Art. VI § 10, because this proceeding arose pursuant to causes not statutorily applicable to other trial courts.
4.  Furthermore, the claims asserted herein arise under color of rights secured by the California and United States Constitutions, and articulated under state and federal law, including, inter alia, Cal. Code Civ. Proc. § 377.60 (wrongful death), Cal. Civ. Code § 1714.8 (liability of health care provider for professional negligence or medical malpractice), Cal. Code Civ. Proc. § 340.6 (action against attorney for wrongful act or omission), Cal. Civ. Code § 48.7 (civil action for libel or slander arising from child abuse prosecution), Cal. Gov. Code § 820.4 (false imprisonment), and Cal. Pen. Code §§ 182-184 (conspiracy), because the Plaintiffs seek $40,000,000.00 in monetary damages, exclusive of interest and costs, in addition to punitive damages, and declaratory and injunctive relief.

5.  The preponderance of the individual Plaintiffs and Defendants reside in Los Angeles County, and all individual Plaintiffs and Defendants are citizens of the State of California.

6.  The principal place of business of Defendants LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and SANTA MARTA HOSPITAL, as well as the preponderance of the individual defendants, is in the County of Los Angeles.

7.  Venue is proper in the County of Los Angeles, because the preponderance of the acts or omissions of the Defendants pertinent to this complaint occurred within the County of Los Angeles, State of California.  Moreover, the damages suffered by the Plaintiffs were incurred predominantly within the County of Los Angeles, State of California.

8.  This action is not removable to federal court.

 

THE PARTIES

Plaintiffs

 

9.  DESTINY WILLEEN JACOBO, whose estate is a plaintiff in this action, was born in Los Angeles County, California on Tuesday, March 29, 1994, resided in Los Angeles County, California throughout her life, and died at the age of twenty months and eight days in Los Angeles County, California on Wednesday, December 6, 1995.

10.  The other plaintiffs, described below, are all related affinally or biologically to the decedent, Destiny Willeen Jacobo, and for the most part are members of the immediate family of the decedent:

(1) MARY LOUISE JACOBO, Destiny’s paternal Grandmother, 1060 West Sequoia Street, Bloomington, CA 92316;

(2) WILLIAM JACOBO, Jr., Destiny’s Father, 2037 Woods Avenue, Monterey Park, CA 91754-5913;

(3) PATRICIA INEZ VILDOSOLA, Destiny’s Mother, W-71014, B-506-17-3-Low, Central California Women's Facility State Prison, Post Office Box 1508, Chowchilla, CA 93610-1597;

(4) WILLIAM JACOBO III (hereinafter “Little Billy” or “Billy III”), Destiny’s half [step]-Brother, 363 North Calara Avenue, Apartment 79, Azusa, CA 91702;

(5) MICHAEL WILLIAM JACOBO, Destiny’s half [step]-Brother, 363 North Calara Avenue, Apartment 79, Azusa, CA 91702;

(6) MARINA FRANCINE NERIA, Destiny’s half [step]-Sister, address unknown, placed in foster home and adopted under aegis of the Los Angeles County Department of Children’s Services

(7) ANTHONY JAMES JACOBO, Destiny’s half [step]-Brother, 363 North Calara Avenue, Apartment 79, Azusa, CA 91702;

(8) DANIEL WILLIAM JACOBO, Destiny’s Brother, address unknown, placed in foster home and adopted under aegis of the Los Angeles County Department of Children’s Services; and

(9) NICOLE CHRISTINE JACOBO, Destiny’s Sister, address unknown, placed in foster home and adopted under aegis of the Los Angeles County Department of Children’s Services.

(*) ESTHER JACOBO, Destiny’s Great-Grandmother, a non-party in this action, resides at 2037 Woods Avenue, Monterey Park, CA 91754.  Destiny resided at her home during in or about July of 1995 until the time of her death.  Esther Jacobo also had custody of some of the children of Ms. Vildosola and Mr. Jacobo during the years 1994-1995.

 

Defendants

 

11.  Defendant LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES (hereinafter “DCS”) is now, and at all times mentioned in this complaint was, a governmental entity organized and existing under the laws of the State of California, with its principal place of business in Los Angeles County, California.  Defendant Los Angeles County Department of Children’s Services is now, and at all times mentioned in this complaint was, in the business of protecting and promoting the welfare of the children living within or familially connected to the County of Los Angeles, State of California, United States of America.

12.  Defendant LOS ANGELES COUNTY CORONER’S OFFICE is now, and at all times mentioned in this complaint was, a governmental entity organized and existing under the laws of the State of California, with its principal place of business in Los Angeles County, California.  Defendant Los Angeles County Coroner’s Office is now, and at all times mentioned in this complaint was, in the business of performing autopsies and other medical examinations, and in obtaining forensic evidence pertaining to deaths occurring within the County of Los Angeles, State of California, United States of America.

13.  Defendant Santa Marta Hospital (hereinafter “Santa Marta” or “Sta. Marta”) is now, and at all times mentioned in this complaint was, an incorporated entity organized and existing under the laws of the State of California, with its principal place of business located in Los Angeles County, California, at 319 North Humphreys Avenue, Los Angeles, CA 90022, Telephone: (323) 260-8575, Fax: (323) 260-8641.  Defendant Santa Marta Hospital is now, and at all times mentioned in this complaint was, in the business of providing, inter alia, inpatient, outpatient, and emergency services in the form of, inter alia, diagnostics, surgical procedures, and medical treatment for members of the general public.

14.  Defendant JOSEPH DODRIDGE BOGGS, Jr., M.D., is now, and at all times mentioned in this complaint was, a physician, residing and employed in the State of California.  Defendant Joseph Dodridge Boggs, Jr., M.D., had a SUSPENDED, probationary California medical license on or about December 5th-6th 1995, when he was employed in the Emergency Room of Santa Marta Hospital, and at all relevant times hereinafter, unless otherwise specified.  Dr. Boggs’ license suspension became effective on November 27, 1995just eight days before Destiny died!  Dr. Boggs’ specialty is Internal Medicine, but he is not certified in Emergency Medicine, Pediatrics, or Pulmonary Medicine, any of which might have been useful in treating Destiny.  Moreover, Dr. Boggs disappeared from Santa Marta Hospital immediately after Destiny’s death, and has not worked at Santa Marta Hospital since in or about December of 1995.

15.  Defendant CINDY ROMERO, ESQ., is now, and at all times mentioned in this complaint was, an attorney licensed by the State of California, employed at the Los Angeles County Department of Children’s Services in Los Angeles County, California, and with principal place of residence in Los Angeles County, California.

16.  Defendant JAMES KEMP RIBE, M.D., is now, and at all times relevant to this complaint was, a forensic pathologist employed by the Department of the Coroner, County of Los Angeles, whose residence is in Los Angeles County, California.

17.  Defendant THE HONORABLE GOVERNOR OF THE STATE OF CALIFORNIA, GRAY DAVIS, is now, and since in or about January of 1999 has been, the Governor of the State of California.  The Governor’s Office is located at Governor Gray Davis, State Capitol Building, Sacramento, CA 95814, Phone:  916-445-2841, Fax:  916-445-4633, and Email:  governor@governor.ca.gov.

18.  Defendant THE HONORABLE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, BILL LOCKYER, is now, and since in or about January of 1999 has been, the Attorney General of the State of California.  The Attorney General’s official address for public inquiries is Attorney General Bill Lockyer, California Department of Justice, Public Inquiry Unit, Post Office Box 944255, Sacramento, CA 94244-2550, Phone:  916-322-3360 or 800-952-5225.

19.  Defendant THE HONORABLE JUDGE JANICE CLAIRE CROFT is now, and at all times relevant to this complaint was, a Judge in the Superior Court of the County of Los Angeles, located in the City of Pasadena.

20.  Defendant GUY EDWARD O’BRIEN, ESQ., is now, and at all times relevant to this complaint was, an attorney licensed by the State of California, with principal residence and place of business in Los Angeles County, California.  Mr. O’Brien was appointed by the Superior Court of Los Angeles County, Pasadena Division, to represent complainant Patricia Inez Vildosola during her criminal trial on charges of murder, child abuse, et alia.

21.  Defendant RAYMOND SANTANA, ESQ., is now, and at all times relevant to this complaint was, an attorney licensed by the State of California, with principal residence and place of business in Los Angeles County, California.  Mr. Santana was appointed by the Superior Court of Los Angeles County, Pasadena Division, to represent complainant William Jacobo, Jr., during his criminal trial on charges of murder, child abuse, et alia.

22.  Defendant MICHAEL BRUSH, ESQ., is now, and at all times relevant to this complaint was, an attorney licensed by the State of California, with principal residence and place of business in Los Angeles County, California.  Mr. Brush acted as the appellate attorney of William Jacobo, Jr., during efforts to reverse Mr. Jacobo’s convictions.  Mr. Jacobo’s murder conviction was overturned, and he was released from prison.

23.  Defendant JULIANA DROUS, ESQ., is now, and at all times relevant to this complaint was, an attorney licensed by the State of California, with principal residence and place of business in San Francisco County, California (214 Duboce Avenue, San Francisco, CA 94103).  Ms. Drous acted as the appellate attorney of Patricia Vildosola, but her attempt to challenge Ms. Vildosola’s convictions was inadequate, negligent, and unsuccessful.

24.  Defendant RENE BILSON, ESQ., is now, and at all times mentioned in this complaint was, an attorney licensed by the State of California, with principal place of business at the Los Angeles County DCS in Los Angeles County, California, and with principal residence in Los Angeles County, California.  Ms. Bilson is the Chief Attorney at the Los Angeles DCS, and Ms. Romero’s supervisor.

25.  Defendant FRANK P. SHERIDAN, M.D., is now, and at all times relevant to this complaint was, the Chief Medical Examiner of San Bernardino County, and his principal place of residence is in San Bernardino County.

26.  Defendant NENITA RUBIO DUAZO, M.D., is now, and at all times relevant to this complaint was, a deputy coroner employed by San Bernardino County, residing in San Bernardino County, Los Angeles.

27.  Defendant THOMAS HSE-TUN LIN, M.D., is now, and at all times mentioned in this complaint was, a pediatrician licensed under the existing laws of the State of California, whose principal residence and place of business is in Los Angeles County, California.

28.  Defendant CHERI LEWIS, ESQ., is now, and at all times relevant to this complaint was, a Deputy District Attorney employed at the Family Violence Division of the Los Angeles District Attorney’s Office, residing in Los Angeles County, State of California.  Because the aforementioned Family Violence Division is affiliated with the DCS, Ms. Lewis was also employed by the DCS.  Ms. Lewis was the Prosecutor during the joint prosecution of Ms. Vildosola and Mr. Jacobo.  She was well-known by the defendants, defense attorneys, and some or all of the jurors because of her heavily-televised involvement in the murder trial of Orenthal Julius (“O. J.”) Simpson, where she was part of the prosecutorial team.

29.  Defendant AUGUSTINE VARGAS, ESQ., is now, and at all times relevant to this complaint was, an attorney licensed by the State of California, and a resident of Los Angeles County, California, with principal place of business at Los Angeles County Department of Children’s Services in Los Angeles County, California.  Mr. Vargas was appointed by the DCS to represent William Jacobo, Jr., with respect to his parental and custody rights.

30.  Defendant NATHANIEL HOFFMAN, ESQ., is now, and at all times relevant to this complaint was, an attorney licensed by the State of California, and a resident of Los Angeles County, California, with principal place of business at Los Angeles County Department of Children’s Services in Los Angeles County, California.  Mr. Hoffman was appointed by the DCS when Destiny was born to represent Esther Jacobo, the paternal grandmother of William Jacobo, Jr., on child custody and related matters.  Mr. Hoffman continued to provide counsel to Esther prior to and during her grandson’s and granddaughter-in-law’s criminal trials for murder, child abuse, et alia.

31.  Defendant LINDA NAKAMURA, ESQ., is now, and at all times relevant to this complaint was, an attorney licensed by the State of California, and a resident of Los Angeles County, California, with principal place of business at Los Angeles County Department of Children’s Services in Los Angeles County, California.  Ms. Nakamura was appointed by the DCS when Destiny was born to represent Patricia Vildosola in custody-related matters, and continues to correspond with Patricia on child custody issues.

32.  Defendant JOHN PATRICK RYAN, M.D., was, at all times relevant to this complaint, a pathologist licensed under the existing laws of the State of California, whose principal residence and place of business was in Los Angeles County, California.  Dr. Ryan currently resides in the State of Florida.

33.  Defendant TRICIA HIGA was, at all times relevant to this complaint, unless otherwise specified, a resident of Los Angeles County, California, and a social worker at the Los Angeles DCS, a governmental entity organized and existing under the laws of the State of California, with its principal place of business in Los Angeles County, California.  Ms. Higa is currently a resident of the State of Arizona.  Defendant Higa was terminated from employment by the Los Angeles County DCS on or about January 13, 1996, ostensibly as a direct consequence of her negligence, incompetence, and/or unprofessional conduct in her role as the social worker responsible for the decedent’s DCS case.  Ms. Higa’s supervisor, Henry Barbosa, was dismissed by the DCS simultaneously, and ostensibly for the same reasons as Ms. Higa.

34.  Defendant HENRY BARBOSA was, at all times relevant to this complaint, unless otherwise specified, a resident of Los Angeles County, California, and a social worker at the Los Angeles DCS, a governmental entity organized and existing under the laws of the State of California, with its principal place of business in Los Angeles County, California.  Mr. Barbosa was Tricia Higa’s supervisor and, as noted in ¶ 33, supra, he was terminated from employment along with Ms. Higa as a direct consequence of the controversy within the DCS generated by Destiny’s death.

35.  Defendant DANIEL GARZA, Jr., the husband of defendant Joanne Garza, was the foster father of the decedent during her first sixteen months of life, approximately, from in or about March 1994 through in or about July 1995.

36.  Defendant JOANNE GARZA was the foster mother of decedent during her first sixteen months of life, approximately, from in or about March 1994 through in or about July 1995.  The decedent was placed into the Garza home by the Los Angeles County DCS in or about March of 1994.  The Los Angeles County DCS returned Destiny to her natural mother, Patricia Inez Vildosola, in or about July of 1995.

37.  Defendants Joanne and Daniel Garza, Jr., are now, and at all times mentioned in this complaint were, residents of Los Angeles County, California.

38.  Plaintiffs do not know the true names and capacities of defendants sued herein as DOES 1 through 200, inclusive, and therefore sue these defendants by such fictitious names.  Plaintiffs are informed and believe, and on the basis of that information and belief allege, that each of those defendants was in some manner responsible, either purposefully, knowingly, recklessly, or negligently, and proximately, for events and happenings alleged in this complaint and for plaintiffs' damages.  Plaintiffs will amend this complaint to allege their true names and capacities when ascertained.

39.  Plaintiffs are informed and believe, and on the basis of that information and belief allege, that at all times mentioned in this complaint, the defendants, and each of them, were the agents, employees, affiliates, subsidiaries, associates or co-conspirators of each of the other codefendants, and in doing the acts complained of herein, were acting in the course and scope of said agency, employment, affiliation, association or conspiracy, and are thus each responsible in some manner for the acts, omissions, occurrences and liabilities set forth below.

 

GENERAL ALLEGATIONS

 

40.  When Destiny was born on March 29, 1994, the DCS erroneously believed that Ms. Vildosola was addicted to “crack” cocaine, and that Destiny was a cocaine addict.

41.  In actuality, Ms. Vildosola had snorted powder cocaine a few times prior to Destiny’s birth, but she was never addicted to cocaine, and did not use cocaine as “crack” or “rock,” or in any other form aside from snorted powder.  Furthermore, because Ms. Vildosola was an infrequent drug user, Destiny was born nonaddicted.  As evidence (see Exhibit 1 (“Receipt for Pneumogram”), Exhibit 2 (“Preliminary Report” (Pneumocardiogram Services)), and Exhibit 3 (“Discharge Summary” (Beverly Hospital, 309 West Beverly Boulevard, Montebello, CA 91640)), Destiny received a pulmonary examination (pneumocardiogram) on or about March 30-31, 1995, almost immediately after her birth.  The condition of her lungs was unremarkable, and she was placed on apnea monitoring only because she was born prematurely and as a precaution considering that a half-sister, Carissa Neria, died from Sudden Infant Death Syndrome (hereinafter “SIDS”).

42.  Nevertheless, as a consequence of the mistaken beliefs of DCS employees, Destiny was taken away from Ms. Vildosola and Mr. Jacobo shortly after her birth, in or about March of 1994, and placed in a foster facility owned by Joanne Garza and Daniel Garza, Jr.

43.  The Garzas ran a “foster mill,” with several foster children living simultaneously in their home, frequent arrivals and departures of children, and large numbers of children living at the Garza home at one time or another.  According to Ms. Garza, several children shared the Garza domicile with Destiny at any given time, several children left the domicile while Destiny was there, and several new children arrived during Destiny’s stay.  During a period of approximately three years, the Garzas had more than forty (40) children in their foster facility.

44.  The numerous children in the Garza residence was undoubtedly stressful to a newborn infant like Destiny.  Consequently, Destiny became prone to stress-related illnesses.

45.  Destiny repeatedly succumbed to sicknesses, including chronic bronchopneumonia, otitis media, and eye infections.  Her bronchitis and/or pneumonia caused a frequent, rasping cough, and chronic respiratory distress.

46.  Destiny was probably hereditarily predisposed to respiratory disease.  The deaths of two of her half-siblings were attributed to SIDS.  On her mother’s side of the family, a ten-month-old baby, Carissa Arlene Neria, was ruled by pathologist Nenita Duazo to have died from SIDS.  On her father’s side of the family, another half-sibling, Michelle Christine Jacobo, was also a SIDS victim.  Furthermore, she was predominantly of mestizo ancestry, and American Indian children have an incidence of respiratory-related mortality which is approximately four times greater than that of the general population.

47.  Destiny also was afflicted with bleeding and immunological infirmities.  She was so hematologically dyscrasic and coagulopathic that minor contusions could result in profuse hemorrhaging.  She was also immunodeficient, and consequently was chronically plagued by respiratory and ear infections.

48.  Dr. Lin did not treat Destiny efficaciously, and her respiratory and ear infections persisted.  For example, Dr. Lin misinterpreted Destiny’s chest X-Ray of May 12, 1995, finding her lungs to be normal and failing to identify the pleural congestion symptomatic of pneumonia or bronchitis.  At the time of her death on or about December 6, 1995, Destiny’s respiratory problems had intensified to such an extent that she stopped breathing.  Her lungs were so weakened by respiratory disease that they were prone to damage by even routine cardiopulmonary resuscitation (hereinafter “CPR”).

49.  Destiny was returned to her natural parents in or about July 1995, when she was aged sixteen months.  Destiny’s parents were never informed by Joanne Garza, Daniel Garza, Jr., Dr. Lin, Tricia Higa, Henry Barbosa, Cindy Romero, Linda Nakamura, Rene Bilson, or any representative of the DCS concerning Destiny’s health history.

50.  Destiny’s natural parents observed a few health problems, including:  (1) frequent temper tantrums; (2) opisthotonos, or staring into space while retaining a fixed posture; (3) falling flat on her face or side without using her arms to cushion against injury; (4) frequent, loud crying; and (5) intermittent bouts of coughing.

51.  Destiny was observed falling and injuring herself on many occasions, particularly as she learned to walk.  On at least two occasions, she was injured by striking her forehead or brow.  In one instance, Destiny fell and hit her forehead on the kitchen floor of the Jacobo home (i.e., 2037 Woods Ave., Monterey Park, CA 91754).  In another incident, which occurred on the day that Destiny died, she fell while walking and struck her forehead against a dresser.  Destiny was also frequently observed throwing temper tantrums, during which she repeatedly struck her head on a linoleum tile or carpeted floor.

52.  At least two individuals, Ernie Rodriguez and John Estrella, observed Billy Jacobo III tossing Destiny into the air, then attempting to catch her as she fell.  These observations were made in or about November and December of 1995.

53.  DCS employees found nothing wrong whatsoever with the quality of Destiny’s living conditions at the Jacobo home prior to Destiny’s death.  Destiny received greater care and nurturance from her natural parents than she ever received from the Garzas.

54.  When Ms. Vildosola first noticed that Destiny was not breathing, on the evening of December 5, 1995, she immediately called for help, and Mr. Jacobo and several other individuals promptly ran to the scene.  Destiny’s parents immediately drove her to the nearest hospital, Santa Marta, performing CPR along the way.  The CPR performed by Destiny’s parents, and by Gary Robert Hernandez, a certified lifeguard who was present at the Jacobo home throughout the evening of December 5, 1995, was properly administered, and caused no harm to Destiny.

55.  When Destiny entered the Emergency Room at Santa Marta Hospital, she came under the auspices of Joseph Dodridge Boggs, M.D., a physician whose medical license was suspended on November 27, 1995—just eight (8) days prior to his involvement with Destiny!

56.  Dr. Boggs also administered CPR to Destiny, but was too forceful or otherwise negligent.  Consequently, both of Destiny’s lungs were popped or burst—a condition known as pneumothorax.  Destiny died because Dr. Boggs did not properly treat the pneumothorax.  Instead, Boggs sought to hide his malpractice.  With the assistance of other Santa Marta Hospital employees, Boggs transferred Destiny nearly twenty miles away to Long Beach Memorial Medical Center (hereinafter “Long Beach Memorial Hospital” or “Long Beach Memorial”), located in Los Angeles County, California at 2801 Atlantic Avenue, Long Beach, CA 90806 (562) 933-2000, 1-800-636-6742, http://www.memorialcare.com/Long_Beach/About.cfm, a subsidiary of MemorialCare, Inc., located in Orange County, California (9900 Talbert Avenue, Fountain Valley, CA 92708 (714) 378-5580, http://www.memorialcare.com/about/core.cfm).  By shipping the dying baby Destiny to Long Beach, Boggs was also attempting to shift responsibility for Destiny’s fatal injuries away from Santa Marta Hospital.

57.  Because Boggs was trying to cover up his medical negligence, he inadequately apprized the ambulance workers and Long Beach Memorial Hospital about Destiny’s condition.

58.  As a result, Destiny continued to receive CPR on the way to Long Beach, and at Long Beach Memorial.  CPR can be fatally harmful to a patient with pneumothorax, and probably precipitated or caused Destiny’s death.

59.  When Destiny died, the DCS found itself in an embarrassing political position.  Newspaper reports libelously described Ms. Vildosola as a “drug abuser,” and Destiny as a “crack baby.”  The DCS was blamed for allowing Destiny to go back to her terrible birth parents.

60.  Lawyers for the DCS, particularly Cindy Romero and her supervisor, Rene Bilson, quickly acted to defuse the negative publicity.  Ignoring information unequivocally implicating the DCS in Destiny’s death, Ms. Romero sought to place all of the blame and responsibility for Destiny’s demise on the backs of her biological parents.

61.  Ms. Romero began her ill-motivated, mendacious and venal scheme by attacking Destiny’s Great-Grandmother, Esther Jacobo, an octogenarian, blaming Esther for Destiny’s death, and threatening to make her criminally liable unless she informed on Destiny’s parents—i.e., her grandson William Jacobo, Jr., and his common-law spouse, Ms. Vildosola.  Likewise, Nathaniel Hoffman, acting as both Esther’s lawyer and a DCS employee, encouraged Esther to testify against her grandson and granddaughter-in-law.  Further still, Cheri Lewis used the threat of criminal prosecution and the offer of immunity as bargaining ploys to induce Esther to bear false witness against Mr. Jacobo and Ms. Vildosola.

62.  Mr. Jacobo and Ms. Vildosola lived with their children in the home of Esther Jacobo from in or about September of 1992 until the time of their imprisonment in or about December 1995.

63.  While residing at the Jacobo home, Ms. Vildosola was often in conflict with Esther over the control of household finances, particularly expenditures for the care, maintenance, and benefit of the children of Mr. Jacobo and Ms. Vildosola.

64.  As a result, Esther Jacobo was antipathetic toward Ms. Vildosola, and was inclined to impugn Ms. Vildosola’s character and maternal behavior.  Thus, during the first few days or weeks following Destiny’s death, Esther may have tendentiously mischaracterized Destiny’s domestic circumstances and parental support during the months prior to her demise.

65.  Esther Jacobo was nearly eighty years old in December of 1995.  Because of her age and limited formal education, as well as the stress and grief which she suffered following Destiny’s death, Esther was easily manipulated during investigative interviews by police and DCS attorneys into prevaricating against Ms. Vildosola.  Esther’s pre-trial statements were critically important to the indictment and prosecution of Ms. Vildosola and Mr. Jacobo.  However, when Esther testified at the trial of Ms. Vildosola and Mr. Jacobo, she denied making all or most of the purported pre-trial statements derogatory toward Ms. Vildosola.  Therefore, many of the alleged pre-trial statements of Esther Jacobo may be falsely characterized or fabricated.

66.  Four lawyers were provided to the Jacobos and Ms. Vildosola by the DCS, ostensibly to assist in their defense:  (1) Cindy Romero, who represented some of the Jacobo children, including Marina Neria, Daniel Jacobo, Nicole Jacobo, and Destiny Jacobo; (2) Linda Nakamura, who represented Ms. Vildosola; (3) Augustine Vargas, who represented Mr. Jacobo; and (4) Nathaniel Hoffman, who represented Esther Jacobo.  All of these attorneys had serious conflicts of interest, since each also had an allegiance to their employer, the defendant DCS.  Consequently, these attorneys functioned, either purposefully or inadvertently, as inquisitors and informants for the DCS.

67.  As a result, in part, of the information gleaned from the Jacobos and Vildosolas by Attorneys Romero, Vargas, Hoffman, and Nakamura, Ms. Vildosola and Mr. Jacobo were indicted for, inter alia, murder, child abuse and endangerment, and torture.

68.  Not surprisingly, DCS attorneys Vargas and Nakamura were not retained by defendants Jacobo and Vildosola during their criminal trial.  Instead, the court appointed Guy O’Brien to represent Ms. Vildosola, and Raymond Santana to represent Mr. Jacobo.

69.  The performances of Messrs. O’Brien and Santana were so poor that Ms. Vildosola and Mr. Jacobo were denied their constitutional due process rights to effective assistance of counsel.  O’Brien and Santana did very little independent investigation, and had negligible understanding of the medical issues related to Destiny’s death.

70.  For example, neither O’Brien nor Santana investigated or pursued evidence that, inter alia:

(1) Billy Jacobo III abused Destiny;

(2) Dr. Boggs caused Destiny’s pneumothorax;

(3) CPR can cause pneumothorax, retinal bleeding, and subarachnoid hemorrhages;

(4) pneumothorax is inevitably fatal unless promptly and effectively treated;

(5) Destiny was coagulopathic and prone to bleed profusely;

(6) Destiny was immunodeficient;

(7) Destiny was suffering from pneumonia and/or bronchitis at the time of her death;

(8) Destiny was infected with meningitis at the time of her death;

(9) no Shaken Baby Syndrome (hereinafter “SBS”) fatality has ever occurred in the absence of subdural hematomas;

(10) Neither Ms. Vildosola nor Destiny were ever addicted to cocaine;

(11) Boggs had a suspended medical license when he treated Destiny on or about December 5th-6th, 1995;

(12) Boggs had a history of alcohol abuse, including a drunken driving conviction;

(14) Boggs has been sued many times for medical malpractice;

(15) Boggs transferred Destiny to Long Beach Memorial Hospital in order to escape responsibility for Destiny’s death;

(16) Boggs disappeared shortly after Destiny’s death;

(17) Dr. Lin misdiagnosed and mistreated Destiny, and misread a chest X-ray of Destiny;

(18) the Garzas discontinued apnea monitoring of Destiny for financial reasons;

(19) the DCS, the Garzas, and Dr. Lin all failed to inform Ms. Vildosola and Mr. Jacobo about Destiny’s medical history, particularly her chronic respiratory distress and otitis media;

(20) Destiny had two siblings who died during infancy from respiratory disorders;

(21) children of mestizo ancestry have a much higher than average incidence of respiratory-related deaths;

(22) Carissa Neria’s autopsy was fraudulently revised in order to facilitate the prosecution of Ms. Vildosola;

(23) the DCS fired Tricia Higa and Henry Barbosa in order to divert public attention from the DCS’ role in Destiny’s death;

(24) Dr. Ribe lost or misplaced Destiny’s brain tissue purportedly corresponding to the critically important contre-coup injury; and

(25) the Shaken Baby Syndrome concept, as well as Ribe’s contre-coup contusion theory, are of dubious validity.

71.  As soon as Destiny’s death was erroneously tied to SBS, the San Bernardino County Medical Examiner, Frank Sheridan, was asked by the Los Angeles County Coroner to reexamine the January 22, 1991, autopsy of Carissa Neria by Nenita R. Duazo, M.D.  Carissa’s dishonestly transmogrified autopsy was dated January 23, 1996—more than five years after Carissa’s burial!  The corruptly transmuted autopsy was “performed” by Dr. Sheridan, and Dr. Duazo was relegated to the role of a mere signatory complying with the will of her boss.

72.  Deputy District Attorney Cheri Lewis, in collusion with the Family Violence Division of the Los Angeles District Attorney’s Office, other individuals or entities within the Los Angeles District Attorney’s Office, individuals or entities within the Los Angeles DCS, the Los Angeles Police Department, the Los Angeles and San Bernardino Coroner’s Office, Dr. Boggs, Dr. Ribe, and/or other individuals or entities to be named later, committed prosecutorial misconduct throughout the trial of Ms. Vildosola and Mr. Jacobo, including acts or omissions of:  (A) conspiracy, (B) obstruction of justice, (C) jury confusion, (D) jury tainting, (E) exclusion of exculpatory evidence, (F) vouching, (G) attacking the credibility of witnesses, and (H) personally attacking the defendants, as presented below in ¶¶ 73-102:

 

(A) Conspiracy

 

73.  Plaintiffs are informed and believe, and thereon allege, that the prosecution, including but not necessarily limited to Deputy District Attorney Cheri Lewis and the Family Violence Division of the Los Angeles District Attorney’s Office, where Ms. Lewis is employed, committed at least seven conspiratorial acts, all of which may or may not have been part of a common conspiracy to secure the convictions of Ms. Vildosola and Mr. Jacobo, and to protect governmental entities associated with child welfare from liability:

(1) arranging with the San Bernardino Coroner’s office to fraudulently transform Carissa Neria’s autopsy, in order to facilitate the prosecution of Ms. Vildosola for the abuse and murder of Destiny, and indirectly strengthen the prosecution of Mr. Jacobo, despite his absolute noninvolvement with Carissa;

(2) aiding and abetting the concealment or destruction of the occipital lobe fragment ostensibly showing a contre coup brain injury on Destiny, in collaboration with Dr. Ribe;

(3) aiding and abetting the hiding and nonappearance of Dr. Boggs, the negligent Santa Marta Hospital physician whose excessive CPR caused the pneumothorax from which Destiny died, and who was at the very top of the list of prosecution witnesses;

(4) aiding and betting in the nonappearance of Dr. Zacharia Yehya Reda, the Long Beach Memorial Hospital pediatrician who treated Destiny for bilateral pneumothorax, acute respiratory distress syndrome, and cardiogenic shock;

(5) collaborating with the Los Angeles Department of Children’s Services and Cindy Romero in concealing evidence of sexual and physical abuse perpetrated against Destiny by Billy Jacobo III;

(6) hiding evidence of abuse by Daniel and Joanne Garza, Destiny’s foster parents during her first sixteen months of life, in collaboration with the Los Angeles Department of Children’s Services and Cindy Romero; and

(7) blaming Esther Jacobo for some or all of Destiny’s abuse, in collaboration with the Los Angeles Department of Children’s Services, Cindy Romero, and Los Angeles County Sheriff’s Department Homicide Detectives Robert Tauson and Paul Delhauer (both of whom were Coroner’s Investigators during 1995-1996), in order to coerce Esther, an octogenarian who disliked Ms. Vildosola, into testifying against her granddaughter-in-law.

The seven conspiratorial actions or omissions enumerated above are not meant to be an exhaustive list, and the plaintiffs reserve the right to supplement this list at time of trial, or earlier.

74.  Plaintiffs are informed and believe, and thereon allege, that in perpetrating such conspiratorial acts as those described in ¶¶ 71-73, supra, Prosecutor Lewis acted outside the scope of her authority and beyond the bounds of her qualified immunity, because she conspired with witnesses (including Boggs and Reda), DCS employees (including Cynthia Romero), and governmental representatives (including the Los Angeles and/or San Bernardino Coroners) to predetermine the outcome of the Jacobo-Vildosola prosecution.

 

(B) OBSTRUCTION OF JUSTICE

 

75.  Plaintiffs are informed and believe, and thereon allege, that Prosecutor Lewis, in collaboration with other parties described in ¶¶ 71-73, supra, obstructed justice by secluding or not calling witnesses whom she knew would provide exculpatory testimony, including, inter alia:

(1)  Dr. Joseph Dodridge Boggs,

(2)  Dr. Zacharia Yehya Reda,

(3)  Dr. Hideo Henry Itabashi,

(4)  Ernie Rodriguez,

(5)  Henry Diaz,

(6)  Raymond Saucedo,

(7)  Eric Klimek,

(8)  Michael William Jacobo,

(9)  John Estrella,

(10) Jimmy Sanchez, and

(11) Gloria Rodriguez Jacobo.

Each of these witnesses would have provided exculpatory evidence, as follows:

76.  (1) Dr. Joseph Boggs killed Destiny by providing negligent medical services.  Boggs’ California medical license was suspended on or about November 27, 1995--just a few days before he killed Destiny.  A few years earlier, in or about 1991, he was convicted of driving while intoxicated.  Although Boggs was the very first name on the prosecution’s witness list, Lewis encouraged Boggs to disappear and hide during the trial.  Boggs absconded from Santa Marta Hospital on the heels of Destiny’s death, and Ms. Lewis claimed in court that Boggs could not be found.

77.  (2) After Boggs funneled Destiny nearly twenty miles away from Santa Marta Hospital, to Long Beach Memorial, despite her critical condition, Destiny was treated by Dr. Zacharia Reda for pneumothorax, acute respiratory distress syndrome (ARDS), and cardiogenic shock.  Reda noted that Destiny had subarachnoid hemorrhaging (not symptomatic of SBS or BCS) and renal dysfunction.  If he had testified, Reda would have attributed Destiny’s death to ARDS, precipitated by pneumothorax and pneumonia, contradicting Lewis’ premise that Destiny died of SBS.  To avoid such a revelation, Lewis told the jury that Reda’s testimony would be a waste of time, and that Reda should not be inconvenienced by a trip all the way from Long Beach to the court (actually a comparable trip to the one taken by Destiny as she lay dying on the night of December 5-6, 1995).

78.  (3) Dr. Hideo H. Itabashi was the senior consulting neuropathologist whom Ribe provided with Destiny’s brain tissue during the autopsy.  He never saw the ostensible contre coup material, and did not diagnose SBS as the cause of Destiny’s death.  He merely advised Ribe to “rule out child abuse.”  Because the contre coup material was kept from him, despite its crucial importance to the SBS diagnosis, his testimony might have destroyed the SBS house of cards fabricated by Ribe and Lewis, so he was never called to testify.

79.  Messrs. Ernie Rodriguez, Henry Diaz, Raymond Saucedo, and Eric Klimek were all on the prosecution’s witness list, and came to court several times, expecting to be called to testify, but were never allowed to take the stand.  All of these individuals were eyewitnesses to the events of December 5, 1995 (Destiny’s death) or January 21, 1991 (Carissa Neria’s death), and each would have provided exculpatory testimony:

(4) Mr. Rodriguez told the investigating detectives, Ms. Lewis, and Attorneys O’Brien and Santana that he observed Little Billy (Billy III) alone with Destiny in the back bedroom of Esther Jacobo’s home throwing Destiny into the air.  His statement was memorialized in a Police Supplementary Report;

(5) Mr. Diaz worked throughout the day of December 5, 1995, just outside the open door of the back bedroom of Esther Jacobo’s house, where Destiny slept, and he never saw or heard any abuse of Destiny;

(6) Mr. Saucedo was also working at Esther Jacobo’s home during the afternoon and evening of December 5, 1995, and never heard nor saw any abuse of Destiny; and

(7) Mr. Klimek, the boyfriend of Ms. Vildosola’s mother Frances, was present at Ms. Vildosola’s grandmother’s house during the night of January 21, 1991, when Carissa Neria died, and neither heard nor saw any abuse.

80.  (8) Michael William Jacobo witnessed Billy III sneaking to “play” with Destiny, saw Billy III abusing Anthony Jacobo, and was himself abused by Billy III.

81.  (9) John Estrella also saw Billy III throwing Destiny into the air on a different day and occasion from Ernie Rodriguez’s sighting.

82.  (10) Jimmy Sanchez, Billy III’s stepfather, might have destroyed Billy III’s credibility, because he was arrested for sexually molesting Michael William and Anthony Jacobo based on Billy III’s false allegations, then released when the children came forward and declared that they were actually abused by Billy III.

83.  (11) Gloria Rodriguez Jacobo, Little Billy’s mother, would have explained that Billy III was removed from her home because he repeatedly sexually and physically abused his siblings.

84.  The plaintiffs are informed and believe, and thereon allege, that just as Billy III lied about his stepfather, Billy III likewise lied on the stand in the trial against his stepmother, Ms. Vildosola.

85.  Billy III threatened his siblings, admonishing them to keep quiet, and that harm would come to Ms. Vildosola if they reported being sexually or physically abused.  The plaintiffs are informed and believe, and thereon allege, that Billy III carried out his threat by testifying against Ms. Vildosola during her criminal trial, thereby increasing her likelihood of being wrongfully convicted.

86.  Prosecutor Lewis knew that if Boggs, Reda, Itabashi, Rodriguez, Diaz, Saucedo, Klimek, Michael Jacobo, Estrella, or Sanchez testified, any one of them would at least establish reasonable doubt as to Ms. Vildosola’s guilt.  Lewis was aware that:

(1) Boggs and Reda would reveal evidence of Destiny’s pneumothorax;

(2) Rodriguez, Estrella, and Michael Jacobo would testify that Billy III abused Destiny;

(3) Diaz and Saucedo would confirm that Destiny was not abused on December 5, 1995;

(4) Sanchez and Michael Jacobo would have damaged Billy III’s credibility; and

(5) Klimek would establish that Carissa was not abused, and

that the testimony of all of these witnesses would be exculpatory.

87.  Moreover, Messrs. Diaz and Estrella were intimidated by the police to discourage their testimony.

 

(C) JURY CONFUSION

 

88.  Plaintiffs are informed and believe, and thereon allege, that Prosecutor Lewis used evidence with more prejudicial impact than probative value in order to illicitly confuse jurors, so that the jury would convict Ms. Vildosola and Mr. Jacobo based upon irrelevant, inflammatory, and prejudicial evidence.

89.  For example, Ms. Lewis was permitted, over the repeated objections of defense counsel, to introduce the autopsy report of Carissa Arlene Neria, a baby of Ms. Vildosola’s, but unrelated to Mr. Jacobo, who met Ms. Vildosola long after Carissa’s death.  Carissa’s autopsy was completed by Nenita R. Duazo, M.D., on January 22, 1991—about five years prior to Destiny’s death.  However, after Destiny was errantly diagnosed to be a victim of SBS, Carissa’s autopsy was rewritten by Frank Sheridan, the San Bernardino County Coroner, to indicate that Carissa also died of SBS.  Dr. Duazo was not involved in the autopsy revision, other than affixing her signature under orders from Dr. Sheridan, her boss.  The purpose for introducing Carissa’s transmogrified autopsy was limited to proving whether, based upon her behavior at the time of Carissa’s death, Ms. Vildosola had knowledge of the danger to and conscious disregard for human life, and that recurrence of such behavior killed Destiny.

Plaintiffs are informed and believe, and thereon allege, that Lewis wantonly disregarded those strictures, exploiting Carissa’s autopsy material unrestrictedly, including, inter alia:

(1) Accusing Ms. Vildosola of murdering Carissa;

(2) Asking the jury to punish Ms. Vildosola for Carissa’s murder; and

(3) Muddling the jury’s minds as to the appropriate use of Carissa’s autopsy record, thereby deluding the jurors.

90.  Lewis explicitly asked the jury panel to condemn Ms. Vildosola for Carissa’s death.  Lewis argued that Ms. Vildosola murdered both Carissa and Destiny, and that she needed to be punished for killing Carissa.  Below are six (6) direct quotations from Cheri Lewis directed to the jury during the Vildosola-Jacobo criminal trial:

 

(1) “After the second baby died she finally got caught, and she is finally being held accountable for her actions with regard to Destiny.”

 

(2) “She didn’t care what was happening to Carissa any more than she cared what was happening to Destiny.”

 

(3) “[T]hat prior child abuse and murder of Carissa is of the same type as [Destiny’s.]”

 

(4) “[S]he did commit murder of the prior baby.

 

(5) “The baby [Carissa] had already been murdered before … the Emergency Medical Technician got there on January 21st[, 1991].”

 

(6) “Vildosola got away with murder on that baby [Carissa], and I hope she does not get away with murdering this one.”

 

The quotations above are not intended to represent an exhaustive list, and plaintiffs reserved the right to introduce additional examples before or during trial.

91.  Ms. Vildosola was never charged with any crime or offense in connection with Carissa’s death.

92.  Plaintiffs are informed and believe, and thereon allege, that because the jurors were confused as to the purpose for which information about Carissa was admitted, they naturally used that information for its most impermissible purpose—to condemn Ms. Vildosola for Carissa’s death.

 

(D) JURY TAINTING

 

93.  The Plaintiffs are informed and believe, and thereon allege, that Prosecutor Lewis used the information about Carissa not for its intended limited purpose, but to unmitigatedly smear Ms. Vildosola.  By, inter alia, repeatedly requesting that the jury punish Ms. Vildosola for Carissa Neria’s death, and declaring that Carissa was murdered by Ms. Vildosola (see, e.g., quotations of Ms. Lewis in ¶ 90, supra), Prosecutor Lewis tainted the jury, fomenting the jurors to return a guilty verdict against Ms. Vildosola based, at least in part if not entirely, on Ms. Vildosola’s unindicted association with Carissa’s demise.

 

(E) Exclusion of Exculpatory Evidence

 

94.  Plaintiffs are informed and believe, and thereon allege, that Prosecutor Lewis deliberately and maliciously excluded exculpatory evidence by, inter alia:

(1) Not proffering the “missing piece” of Destiny’s occipital lobe which Dr. Ribe testified to be evidence of a contre coup blunt force injury related to SBS.  Considering that Destiny had no subdural hematomas, a universal finding in SBS victims, the prosecution needed evidence that Destiny was physically abused.  Since no such evidence exists, and there was no evidence of a coup injury, Ms. Lewis and Dr. Ribe had to pin all of their hopes on the brain material excised—ostensibly inadvertently—by Ribe.  To win a conviction, Lewis and Ribe introduced testimony about the missing material, but concealed it from the defendants, the court, and the jury.

(2) Aiding, abetting, or otherwise assisting in the disappearance and/or nonappearance of at least three exculpatory medical witnesses (see ¶¶ 76-78, supra), and intentionally excluding at least ten exculpatory lay witnesses (see ¶¶ 79-83, supra).  The most egregious example is Dr. Joseph Boggs of Sta. Marta Hosp., who killed Destiny by bursting her lungs while performing CPR, causing pneumothorax, and then stealthily covered up his wrongdoing.

(3) The prosecution also failed or refused to consider mountainous exculpatory medical evidence.  For instance, autopsy findings strongly suggest that pneumothorax, aggressive CPR, pneumonia, bronchitis, meningitis, blood dyscrasias, self-inflicted (paroxysmal) wounds, accidental injuries, and/or congenital defects caused Destiny’s death.  Yet Cheri Lewis relentlessly and exclusively pursued a dubious SBS theory.

(4) Concealing, destroying, misplacing, or otherwise failing to proffer at least nineteen (19) of 33 photographs taken during the autopsy of Carissa Neria, all of which purportedly disappeared before the Vildosola-Jacobo trial.  Consequently, only fourteen (14) photographs were introduced at trial.  The missing photographs would have shown that Carissa had no bruises, nor any other signs of physical abuse.  If the prosecution had not concealed or destroyed the missing photographs, Carissa’s autopsy would probably have been excluded from evidence, and Ms. Vildosola would have been exculpated.

(5) Concealing, destroying, misplacing, or otherwise failing to proffer at least eighteen (18) photographs of Destiny, ten (10) of which were taken by the Monterey Park Police Department, and eight (8) of which were taken at Santa Marta Hospital.  Only three 35 mm. photographs from Long Beach Memorial Hospital were introduced at trial.  The many missing snapshots would have shown that immediately prior to hospitalization, Destiny had negligible bruising, and no needle marks.  When Judge Croft asked during the Vildosola-Jacobo trial whether any photographs were from Santa Marta, Lewis replied, “I don’t know.”  Asked where the proffered photographs were taken, Police Officer Otremba also responded, “I don’t know.”  The missing photographs would have exculpated Ms. Vildosola insofar as the bleeding, bruising, and needle punctures are concerned.

95.  The prosecution contended that nineteen (19) nontherapeutic needle notches were found during Destiny’s autopsy.  Yet Officer Otremba, who was with Destiny shortly after she arrived at Santa Marta Hospital, saw no needle marks.  Likewise, no needle marks or puncture wounds were noted by the hospital staffs of either Santa Marta or Long Beach Memorial Hospitals.  Furthermore, Ribe failed to interview any hospital personnel to determine which needle incisions were therapeutic or nontherapeutic, and made no test to aid in distinguishing therapeutic from nontherapeutic needle marks.  If the eighteen (or more) missing photographs had been available, the defendants would have successfully argued that the needle marks were the result of injections made by hospital personnel during desperate, failed efforts to revive Destiny.

96.  The missing photographs would also have been exculpatory with respect to Destiny’s bruising.  They would have revealed that Destiny’s bruising was not caused by her parents, but by “violent” CPR administered during her hospitalizations at Santa Marta and Long Beach Memorial Hospitals, exacerbated by her bleeding disorder.

97.  The prosecution systematically excluded all exculpatory photographs, and all other exculpatory evidence, in order to maintain their fallacious theory that Destiny was a victim of SBS.

 

(F) Vouching

 

98.  Plaintiffs are informed and believe, and thereon allege, that Prosecutor Lewis insidiously, injudiciously, and maliciously attacked the veracity of any and all testimony unfavorable to her SBS prosecution, while systematically vouching for the credibility of any and all testimony supporting her errant SBS prosecution.  Ms. Lewis, during the Vildosola-Jacobo criminal trial, made the following personal comments, inter alia:

 

 

 

 

(1) Vouching for Dr. Ribe:

 

“[H]is opinion is the expert opinion that you should trust and rely on with regard to how Destiny died ….

 

(2) Vouching for Little Billy:

 

(a) “[Little Billy] even said at one point that he was being careful to be truthful, because he didn’t want to lie.”

 

(b) “[Billy’s] credibility … ended up being corroborated … by Dr. Elliott, the psychologist, who also found him very credible when she interviewed him.”

 

(3) Vouching for Psychologist Diane Elliott:

 

(a) “[Dr. Elliott’s] opinion … of little Billy’s credibility is that he was very insightful and observant.”

 

(b) “Dr. Elliott’s opinion [of] this little boy, Billy, … is that he was very thoughtful and insightful.

 

(c) “[I]n evidence is a copy of [Dr. Elliott’s] resume vitae [sic], … detailing all of her credible [sic] experience.”

 

(4) Vouching for Marina Neria:

 

Marina “was pretty straightforward when she testified.”

 

(5) Vouching for Detective Otremba:

 

“[Officer Otremba] was obviously a credible witness ….” “He was honest ….

 

(G) Personal Attacks on Credibility

 

99.  Ms. Lewis personally attacked the credibility of testimony unfavorable to her SBS prosecution, even when evoked from prosecution witnesses, such as that of Marina Neria and Nenita R. Duazo.  To discount Dr. Duazo’s 1991 autopsy of Carissa Neria, Lewis described Nenita Duazo, M.D., as a:

 

“… junior pathologist.”

 

100.  Although Ms. Lewis vouched for the credibility of those portions of Marina Neria’s testimony that supported the prosecution, Lewis contradicted herself when decrying testimony by Marina which was sympathetic to the defense:

 

“[Marina] was protective of her mother.”

 

Marina was not totally candid.”

 

101.  Lewis’ most stridently personal attacks on credibility, however, were reserved for defense witnesses.  For example, Dr. John Patrick Ryan, a general pathologist, was the only expert witness for the defense.  Lewis told the jury that they should take Dr. Ryan’s opinions and: 

 

“throw [sic] out the window.”

 

Lewis referred to Dr. Ryan’s opinion as:

 

“worth less than the paper it was written on ….

 

Twice, Lewis remarked that Dr. Ryan:

 

“doesn’t know what he is talking about… .”

 

(H) AD HOMINEM ATTACKS ON DEFENDANTS

 

102.  Prosecutor Lewis also went too far in impugning the defendants.  Among the remarks by Lewis assailing the defendants in the courtroom were the following:

 

(1) Lewis repeatedly called Vildosola and Jacobo “idiots” and “stupid.

 

(2) Lewis described Vildosola as “lying through her teeth” (Court Reporter’s Trail Transcript (hereinafterRT”) 2087 Line (hereinafter “L”) 23).

 

(3) Lewis errantly suggested that according to Ms. Vildosola, Destiny “committed suicide.  If you believe that, if you buy that, there is this island off California called Catalina I will sell to any of you for 100 bucks.”

 

(4) Lewis said of Vildosola:  “I can’t argue to you that she was faking the crying….  [T]hose were tears of not remorse over killing either of those two babies, but the fact that she has now been caught.”

 

(5) Prosecutor Lewis rebuked Ms. Vildosola with “[W]e know she didn’t care.  She didn’t give a darn about that baby, about Destiny.  She didn’t care about that baby just like she didn’t care about Carissa Neria.”

 

The list of quotations above is by no means meant to be exhaustive.  Plaintiffs hereby reserve the right to present additional examples before or during trial.

103.  Prosecution witness James Ribe, M.D., a zealous proponent of the SBS theory, testified that Destiny was killed by SBS, despite his knowledge that:

(1) Every one of the many microscopic slides of Destiny’s lungs, bronchioles, and bronchi patently demonstrated that she suffered from virulent pneumonia;

(2) Destiny had no subdural bleeding, yet SBS fatalities invariably have subdural hematomas;

(3) Destiny was rendered pneumothoracic at Santa Marta Hospital by Dr. Boggs;

(4) Destiny received excessive CPR;

(5) Consulting neuropathologist Hideo Henry Itabashi, M.D., was doubtful that SBS was the cause of Destiny’s death;

(6) Destiny’s physical contusions were all attributable to normal injuries of children learning to walk or throwing temper tantrums; and

(7) Destiny was coagulopathic and immunodeficient.

104.  Dr. Ribe believed that blunt force trauma was integral to Destiny’s death.  Yet Ribe could find no injury to Destiny’s head caused directly by the impact—i.e., there was no coup injury.

105.  Ribe was permitted to testify that there was a contusion on the side of Destiny’s head directly opposite to the site of the blunt force impact—a so-called contre coup injury.  Yet the prosecution did not produce the contre coup brain tissue, which was apparently concealed, misplaced, lost, or deliberately destroyed by Ribe.

106.  Attorneys O’Brien and Santana did not diligently assist Ms. Vildosola and Mr. Jacobo.  To the contrary, they conspired to insure their conviction.  Mr. Santana admitted the existence of said conspiracy to, inter alia, William Jacobo, Jr.; Father George, the Chaplain at the Los Angeles County Jail; and Deputy Sheriff Pete Cruz.

107.  O’Brien, Ms. Vildosola’s attorney, described his client as a bad mother:

 

“It is obvious [that Ms. Vildosola] wasn’t an excellent mother.”

 

“[T]his is a woman who failed to do many things that good parents should do.”

 

“She was a lousy mother … and, frankly, could have cared less.”

 

“She wasn’t a good mother in many ways.”

 

108.  O’Brien also characterized Ms. Vildosola as negligent, inattentive, and distracted.

 

“I think she was negligent … inattentive … distracted… .”

 

109.  Most outrageously, O’Brien declared that Ms. Vildosola was guilty, and should not be acquitted on all charges:

 

I can’t tell you … that my client should be acquitted on all charges.”

 

O’Brien suggested that Ms. Vildosola should be charged with Manslaughter:

 

“[C]ould characterize a charge of manslaughter or …, as I say, … involuntary manslaughter.

 

110.  The plaintiffs are informed and believe, and thereon allege, that during the Vildosola-Jacobo trial, defense counsel O’Brien and Santana negligently failed to call the following witnesses, all of whom would have provided exculpatory evidence:

(1) Joseph Dodridge Boggs, M.D., who killed Destiny by “popping” her lungs then covering up his misdeeds;

(2) Zacharia Yehya Reda, M.D., of Long Beach Memorial Hospital, the last pediatrician to treat Destiny, who would have testified that the cause of Destiny’s death was acute respiratory distress syndrome (hereinafter “ARDS”), exacerbated by pneumonia and pneumothorax;

(3) Hideo Henry Itabashi, M.D., the neuropathology expert who contradicted forensic pathologist Ribe’s findings and testimony;

(4) Donald Clarence Boger, M.D., the radiologic consultant for Destiny’s autopsy, who would have revealed that there were no injuries or fractures as would be found in a battered child (“The whole body film demonstrates no visible fractures or other changes to suggest child abuse.  The anterioposterior and lateral views of native skull appeared normal.”) (see Exhibit 4);

(5) Narsing Adupa Rao, M.D., the ophthalmalogical consultant for Destiny’s autopsy, who would have refuted any contention that Destiny had the telltale retinal hemorrhages of SBS (“Stains for iron are negative for both eyes and the optic nerves.”) (see Exhibit 5);

(6) Henry Diaz, who was about ten feet away from Destiny during most of the day of December 5, 1995, and never saw or heard any abuse of Destiny, and who was intimidated by police to discourage him from testifying;

(7) John Estrella, who directly observed Billy III throwing Destiny into the air in the back bedroom of Esther Jacobo’s domicile, and who also was frightened by the police;

(8) Ernie Rodriguez, who witnessed Billy III tossing Destiny into the air on another occasion, also in Esther Jacobo’s back bedroom, and told this information to the investigating detectives, Prosecutor Lewis, and Messrs. O’Brien and Santana;

(9) Jimmy Sanchez, who was accused of sexually molesting Michael and Anthony Jacobo, until the Jacobo children told DCS that Billy III was the molester;

(10) Ray Saucedo, who was at the Jacobo home on December 5, 1995, and never heard nor saw any abuse of Destiny;

(11) Michael William Jacobo, who witnessed Billy III sneaking to “play” with Destiny, who saw Billy III abusing Anthony Jacobo, and who was himself abused by Billy III;

(12) Eric Klimek, the boyfriend of Ms. Vildosola’s mother Frances, who was present at Ms. Vildosola’s grandmother’s house during the night of January 21, 1991, when Carissa Neria died, and neither heard nor saw any abuse; and

(13) Gloria Rodriguez Jacobo, Little Billy’s mother, who could have explained why Billy III was removed from her home.

The above list is not intended to be exhaustive, and the plaintiffs are informed of and believe, and thereon allege, that many other individuals could have provided new and/or exculpatory evidence.

111.  Plaintiffs are informed and believe, and thereon allege, that but for the legal malpractice and negligence of their defense counsel, including, inter alia, Messrs. O’Brien and Santana, they would not have been unjustly convicted of criminal charges, in light of their complete innocence.

112.  Additionally, Plaintiffs are informed and believe, and thereon allege, that they would not have been unjustly criminally convicted but for Cheri Lewis’ overzealous tactics and extensive prosecutorial misconduct, including, inter alia:

(1) Conspiring to, inter alia, transmute the autopsy of Carissa Neria;

(2) Misusing highly prejudicial, inflammatory evidence lacking probative value;

(3) Ignoring, concealing, or destroying exculpatory evidence;

(4) Hiding or refusing to call exculpatory witnesses;

(5) Vouching for the credibility of prosecution witnesses;

(6) Attacking the credibility of defense witnesses, particularly the only expert witness for the defense, John P. Ryan; and

(7) Personally denigrating and rebuking the defendants.

The prosecution of Ms. Vildosola and Mr. Jacobo was biased, malicious, and tainted by flagrant misuse of highly prejudicial evidence.

113.  SBS is not a generally recognized medical syndrome, for the following reasons, inter alia:

(1) Its many alternative designations, including “shaken-impact syndrome,” “shaken infant syndrome,” “whiplash-shaken child syndrome,” ““shaken infant whiplash syndrome,” “whiplash shaken infant syndrome,” “whiplash shaken baby syndrome,” “whiplash/shaken baby syndrome,” “whiplash shaking infant syndrome,” “shaken baby impact syndrome,” “shaken impact baby syndrome,” “shaken impact syndrome,” “shaken and impact syndrome,” “shaken/impact syndrome,” “shaken impact/shaken baby syndrome,” “shaken and impact syndrome,” “chronic shaken impact baby syndrome,” “shaken child/infant syndrome,” and “shaken child syndrome,” cannot be attributed to any uniformly recognized condition with a specific nomenclature.

(2) Its symptomatology is not uniformly recognized.  For example, there appears to be general recognition that subdural hematomas are always found in SBS fatalities.  Yet Destiny had no subdural bleeding.  Nevertheless, Ms. Vildosola and Mr. Jacobo were prosecuted for killing Destiny via SBS, and convicted.

(3) No protocol is generally recognized by the medical community for the diagnosis of SBS.

(4) No organized governmental body, such as a Child Death Review Committee, has been granted authority to oversee or review all alleged SBS fatalities.

(5) No scientific study has ever demonstrated:

(a) The existence of SBS;

(b) The parameters of physical force, acceleration, deceleration, or velocity necessary to produce any purported SBS symptom;

(c) The relationship between the “shaking” and blunt force trauma in the etiology of SBS, if any; or

(d) That the symptoms of SBS cannot be attributed to other medical phenomena, such as aggressive CPR, bleeding disorders, accidental falls while learning to walk, paroxysmal head-banging, meningitis, or hereditary predisposition.

114.  At the end of their trial, both Ms. Vildosola and Mr. Jacobo were sentenced to prison for fifteen (15) years to life.

115.  Mr. Jacobo was incarcerated for approximately five (5) years before being exonerated and released from custody.

116.  During Ms. Vildosola’s appeals, she has been represented by Michael Brush and Juliana Drous.  The services of both of these appellate attorneys were negligent and ineffective.  Few if any of the issues outlined above, particularly those in ¶¶ 70, 103 & 110-113, supra, were investigated or argued by either Brush or Drous.  Consequently, Ms. Vildosola, although as innocent as Mr. Jacobo, remains imprisoned to this day.

117.  Plaintiffs are informed and believe, and thereon allege, that their defense attorneys, Prosecutor Lewis, Judge Croft, their appellate attorneys, and the defendants themselves, and each and every one of them were unqualified and incompetent to effectively handle the complex medical issues which were the gravamen of their criminal charges, particularly the intricacies of SBS, child abuse, pediatrics, hematology, serology, pulmonary medicine, and neuropathology.

118.  Plaintiffs are informed and believe, and thereon allege, that they would have been acquitted of all charges if Destiny and her medical history had been thoroughly examined by an unbiased witness with acknowledged expertise in SBS.

 

FIRST CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; THOMAS LIN, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; and JOANNE GARZA, individuals; and DOES 1-10, for

WRONGFUL DEATH

119.  The Plaintiffs hereby incorporate the general allegations of ¶¶ 1-118 above, inclusive, as if fully incorporated herein.

120.  The surviving heirs of DESTINY WILLEEN JACOBO, the deceased, are:

(1) PATRICIA INEZ VILDOSOLA, Mother, Age 33 (born October 8, 1968), Address:  W-71014, B-506-17-3-Low, Central California Women's Facility State Prison, Post Office Box 1508, Chowchilla, CA 93610-1597;

(2) WILLIAM JACOBO, Jr., Father, Age 44 (born June 19, 1957), 2037 Woods Avenue, Monterey Park, CA 91754-5913;

(3) DANIEL WILLIAM JACOBO, Brother, Age 9 (born February 22, 1992), address unknown, placed in foster home and adopted under aegis of the Los Angeles County Department of Children’s Services;

(4) NICOLE CHRISTINE JACOBO, Sister, Age 8 (born January 18, 1993), address unknown, placed in foster home and adopted under aegis of the Los Angeles County Department of Children’s Services;

(5) MARY LOUISE JACOBO, Paternal Grandmother, Age 63 (born July 13, 1937), 1060 West Sequoia Street, Bloomington, CA 92316;

(6) WILLIAM JACOBO III, Half (step)-Brother, Age 20 (born December 5, 1981), 363 North Calara Avenue, Apartment 79, Azusa, CA 91702;

(7) MICHAEL WILLIAM JACOBO, Half (step)-Brother, Age 15 (born May 24, 1985), 363 North Calara Avenue, Apartment 79, Azusa, CA 91702;

(8) ANTHONY JAMES JACOBO, Half (step)-Brother, Age 9 (born August 11, 1991), 363 North Calara Avenue, Apartment 79, Azusa, CA 91702;

(9) MARINA FRANCINE NERIA, Half (step)-Sister, Age 14 (born August 8, 1986), address unknown, placed in foster home and adopted under aegis of the Los Angeles County Department of Children’s Services.

121.  The Plaintiffs listed in ¶ 120, supra, are the surviving heirs at law of the decedent.  Plaintiff Patricia Inez Vildosola is the surviving mother of the decedent, and plaintiff William Jacobo, Jr., is the surviving father of the deceased.

122.  Plaintiffs are informed of and believe, and thereon allege, that the DCS was at least partially responsible for the decedent’s health, education, and general welfare, both during the time when she resided with the Garzas from in or about March 1994 through in or about July 1995, and during the approximately five-month period, from in or about July 1995 through December 5, 1995, when Destiny lived with her natural parents.

123.  The DCS employees who were primarily accountable for the decedent’s well-being were:

(1) Tricia Higa, the social worker handling Destiny’s case;

(2) Henry Barbosa, the supervisor of Tricia Higa;

(3) Cindy Romero, the DCS attorney in charge of legal matters pertaining to Destiny’s case; and

(4) Rene Bilson, the Chief Attorney at the Los Angeles DCS, who was Cindy Romero’s supervisor.

124.  Because of DCS’ negligent overseeing of Destiny’s welfare, and her resultant death, Tricia Higa and Henry Barbosa were both terminated from employment by DCS.

125.  Plaintiffs are informed and believe, and thereon allege, that Tricia Higa and Henry Barbosa were scapegoats or patsies for the generally chaotic and disastrous conditions at DCS.  Other DCS employees equally culpable or even more at fault, such as attorneys Cindy Romero and Rene Bilson, were not discharged for causing Destiny’s death.

126.  Plaintiffs are further informed and believe, and thereon allege, that from the time that the decedent was placed with the Garzas by DCS, in or about March of 1994, until her death in December of 1995, Destiny’s exclusive pediatrician was defendant Thomas Lin.

127.  Plaintiffs are further informed and believe, and thereon allege, that during the period from in or about March 1994 through in or about July 1995, Dr. Lin observed that Destiny chronically suffered from otitis media, pertussis, eye infections, and other symptoms associated with, inter alia, chronic bronchitis, pneumonia, meningitis, immunodeficiency, and/or unhealthy living conditions.  In response, Dr. Lin treated Destiny with Suprax and other antibiotics, but the pharmacotherapy was not efficacious.

128.  Plaintiffs are further informed and believe, and thereon allege, that from in or about March of 1994 through the time of Destiny’s death on or about December 6, 1995, none of the following conveyed any information to either of Destiny’s natural parents, William Jacobo, Jr. or Patricia Inez Vildosola, concerning Destiny’s health history:  DCS, Tricia Higa, Henry Barbosa, Cindy Romero, Linda Nakamura, Rene Bilson, Joanne Garza, Daniel Garza, and Dr. Lin.  Consequently, Destiny’s biological parents, with whom she resided during the period from in or about July 1995 through December 1995, were unaware of Destiny’s history of otitis media, respiratory problems, and other disease symptoms.

129.  Plaintiffs are further informed and believe, and thereon allege, that the DCS, Tricia Higa, Henry Barbosa, Cindy Romero, Linda Nakamura, Rene Bilson, Joanne & Daniel Garza, and Dr. Lin also neglected to inform Destiny’s birth parents about any of her blood dyscrasias, coagulopathies, immunodeficiencies, and genetic abnormalities.

130.  Plaintiffs are further informed and believe, and thereon allege, that despite Destiny’s recurrent respiratory, aural, and ocular illnesses, Dr. Lin neglected—for financial reasons—to test Destiny for blood, immunological, endocrinological, or hereditary disorders.

131.  Plaintiffs are further informed and believe, and thereon allege, that Dr. Lin also negligently interpreted a chest X-ray of the decedent, performed on or about May 12, 1995, finding Destiny’s lungs to be “normal.”  The radiograph actually revealed a high level of congestion associated with bronchitis or pneumonia.

132.  Plaintiffs are further informed and believe, and thereon allege, that on or about December 5th-6th, 1995, the decedent was brought to defendant Santa Marta Hospital for treatment of, inter alia, acute respiratory distress, chronic bronchopneumonia, meningitis, coagulopathy, immunological deficiency, and/or physical trauma.

133.  Plaintiffs are further informed and believe, and thereon allege, that the decedent’s physical trauma, if any, was caused by four phenomena:

(1) Destiny’s falls while learning to walk;

(2) head and leg injuries caused by head-banging and leg-kicking during frequently-witnessed temper tantrums;

(3) paroxysmally falling forward without using her arms to cushion the force, thereby falling flat on her face or hitting her brow on furniture; and

(4) falling to the floor after being tossed into the air by her older half-brother, William Jacobo III (“Little Billy”).

134.  The decedent’s primary health care provider at Santa Marta Hospital was defendant Joseph Boggs, whose medical license was suspended just eight days before he “took care” of Destiny.  Dr. Boggs performed cardiopulmonary resuscitation (CPR) on the decedent so aggressively and forcefully—considering that her lungs were seriously purulent and diseased—that BOTH of her lungs were “popped,” causing bilateral pneumothorax.

135.  Pneumothorax was the proximate cause of Destiny’s death.  If Boggs had not negligently performed CPR, or if Boggs had properly treated Destiny for pneumothorax, Destiny would have survived.  Her respiratory distress could have been cured.  Instead, her respiratory condition was horrendously exacerbated by the pneumothorax and excessive CPR.

136.  The decedent’s medical problems, particularly the pneumothorax, were negligently treated by Santa Marta Hospital and Dr. Boggs.  Although decedent was intubated endotracheally, nasogastrically, and intrapleurally, those surgical efforts were more likely detrimental than therapeutic for a baby whose principal problem was severe respiratory distress.

137.  Panic ensued when Santa Marta staff members realized that Boggs had burst Destiny’s lungs.  They decided to transfer the decedent nearly twenty miles away to Long Beach Memorial Hospital, because Santa Marta was incapable of treating a baby with Destiny’s physical problems, and because Dr. Boggs and the Santa Marta staff hoped to avert legal liability.

138.  Destiny continued to receive CPR in the ambulance from Santa Marta, and more CPR at Long Beach Memorial.  CPR continued to be administered inappropriately and harmfully, despite Destiny’s bilateral pneumothorax, because Santa Marta and Boggs misinformed or underinformed the ambulance team and Long Beach Memorial in attempting to avoid responsibility for Destiny’s demise.

139.  The Plaintiffs are informed and believe, and thereon allege, that the decedent’s retinal and subarachnoid hemorrhaging were caused by excessive and overforceful CPR, exacerbated by coagulopathies—not by “shaken baby syndrome.”

140.  Plaintiffs are informed and believe, and thereon allege, that Destiny suffered from serious blood disorders.  Her platelet count was 97,000 per milliliter, compared to a normal reading of 140,000 to 450,000.  Platelets are vitally important in blood coagulation, and Destiny’s platelet level—about 31% below the minimal normal reading—dangerously increased her propensity to bleed.  Destiny’s prothrombin (PT) measure was 99 seconds, compared to 11.9 seconds for a control, also strikingly subnormal.  Another crucial blood clotting factor is thromboplastin.  Destiny’s partial thromboplastin time (PTT) was over 100 seconds, compared to a 29.9-second control time—-again severely deviating from the standard measurement.  Destiny’s coagulation system was so seriously compromised that the type of bleeding observed in her would require four to five times more force to produce in a normal infant.  In other words, Destiny bruised very easily—-like a child with leukemia, or a hemophiliac.

141.  Plaintiffs are informed and believe, and thereon allege, that Destiny also suffered from a grave immunological deficiency.  Her thymus gland, for instance, weighed only seven grams, compared to a normal mass of 35 grams in a 20-month-old baby.

142.  Plaintiffs are informed and believe, and thereon allege, that no one at Santa Marta Hospital considered that Destiny might have been suffering from hematological and/or immunological deficiencies.

143.  Plaintiffs further allege that Destiny’s blood deficiencies, chronic bronchitis or pneumonia, and other ailments significantly enhanced her risk of mortality, when coupled with the pneumothoracic damage caused by incompetently administered CPR.

144.  At all times mentioned in this complaint, defendants, and each of them, so negligently and carelessly:  (1) assisted in Destiny’s health care, (2) performed CPR, and (3) otherwise medically treated Destiny, that their services were dangerous and unsafe.

145.  As a direct and proximate result of defendants' negligence and carelessness as described above, decedent was seriously injured on or about December 5th–6th, 1995.

146.  The injuries so inflicted on the decedent resulted in the decedent's death on or about December 5th–6th, 1995.

147.  As the direct and proximate result of the foregoing and the death of the deceased, plaintiffs Patricia Vildosola and William Jacobo, Jr., the surviving parents, have been deprived of a kind and loving child and of her care, comfort, society, protection, love, companionship, affection, solace, moral support, economic services, physical assistance in the operation and maintenance of the home, and financial support.

148.  As a further direct and proximate result of the foregoing death of the deceased, plaintiffs William Jacobo III, Michael William Jacobo; Marina Francine Neria; Anthony James Jacobo; Daniel William Jacobo; and Nicole Christine Jacobo, have been deprived of a kind and loving sister and of her care, comfort, love, protection, advice, society, physical assistance, and financial support.

149.  As an additional direct and proximate result of the foregoing death of the deceased, plaintiff Mary Louise Jacobo has been deprived of a kind and loving Granddaughter and of her care, comfort, love, protection, advice, society, physical assistance, and financial support.

150.  As a further direct and proximate result of the foregoing, plaintiffs have been generally damaged in a sum to be established according to proof, as provided by Code of Civil Procedure sections 425.10 and 425.11, but in any event not less than $10,000,000.00.

151.  As a further direct and proximate result of the death of the deceased, plaintiffs have incurred reasonable and necessary expenses for decedent's funeral, burial, and memorial services to their damage in a presently unascertained sum.  Plaintiffs request permission to insert the amount when it is finally determined.

AS AND FOR SURVIVAL DAMAGES:

152.  Plaintiffs repeat the allegations of paragraphs 119-151, supra, as if fully set forth at length.

153.  Before her death, the decedent suffered conscious pain and suffering and fear of her impending death, entitling her to compensatory damages under governing law.

154.  By reason of the foregoing, defendants are liable to the decedent's estate in the sum of ONE MILLION ($1,000,000) DOLLARS.

AS AND FOR PUNITIVE DAMAGES:

155.  Plaintiffs repeat the allegations of paragraphs 152-153 above, as if fully set forth at length.

156.  Defendant's acts were willful, intentional, wanton, malicious, and oppressive, and should be punished by an award of punitive damages.

157.  For the reasons stated above, and pursuant to 28 U.S.C.  Section 1606, defendants Los Angeles County Department of Children’s Services; Santa Marta Hospital; Joseph Boggs, M.D.; Cynthia Romero, Esq.; Rene Bilson, Esq.; Thomas Lin, M.D.; Tricia Higa; Henry Barbosa; Daniel Garza, Jr.; and Joanne Garza, and each of them, are individually liable to the plaintiffs for punitive damages in the amount of TWO MILLION DOLLARS ($ 2,000,000.00).

 

SECOND CLAIM FOR RELIEF

by All Plaintiffs

against JOSEPH BOGGS, M.D. and THOMAS LIN, M.D., individuals; SANTA MARTA HOSPITAL, a California corporation; and DOES 11-20, for

MEDICAL MALPRACTICE/NEGLIGENCE BY PHYSICIAN

158.  The Plaintiffs hereby incorporate the general allegations of ¶¶ 155-156 above, inclusive, as if fully incorporated herein.

159.  THOMAS LIN, M.D. was DESTINY WILLEEN JACOBO’s sole physician and pediatrician from in or about March 1994 until in or about December 5, 1995.  Because Destiny chronically presented with symptoms of rhinitis, pertussis, otitis media, bronchitis, and such eye infections as conjunctivitis and uveitis, Dr. Lin was or should have been aware that Destiny was susceptible to more serious respiratory and encephalic infections, such as pneumonia and meningitis.

160.  Plaintiffs are informed and believe, and thereon allege, that because Destiny was chronically plagued with respiratory illnesses and infections, and considering that Dr. Lin attempted to treat Destiny with Suprax and other regimens, Dr. Lin was or should have been aware that Destiny was immunologically compromised, possibly because of stressful environmental conditions and/or hereditary susceptibility.

161.  Furthermore, in view of Destiny’s sickliness, chronic respiratory difficulties, immunological infirmity, and anemic condition, Dr. Lin was or should have been aware that Destiny was predisposed toward blood dyscrasias and bleeding disorders.

162.  Plaintiffs are informed and believe, and thereon allege, that Dr. Lin was negligent or reckless when interpreting a chest X-ray of Destiny on May 12, 1995, finding her lungs to be normal and failing to identify the pleural congestion symptomatic of pneumonia or bronchitis.

163.  Plaintiffs are informed and believe, and thereon allege, that Dr. Lin was further negligent and derelict in not informing Destiny’s birth parents, WILLIAM JACOBO, Jr. and PATRICIA INEZ VILDOSOLA, about any of Destiny’s health problems.

164. Plaintiffs are informed and believe, and thereon allege, that if Dr. Lin had informed any of the plaintiffs about Destiny’s health condition, she would have been properly monitored and treated prophylactically, and her medical condition would not have deteriorated to the level observed on December 5, 1995.  In sum, but for the failure of Dr. Lin to inform any of the plaintiffs about Destiny’s health condition, Destiny would have survived.  

165.  Plaintiffs are further informed and believe, and thereon allege, that on or about the 5th day of December, 1995, until on or about the 6th day of December, 1995, the Defendant Joseph Dodridge Boggs, M.D., undertook to treat the decedent Destiny Willeen Jacobo at defendant SANTA MARTA HOSPITAL for the following symptoms:

(1) ACUTE RESPIRATORY DISTRESS SYNDROME (ARDS)

(2) PNEUMONIA

(3) CHRONIC BRONCHITIS

(4) BLOOD DYSCRASIA (BLEEDING DISORDER(s), etc.)

(5) IMMUNODEFICIENCY

(6) POSSIBLE MENINGITIS

(7) POSSIBLE PHYSICAL TRAUMA

166.  ARDS was an obvious diagnosis, and was the DRG assigned to Destiny at Long Beach Memorial Hospital, shortly before her death.  Destiny had a history of ARDS, marked by constant pertussis (coughing), wheezing, and difficulty breathing.  She received apnea monitoring during the first ten months of her life, which was only terminated because her temporary foster parents, the Garzas, decided that they were unwilling to pay any longer for the apnea machine rental.  Plaintiffs are informed and believe, and thereon allege, that the Garzas were more concerned with childcare costs than with the well-being of a step-child such as Destiny.

167.  Considering Destiny’s history of ARDS, bronchitis, otitis media, and URIs, a likely etiology for her sudden apnea or cessation of respiration on the evening of December 5, 1995, was pneumonia, caused by either haemophilus influenza meningitis, or (less likely) streptococcus pneumonia meningitis.

168.  Plaintiffs are informed and believe, and thereon allege, that Destiny chronically suffered from cold-like symptoms, including a hacking cough, shortness of breath, and ear and eye infections.  Consequently, chronic bronchitis was a likely alternative diagnosis to pneumonia or meningitis.

169.  If any bruising was detected at Santa Marta, then a blood workup was standard protocol, particularly to determine whether Destiny had a bleeding disorder or immunodeficiency.  Plaintiffs are informed and believe, and thereon allege, that Santa Marta performed no test for blood dyscrasias.

170.  Dr. Boggs and Santa Marta also failed to perform a microbial culture to rule out meningitis.  Because Destiny had extensive subarachnoid bleeding but no subdural hematomas, meningitis was more likely than SBS-related trauma.

171.  Plaintiffs furthermore are informed and believe, and thereon allege, Boggs’ medical license was suspended on November 27, 1995—just eight days before he treated the decedent!  Boggs also had a history of drunken driving, and was convicted for DUI on April 6, 1992.  He has also been sued for medical malpractice, negligence, and other claims at least six times during the past eighteen years.  Defendant Santa Marta Hospital is liable for negligent hiring practices and negligent supervision in allowing a physician such as Boggs—with a suspended license, a drunken driving history, and a lengthy record of civil suits against him filed by patients—to work in its Emergency Room with patients like Destiny suffering from acute and severe medical conditions.

172.  Plaintiffs furthermore are informed and believe, and thereon allege, that Boggs attacked the apparent immediate problem, apnea and hypoxia, by rendering CPR to the decedent.  His CPR efforts, however, were negligent, in that they were far too aggressive for a fragile, 20-month-old infant—particularly one with diseased, purulent lungs and a bleeding disorder.  Boggs’ overly forceful CPR burst both of Destiny’s lungs, causing bilateral pneumothorax, which precipitated Destiny’s death.

173.  Plaintiffs furthermore are informed and believe, and thereon allege, that Boggs panicked when he realized what had happened, and decided to divert the blame for Destiny’s death to her parents.  To further distance himself from liability, he quickly transferred Destiny nearly twenty miles away—despite her grave condition—to Long Beach Memorial, with the consent and active participation of other employees at Santa Marta Hospital.

174.  Plaintiffs furthermore are informed and believe, and thereon allege, that shortly after Destiny’s death, Boggs disappeared.  Although his was the very first name on the prosecution’s witness list, he purportedly could not be found by Cheri Lewis, and head nurse Herminia Sabando said that he was never seen again at Santa Marta Hospital.

175.  Plaintiffs furthermore are informed and believe, and thereon allege, that in treating the decedent, the Defendants Boggs and Santa Marta Hospital failed to provide decedent with the professional medical services, care and treatment that physicians and other health care providers within the medical community possessing and exercising ordinary and reasonable medical knowledge and skills would have provided in that, inter alia:

(1) Boggs performed CPR too forcefully for a fragile baby with pulmonary distress and a bleeding disorder, causing BILATERAL PNEUMOTHORAX;

(2) Boggs and other Santa Marta Hospital personnel failed to elicit or otherwise obtain a sufficient medical history of the decedent;

(3) Boggs and other Santa Marta Hospital workers failed to examine Destiny for blood dyscrasias;

(4) Boggs and other Santa Marta Hospital employees failed to test Destiny for communicable diseases, such as pneumonia, bronchitis, and meningitis;

(5) Boggs and other health care providers at Santa Marta failed to test Destiny for immunodeficiencies;

(6) Boggs and other staff at Santa Marta failed to treat Destiny appropriately for pneumothorax;

(7) In order to deflect blame for Destiny’s death from himself, Boggs rendered a diagnosis of battered child syndrome, thereby escaping civil liability, while shifting said civil liability to the decedent’s parents, and moreover subjecting Plaintiffs Mr. Jacobo and Ms. Vildosola to criminal sanctions; and

(8) Rather than treat a dying patient, for whose death he was responsible, Boggs—with the assistance of other Santa Marta personnel—transferred the decedent more than twenty miles away in an attempt to evade responsibility.

176.  Plaintiffs furthermore are informed and believe, and thereon allege, that Defendant Boggs' and/or other Santa Marta staff members’ failure to provide decedent with the professional medical services, care and treatment that physicians and other health care providers within the medical community possessing and exercising ordinary and reasonable knowledge and skills would have provided was negligence, wantonness, and medical malpractice.

177.  Defendant Santa Marta Hospital is liable for damages associated with any medical malpractice or negligence in the treatment of Destiny, according to the principles of vicarious liability and respondeat superior, because a corporate entity such as a health care facility is responsible for the work-related behavior of its employees, agents, subcontractors, and representatives.

178.  As a proximate result of the Defendants’ said negligence and wantonness, Destiny was caused to suffer the following injuries and damages:

(1) BILATERAL PNEUMOTHORAX;

(2) BILATERAL RETINAL HEMORRHAGES;

(3) EXTENSIVE SUBARACHNOID BLEEDING;

(4) SEVERE PSYCHOLOGICAL TRAUMA; and

(5) DEATH.

Moreover, the other Plaintiffs, including Destiny’s grandmother MARY LOUISE JACOBO; Destiny’s parents Ms. Vildosola and Mr. Jacobo; Destiny’s sisters NICOLE CHRISTINE JACOBO and MARINA FRANCINE NERIA; and Destiny’s brothers WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, ANTHONY JAMES JACOBO, and DANIEL WILLIAM JACOBO, each suffered damages as a result of the alleged medical malpractice, including the loss of a sister, emotional distress, disruption of family life and domestic tranquility, and other physical, mental, emotional, and social injuries that are not yet fully determined, but which will be ascertained at time of trial.

179.  WHEREFORE, the Plaintiffs demand judgment against Defendants Boggs, Lin, and Santa Marta Hospital for a just and adequate amount of damages, plus costs, the exact amount of which has yet to be determined, but which Plaintiffs will provide at or before the time of trial.

180.  Plaintiffs further request punitive damages from the Defendants Boggs and Santa Marta Hospital because of said Defendants’ wanton conduct, including the failure to treat Destiny for pneumothorax, and the devious efforts to avoid responsibility for negligence, including the efforts to divert civil liability for Destiny’s death to her innocent and grieving parents, thereby additionally exposing them to criminal liability.

 

THIRD CLAIM FOR RELIEF

by All Plaintiffs

against SANTA MARTA HOSPITAL, a California corporation, and DOES 21-25, for

MEDICAL MALPRACTICE / NEGLIGENCE BY HOSPITAL

181.  Plaintiffs hereby incorporate ¶¶ 158-180 above, inclusive, as if fully incorporated hereat.

182.  Plaintiffs are informed and believe, and therefore allege, that Defendant SANTA MARTA HOSPITAL is a corporation organized and existing under and by virtue of the laws of the State of California, and was at all times relevant to this action owned and operated as a hospital within Los Angeles County, California.

183.  Plaintiffs are informed and believe, and therefore allege, that at all relevant times, Defendant Santa Marta Hospital was a fully accredited hospital under the laws and the regulations of the State of California, which expressly and impliedly represented to the general public and to the Plaintiffs that it was a health care facility with professional staff, nursing personnel, and equipment sufficient to render medical services in a skilled and proper manner, and wherein the physicians, nurses, and other health care providers possessed the skill and degree of professional learning ordinarily possessed by other physicians, nurses, and health care providers practicing medicine or otherwise providing health care services in the same or similar communities.

184.  Plaintiffs are informed and believe, and therefore allege, that on or about December 5th-6th, 1995, the decedent was treated by Defendant Boggs, a health care provider who was situated in the Emergency Room at Santa Marta Hospital, for, inter alia, ARDS, apnea, chronic bronchitis, possible pneumonia, blood dyscrasias, immunodeficiency, and possible meningitis.  The Decedent had a history of respiratory disease, manifested by chronic bronchitis, wheezing, difficulty breathing, and a frequent, hacking cough; apnea monitoring; one sister each on her mother’s and father’s sides of the family who died of SIDS; recurrent otitis media; conjunctivitis, uveitis and other eye infections; and self-injurious temper tantrums.

185.  Plaintiffs are informed and believe, and therefore allege, that DESTINY's condition was readily discoverable by a physician of ordinary skill and training upon reasonable examination.

186.  Plaintiffs are informed and believe, and therefore allege, that Defendant Boggs, as well as any and all other physicians, nurses, and/or other health care providers at Santa Marta Hospital who treated Destiny, negligently failed to discover Destiny's condition and to properly diagnose and treat it, causing severe injury to Destiny, and her ultimate death.  Most notably, no health care provider at Santa Marta Hospital determined whether Destiny suffered from:

(1) Respiratory disease, such as pneumonia or chronic bronchitis caused by hemophilus influenza meningitis, streptococcus pneumonia meningitis, or another pathogen;

(2) Bleeding disorders, evidenced, e.g., by prolonged mild prothrombin time (PT), activated partial thromboplastin time (PTT), or thrombin time (TT), or by abnormal fibrinogen or fibrin degradation product (FDP) levels, all of which were easily demonstrated by John P. Ryan, M.D.;

(3) Immunodeficiencies, evidenced, for example, by subnormal levels of leukocytes, monocytes, polymorphonuclear lymphocytes, and/or antibodies; or

(4) Pneumothorax, caused by negligent or excessive CPR.

187.  Plaintiffs are informed and believe, and therefore allege, that Defendant Boggs, as well as any and all physicians, nurses, and other health care providers at Santa Marta Hospital, were negligent in that:

a.  He/She/They did not possess the degree of professional learning, skill and ability which other similarly situated physicians, nurses, and/or other health care providers ordinarily possess;

b.  He/She/They did not exercise reasonable care and diligence in the application of his/her/their knowledge and skill to the diagnosis and treatment of Decedent, exemplified by the negligent application of CPR, which caused bilateral pneumothorax, a critical medical condition requiring immediate, skillful medical intervention, as opposed to Santa Marta’s nontreatment and transferal to another medical facility;

c.  He/She/They did not use his/her/their best judgment in the treatment and care of the decedent;

d.  He/She/They negligently failed to take an adequate history from Decedent, her parents, and/or other family members;

e.  He/She/They negligently, recklessly, and/or intentionally failed to insist upon adequate and immediate tests to be performed on Decedent in order to diagnose her condition;

f.  He/She/They negligently, recklessly, and/or intentionally failed to properly and correctly diagnose Destiny's condition;

g.  He/She/They negligently, recklessly, and/or intentionally failed to properly and timely treat the decedent;

h.  He/She/They negligently, recklessly, and/or intentionally failed to follow the procedures which are reasonable and proper in treating patients with similar conditions to Destiny's;

i.  He/She/They negligently, recklessly, and/or intentionally failed to timely consult with other physicians as to the proper diagnosis and treatment of Destiny;

j.  He/She/They negligently, recklessly, and/or intentionally failed to notify other physicians, nurses, and/or health care providers of changes in Destiny's conditions.

k.  He/She/They negligently, recklessly, and/or intentionally failed to properly monitor or observe Destiny to ensure that the treatment rendered was adequate for Destiny's condition; and

l.  He/She/They negligently, recklessly, and/or intentionally failed to observe and convey Destiny's condition to other physicians, nurses, and/or health care providers, including but not limited to the emergency medical technicians who manned the ambulance which transported Destiny from Santa Marta Hospital to Long Beach Memorial, and the physicians, nurses, and other staff of Long Beach Memorial Medical Center.

187.  Plaintiffs are informed and believe, and thereby allege, that Defendant Boggs performed CPR upon Destiny, a fragile baby, too forcefully, rupturing both of her lungs, and causing bilateral pneumothorax.  After negligently or recklessly inflicting such serious injury upon Destiny, Boggs wantonly and maliciously decided not to treat the potentially fatal pneumothorax, or any of Destiny’s other symptoms, but instead transferred Destiny nearly twenty miles away to Long Beach Memorial, sealing her tragic fate.

188.  Plaintiffs are informed and believe, and thereon allege, that in addition to Defendant Boggs, other physicians, nurses, and/or health care providers at Santa Marta Hospital may have performed negligent or reckless CPR, or by act or omission may have negligently, recklessly, and/or intentionally caused other harm to Destiny.  In addition, other employees, agents, and/or representatives of Santa Marta Hospital participated in Destiny’s transfer to Long Beach.

189.  Plaintiffs are informed and believe, and thereon allege, that the foregoing negligence, recklessness, and/or purposeful act(s) and/or omission(s) of Defendant Boggs, and/or other physicians, nurses, or health care providers at Santa Marta Hospital, was a proximate cause of the Decedent's fatal injuries.

190.  Plaintiffs are informed and believe, and therefrom allege, that at all relevant times, Defendant Boggs and Defendants Does 21-30 were agents, servants, or employees of Defendant Santa Marta Hospital, and were acting within the scope of their employment.

191.  Plaintiffs are informed and believe, and therefore allege, that the foregoing negligence of Defendant Boggs and the Doe Defendants 21-30 was committed on behalf of Defendant Santa Marta Hospital, which is liable to the Plaintiffs for its agents' negligence, recklessness, and/or intentional act(s) and/or omission(s).

192.  Plaintiffs are informed and believe, and thereby allege, that additionally, Defendant Santa Marta Hospital was negligent in that:

a.  It failed to provide competent, professional personnel to supervise and staff its hospital, who would have been capable of properly diagnosing and treating the Decedent's condition, during the evening and night of December 5th, 1995, as well as the morning of December 6th, 1995;

b.  It failed to provide proper, necessary and operable medical equipment and supplies with which the Decedent's condition could have been properly treated; and

c.  It negligently, recklessly, or intentionally permitted incompetent, untrained, and poorly supervised personnel to work in its hospital on December 5th-6th, 1995.

193.  Because the foregoing negligence, recklessness, or purposeful acts and/or omissions of Defendant Santa Marta Hospital was a proximate cause of Decedent's injuries and death, the Plaintiffs are entitled to recover from it an amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase the amount of the damage assessment after further discovery, either prior to or at time of trial.

194.  WHEREFORE, the Plaintiffs pray to the Court that:

(1) They recover in judgment against Defendant(s) in an amount in excess of $50,000, the exact amount to be determined later;

(2) They recover the costs and expenses of this action from Defendant(s); and

(3) They recover any further relief that the Court deems appropriate.

 

FOURTH CLAIM FOR RELIEF

by Plaintiffs Mary Louise Jacobo; William Jacobo, Jr.; Patricia Inez Vildosola; William Jacobo III; Michael William Jacobo;

Anthony James Jacobo; Marina Francine Neria; Daniel William Jacobo;

and Nicole Christine Jacobo, individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; GUY O’BRIEN, ESQ.; RAYMOND SANTANA, ESQ.; MICHAEL BRUSH, ESQ.; JULIANA DROUS, ESQ.; AUGUSTINE VARGAS, ESQ.; NATHANIEL HOFFMAN, ESQ.; LINDA NAKAMURA, ESQ.; CYNTHIA ROMERO, ESQ.; and RENE BILSON, ESQ., individuals; and

DOES 26-35, for

LEGAL MALPRACTICE / NEGLIGENCE BY ATTORNEY

 

195.  Plaintiffs hereby incorporate ¶¶ 181-193 above, inclusive, as if fully incorporated hereat.

Guy O’Brien

196.  Plaintiffs are informed and believe, and therefore allege, that on or about the Nineteenth (19th) day of December, 1995, Defendant O’BRIEN was appointed by the Pasadena Superior Court of Los Angeles County, State of California, to perform for Plaintiff PATRICIA VILDOSOLA certain professional, legal services, to-wit:  To serve Ms. Vildosola as her defense attorney during the criminal trial which began on or about the Nineteenth (19th) day of December, 1995, and to perform all other duties ordinarily expected of a criminal defense attorney, including, but not necessary limited to, all necessary and appropriate:

(1) investigation;

(2) subpoenaing, interviewing, and preparation of witnesses; and

(3) production and timely filing of motions, briefs, and other legal documents.

Plaintiffs are further informed and believe, and therefore allege, that Defendant O’Brien is an attorney licensed to practice in California.

197.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant O’Brien had not performed his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge.  Namely:

a.          Ineffective assistance of counsel, in that Mr. O’Brien did not perform with due care and diligence, and withheld crucial medical, exculpatory, and mitigating evidence from Ms. Vildosola;

b.          Failure to expose the conspiracy to convict plaintiffs Mr. JACOBO and Ms. Vildosola, said conspiracy perpetrated by the Department of Children’s Services, the prosecution, and other parties;

c.          Grossly deficient investigation, including the complete failure to examine Destiny’s medical records, and the consequent failure to present any alternative explanations for Destiny’s death beyond what was alleged by the prosecution;

d.          Grossly deficient jury selection, in that, inter alia, Mr. O’Brien did not allow Ms. Vildosola to participate in the voir dire and selection of jurors;

e.          Failure to present exculpatory and mitigating evidence, including, inter alia, making no effort to obtain the missing contre-coup brain fragment;

f.          Failure to call key witnesses, including, inter alia:  (1) Dr. Boggs, who Plaintiffs are informed and believe, and thereon allege, to have been responsible for Destiny’s death; (2) Dr. Hideo Henry Itabashi, the chief neuropathologist at the Los Angeles County Coroner’s Office, who was unconvinced by DR. RIBE’s autopsy report as to the infliction upon Destiny of any physical abuse, and who would have contradicted Dr. Ribe on several points, including the interpretation of the contre-coup brain fragment; (3) Dr. Zachariah Yehya Reda, the physician who treated Destiny at Long Beach Memorial Medical Center, and whose principal diagnoses were pneumothorax and ARDS—not SBS or battered child syndrome; (4) Dr. Donald Clarence Boger, the radiologist at the Los Angeles County Coroner’s Office, who found no fractures, bruises, or any other lesions that would be expected if Destiny had been physically abused (“The whole body film demonstrates no visible fractures or other changes to suggest child abuse.  The anterioposterior and lateral views of native skull appeared normal.”) (see Exhibit 4); (5) Narsing Adupa Rao, the ophthalmologist at the Los Angeles County Coroner’s Office, who would have refuted any contention that Destiny had the telltale retinal hemorrhages of SBS (“Stains for iron are negative for both eyes and the optic nerves.”) (see Exhibit 5); (6) Henry Diaz, who:  (a) was immediately outside Destiny’s bedroom throughout the day of December 5th, 1995; (b) never heard or saw any abuse, physical or otherwise; (c) was taken into custody on the night of December 5, 1995, and interrogated extensively by the police; and (d) was intimidated by the police to such an extent that he was afraid to leave his house for months afterward, and was also so petrified that he was reluctant to testify in open court; (7) Raymond Saucedo, who was at the home of Mr. Jacobo, Ms. Vildosola, and Destiny throughout the day of December 5, 1995, and never heard or saw any abuse, physical or otherwise; (8) John Estrella, who witnessed Billy Jacobo III tossing Destiny in the air; (9) Ernie Rodriguez, who on a separate occasion also saw Billy III tossing Destiny into the air; (10) Jimmy Sanchez, who would have destroyed the credibility of Billy Jacobo III, because he was incarcerated based on Billy III’s false accusations of child abuse; (11) Michael William Jacobo, who would have corroborated Jimmy Sanchez’s testimony, and would have further weakened the credibility of Billy Jacobo III; (12) Gloria Rodriguez Jacobo, who would have also damaged Billy III’s credibility, because she witnessed Billy III’s recanting of his allegations against Jimmy Sanchez; and (13) Eric Klimek, who was present in the house where Carissa Neria died on or about January 21, 1991, and neither heard nor saw any trace of abuse, physical or otherwise;

g.          Failure to adequately examine expert witnesses, including:  (1) Dr. John Patrick Ryan, the expert witness for the defense, who could have convincingly established reasonable doubt as to the cause of Destiny’s death if given sufficient time and opportunity to fully testify; and (2) Dr. James Kemp Ribe, the prosecution’s expert witness, whose loss of pivotal evidence—the contre-coup brain tissue—was not addressed, and whose disagreements with Dr. Itabashi were ignored;

h.          Failure to obtain adequate expert witnesses, in that only one expert was called by the defense, Dr. Ryan, who was not even board certified in forensic pathology, pediatric pathology, or neuropathology, had very little experience with child abuse cases, had no experience with Shaken Baby Syndrome, and testified errantly that Destiny’s respiratory and bleeding disorders were a consequence of being born a “drug baby”;

i.          Failing to prevent admission of evidence with more prejudice than probity, particularly:  (1) the revamped autopsy of Carissa Neria, which was highly inflammatory; (2) Ms. Vildosola’s infrequent recreational use of powder cocaine; and (3) the erroneous characterization of Destiny as a “crack baby”; and

j.          Mr. O’Brien’s assertion during closing arguments that Ms. Vildosola was guilty of manslaughter—a declaration of his own client’s guilt, despite Ms. Vildosola’s avowed innocence.

198.  Moreover, Mr. O’Brien argued that Ms. Vildosola was a drug addict, a mendacious contention which he presented in the hopes that Ms. Vildosola might be found guilty of the lesser charge of child abuse.  Yet Ms. Vildosola was randomly tested for drug use on a weekly basis for twenty months, beginning from the time that Destiny was taken away from Ms. Vildosola and placed in the custody of the Garzas, in or about March of 1994, and ending with Destiny’s death in December of 1995.  Ms. Vildosola arrived on time for every drug testing appointment, and each and every time that she was tested Ms. Vildosola was found to be drug-free.

199.  Mr. O’Brien also compelled Ms. Vildosola to take the stand, and to testify that she would have been a better mother but for her drug problem, despite the fact that Ms. Vildosola had no drug problem.  Not surprisingly, such testimony rendered the jury unsympathetic toward Ms. Vildosola, and inclined toward finding her and Mr. Jacobo guilty of murder.

200.  Plaintiffs are further informed and believe, and therefore allege, that Defendant O’Brien failed to perform his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶¶ 197-199 above, Mr. O’Brien failed to perform in good faith, with due care, and with due diligence, and thereby breached his fiduciary duty to Ms. Vildosola.

201.  As a proximate result of Defendant O’Brien's said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

202.  Plaintiffs claim punitive damages against Defendant O’Brien, because of the Defendant's wanton and outrageous misconduct.

Raymond Santana

204.  Plaintiffs are informed and believe, and therefore allege, that on or about the Eighth (8th) day of December, 1995, Defendant Santana was appointed by the Pasadena Superior Court of Los Angeles County, State of California, to perform for Plaintiff William Jacobo, Jr., certain professional, legal services, to-wit:  To serve Mr. Jacobo as his defense attorney during the criminal trial which began on or about the Fifteenth (15th) day of July, 1997, and to perform all other duties ordinarily expected of a criminal defense attorney, including, but not necessary limited to, all necessary and appropriate:

(1) investigation;

(2) subpoenaing, interviewing, and preparation of witnesses; and

(3) production and timely filing of motions, briefs, and other legal documents.

Plaintiffs are further informed and believe, and thereon allege, that Defendant Santana is an attorney licensed to practice in California.

205.  Plaintiffs are further informed and believe, and thereby allege, that on or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Santana had not performed his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge.  Namely, inter alia:

a.   Ineffective assistance of counsel, in that Mr. Santana did not perform with due care and diligence, and withheld crucial medical, exculpatory, and mitigating evidence from Mr. Jacobo;

b.   Failure to expose the conspiracy to convict plaintiffs Mr. Jacobo and Ms. Vildosola, said conspiracy perpetrated by the Department of Children’s Services, the prosecution, and other parties;

c.   Grossly deficient investigation, including the complete failure to examine Destiny’s medical records, and the consequent failure to present any alternative explanations for Destiny’s death beyond what was alleged by the prosecution;

d.   Grossly deficient jury selection, in that, inter alia, Mr. Santana did not allow Mr. Jacobo to participate in the voir dire and selection of jurors;

e.   Failure to present exculpatory and mitigating evidence, including, inter alia, the missing contre-coup brain fragment;

f.   Failure to call key witnesses, including, inter alia:  (1) Dr. Boggs, who Plaintiffs are informed and believe, and thereon allege, to have been responsible for Destiny’s death; (2) Dr. Hideo Henry Itabashi, the chief neuropathologist at the Los Angeles County Coroner’s Office, who was unconvinced by Dr. Ribe’s autopsy report as to the infliction upon Destiny of any physical abuse, and who criticized Dr. Ribe for his mishandling of the purported contre-coup brain material, describing it as “very unprofessional”; (3) Dr. Zachariah Yehya Reda, the physician who treated Destiny at Long Beach Memorial Medical Center, and whose principal diagnoses were pneumothorax and ARDS—not SBS or battered child syndrome; (4) Dr. Donald Clarence Boger, the radiologist at the Los Angeles County Coroner’s Office, who found no fractures, bruises, or any other lesions that would be expected if Destiny had been physically abused (“The whole body film demonstrates no visible fractures or other changes to suggest child abuse.  The anterioposterior and lateral views of native skull appeared normal.”) (see Exhibit 4); (5) Narsing Adupa Rao, the ophthalmologist at the Los Angeles County Coroner’s Office, who would have refuted any contention that Destiny had the telltale retinal hemorrhages of SBS (“Stains for iron are negative for both eyes and the optic nerves.”) (see Exhibit 5); (6) Henry Diaz, who was immediately outside Destiny’s bedroom throughout the day of December 5th, 1995, and never heard or saw any abuse, physical or otherwise; (7) Raymond Saucedo, who was at the home of Mr. Jacobo, Ms. Vildosola, and Destiny throughout the day of December 5, 1995, and never heard or saw any abuse, physical or otherwise; (8) John Estrella, who:  (1) witnessed Billy Jacobo III tossing Destiny in the air, (2) was a close friend of Mr. Jacobo beginning in early childhood, (3) was initially enthusiastic about testifying for Ms. Vildosola’s defense, (4) was interrogated and intimidated by the police, and (5) was so frightened by the police that he disappeared in or about January of 1996, and was never seen again; (9) Ernie Rodriguez, who on a separate occasion also saw Billy III tossing Destiny into the air; (10) Jimmy Sanchez, who would have destroyed the credibility of Billy Jacobo III, because he was incarcerated based on Billy III’s false accusations of child abuse; (11) Michael William Jacobo, who would have corroborated Jimmy Sanchez’s testimony, and further weakened the credibility of Billy Jacobo III; (12) Gloria Rodriguez Jacobo, who would have also damaged Billy III’s credibility, because she witnessed Billy III’s recanting of his allegations against Jimmy Sanchez; and (13) Eric Klimek, who was present in the house where Carissa Neria died on or about January 21, 1991, and neither heard nor saw any trace of abuse, physical or otherwise;

g.   Failure to adequately examine expert witnesses, including:  (1) Dr. John Patrick Ryan, the expert witness for the defense, who could have convincingly established reasonable doubt as to the cause of Destiny’s death if given sufficient time and opportunity to fully testify; and (2) Dr. James Kemp Ribe, the prosecution’s expert witness, whose loss of pivotal evidence—the contre-coup brain tissue—was not addressed;

h.   Failure to obtain adequate expert witnesses, in that only one expert was called by the defense, Dr. Ryan, who was not even board certified in forensic pathology, pediatric pathology, or neuropathology, had very little experience with child abuse cases, had no experience with Shaken Baby Syndrome, and testified errantly that Destiny’s respiratory and bleeding disorders were a consequence of being born a “drug baby”; and

i.   Failing to prevent admission of evidence with more prejudice than probity, particularly:  (1) the dubiously recomposed autopsy of Carissa Neria, which was highly inflammatory; (2) Ms. Vildosola’s infrequent recreational use of powder cocaine; and (3) the mislabeling of Destiny as a cocaine baby, when in fact Destiny was never addicted to or dependent upon cocaine in any amount.

206.  Moreover, Mr. Santana attributed all of the blame for Destiny’s death to Ms. Vildosola, contrary to the expressed requests of Mr. Jacobo, arguing erroneously that Ms. Vildosola was a drug addict.  Yet Ms. Vildosola was randomly tested for drug use on a weekly basis for twenty months, beginning from the time that Destiny was taken away from Ms. Vildosola and placed in the custody of the Garzas, in or about March of 1994, and ending with Destiny’s death in December of 1995.  Ms. Vildosola arrived on time for every drug testing appointment, and each and every time that she was tested Ms. Vildosola was found to be drug-free.

207.  Plaintiffs are further informed and believe, and therefore allege, that Defendant Santana failed to perform his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶¶ 205-206, supra, Mr. Santana failed to perform in good faith, with due care, and with due diligence, and thereby breached his fiduciary duty to Mr. Jacobo.

208.  As a proximate result of Defendant Santana's said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at the time of trial.

209.  Plaintiffs claim punitive damages of Defendant Santana, because of the Defendant's wanton and egregious misconduct.

Michael Brush

210.  Plaintiffs are informed and believe, and therefore allege, that on or about the Fifteenth (15th) day of August, 1997, Plaintiff William Jacobo, Jr., contracted with Defendant Brush, with the understanding that the Defendant would perform certain professional services, to-wit:

a.          The filing of a motion for a new trial for Mr. Jacobo;

b.          The filing of an appeal before a California Appellate Court, and all necessary legal work, including motions and briefs; and

c.          All necessary court appearances pertaining to Mr. Jacobo’s appeal.

Plaintiffs are further informed and believe, and therefore allege, that Defendant Brush is an attorney licensed to practice in California.

211.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Santana had not performed his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, specifically, inter alia:

a.          Ineffective assistance of counsel, in that Mr. Santana did not perform with due care and diligence, and withheld crucial medical, exculpatory, and mitigating evidence from Mr. Jacobo;

b.          Failure to expose the conspiracy to convict plaintiffs Mr. Jacobo and Ms. Vildosola, said conspiracy perpetrated by the Department of Children’s Services, the prosecution, and other parties; and

c.          Grossly deficient investigation, including the complete failure to examine Destiny’s medical records, and the consequent failure to present any alternative explanations for Destiny’s death beyond what was alleged by the prosecution.

212.  Plaintiffs are informed and believe, and therefore allege, that among Mr. Brush’s many negligent, reckless, and/or wanton acts were, inter alia:  (1) his failure to depose, interview, or even contact DCS Attorney Augustine Vargas concerning Vargas’ knowledge of a conspiracy by the DCS against Ms. Vildosola and Mr. Jacobo; (2) his failure to depose, interview, or even contact Father George, the Catholic chaplain at the Los Angeles County Jail, concerning Father George’s knowledge of a conspiracy by the DCS, police, the prosecution, and defense attorneys against Ms. Vildosola and Mr. Jacobo; (3) his refusal to turn over to Mr. Jacobo Destiny’s autopsy report, and the Superior Court trial transcript; and (4) his failure to refer the alleged conspiracy charges to the California Justice Department, or to even contact a single governmental authority concerning said conspiracy.

213.  Plaintiffs are further informed and believe, and thereon allege, that Defendant Brush failed to perform his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶¶ 211-212 above, Mr. Brush failed to perform in good faith, with due care, and with due diligence, and thereby breached his fiduciary duty to Mr. Jacobo.

214.  As a proximate result of Defendant Brush's said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

215.  Plaintiffs claim punitive damages of Defendant Brush, because of the Defendant's wanton, extreme, and outrageous misconduct.

Juliana Drous

216.  Plaintiffs are informed and believe, and therefore allege, that in or about November of 1997, Plaintiff Patricia Vildosola contracted with Defendant Drous, with the understanding that the Defendant would perform for Ms. Vildosola certain professional, legal services, to-wit:

a.   The timely filing of a motion for a new trial for Ms. Vildosola;

b.   The filing of an appeal before a California Appellate Court, and all necessary legal work associated with said appeal, including motions and briefs; and

c.   All necessary court appearances pertaining to Ms. Vildosola’s appeal.

Plaintiffs are further informed and believe, and thereon allege, that Defendant Drous is an attorney licensed to practice in California.

217.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Drous had not performed her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, specifically, inter alia:

a.   Ineffective assistance of counsel, in that Ms. Drous did not perform with due care and diligence, and withheld crucial medical, exculpatory, and mitigating evidence from Ms. Vildosola;

b.   Failure to expose the conspiracy to convict plaintiffs Ms. Vildosola and Mr. Jacobo, said conspiracy perpetrated by the Department of Children’s Services, the prosecution, and other parties; and

c.   Grossly deficient investigation, including the complete failure to examine Destiny’s medical records, and the consequent failure to present any alternative explanations for Destiny’s death beyond what was alleged by the prosecution.

218.  Plaintiffs are informed and believe, and therefore allege, that among Ms. Drous’ many negligent, reckless, and/or wanton acts were, inter alia:  (1) Waiting until the deadline date (October 16, 1998) to file her appellate brief (the Notice of Appeal was filed by Guy O’Brien on October 16, 1997); (2) copying Mr. O’Brien’s Notice of Appeal almost verbatim in constructing Ms. Vildosola’s appellate brief, providing little or nothing in the appellate brief that was not already addressed in the Notice of Appeal; (3) performing little or no independent research or investigation; (4) failing to request Destiny’s medical records from Santa Marta Hospital; (5) making no effort to determine whether there were alternative medical explanations for Destiny’s death; (6) conducting no inquiries into the nature and validity of the Shaken Baby Syndrome, or other forms of child abuse; (7) formulating the appellate brief in such a way as to imply that Ms. Vildosola was a bad mother and drug abuser, asking for mercy from the appellate court based on a few unimpressive mitigating factors.

219.  Plaintiffs are further informed and believe, and thereon allege, that Defendant Drous failed to perform her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶¶ 217-218 above, Ms. Drous failed to perform in good faith, with due care, and with due diligence, and thereby breached her fiduciary duty to Ms. Vildosola.

220.  As a proximate result of Defendant Drous' said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

221.  Plaintiffs claim punitive damages of Defendant Drous, because of the Defendant's wanton, extreme, and egregious misconduct.

Augustine Vargas

222.  Plaintiffs are informed and believe, and thereon allege, that in or about December of 1995, Defendant Vargas was appointed by the Los Angeles County Department of Children’s Services, State of California, to perform for Plaintiff Mr. Jacobo certain professional, legal services, to-wit:  To serve Mr. Jacobo as a legal advisor concerning child custody matters, and to perform other duties ordinarily expected of a DCS attorney, including, but not necessary limited to, all necessary and appropriate:

(1) investigation;

(2) subpoenaing, interviewing, and preparation of witnesses; and

(3) production and timely filing of motions, briefs, and other legal documents.

Defendant Vargas is an attorney licensed to practice in California.

223.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Vargas had not performed his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge.  Namely, inter alia:

a.   Taking an antagonistic position toward Mr. Jacobo regarding the death of Destiny, bombastically blaming Mr. Jacobo for Destiny’s demise;

b.   On one occasion, when Mr. Jacobo was due in court for a parental rights trial, Mr. Vargas deprecated and denigrated Mr. Jacobo, contending that Mr. Jacobo was responsible for Destiny’s demise;

c.   Aside from a few incidents like those described in items a and b above, Mr. Vargas spent very little time consulting with Mr. Jacobo, and otherwise did little or no work on Mr. Jacobo’s case; and

d.   Mr. Vargas manipulated Mr. Jacobo into waiving his right to a parental rights trial, thereby causing Mr. Jacobo to lose custody of his children.

224.  Plaintiffs are further informed and believe, and thereon allege, that Defendant Vargas failed to perform his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶ 223 above, Mr. Vargas failed to perform in good faith, with due care, and with due diligence, and thereby breached his fiduciary duty toward Mr. Jacobo.

225.  As a proximate result of Defendant Vargas’ said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

226.  Plaintiffs claim punitive damages of Defendant Vargas, because of the Defendant's wanton misconduct.

Nathaniel Hoffman

227.  Plaintiffs are informed and believe, and thereon allege, that in or about April of 1994, Defendant Hoffman was appointed by the Los Angeles County Department of Children’s Services, State of California, to perform for Esther Jacobo certain professional, legal services, to-wit:  To advise and assist Ms. Jacobo in matters pertaining the custody and welfare of her great-grandchildren—i.e., the children of her grandson, William Jacobo, Jr.—and to perform all other duties ordinarily expected of an attorney, including, but not necessary limited to, all necessary and appropriate:

(1) investigation;

(2) subpoenaing, interviewing, and preparation of witnesses; and

(3) production and timely filing of motions, briefs, and other legal documents.

Defendant Hoffman is an attorney licensed to practice in California.

228.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Hoffman had not performed his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge.  Namely, inter alia:

a.  Coercing Esther into testifying against Ms. Vildosola and Mr. Jacobo, by telling Esther, an octogenarian, that she would be arrested and imprisoned if she did not cooperate with the assistant district attorney, then persuading Esther, against her own interests, into accepting the prosecutor’s offer of immunity contingent upon her (Esther’s) provision of indictable information against Ms. Vildosola and Mr. Jacobo, thus manipulating Esther into making false statements against her grandson and granddaughter-in-law, including, inter alia:  (1) that Ms. Vildosola was a drunkard; (2) that Ms. Vildosola was abusive and violent; (3) that she (Esther) was afraid of Ms. Vildosola, and hence kept her bedroom door padlocked at night; (4) that Ms. Vildosola was a bad mother, who did not sufficiently feed or take good care of Destiny; and (5) that Mr. Jacobo took no action when she (Esther) told him that Destiny needed medical attention.  During the trial, Esther denied the veracity of most, if not all, of the above statements, and denied that she ever made some of the purported declarations.

b.   Supporting Ms. Romero’s (see ¶¶ 237-238, infra) assertions that Esther made certain statements against Ms. Vildosola and Mr. Jacobo, some of which are detailed in ¶ 228a., supra, which Esther denies ever saying,;

c.   Doing little or no legal work on behalf of Esther, aside from being present at two of her interrogations, one conducted by Assistant D.A. Blake Rommel, and the other by Assistant D.A. Cheri Lewis, during which time Mr. Hoffman seemed far more interested in extracting incriminating information from Esther than in providing legal protection and counsel to her or other members of her family; and

d.   Abandoning Esther during the criminal trial of Ms. Vildosola and Mr. Jacobo, providing no legal assistance or advise to Esther, despite his involvement in Esther’s pre-trial interrogations.

229.  Plaintiffs are further informed and believe, and thereon allege, that Defendant Hoffman failed to perform his duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶ 228 above, Mr. Hoffman failed to perform in good faith, with due care, and with due diligence, and thereby breached his fiduciary duty toward Ms. Esther Jacobo.

230.  As a proximate result of Defendant Hoffman’s said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

231.  Plaintiffs claim punitive damages of Defendant Vargas, because of the Defendant's wanton, willful, and outrageous misconduct.

Linda Nakamura

232.  Plaintiffs are informed and believe, and thereon allege, that in or about April of 1994, Defendant Nakamura was appointed by the Los Angeles County Department of Children’s Services, State of California, to perform for Ms. Vildosola certain professional, legal services, to-wit:  To advise and assist Ms. Vildosola in matters pertaining the custody and welfare of her children, and to perform all other duties ordinarily expected of an attorney, including, but not necessary limited to, all necessary and appropriate:

(1) investigation;

(2) subpoenaing, interviewing, and preparation of witnesses; and

(3) production and timely filing of motions, briefs, and other legal documents.

Defendant Nakamura is an attorney licensed to practice in California.

233.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Nakamura had not performed her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge.  Namely, inter alia:

a.  Withholding, ignoring, or otherwise overlooking exculpatory evidence about Destiny’s medical condition from Ms. Vildosola and others, despite admitting to Mr. Jacobo that she was aware of Destiny’s “frail[ty]”;

b.   Advising Ms. Vildosola to waive her right to a parental rights trial, in the same manner as Augustine Vargas advised Mr. Jacobo to waive his rights, thereby causing both parents to lose custody of three of their children—Daniel William Jacobo, Nicole Christine Jacobo, and Marina Francine Neria;

c.   Involvement in a conspiracy to cover up facts embarrassing to DCS, including, inter alia:  (1) the fact that Destiny was sickly when she was removed from the Garzas’ home and returned to the custody of Ms. Vildosola and Mr. Jacobo, and (2) the DCS’ failure to take appropriate action after learning that Little Billy sexually abused his siblings.

234.  Plaintiffs are further informed and believe, and thereon allege, that Defendant Nakamura failed to perform her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶ 233 above, Ms. Nakamura failed to perform in good faith, with due care, and with due diligence, and thereby breached her fiduciary duty toward Mr. Jacobo.

235.  As a proximate result of Defendant Nakamura’s said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

236.  Plaintiffs claim punitive damages of Defendant Nakamura, because of the Defendant's wanton, insidious, and deceitful misconduct.

Cynthia Romero

237.  Plaintiffs are informed and believe, and thereon allege, that in or about April of 1994, Defendant Romero was assigned by the Los Angeles County Department of Children’s Services, State of California, to handle legal matters pertaining to the custody, guardianship, and welfare of several of the children of Ms. Vildosola and Mr. Jacobo—specifically, Destiny Jacobo, Marina Francine Neria, Daniel William Jacobo, and Nicole Christine Jacobo—and to perform all other duties ordinarily expected of an attorney, including, but not necessary limited to, all necessary and appropriate:

(1) investigation;

(2) subpoenaing, interviewing, and preparation of witnesses; and

(3) production and timely filing of motions, briefs, and other legal documents.

Defendant Romero is an attorney licensed to practice in California.

238.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Romero had not performed her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge.  Namely, inter alia:

A.  Conspiring with other employees of the DCS, the District Attorney’s Office, and other parties to cover up certain misdeeds of the DCS which, if exposed, might subject the DCS to legal liability, massive expense, and public notoriety, and might result in the discharge or reassignment of many DCS employees;

B.  Withholding exculpatory evidence about Destiny’s medical condition, particularly the fact that Destiny was frail and sickly when she was removed from the Garzas and returned to the custody of her birth mother, Ms. Vildosola;

C.  Withholding potentially exculpatory evidence about Little Billy’s sexual abuse of his siblings, and the DCS’ failure to take action following the reporting of said abuse;

D.  Averring that Esther Jacobo made certain incriminating statements about Ms. Vildosola and Mr. Jacobo, which Esther denies ever making, including, inter alia:  (1) that Ms. Vildosola was a drunkard; (2) that Ms. Vildosola was abusive and violent; (3) that she (Esther) was afraid of Ms. Vildosola, and hence kept her bedroom door padlocked at night; (4) that Ms. Vildosola was a bad mother, who did not sufficiently feed or take good care of Destiny; and (5) that Mr. Jacobo took no action when she (Esther) told him that Destiny needed medical attention;

E.   Failure to perform in the best interests of her clients—namely, Destiny Willeen Jacobo, Marina Francine Neria, Daniel William Jacobo, and Nicole Christine Jacobo—in that:  (1) Ms. Romero was at least partially responsible for Destiny’s death, because, inter alia, she (a) failed to inform Ms. Vildosola and Mr. Jacobo about Destiny’s medical condition following her (Destiny’s) stay with the Garzas, and (b) neglected to take appropriate action after receiving reports of Little Billy’s sexual abuse of his siblings; and (2) Ms. Romero irreparably disrupted the Vildosola-Jacobo family by arranging for the placement of Daniel, Nicole, and Marina in foster homes, and allowing no communication or visitation; and

F.  Requiring Mary Louise Jacobo, Destiny’s grandmother—as a condition for receiving custody of Daniel, Marina, and Nicole—to admit that her son, William Jacobo, Jr., and her daughter-in-law, Ms. Vildosola, were guilty of Destiny’s abuse and murder—a condition which could not be ethically honored, because of the obvious innocence of Mr. Jacobo (who was exonerated) and Ms. Vildosola (who remains imprisoned on false charges).

239.  Plaintiffs are further informed and believe, and thereon allege, that Defendant Romero failed to perform her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶ 238 above, Ms. Romero failed to perform in good faith, with due care, and with due diligence, and thereby breached her fiduciary duty toward Destiny, Marina, Daniel, and Nicole.

240.  As a proximate result of Defendant Romero’s said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

241.  Plaintiffs claim punitive damages of Defendant Romero, because of the Defendant's wanton, conspiratorial, and draconian misconduct.

Rene Bilson

242.  Plaintiffs are informed and believe, and thereon allege, that in or about April of 1994, Defendant Bilson—by virtue of her role as Ms. Romero’s supervisor at the Los Angeles County Department of Children’s Services, State of California—became involved with legal matters pertaining to the custody, guardianship, and welfare of several of the children of Ms. Vildosola and Mr. Jacobo—specifically, Destiny Jacobo, Marina Francine Neria, Daniel William Jacobo, and Nicole Christine Jacobo—and thereby became responsible for the supervision of all other duties ordinarily expected of a DCS attorney, including, but not necessary limited to, all necessary and appropriate:

(1) investigation;

(2) subpoenaing, interviewing, and preparation of witnesses; and

(3) production and timely filing of motions, briefs, and other legal documents.

Defendant Bilson is an attorney licensed to practice in California.

243.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that Defendant Romero had not performed her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge.  Namely, inter alia:

A.  Conspiring with other employees of the DCS, the District Attorney’s Office, and other parties to cover up certain misdeeds of the DCS which, if exposed, might subject the DCS to legal liability, massive expense, and public notoriety, and might result in the discharge or reassignment of many DCS employees;

B.  Withholding exculpatory evidence about Destiny’s medical condition, particularly the fact that Destiny was frail and sickly when she was removed from the Garzas and returned to the custody of her birth mother, Ms. Vildosola;

C.  Withholding potentially exculpatory evidence about Little Billy’s sexual abuse of his siblings, and the DCS’ failure to take action following the reporting of said abuse;

D.  Maintaining that Esther Jacobo made certain incriminating statements about Ms. Vildosola and Mr. Jacobo, which Esther denies ever making, including, inter alia:  (1) that Ms. Vildosola was a drunkard; (2) that Ms. Vildosola was abusive and violent; (3) that she (Esther) was afraid of Ms. Vildosola, and hence kept her bedroom door padlocked at night; (4) that Ms. Vildosola was a bad mother, who did not sufficiently feed or take good care of Destiny; and (5) that Mr. Jacobo took no action when she (Esther) told him that Destiny needed medical attention;

E.  Failure to perform in the best interests of her clients—namely, Destiny Willeen Jacobo, Marina Francine Neria, Daniel William Jacobo, and Nicole Christine Jacobo—in that:  (1) Ms. Bilson was at least partially responsible for Destiny’s death, because, inter alia, she (a) failed to inform Ms. Vildosola and Mr. Jacobo about Destiny’s medical condition following her (Destiny’s) stay with the Garzas, and (b) neglected to take appropriate action after receiving reports of Little Billy’s sexual abuse of his siblings; and (2) Ms. Bilson irreparably disrupted the Vildosola-Jacobo family by arranging for the placement of Daniel, Nicole, and Marina in foster homes, and allowing no communication or visitation;

F.   Requiring Mary Louise Jacobo, Destiny’s grandmother—as a condition for receiving custody of Daniel, Marina, and Nicole—to admit that her son, William Jacobo, Jr., and her daughter-in-law, Ms. Vildosola, were guilty of Destiny’s abuse and murder—a condition which could not be ethically honored, because of the obvious innocence of Mr. Jacobo (who was exonerated) and Ms. Vildosola (who remains imprisoned on false charges); and

G.   Vicarious or respondeat superior liability, as Cindy Romero’s supervisor, for all damages to Plaintiffs caused by purposeful, knowing, reckless, or negligent acts of Ms. Romero.

244.  Plaintiffs are further informed and believe, and thereon allege, that Defendant Bilson failed to perform her duties in the same manner as an attorney in California who possessed and exercised ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence, recklessness, and/or wantonness in that, by virtue of the behavior outlined in ¶ 243 above, Ms. Bilson failed to perform in good faith, with due care, and with due diligence, and thereby breached her fiduciary duty toward Destiny, Marina, Daniel, and Nicole.

245.  As a proximate result of Defendant Bilson’s said negligence, recklessness, and/or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

246.  Plaintiffs claim punitive damages of Defendant Romero, because of the Defendant's wanton, conspiratorial, and draconian misconduct.

Los Angeles County Department of Children’s Services (DCS)

247.  On or about the 29th day of March, 1994, the Defendant DCS became involved with Ms. Vildosola and her children as the result of a positive finding for cocaine in a urinary drug test taken by Ms. Vildosola shortly after Destiny’s birth.

248.  On or about the Twenty-First (21st) day of March, 2001, Plaintiffs discovered for the first time certain facts which made them aware that several attorneys working for the DCS, including Defendants Bilson, Romero, Vargas, Hoffman, and Nakamura, had not performed their duties in the same manner as an attorney in California who possesses and exercises ordinary and reasonable legal skills and knowledge, as detailed in ¶¶ 197-198, 205-206, 211-212, 217-218, 223, 228, 233, 238, and 243 above.

249.  Defendant DCS, in accordance with the principles of respondeat superior and vicarious liability, failed to perform its duties in the same manner as [an] attorney(s) in California possessing and exercising ordinary and reasonable legal skills and knowledge, and was therefore guilty of negligence or wantonness, in that it breached its legal duties owed to Plaintiffs, as exemplified in ¶¶ 197-198, 205-206, 211-212, 217-218, 223, 228, 233, 238, and 243, supra.

250.  As a proximate result of the Defendant DCS' said negligence or wantonness, Plaintiffs were caused to suffer injuries and damages amounting to a sum in excess of FIFTY THOUSAND DOLLARS ($50,000.00), the exact amount to be determined at a later date.  Plaintiffs hereby reserve the right to increase or otherwise alter the amount of the damage assessment after further discovery, either prior to or at time of trial.

251.  Plaintiffs claim punitive damages of Defendant, because of the wanton misconduct of many of the Defendant’s agents or employees.

252.  WHEREFORE, Plaintiffs demand:

a.          Judgment against each Defendant in the sum of no less than Fifty Thousand Dollars ($50,000.00), the exact amount to be determined later;

b.          Recovery of the costs and expenses of this action from the Defendants;

c.          A refund of any and all fees paid to defendant and appellate attorneys; and

d.          Any further relief that the Court deems appropriate.

 

FIFTH CLAIM FOR RELIEF

by THE ESTATE OF DESTINY WILLEEN JACOBO, Plaintiffs PATRICIA VILDOSOLA and WILLIAM JACOBO, Jr., individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.;  JOANNE GARZA; and CHERI LEWIS, ESQ., individuals; and DOES 36-45, for

DEFAMATION, LIBEL, AND SLANDER

 

253.  Plaintiffs refer to and incorporate by reference, each and every paragraph set forth above, as though each were fully set forth herein.  In particular, Plaintiffs refer to and incorporate, as though each were fully set forth hereat, paragraphs 195-249, inclusive.

254.  The following citation is an example of the many defamatory, libelous, and/or slanderous statements made by the specified defendant(s) about the indicated plaintiff(s):

Dr. Francis Sheridan was interviewed by the Pasadena Star-News several weeks before the criminal trial of Mr. Jacobo and Ms. Vildosola.  The Star-News published Dr. Sheridan’s assertion that Carissa Neria and Destiny Jacobo were both murdered by her parents, and that they were victims of physical abuse and the shaken baby syndrome.  Not only were Dr. Sheridan’s statements defamatory and slanderous, but they also biased the upcoming trial, because most of the Pasadena citizenry from which the jury was derived were exposed to much negative publicity about Mr. Jacobo and Ms. Vildosola, including but not limited to Dr. Sheridan’s published interview.

255.  Each of the above statements is and was false, untrue, and defamatory, and the Pasadena Star-News interview of Dr. Sheridan, dated March 15, 1997, is libelous on its face.  The interview wrongfully accuses Plaintiffs Mr. Jacobo and Ms. Vildosola, and was intended to wrongfully accuse Plaintiffs, of actions and statements that are false, defamatory and damaging.  The Star-News interview clearly exposes Plaintiffs to hatred, contempt, ridicule and obloquy, because it falsely accuses and depicts Plaintiffs, among other things, as parents who acted in a heinous and criminal manner, and who intentionally abused and killed their infant baby Destiny.

256.  Sheridan and/or DOES 36 through 45, and each of them, jointly or individually, wrote, printed, published and circulated, and/or caused to be written, printed, published and circulated, the libelous statements concerning Plaintiffs either with knowledge of the falsity of the statements or with reckless disregard for the truth.

257.  The above-referenced statements appearing in the March 15, 1997, issue of the Pasadena Star-News were understood by those who read them to have the defamatory meaning ascribed to and intended by the defendants.  Dr. Sheridan and/or DOES 36 through 45, and each of them, jointly or separately, intended the March 15, 1997, story to be read by purchasers of the March 15, 1997, edition of the Pasadena Star-News, knowing that each issue of the Pasadena Star-News is read by at least hundreds of thousands of people within the County of Los Angeles, California, where Plaintiffs resided and worked, and specifically within the City of Pasadena, where Plaintiffs’ criminal trial was scheduled to occur.

258.  At the time that the March 15, 1997, story was publicly distributed throughout the City of Pasadena and Los Angeles County, Sheridan and/or DOES 36 through 45, and each of them, jointly or separately, were in possession of evidence which would raise serious doubt about the truth of the statements made in the March 15, 1997, story.  In fact, Sheridan changed the autopsy of Carissa Neria, who died in 1991, to indicate that the cause of death was Shaken Baby Syndrome only after Destiny died in December of 1995, and his motive for such autopsy revisions was obviously to increase the likelihood that Ms. Vildosola and Mr. Jacobo would be convicted of killing Destiny.  Nevertheless, Sheridan and/or DOES 36 through 45, and each of them, jointly or separately, without due regard for the truth, falsity, or malicious nature of the statements, formulated, published and disseminated the March 15, 1997, story for the purpose of, among other things, publicly embarrassing and humiliating the Plaintiffs.  The untruthful statements were therefore made with actual malice, with the knowledge that each such statement was false and was published with reckless disregard of their truthfulness.

259.  At the time when the March 15, 1997, story was publicly distributed throughout the City of Pasadena and County of Los Angeles, California, Sheridan and/or DOES 36 through 45, and each of them, jointly or separately, failed to sufficiently investigate the reliability and validity of their statements.  Thus, Defendants, and each of them, lacked any substantial reason to believe in the truth of the allegations contained within the story of March 15, 1997.  The untruthful statements were therefore made with actual malice and with the knowledge that each such statement was false, and the statements were published with reckless disregard of their truthfulness.

260.  The defamatory March 15, 1997, story was published with reckless disregard for the truth of the matter, and defendants knew at the time the statements were formulated that they were false and injurious to Plaintiffs.  The March 15, 1997, story was intended by defendants, and each of them, to directly injure each of the Plaintiffs with respect to their reputation, character, home life, and business.

261.  Defendants, and each of them, were also negligent in publishing the story of March 15, 1997.  With ordinary and reasonable care, defendants would have realized, or could have discovered, that the March 15, 1997, story was obviously false and grossly libelous, offensive and damaging to Plaintiffs.

262.  Plaintiffs are informed and believe, and thereon allege, that the above statements by Dr. Sheridan were intended to adversely effect Plaintiffs Ms. Vildosola and Mr. Jacobo in their criminal trial, as well as all of the Plaintiffs in their future livelihoods, opportunities, business endeavors, and even this instant civil litigation.  Furthermore, Dr. Sheridan’s libelous statements were intended to state and imply moral turpitude, neglect, and malice, none of which were true.  Moreover, the above slanderous statements were intended to adversely affect the economic, social, and psychological well-being of all members of the Jacobo and Vildosola families, including, inter alia, Little Billy, Michael, Anthony, Daniel, Nicole, and Marina.

263.  Plaintiffs are informed and believe, and thereon allege, that as a direct and proximate result of the above-described publication, Plaintiffs suffered the following special damages:  the loss at various times of the Plaintiffs’ familial support and comfort, consortium, financial sustenance, and all of the related privileges thereto, as well as a loss of general esteem in which the Plaintiffs were held in their community.  Plaintiffs were also shunned by their friends, neighbors, and former business associates and clients.

264.  Plaintiffs are further informed and believe, and thereon allege, that as an additional direct and proximate result of the above-described slander, the community of Pasadena, from which Mr. Jacobo’s and Ms. Vildosola’s jury was picked, were so biased against Mr. Jacobo and Ms. Vildosola that they were convicted of, inter alia, second degree murder.  For nearly two years prior to their convictions, and for many years after said convictions, Plaintiffs Ms. Vildosola and Mr. Jacobo, because of their imprisonments, were forcibly disconnected from their family, friends, community, associates, and business clients.

265.  As a legal result of the March 15, 1997, story and the false statements, Plaintiffs have suffered loss of reputation, shame and mortification, all to their general damage in a sum to be proved at trial, but in an amount not less than Fifty Thousand Dollars ($50,000.00).

266.  The defamatory statements contained in the March 15, 1997, story were not privileged in any manner.  The statements were intended by defendants, and each of them, to directly injure Plaintiffs with respect to their reputations, characters, and businesses.

267.  Therefore, as a legal result of the March 15, 1997, story, Plaintiffs have suffered severe emotional distress, all to their general damage, in a sum not less than Fifty Thousand Dollars ($50,000.00), the exact amount of which to be proven at trial.

268.  As a legal result of the intentional and malicious conduct of Sheridan and DOES 36 through 45, and each of them, jointly or separately, Plaintiffs have suffered with respect to their properties, businesses, trades, professions, and occupations, all to their special damages in a sum to be determined at time of trial.

269.  The above-described unprivileged and defamatory statements were published by the Defendant(s) because of their feelings of hatred and ill-will toward the Plaintiffs and with a desire to oppress and silence the Plaintiffs and to continue to control their bodies, minds, and earnings.

270.  By engaging in the misconduct alleged above, Sheridan and/or DOES 36 through 45, and each of them, jointly or individually, intended to cause Plaintiffs injury, or engaged in that misconduct with willful and conscious disregard for the rights of the Plaintiffs.  Defendants Sheridan and/or DOES 36 through 45, and each of them, jointly or separately, were aware of the probable dangerous consequences of their misconduct, and willfully and deliberately failed to avoid those consequences, including subjecting Plaintiffs to false conviction, imprisonment, life-threatening dangers, and cruel and unjust hardship, in conscious disregard of Plaintiffs’ rights.

271.  The conduct of the Defendant(s) was oppressive, fraudulent, and malicious, thereby entitling Plaintiffs to an award of punitive damages in an amount to punish and make an example of Defendants, but in no event less than One Hundred and Fifty Thousand Dollars ($150,000.00), the exact sum to be determined at time of trial.

Defamation of Character—Slander Per Se

272.  Plaintiffs repeat and reallege Paragraphs 254 through 271, and incorporate said paragraphs as though fully set forth herein.

273.  Dr. Sheridan’s statements accusing Mr. Jacobo and Ms. Vildosola of murdering their daughters Carissa and Destiny were spoken with knowledge that they were likely to be repeated in The Pasadena Star-News and other media.

274.  Sheridan’s statements falsely accuse Ms. Vildosola and Mr. Jacobo of improper and unlawful parenting, as well as abusive and homicidal behavior.  Such conduct is a crime in California pursuant to Business and Professions Code Section 6152 and as such, Sheridan’s statements are defamatory per se.

275.  Sheridan’s statements were further defamatory on their face, as they exposed Plaintiffs to hatred, contempt, ridicule, obloquy, and severe adverse economic consequences, and would naturally tend to damage their ability to obtain a fair and just trial.

276.  In truth, Mr. Jacobo and Ms. Vildosola are not abusive or murderous people, but instead are excellent parents, who have successfully raised several healthy and well-adjusted children—including William III, Michael, Anthony, Daniel, Nicole, and Marina—and have little or no history of violent or criminal behavior.  Mr. Jacobo and Ms. Vildosola have spent considerable effort throughout their adult lives to provide the utmost in parental love and support to their children.  In this way, Mr. Jacobo and Ms. Vildosola have sought to build and have built a solid reputation for honesty, morality, and good character throughout the community.  Sheridan’s statements injured the Plaintiffs socially by imputing criminal conduct and a lack of morality to them and to the manner in which they conduct themselves domestically.

277.  At the time that Sheridan made the statements, Defendants, and each of them, knew the true facts pertinent to the trial of Mr. Jacobo and Ms. Vildosola, and knew that Ms. Vildosola had never been indicted or charged with killing her daughter Carissa Neria.  Despite this knowledge of the true facts, Defendant Sheridan made defamatory statements in an effort to portray the Plaintiffs in the most unlawful, immoral, and unflattering light, in order to:  (1) adversely affect their reputation in the community for truth, morality, and civil conduct; (2) increase the likelihood that they would be found guilty of, inter alia, murder and child abuse; and (3) negatively affect their familial, social, and psychological well-being.

278.  Defendant(s) knew that their defamatory statements, and the implications derived therefrom, were false and misleading in their entirety and had no basis in fact whatsoever, or acted in conscious and reckless disregard of the falsity of the statements and implications derived therefrom.

279.  As a direct and proximate result of the above-described statements, the Plaintiffs have been and continue to be embarrassed and humiliated by the false statements and implications, and reasonably fear that they will be shunned, avoided and subjected to ridicule by existing and potential business associates and clients, and by people in their home community of Southern California.  Additionally, the Plaintiffs have suffered, and fear that they may continue to suffer, significant damage to their reputations, particularly among those who do not know them personally or professionally, and do not know of their unimpeachably fine characters.  As a result of such actual and potential damage to their reputations, the Plaintiffs’ business, personal, and familial relationships have been and are likely to continue to be adversely affected.  These damages are in an amount which cannot presently be ascertained, but which Plaintiffs are informed and believe is in excess of the Court's jurisdictional minimum requirements, according to proof at trial.

280.  As a further direct and proximate result of the aforementioned conduct, the Plaintiffs suffered and will continue to suffer severe emotional distress and mental anguish.  Specifically, Mr. Jacobo, Ms. Vildosola, Billy III, Michael, and Anthony (and probably some or all of the other children) have suffered from emotional pain, anxiety, worry, anger and victimization.  Furthermore, the Plaintiffs continue to worry that in this age of the Internet and the World Wide Web, the defamatory statements made by the Defendant(s) will continually and permanently haunt them, will always be available through computer retrieval systems and Internet news services, and will therefore adversely affect the Plaintiffs throughout the remainder of their lives.

281.  Defendants, and each of them, have acted willfully, maliciously and with the intent to injure the Plaintiffs as set forth above.  As such, the Plaintiffs are entitled to recover punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from such conduct in the future.  All damages set forth herein are subject to proof at the time of trial.

 

SIXTH CLAIM FOR RELIEF

by Plaintiffs the ESTATE OF DESTINY WILLEEN JACOBO; and WILLIAM JACOBO, JR. and PATRICIA VILDOSOLA, individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; THOMAS LIN, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; and JOANNE GARZA, individuals; and DOES 46-50, for

FALSE LIGHT INVASION OF PRIVACY

 

282.  Plaintiffs refer to and incorporate by reference, each and every paragraph set forth above, as though each were fully set forth herein.  In particular, Plaintiffs refer to and incorporate, as though each were fully set forth hereat, paragraphs 253-281, inclusive.

283.  On or about the Fifteenth day of March, 1997, Defendant Sheridan exposed the Plaintiffs to unwarranted publicity in that he caused to be published false, defamatory statements about the Plaintiffs—specifically, that they abused and killed two of their children, Carissa Neria and Destiny Jacobo—and thereby invaded the Plaintiffs' privacy.

284.  On or about the 6th (sixth) day of December, 1995, and thereafter, the Defendants wrongfully intruded into the Plaintiffs’ private activities so as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities in that the Plaintiffs were repeatedly exposed to the public in newspaper articles and television news stories as murderers, baby killers, sexual and physical abusers, cocaine addicts, immoral, and living in squalid circumstances.

285.  Plaintiffs are informed and believe, and thereon allege, that the most troubling, invasive, and false media depictions were those suggesting that Ms. Vildosola was a drug addict, and that Destiny was a “crack baby.”  Although Ms. Vildosola did experiment with powder cocaine a few times, she never used crack cocaine, and was never a cocaine addict.  Furthermore, Destiny was not a crack baby, and was never dependent upon any pharmaceutical or illicit drug.

286.  The Plaintiffs, as a proximate consequence of the said invasion of Plaintiffs’ privacy, were caused to suffer, inter alia, shame, humiliation, embarrassment, damage to reputation, threats upon their lives, social rejection, obloquy, condemnation, familial disruption, loss of business associates and opportunities, and loss of personal liberty.

287.  Plaintiffs claim punitive damages of the Defendants because of the gross, oppressive, and willful nature of the Defendants’ conduct.

288.  WHEREFORE, Plaintiffs demand judgment against Defendants in an amount of no less than $50,000.00 plus costs, in addition to punitive or exemplary damages, the exact amount to be determined at time of trial.

 

SEVENTH CLAIM FOR RELIEF

by Plaintiffs Mary Louise Jacobo; William Jacobo, Jr.; Patricia Inez Vildosola; William Jacobo III; Michael William Jacobo; Anthony James Jacobo; Marina Francine Neria; Daniel William Jacobo; and Nicole Christine Jacobo, individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; and JOANNE GARZA, individuals; and DOES 51-60, for

FALSE ARREST AND IMPRISONMENT

 

289.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above as though each were fully set forth herein.  In particular, Plaintiffs refer to and incorporate, as though each were fully set forth herein, Paragraphs 282-287.

290.  Defendants' conduct, in pertinent part, as set forth above, including, but not limited to, Defendants' agents and others acting on behalf of Defendants herein, in contributing, either directly or indirectly, to the arrest, imprisonment, physical restraint, and loss of liberty of Plaintiffs MS. VILDOSOLA and MR. JACOBO, was tortious and without any applicable privilege.

291.  Plaintiffs are informed and believe, and thereon allege, that four factors were particularly salient in causing the false, tortious and outrageous arrest and incarceration of Plaintiffs Ms. Vildosola and Mr. Jacobo:

(1) The need to squelch the burgeoning controversy over the legitimacy, functionality, and competency of the DCS and its employees, by diverting attention toward a patsy or fall-guy (i.e., Destiny’s parents);

(2) The fact that Ms. Vildosola and Mr. Jacobo are relatively indigent, undereducated mestizos (i.e., mixed Mexican Indian and Latino), who could not afford the price of justice, nor fully understand the nature of the false charges against them, and could thus be convenient and permanent scapegoats;

(3) The overzealous nature of the American prosecutorial system, which—for short-sighted political reasons—narrow-mindedly fixates on convicting each defendant above all else, often ignoring truth, ethics, fair play, factual details, and exculpatory evidence; and

(4) The poor understanding of medicine, particularly pediatric neuropathology, among all parties except for a handful of expert witnesses unaffordable to the Plaintiffs, and the consequent reliance upon the fallible and tendentious opinions of people like:  (a) JOSEPH BOGGS, working with a suspended license in the SANTA MARTA HOSPITAL emergency room, whose negligent performance was the primary cause of DESTINY’s death, and who attributed Destiny’s demise to physical abuse in order to avoid civil and criminal liability; and (b) the coroner (in this case represented by JAMES RIBE), whose role is generally prosecutorial, and subject to bias favoring the State.

292.  In recent years, a “witch hunt” mentality has developed regarding child physical and sexual abuse—that is, a growing tendency to accuse parents of physical or sexual abuse whenever an infant has unexplained injuries or dies unexpectedly.  Such accusations are particularly likely to occur if the parents are poor or undereducated, or if the family has a history of involvement with child protective services.  Since DCS wanted to avoid a scandal, it took advantage of the current witch hunt atmosphere to accuse Ms. Vildosola and Mr. Jacobo of sexual and physical abuse.  Although the untrue, libelous, and malicious sexual abuse charges were eventually dropped, the equally untrue, defamatory, and invidious physical abuse charges stuck—resulting in the false imprisonment of both parents, followed by false murder convictions.  Mr. Jacobo’s murder conviction was reversed after five years of false imprisonment, but Ms. Vildosola remains falsely imprisoned.

293.  Not only was the DCS motivated to promulgate false sexual and physical abuse charges, in order to deflect public scrutiny away from themselves, but Dr. Boggs was also motivated to make the same false charges to conceal his medical malpractice.

294.  The Defendants had no reasonable cause to believe that Plaintiffs Vildosola and Jacobo had ever sexually or physically abused or murdered Destiny, nor any other legal excuse for their actions.

295.  The criminal justice system of Los Angeles County jumped to the conclusion that Ms. Vildosola and Mr. Jacobo were abusive and murderous parents, relying heavily upon:  (1) the opinion of a shady physician (Boggs) with a suspended license, who disappeared from Santa Marta Hospital on the heels of Destiny’s death; and (2) DCS personnel, some of whom (HIGA and BARBOSA) were discharged by the DCS in the wake of the controversy caused by Destiny’s death.  Despite such shaky and dubious information, Ms. Vildosola and Mr. Jacobo were falsely arrested, and before their criminal trial began, they had already been falsely imprisoned for nearly two years.

296.  The State of California is far too willing to accept dubious accusations of child sexual and physical abuse, and to falsely arrest and incarcerate destitute parents who are the victims of such false accusations.  After spending nearly two years in jail prior to trial, Ms. Vildosola and Mr. Jacobo were not in a position to present an effective defense, especially with mediocre public defenders who were incapable of challenging the tendentious and erroneous—if not perjurious—testimony of pathologist James Ribe.

297.  By causing the false arrest and imprisonment of Ms. Vildosola and Mr. Jacobo based upon dubious evidence provided by actors (i.e., the DCS and Boggs) with obvious motives for prevarication, as more fully described hereinbefore, Defendants, and each of them, acted with deliberate malice for the purpose of wrongfully attributing the unfortunate death of Destiny to the sexual and physical abuse of her poor, innocent, and grieving parents.

298.  As a proximate result of the acts of Defendants set out herein and in the Factual Summary (i.e., General Allegations) above, as well as many physical and psychological attacks by fellow prisoners because of their status as child-murderers, Plaintiffs were injured in their health, strength and activity, sustaining injury to their bodies, and shock and injury to their nervous systems and person, all of which injuries have caused Plaintiffs to suffer extreme and severe physical pain and mental anguish.

299.  Plaintiffs, including Ms. Vildosola and Mr. Jacobo; their children WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, ANTHONY JAMES JACOBO, NICOLE CHRISTINE JACOBO, DANIEL WILLIAM JACOBO, and MARINA FRANCINE NERIA; and the grandmother MARY LOUISE JACOBO, have been damaged as a direct and proximate result of the Defendants’ actions.  In particular, they have suffered injuries including but not limited to:

(a) inconvenience; (b) insult; (c) mental distress; (d) embarrassment; (e) humiliation; (f) anxiety; and (g) emotional pain and suffering.  All damages set forth herein are subject to proof at the time of trial.

300.  Defendants, and each of them, engaged in the false imprisonment of Plaintiffs as herein alleged, and were willful, wanton, reckless, despicable, malicious, oppressive, and further show a complete and deliberate indifference to, and conscious disregard for, the rights of the Plaintiffs.  Therefore, Plaintiffs are entitled to an award of punitive or exemplary damages in an amount sufficient to punish Defendants, and to deter the Defendants and other entities from like conduct in the future.  The Plaintiffs herein demand from Defendants, and each of them, punitive damages in an amount to be proven at trial.

301.  WHEREFORE, plaintiffs pray that this Court, after a trial by jury of their claims, enter a judgment against defendant for plaintiffs’ actual damages, nominal damages, and punitive or exemplary damages as are fair and reasonable, for costs incurred herein, and for any such further legal and equitable relief as this Court deems appropriate.

 

EIGHTH CLAIM FOR RELIEF

by Plaintiffs Mary Louise Jacobo; William Jacobo, Jr.; Patricia Inez Vildosola; William Jacobo III; Michael William Jacobo; Anthony James Jacobo; Marina Francine Neria; Daniel William Jacobo; and Nicole Christine Jacobo, individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; and CHERI LEWIS, ESQ., individuals; and DOES 61-70, for

MALICIOUS PROSECUTION (Wrongful Criminal Proceeding)

 

302.  Plaintiffs refer to and incorporate by reference, each and every paragraph set forth above, as though each were fully set forth herein.  In particular, Plaintiffs refer to and incorporate, as though each were fully set forth hereat, paragraphs 289-298, inclusive.

303.  Plaintiffs are informed and believe, and thereon allege, that Defendants ROMERO, BILSON, the Los Angeles County Department of Children’s Services, LEWIS, and the offices of the Los Angeles County District Attorney (DA) had and have an affirmative duty to:

(A) act in the best interests of the children of Los Angeles County;

(B) act in the best interests of the parents of Los Angeles County, whenever such actions are in the interests of children, or not contrary to the interests of children;

(C) determine whether court proceedings against children or their parents are not contrary to factual information available to the DCS or DA, or to any DCS or DA employees;

(D) determine whether court proceedings are not being presented for retaliation or harassment, or out of spitefulness; and

(E) determine whether court proceedings against children or their parents are not being conducted to conceal or divert attention from improper or illegal actions by DCS employees, or by other entities;

(F) determine whether court proceedings against children or their parents are not being conducted for any other improper purpose; and

(G) determine whether court proceedings against children or their parents are warranted by existing law.

304.  Despite the aforementioned affirmative duties toward children and their parents, Defendants Romero, Bilson, and the DCS, as well as CHERI LEWIS, Ms. Lewis’ supervisors, and DOES 51-60, did knowingly participate in the arrest, arraignment, and prosecution of Ms. Vildosola and Mr. Jacobo, and in the separation of Ms. Vildosola and Mr. Jacobo from their children, particularly Daniel Jacobo, Nicole Jacobo, and Christine Neria—to the irreparable detriment of the Jacobo-Vildosola family unit—for the following improper and/or illegal reasons, inter alia:

(1) to conceal or “cover up” the fact that the DCS failed to properly supervise the case of Destiny Jacobo by, inter alia:

(a)         Not discovering or monitoring the neglectful, abusive, and unhealthful conditions of the Garza foster facility;

(b)         Not providing Ms. Vildosola or Mr. Jacobo with any of Destiny’s medical history;

(c)         Not referring Ms. Vildosola or Mr. Jacobo to Dr. Lin, who was Destiny’s pediatrician during her first fifteen (15) months of life; and

(d)         Not monitoring Destiny’s health after July of 1995, when Destiny began living with Ms. Vildosola and Mr. Jacobo, in order to insure that Destiny did not continue to suffer from the chronic bronchitis, otitis media, pertussis, rhinitis, and respiratory distress noted by Dr. Lin during Destiny’s time with the Garzas; and

(e)         Allowing the Garzas to discontinue Destiny’s apnea monitoring for financial reasons;

(2) Jumping to the conclusion that Destiny was fatally abused by Ms. Vildosola and Mr. Jacobo immediately after Destiny’s death, on or about December 6, 1995;

(3) Investigating the circumstances of Destiny Jacobo’s death tendentiously, not only presuming the guilt of Ms. Vildosola and Mr. Jacobo, but slanting the investigation toward proving their guilt, while disregarding other possible causes of death, or other possible abusers; and

(4) Threatening Esther Jacobo with arrest and imprisonment if she did not provide damaging information about Ms. Vildosola.

305.  In support of the allegations set forth by the Plaintiffs in ¶¶ 303 & 304, the DCS fired both Tricia Higa, who was Ms. Vildosola’s social worker, and Ms. Higa’s supervisor Henry Barbosa, in or about December of 1995, amidst a furor of public controversy and media scrutiny about Destiny’s death, triggering protests and picketing by DCS caseworkers in or about January of 1996.  The firings were directly attributed to negligence or incompetence of DCS employees contributing to Destiny’s death.

306.  Plaintiffs are informed and believe, and thereon allege, that Defendant LEWIS and her supervisors at the Los Angeles County District Attorney’s Office had and have an affirmative duty to:

(A) Reasonably inquire as to whether court proceedings or pleadings that they sign or authorize are true;

(B) determine whether court proceedings or pleadings that they authorize or sign are not frivolous;

(C) determine whether court proceedings or pleadings that they authorize or sign are not being presented for harassment;

(D) determine whether court proceedings or pleadings that they authorize or sign are not being presented for an improper purpose;

(E) determine whether court proceedings or pleadings that they authorize or sign are not contrary to public policy;

(F) determine whether court proceedings or pleadings that they authorize or sign are not being presented in a racially or ethnically discriminatory manner, or in violation of civil rights; and

(G) determine whether court proceedings or pleadings that they authorize or sign are warranted by existing law.

307.  Defendants deliberately, knowingly, recklessly, and/or negligently disregarded and/or ignored other possible causes of Destiny’s death, including but not limited to:  (1) medical negligence perpetrated by Dr. Boggs and/or other health care providers, (2) hereditary diseases, (3) pneumonia, (4) meningitis, (5) blood dyscrasias, (6) faulty cardiopulmonary resuscitation, and/or (7) other iatrogenic or nosocomial etiologies.

308.  Defendants deliberately, knowingly, recklessly, and/or negligently disregarded and/or ignored serious conflicts and shortcomings in Destiny’s autopsy, including but not limited to:  (1) the “loss” of the ostensible contra-coup neural tissue and (2) the opinions of neuropathologist Dr. Hideo Itabashi, which contradicted much of Ribe’s findings.  Absent the contra-coup material—if it ever existed—there was no basis for the conclusion that Destiny was subjected to blunt force trauma, and little or no basis for prosecuting either Ms. Vildosola or Mr. Jacobo.

309.  Defendants did knowingly and wrongfully participate in the filing and the prosecution of criminal actions against the Plaintiffs without probable cause to believe either:  (1) that any of the alleged crimes occurred, or (2) that the Plaintiffs were the perpetrators of any of the alleged crimes.

310.  Defendants did institute a criminal action against Plaintiffs Ms. Vildosola and Mr. Jacobo which was frivolous, without probable cause, and intended for improper purposes--to wit, inter alia, to harass and implicate Plaintiffs, thereby to conceal or divert attention away from the terrible condition of the DCS, and to deprive said Plaintiffs of their civil rights.

311. Plaintiffs Vildosola and Jacobo have been damaged as a direct and proximate result of defendants' actions.  In particular, they have suffered injuries, including but not limited to:

(a) false arrest;

(b) false imprisonment;

(d) severe mental distress;

(e) grave endangerment to life and limb;

(f) loss of liberty;

(g) loss of livelihood;

(h) denial of conjugal relations;

(i) destruction of the family unit;

(j) extreme embarrassment;

(k) humiliation;

(l) chronic anxiety and stress;

(m) insult to self-esteem and dignity; and

(n) intense emotional pain and suffering.

(o) all legal expenses incurred in defending the municipal court charges.

312.  To summarize, the Plaintiffs were just beginning to mourn the loss of their daughter Destiny from unknown medical causes when they were abruptly and startlingly arrested and charged with murder.  During their lengthy periods of incarceration (5 years for Mr. Jacobo, and 7 years and counting for Ms. Vildosola), they have been repeatedly attacked and threatened by other inmates because of their erroneous, infamous status as baby-killers.  Miraculously, Mr. Jacobo survived long enough to be freed, but Ms. Vildosola remains unjustly confined as of February 17, 2002.

313.  Defendants’ actions were willful, wanton, reckless, and malicious, and moreover show a complete and deliberate indifference to, and conscious disregard for, the rights of the plaintiffs.  Therefore, plaintiffs are entitled to an award of punitive or exemplary damages in an amount sufficient to punish defendants and to deter defendants and other entities from like conduct in the future.

314.  As a direct and proximate result of the unwarranted prosecution of Plaintiffs for which each and every of the aforenamed Defendants is responsible, the Plaintiffs, including Ms. Vildosola and Mr. Jacobo; their children WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, ANTHONY JAMES JACOBO, NICOLE CHRISTINE JACOBO, DANIEL WILLIAM JACOBO, and MARINA FRANCINE NERIA; and the grandmother MARY LOUISE JACOBO, have been damaged, and continue to suffer harm including but not limited to:  (a) inconvenience; (b) insult; (c) mental distress; (d) embarrassment; (e) humiliation; (f) anxiety; and (g) emotional pain and suffering.  In addition the aforenamed children suffered the psychological and emotional effects of separation from their parents and siblings, and loss of family unity.  All damages set forth herein are subject to proof at the time of trial.

315.  WHEREFORE, Plaintiffs request that this Court, after a trial by jury of their claims, enter a judgment against the defendants that is fair and reasonable, and not less than $500,000 in compensatory damages, $1 in nominal damages, and $1,500,000 in punitive or exemplary damages on this Seventh Claim for Relief, as well as any further legal and equitable relief that this Court deems appropriate.

 

NINTH CLAIM FOR RELIEF

by Plaintiffs PATRICIA VILDOSOLA and WILLIAM JACOBO, Jr., individuals,

against CHERI LEWIS, ESQ., an individual; and DOES 71-75,

for PROSECUTORIAL MISCONDUCT

 

316.  Plaintiffs refer to and incorporate by reference, each and every paragraph set forth above, as though each were fully set forth herein.  In particular, Plaintiffs refer to and incorporate, as though each were fully set forth hereat, paragraphs 302-313, inclusive.

317.  The prosecutor at the criminal trial, Cheri Lewis, Esq., was overzealous in her tactics, ignoring exculpatory evidence and frequently engaging in prosecutorial misconduct.  The prosecution of Ms. Vildosola and Mr. Jacobo was malicious for the following reasons, inter alia:

(1) Exculpatory evidence was hidden, including the evidence of Dr. Boggs’ responsibility for Destiny’s death, and Destiny’s contre coup brain tissue, if such tissue ever existed, which Plaintiffs deny;

(2) Carissa Neria’s autopsy was altered, then introduced as evidence expressly to punish Ms. Vildosola for an uncharged act occurring more than five years earlier;

(3) The prosecution conspired, along with the DCS and the court-appointed attorneys, to guarantee the conviction of Ms. Vildosola and Mr. Jacobo;

(4) The prosecution lavishly vouched for the credibility and expertise of defense witnesses;

(5) The prosecution attacked the credibility of any testimony favorable to the defendants, whether given by witnesses for the defense or prosecution;

(6) The defendants were directly attacked by the prosecution, and described as bad parents, murderers, child molesters, and abusers, deserving to be punished for the murder of Carissa Neria, as well as Destiny.

318.  The following witnesses, all of whom would have provided exculpatory evidence, were never called to testify:

(1) Joseph Dodridge Boggs, M.D., who killed Destiny by “popping” her lungs;

(2) Zacharia Yehya Reda, M.D., of Long Beach Memorial Hospital, the last pediatrician to treat Destiny, who would have testified that the cause of Destiny’s death was acute respiratory distress syndrome (hereinafter “ARDS”), exacerbated by pneumonia and pneumothorax;

(3) Hideo Henry Itabashi, M.D., the neuropathology expert who contradicted forensic pathologist Ribe’s findings and testimony;

(4) Donald Clarence Boger, M.D., the radiologic consultant for Destiny’s autopsy;

(5) Narsing Adupa Rao, M.D., the ophthalmalogical consultant for Destiny’s autopsy.

(6) Henry Diaz, who was about ten feet away from Destiny during most of the day of December 5, 1995, and never saw or heard any abuse of Destiny, and who was intimidated by police to discourage him from testifying;

(7) John Estrella, who directly observed Billy III throwing Destiny into the air in the back bedroom of Esther Jacobo’s domicile, and who also was frightened by the police;

(8) Ernie Rodriguez, who witnessed Billy III tossing Destiny into the air on another occasion, also in Esther Jacobo’s back bedroom, and told this information to the investigating detectives, Prosecutor Lewis, and Messrs. O’Brien and Santana;

(9) Jimmy Sanchez, who was accused of sexually molesting Michael and Anthony Jacobo, until the Jacobo children told DCS that Billy III was the molester;

(10) Ray Saucedo, who was at the Jacobo home on December 5, 1995, and never heard nor saw any abuse of Destiny;

(11) Michael William Jacobo, who witnessed Billy III sneaking to “play” with Destiny, who saw Billy III abusing Anthony Jacobo, and who was himself abused by Billy III;

(12) Eric Klimek, the boyfriend of Ms. Vildosola’s mother Frances, who was present at Ms. Vildosola’s grandmother’s house during the night of January 21, 1991, when Carissa Neria died, and neither heard nor saw any abuse; and

(13) Gloria Rodriguez Jacobo, Little Billy’s mother, who could have explained why Billy III was removed from her home.

The above list is not intended to be exhaustive, and the plaintiffs are informed of and believe, and thereon allege, that many other individuals could have provided new and/or exculpatory evidence.

319.  As a proximate result of the acts of Defendant(s) set out herein and in the Factual Summary above, and other acts or omissions to be presented at time of trial, Plaintiffs were wrongfully convicted of crimes for which they were completely innocent, and thereby suffered, inter alia:  (1) false imprisonment, (2) separation from their family; (3) complete and [probably] permanent severance from several of their children, who were placed in foster homes; (3) severe economic losses, including loss of career, employment, income, business opportunities, and financial relationships; and (4) injury to their health, strength and activity, sustaining injury to their bodies, and shock and injury to their nervous systems and person, all of which injuries have caused Plaintiffs to suffer extreme and severe physical pain and mental anguish.

320.  Defendant(s), and each of them, engaged in the malicious prosecution of Plaintiffs as herein alleged, and were willful, wanton, reckless, despicable, malicious, oppressive, and further showed a complete and deliberate indifference to, and conscious disregard for, the rights of the Plaintiffs.  Therefore, Plaintiffs are entitled to an award of punitive or exemplary damages in an amount sufficient to punish Defendant(s), and to deter the Defendant(s) and other entities from like conduct in the future.  The Plaintiffs herein demand from Defendant(s), and each of them, punitive damages in an amount to be proven at trial.

321.  WHEREFORE, Plaintiffs pray that this Court, after a trial by jury of their claims, enter a judgment against defendant(s) for plaintiffs’ actual damages, nominal damages, and punitive or exemplary damages as are fair and reasonable, for costs incurred herein, and for any such further legal and equitable relief as this Court deems appropriate.

 

TENTH CLAIM FOR RELIEF

by Plaintiffs PATRICIA VILDOSOLA and WILLIAM JACOBO, Jr., individuals,

against GUY O’BRIEN, ESQ. and JAMES RIBE, M.D., individuals; and DOES 76-80, for

OUTRAGEOUS CONDUCT

 

322.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above as though each were fully set forth herein including, but not limited to, Paragraphs 316-319.

323.  Plaintiffs are informed and believe, and thereon allege, that GUY O’BRIEN, Ms. Vildosola’s attorney, acted outrageously on numerous occasions, thereby sabotaging Ms. Vildosola’s defense.  For example, Mr. O’Brien described his client as a bad mother:

 

“It is obvious [that Ms. Vildosola] wasn’t an excellent mother.”

 

“[T]his is a woman who failed to do many things that good parents should do.”

 

“She was a lousy mother … and, frankly, could have cared less.”

 

“She wasn’t a good mother in many ways.”

 

324.  O’Brien also characterized Ms. Vildosola as negligent, inattentive, and distracted.

 

“I think she was negligent … inattentive … distracted… .”

 

325.  Most outrageously, O’Brien declared that Ms. Vildosola was guilty, and should not be acquitted on all charges:

 

I can’t tell you … that my client should be acquitted on all charges.”

 

O’Brien suggested that Ms. Vildosola should be charged with Manslaughter:

 

“[C]ould characterize a charge of manslaughter or …, as I say, … involuntary manslaughter.

 

326.  Plaintiffs are informed and believe, and thereon allege, that JAMES RIBE, M.D., the pathologist who performed Destiny’s autopsy and testified at length for the prosecution, acted outrageously in a zealous effort to convict Ms. Vildosola and Mr. Jacobo using an erroneous medical theory, “Shaken Baby Syndrome.”  Although the SBS theory does not require blunt force trauma, Ribe sought to bolster the dubious SBS diagnosis by testifying that Destiny had contre-coup cranial injuries.  However, the brain tissue ostensibly containing the contre-coup injury disappeared.  Dr. Hideo Henry Itabashi, the chief neuropathologist at the Los Angeles County Coroner’s Office, was unconvinced by Dr. Ribe’s autopsy report as to the infliction upon Destiny of any physical abuse, and criticized Ribe for his mishandling of the purported contre-coup brain material, describing it as “very unprofessional.”  The material probably was deliberately discarded by Ribe to conceal the fact that there was no contre-coup injury.  Nevertheless, Ribe testified to the existence of contre-coup cortical damage—testimony which was pivotal in the convictions of both Ms. Vildosola and Mr. Jacobo.

327.  Plaintiffs are informed and believe, and thereon allege, that Assistant District Attorney CHERI LEWIS, ESQ. acted outrageously in ignoring and concealing exculpatory evidence, vouching for the credibility of testimony helpful to the prosecution, denouncing the credibility of testimony beneficial to the defense, and relentlessly castigating the credibility and characters of Ms. Vildosola and Mr. Jacobo.

328.  Concealment of exculpatory evidence.  Plaintiffs are informed and believe, and thereon allege, that Ms. Lewis acted to conceal or omit exculpatory evidence.  Furthermore, Ms. Lewis purposefully and knowingly presented false evidence in order to win a conviction against Ms. Vildosola and Mr. Jacobo.  For example:  (1) Joseph Boggs, M.D., the physician with a suspended license who was responsible for Destiny’s death, and who disappeared from Santa Marta Hospital on the heels of said death, was placed at the top of the list of prosecution witnesses.  Because Boggs left Santa Marta Hospital without notice or a forwarding address, and became difficult to locate, Ms. Lewis decided not to seek or call him, despite the blatant suspiciousness of Boggs’ behavior.  (2) Ms. Lewis also placed emphasis on the testimony from Dr. Ribe about contre-coup brain injury, despite the disappearance of the evidence.  (3) Aside from Dr. Ribe, Ms. Lewis never called any of the physicians involved with Destiny—including Drs. Lin, Reda, Boger, Rao, and Itabashi—all of whom would have cast doubt on the reasonableness of Ribe’s SBS theory.  The three examples presented in this chapter are not exhaustive, and other examples will be presented at time of trial.

329.  Vouching.  Ms. Lewis, during the Vildosola-Jacobo criminal trial, made the following personal comments, inter alia:

 

(1) Vouching for Dr. Ribe:

 

“[H]is opinion is the expert opinion that you should trust and rely on with regard to how Destiny died ….

 

(2) Vouching for Little Billy:

 

(a) “[Little Billy] even said at one point that he was being careful to be truthful, because he didn’t want to lie.”

 

(b) “[Billy’s] credibility … ended up being corroborated … by Dr. Elliott, the psychologist, who also found him very credible when she interviewed him.”

 

(3) Vouching for Psychologist Diane Elliott:

 

(a) “[Dr. Elliott’s] opinion … of little Billy’s credibility is that he was very insightful and observant.”

 

(b) “Dr. Elliott’s opinion [of] this little boy, Billy, … is that he was very thoughtful and insightful.

 

(c) “[I]n evidence is a copy of [Dr. Elliott’s] resume vitae [sic], … detailing all of her credible [sic] experience.”

 

(4) Vouching for Marina Neria:

 

Marina “was pretty straightforward when she testified.”

 

(5) Vouching for Detective Otremba:

 

“[Officer Otremba] was obviously a credible witness ….” “He was honest ….

 

330.  Personal attacks on credibility and character.  Ms. Lewis personally attacked the credibility of testimony unfavorable to her SBS prosecution, even when evoked from prosecution witnesses, such as that of Marina Neria and Nenita R. Duazo.

A.  To discount Dr. Duazo’s 1991 autopsy of Carissa Neria, Lewis described Nenita Duazo, M.D., as a:

 

“… junior pathologist.”

 

B.  Although Ms. Lewis vouched for the credibility of those portions of Marina Neria’s testimony that supported the prosecution, Lewis contradicted herself when decrying testimony by Marina which was sympathetic to the defense:

 

“[Marina] was protective of her mother.”

 

Marina was not totally candid.”

 

C.  Lewis’ most stridently personal attacks on credibility, however, were reserved for defense witnesses.  For example, Dr. John Patrick Ryan, a general pathologist, was the only expert witness for the defense.  Lewis told the jury that they should take Dr. Ryan’s opinions and: 

 

“throw [sic] out the window.”

 

Lewis referred to Dr. Ryan’s opinion as:

 

“worth less than the paper it was written on ….

 

Twice, Lewis remarked that Dr. Ryan:

 

“doesn’t know what he is talking about… .”

 

D.  Prosecutor Lewis also went too far in impugning the defendants.  Among the remarks by Lewis assailing the defendants in the courtroom were the following:

 

(1) Lewis repeatedly called Vildosola and Jacobo “idiots” and “stupid.

 

(2) Lewis described Vildosola as “lying through her teeth” (Court Reporter’s Trail Transcript (hereinafterRT”) 2087 Line (hereinafter “L”) 23).

 

(3) Lewis errantly suggested that according to Ms. Vildosola, Destiny “committed suicide.  If you believe that, if you buy that, there is this island off California called Catalina I will sell to any of you for 100 bucks.”

 

(4) Lewis said of Vildosola:  “I can’t argue to you that she was faking the crying….  [T]hose were tears of not remorse over killing either of those two babies, but the fact that she has now been caught.”

 

(5) Prosecutor Lewis rebuked Ms. Vildosola with “[W]e know she didn’t care.  She didn’t give a darn about that baby, about Destiny.  She didn’t care about that baby just like she didn’t care about Carissa Neria.”

 

The quotations cited in the paragraphs above are presented as examples, and by no means constitute an exhaustive account.

331.  The conduct set forth hereinabove was extreme and outrageous, and an abuse of the authority and position of Defendants, and each of them.  Said outrageous conduct as set out in the complaint above was intentional and malicious, and done for the purpose of causing Plaintiffs to suffer humiliation, mental anguish, emotional distress, and physical distress.  Such conduct was done with a conscious and reckless disregard for the probable consequences to Plaintiffs' physical, mental and emotional well being.

332.  Furthermore, the extreme and outrageous conduct of Defendants Lewis and Ribe was diametrically contrary to the interests of truth, justice, public health, and the integrity of the judicial systems of California and the United States.

333.  As the proximate result of the aforementioned intentional and outrageous acts of the Defendants, Plaintiffs have suffered humiliation, mental anguish, emotional distress, and physical distress, and have been injured in mind and body.  These damages are not presently calculable, and Plaintiffs will seek leave to amend this complaint to conform to proof presented at trial.

334.  As further direct and proximate results of the aforementioned outrageous acts of the Defendants, Plaintiffs, were falsely imprisoned, thereby losing all liberties enjoyed by every citizen and guaranteed by the United States and California Constitutions.  Plaintiffs consequently were stripped of their constitutional right to pursue happiness.

335.  As a further direct and proximate result of the aforementioned outrageous acts of the Defendants, Plaintiffs suffered loss of employment, career, economic opportunities, and business relationships.

336.  As a further direct and proximate result of the aforementioned outrageous acts of the Defendants, Plaintiffs suffered severe disruption of their familial and social existence.  Their false convictions led to their labeling and stigmatization as baby-killers, ostracizing them from friends, neighbors, and business associates.  Moreover, their children were taken away, destroying their family.  Three of their children were placed in unknown foster homes, permanently severing them from all communications with Mr. Jacobo, Ms. Vildosola, and their siblings.

337.  The aforementioned acts of Defendants were outrageous, willful, wanton, despicable, malicious and oppressive, and justify the awarding of exemplary and punitive damages in an amount subject to proof at the time of trial of this matter.

 

ELEVENTH CLAIM FOR RELIEF

by All Plaintiffs

against SANTA MARTA HOSPITAL, a California corporation; and JOSEPH BOGGS, M.D.; FRANK SHERIDAN, M.D.; JAMES RIBE, M.D.; and CHERI LEWIS, ESQ., individuals; and DOES 81-85, for

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

 

338.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above as though each were fully set forth herein including, but not limited to, Paragraphs 322-330.

339.  During the course of activities described hereinbefore in this complaint, Defendants SANTA MARTA HOSPITAL, BOGGS, RIBE, and LEWIS entered into relationships with the Plaintiffs in which the Plaintiffs and/or other citizens depended upon these Defendants for their emotional, mental and physical health and well-being.  The Defendants had a duty to ensure the emotional, mental, and physical health and well-being of the Plaintiffs as follows:  (1) Dr. Boggs had a duty of care toward DESTINY, to act in the best interests of Destiny, her parents MS. VILDOSOLA and MR. JACOBO, her grandmother MARY LOUISE JACOBO, and other members of Destiny’s family; (2) Santa Marta Hospital had a duty of care similar to that of Dr. Boggs, as well as a vicarious responsibility in respondeat superior as the supervisory employer of Dr. Boggs; (3) James Ribe had a duty to the Plaintiffs, as well as all other citizens of Los Angeles County, to conduct and report on autopsies diligently, frankly, and honestly, so as to maximize the emotional, mental, and physical health and well-being of all Los Angeles County citizens, and in particular the parents of an autopsied infant, such as Destiny; and (4) Assistant District Attorney Lewis had a duty to conduct prosecutorial functions honestly, frankly, and judiciously so as to maximize justice, fairness, and due process for the benefit of all citizens of Los Angeles County, including the Plaintiffs, who relied and depended upon Ms. Lewis to find the true causes of Destiny’s death, and not to falsely arrest, falsely imprison, and maliciously prosecute innocent individuals such as the Plaintiffs.

340.  During the course of their involvement with the various Defendants, Plaintiffs Destiny Jacobo, Ms. Vildosola, Mr. Jacobo, WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, ANTHONY JAMES JACOBO, NICOLE CHRISTINE JACOBO, DANIEL WILLIAM JACOBO, MARINA FRANCINE NERIA, and Mary Louis Jacobo developed relationships in which they depended upon the aforementioned Defendants for their emotional, mental and physical health and well being.  The Plaintiffs placed trust in these Defendants to provide for their emotional, mental, and physical well-being.  Defendants violated their trust.

341.  Despite their positions of trust, the Defendants’ conduct breached their duties to Plaintiffs as follows:  (1) Boggs fatally injured Destiny, and rather than admit to the causes of Destiny’s demise, Boggs chose to place the blame for Destiny’s death on parental abuse, to shunt the dying Destiny more than fifteen (15) miles across town to Long Beach, and to permanently disappear from Santa Marta Hospital; (2) Santa Marta Hospital participated in Boggs’ cover-up, and allowed Destiny to be shuttled away to Long Beach in the dead of night to divert scrutiny away from Boggs’ malpractice; (3) Ribe overzealously strove to present his dubious SBS death theory to the extent of destroying pivotal evidence (i.e., the purported contre-coup brain tissue); and (4) Lewis withheld overwhelming exculpatory evidence, while presenting evidence highly prejudicial to the Plaintiffs, such as the belatedly modified autopsy of Carissa Neria.

342.  Plaintiffs are informed and believe, and based thereon allege, that the Defendants knew, or should have known, that their conduct was likely to cause Plaintiffs to suffer severe emotional distress.

343.  As a direct and proximate result of Defendants' acts, the Plaintiffs suffered severe emotional distress in the form of fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment and worry.  Plaintiffs Ms. Vildosola and Mr. Jacobo have also suffered years of incarceration, damage to their health, loss of income, and loss of earning capacity.  Additionally, the Plaintiffs, including Ms. Vildosola and Mr. Jacobo; their children WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, ANTHONY JAMES JACOBO, NICOLE CHRISTINE JACOBO, DANIEL WILLIAM JACOBO, and MARINA FRANCINE NERIA; and the grandmother MARY LOUISE JACOBO, have been damaged, and continue to suffer harm including but not limited to:  (a) inconvenience; (b) insult; (c) mental distress; (d) anxiety; and (e) emotional pain and suffering.  Furthermore, the aforenamed children suffered the psychological and emotional effects of separation from their parents and siblings, and loss of family unity.  All damages set forth herein are subject to proof at the time of trial.

344.  The exact amount of damages suffered by the Plaintiffs as a result of the Defendants’ wrongful acts as alleged herein will be determined according to proof at the time of the trial in this matter.

345.  The aforementioned acts of Defendants were willful, wanton, despicable, malicious, and oppressive and justify the awarding of exemplary and punitive damages in an amount subject to proof at the time that this matter comes to trial.

 

TWELFTH CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; THOMAS LIN, M.D.; JAMES RIBE, M.D.; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; JOANNE GARZA; and CHERI LEWIS, ESQ., individuals, and DOES 86-90, for

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

 

346.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above as though each were fully set forth herein including, but not limited to, Paragraphs 338-343.

347.  Defendants BOGGS, RIBE, SANTA MARTA HOSPITAL, and CHERI LEWIS each had a duty toward Plaintiffs Ms. Vildosola and Mr. Jacobo as described at ¶¶ 339-340, supra.  In addition:  (1) In their positions as employees of the DCS, Defendants CYNTHIA ROMERO, RENE BILSON, TRICIA HIGA, and HENRY BARBOSA owed a duty of care to act in the best interests of the Plaintiffs, especially the minor children DESTINY JACOBO, WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, MARINA FRANCINE NERIA, ANTHONY JAMES JACOBO, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO, as well as their parents PATRICIA VILDOSOLA and WILLIAM JACOBO, Jr., and their grandmother MARY LOUISE JACOBO; (2) Defendant THOMAS LIN, M.D., owed a duty of care toward the minor Destiny, her parents, and her grandmother MARY LOUISE JACOBO similar to the duty of Dr. Boggs, as detailed above in ¶ 339, item (1); (3) the DCS had a vicarious responsibility, in respondeat superior, as the public institution employing defendants CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; and HENRY BARBOSA; and (4) Defendants DANIEL GARZA, Jr. and JOANNE GARZA owed a duty to the minor Destiny, her parents Ms. Vildosola and Mr. Jacobo, and her grandmother Mary Louis Jacobo, to inform them fully and in a timely manner about Destiny’s medical history, and to act in the best interests of Destiny’s emotional, mental, and physical well-being.

348.  Each of the Defendants breached their duties and trusts as follows:  (1) Boggs fatally injured Destiny, then shunted her more than fifteen (15) miles away, and blamed the Plaintiff parents for Destiny’s death; (2) Ribe, a pathologist employed by Los Angeles County, destroyed evidence (e.g., the purported contre-coup brain tissue) and gave false testimony in a zealous effort to convince the jury that Destiny died from SBS and was killed by her parents; (3) Santa Marta Hospital participated in the cover-up of Boggs’ medical malpractice, including the middle-of-the-night shuttling of Destiny more than fifteen (15) miles away from the scene of Destiny’s negligent killing; (4) Cheri Lewis omitted, ignored, and concealed exculpatory evidence, vouched for the credibility of prosecution-friendly testimony, denigrated the credibility of testimony favorable to the defense, and personally attacked the plaintiffs Ms. Vildosola and Mr. Jacobo; (5) the DCS, and its employees Romero, Bilson, Higa, and Barbosa, failed to act in the best interests of Destiny by, inter alia:  (a) covering up the deficiencies of the DCS, as well as their personal failures; (b) interrogating and threatening members of Destiny’s family after Destiny’s death, including great-grandmother Esther Jacobo, whom Defendant Romero threatened with arrest and imprisonment if she did not provide inculpatory information about Ms. Vildosola; (c) conspiring in concert with the District Attorney’s Office to prosecute Ms. Vildosola and Mr. Jacobo, despite their presumed and actual innocence; (d) separating the minor children DESTINY JACOBO, WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, MARINA FRANCINE NERIA, ANTHONY JAMES JACOBO, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO from their parents and siblings, thereby destroying the Jacobo-Vildosola family; and (e) failing to notify Ms. Vildosola and Mr. Jacobo about Destiny’s medical history.

349.  As a proximate result of the Defendants' negligence or wantonness, the Plaintiffs suffered damages as follows:  (1) minor Plaintiff Destiny Jacobo was fatally injured as a result of Defendant Boggs’ medical negligence, then shipped away more than fifteen (15) miles while dying; (2) Plaintiffs Ms. Vildosola and Mr. Jacobo lost the services and society of their children, particularly Destiny Jacobo, Daniel William Jacobo, Marina Francine Neria, and Nicole Christine Jacobo; (3) Plaintiff Mary Louise Jacobo lost the services and society of her grandchildren, especially Destiny Jacobo, Daniel Jacobo, Marina Neria, and Nicole Jacobo; (3) Plaintiffs Ms. Vildosola and Mr. Jacobo were falsely arrested, falsely imprisoned, and maliciously prosecuted; and (4) minor Plaintiffs William Jacobo III, Michael William Jacobo, Anthony James Jacobo, Marina Neria, Daniel Jacobo, and Nicole Jacobo were deprived of the services and society of their parents, Mr. Jacobo and Ms. Vildosola, their sister Destiny, and their grandmother, Mary Louise Jacobo.

350.  As a further direct and proximate result of the Defendants’ negligence or wantonness, the Plaintiffs suffered severe emotional distress in the form of fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment and worry.

351.  Additionally, Plaintiffs Ms. Vildosola and Mr. Jacobo have suffered years of incarceration, damage to their health, loss of income, and loss of earning capacity, in an amount that has not yet been ascertained, but which will be determined at time of trial.

352.  Plaintiffs Ms. Vildosola and Mr. Jacobo have also suffered years of social ostracism, stigmatization, loss of self-esteem, hatred, contempt, and physical violence.  For example, while Ms. Vildosola and Mr. Jacobo were in prison, they were targets of homicidal and abusive inmates, who attacked them because of their false “baby-killer” identities.

353.  The aforementioned acts of Defendants were willful, wanton, despicable, malicious, and oppressive and justify the awarding of exemplary and punitive damages in an amount subject to proof at the time that this matter comes to trial.

 

THIRTEENTH CLAIM FOR RELIEF

by Plaintiffs PATRICIA VILDOSOLA and WILLIAM JACOBO, Jr., individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; THOMAS LIN, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; and JOANNE GARZA, individuals; and DOES 91-95, for

LOSS OF SERVICES OF A CHILD

 

354.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above as though each were fully set forth herein including, but not limited to, Paragraphs 346-349 & 352.

355.  On December 5th, 1995, and thereafter, Plaintiffs WILLIAM JACOBO, Jr. and PATRICIA VILDOSOLA were common-law husband and wife.

356.  Each of the Defendants owed a duty or duties toward Plaintiffs Ms. Vildosola and Mr. Jacobo, as detailed in ¶ 347, supra, including:  (A) a duty of reasonable medical care owed by JOSEPH BOGGS, M.D., THOMAS LIN, M.D., and SANTA MARTA HOSPITAL; (B) a duty to act in the best interests of the emotional, mental, and physical health of the minor children and their family owed by the DCS and Defendants CYNTHIA ROMERO, RENE BILSON, TRICIA HIGA, and HENRY BARBOSA; and (C) a duty to act in the best interests of the minor child Destiny on the part of DANIEL GARZA, Jr. and JOANNE GARZA.

357.  On or about December 5, 1995, Destiny Jacobo died as a result of a combination of tortious behavior, including:  (1) the medical negligence of Dr. Boggs, which was the ultimate cause of Destiny’s death; (2) Dr. Lin’s failure to adequately treat Destiny for her chronic respiratory and auricular infections, his negligent interpretation of a chest x-ray, and his failure to follow up on Destiny’s health condition; (3) the Garzas’ failure to inform Ms. Vildosola and Mr. Jacobo about Destiny’s medical condition, or even to refer them to Dr. Lin; and (4) the abject, gross negligence of the DCS and its agents and employees (including Ms. Higa, Mr. Barbosa, Ms. Romero, and Ms. Bilson) to:  (a) assess the extent of harm to Destiny’s emotional, mental, and physical well-being caused by the Garzas; (b) inform Ms. Vildosola and/or Mr. Jacobo about Destiny’s medical history; and (c) monitor Destiny’s medical condition during her time with either the Garzas or her natural parents, Ms. Vildosola and Mr. Jacobo.

358.  Destiny died as a direct and proximate result of the Defendants’ negligent conduct, as described in part in ¶ 357.

359.  Before her death, Destiny was able to and did perform all the duties of a minor child, including assisting in maintaining the home, and providing love, companionship, affection, society, moral support, and solace to the Plaintiffs.  As a result of her untimely death, Destiny will never be able to assist with housework, have children, participate in family, recreational, or social activities with the plaintiffs, or contribute to the household income.  Plaintiffs are therefore deprived and will be permanently be deprived of all of Destiny’s love, companionship, affection, society, moral support, and solace.

360.  As a further direct and proximate result of the Defendants’ negligence and/or wantonness, the Plaintiffs have suffered economic damages.  The sum of all of the general and special damages to the Plaintiffs has not yet been determined, but will be ascertained at time of trial.

361.  The aforementioned acts of the Defendants were willful, wanton, despicable, malicious, and oppressive, and justify the awarding of exemplary and punitive damages in an amount subject to proof at the time that this matter comes to trial.

 

FOURTEENTH CLAIM FOR RELIEF

by PATRICIA VILDOSOLA and WILLIAM JACOBO, Jr., individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; JAMES RIBE, M.D.; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; and HENRY BARBOSA, individuals; and DOES 95-100, for

LOSS OF CONSORTIUM

 

362.  Plaintiffs repeat and reallege by reference each and every allegation set forth above as though each were fully set forth herein including, but not limited to, Paragraphs 354-359.

363.  On December 5th, 1995, and at all times mentioned in this complaint, unless otherwise specified, Mr. Jacobo and Ms. Vildosola were and are common law husband and wife.

364.  The aforenamed Defendants, and each of them, owed a duty of care toward the Plaintiffs, as delineated in part in ¶¶ 347 & 356.

365. Plaintiffs reallege, as described in Claims VII & VIII above, that they were falsely arrested and imprisoned, and maliciously prosecuted.  On or about December 5, 1995, Plaintiffs were first incarcerated.  Plaintiffs were unable to post bail before their criminal trial, which commenced and ended in or about August of 1997.  Mr. Jacobo was released from prison in or about August of 2000, after nearly five years in jail.  However, Ms. Vildosola remains imprisoned.

366.  The Defendants’ negligent and/or wanton actions caused the Plaintiffs’ wrongful conviction and false imprisonment, as follows:  (1) If not for the negligent behavior of the DCS and its employees, HIGA, BARBOSA, ROMERO, and BILSON, Destiny’s health problems would have been more closely monitored and identified early, and she would not have died.  (2) If not for the negligent and/or malicious behavior of Dr. Boggs and Santa Marta Hospital, Destiny would not have been fatally injured, and would have survived.  (3) If not for the overzealous, malicious, and conspiratorial prosecution of the Plaintiffs by Ms. LEWIS, the Plaintiffs would not have been falsely imprisoned.  (4) If not for the conspiratorial efforts of the DCS and its employees, particularly Romero and Bilson, other explanations for Destiny’s death would have been considered, and the Plaintiffs would not have been the singular focus of all investigation and prosecution.

367.  As a direct and proximate result of the Defendants' negligent and wanton conduct, the Plaintiffs were falsely imprisoned, and thereby suffered loss of consortium.

368.  Before their incarcerations, Plaintiffs were able to and did perform all the duties of husband and wife, and did perform all these duties, including assisting in maintaining the home and raising the children, and providing love, companionship, affection, society, sexual relations, moral support, and solace to each other.  As a direct and proximate result of their incarcerations, Plaintiffs have been unable to perform the duties of husband and wife, in that they are, inter alia:  (1) separated by hundreds of miles and penitentiary bars, (2) effectively unable to see each other, and (3) completely unable to touch one another.

369.  Furthermore, the Plaintiffs are unable to perform any of the normal duties of spouses, such as assisting with housework, having sexual intercourse, becoming pregnant and bearing a child or fathering a child, participating in family, recreational, or social activities, and contributing to the household income.  Moreover, as a consequence of their false imprisonments, the Plaintiffs have sustained severe physical, psychological, and emotional strains, particularly because the Plaintiffs are no longer able to provide each other with love, companionship, affection, society, moral support, and solace.  Because Ms. Vildosola remains incarcerated, continues to be unable to perform her spousal duties.  Plaintiffs are therefore deprived and will be deprived for the indefinite future of their spouse's consortium, all to Plaintiffs' damages, in a total amount to be established by proof at trial.

370.  WHEREFORE, plaintiffs request judgment against defendants, and
each of them, for the following:

1. General damages according to proof;

2. Special damages according to proof;

3. Prejudgment interest according to law

4. Costs of suit; and

5. Any other and further relief that the court considers
proper.

 

FIFTEENTH CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES COUNTY CORONER’S OFFICE, public entities; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; THOMAS LIN, M.D.; JAMES RIBE, M.D.; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; GUY O’BRIEN, ESQ.; RAYMOND SANTANA, ESQ.; MICHAEL BRUSH, ESQ.; JULIANA DROUS, ESQ.; AUGUSTINE VARGAS, ESQ.; NATHANIEL HOFFMAN, ESQ.; LINDA NAKAMURA, ESQ.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; and HENRY BARBOSA; DANIEL GARZA, Jr.; and JOANNE GARZA, individuals; and DOES 101-105, for

BREACH OF FIDUCIARY DUTY

 

371.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above as though each were fully set forth herein, particularly ¶¶ 362-369.

372.  At least three types of fiduciary duty were applicable to the Defendants in this case:  (1) the DCS, and its employees HIGA, BARBOSA, VARGAS, HOFFMAN, NAKAMURA, ROMERO, and BILSON, had a special, legally prescribed duty to act in the best interests of the health and welfare of DESTINY, her siblings, her parents, and other members of her family, including her grandmother MARY LOUISE JACOBO; (2) DRs. LIN and BOGGS, as well as SANTA MARTA HOSPITAL, had a special and legally prescribed duty to perform according to established medical standards in the best interests of the emotional, mental, and physical health of Destiny and her family; (3) the LOS ANGELES COUNTY CORONER’S OFFICE had a special and legally prescribed duty to perform autopsies with due care and reasonable medical skill; and (4) JOANNE and DANIEL GARZA had a special duty as foster parents to act in the best interests of Destiny’s health and welfare.  The Defendants, their agents, and employees invited and expected Plaintiffs to place their trust in the Defendants and to come to them with their most personal and intimate concerns and personal history.  Plaintiffs did indeed place their confidence in the integrity of the Defendants, and the Defendants voluntarily accepted such confidence.  By encouraging Plaintiffs to repose their trust and confidence in their integrity, and by voluntarily accepting such trust and confidence, Defendants assumed a fiduciary duty to the Plaintiffs.

373.  Plaintiffs are informed and believe, and based thereon allege, that the Defendants breached their fiduciary duties toward the Plaintiffs by, among other things:

(A) Thomas Lin, M.D.  Dr. Lin breached his fiduciary duty by, inter alia:  (1) Failing to adequately treat and monitor the respiratory, otic, and other chronic health problems that plagued Destiny; (2) misinterpreting a chest X-ray of Destiny which showed extensive pleural congestion; and (3) failing to follow up on Destiny’s medical condition during the time that she lived with her natural parents, Ms. Vildosola and Mr. Jacobo.

(B) Joseph Boggs, M.D.  Dr. Boggs was practicing with a medical license that was suspended for five years, commencing on or about November 27, 1995, or just a few days prior to treating Destiny.  Furthermore, he had a history of drunken driving.  Plaintiffs are informed and believe, and thereon allege, that Boggs breached his fiduciary duty by performing CPR on Destiny improperly, and too forcefully for such a fragile infant with diseased lungs.  As a result of Boggs’ negligent CPR, Destiny’s lungs were burst, a condition known as bilateral pneumothorax.  Rather than treat Destiny’s then-critical condition, Boggs then shunted Destiny away to Long Beach.  Boggs continued to breach his fiduciary duty by blaming Destiny’s parents for her injuries, disappearing from Santa Marta Hospital, and never appearing before the court or other judicial or police authorities to provide information about Destiny’s medical treatment during December 5th-6th, 1995.

(C) Santa Marta Hospital.  Santa Marta, and its agents and employees, including Dr. Boggs, had a duty to provide reasonably efficacious and thorough medical care to Destiny.  Santa Marta breached its fiduciary duty toward the Plaintiffs through Dr. Boggs and/or other of its agents or employees, as described in part in ¶ 373, subsection (B), supra, and is therefore vicariously liable for damages to the Plaintiffs as defined by the doctrine of respondeat superior.

(D) Tricia Higa, Henry Barbosa, Augustine Vargas, Nathaniel Hoffman, Linda Nakamura, Cynthia Romero, and Rene Bilson.  These Defendants, all of whom were employees of the DCS, did not act in the best interests of Destiny, her siblings, or her parents.  They breached their fiduciary duties by, inter alia:  (1) failing to monitor Destiny’s medical condition; (2) failing to inform Ms. Vildosola and Mr. Jacobo about Destiny’s health history, and failing to refer Ms. Vildosola and Mr. Jacobo to Dr. Lin, or even to inform the plaintiffs that Dr. Lin had been Destiny’s pediatrician; (3) evading their own blameworthiness for Destiny’s death by immediately accusing Ms. Vildosola and Mr. Jacobo of murdering Destiny, and then devoting all of their time and efforts toward scapegoating Ms. Vildosola and Mr. Jacobo; and (4) disrupting the Vildosola-Jacobo family by conspiring to incarcerate Destiny’s innocent, grieving parents, and placing the children in separate foster homes.

(E) The DCS.  The Department of Children’s Services, like Santa Marta Hospital, is vicariously liable for the negligent and/or wanton misconduct of its agents and employees, according to the doctrine of respondeat superior.

(F) Joanne and Daniel Garza.  The Garzas breached their fiduciary duty as foster parents by failing to inform the Plaintiffs Ms. Vildosola and Mr. Jacobo about Destiny’s medical history, and further neglecting to refer the Plaintiffs to Destiny’s then-pediatrician, Dr. Lin.  As a result, the Plaintiffs had no reason to suspect that Destiny might be suffering from respiratory difficulties, such as chronic bronchitis or pneumonia, and had no reason to believe that Destiny was not a normal, healthy baby.

(G) The Los Angeles County Coroner’s Office and James Ribe.  The L.A. County Coroner’ Office assigned James Ribe, a pathologist, to perform the autopsy on Destiny.  Plaintiffs are informed and believe, and thereon allege, that Ribe was aware that Destiny’s parents were accused of child abuse and murder, and tailored his autopsy findings so as to support the prosecution of Ms. Vildosola and Mr. Jacobo.  Ribe negligently, recklessly, or intentionally lost, misplaced, or concealed the key anatomical evidence—i.e., the purported contre-coup brain tissue.  Without that tissue, the prosecution would have been seriously weakened.  Nevertheless, Ribe was permitted to testify to the existence of the contre-coup tissue.  The legitimacy of Ribe’s SBS diagnosis was in serious doubt, and Dr. Hideo Itabashi, the supervising neuropathologist, described Ribe’s behavior as unprofessional.  Yet no action was taken by anyone else at the L.A. Coroner’s Office, and the SBS theory remains uncontested.  Not only did Ribe breach his fiduciary duty by negligently, recklessly, or fraudulently maintaining his SBS theory in the presence of contradictory evidence, but the L.A. Coroner’s Office breached its fiduciary duty in not supervising Ribe, and allowing Ribe to destroy, conceal, or otherwise lose critical medical evidence.

374.  Defendants owed fiduciary duties to Destiny and her family, as detailed above, and had they properly performed their obligations:  (1) Destiny would not have died; (2) Ms. Vildosola and Mr. Jacobo would not have been charged or convicted of Destiny’s murder, and would not have been falsely imprisoned; and (3) the children of Ms. Vildosola and Mr. Jacobo, instead of being parceled out to various foster homes, would have remained part of a stable, supportive family unit.

375.  In relying upon Defendants' negligent and/or deliberately harmful and oppressive services, Plaintiffs were damaged by, inter alia:  (1) the death of their daughter, sister, and granddaughter Destiny; (2) years of false imprisonment; (3) the disruption of their family unit; (4) social stigmatization; (5) anxiety, worry, mental, physical distress, emotional distress, and other psychosocial injuries; (6) loss of income, economic opportunities, and business relationships, and (7) other incidental and consequential damages.  Plaintiffs’ general and special damages cannot presently be reliably calculated, but will be ascertained according to proof at time of trial, and will certainly exceed $500,000.

376.  The aforementioned acts of Defendants were willful, wanton, despicable, malicious, and oppressive, and justify the awarding of exemplary and punitive damages in an amount subject to proof at the time of trial of this matter.

 

SIXTEENTH CLAIM FOR RELIEF

by Plaintiffs the Estate of Destiny Willeen Jacobo, PATRICIA INEZ VILDOSOLA, WILLIAM JACOBO, Jr.; WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, MARINA FRANCINE NERIA, ANTHONY JAMES JACOBO, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO, individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a governmental entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; GUY O’BRIEN, ESQ.; RAYMOND SANTANA, ESQ.; MICHAEL BRUSH, ESQ.; JULIANA DROUS, ESQ.; AUGUSTINE VARGAS, ESQ.; NATHANIEL HOFFMAN, ESQ.; LINDA NAKAMURA, ESQ.; CYNTHIA ROMERO, ESQ.; and RENE BILSON, ESQ., individuals; and DOES 106-110, for

BREACH OF IMPLIED COVENANT OF

GOOD FAITH AND FAIR DEALING

 

377.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above as though each were fully set forth herein, particularly ¶¶ 371-375.

378.  Defendants SANTA MARTA HOSPITAL and JOSEPH BOGGS, M.D., each had a contractual relationship with DESTINY JACOBO, as well as her parents MS. VILDOSOLA and MR. JACOBO, to perform medical services in exchange for remuneration.  Defendants O’BRIEN, SANTANA, BRUSH, DROUS, VARGAS, HOFFMAN, NAKAMURA, ROMERO, and BILSON each had contractual relationships with various members of the Jacobo-Vildosola family, including but not necessarily limited to the following attorney-client relationships:  (1) Nakamura, O’Brien, and Drous represented Ms. Vildosola; (2) Vargas, Santana, and Brush represented Mr. Jacobo; (3) Hoffman represented great-grandmother Esther Jacobo; (4) Romero represented the interests of the children DESTINY WILLEEN JACOBO, WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, ANTHONY JAMES JACOBO, MARINA FRANCINE NERIA, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO; and (5) Bilson and the DCS, by virtue of their supervisory relationships toward Romero, Vargas, Hoffman, and Nakamura, had a vicarious duty toward Plaintiffs to act fairly and in good faith.

379.  California law implies a covenant of good faith and fair dealing in all contracts between parties entered into in the State of California.

380.  As a result of the actions of defendants Santa Marta Hospital, Joseph Boggs, Guy O’Brien, Raymond Santana, Michael Brush, Juliana Drous, Augustine Vargas, Nathaniel Hoffman, Linda Nakamura, Cynthia Romero, Rene Bilson, and the DCS, and each of them, set forth hereinabove (see, e.g., ¶ 373), including, inter alia, (1) the negligent fatal injuring of Destiny by Boggs and the subsequent cover-up by Santa Marta; (2) legal malpractice by O’Brien, Santana, Brush, and Drous, contributing to or causing (a) malicious prosecution and abuses of judicial discretion, (b) the wrongful conviction of the innocent Plaintiffs Ms. Vildosola and Mr. Jacobo for murder and other crimes, and (c) the ongoing false imprisonment of Ms. Vildosola; and (3) conflicts of interest and adversarial treatment of clients on the part of DCS lawyers Vargas, Hoffman, Nakamura, Romero, and Bilson, who sought, either reflexively or maliciously, to scapegoat Ms. Vildosola and Mr. Jacobo for the negligent and/or criminal wrongdoings of the DCS and its agents and employees, said defendants have violated the implied covenant of good faith and fair dealing, contained in their contractual responsibilities in performing medical and legal services, as against said Plaintiffs Destiny Jacobo, Ms. Vildosola, and Mr. Jacobo, William Jacobo III, Michael Jacobo, Marina Neria, Anthony Jacobo, Daniel Jacobo, and Nicole Jacobo herein, and as a result thereof, Plaintiffs are entitled to damages as prayed in the sum of not less than $500,000, the exact amount of which will be determined at time of trial.

381.  The aforementioned acts of Defendants were willful, wanton, despicable, malicious, and oppressive, and justify the awarding of exemplary and punitive damages in an amount subject to proof at the time of trial of this matter.

 

SEVENTEENTH CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES COUNTY CORONER’S OFFICE, public entities; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, MD.; JAMES RIBE, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; GUY O’BRIEN, ESQ.; RAYMOND SANTANA, ESQ.; and CHERI LEWIS, ESQ., individuals; and DOES 111-115, for

CONSPIRACY

 

382.  Plaintiffs refer to and incorporate by reference each and every paragraph set forth above, as though each were fully set forth herein, especially Paragraphs 377-380.  In this regard, no conspiracy between any lawyer and client is alleged.

383.  Defendants, and each of them, knowingly and willfully conspired and agreed among themselves to engage in the criminal, fraudulent and tortious activities and wrongful schemes and artifices as follows: 

384.  The DCS, by and through its attorneys CYNTHIA ROMERO and RENE BILSON, sought to minimize adverse public reaction and controversy arising out of the events surrounding Destiny’s death.  Consequently, they discharged the two employees most knowledgeable about Destiny, Tricia Higa and her supervisor, Henry Barbosa.  Then they focused all of their efforts toward scapegoating Ms. Vildosola and Mr. Jacobo, convincing the District Attorney’s office to arrest and prosecute.

385.  The diversionary efforts of the DCS and its employees were fortuitously facilitated by the mendacious and insidious behavior of Boggs and Santa Marta Hospital.  Rather than admit to his medical malpractice, Boggs blamed Destiny’s death on physical abuse by her parents, shipped Destiny away to Long Beach, then disappeared from Santa Marta Hospital.  In order to minimize their own liability, Santa Marta Hospital and its employees participated in the cover-up of Boggs’ medical negligence.

386.  The District Attorney’s Office readily agreed to prosecute Ms. Vildosola and Mr. Jacobo, in order to protect the DCS, a fellow institution within the Los Angeles County government.  By shifting all of the attention to Ms. Vildosola and Mr. Jacobo, Los Angeles County was able to avoid an expensive scandal involving the DCS.  Furthermore, the County and the DCS were able to eliminate the contingent legal liability for Destiny’s death by criminalizing the principal damaged parties, Ms. Vildosola and Mr. Jacobo.

387.  Assistant District Attorney Lewis, in collaboration with the DCS and Dr. ribe, strove overzealously to convict Ms. Vildosola and Mr. Jacobo using a dubious medical concept, SBS.  In order for the SBS theory to succeed, it became necessary for Ribe and Lewis to conceal key exculpatory evidence, and to falsify autopsy findings.  For example, Ribe testified that Destiny sustained a contre-coup contusion as a result of blunt force trauma, despite the fact that the relevant brain material mysteriously disappeared.

388.  The LOS ANGELES COUNTY CORONER’S OFFICE is liable for conspiracy under the doctrines of vicarious liability or respondeat superior, in that it is responsible for any misbehavior of its employees, such as Dr. Ribe, if those misdeeds occurred within the scope of employment.  Since Destiny’s autopsy findings were within the scope of Ribe’s employment, the L.A. Coroner’s Office is responsible for Ribe’s misdeeds, as described in part in ¶ 387, supra.

389.  The public defenders representing Ms. Vildosola and Mr. Jacobo in their criminal trials, GUY O’BRIEN and RAYMOND SANTANA, respectively, were also employees of the Los Angeles County government, and had offices near Ms. Lewis’.  They thus had a potential conflict of interest, in that they might favor their employer, the County, over clients who could incite a scandal within the County government.  Mr. Santana admitted to several parties, including Mr. Jacobo, the Chaplain of the Los Angeles County Jail, and Plaintiff Mary Louise Jacobo, that he and Mr. O’Brien conspired with Ms. Lewis to assure that Ms. Vildosola and Mr. Jacobo would be convicted.

390.  The events described in ¶¶ 384-389, supra, are not intended to be a complete chronology of Defendants’ conspiratorial activities, and Plaintiffs intend to provide further details at time of trial.

391.  The Defendants, and each of them, did the acts and things herein alleged pursuant to, and in furtherance of, the conspiracy described above.

392.  The Defendants, and each of them, furthered the conspiracy by cooperating with each other and/or by lending aid and encouragement to, and/or ratifying and adopting the acts of each other in perpetrating the conspiracy herein alleged.

393.  Upon information and belief, Plaintiffs allege that the conspiracy herein alleged commenced some time in December of 1995, and is still on-going as of the date of filing of this Complaint.

394.  As a proximate result of the wrongful acts herein alleged, Plaintiffs have been generally damaged in an amount to be determined according to proof at trial, but not less than $500,000.

395.  Defendants, and each of them, did the things herein alleged maliciously and to oppress Plaintiffs, and this constitutes despicable conduct.  Plaintiffs are therefore entitled to exemplary or punitive damages in an amount to be determined at trial.

 

EIGHTEENTH CLAIM FOR RELIEF

by Plaintiffs PATRICIA VILDOSOLA and WILLIAM JACOBO, Jr., individuals,

against SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; JAMES RIBE, M.D.; and FRANK SHERIDAN, M.D., individuals; and DOES 116-120, for

COMMON LAW FRAUD AND DECEIT

 

396.  Plaintiffs incorporate the allegations above as though set forth in full herein at this point, particularly Paragraphs 382-389.

397.  Plaintiffs are informed and believe, and thereon allege, that at least three actions perpetrated by Defendants were fraudulent and deceitful:  (1) DR. RIBE’s negligent or malicious destruction of brain material, followed by his perjurious testimony as to the existence of a contre-coup lesion—a scheme which was crucial to the prosecution of Ms. Vildosola and Mr. Jacobo, in view of the shaky foundation of the SBS theory; (2) DR. BOGGS’ mendacious diagnosis of battered child syndrome after he negligently or recklessly rendered Destiny anoxic from bilateral pneumothorax; and (3) DR. SHERIDAN’S politically-motivated refashioning of Carissa Neria’s autopsy, five years after her death and despite never seeing Carissa, labeling Carissa’s death as due to SBS, contravening Dr. Duazo’s first-hand findings, and in conformity with the desire of Los Angeles County to prosecute Ms. Vildosola and Mr. Jacobo for SBS.  Plaintiffs are informed and believe, and thereon allege, that Boggs also placed numerous needlemarks on Destiny, either in a futile effort to resuscitate her, or to further implicate Ms. Vildosola and Mr. Jacobo by making it appear that they injected Destiny with narcotics, or that they otherwise tortured Destiny.  Boggs then shunted Destiny away to Long Beach, and disappeared permanently from Santa Marta Hospital, all in an effort to deceive the authorities and escape liability.

398.  Plaintiffs are informed and believe, and thereon allege, that Deputy Coroner James Ribe has an infamous history of falsifying autopsy findings for the benefit of prosecutors.  Furthermore, Ribe is unqualified to diagnose Shaken Baby Syndrome.  He is not certified in pediatrics, pediatric pathology, neuropathology, or hematology.  He is not a member of the panel of experts approved by the superior court for appointment to review child deaths.  What’s more, he admitted to having performed no more than a dozen autopsies of infants under two years of age in his entire career, yet claimed that six of these were SBS cases.

399.  In Destiny’s case, if not all of Ribe’s SBS autopsies, the child was referred to Ribe before a death certificate was issued, based on a tentative diagnosis that child abuse was the cause of death.  Ribe then customized his autopsy findings to fit the errant child abuse allegations, ignoring alternative explanations for Destiny’s death.  The supervising neuropathologist, Hideo Henry Itabashi, M.D., asked Ribe to rule out SBS and other causes of death.  Ribe ignored Itabashi’s advice, to Itabashi’s declared consternation, since he had already perfunctorily concluded that Destiny was an SBS baby.

400.  In order to minimize erroneous autopsy findings, negligent misrepresentation, intentional misrepresentation, and fraud, most jurisdictions identify SBS using child abuse experts or teams of certified experts in pediatrics, pediatric subspecialties, and pathology subspecialties.  Ribe was a general pathologist who had extremely limited experience with child autopsies, and no specialized knowledge of pediatrics, neuropathology, hematology, pulmonary medicine, immunology, or any other disciplines relevant to Destiny’s case.

401.  The Plaintiffs are informed and believe, and thereon allege, that not only is he inexperienced and unqualified to diagnose SBS, but Ribe has changed his testimony in at least three murder cases.  By way of example, Ribe reversed his opinion about the time of a baby’s (Lance Helms) death in a North Hollywood case, leading to the conviction of the baby’s father (David Helms) for felonious child abuse, assault causing death, and second-degree murder.  Ribe’s opinion, later retracted, was pivotal in the conviction of the father’s girlfriend (Eve Wingfield), who received a ten-year sentence for child endangerment.  Subsequent to Ribe’s “change of opinion,” Wingfield was released from prison, after wrongly serving two years.

402.  Ribe admitted at the Helms trial that his conclusion at the time of Wingfield’s trial was “just ridiculous.”  During the trial, Ribe’s altered opinion was described as “frightening,” and he was accused of “tailoring his scientific opinion to coincide with the facts.”  If the mother (Gail Helms) of the convicted father had not kept a diary of his abuse and fought for three years for her own son’s prosecution, it is doubtful that Ribe would have changed his opinion.  One of Ribe’s excuses for his diagnostic “mistake” in the Helms case was that it was based on “vague and incorrect” information from police.  Ribe’s dependence upon police in rendering medical opinions suggests that he lacks medical competency or customizes his findings to conform with police theories.  In either case, Ribe’s opinions should be regarded skeptically as to both truth and accuracy.

403.  Plaintiffs are further informed and believe, and thereon allege, that another excuse given by Ribe for the erroneousness of his autopsy findings in the Helms-Wingfield case was that he “had zero time to prepare.”  The Helms baby died on or about April 6, 1995, while Destiny Jacobo died on December 6, 1995.  If Ribe had “zero time” to examine Lance Helms, then he may have had even less time to determine the cause of Destiny’s death.  Under such pressure, Ribe probably rushed to a conclusion to the prosecutors’ liking, based on hearsay evidence from the police--the new catch-all diagnosis for infant fatalities where child abuse is alleged--Shaken Baby Syndrome.  Ribe’s rushed autopsy decision in the Helms case, as well as his findings in Destiny’s autopsy, were either fraudulent or misrepresentational.

404.  Plaintiffs are informed and believe, and thereon allege, that most courts stringently limit the testimony of medical witnesses to areas within their scope of expertise.  Testimony beyond the range of a physician’s specialized training is generally inadmissible, prone to bias, and frequently intentionally or negligently fraudulent or misrepresentational.  Even testimony within the sphere of a doctor’s expertise is often assessed for its prejudicial impact and probative value.  Aside from a global stipulation to Dr. Ribe’s expertise as a pathologist, no portion of Dr. Ribe’s testimony was assessed in terms of requisite expertise, potential prejudice, or relative probative value.  Because he lacks expertise in SBS, child abuse, or even pediatric pathology, Dr. Ribe’s testimony lacked reliability and relevance.  Yet Ribe’s testimony that Destiny was a victim of SBS, because he is a medical doctor, and despite its intentional and/or negligent misrepresentations, had the import of a closing argument to the jury.

405.  Plaintiffs are informed and believe, and on that basis allege, that the aforementioned representations of Drs. Ribe and Boggs were false.

406.  Plaintiffs are informed and believe, and on that basis allege, that Boggs and Ribe either knew at the time when they made their representations that such representations were false, or made the representations with reckless disregard for their truth or falsity.

407.  Plaintiffs are informed and believe, and on that basis allege, that Drs. Boggs and Ribe made the above representations with the intent of causing Plaintiffs to be criminally sanctioned, with little or no consideration for the injustice likely to be faced by the Plaintiffs.

408.  Plaintiffs were unaware of the falsity of the representations, and justifiably and reasonably relied upon the truth of such representations in ceasing their efforts to find other explanations for Destiny’s death, and from pursuing legal remedies against Dr. Boggs and/or other malefactors.

409.  As a direct result of the foregoing fraudulent conduct committed by Defendants Boggs and Ribe, Plaintiffs have suffered and will suffer damages in an amount to be proven at trial, but in no event less than $500,000.00.

410.  Plaintiffs are informed and believe, and on that basis allege, that the foregoing acts of Defendants Boggs and Ribe were despicable, oppressive and fraudulent, and were committed willfully and with conscious disregard of Plaintiffs' rights, so as to make them fraudulent, malicious and oppressive within the meaning of California Civil Code Section 3294.  By reason thereof, Plaintiffs are entitled to be awarded exemplary and punitive damages in an amount to be determined at trial.

 

NINETEENTH CLAIM FOR RELIEF

by the estate of DESTINY WILLEEN JACOBO, PATRICIA VILDOSOLA, and

WILLIAM JACOBO, Jr., individuals,

against the LOS ANGELES COUNTY CORONER’S OFFICE, a public entity; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; and JAMES RIBE, M.D., individuals; and DOES 121-125, for

CONSTRUCTIVE FRAUD

 

411.  Plaintiffs incorporate the allegations above as though set forth in full herein at this point, particularly Paragraphs 396-397.

412.  By virtue of the fiduciary relationships between Plaintiffs and Defendants, as set forth herein above (see, e.g., 15th Claim for Breach of Fiduciary Duty), and especially because the Defendants knew of Plaintiffs' mestizo ancestry, limited education, and indigence, Defendants owed Plaintiffs the utmost good faith and fairness in all matters pertaining to medical care and advice.

413. Defendants, and each of them, were aware of Plaintiffs' reliance upon them for matters pertaining to medical care and advice.  By virtue of Plaintiffs' reliance on Defendants, Defendants gained an advantage over the Plaintiffs in matters concerning the diagnosis, treatment, and autopsy of DESTINY JACOBO.

414. Defendants, however, were not the least interested in the Plaintiffs' emotional, mental, or physical well being, but were motivated solely by Defendants' own self-interest, greed, desire for pecuniary gain, and desire to avoid legal liability.

415.  Because the Defendants were only concerned with their own circumstances, and not with the well-being of the Plaintiffs, the following events occurred:   (1) Boggs, an unlicensed physician, fraudulently indicated that Destiny was a victim of child-battering, when in fact he had negligently caused bilateral pneumothorax and repeatedly punctured Destiny with needles, leading to Destiny’s death; (2) rather than face the serious medical problems that he caused, Boggs shuttled Destiny off to Long Beach; (3) Boggs thenceforth left Santa Marta Hospital, never to return; (4) Santa Marta was vicariously liable for Boggs’ negligent, fraudulent, and wanton behavior; (5) Santa Marta Hospital, through its employees and agents, participated in the cover-up of the true causes of Destiny’s death; (6) Ribe accepted Boggs’ fraudulent diagnosis, and compounded the fraud by ignoring overwhelming evidence that Destiny’s death was caused by pulmonary illness and injury; (7) Ribe concealed brain tissue which he testified to be evidence of contre-coup brain damage; and (8) the L.A. County Coroner’s Office was vicariously liable for Ribe’s negligence, recklessness, and/or fraudulence.

416.  As a proximate result of the Defendants' constructive fraud, the Plaintiffs have been damaged as hereinbefore alleged, the exact amount to be determined at or before the time of trial, but not less than $500,000.00.

417. As a further direct and proximate result of Defendants' conduct, Plaintiffs have incurred and will incur attorney's fees and related expenses in an amount according to proof.

418. By virtue of the foregoing, Defendants' conduct was malicious and oppressive, and was committed intentionally and in conscious disregard of the rights of and perils to the Plaintiffs.  Therefore, Plaintiffs are entitled to punitive and exemplary damages in an amount likely to deter other actors from engaging in behavior similar to the Defendants’, the exact amount of which will be subject to proof at time of trial.

 

TWENTIETH CLAIM FOR RELIEF

by Plaintiffs Mary Louise Jacobo; William Jacobo, Jr.; Patricia Inez Vildosola; William Jacobo III; Michael William Jacobo; Anthony James Jacobo; Marina Francine Neria; Daniel William Jacobo; and Nicole Christine Jacobo, individuals,

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES CORONER’S OFFICE, public entities; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; JAMES RIBE, M.D.; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; GUY O’BRIEN, ESQ.; RAYMOND SANTANA, ESQ.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; JOANNE GARZA; and CHERI LEWIS, ESQ., individuals, and DOES 126-130, for

INTENTIONAL MISREPRESENTATION

 

419.  Plaintiffs refer to, and incorporate by reference, each and every paragraph set forth above, as though each were fully set forth herein; in particular, ¶¶ 411-415.

420.  The many misrepresentations of Defendants, including charges of child abuse against Plaintiffs made by the GARZAS and Ms. HIGA, alteration of Carissa Neria’s autopsy by SHERIDAN and DUAZO, and others as illustrated in ¶¶ 328 (LEWIS’ misrepresentations and omissions concerning the disappearance of key prosecution witness, Joseph BOGGS), 389 (O’BRIEN and SANTANA’s misrepresentations and omissions about the conspiracy to scapegoat Ms. VILDOSOLA and Mr. JACOBO) & 397 (RIBE’s misrepresentations and omissions about the purported “contre-coup” brain matter, and Boggs’ misrepresentations about DESTINY’s needlemarks and the cause(s) of her death), supra, by way of example, and each of the Defendants’ many other misrepresentations, were made with no reasonable basis on the part of said Defendants for believing the misrepresentations to be true.

421.  Aforenamed Defendants, although they should have known of the falsity of their representations, failed to disclose to Plaintiffs the false and fraudulent nature of Defendants' misrepresentations and non-disclosures.

422.  Plaintiffs are further informed and believe, and thereon allege, that Defendants concealed and suppressed facts that they were bound to disclose.  The concealed facts include, but are not limited to, those set forth in the various paragraphs above, including concealment of:  (1) the conspiracy to scapegoat Ms. Vildosola and Mr. Jacobo in order to minimize liability of the DCS and the County of Los Angeles for Destiny’s death; (2) the cause(s) of Destiny’s death; (3) the location of Joseph Boggs; (4) exculpatory evidence, including:  (a) the details of Destiny’s “treatment” or maltreatment by Boggs, (b) Destiny’s medical history, particularly during her stay at the Garza foster facility, and (c) medical records withheld by Santa Marta.  Moreover, Defendants told Plaintiffs other facts to confuse Plaintiffs, and prevented Plaintiffs from discovering the suppressed facts, especially regarding Destiny’s “treatment at Santa Marta, and Ribe’s fraudulent autopsy.  Such facts were suppressed and concealed with the intent to defraud and induce Plaintiffs to ignore or fail to discover exculpatory evidence, and to defraud and induce the jury into convicting the Plaintiffs.  Further, Defendants knew that Plaintiffs would rely upon and act upon such misstatements and misrepresentations.  At the time, the Plaintiffs were unaware of the concealed and suppressed facts, and would not have taken the actions subscribed had Plaintiffs known said facts.

423.  Plaintiffs are informed and believe, and thereon allege, that to avoid jury confusion, Dr. Ribe’s testimony should have been carefully delimited, explicitly segregated into:  (1) describing SBS, and (2) presenting autopsy findings, and not permitting conclusory statements as to whether Destiny died from SBS or battered child syndrome.  The same paradigm should have applied to Dr. Sheridan’s testimony concerning Carissa Neria’s autopsy, another instance when medical misrepresentations, either intentional or misrepresentational, were elicited for prosecutorial purposes.  Because the aforesaid procedure was not followed, and because of Defendants’ numerous misrepresentations as exemplified in paragraph 412 above, inter alia, the jury was misled into convicting Ms. Vildosola and Mr. Jacobo.

424.  The representations, misrepresentations, omissions, and concealments were made and not made by the Defendants, and each of them, with the intent to induce Plaintiffs to rely thereon, and thereby to never discover exculpatory evidence, to never suspect the fraudulence and falsity of Defendants’ words and actions, so that the Plaintiffs would be convicted by a similarly misled jury for the murder of their child Destiny, the abuse of said child, and other crimes, despite their complete innocence, and their status as grieving parents.

425.  Defendants had a moral and legal duty to Plaintiffs to speak, and not to leave their inquiries unanswered or misanswered, or otherwise intentionally mislead them, inter alia.  Defendants created a false impression by the selective disclosure of some facts and the concealment of other material facts which they were duty bound to disclose.

426.  Plaintiffs reasonably relied upon the above-mentioned misrepresentations, and material omissions and non-disclosures, as a direct result of the success with which Defendants were able to carry out their activities of prosecution, legal practice, medical practice, social work, etc.  In reliance on the above-mentioned misrepresentations and material non-disclosures, Plaintiffs were the victims of the wrongful death of Destiny, false arrest, malicious prosecution, wrongful conviction, and false imprisonment at a cost to the Plaintiffs of over $500,000.  In addition, in reliance on the above-mentioned fraudulent misrepresentations and material omissions, Plaintiffs divulged highly personal and confidential information to Defendants, expended considerable time and money in futile pursuit of justice, and lost their families.

427.  As a direct, proximate and legal result of the fraud and misrepresentation of Defendants, and each of them, Plaintiffs have been generally damaged in an amount exceeding $500,000:  the damages suffered by Plaintiffs as a result of, inter alia, the wrongful death of their daughter/sister/granddaughter Destiny, false arrest and imprisonment, malicious prosecution, loss of family members, and emotional distress.  As a further direct, proximate and legal result of Defendants' fraud, Plaintiffs have also lost income, valuable economic opportunities, and business relationships, in an amount to be proven at trial.

428.  Discovery of the fraud on the part of the Defendants, and each of them, commenced on or about March 15, 2001, and is ongoing, as is more particularly described above, the allegations of which are incorporated herein as set forth fully by this reference.

429.  The aforementioned misrepresentations and material omissions were made willfully and maliciously, with the intent to injure and oppress Plaintiffs and, by reason thereof, Plaintiffs are entitled to exemplary and punitive damages in an amount appropriate to punish and make an example of Defendants.

 

TWENTY-FIRST CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES COUNTY CORONER’S OFFICE, public entities; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; THOMAS LIN, M.D.; JAMES RIBE, M.D.; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; and JOANNE GARZA, individuals; and DOES 131-135, for

NEGLIGENT MISREPRESENTATION

 

430.  Plaintiffs reallege and incorporate the allegations of Paragraphs 412 through 426 above as fully set forth herein.

431.  Some of the fraud, misrepresentation, and omissions of Defendants, described by way of example in ¶¶ 413-423 above, inter alia, may have lacked scienter, and may have occurred as a consequence of accident, inadvertence, incompetence, carelessness, or recklessness, and may therefore be considered negligent misrepresentation.

432.  For example, BOGGS’ medical malpractice conceivably could have extended to believing that DESTINY was the victim of child abuse, despite the fact that his own negligent medical activities, including inducing bilateral pneumothorax and transporting a mortally injured infant fifteen (15) miles away from SANTA MARTA HOSPITAL, were the actual or primary causes of her death.  If so, his conclusion of battered child syndrome could be characterized as a negligent misrepresentation.

433.  For another example, RIBE’s medical negligence could extend to an actual belief that Destiny died exclusively from SBS.  In addition, Ribe could have negligently destroyed the purported contre-coup brain tissue before having any time for examination.  If so, Ribe could have errantly concluded and testified that the lost neural tissue was evidence of physical abuse.  If so, his testimony could be defined as either intentional and/or negligent misrepresentation.  Moreover, the LOS ANGELES COUNTY CORONER’S OFFICE is vicariously liable for any and all misrepresentations made by Ribe within the scope of his employment as a pathologist.

434.  As a further example, FRANK SHERIDAN, as a representative of San Bernardino County who frequently testifies for the prosecution, may have overzealously accepted the SBS theory as a means for expeditiously convicting allegedly abusive parents.  Hence, he may have been eager to convert Carissa Neria’s autopsy from SIDS to SBS, despite the meagerness of his knowledge about Carissa, and despite misgivings by Dr. Duazo, who performed Carissa’s autopsy five (5) years earlier.  Plaintiffs are informed and believe, and thereon allege, that Sheridan’s actions were propelled by a premature acceptance of a dubious medical theory and a cursory examination of less than exhaustive autopsy reports.  Ergo, Sheridan’s belated relabeling of Carissa’s autopsy could be considered negligent misrepresentation, as could Duazo’s cursory ratification.

435.  Defendants made the aforementioned fraudulent, false, intentional, and/or negligent statements or omissions despite the fact that they should have reasonably believed such statements were not true, or that omitted statements were true.  The true facts are that the Defendants have yet to correct any of their misrepresentations, negligent or otherwise.

436.  The true facts are, inter alia, that:  (1) Neither Carissa Neria nor Destiny were victims of child abuse; (2) the primary cause of Destiny’s death was the bilateral pneumothorax caused by unlicensed Dr. Boggs; (3) Destiny had no coup or contre-coup brain injury; (4) the Los Angeles County DCS and District Attorney colluded and conspired to convict Ms. Vildosola and Mr. Jacobo, in order to avoid contingent legal and political liability.

437.  When Defendants made these representations or omissions they knew or should reasonably have known them to be false.  These representations were made by Defendants with intent to defraud and deceive Plaintiffs, or with reckless or careless disregard for the likelihood that such misrepresentations were likely to mislead and deceive Plaintiffs.  Furthermore, these misrepresentations or omissions were made:  (1) with the intent to induce Plaintiffs to act in the manner herein alleged, or (2) with reckless or careless disregard for the fact that they were likely to induce Plaintiffs to act in the manner alleged herein.

438.  Plaintiffs, at the time these representations or omissions were made by the Defendants and at the time Plaintiffs took the actions herein alleged, were ignorant of the falsity of Defendants’ representations and believed them to be true.  In reliance on these representations, Plaintiffs were induced to and did fail to discover exculpatory evidence and failed to adequately assert their defense, and thus were wrongly convicted of felonious crimes for which they were completely innocent.  Had Plaintiffs known the actual facts, they would not have taken such actions.  Plaintiffs’ reliance on Defendants’ representations were justified because said representations were made by individuals in their professional roles, and plaintiffs had no reason to believe other than what was stated thereon.

439.  As a proximate result of Defendants’ misrepresentations, and the facts herein alleged, Plaintiffs suffered damages each in the amount of at least $500,000, the exact amount to be determined by or at the time of trial.

440.  The aforementioned conduct of Defendants took the form of negligent and/or intentional misrepresentations, deceit, or concealment of material facts known to the Defendants, with wanton, reckless, or careless disregard on the part of the Defendants that their actions were likely to deprive Plaintiffs of liberty, legal rights, and property, or to otherwise cause injury, and was despicable conduct that subjected Plaintiffs to cruel and unjust hardships in conscious disregard of Plaintiffs’ rights, so as to justify an award of exemplary and punitive damages.

 

TWENTY-SECOND CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES COUNTY CORONER’S OFFICE, public entities; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; THOMAS LIN, M.D.; JAMES RIBE, M.D.; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; GUY O’BRIEN, ESQ.; RAYMOND SANTANA, ESQ.; MICHAEL BRUSH, ESQ.; JULIANA DROUS, ESQ.; AUGUSTINE VARGAS, ESQ.; NATHANIEL HOFFMAN, ESQ.; LINDA NAKAMURA, ESQ.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; DANIEL GARZA, Jr.; and JOANNE GARZA, individuals; and DOES 136-140, for

NEGLIGENCE

 

441.  Plaintiffs repeat and reallege the allegations set forth above as if fully set forth herein, particularly ¶¶ 430-436.

442.  If the trier of fact finds that some of the above-referenced acts were not done intentionally, then by virtue of the aforementioned acts, the Defendants negligently and/or recklessly in disregard of the Plaintiffs' rights, health and safety, caused physical, mental and emotional injury to the Plaintiffs.  The Defendants know or should have known that their failure to exercise due care with respect to the Plaintiffs' rights would cause the Plaintiffs serious injury and damages as alleged hereinabove.

443.  The Defendants DCS, TRICIA HIGA, HENRY BARBOSA, CYNTHIA ROMERO, RENE BILSON, DANIEL GARZA, and JOANNE GARZA were negligent in caring for the health and welfare of DESTINY in that each of them had a fiduciary duty to insure that Destiny received all necessary and reasonable medical services, a healthful diet, a reasonably clean and quiet environment, all other living conditions conducive to a normal and salubrious upbringing, but each of them failed thereto.  Instead, (1) the Garzas’ foster facility was overpopulated with transient children, some of whom added to the stress of Destiny’s environment, and some of whom carried infectious diseases; (2) Destiny consequently suffered from chronic respiratory and ear infections while staying at the Garza facility; (3) the Garzas discontinued Destiny’s apnea monitoring purely on financial grounds; (4) Destiny was not adequately treated for her illnesses while residing at the Garza’s facility; (5) all of the above-named defendants failed to inform Ms. Vildosola and Mr. Jacobo about Destiny’s medical history, and (6) all of the above-named DCS employees failed to monitor Destiny’s health, particularly during the weeks prior to her death.

444.  The Defendants THOMAS LIN, JOSEPH BOGGS, and SANTA MARTA HOSPITAL, and each of them, were negligent in failing to properly and reasonably treat Destiny, and supervise her health care.  Dr. Lin failed to follow up on Destiny, despite the serious nature of her respiratory and otic illnesses, and despite the fact that he reasonably should have known of her foster child status.  Because neither Lin nor any of the Defendants listed in ¶ 443 provided any information about Destiny’s medical history to Ms. Vildosola or Mr. Jacobo, Destiny unnecessarily suffered from respiratory and/or other diseases which went untreated, and undoubtedly contributed to her untimely death.  Furthermore, Lin negligently misinterpreted Destiny’s chest x-ray, finding it benign despite obvious indications of chronic bronchitis and/or pneumonia.  Finally, Lin’s treatment plan was negligent, and Lin admitted that he was unable to provide a cure for Destiny.

445.  Dr. Boggs and his employer, Santa Marta Hospital, were responsible for treating Destiny when she was brought to the hospital emergency room on the night of December 5, 1995, suffering from respiratory distress.  Plaintiffs are informed and believe, and thereon allege, that Boggs, who was an unlicensed physician at the time, was negligent in at least three respects:  (1) performing CPR improperly, thereby causing bilateral pneumothorax; (2) piercing Destiny with numerous needle marks, whose purpose remains unexplained and hidden; and (3) dumping Destiny off to Long Beach Memorial Hospital, more than fifteen (15) miles away, at a time when she was critically ill and in need of immediate full-service medical attention.

446.  Defendants JAMES RIBE, FRANK SHERIDAN, NENITA DUAZO, AUGUSTINE VARGAS, NATHANIEL HOFFMAN, LINDA NAKAMURA, Romero, and Bilson acted negligently by, inter alia, jumping to the conclusion that Plaintiffs Ms. Vildosola and Mr. Jacobo were guilty of killing Destiny via SBS, and then zealously acting to assure that these Plaintiffs were severely punished for a crime that they did not commit, and for which they should in any event have been presumed innocent.  Sheridan deliberately or negligently relabeled Carissa Neria as an SBS victim, and Duazo rubber-stamped that conclusion.  Ribe destroyed or concealed key brain tissue, then fraudulently testified that said tissue was evidence of a contre-coup injury incurred as a result of child abuse.  The LOS ANGELES COUNTY CORONER’S OFFICE failed to sufficiently supervise Ribe, and is vicarious liable for Ribe’s employment-related negligence.  Romero and Bilson, assisted by Vargas, Hoffman, and Nakamura, conducted a draconian investigation after Destiny’s death, while pretending to be representing the legal interests of the Plaintiffs.  During these investigations, Romero threatened Destiny’s octogenarian great-grandmother Esther Jacobo with jail if she did not implicate Ms. Vildosola.

447.  Plaintiffs are informed and believe, and thereon allege, that JAMES RIBE was unqualified to assess Destiny for SBS or child abuse in general, and that his autopsy performance was negligent, in that, inter alia, he:  (1) Failed to perform many standard or reasonably appropriate tests; (2) misinterpreted much of the medical evidence, always slanting his findings and omitting data for the benefit of the prosecution; and (3) destroyed the most crucial medical material of all, the purported contre-coup matter, but nevertheless testified as to its existence for the prosecution.

448.  Defendants, and each of them, negligently failed to exercise the degree of knowledge and skill expected of individuals or entities with professional certification or imprimatur as physicians, medical examiners, attorneys at law, social workers, hospitals, or governmental organizations, including but not limited to, in particular:  (1) failing to insure that Destiny received reasonably competent medical care, (2) unreasonably assuming the guilt of the parents when a child dies unexpectedly, (3) uncritically assuming the validity of the SBS theory, (4) formulating autopsy reports so as to conform with said theory, and (5) destroying or misplacing crucial pathological evidence.

449.  Had Plaintiffs been advised that Destiny’s pediatrician was Dr. Lin, and that Destiny had a history of respiratory and other illnesses, they would have provided Destiny with the necessary medical care to optimize her health, greatly reducing if not eliminating the possibility that Destiny would develop a fatal respiratory problem.

450.  Additionally, if Plaintiffs had known that Boggs’ medical license was recently suspended, or that Destiny would be transferred more than fifteen (15) miles away to Long Beach while critically injured, they would not have trusted Destiny’s care in such risky and perilous hands, and would have chosen another hospital.  Plaintiffs are informed and believe, and thereon allege, that Destiny would have survived if not for the negligent performance of Boggs, who disappeared from Santa Marta on the heels of Destiny’s death.

451.  Furthermore, if the Plaintiffs had known that Ribe’s SBS theory was defective, that Ribe had destroyed or concealed Destiny’s brain tissue, that Ribe would falsely and fraudulently testify as to the existence of contre-coup neural injury, or that the L.A. Coroner’s Office was not effectively supervising Ribe, then the Plaintiffs would have sought an expert witness to effectively rebut Ribe’s testimony, and thereby would have avoided lengthy false imprisonment.

452.  As a direct and proximate result of such acts, the Plaintiffs have sustained and suffered injuries, including, but not limited to, injuries to their bodies, physical health, family and social life, and business and economic activity, as well as shock and injuries to the nervous system, and also suffer and continues to suffer severe physical and mental pain and anguish in connection therewith, all of which have caused and continue to cause the Plaintiffs great mental, physical, spiritual, emotional and nervous pain and suffering.  The full extent of the Plaintiffs' injuries and damages have not yet been ascertained, and the Plaintiffs will seek leave to amend this Complaint to allege the full extent of such injuries and damages when they have been fully ascertained, if deemed necessary by this Court.

 

TWENTY-THIRD CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES COUNTY CORONER’S OFFICE, public entities; SANTA MARTA HOSPITAL, a California corporation; JOSEPH BOGGS, M.D.; CYNTHIA ROMERO, ESQ.; and RENE BILSON, ESQ., individuals; and DOES 141-170,

for NEGLIGENT SUPERVISION

 

453.  The allegations of Paragraphs 441 through 451, inclusive, supra, are realleged and incorporated herein by reference.

454.  At all times mentioned in this complaint, Defendants DCS and DOES 141 through 150 administered the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES, a large governmental entity created for the purpose of promoting the health and welfare of all children in Los Angeles County, California.  Defendants CYNTHIA ROMERO and RENE BILSON, employed as attorneys by the DCS, were responsible in part for the supervision of Tricia Higa, Henry Barbosa, Augustine Vargas, Nathaniel Hoffman, Linda Nakamura, and other DCS employees or agents.  Defendants the DCS, Romero, Bilson, and DOES 141-150 had the authority to take reasonable actions in the interests of children, including, inter alia, supervising child abuse cases, arranging for foster care, supervising child visitation, correcting familial problems, and monitoring family living conditions.

455.  At all times mentioned in this complaint, Defendants SANTA MARTA HOSPITAL and DOES 151 through 160 administered a medical facility, including, inter alia, an emergency room and a staff of physicians and nurses.  Santa Marta Hospital is open to the public, and its emergency room is legally obligated to serve every person legitimately in urgent need of medical care.

456.  At all times mentioned in this complaint, Defendants the LOS ANGELES COUNTY CORONER’S OFFICE and DOES 161 through 170 administered a forensic medical facility that employed pathologists and other medical and allied professionals, including Dr. James Ribe.  The L.A. County Coroner’s Office and DOES 161-170 owed a duty to Plaintiffs, as well as every citizen of Los Angeles County, to select and assign individuals with requisite skills to perform each autopsy conducted, on a case-by-case basis, and to properly supervise the performance of said autopsies, consultation by qualified specialists, medical tests, and all related activities.

457.  Plaintiffs are informed and believe, and thereon allege, that shortly after Destiny’s birth, in or about March of 1994, the DCS and DOES 141-150 first became involved with MS. VILDOSOLA and MR. JACOBO when they placed DESTINY in the Garza foster home.  The DCS supervised Destiny’s initial placement, as well as the subsequent placement of Destiny in her biological parents’ (Ms. Vildosola and Mr. Jacobo) home in or about July of 1995.

458.  The Plaintiffs, as well as all of the citizens of Los Angeles County, relied and depended upon the Defendant DCS, its employees and agents, and DOES 141-150 to take reasonable care of the health and welfare of Destiny and the other children of Ms. Vildosola and Mr. Jacobo.  In actuality, the Defendant(s) did not take reasonable care to protect the health and welfare of Destiny, or any of Destiny’s siblings.

459.  The Defendant DCS and DOES 141-150 were negligent in their supervision of Destiny’s care in several respects, including, inter alia:  (1) Failing to adequately monitor Destiny’s health, particularly:  (a) after the Garzas decided to pull the plug on Destiny’s apnea monitoring, and (b) immediately after Destiny was transferred from the Garzas’ facility to the Vildosola-Jacobo home; (2) neglecting to take any action when, because of Dr. Lin’s negligence and/or the unacceptable condition of the Garza foster facility, Destiny continued to suffer chronically from respiratory and ear infections, and other possible medical problems; (3) failing to inform Ms. Vildosola and Mr. Jacobo about Destiny’s medical history, or even mentioning that Destiny’s pediatrician was Dr. Lin; (4) falsely and slanderously labeling Destiny as a “crack baby,” but providing no special care for Destiny commensurate with prenatal exposure to cocaine; (5) taking no action whatsoever when the Garzas unilaterally decided to terminate Destiny’s apnea monitoring; and (6) failing to provide Destiny with a complete physical examination, in order to determine whether she suffered from any congenital condition(s), or any other undetected medical ailment.

460.  The Defendant DCS and DOES 141-150 were also negligent in their handling of Destiny’s siblings, for the following reasons, inter alia:  (1) For political, fiscal, or legal reasons, the aforementioned defendants jumped to the assumption that Ms. Vildosola and Mr. Jacobo were guilty of abusing and killing Destiny, and devoted the preponderance of their efforts toward proving that guilt, beginning almost immediately after Destiny’s death, on or about December 6, 1995, and continuing at least until Ms. Vildosola and Mr. Jacobo were wrongly convicted in or about August of 1997; (2) based on their false conclusion as to the guilt of Ms. Vildosola and Mr. Jacobo, permanently separating some or all of the children from their parents; and (3) separating the siblings, such that they were made to:  (a) reside in two or more foster homes, (b) never see some or all of their brothers and sisters again, and (c) never again see their biological parents, Ms. Vildosola and Mr. Jacobo.

461.  The Defendant DCS and DOES 141-150 were negligent in that they failed to exercise reasonable and ordinary care in the selection and supervision of their employees and agents, particularly Higa, Barbosa, Romero, and Bilson, whose negligent actions were detailed in part in ¶¶ 443, 446 & 459-460.

462.  Plaintiffs are informed and believe, and thereon allege, that the Plaintiffs first became involved with Defendant Santa Marta Hospital, JOSEPH BOGGS, and DOES 151-160 on or about December 5, 1995, when Destiny was driven to the Santa Marta emergency room by her parents, Ms. Vildosola and Mr. Jacobo.  Boggs was working in the emergency room at that time, and was Destiny’s primary caretaker during her stay at Santa Marta.

463.  Plaintiffs are informed and believe, and thereon allege, that the Defendants Sta. Marta Hospital, Boggs, and DOES 151-160 were negligent in their supervision of Destiny’s medical care in the following respects, inter alia:  (1) Sta. Marta and DOES 151-160 allowed Boggs to handle emergency room patients despite the recent suspension of his medical license on or about November 28, 1995, or just eight (8) days before seeing Destiny; (2) Boggs negligently caused Destiny’s bilateral pneumothorax, then failed to treat Destiny, despite her critical condition; and (3) Sta. Marta, Boggs, and DOES 151-160 allowed a dying Destiny to be shunted more than fifteen (15) miles away to Long Beach.

464.  Defendants Sta. Marta, Boggs, and DOES 151-160 were negligent in their supervision of Destiny’s medical care, in that:  (1) a physician with a suspended license was allowed to treat Destiny; (2) Destiny was negligently, recklessly, and/or intentionally mistreated, resulting in further injury which was left untreated; (3) Destiny was punctured with dozens of needle marks, either negligently or wantonly; (4) Destiny was negligently, recklessly, falsely, or fraudulently misdiagnosed as a victim of child abuse; and (5) instead of receiving proper and standard medical care, Destiny was transferred more than fifteen (15) miles away from Sta. Marta while in critical condition.  Defendants Sta. Marta, Boggs, and DOES 161-180 knew, or in the exercise of reasonable care should have known, that allowing an unlicensed physician to “treat” Destiny, allowing Destiny to be subjected to dozens of needle punctures, and shuttling Destiny more than fifteen (15) miles away exposed Destiny to unreasonable risks of harm, including the risk of death.

465.  Defendant(s) Sta. Marta and DOES 151-160 failed to warn plaintiffs of the danger presented by emergency room treatment from an unlicensed physician (Boggs) with a lengthy history of medical malpractice litigation, as well as a drunk driving record.

466.  Furthermore, Defendants Sta. Marta, Boggs, and DOES 151-160 failed to stabilize Destiny, and otherwise insure the provision of reasonable and ordinary medical care, before transferring her to another medical facility more than fifteen (15) miles away.

467.  Defendant(s) the L.A. County Coroner’s Office and DOES 161-170 were negligent in their supervision of Destiny’s autopsy, in that, inter alia:  (1) instead of using a panel of specialists to conduct Destiny’s autopsy in order to insure adequate reliability and validity, a general pathologist (Ribe) lacking experience with child autopsies was given complete control of the autopsy; (2) no action was taken after Ribe ignored the advice of the senior neuropathologist (Dr. Itabashi) by, inter alia:  (a) jumping to the conclusion that Destiny was a victim of SBS, (b) failing to rule out SBS in a systematic or professionally competent manner, and (c) destroying and/or concealing the purported contre-coup brain tissue; and (3) failing to review Ribe’s autopsy for irregularities and errors.

468.  The Defendants named in ¶¶ 454-456--i.e., the DCS, Romero, Bilson, Santa Marta Hospital, Boggs, the L.A. County Coroner’s Office, Ribe, and DOES 141-170--had a duty to control, direct, and supervise the conduct of their agents and employees, arising from their master and servant relationships.

469.  Said Defendants had a duty to exercise reasonable care to prevent their agents and employees from acting negligently, recklessly, maliciously, and/or racially discriminatorily toward the Plaintiffs.

470.  The aforenamed Defendants had a further duty to exercise reasonable care to prevent their agents and employees from negligently, recklessly, wrongfully and/or racially discriminatorily mistreating or improperly serving the interests of any of the Plaintiffs.

471.  Defendants negligently, recklessly, or wantonly failed to exercise the proper degree of control and supervision of their agents and employees that reasonable employers and supervising professionals would under the circumstances.

472.  If the trier of fact does not find that the above-referenced acts were done intentionally, then by virtue of the aforementioned acts, the Defendants negligently and/or recklessly in disregard of the Plaintiffs' rights, health, and safety, caused physical, mental, and emotional injury to the Plaintiffs.  The Defendants knew or should have known that their failure to exercise due care with respect to their supervision of activities pertaining to the Plaintiffs would cause Plaintiffs to suffer serious injury and damages as alleged hereinabove.

473.  As a direct and proximate result of the negligence of defendants as set forth above, Destiny died, Ms. Vildosola and Mr. Jacobo were falsely imprisoned, the children of Ms. Vildosola and Mr. Jacobo, WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, MARINA FRANCINE NERIA, ANTHONY JAMES JACOBO, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO, were severed from their birth parents and other family members, and the Plaintiffs suffered the many adverse effects of a wrongful death, malicious prosecution, emotional distress, loss of consortium, loss of children, fraud, misrepresentation, negligence, and negligent supervision, as described hereinbefore.

474.  As a further direct and proximate result of the supervisory negligence of defendants as set forth above, plaintiffs sustained injuries including but not limited to:

(a) inconvenience;

(b) insult;

(c) shock and injuries to the nervous system;

(d) severe physical and psychological pain and anguish;

(e) mental distress;

(f) embarrassment;

(g) humiliation;

(h) anxiety;

(i) emotional pain and suffering;

(j) lost wages and income;

(k) lost economic opportunities and business relationships;

(l) medical expenses; and

(m) legal expenses,

all in connection therewith, all of which have caused and continue to cause the Plaintiffs severe mental, physical, spiritual, social, emotional and nervous harm and injury, each of which Plaintiffs have suffered and continue to suffer.

475.  Additionally, Plaintiffs Ms. Vildosola and Mr. Jacobo suffered numerous physical injuries as a result of being falsely targeted as infanticidal or “baby-killers,” and consequently beaten and traumatized by fellow inmates during their lengthy incarcerations.

476.  The full extent of the Plaintiffs' injuries and damages have not yet been ascertained, and the Plaintiffs will seek leave to amend this Complaint to allege the full extent of such injuries and damages when they have been fully ascertained, if deemed necessary by this Court.

477.  Defendants’ failure to exercise reasonable care in supervising their agents and employees was willful, wanton, reckless, and malicious, and further shows a complete and deliberate indifference to, and conscious disregard for, rights of plaintiffs.  Therefore, plaintiffs are entitled to an award of punitive or exemplary damages in an amount sufficient to punish defendants, and to deter defendants and similar entities from like conduct in the future.

 

TWENTY-FOURTH CLAIM FOR RELIEF

by Plaintiffs PATRICIA INEZ VILDOSOLA and WILLIAM JACOBO, Jr., individuals,

against the Honorable Judge Janice Claire Croft, an individual, and DOES 171-175, for

ABUSE OF DISCRETION

 

478.  Plaintiffs hereby adopt, reallege, and incorporate by reference the allegations contained in paragraphs 1 through 477 above.

479.  Plaintiffs are informed and believe, and thereon allege, that the Honorable Judge Janice Claire Croft abused her judicial discretion, and/or otherwise denied due process to Plaintiffs MS. VILDOSOLA and MR. JACOBO.

480.  First, Judge Croft abused discretion by admitting the highly prejudicial revamped autopsy of Carissa Neria.  The evidence about Carissa was so inflammatory that it never should have been admitted.  Carissa’s autopsy was revised five years after her death by a pathologist (Sheridan) who was totally uninvolved in her original autopsy, specifically so that it could be used to condemn Ms. Vildosola.  The purpose for admitting Carissa’s autopsy record, according to prosecutor Lewis, was to punish Ms. Vildosola and Mr. Jacobo for Carissa’s death, despite the fact that Mr. Jacobo first met Ms. Vildosola years after Carissa’s death, and neither Ms. Vildosola nor Mr. Jacobo was ever charged with any crime associated with Carissa.  In any event, once Carissa’s autopsy materials became part of the record in the trial of Mr. Jacobo and Ms. Vildosola, the jury should have been admonished to handle it with kid gloves—that is, as objectively and unemotionally as possible, and only for the limited purpose of establishing whether Ms. Vildosola had knowledge of and conscious disregard for the danger of her alleged actions to human life.  Instead, Judge Croft gave the jury broad latitude in their use of Carissa’s autopsy.

481.  Secondly, Judge Croft abused discretion by allowing the introduction of gory, gruesome, inflammatory autopsy photographs of DESTINY.  The admission of the cadaverous photographs of dead baby Destiny had a highly prejudicial impact upon the jury.  The jurors had no opportunity to distinguish between alleged abusive injuries, iatrogenic and nosocomial injuries, and post-mortem incisions.  Judge Croft based her decision to admit the shocking pictures solely on their purported relevance or probative value, while disregarding prejudicial impact altogether.  Only the most horrific images were admitted, and other pictures mysteriously disappeared before trial.  Image 50, for instance, “skull with tissue pulled back,” contained bleeding “which may just be a postmortem artifact.  Images 45 and 53, which graphically depict a bloody spinal cord, were admitted despite their irrelevance to an SBS diagnosis.  Moreover, these photographs were blown up, enhanced, and hung prominently in the courtroom for the duration of the trial, along with images of gory eyeballs and a blood-streaked brain.

482.  Plaintiffs are informed and believe, and thereon allege, that Destiny had no large scars, bruises, punctures, or external wounds when she was last under the control of Ms. Vildosola, and that all of the hideous, ghastly injuries depicted in the photographs admitted at trial were produced during either her hospitalization or autopsy.

483.  Thirdly, Judge Croft abused discretion by retaining an expressly biased “talking juror.”  Juror Number Five constantly talked to himself and gesticulated throughout much of the trial, usually expressing hostility toward the defendants or defense witnesses.  He also asked and answered his own questions and made comments during testimony.  According to Alternate Juror Number Three, Sometimes [Juror 5] gets very, very loud.  Juror Number Six stated, “the attorney asks a question, and [Juror 5] tries to answer … himself….  [He] make[s] comments like ‘No, no,’ ‘That’s not right,’ ….  His behavior was described as very distracting and “an ongoing problem to the jurors around him.”  His comments were uniformly negative and denigrating toward the defendants and their kin.  For example, according to other jurors, “when Esther was testifying … he says [sic], oh, that’s kind of stupid” and “[W]atching Marina [Neria] answer, he tries to say, ‘No, no.’”

484.  Plaintiffs are informed and believe that in a criminal case, any private communication, directly or indirectly, with a juror (or among jurors) during a trial about any matter pending before the jury is deemed presumptively prejudicial.  In order to avoid a mistrial, the prosecution has the burden to establish that said communications were harmless to the defendant(s).

485.  Judge Croft told Juror 5 “[T]here is nothing like that … you were doing anything improper ….  [Y]ou are the only one who knows….  We are not accusing you of doing anything wrong.”  No action was taken, and Juror Five, who was obviously biased against Ms. Vildosola and Mr. Jacobo, sat in judgment for the duration of the trial.

486.  Fourthly, Judge Croft further abused discretion by demanding a quick verdict.  When Judge Croft learned on Friday, August 8, 1997, that Juror Number Twelve planned to go on vacation on Monday, August 11, 1997, she admonished Juror Twelve to make up her mind by Monday, implicitly persuading Juror Twelve to hurry her verdict deliberation.  Judge Croft told Juror 12, “If you do end up being excused, the jurors have to start deliberating all over again,” subtly discouraging Juror 12 from leaving.  Then Prosecutor Lewis warned Juror 12, “[W]e will need a decision pretty early,” and Judge Croft followed with “You need to tell us Monday morning.”  Juror Twelve apparently wanted to fulfill her duty, so on Monday she decided to defer her vacation.  Not surprisingly, a guilty verdict was returned on that very Monday.  So Juror 12 left on her vacation just a few hours later than originally scheduled.  Juror 12 very likely reached her verdict decision precipitously because of her impending vacation, or at least much more rapidly than would have been the case if she had no vacation plans.

487.  Plaintiffs are informed and believe that a juror must be excused if a hardship, such as a preplanned vacation, infirmity, death or illness in the family, is likely to interfere with the juror’s ability to deliberate impartially, and without undue stress, time constraints, or other encumbrances, because of the overriding importance that a jury arrive at a carefully reasoned, unhurried verdict.  Undoubtedly, Juror Twelve remained worried about her vacation throughout the deliberations.  Since there were at least three alternate jurors, Judge Croft’s decision to retain Juror 12 was an abuse of discretion.

488.  Fifth, Judge Croft abused discretion by perfunctorily denying Ms. Vildosola’s Marsden motion, revealing a bias against Ms. Vildosola.  Ms. Vildosola was deeply dissatisfied with the representation of Mr. O’Brien, and repeatedly sought a Marsden hearing.  Judge Croft’s response to Ms. Vildosola’s efforts to seek better counsel was peremptory:  “Defense Marsden motion is held and denied.”  The decision was rendered without any explanation.

489.  Sixth, Judge Croft abused discretion by cursorily rejecting all of Defense’s jury instruction requests without explanation.  For example, Ms. Vildosola and Mr. Jacobo attempted to introduce CALJIC 17.01, which pertains to cases where the prosecution has presented evidence of more than one act upon which a conviction could be based, and requires that the jurors unanimously agree that the defendant perpetrated one particular act.  In Ms. Vildosola’s case, the prosecution presented evidence related to the deaths of both Carissa Neria and Destiny Jacobo.  With CALJIC 17.01, the jury would have been required to unanimously agree that Ms. Vildosola killed both Carissa and Destiny.  Without that instruction, the jury could agree that Ms. Vildosola killed Destiny by weighing the evidence pertaining to both Carissa and Destiny, even if the evidence was insufficient to convict Ms. Vildosola of killing either Carissa or Destiny.

490.  Judge Croft also abusively rejected CALJIC 3.01, which pertains to aiding and abetting.  To be held guilty of aiding and abetting a criminal perpetrator, the abettor must have:  (1) knowledge of unlawful purpose; (2) intent or purpose of committing, facilitating, or encouraging crime; and (3) by act, advice, or omission, promoted or instigated crime.  This instruction would have required the jury to consider the relative roles of both codefendants in the alleged crimes.  Thus, the jury would have to find one defendant guilty of a crime, and the other defendant to be at least an aider or abettor.  Without CALJIC 3.01, the scienter for the alleged crimes is attributable to both defendants, irrespective of whether one or both of the defendants are innocent of committing, aiding, or abetting the crime.  By rejecting CALJIC 3.01, Judge Croft led the jury to find both Mr. Jacobo and Ms. Vildosola guilty of murder—a mistake that took extraordinary efforts to amend, and subjected Mr. Jacobo to five years of false imprisonment.

491.  Furthermore, Judge Croft denied defendants’ request for CALJIC 3.31.5, which addresses the mental state of defendants at the time of alleged child abuse or endangerment.  Without CALJIC 3.31.5, jurors were free to ignore mens rea, and find Ms. Vildosola and Mr. Jacobo guilty according to a strict liability standard.  Consequently, both Ms. Vildosola and Mr. Jacobo were found guilty of killing Destiny without regard to whether her death was entirely accidental, involuntary, or caused by Joseph Boggs!

492.  Seventh, Judge Croft abused discretion by issuing vague and incomplete jury instructions.  For example, the instruction given by Judge Croft pertaining to Carissa’s death information was CALJIC 2.09, which reads:

 

Certain evidence was admitted for a limited purpose.  At the time this evidence was admitted you were instructed it could not be considered by you for any purpose other than the limited purpose for which it was admitted.  Do not consider this evidence for any purpose except the limited purpose for which it was admitted.”  [Emphasis added.]

 

The above instruction, which merely refers to “certain evidence,” is so vague that it undoubtedly caused jury confusion, and encouraged jurors to base their decisions on personal biases and sentiments.  Furthermore, no limiting instruction was issued when the evidence about Carissa was introduced.

493.  Eighth, Judge Croft confused the jury as to the burden of proof by permitting Prosecutor Lewis, during her closing argument, to say that Dr. Duazo had to be “100 percent sure” before declaring Carissa’s death to be murder.  Lewis continued by saying that unlike Duazo’s “100 percent sure” standard, “You [jurors] only have to be convinced by a preponderance of the evidence, more likely than not.  It is a very low standard, a very low burden that I as a prosecutor have with regard to that issue on the death of Carissa Neria.”  Under such circumstances, the jurors were prone to employ the “very low” preponderance of the evidence standard in finding the defendants guilty of Destiny’s death.  When jury instructions and evidence standards are as vague and incomplete as in Ms. Vildosola’s trial, the jurors are invited to follow their prejudices in arriving at a verdict.

494.  Ninth, Judge Croft abused discretion by permitting unfettered media coverage before trial, thereby denying a fair trial to Ms. Vildosola and Mr. Jacobo.  Mr. Jacobo and Ms. Vildosola were the victims of highly inflammatory and extensive media coverage throughout Los Angeles and the San Gabriel Valley during the one and one-half years between Destiny’s death and their trial.  The alleged murder of Destiny was front-page news, and all of the Los Angeles television stations ran news stories about Destiny, Mr. Jacobo, and Ms. Vildosola.  The media also extensively covered a protest movement related to Destiny and the Department of Children’s Services.  Most problematic, however, was the unrestricted outspokenness of Prosecutor Lewis, who became well-known to most of the future jurors.

495.  As early as December 29, 1995, the San Gabriel Valley Tribune ran a large, above-the-fold front page story with a 7” x 7” picture of a crying Joanne Garza, as well as a 7” x 5” picture of William Jacobo, Jr. and Ms. Vildosola.  According to the article “Jacobo and Vildosola” would face “sexual abuse” charges, and there were “numerous marks and bruises” indicating that Destiny was “tortured and sexually abused.”  It described “Jacobo and Vildosola” disdainfully as “turning their heads to hide” from cameras, and being handcuffed behind their backs.  Destiny is libelously described as a “drug-addicted baby.”  Most saliently, Deputy District Attorney Marlene Sanchez is quoted as scornfully declaring, “This child should never have been returned to her parents, and this is a worst-case scenario of what can happen.”

496.  On May 29, 1996, the Los Angeles Times (hereinafter “LAT”) announced that—according to Deputy District Attorney Cheri Lewis—the trial of “Patricia Inez Vildosola and William Jacobo, Jr.” for the “murder and child abuse of their 18-month-old [sic] daughter” Destiny, “A victim of what appeared to be shaken baby syndrome,” had been set for July 10, 1996.

497.  On August 13, 1997, the LAT ran a story claiming that Destiny “was violently shaken.”  In that article Cheri Lewis is quoted as vowing, “I hope this sends a message to battering and abusive parents.”  The above-described newspaper articles are presented as examples only.  Many more and better examples are available.

498.  Plaintiffs are informed and believe, and thereon allege, that Ms. Lewis and other officials took advantage of their unconstrained access to media sources to spread invective about Ms. Vildosola and Mr. Jacobo, thereby tainting the Los Angeles County population to such an extent that an impartial jury was impossible to impanel.  Nevertheless, Judge Croft never considered restricting contact with the Fourth Estate, or moving the trial to a different venue; nor did she allow sufficient voir dire to insure that none of the jurors were prejudiced by the pre-trial media coverage.  Judge Croft did not even query the jurors during the trial or prior to deliberations to determine whether anyone had seen or heard any media reports about Ms. Vildosola or Mr. Jacobo.  Apparently, Judge Croft believes that as long as jurors’ biases are tacit, their exposure to highly inflammatory media coverage can be assumed not to be prejudicial.

499.  Another media issue which Judge Croft failed to address was the celebrity of Cheri Lewis, who was seen frequently on national and local television as part of the team prosecuting O. J. Simpson.  Ms. Lewis admitted to the problem of her fame.  Yet at every opportunity, Lewis made televised statements about the case, and assisted news bureaus in their coverage.  It is very likely that the jury, composed of Los Angeles area residents, was particularly knowledgeable about Ms. Lewis, and they may have placed greater weight on her presentation than would have been the case with a less famous prosecutor.  Yet both of the jurors who admitted their recognition of Ms. Lewis were impaneled, as was a juror who admitted that he was already familiar with the case before the trial commenced.

500.  If possible, Judge Croft had even less concern for post-trial media effects.  She ruled, over the objections of both defense attorneys, that a San Gabriel Valley news organization could publish approximately twelve photographs of the defendants.  The defense contended that such media exposure would likely result in violent attacks on the defendants by fellow prisoners, who, like everyone, despise presumed baby-killers.  As expected, both Ms. Vildosola and Mr. Jacobo were recognized in prison, and savagely beaten on many occasions by fellow inmates.  Judge Croft’s callous disregard for the defendant’s bodily safety mirrored her disregard for their constitutional rights.

501.  Tenth, Judge Croft abused discretion in revoking Ms. Vildosola’s library access during pre-trial motions.  Since Ms. Vildosola was innocent but unable to afford bail, she naturally wanted to explore the ramifications of the charges against her.  She was especially interested in the media accounts, which seemed to prejudge her—-and codefendant William Jacobo, Jr., whose charges were dropped after he had served five years in prison—-as guilty.  Ms. Vildosola was also so dissatisfied with her court-appointed lawyer that she wanted a Marsden hearing, and might have represented herself but for Croft’s denial of library access.  The library at Sybil Brand Institute for Women was the only means by which Ms. Vildosola could do such research.  Apparently, Judge Croft preferred to keep Ms. Vildosola in the dark as to her legal rights.

502.  Plaintiffs are informed and believe that the denial of law library access, whether rendered arbitrarily, venally, or retaliatorily, is likely to be injurious to constitutional rights, particularly due process and equal protection.  The official policy of the State of California is to let prison inmates enjoy the use of law library facilities where available.  More specifically, according to California legal precedents, prisoners are entitled to at least “ten legal books in one’s cell at one time.”  By abusively denying to Ms. Vildosola both library privileges and a Marsden motion, Judge Croft left Ms. Vildosola defenseless, or at least seriously infringed upon her due process rights.

503.  Eleventh, Judge Croft abused discretion by making arbitrary, capricious, and unexplained decisions.  As exemplified above in paragraphs 480-502, many of Judge Croft’s rulings were made without explanation or reasoning, and were arbitrary, capricious, an abuse of discretion, not made in accordance with current law, not based on substantial or explicit evidence, or contrary to statutory, procedural, or constitutional requirements.  Most telling is the absence of any written or oral reasoning when rendering many of the most controversial decisions.

504.  The direct and proximate results of Judge Croft’s many abuses of discretion were, inter alia:  (1) misleading and confusing the jury, (2) denying procedural due process to Ms. Vildosola and Mr. Jacobo, (3) subjecting Ms. Vildosola and Mr. Jacobo to malicious prosecution, (4) the wrongful convictions of Ms. Vildosola and Mr. Jacobo, and (5) the false imprisonment of Ms. Vildosola and Mr. Jacobo.

505.  As further direct and proximate results of Judge Croft’s abuses of discretion as set forth above, plaintiffs sustained injuries including but not limited to(a) inconvenience, (b) insult, (c) shock and injuries to the nervous system, (d) severe physical and psychological pain and anguish, (e) mental distress, (f) embarrassment, (g) humiliation, (h) anxiety, (i) emotional pain and suffering, (j) lost wages and income, (k) lost economic opportunities and business relationships, (l) medical expenses, and (m) legal expenses, all in connection therewith, all of which have caused and continue to cause the Plaintiffs severe mental, physical, spiritual, social, emotional and nervous harm and injury.

506.  Additionally, as a direct and proximate result of Judge Croft’s abuse of discretion, Plaintiffs Ms. Vildosola and Mr. Jacobo suffered numerous physical injuries during their lengthy false imprisonments as a result of being targeted by fellow prisoners as “baby-killers.”

507.  The full extent of the Plaintiffs' injuries and damages have not yet been ascertained, and the Plaintiffs will seek leave to amend this Complaint to allege the full extent of such injuries and damages when they have been fully determined, if deemed necessary by this Court.

508.  Judge Croft’s abuses of discretion were willful, wanton, reckless, and malicious, and further show a complete and deliberate indifference to, and conscious disregard for, the rights of the Plaintiffs.  Therefore, Plaintiffs are entitled to an award of punitive or exemplary damages in an amount sufficient to punish the Defendant, or to deter other entities from like conduct in the future.

509.  WHEREFORE, plaintiffs request that this Court, after a trial by jury of their claims, enter a judgment against defendants for plaintiffs’ actual damages, nominal damages, and punitive or exemplary damages that is fair and reasonable, for costs incurred herein, and for any such further legal and equitable relief as this Court deems appropriate.

 

TWENTY-FIFTH CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES COUNTY CORONER’S OFFICE, public entities; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; TRICIA HIGA; HENRY BARBOSA; JAMES RIBE, M.D.; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; the Honorable Judge Janice Claire Croft; and CHERI LEWIS, individuals; and DOES 176-180, for

VIOLATION OF CIVIL RIGHTS

 

510.  Plaintiffs reallege paragraphs 478 through 506, as if fully set forth hereat.

511.  The Defendants’ actions, as partially described hereinabove, were racially discriminatory, thereby denying, either directly or indirectly, to Plaintiffs their civil rights, privileges, and immunities under the laws, and particularly under the California and United States Constitutions, including Article V § 13 of the California Constitution, which states:

 

"Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State.   It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced.  The Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their respective jurisdictions as to the Attorney General may seem advisable.  Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney." [emphasis added]

512.  The Defendants injured Ms. VILDOSOLA and Mr. JACOBO, thereby violating their civil rights, as described hereinabove.  For example:  (1) The DCS, acting through its agents and employees ROMERO, BILSON, HIGA, BARBOSA, et alia, mischaracterized DESTINY as a “crack baby” and Ms. Vildosola as drug-addicted, thereby pretextually justifying Destiny’s separation from her mother and father at birth.  (2) The DCS, and the other Defendants listed in ¶ 511, never informed Ms. Vildosola or Mr. Jacobo about Destiny’s health history.  (3) When Destiny died as a result of the above misbehavior of the defendants, and because of the negligence and criminality of Joseph Boggs, the Defendants immediately presumed that Ms. Vildosola and Mr. Jacobo were guilty of child abuse and murder.  (4) The Defendants the DCS, Romero, and Bilson used Higa and Barbosa as scapegoats, terminating them from employment.  (5) As early as on or about December 6, 1995, and thereafter, Defendants the DCS, Romero, and Bilson began focusing all of their investigative energy upon proving that Ms. Vildosola and Mr. Jacobo were child-abusers and murderers.  (6) Defendant RIBE, assisted by his colleagues SHERIDAN and DUAZO at the San Bernardino County Coroner’s Office, customized their autopsy findings for the purpose of successfully prosecuting Ms. Vildosola and Mr. Jacobo.  (7) Prosecutor Lewis ignored and concealed all exculpatory evidence, including the missing contre-coup brain tissue and the reasons for the mysterious disappearance of Boggs.  (8) Defendant CROFT flatly and inexplicably denied Marsden motion(s), library access, jury instructions, motions to restrict press access, and motions to exclude highly prejudicial evidence of relatively negligible probative value, while retaining highly prejudiced jurors and demanding a quick verdict.  The above examples are for illustrative purposes only, and are not meant to be an exhaustive list.

513.  Upon information and belief, Defendants the DCS, Romero, and Bilson prompted and/or encouraged Defendant Lewis and her superiors at the Los Angeles County District Attorney’s Office to file the aforementioned criminal charges against Ms. Vildosola and Mr. Jacobo.  Defendants DCS and Bilson are otherwise liable for Ms.  Romero's conduct pursuant to the theories of ratification, respondeat superior, agency and/or implied agency.

514.  Upon information and belief, Defendants Ribe and the LOS ANGELES COUNTY CORONER’S OFFICE prompted and/or encouraged Defendants Sheridan and Duazo and their superiors to revise the five-year-old autopsy of Carissa Neria in order to facilitate the prosecutorial efforts against Plaintiffs Ms. Vildosola and Mr. Jacobo.  Defendant the Los Angeles County Coroner’s Office is otherwise liable for Ribe's conduct pursuant to the theories of ratification, respondeat superior, agency and/or implied agency.

515.  At all relevant times, the above-named Defendants knew or should have known that the charges against Ms. Vildosola and Mr. Jacobo were false and unfounded, and therefore intended to cause harm to these Plaintiffs.

516.  At all relevant times, the above-named Defendants intended to, and did in fact, use the aforementioned criminal process for self-serving and improper motives and reasons, and to otherwise obtain a collateral benefit from the criminal process.

517.  Plaintiffs are informed and believe, and thereon allege, that the Defendants acted in the ways described above, particularly in ¶ 512, in a racially discriminatory manner, injuring Plaintiffs as to their civil rights, in that the Defendants would not have treated a white Caucasian--particularly if well-educated, affluent, and legally married--in the same manner as the Plaintiffs were treated.  For instance:  (1) Destiny would not have been casually and carelessly labeled as a “crack baby.”  (2) Destiny would not have been peremptorily removed from her parents at birth.  (3) Destiny’s parents would not have been kept in the dark as to Destiny’s chronic medical problems.  (4) Destiny’s parents would not have been immediately and reflexively presumed to be guilty of any child abuse, let alone sexual abuse and murder.  (5) Autopsy efforts would not have been devoted single-mindedly toward prosecuting the parents.  (6) Exculpatory evidence would not have been destroyed and concealed.  (7) Ms. Vildosola and Mr. Jacobo would have experienced a much fairer and judicious trial.  The above examples are for illustrative purposes only, and are not meant to be an exhaustive list.

518.  Wherefore, Plaintiffs are informed and believe, and thereon allege, that the Defendants, and each of them, based upon prima facie evidence, are guilty of conspiracy to deprive Plaintiffs of their civil rights, in that their actions were racially discriminatory and prejudiced.

519.  The Defendants, and each of them, had an affirmative duty to:  (1)  prevent or aid in preventing conspiracies to deprive Plaintiffs of their rights under the California and U.S. Constitutions, if at any time they knew, or had reason to believe, that a conspiracy existed; and (2) prevent or aid in preventing any acts reasonably likely to deprive any of the Plaintiffs of rights under the California or United States Constitution, to the extent that they knew or should have known about the likelihood of any such acts.

520.  The Defendants, and each of them, failed to expose, prevent, or otherwise aid in preventing the conspiracy to deprive Plaintiffs of their civil and constitutional rights.

521.  As a direct and proximate result of Defendants' failure to expose, prevent, or aid in preventing the conspiracy to deprive Plaintiffs of their civil rights, Plaintiffs were deprived of their constitutional rights, including but not limited to their rights to due process of law and to equal protection under the laws.

522.  As a direct and proximate result of Defendants’ aforementioned racially inspired behavior, Plaintiffs were falsely arrested; maliciously prosecuted; falsely imprisoned; separated from their parents, spouses, siblings, grandparents, grandchildren, and other family members, as well as friends, schoolmates, neighbors, and other associations; and injured socially, psychologically, emotionally, and physically.

523.  The above-named Defendants' abuse of the Los Angeles County criminal process was a direct and proximate cause of the injuries, damages and harm suffered by Plaintiffs.

524.  Plaintiffs are therefore entitled to compensatory damages of not less than $500,000.00, $1 in nominal damages, and other special and incidental damages on their Twenty-Fifth Claim for Relief, to the extent deemed proper by this Court.

525.  Because the above-named Defendants' conduct towards the Plaintiffs was improperly motivated, and was intentional, willful and wanton, the Plaintiffs are additionally entitled to punitive and exemplary damages on this Twenty-Fifth Claim for Relief of not less than $1,500,000.

 

TWENTY-SIXTH CLAIM FOR RELIEF

By All Plaintiffs

against the Honorable Judge Janice Claire Croft and CHERI LEWIS, individuals; and DOES 181-185, for

DENIAL OF DUE PROCESS

 

526. Plaintiffs reallege and incorporate by reference each paragraph hereinabove, particularly ¶ 510 and the allegations of ¶¶ 511-525.

527. The false arrest and incarceration of Plaintiffs Ms. Vildosola and Mr. Jacobo--including in part their sentences of 15 Years to Life, because of which Ms. Vildosola continues to languish in prison, and Mr. Jacobo lost nearly five years of his life before he was finally released--constitute undue hardships.

528.  Plaintiffs’ rights to due process were also contravened by, inter alia, (1) a conspiracy to scapegoat Plaintiffs, (2) their malicious prosecution, (3) fraud and misrepresentation by trial witness(es) and other parties, and (4) destruction and concealment of exculpatory evidence, as described at length hereinabove.  The above 4-item list is provided for illustrative purposes only, and is not meant to represent an exhaustive list of due process infringements suffered by Plaintiffs.

529. The false arrests of Ms. Vildosola and Mr. Jacobo, their retention in the Los Angeles County Jail and various state penitentiaries, and other abuses as exemplified in ¶ 527, violate Article I, sections 7 and 15 of the California Constitution in that these actions were contrary to the due process of law.  Similarly, Plaintiffs allege violations of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

530.  As a direct and proximate result of the deprivation of Ms. Vildosola’s and Mr. Jacobo’s constitutional rights to due process, Plaintiffs WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, MARINA FRANCINE NERIA, ANTHONY JAMES JACOBO, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO suffered damages, including but not limited to separation from their parents, siblings, grandparents, great-grandparent, friends, and neighbors.

531.  As a direct and proximate result of Defendants’ aforementioned due process violations, Plaintiffs were, inter alia, falsely arrested, maliciously prosecuted, falsely imprisoned, and injured economically, socially, psychologically, emotionally, physically, and educationally.

532.  Plaintiffs are therefore entitled to compensatory damages of not less than $500,000.00, $1 in nominal damages, and other special and incidental damages on their Twenty-Sixth Claim for Relief, to the extent deemed proper by this Court.

533.  Because the above-named Defendants' conduct towards the Plaintiffs was improperly motivated, and was intentional, willful and wanton, the Plaintiffs are additionally entitled to punitive and exemplary damages on this Twenty-Sixth Claim for Relief of not less than $1,500,000.

 

TWENTY-SEVENTH CLAIM FOR RELIEF

by All Plaintiffs

against the LOS ANGELES COUNTY DEPARTMENT OF CHILDREN’S SERVICES and the LOS ANGELES COUNTY CORONER’S OFFICE, public entities; FRANK SHERIDAN, M.D.; NENITA DUAZO, M.D.; JAMES RIBE, M.D.; CYNTHIA ROMERO, ESQ.; RENE BILSON, ESQ.; CHERI LEWIS, ESQ.; and THE HONORABLE JUDGE Janice Claire Croft, individuals, and DOES 186-190, for

DENIAL OF EQUAL PROTECTION

 

534.  Plaintiffs hereby reallege and incorporate by reference each and every paragraph hereinabove, including but not limited to Paragraph 526 and the allegations of Paragraphs 527-531.

535.  Defendants’ conduct toward Plaintiffs was influenced and motivated by Plaintiffs’ racial and ethnic background, including but not limited to (1) unwarranted separation of MS. VILDOSOLA and MR. JACOBO from their children, beginning with DESTINY’s foster placement immediately after her birth; (2) continuing separation of DANIEL WILLIAM JACOBO, MARINA FRANCINE NERIA, and NICOLE CHRISTINE JACOBO from their siblings, Mr. Jacobo, MARY LOUISE JACOBO, William Jacobo, Sr., great-grandmother Esther Jacobo, and all other members of the Jacobo-Vildosola family; (3) the presumption of Plaintiffs’ guilt by the DCS, MS. ROMERO, MS. BILSON, DR. RIBE, DR. SHERIDAN, and MS. LEWIS, despite a wealth of exculpatory evidence; (4) concealment, destruction, and omission of evidence incriminating other parties, such as readily available documentation revealing that Joseph Boggs, practicing without a medical license, burst both of Destiny’s lungs, then sent her untreated more than fifteen (15) miles away; (5) singling Plaintiffs out by altering the five-year-old autopsy of Carissa Neria; (6) peremptory denial of pleadings issued by Ms. Vildosola and Mr. Jacobo and their attorneys, including Marsden motion(s), library access request(s), all efforts to restrict news coverage, and jury instructions; (7) retaining overtly biased jurors; and (8) pressuring juror(s) to render a speedy verdict.  The above list is presented by way of example only, and is not intended to represent an exhaustive accounting of Defendants’ infringements upon Plaintiffs’ rights to equal protection.

536.  Plaintiffs are informed and believe, and thereby allege, that many of the Defendants’ actions, including but not limited to those enumerated in ¶ 535, supra, were notably different from their typical, standard, routine, customary, or expected actions toward individuals of other races or ethnicities, particularly more affluent white Caucasians.

537.  The Defendants’ conduct presented an undue hardship to Plaintiffs.

538.  As a direct and proximate result of Defendants' actions, Plaintiffs were deprived of their constitutional rights to equal protection, as guaranteed by the California Constitution, Article 1 § 7(a) and the 14th Amendment of the U.S. Constitution..

539.  As a direct and proximate result of Defendants’ aforementioned violations of equal protection, Plaintiffs were, inter alia, separated from family and friends, falsely arrested, maliciously prosecuted, falsely imprisoned, and injured socially, psychologically, emotionally, and physically.

540.  Plaintiffs are therefore entitled to compensatory damages of not less than $500,000.00, $1 in nominal damages, and other special and incidental damages on their Twenty-Seventh Claim for Relief, to the extent deemed proper by this Court.

541.  Because the above-named Defendants' conduct toward the Plaintiffs was improperly motivated, and was intentional, willful and wanton, the Plaintiffs are additionally entitled to punitive and exemplary damages on this Twenty-Seventh Claim for Relief of not less than $1,500,000.

 

TWENTY-EIGHTH CLAIM FOR RELIEF

by All Plaintiffs

against THE HONORABLE GOVERNOR OF THE STATE OF CALIFORNIA GRAY DAVIS; THE HONORABLE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA BILL LOCKYER; THE HONORABLE JUDGE Janice Claire Croft; and CHERI LEWIS, ESQ., individuals, and DOES 191-195, for

DECLARATORY RELIEF

 

542.  Plaintiffs hereby reallege and incorporate by reference each and every paragraph hereinabove, including ¶¶ 534-539.

543.  Plaintiffs are informed and believe, and thereon allege, that due in part to a profound ignorance of medicine on the part of Defendants THE HONORABLE JUDGE JANICE CLAIRE CROFT and CHERI LEWIS, as well as others, Plaintiffs, instead of having any opportunity to privately grieve the loss of their dear daughter, were abruptly and egregiously jailed and subjected to gross and tragic miscarriages of justice, including wrongful convictions for child abuse and murder, despite their complete and total innocence.

544.  A genuine and actual controversy has arisen and now exists between Plaintiffs and Defendants concerning whether the Plaintiffs were wrongly arrested and convicted.  The Plaintiffs continue to steadfastly maintain their innocence, whereas the Defendants retain their contention that the Plaintiffs are guilty of the crimes for which they were sentenced.

545.  Plaintiffs desire a judicial determination of whether there are sufficient grounds for granting Plaintiffs relief, either in the form of a release from prison or a new trial, and a declaration as to whether:  (1) Ms. Vildosola should be released from prison, (2) Ms. Vildosola should receive a new trial, (3) all charges against Mr. Jacobo should be dropped, and/or (4) all charges against Ms. Vildosola should be dropped.

546.  A judicial declaration is necessary and appropriate at this time under these circumstances in order that Plaintiffs may ascertain their rights and duties.  If a judicial determination is not granted, Plaintiffs will continue to suffer financially, socially, familially, psychologically, and emotionally as follows:  (1) Ms. Vildosola will continue to serve an indeterminate prison term, and may spend the remainder of her life incarcerated for crimes that she never committed; (2) Ms. Vildosola has suffered and will continue to suffer all of the economic, social, and psychic losses associated with imprisonment; (3) Ms. Vildosola furthermore has suffered and will continue to suffer stigmatization as a baby-killer, which has resulted in and continues to threaten beatings, castigation, and ostracism by fellow prisoners; (4) Ms. Vildosola and Mr. Jacobo will remain separated from each other and their children; (5) the children of Ms. Vildosola and Mr. Jacobo--WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, MARINA FRANCINE NERIA, ANTHONY JAMES JACOBO, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO--have been separated and will remain separated from their parents, siblings, and other relatives and friends, and consequently have suffered and will continue to suffer socially, psychologically, emotionally, and educationally, inter alia; (6) MARY LOUISE JACOBO (as well as other relatives and friends) has been and will continue to be completely unable to see her grandchildren (or nephew or nieces or grand-nephew or grand-nieces, etc.) Daniel William Jacobo, Marina Francine Neria, and Nicole Christine Jacobo, and to watch them grow; (7) Mr. Jacobo has suffered and will continue to suffer the aforementioned baby-killer stigma; (8) Mr. Jacobo has suffered and will continue to suffer psychological, emotional, and physical injuries, including but not limited to loss of consortium and loss of services of children, all of which prevents him from attaining employment, and thwarts his constitutionally-prescribed right to pursue happiness; (9) the aforementioned children of Ms. Vildosola and Mr. Jacobo, William Jacobo III, Michael William Jacobo, Marina Francine Neria, Anthony James Jacobo, Daniel William Jacobo, and Nicole Christine Jacobo, have been separated from each other, and will continue to remain separated from their siblings, parents, other relatives, friends, and neighbors; and (10) the children of Ms. Vildosola and Mr. Jacobo have suffered and will continue to suffer social, psychological, physical, emotional, and educational injuries caused by separation from their siblings, parents, other relatives, friends, and neighbors.

547.  Plaintiffs have exhausted all administrative remedies, and have already been denied relief on appeal by a California Appellate Court.  Moreover, Plaintiffs have no adequate alternative remedy at law, and will be irreparably harmed if they are not granted equitable relief.  Furthermore, if relief is not provided immediately, Plaintiffs will continue to suffer severe consequential damages.  Therefore, Plaintiffs’ claim for declaratory relief is timely and proper.

 

TWENTY-NINTH CLAIM FOR RELIEF

by All Plaintiffs

against THE HONORABLE GOVERNOR OF THE STATE OF CALIFORNIA GRAY DAVIS; THE HONORABLE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA BILL LOCKYER; THE HONORABLE JUDGE Janice Claire Croft; and CHERI LEWIS, ESQ., individuals, and DOES 195-200, for

EQUITABLE CLAIM FOR INJUNCTIVE RELIEF

 

548.  Plaintiff refers to and incorporates by reference, each and every paragraph set forth above, as though each were fully set forth herein, including paragraphs 542-547.

549.  Plaintiffs seek immediate and permanent relief with respect to their false arrest, malicious prosecution, wrongful conviction, and false imprisonment, because Plaintiffs will be irreparably damaged if their false convictions and imprisonments are not repealed.

550.  Plaintiffs are suffering and will continue to suffer injury as a result of Defendants' alleged misconduct.

551.  Plaintiffs have a clear and ascertainable right to protection of their legitimate and reasonable rights, including, inter alia, their civil rights, due process rights, and rights to equal protection.

552.  Plaintiffs do not have an adequate remedy at law to prevent Defendants from violating their rights, and money damages alone cannot compensate Plaintiffs for the violation of their rights.

553.  Plaintiffs are likely to prevail on the merits of their claims in Count I through Count XXVIII.

554.  Defendants should be prohibited and enjoined from any further false imprisonment of Plaintiff Ms. Vildosola.

555.  Plaintiffs request that this Court enter an order reversing the wrongful convictions of Ms. Vildosola and Mr. Jacobo, and dropping all of the criminal charges falsely filed against these plaintiffs relating to the unfortunate and untimely death of their daughter, Destiny.

556.  Because of the Defendants' wrongful actions:  (1) Ms. Vildosola has spent more than six (6) years in prison, will continue to serve an indeterminate prison term, and may spend the remainder of her life incarcerated for crimes that she never committed; (2) Ms. Vildosola has suffered and will continue to suffer all of the economic, social, and psychic losses associated with false imprisonment; (3) Ms. Vildosola has furthermore suffered and will continue to suffer stigmatization as a baby-killer, which has resulted in and continues to threaten beatings, castigation, and ostracism by fellow prisoners; (4) Ms. Vildosola and Mr. Jacobo have been separated, and will remain separated from each other and their children; (5) the children of Ms. Vildosola and Mr. Jacobo--WILLIAM JACOBO III, MICHAEL WILLIAM JACOBO, MARINA FRANCINE NERIA, ANTHONY JAMES JACOBO, DANIEL WILLIAM JACOBO, and NICOLE CHRISTINE JACOBO--have been separated, and will continue to remain separated from their parents, grandmother, and other relatives; (6) MARY LOUISE JACOBO (as well as other relatives and friends) will be completely unable to see her grandchildren (or nephew or niece or grand-nephew or grand-niece) Daniel William Jacobo, Marina Francine Neria, and Nicole Christine Jacobo, and to watch them grow; (7) Mr. Jacobo has suffered and will continue to suffer the aforementioned baby-killer stigma; (8) Mr. Jacobo has suffered and will continue to suffer psychological, emotional, and physical injuries, including but not limited to loss of consortium and loss of services of children, all of which prevent him from attaining employment, and thwarts his constitutionally-prescribed right to pursue happiness; (9) the aforementioned children of Ms. Vildosola and Mr. Jacobo have been separated from their siblings, relatives, friends, and neighbors, and will continue to remain separated from their siblings, relatives, friends, and neighbors; and (10) the children of Ms. Vildosola and Mr. Jacobo have suffered and will continue to suffer social, psychological, physical, emotional, and educational injuries caused by separation from their siblings, relatives, friends, and neighbors.  The above ten items are not meant to be an exhaustive list of injuries suffered by the plaintiffs.

557.  Defendants should be prohibited and enjoined from further punishing any of the Plaintiffs with respect to the false charges of second degree murder, child abuse, and child endangerment for which they were wrongly convicted in or about the year of 1997, and the Defendants should release Ms. Vildosola from false imprisonment forthwith.

558.  WHEREFORE, Plaintiffs demand judgment in their favor and against the Defendants, and pray for the following relief:

A.  That Ms. Vildosola be released from prison;

B.  That all charges filed against Mr. Jacobo related to the death of his Daughter, Destiny Jacobo, be rescinded;

C.  That all charges filed against Ms. Vildosola related to the death of her Daughter, Destiny Jacobo, be rescinded;

D.  Alternatively, that Ms. Vildosola be granted a new trial;

E.  That Plaintiffs be awarded damages for their lost income, economic opportunities, and business relationships, including compensatory damages in excess of $1,000,000, the exact amount of which shall be proven at trial;

F.  That Plaintiffs be awarded treble damages determined to have been sustained by each of them due to the malicious, fraudulent, and oppressive actions of the Defendants;

G.  That the Defendants be enjoined from any further conduct contrary to the constitutional and civil rights of the Plaintiffs, including their rights to due process and equal protection;

H.  That Defendants be enjoined from further incarcerating Ms. Vildosola, either permanently or pending a new trial;

I.  That Plaintiffs recover from Defendants the costs of this suit and reasonable attorney’s fees;

J.  Punitive damages in excess of $3,000,000;

K.  Plaintiffs demand trial by jury of all matters so triable; and

L.  That Plaintiffs have such other and further relief as the Court may deem just and proper.

 

PRAYER FOR RELIEF

 

WHEREFORE plaintiffs demand judgment against defendants, and each of them, jointly and severally, as follows:

559.  As to the First Claim for Relief for Wrongful Death, each plaintiff and the decedent’s estate demand judgment on the First Cause of Action for Wrongful Death against the named defendants in the sum of TEN MILLION ($10,000,000) DOLLARS.

560.  For the First, Thirteenth, and Fourteenth Causes of Action for Wrongful Death, Loss of Services of a Child, and Loss of Consortium, Plaintiffs Patricia Inez Vildosola and William Jacobo, Jr. demand:

A.  General and non-economic damages according to proof, but not less than FIVE MILLION DOLLARS ($5,000,000);

B.  Special damages according to proof;

C.  Prejudgment interest according to law;

D.  Costs of suit; and

E.  Any other and further relief that the court considers proper.

561.  Regarding the Second Claim for Medical Malpractice / Negligence by Physician, and the Third Claim for Medical Malpractice / Negligence by Hospital, the decedent’s estate demands judgment on each claim and against each defendant in the sum of TWO MILLION ($2,000,000) DOLLARS, as well as treble punitive and exemplary damages in an amount to be determined at time of trial.

562.