QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Steven G. Madison (Bar No. 101006) Naomi J. Harlin (Bar No. 204740) 2 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 3 (213) 624-7707 1 4 Attorneys for Plaintiff Marsh USA, Inc. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1. Plaintiff Marsh USA, Inc. ("Marsh") is a Corporation with its 25 principal place of business at 777 XYZ Street, Los Angeles, California, 90017. 2. Defendant Benjamin Sarmiento ("Sarmiento") is an individual who, at 26 27 all material times, resided at 555 ABC Street, Rialto, California, 92376. 28
00999/6E5A9631-C6A4-464F-B599-E8A8CEE95335.DOC
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
) ) Plaintiff, ) ) v. ) ) ORLANDO SARMIENTO; CAL FED BANK, ) a federal bank; and, DOES 1 through 30, ) Inclusive, ) ) Defendants. ) ) ) )
MARSH USA, INC., a Corporation,
CASE NO. ABC1234 Dept: TBA Judge: TBA COMPLAINT FOR: (1) Embezzlement; (2) Conversion [Civil Code ' 3336] ; (3) Money Had and Received; (4) Imposition of a Constructive Trust; and, (5) Injunctive Relief Filing Date: April __, 2000 Trial Date: None set
THE PARTIES
COMPLAINT
1
3.
Defendant CalFED Bank is a federal bank with its principal place of
2 business at 123 XYZ Street, Los Angeles, California, 90017. 3 4. The true names and capacities, whether individual, corporate,
4 partnership, associate or otherwise, of defendants Does 1 through 50 inclusive, and each of 5 them, are unknown to plaintiff who therefore sues them by such fictitious names. Plaintiff 6 will seek leave to amend this Complaint to show the true names and capacities of Does 1 7 through 50 when he has discovered them. Plaintiff alleges that, at all times mentioned 8 herein, all of the defendants acted or participated in some manner in the acts alleged herein, 9 and in some way caused and are responsible for plaintiff's damages. All references to the 10 named defendant shall include, without limitation, Does 1 through 40 inclusive. 11 5. Plaintiff alleges that, at all times mentioned herein and unless
12 otherwise indicated, each of the defendants was and now is the agent of each of the other 13 defendants, and that each of the defendants, in performing the acts alleged, was acting 14 within the course and scope of such agency. 15 16 17 18 19 6. 7. Marsh is an insurance company. In or about April 1995, Marsh hired Sarimento to work as Premimum STATEMENT OF FACTS
20 Accounting Supervisor. 21 8. On three separate occasions, Sarimento, in his capacity as Premium
22 Accounting Supervisor, transferred approximately $500,000 from Marsh’s bank accounts 23 to his own personal account. 24 9. Sarmiento transferred the $500,000 from Marsh’s bank accounts to
25 his own personal account without permission from Marsh and without Marsh’s knowledge. 26 27 28
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COMPLAINT
1 2 3 4 10.
FIRST CAUSE OF ACTION (Embezzlement Against Sarmiento and Does 1 through 50)
Plaintiff Marsh realleges and incorporates by reference each allegation
5 contained in paragraphs 1 through 9 above. 6 11. On or about March 9, 1999, Sarmiento, acting in his capacity as,
7 Premium Accounting Supervisor for Marsh, wrongfully caused $500,000 to be transferred 8 from Marsh's bank account at Wells Fargo Bank to his personal bank account at CalFED 9 Bank, Account Number 1234567. Sarmiento accomplished this unlawful transfer by 10 presenting an altered check made payable to himself for payment through Marsh's bank 11 account. 12 12. On or about June 3, 1999, Sarmiento, acting in his capacity as
13 Premium Accounting Supervisor for Marsh, wrongfully caused $500,000 to be transferred 14 from Marsh's bank account at Wells Fargo Bank to his personal bank account at CalFED 15 Bank, Account Number 1234567. Sarmiento accomplished this unlawful transfer by 16 presenting an altered check made payable to himself for payment through Marsh's bank 17 account. 18 13. As a result of Sarmiento's interference, Marsh has been damaged in an
19 amount at least as great as $1,500,000. 20 14. Sarmiento, in refusing to return to Marsh upon its demand on April 20,
21 2000, the amount of $1,500,000, exercised dominion and control over Marsh's property. 22 15. This exercise of dominion and control are both the primary and
23 substantial factors causing damage to Marsh. But for Sarmiento's intentional and substantial 24 conduct, Marsh would have retained its rightful property and not been damaged. 25 16. Because of the deliberate, malicious, and oppressive nature of
26 Sarmiento's conduct, Marsh seeks an award of punitive damages against Sarmiento in an 27 amount sufficient to punish Sarmiento and deter him and others from similar acts. 28
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COMPLAINT
1 2 3 4 5 6 17. Plaintiff Marsh realleges and incorporates by reference each allegation SECOND CAUSE OF ACTION (Conversion Under the Common Law & Civil Code ' 3336 Against Sarmiento and Does 1 through 50)
7 contained in paragraphs 1 through 16 above. 8 18. As of April 23, 2000, the date on which Marsh discovered
9 Sarmiento's embezzlement as set forth above, Marsh owned and had the right to possession 10 of $1,500,000 taken by Sarmiento. 11 19. Sarmiento, however, refused to return these funds in the amount of
12 $1,500,000 to Marsh and in so doing intentionally interfered with Marsh's right to 13 possession of said sum. 14 20. In all respects, the interference and means by which Sarmiento
15 prevented Marsh from possessing said sum were substantial. 16 21. In all respects, the interference and means by which Sarmiento
17 prevented Marsh from possessing said sum were intentional. 18 22. As a result of Sarmiento's interference, Marsh has been damaged in an
19 amount at least as great as $1,500,000. 20 23. Sarmiento, in refusing to return Marsh's funds in the amount of
21 $1,500,000, exercised dominion and control over Marsh's property. 22 24. This exercise of dominion and control are both the primary and
23 substantial factors causing the described damage to Marsh. But for Sarmiento's intentional 24 and substantial conduct, Marsh would have retained its rightful property and not been 25 damaged. 26 27 28
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COMPLAINT
1
25.
Because of the deliberate, malicious, and oppressive nature of
2 Sarmiento's conduct, Marsh seeks an award of punitive damages against Sarmiento in an 3 amount sufficient to punish Sarmiento and deter him and others from similar acts. 4 5 6 THIRD CAUSE OF ACTION (Common Count For Money Had And Received Against Sarmiento and Does 1
7 through 50) 8 9 26. Plaintiff Marsh realleges and incorporates by reference each allegation
10 contained in paragraphs 1 through 25 above. 11 27. As of April 23, 2000, Sarmiento became indebted to Marsh in the
12 amount of $1,500,000 for money had and received by him for Marsh's benefit. 13 28. Notwithstanding Marsh's demands, Sarmiento refused and failed, and
14 continues to refuse and fail, to pay Marsh the amount of $1,500,000. As a result, there is 15 now due, unpaid, and owing from Sarmiento to Marsh the amount of $1,500,000. 16 17 18 19 20 29. Plaintiff Marsh realleges and incorporates by reference each allegation FOURTH CAUSE OF ACTION (Imposition of a Constructive Trust Against All Defendants)
21 contained in paragraphs 1 through 28 above. 22 30. CalFED Bank had acquired some portion of the $1,500,000
23 embezzled by Sarmiento from Marsh through fraud, accident, mistake or some other 24 wrongful act. Therefore the Court should impose a constructive trust on all funds held by 25 such defendant for the benefit of Sarmiento, and require such defendants to return any 26 amounts they received that may be traced to Sarmiento's embezzlement from Marsh. 27 28
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COMPLAINT
1 2 3 4 31.
FIFTH CAUSE OF ACTION (Injunctive Relief Against All Defendants)
Plaintiff Marsh realleges and incorporates by reference each allegation
5 contained in paragraphs 1 through 30 above. 6 32. At the present time, the defendants hold funds amounting to at least
7 $1,500,000 belonging to Marsh, and if defendants are not enjoined from transferring such 8 funds they will be disbursed in a manner that will prevent Marsh from tracing them to the 9 funds embezzled by Sarmiento. Therefore, Marsh requests that the Court enter an 10 injunction to prevent the transfer of all funds in defendants' possession or control either 11 received from, or held for Sarmiento, until such time as the Court rules on the respective 12 rights of the parties. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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PRAYER FOR RELIEF
1.
On the First Through Third Causes of Action For: (a) Actual damages of $1,500,000 plus pre- and post-judgment interest against Sarmiento; (b) Punitive damages; and, (c) Attorneys' fees and costs;
2.
On the Fourth Cause of Action For: (a) An order declaring that defendants Sarmiento and CalFED Bank hold any funds which were embezzled by Sarmiento and transferred to them; and, (b) An order compelling the above-named defendants to convey such funds to plaintiff Marsh;
6
COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3.
On the Fifth Cause of Action For: (a) An order preliminarily enjoining Sarmiento and CalFED Bank, their agents, servants, employees and assigns and all those acting in concert with them from disbursing, transferring or otherwise releasing any funds which they hold in any accounts on behalf of Defendant Sarmiento until such time as they are paid to plaintiff Marsh; and, (b) An order preliminarily enjoining Sarmiento and all those acting in concert with him, including without limitation his relatives, agents, servants, employees, and assigns from disbursing, transferring or otherwise secreting any funds which remain in Sarmiento's control or possession which he obtained by embezzlement while working for his former employer, Marsh;
4.
On All Causes of Action For: (a) Such other and further relief as the Court may deem just.
DATED: April ____, 2000 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP
By Steven G. Madison Attorneys for Plaintiff Trust Company of the West
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COMPLAINT