The Real Mexican Judicial System  🙃

When the damage to our home from the neighboring construction became impossible to ignore, we did what we were told we should do: we documented everything, went through the legal system, and kept quiet. 

First came a civil lawsuit filed in my husband’s name in 2020 for damages and prejudices (daños y perjuicios). It detailed how heavy machinery and excavation on the adjacent lot sent vibrations and seismic waves through the rocky ground, cracking our walls, breaking water lines, knocking doors out of square, and shifting the kitchen counter. That case was “overlooked.”

At the same time, a criminal complaint (denuncia/querella) was also filed for the crime of property damage. It told the same story, included the same experts, the same notarial certificate of facts, and the same quote from the builder about how the excavation would be “perjudicial.” The court killed the case by applying a convenient expiration date, claiming the statute of limitations had run. NOTE: There is no direct translation for the word ‘Perjudicial’. It can mean harmful, detrimental, damaging, or injurious. Considering it’s been 7 years without resolution, it’s a pretty accurate word.

“We challenged that decision. We took it to the Control Judge, then into amparo proceedings, and eventually to the federal level in La Paz. The system demanded clairvoyance, ruling that we should have filed a lawsuit on the very first day the excavation machines arrived—as if we possessed a crystal ball to see the invisible structural fractures spreading through our foundation months before the walls actually cracked. The court suddenly suffered from a severe case of willful blindness.”

Meanwhile, the house kept suffering. The damage did not stop when the first lawsuits were obstructed. We hired a third independent expert, a licensed architect and authorized court appraiser, who quantified the ongoing structural problems and repair costs at a significantly higher figure.

In 2023, I filed a new ordinary civil lawsuit in my own name. This one is broader. It names not only the neighbor and the builder, but also the bank acting as trustee, the homeowners association, the architectural review committee, the board of directors, and several municipal officials responsible for construction permits and oversight. The claim is higher, reflecting the continued deterioration and the new expert appraisal. What followed wasn’t a normal court delay; it was a heavy, manufactured silence.

Across all four filings, including an appeal to the Tribunal in La Paz, the core facts never changed: the same two lots in El Pedregal, the same 60-meter distance, the same heavy machinery, the same progressive structural damage, and the same warning we were given before the excavation even began. The facts stayed the same. The only variable was the invisible hand tilting the scales of justice.

Next: The part that is harder to explain

“Disclaimer: The content on this blog represents my personal experiences, opinions, and observations regarding ongoing public legal matters. All references to legal proceedings are based on official court filings and public records, which are provided here for transparency and informational purposes. This content does not constitute legal advice.”

Translation of the CIVIL file

(Ordinary civil lawsuit – juicio ordinario civil for damages and losses)

John Philip Goerss v. David Nakama Oancea and Philip Orr

Expediente No. 213/2020

Cabo San Lucas, Baja California Sur, Mexico 

TO THE JUDGE OF FIRST INSTANCE OF THE CIVIL BRANCH ON DUTY, RESIDING IN CABO SAN LUCAS, MUNICIPALITY OF LOS CABOS, BAJA CALIFORNIA SUR.

PRESENT.  

I, PABLO ISMAEL AGUILAR ROMERO, in my capacity as attorney-in-fact for Mr. JOHN PHILIP GOERSS, whose authority I prove with the simple copy and original for comparison of notarial instrument number 1,658 (one thousand six hundred fifty-eight) executed before Notary Public Number 32 of the State of Baja California Sur, Licenciado Gamill Abelardo Arreola Leal, which I attach to this writing as Exhibit “1”;  

I hereby designate as my address for receiving all types of notifications and documents the property located at Calle Ernesto Chanes Chávez, Manzana 89 B, Local 2, Colonia Ampliación Santa Rosa, in the locality of San José del Cabo, Municipality of Los Cabos, and I authorize for such purposes the attorneys Rene Ruiz Guillen, José Luis Vázquez López, and Federico Vázquez López. 

Before you, Your Honor, with due respect, I appear to state the following:  

Pursuant to Circular No. 12/2014 issued by the Presidency of the Superior Court of Justice on October 1, 2014, I request that electronic consultation of the case file via the Internet be authorized for this matter, that the rulings and orders issued by this Court be notified, and that the filing of pleadings by digital means be authorized to the email account XXXXX, which is duly registered for such purposes.  

Likewise, pursuant to Articles 24, Section III, 119, and 118, Section IX of the Transparency and Access to Public Information Law for the State of Baja California Sur, and Articles 38 and 42, Section II and related provisions of the Law for the Protection of Personal Data in Possession of Obligated Subjects for the State of Baja California Sur, I hereby object to the processing of my personal data and those of my principal, and I request that their publication in printed or electronic lists in the present ordinary civil lawsuit be omitted. 

In the ordinary civil proceeding, I hereby sue DAVID NAKAMA OANCEA, in his capacity as beneficiary of the trust (fideicomisario) of the real property located at Lot number XX), Block XX, of the residential subdivision El Pedregal de Cabo San Lucas, in the town of the same name, Los Cabos, Baja California Sur, who may be served at the address located in Colonia El Pedregal de Cabo San Lucas, Lot XX, Block XX, Calle Callejón del Pueblo XX, in this locality of Cabo San Lucas;  

as well as Mr. PHILIP ORR, in his capacity as owner and legal representative of the construction company named PRESTIGE HOMES LOS CABOS, who may be served at the address located at Local XX of Plaza San XXXX this locality of Cabo San Lucas,  

exercising the action to establish the commission of damages and losses with respect to the property that I will describe and identify below. I demand the following relief:  

RELIEF REQUESTED  

A) A finding establishing the damages caused to the real property described as follows:

Lot number XX of Block XX, of the Subdivision El Pedregal de Cabo San Lucas, in the town of Cabo San Lucas, Municipality of Los Cabos, Baja California Sur, with cadastral key number XXX-XXX-XXX-XXX, with a surface area of 528.21 m² (five hundred twenty-eight point twenty-one square meters) and the following measurements and boundaries: 

• North: 35.95 m with Callejón del Gallo in three segments of 30.98 m, 2.51 m, and 2.46 m; 
• South: 55.69 m with Camino del Mar in four segments of 32.23 m, 14.17 m, 5.68 m, and 3.61 m; 
• East: 3.19 m with Camino del Pedregal in two segments of 1.65 m and 1.51 m; 
• West: 28.21 m with Lot number 25 of the same block.

B) An order requiring Mr. DAVID NAKAMA OANCEA to repair the damage in favor of Mr. JOHN PHILIP GOERSS for the deterioration caused to the real property held in trust for the benefit of my principal.  

C) Payment of indemnification for damages arising from the civil liability of the defendant in the amount of $2,722,550.02 (two million seven hundred twenty-two thousand five hundred fifty pesos 02/100 Mexican currency), an amount that will be sufficient and adequate to carry out the repair work for the damages caused.  

D) Payment of legal interest on the requested indemnification amount, as well as payment of the costs and expenses generated by the processing of this lawsuit.  

E)Payment for the losses (perjuicios) caused to the real property described in Relief A of this initial complaint, arising from the damages caused by the responsibility of the defendant, in an amount to be determined at the time this Court renders judgment.  F) Payment of costs and expenses in favor of my principal.  The following Background, Facts, and Legal Considerations form the basis of this action:  

BACKGROUND

1. On March 14, 2018, by means of public deed number XX,XXX, Volume DCLXXV (675), the defendant DAVID NAKAMA OANCEA acquired 100% of the beneficial rights under the trust in the property identified as Lot XX of Block XX, with cadastral key number XXX-XXX-XXX-XXX, with a surface area of 2,677.00 m² (two thousand six hundred seventy-seven square meters), registered with the Public Registry of Property and Commerce of the Municipality of Los Cabos under real folio 004-21103. This is proven by the certified copy of the described deed issued by Licenciada Perla Margarita Gavarain Montaño in her capacity as Public Registrar of the Public Registry of Property and Commerce in the Municipality of Los Cabos.

FACTS

1. In late summer of 2017, the owner of PRESTIGE HOMES LOS CABOS, Philip Orr, personally informed my principal that he had obtained a new client named David Nakama Oancea, whose property is located at Callejón del Pueblo, Lot XX, Block XX, in the Subdivision El Pedregal de Cabo San Lucas. This information was provided because the property is adjacent to the real property whose beneficial rights belong to my principal. Mr. Philip Orr, owner of PRESTIGE HOMES LOS CABOS, stated that it would be an excavation project and told my principal, regarding the excavation process: “they will hate him at the end because it will be very harmful to their lives” (sic). Mr. Orr also stated that they would try to keep the noise to a minimum by using expansion methods, assuring them that if any damage occurred due to the vibrations of the pneumatic hammer, “they would take care of it” (sic). Instead, excavation methods were used that produced seismic waves, which resulted in structural damage to the real property held in trust for the benefit of my principal. 

2. During the preparatory work prior to excavation, heavy machinery began arriving, transported to the site in dump trucks, which caused vibrations on the roadway adjacent to the real property held in trust for my principal. On November 5, 2018, within Lot XX of Block XX, on Calle Callejón del Pueblo Number XX of the Subdivision El Pedregal de Cabo San Lucas, excavation work with heavy machinery began. This is proven by the photograph attached as IMAGE 1 on page 3 of the Expert Opinion attached as evidence to this initial complaint. The work began without authorization from the responsible authority because no construction license existed. 

3. As a result of the excavation work and the circulation of both heavy machinery and dump trucks transporting the rocky material and soil extracted from the construction zone, the real property held in trust for my principal began to show problems, such as small cracks, fractures in the water lines (including irrigation pipes) as well as the hydro-sanitary lines. Additionally, due to the vibration and movement, the interior doors of my principal’s residence came out of square, making opening or closing them difficult, and the kitchen countertop shifted from its original position against the wall as designed and originally constructed. 

4. As a consequence of the foregoing, on April 12, 2019, my principal attended a meeting with the homeowners’ association of El Pedregal to inform them of the damage occurring at his residence. However, although they were aware of the situation, no solution was provided. Therefore, in May 2019, a citizen’s complaint was filed with the Urban Planning Directorate of the Honorable City Council of the Municipality of Los Cabos, which temporarily halted the work until a construction license was issued. When the license was later displayed at the construction site, it showed a two-year validity period. 

5. As a result of the evident damage to the real property referred to above, my principal, Mr. JOHN PHILIP GOERSS, requested the intervention of Civil Engineers Leonel Reyes Zetina (Professional License 6288620) and Josué Aharon Maza Ruiz (Professional License 2498760 and registered as Responsible Construction Director DRO/126/MARJ2019). On July 2, 2019, they conducted a survey and technical opinion whose purpose was to determine the magnitude of the damages caused by the seismic wave induced by the use of construction machinery through the rocky mass of the subdivision from the neighboring property located 60 meters from my principal’s residence. The opinion concluded, and I quote verbatim:

“CONCLUSIONS: IT IS DETERMINED THAT THE PERIOD OF VIBRATION INDUCED BY THE USE OF HEAVY MACHINERY ON LOT XX, BLOCK XX, PROPAGATED THROUGH THE ROCKY MASS OF THE SUBDIVISION, CAUSED THE ACCELERATION OF THE MASS OF THE MATERIALS WITH WHICH THE PROPERTY IS CONSTRUCTED, RESULTING IN THE DAMAGES THAT ARE DESCRIBED AND DOCUMENTED. THE ORIGIN OF THE INDUCED SEISMIC WAVE IS LOCATED 60 m FROM THE AFFECTED PROPERTY.” (sic) 

Thereafter, on August 6, 2019, Notary Public Number 18 of the State of Baja California Sur, Licenciado Ricardo Cevallos Valdez, appeared at the affected residence at the request of my principal, Mr. John Philip Goerss, accompanied by Engineer Leonel Reyes Zetina, to prepare a Notarial Certificate of Facts, which was formalized under public instrument number 24,822 of Book 748. In that certificate, the Notary conducted a physical inspection of the affected property to verify the existence of the damage that is the subject of this claim. A photographic set consisting of 48 photographs illustrating the damage was attached to the public instrument. In addition, in the appendix, the Notary provided a detailed narrative of the damage he observed and of which he gave public faith. I request that those facts be deemed reproduced as if set forth verbatim, as a simple copy and original of the same are attached for comparison and should be considered during the investigation stage. 

6. As a result of the excavation work with heavy machinery, the real property held in trust whose beneficial rights form part of my principal’s estate (proven by the certified copy of public deed number XX,XXX issued by Licenciada Perla Margarita Gavarain Montaño in her capacity as Registrar of the Public Registry of Property and Commerce of the Municipality of Los Cabos) suffered physical and structural damage to the residence due to the vibrations and seismic movements caused by the pneumatic force of the hammer used to fracture the rock. This is proven by the expert opinion in each and every one of its pages, which is attached as documentary evidence to this initial complaint, prepared by Civil Engineer Oscar Castillo Sánchez, Federal Professional License number 2573908, who is also an expert of the Supreme Court of Justice of the State of Baja California Sur in matters of General Construction, Topography, Surveying, Technical Opinions, Civil Works Appraisals, Progress of Works Appraisals, and Construction Quality, under official document number SGA-1232/2014. The expert opinion was requested by my principal, Mr. John Philip Goerss. 

7. It is important for me, in my capacity as attorney-in-fact for Mr. John Philip Goerss, to emphasize to Your Honor that the construction work and the transit of heavy machinery and dump trucks continued during the second half of 2019, for which reason the damages presented have worsened due to the vibration caused by the transit of dump trucks, as shown in the images attached on pages 148 to 158. Therefore, such conduct is understood as continuous. 

8. It is important to note that the property whose beneficial rights are held 100% by the defendant is located at a straight-line distance of 60 linear meters from the property whose beneficial rights are held by my principal. For this reason, the vibrations from the operation of heavy machinery at the time of cutting and the transportation of heavy materials caused the damages to the property, which have been quantified in the amount of $2,722,550.02 (two million seven hundred twenty-two thousand five hundred fifty pesos 02/100 Mexican currency), an amount that reflects the patrimonial damage suffered by my principal. 

9. For the foregoing reasons, since November 2018, when the damage began to appear, the conduct generating the damages has not ceased, because the co-defendant Philip Orr has continued executing the work that generated the damages, which over time have worsened to the detriment of my principal’s estate.

To duly prove the foregoing facts, I offer the following  

EVIDENCE

1. CONFESSIONAL to be given by DAVID NAKAMA OANCEA and PHILIP ORR, who shall answer the examination that will be formulated in due course. I request that they be summoned through the court clerk attached to this Court at the addresses indicated for service of process, with the legal warning that if they fail to appear without just cause they shall be deemed to have confessed the positions that are ruled legal.  a. Reason for offering and demonstration of fact: This evidence relates to each and every one of the facts directly attributable to them in the initial complaint filed by the undersigned on behalf of Mr. John Philip Goerss. 

2. PRIVATE DOCUMENTARY EVIDENCE consisting of the technical opinion prepared by Civil Engineers Leonel Reyes Zetina (Professional License 6288620) and Josué Aharon Maza Ruiz (Professional License 2498760 and registered as Responsible Construction Director DRO/126/MARJ2019).  a. Reason for offering and demonstration of fact: This evidence relates to Fact No. 5 of the Facts chapter and seeks to demonstrate that the damages to the real property held in trust for my principal originated as a consequence of the excavation work performed. 

3. PUBLIC DOCUMENTARY EVIDENCE: Certified copy of deed number XX,XXX issued by the Public Registry of Property and Commerce, signed by C. Perla Margarita Gavarain Montaño, Public Registrar.  a. Reason for offering and demonstration of fact: This evidence is offered to demonstrate the legal interest with which my principal, through the undersigned, brings the present lawsuit in my capacity as attorney-in-fact. 

4. PUBLIC DOCUMENTARY EVIDENCE consisting of the first testimony of the Certificate of Facts, Book 748, instrument 24,822, dated August 6, 2019, by Licenciado Ricardo Cevallos Valdez, Notary Public Number 18 of the State of Baja California Sur.  a. Reason for offering and demonstration of fact: This evidence is offered to prove the existing damage to the real property held in trust for my principal. 

5. PRIVATE DOCUMENTARY EVIDENCE consisting of the Expert Opinion prepared by C. Oscar Castillo Sánchez, Civil Engineer, Federal Professional License number 2573908 and State Professional License number 0278, as well as registered as an expert of the Supreme Court of Justice of the State of Baja California Sur in matters of General Construction, Topography, Surveying, Technical Opinions, Civil Works Appraisals, Progress of Works Appraisals, and Construction Quality, under official document number SGA-1232/2014. The opinion consists of 200 pages on one side only, plus annexes consisting of a manila half-letter envelope containing a compact disc with recorded images and videos as evidence of the expert opinion (located between pages 195 and 196), three double-letter color prints on coated paper bearing the legend “location of damages found – plan 1 of 3, 2 of 3 and 3 of 3,” a color print of official document SGA-1232/2014, a color print of the Annual Renewal of official document SGA-1232/2014, and a color print of the professional license of Eng. Oscar Castillo Sánchez.  a. Reason for offering and demonstration of fact: This evidence is offered to demonstrate not only the existence of the damages to the real property held in trust for my principal, but also, through the statements of the expert who prepared it, that the damages arose as a consequence of the work performed on the property whose beneficial rights are held 100% by Mr. David Nakama Oancea and by the execution of the work by Mr. Philip Orr. I therefore request that a date and time be set for the expert authorized by the State Judiciary to ratify the same. 

6. DOCUMENTARY EVIDENCE BY WAY OF REPORT to be rendered by the General Directorate of Urban Development through the Construction Licenses Directorate, marked with number 019LIC-SJC/2018, because there is no consistency between the license number and its issuance date and because it has inherent evidentiary value for this claim.  a. Reason for offering and demonstration of fact: This evidence is offered to demonstrate that the excavation work was irregular from its material commencement. 

7. PUBLIC DOCUMENTARY EVIDENCE: Certified copy of deed number XX,XXX issued by the Public Registry of Property and Commerce, signed by C. Perla Margarita Gavarain Montaño, Public Registrar.  a. Reason for offering and demonstration of fact: This evidence is offered to demonstrate the ownership of the 100% beneficial rights held by the defendant DAVID NAKAMA OANCEA in the property where the work causing the damage to my principal’s estate is being carried out, so that the person I am suing has the legal capacity to be ordered to pay the relief requested in this initial complaint. 

8. JUDICIAL INSPECTION consisting of a visit by the court clerk attached to this Court to conduct a visual inspection of the real property held in trust for my principal in order to verify the damages, their quantity, and the degree they present.  a. Reason for offering and demonstration of fact: This evidence is offered so that the court clerk attached to this Court may certify the existence of the damages present in the real property held in trust for my principal. 

9. JUDICIAL INSPECTION consisting of a visit by the court clerk attached to this Court to conduct a visual inspection of the real property held in trust for Mr. David Nakama Oancea in order to verify the construction work being carried out on the property whose beneficial rights are held 100% by him.  a. Reason for offering and demonstration of fact: This evidence is offered so that the court clerk attached to this Court may certify the existence of the construction work on the real property held in trust for Mr. David Nakama Oancea. 

10. PUBLIC DOCUMENTARY EVIDENCE consisting of Public Instrument number 1,658 of Book 76 of the Ordinary Protocol, dated July 27, 2020, relating to the General Power of Attorney with Broad Faculties granted by John Philip Goerss in favor of Pablo Ismael Aguilar Romero.  a. Reason for offering and demonstration of fact: This evidence is offered to prove the capacity in which I appear. 

11. LEGAL AND HUMAN PRESUMPTIONS insofar as they benefit my interests. This evidence relates to points 1 through 4 of the initial complaint. 

12. INSTRUMENTAL OF THE PROCEEDINGS in everything that benefits the interests of the undersigned. This evidence relates to points 1 through 4 of the initial complaint.

LAW  

I base my action on the following legal provisions:  

As to the merits, Articles 1815, 1818, 1820, 1830, 1838 (Sections VI and VII) and related applicable provisions of the Civil Code currently in force in the State of Baja California Sur are applicable.  

As to procedure, Articles 121, 254, 255 and related provisions of the Code of Civil Procedure currently in force in the State of Baja California Sur are applicable.  

For the foregoing reasons and on the basis of the law cited, I respectfully request that Your Honor:  

PRAYER FOR RELIEF  

FIRST: Hold me as having filed the present complaint in the manner, terms, and propositions indicated.  

SECOND: Hold me as having designated the authorized persons and the address for receiving all types of notifications.  

THIRD: Give the present filing the legal processing it is due.  

FOURTH: Authorize electronic consultation of the case file via the Internet for this matter, and that the rulings and orders issued by this Court be notified to the email account pabloaguilarbcs@gmail.com (mailto:pabloaguilarbcs@gmail.com), which is duly registered for such purposes.  

FIFTH: Return the original documents attached for comparison at the time of filing the present matter.  

SIXTH: In due course, and after the procedural steps have been completed, render a final judgment favorable to the interests of my principal.  

I PROTEST WHAT IS NECESSARY. 

Cabo San Lucas, Baja California Sur.

On the date of its presentation.  

PABLO ISMAEL AGUILAR ROMERO

Attorney-in-Fact for

Mr. JOHN PHILIP GOERSS 

TO THE AGENT OF THE PUBLIC PROSECUTOR’S OFFICE OF THE COMMON JURISDICTION SPECIALIZED IN CRIMES COMMITTED AGAINST PROPERTY, OR THE CORRESPONDING AGENT OF THE PUBLIC PROSECUTOR’S OFFICE OF THE COMMON JURISDICTION

PRESENT.  

I, the undersigned, PABLO ISMAEL AGUILAR ROMERO, in my capacity as attorney-in-fact for Mr. JOHN PHILIP GOERSS, whose authority I prove with the simple copy and original for comparison of notarial instrument number 1,658 (one thousand six hundred fifty-eight) executed before Notary Public Number 32 of the State of Baja California Sur, Licenciado Gamill Abelardo Arreola Leal; and as holder of the beneficial rights under the trust described in public deed number XX,XXX, Volume CDXXIII (423), proven by the certified copy of said public deed issued by C. Perla Margarita Gavarain Montaño in her capacity as Public Registrar of the Public Registry of Property and Commerce of the Municipality of Los Cabos;  

I hereby authorize, from this moment, the attorneys José Luis Vásquez López and Federico Vásquez López to receive all types of notifications and documents at the address located at Calle Ernesto Chanes Chávez, Manzana 89 B, Local 2, Colonia Ampliación Santa Rosa, in the locality of San José del Cabo, Municipality of Los Cabos.  

Pursuant to Article 17 of the National Code of Criminal Procedure, I designate Licenciado Rene Ruiz Guillen as my legal advisor, with telephone number XXX and the undersigned’s email address XXX.

Before you, Agent of the Public Prosecutor’s Office, with due respect, I appear to:  

STATE:  

That pursuant to Articles 221 (first paragraph), 223, 224, 225 and other related and applicable provisions of the National Code of Criminal Procedure in force in the State of Baja California Sur, in my capacity as attorney-in-fact with powers for lawsuits and collections (the power of attorney is attached in simple copy and original for comparison and return as “ANNEX A”), I hereby file a formal denuncia and/or querella against DAVID NAKAMA OANCEA, who may be located at the address on Calle Callejón del Pueblo XX, Lot XX, Block XX, Colonia El Pedregal, in this locality and port of Cabo San Lucas, for acts that may constitute the crime of PROPERTY DAMAGE (DAÑOS), AND/OR THOSE THAT RESULT, provided for and punished by Articles 252, 237 and other applicable provisions of the Penal Code for the Free and Sovereign State of Baja California Sur.  

This is in accordance with the following:  

BACKGROUND

1. On March 14, 2018, by means of public deed number XX,XXX, Volume DCLXXV (675), the now-denounced party DAVID NAKAMA OANCEA acquired 100% of the beneficial rights under the trust in the property identified as Lot XX of Block XX, with cadastral key number XXX-XXX-XXX-XXX, with a surface area of 2,677.00 m² (two thousand six hundred seventy-seven square meters), registered with the Public Registry of Property and Commerce of the Municipality of Los Cabos under real folio 004-21XXX. This is proven by the certified copy of the described deed issued by C. Perla Margarita Gavarain Montaño in her capacity as Public Registrar of the Public Registry of Property and Commerce in the Municipality of Los Cabos.

FACTS

1. In late summer of 2017, the owner and legal representative of PRESTIGE HOMES LOS CABOS, named PHILIP ORR, personally informed my principal that he had obtained a new client named DAVID NAKAMA OANCEA, whose property is located at Callejón del Pueblo, Lot XX, Block XX, in the Subdivision El Pedregal de Cabo San Lucas. This information was given because the property is adjacent to the real property whose beneficial rights belong to my principal. Mr. Philip Orr, who as already stated is the owner and legal representative of PRESTIGE HOMES LOS CABOS, said it would be an excavation project and told my principal the following regarding the excavation process: “they will hate him at the end because it would be very harmful to our lives” (sic). Mr. Orr also stated that they would try to keep the noise to a minimum by using expansion methods, assuring us that if any damage occurred due to the vibrations of the pneumatic hammer, “they would take care of it” (sic). Instead, excavation methods were used that produced seismic waves, which resulted in structural damage to the real property held in trust for the benefit of my principal. 

2. During the preparatory work prior to excavation, heavy machinery began arriving, transported to the site in dump trucks, which caused vibrations on the roadway adjacent to the real property held in trust for my principal. On November 5, 2018, within Lot XX of Block XX, on Calle Callejón del Pueblo Number XX of the Subdivision El Pedregal de Cabo San Lucas, excavation work with heavy machinery began. This is proven by the photograph attached as IMAGE 1 on page 3 of the Expert Opinion attached as evidence to this initial complaint. The work began without authorization from the responsible authority because no construction license existed. 

3. As a result of the excavation work and the circulation of both heavy machinery and dump trucks transporting the rocky material and soil extracted from the construction zone, the real property held in trust for my principal began to show problems such as small cracks, fractures in the water lines (including irrigation pipes) as well as the hydro-sanitary lines. Additionally, due to the vibration and movement, the interior doors of my principal’s residence came out of square, making opening or closing them difficult, and the kitchen countertop shifted from its original position against the wall as designed and originally constructed. 

4. As a consequence of the foregoing, on April 12, 2019, my principal attended a meeting with the homeowners’ association of El Pedregal to inform them of the damage occurring at his residence. However, although they were aware of the situation, no solution was provided. Therefore, in May 2019 a citizen’s complaint was filed with the Urban Planning Directorate of the Honorable City Council of the Municipality of Los Cabos, which temporarily halted the work until a construction license was issued. When the license was later displayed at the construction site, it showed a two-year validity period. 

5. As a result of the evident damage to the real property referred to above, my principal, Mr. John Philip Goerss, requested the intervention of Civil Engineers Leonel Reyes Zetina (Professional License 6288620) and Josué Aharon Maza Ruiz (Professional License 2498760 and registered as Responsible Construction Director DRO/126/MARJ2019). On July 2, 2019, they conducted a survey and technical opinion whose purpose was to determine the magnitude of the damages caused by the seismic wave induced by the use of construction machinery through the rocky mass of the subdivision from the neighboring property located 60 meters from my principal’s residence. The opinion concluded, and I quote verbatim:

“CONCLUSIONS: IT IS DETERMINED THAT THE PERIOD OF VIBRATION INDUCED BY THE USE OF HEAVY MACHINERY ON LOT XX, BLOCK XX, PROPAGATED THROUGH THE ROCKY MASS OF THE SUBDIVISION, CAUSED THE ACCELERATION OF THE MASS OF THE MATERIALS WITH WHICH THE PROPERTY IS CONSTRUCTED, RESULTING IN THE DAMAGES THAT ARE DESCRIBED AND DOCUMENTED. THE ORIGIN OF THE INDUCED SEISMIC WAVE IS LOCATED 60 m FROM THE AFFECTED PROPERTY.” (sic) 

Thereafter, on August 6, 2019, Notary Public Number 18 of the State of Baja California Sur, Licenciado Ricardo Cevallos Valdez, appeared at the affected residence at the request of my principal, Mr. John Philip Goerss, accompanied by Engineer Leonel Reyes Zetina, to prepare a Notarial Certificate of Facts, which was formalized under public instrument number 24,822 of Book 748. In that certificate, the Notary conducted a physical inspection of the affected property to verify the existence of the damage that is the subject of this claim. A photographic set consisting of 48 photographs illustrating the damage was attached to the public instrument. In addition, in the appendix, the Notary provided a detailed narrative of the damage he observed and of which he gave public faith. I request that those facts be deemed reproduced as if set forth verbatim, as a simple copy and original of the same are attached for comparison and should be considered during the investigation stage. 

6. As a result of the excavation work with heavy machinery, the real property held in trust whose beneficial rights form part of my principal’s estate (proven by the certified copy of public deed number XX,XXX, Volume CDXXIII (423), issued by C. Perla Margarita Gavarain Montaño in her capacity as Public Registrar of the Public Registry of Property and Commerce of the Municipality of Los Cabos) suffered physical and structural damage to the residence due to the vibrations and seismic movements caused by the pneumatic force of the hammer used to fracture the rock. This is proven by the expert opinion in each and every one of its pages, which is attached as documentary evidence to this initial complaint, prepared by Civil Engineer Oscar Castillo Sánchez, Federal Professional License number 2573908, who is also an expert of the Supreme Court of Justice of the State of Baja California Sur in matters of General Construction, Topography, Surveying, Technical Opinions, Civil Works Appraisals, Progress of Works Appraisals, and Construction Quality, under official document number SGA-1232/2014. The expert opinion was requested by my principal, Mr. John Philip Goerss. 

7. It is important for me, in my capacity as attorney-in-fact for Mr. John Philip Goerss, to emphasize to this Honorable Social Representation that the construction work and the transit of heavy machinery and dump trucks continued during the second half of 2019, for which reason the damages presented have worsened due to the vibration caused by the transit of dump trucks, as shown in the images attached on pages 148 to 158. Therefore, such criminal conduct is understood as continuous. 

8. It is important to note that the property whose beneficial rights are held 100% by the now-denounced party is located at a straight-line distance of 60 linear meters from the property whose beneficial rights are held by my principal. For this reason, the vibrations from the operation of heavy machinery at the time of cutting and the transportation of heavy materials caused the damages to the property, which have been quantified in the amount of $2,722,550.02 (two million seven hundred twenty-two thousand five hundred fifty pesos 02/100 Mexican currency), an amount that reflects the patrimonial damage suffered by my principal. 

9. For the foregoing reasons, the facts stated fully fit the criminal type of Property Damage as established by the Baja California Sur legislature in the articles of the Penal Code in force in our state. I therefore base the querella on the following:

LAW

1. Article 21 of the Constitution, which establishes jurisdiction. 

2. The procedural provisions of Articles 221 (first paragraph), 223, 224, 225 and other related and applicable articles of the National Code of Criminal Procedure in force in the State of Baja California Sur. 

3. The substantive provisions of the Penal Code in force in Baja California Sur that have already been cited in the body of this initial denuncia and/or querella.

The following jurisprudential criteria serve to reinforce the legal provisions:  (Here follow two Supreme Court / Collegiate Circuit Court theses on the legality of a querella filed by a possessor with just title in cases of property damage — full text preserved in the original.)  

EVIDENCE  

RATIFICATION OF THE PRESENT DENUNCIA AND/OR QUERELLA, on the date and time that this Honorable Social Representation may set for that purpose. 

1. CONFESSIONAL to be given by DAVID NAKAMA OANCEA
   a. Whom I request be summoned through an authorized official for the taking of the confessional examination ordered by this Honorable Social Representation, at the address located in Colonia El Pedregal de Cabo San Lucas, Lot XX, Block XX, Calle Callejón del Pueblo XX, in this locality of Cabo San Lucas, and if he is not found there, that a search and presentation order be issued. 

2. CONFESSIONAL to be given by PHILIP ORR
   a. Whom I request be summoned through an authorized official for the taking of the examination ordered by this Honorable Social Representation, at the address located at Local XX, Plaza San XXXX, Colonia El Tezal, in this locality of Cabo San Lucas, and if he is not found there, that a search and presentation order be issued. 

3. PRIVATE DOCUMENTARY EVIDENCE consisting of the technical opinion prepared by Civil Engineers Leonel Reyes Zetina (Professional License 6288620) and Josué Aharon Maza Ruiz (Professional License 2498760 and registered as Responsible Construction Director DRO/126/MARJ2019).
   a. Whom I request be summoned so that they may ratify before this Honorable Social Representation each and every statement in the technical opinion presented. They may be located at Quinta del Retiro, Manzana XX, Lot LXXX, Colonia Fraccionamiento Monterrey, in the locality of San José del Cabo, Municipality of Los Cabos, Baja California Sur. 

4. PUBLIC DOCUMENTARY EVIDENCE consisting of the notarial testimony presented for comparison and return so that the resulting simple copies may be attached to this denuncia. It is self-proving by its own special nature and relates to the Certificate of Facts prepared by Licenciado Ricardo Cevallos Valdez, Notary Public Number 18, public instrument number 24,822, Book 748, dated August 6, 2019.
   a. This evidence does not require ratification by the issuing notary because it meets the formalities the law establishes for full evidentiary value. 

5. PRIVATE DOCUMENTARY EVIDENCE consisting of the Expert Opinion prepared by C. Oscar Castillo Sánchez, Civil Engineer, Federal Professional License number 2573908 and State Professional License number 0278, as well as registered as an expert of the Supreme Court of Justice of the State of Baja California Sur in matters of General Construction, Topography, Surveying, Technical Opinions, Civil Works Appraisals, Progress of Works Appraisals, and Construction Quality, under official document number SGA-1232/2014. The opinion consists of 200 pages on one side only, plus annexes consisting of a manila half-letter envelope containing a compact disc with recorded images and videos as evidence of the expert opinion (located between pages 195 and 196), three double-letter color prints on coated paper bearing the legend “location of damages found – plan 1 of 3, 2 of 3 and 3 of 3,” a color print of official document SGA-1232/2014, a color print of the Annual Renewal of official document SGA-1232/2014, and a color print of the professional license of Eng. Oscar Castillo Sánchez.
   a. Whom I request be summoned by this Honorable Social Representation so that he may ratify the expert opinion in all its terms. He may be located at Ruiz Cortínez Number 1321, Colonia Ejidal, in this locality of Cabo San Lucas, Municipality of Los Cabos, Baja California Sur. 

6. Ministerial Inspection consisting of a visit by the head of this Honorable Social Representation and the Investigating Police to the address located in Colonia El Pedregal de Cabo San Lucas, Lot XX, Block XX, Calle Callejón del Pueblo XX, in this locality of Cabo San Lucas, in order to verify the existence of the construction work and the activities being carried out there, so as to demonstrate its continuity. 

7. Ministerial Inspection consisting of a visit by the head of this Honorable Social Representation and the Investigating Police to the address located at Lot XX, Block XX, Calle Callejón del Gallo and Camino del Mar, within the Subdivision El Pedregal de Cabo San Lucas, for the purpose of obtaining visual evidence of the damages caused to the affected real property that is the subject of this denuncia. 

8. Documentary evidence by way of report to be rendered by the General Directorate of Urban Development through the Construction Licenses Directorate, marked with number 019LIC-SJC/2018, because there is no consistency between the license number and its issuance date and because it has inherent evidentiary value for this claim. 

9. Investigation to be conducted by this Honorable Social Representation assisted by the Investigating Police.

PRAYER FOR RELIEF  

For the foregoing reasons, I respectfully request that you:  

FIRST. – Hold me as having filed a formal written denuncia and/or querella against DAVID NAKAMA OANCEA and/or whoever else is responsible by action or omission, for the acts that the law designates as the crimes of PROPERTY DAMAGE (DAÑOS) AND/OR THOSE THAT RESULT; and that the undersigned be duly required to ratify the same.  

SECOND. – Hold as designated the address for receiving notifications stated in the opening of this denuncia.  

THIRD. – Admit the evidence offered herein and set a date for its presentation.  

FOURTH. – Order the necessary investigations to identify those responsible for the acts that are the subject of this denuncia, so that the Investigating Agents may appear at the address of the party denounced in this querella.  

FIFTH. – Certify the receipt of the denuncia, the ratification, and the documents attached to it.  

SIXTH. – Grant the relief requested.  

RESPECTFULLY,  

PABLO ISMAEL AGUILAR ROMERO

Attorney-in-Fact for

Mr. JOHN PHILIP GOERSS  Cabo San Lucas, Baja California Sur

On the date of its presentation. 

INDIRECT AMPARO: 894/2021

COMPLAINANT: JHON PHILIP GOERSS

MATTER: Appeal for Review is filed. 

La Paz, Baja California Sur, October 25, 2021

TO THE FIRST DISTRICT JUDGE IN THE STATE OF BAJA CALIFORNIA SUR

PRESENT.

We, CRISTHIAN RENE MONTUFAS CHAVEZ and RAYMUNDO ALDACO MIRANDA, in our capacity as authorized representatives of the complainant pursuant to Article 12 of the Amparo Law, respectfully appear before you to.

STATE:

That pursuant to Article 81, Section I, subsection e) of the Amparo Law, we hereby file an APPEAL FOR REVIEW against the judgment rendered by you in this proceeding, because the following.

GRIEVANCES are caused: 

It is necessary to note that there are two: 

1. The issue of prescription, and 
2. The issue of the authorization of the non-exercise of the criminal action.
   We will develop them in that order:

FIRST. – The challenged judgment, in accordance with Article 74 of the Amparo Law currently in force, is violative of the complainant’s rights because it was not rendered in accordance with the law. It fails to make a systematic analysis of all the concepts of violation, fails to properly evaluate the evidence offered, and fails to properly ground and motivate the reasons for which the judgment is rendered in that sense; an incorrect motivation is clearly apparent.

We consider that the rigid criterion that the one-year term for the statute of limitations to begin and operate for the filing of the querella as a procedural requirement, based solely on when knowledge of the crime and the offender was obtained, without taking into account the moment of consummation, results in total impunity, as we explain below:

1. In this particular case, it is true that knowledge was obtained that construction work had begun on April 12, 2019, from which certain damages to the property arose, which were documented.
2. However, as of the date the querella was filed, it is clearly apparent that the last conduct of which our principal became aware, and which also caused additional damages to his property, was carried out on December 2, 2019, which was also duly documented.

3. That is to say, the earlier acts should remain as mere antecedents, and the last one of which notice was taken should be the one used to compute the statute of limitations, because it is precisely that last act that should be attributed to the accused and from which the amount of damages should be quantified, rather than the earlier conduct of April 12, 2019.

4. Thus, if this last conduct carried out by the accused (that of December 2, 2019) is not taken into account, it will simply remain unpunished. 

5. In this sense, if the conduct carried out on April 12, 2019, had been the only one committed, we would fully agree with the prescription position, because more than one year would have elapsed by the time the querella was filed. However, the truth is that knowledge was obtained on December 2, 2019 of a different conduct constituting a crime, and that the person who committed or participated in it happened to be the same person who had committed the same type of crime (not the same specific act) on April 12, 2019. For that reason the direct complainant decided to file the corresponding querella in a timely manner.

We can therefore conclude that the challenged resolutions are inconsistent — both the determination of non-exercise of the criminal action, the Control Judge’s resolution confirming it, and the judgment now being challenged — because only 8 months and 4 days had elapsed from the time knowledge of the crime and the offender was obtained, given that the querella was filed on August 6, 2020 and the reproachable conduct in question was committed on December 2, 2019.

With all due respect, it appears that the lower court and the other parties in this proceeding assume that the direct complainant has supernatural powers to see the future, because it is completely absurd to claim that the complainant had knowledge on April 12, 2019 of an act that would be committed on December 2, 2019 — that is, knowledge a priori — since the lower court asserts that from April 12, 2019 he already knew of the act that would occur on December 2, 2019.

SECOND. – With respect to official letter SRPPZS/124/2021 dated February 5, 2021, signed by the Regional Deputy Prosecutor for Criminal Proceedings of the Southern Zone, it is of course this document that ultimately causes the grievance. It was not authorized by the Prosecutor or by the public servant to whom that authority had been delegated, as required by Article 255 of the National Code of Criminal Procedure, which in relevant part provides:

Article 255. Non-exercise of the action

Before the initial hearing, the Public Prosecutor, with the prior authorization of the Prosecutor or of the public servant to whom the power is delegated, may decree the non-exercise of the criminal action when the background of the case allows him to conclude that one of the grounds for dismissal provided in this Code is present in the concrete case.

It is true that the Public Prosecutor has the obligation, under Article 131, Section XIII of the procedural code, to determine temporary archiving and the non-exercise of the criminal action, as well as to exercise the power not to investigate in the cases authorized by this Code. However, as can be seen, authorization is an indispensable requirement, because without it the determination of non-exercise of the criminal action proposed by the Public Prosecutor’s agent simply has no legal effect by itself. Indeed, without that authorization we would not be in this proceeding, the determination would never have been notified, and therefore it would never have been challenged, thereby completely violating Article 16 of our Constitution, which in relevant part provides:

Article 16. No one may be disturbed in his person, family, home, papers or possessions except by virtue of a written order of the competent authority that states the legal grounds and reasons for the proceeding.In this sense, starting from the principle that every act of authority must be properly grounded and motivated, and that every person has the right of access to justice, we reach the following conclusions:

1. The official letter authorizing the determination of non-exercise of the criminal action completely lacks proper motivation.

2. Far from providing legal certainty, it creates total uncertainty, because nowhere is that exhaustive analysis it claims to have performed apparent.

3. It is evident that in the face of a possible misinterpretation of a criterion or of the law by the Public Prosecutor’s agent when proposing a determination of non-exercise of the criminal action, such error could be timely corrected if a genuine exhaustive analysis were actually carried out at the moment the superior hierarchical authority issues the official letter authorizing or denying the determination, rather than leaving it solely to the Public Prosecutor or to his free discretion so that he must later defend his position in other instances, as occurred in this case.

4. Perhaps the hierarchical superior truly agrees with the Public Prosecutor’s proposal, but in my view the mere phrase “it is authorized” is not enough to generate legal certainty; that purported exhaustive analysis must be evidenced, setting forth the reasons why the determination of non-exercise of the criminal action is authorized or, if applicable, denied.

Now then, with respect to the argument that even if the amparo were granted on this ground it would not change the merits of the matter, the lower court’s incorrect appreciation is also clear from the arguments set forth above, which for procedural economy we will not repeat but which we request be taken into account as if inserted verbatim. Those arguments demonstrate beyond doubt that they are correct and aimed at preventing total impunity with respect to the denounced conduct of which knowledge was obtained, and of the person who committed it, on December 2, 2019, which caused various damages to the property. It is therefore clear that the punitive claim for this criminal act has not prescribed.

We affirm the foregoing because the resolution under appeal decides the matter in a manner that completely loses objectivity and is removed from current legal requirements, which every authority in the investigation and administration of justice is strictly obligated to observe, and which in this case did not occur.

For these reasons it is clear that the challenged judgment violates the principles of exhaustiveness, due process, legal certainty, and legality. Consequently, the grievances that have been analyzed must be declared well-founded, and the Honorable Collegiate Tribunal must order its revocation.For the foregoing reasons, we respectfully request that you, Judge:

FIRST. – Hold us as having appeared in the terms of this writing and with the capacity we hold, filing in a timely manner an APPEAL FOR REVIEW against the final judgment rendered in the constitutional proceeding that concerns us.

SECOND. – Give it the procedural treatment that corresponds under the law until the file is forwarded to the Collegiate Tribunal of the Twenty-Sixth Circuit that is to hear the appeal.

THIRD. – To the Collegiate Tribunal of the Twenty-Sixth Circuit competent to hear this appeal, we respectfully request that it give the matter the treatment that corresponds under the law and examine the grievances raised, finding that the lower court acted unlawfully, and therefore revoke the challenged resolution, enter into the study of the merits of the case, and, upon finding that the concepts of violation are well-founded, operative, relevant and sufficient, grant the amparo that is requested.

“WE PROTEST WHAT IS NECESSARY”

MTRO. CRISTHIAN RENE MONTUFAS CHAVEZ

LIC. RAYMUNDO ALDACO MIRANDA

Ordinary Civil Lawsuit for Damages and Prejudices

JENNIFER vs. DAVID NAKAMA OANCEA AND OTHERS

Expediente: 00229/2023 (received June 26, 2023)

TO THE CIVIL FIRST-INSTANCE JUDGE ON DUTY OF THE JUDICIAL DISTRICT OF LOS CABOS, RESIDING IN CABO SAN LUCAS

PRESENT.

I, JENNIFER L, with the powers granted to me by public instrument number 15,938, Volume 186, executed before Notary Public Number 105, Licenciada Ma. Soledad Olvera Sánchez, hereby designate as my address for receiving all notifications and documents the property located at Álvaro Obregón #XXX, between Abasolo and Matamoros, Interior Edificio Mirage, Apartment XXX, Colonia Ildefonso Green, Cabo San Lucas, B.C.S.

Pursuant to Articles 2500 and 2501 of the Civil Code in force in the State, I authorize in the broadest terms the attorneys Juan Manuel Orantes Payan and/or Héctor Gabriel Barradas Toledo to receive notifications and documents, and I also authorize them electronic access to the file (registered emails: XXXXXX and XXXXX).

In accordance with the Transparency and Personal Data Protection laws of Baja California Sur, I oppose the processing of my personal data and those of my principal and request that they not be published in printed or electronic lists in this ordinary civil proceeding.

In the ordinary civil venue, exercising the action to establish liability for damages and prejudices with respect to the property described below, I hereby sue the following persons:

1. BANCO DEL BAJÍO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, in its capacity as trustee of the real property located at Lot XX, Block XX, Residential Subdivision El Pedregal de Cabo San Lucas, Baja California Sur. Service may be made at Plaza El Cardón, Local 4, Club de Golf San José del Cabo, B.C.S.
2. DAVID NAKAMA OANCEA, in his capacity as trust beneficiary of the real property located at Lot XX, Block XX, Residential Subdivision “El Pedregal” de Cabo San Lucas, Baja California Sur. Service may be made at Calle Callejón del Pueblo XX, Lot XX, Block XX, Colonia El Pedregal, Cabo San Lucas, B.C.S.
3. PHILIP ORR, in his capacity as builder of the construction carried out on the real property located at Lot XX, Block XX, Residential Subdivision “El Pedregal” de Cabo San Lucas. Service may be made at Local XX, Plaza San XXXo, Colonia El Tezal, Cabo San Lucas, B.C.S.
4. PRESTIGE HOMES LOS CABOS, through its legal representative. Service may be made at Local XX, Plaza San XXXX, B.C.S.
5. COLONOS DEL PEDREGAL DE CABO SAN LUCAS A.C., through its legal representative. Known address inside the Residential Subdivision El Pedregal, at Callejón del Gallo and Camino del Pedernal, Cabo San Lucas, B.C.S.
6. ARCHITECTURAL REVIEW COMMITTEE (CRA) OF COLONOS DEL PEDREGAL DE CABO SAN LUCAS A.C., through its legal representative or whoever legally represents it. Known address inside the Residential Subdivision El Pedregal, Cabo San Lucas, B.C.S.
7. BOARD OF DIRECTORS OF COLONOS DEL PEDREGAL DE CABO SAN LUCAS A.C., through its legal representative or whoever legally represents it. Known address inside the Residential Subdivision El Pedregal, Cabo San Lucas, B.C.S.
8. DIRECTOR GENERAL OF URBAN DEVELOPMENT OF THE HONORABLE CITY COUNCIL OF LOS CABOS, B.C.S. Service may be made at Calle Zaragoza, Colonia Centro, San José del Cabo, B.C.S.
9. DIRECTOR OF CONSTRUCTION LICENSES OF THE HONORABLE CITY COUNCIL OF LOS CABOS, B.C.S. Service may be made at Calle Zaragoza, Colonia Centro, San José del Cabo, B.C.S.
10. RESPONSIBLE CONSTRUCTION DIRECTOR (DRO). Service may be made at Calle Zaragoza, Colonia Centro, San José del Cabo, B.C.S.

I DEMAND THE FOLLOWING RELIEF (PRESTACIONES):

A) Full repair of the damages caused to the real property described as:

Lot number XX of Block XX, known as “Casa Gallo,” of the Subdivision “El Pedregal” de Cabo San Lucas, which forms part of Colonos del Pedregal de Cabo San Lucas Asociación Civil, located in Cabo San Lucas, Municipality of Los Cabos, Baja California Sur, cadastral key XXX-XXX-XXX-XXX, with a surface area of 528.21 m², with the following measurements and boundaries: 

• North: 35.95 m with Callejón del Gallo in three segments (30.98 m, 2.51 m and 2.46 m); 
• South: 55.69 m with Camino del Mar in four segments (32.23 m, 14.17 m, 5.68 m and 3.61 m); 
• East: 3.19 m with Camino del Pedregal in two segments (1.65 m and 1.51 m); 
• West: 28.21 m with Lot XX of the same block.

B) That Mr. DAVID NAKAMA OANCEA be ordered to fully repair the damages in favor of Mr. JOHN PHILIP GOERSS for the deterioration caused to the real property held in trust for the benefit of my principal.

C) Payment of compensation for damages arising from the civil liability of the defendants in the amount of $4,528,320.00 (Four Million Five Hundred Twenty-Eight Thousand Three Hundred Twenty Pesos 00/100 Mexican currency) plus VAT, or such amount as may be determined at the time of quantification for execution of judgment, which is sufficient to carry out the full repair of the damages caused.

D) Payment of legal interest on the requested compensation amount, as well as payment of the costs and expenses generated by this lawsuit.

E) Payment for the prejudice caused to the real property described in item “A” as a result of the damages caused by the defendants’ liability, in an amount to be fixed when this Court renders judgment.

F)Payment of costs and expenses in favor of the undersigned.

BACKGROUND

1. On May 18, 2012, by public deed number XX,XXX, Volume 746, my principal JOHN PHILIP GOERSS acquired 100% of the beneficial rights under the trust in Lot XX, Block XX, cadastral key XXX-XXX-XXX-XXX, surface area 528.51 m², registered with the Public Registry of Property and Commerce of the Municipality of Los Cabos under number 17, Volume DXXII (522), First Section, dated August 1, 2012, executed before Notary Public Number 21, Licenciado Alejandro Davis Drew. This is proven by the certified copy of the described deed.
2. On March 14, 2018, by public deed number XX,XXX, Volume 675, the defendant DAVID NAKAMA OANCEA acquired 100% of the beneficial rights under the trust in Lot XX, Block XX, cadastral key XXX-XXX-XXX-XXX, surface area 2,677.00 m², registered under real folio 004-21103. This is proven by the certified copy of the described deed issued by Licenciada Perla Margarita Gavarain Montaño, Public Registrar.

FACTS

1. In late summer 2017, the owner of PRESTIGE HOMES LOS CABOS, Philip Orr, personally informed the undersigned that he had obtained a new client named David Nakama Oancea, whose property is located at Callejón del Pueblo, Lot XX, Block XX, Subdivision El Pedregal de Cabo San Lucas. This information was given because the property is adjacent to the real property whose beneficial rights belong to my principal. Mr. Philip Orr stated that it would be an excavation project and said the following regarding the excavation process: “they will hate him at the end because it would be very harmful to their lives” (sic). Mr. Orr also stated that they would try to keep the noise to a minimum by using expansion methods, assuring that if any damage occurred due to the vibrations of the pneumatic hammer, “they would take care of it” (sic). Instead, excavation methods were used that produced seismic waves, resulting in structural damage to the real property held in trust for the benefit of my principal.
2. During the preparatory work prior to excavation, heavy machinery began arriving, transported in dump trucks, causing vibrations on the roadways, specifically on Camino del Mar, the roadway adjacent to the real property held in trust for the party I represent. On November 5, 2018, within Lot XX, Block XX, Calle Callejón del Pueblo Number XX, Subdivision El Pedregal de Cabo San Lucas, excavation work with heavy machinery began. This is proven by the photograph attached as IMAGE 1 on page 3 of the Expert Opinion attached as evidence. The work began without authorization from the responsible authority because no construction license existed, in violation of the Construction Regulations for the State of Baja California Sur and the Subdivision Regulations.
3. As a result of the excavation work and the circulation of heavy machinery and dump trucks transporting rocky material and soil, the real property held in trust for the undersigned began to show problems: small cracks, fractures in water lines (including irrigation pipes) and hydro-sanitary lines. Due to the constant vibrations and movement, the interior doors of the residence came out of square, making opening or closing them difficult, and the kitchen countertop shifted from its original position against the wall. During the construction, the specific license required by Article 70 of the Construction Regulations for the State of Baja California Sur (for excavations deeper than 0.60 meters) was never displayed.
4. Five months later, on April 12, 2019, the undersigned attended a meeting with the homeowners’ association of El Pedregal to inform them of the damage occurring to the property. Although they were aware of the situation, no solution was provided. In May 2019 a citizen’s complaint was filed with the Urban Planning Directorate of the Honorable City Council of the Municipality of Los Cabos, which temporarily halted the work until a construction license was issued. When the license was later displayed, it showed a two-year validity period.
5. As a result of the evident damage, the undersigned and my husband JOHN PHILIP GOERSS requested the intervention of Civil Engineers Leonel Reyes Zetina (Professional License 6288620) and Josué Aharon Maza Ruiz (Professional License 2498760, registered as Responsible Construction Director DRO/126/MARJ2019). On July 2, 2019, they prepared a technical opinion whose purpose was to determine the magnitude of the damages caused by the seismic wave induced by the use of construction machinery through the rocky mass of the subdivision from the neighboring property located 60 meters away. The opinion concluded:
   “CONCLUSIONS: IT IS DETERMINED THAT THE PERIOD OF VIBRATION INDUCED BY THE USE OF HEAVY MACHINERY ON LOT XX, BLOCK XX, PROPAGATED THROUGH THE ROCKY MASS OF THE SUBDIVISION, CAUSED THE ACCELERATION OF THE MASS OF THE MATERIALS WITH WHICH THE PROPERTY IS CONSTRUCTED, RESULTING IN THE DAMAGES THAT ARE DESCRIBED AND DOCUMENTED. THE ORIGIN OF THE INDUCED SEISMIC WAVE IS LOCATED 60 m FROM THE AFFECTED PROPERTY.” (sic)

On August 6, 2019, Notary Public Number 18, Licenciado Ricardo Cevallos Valdez, appeared at the affected residence at the request of Mr. John Philip Goerss, accompanied by Engineer Leonel Reyes Zetina, and prepared a Notarial Certificate of Facts under public instrument number 24,822 of Book 748. The Notary conducted a physical inspection and attached a photographic set of 48 photographs illustrating the damage, together with a detailed narrative of the damages of which he gave public faith.

6. The excavation work with heavy machinery caused physical and structural damage to the residence due to the vibrations and seismic movements produced by the pneumatic force of the hammer used to fracture the rock. This is proven by the expert opinion prepared by Civil Engineer Oscar Castillo Sánchez (Federal Professional License 2573908, State License 0278, registered expert of the Supreme Court of Justice of the State of Baja California Sur), consisting of 200 pages plus annexes (including a CD with images and videos, and three double-letter plans showing the location of the damages).
7. The construction work and transit of heavy machinery and dump trucks continued during the second half of 2019, causing the damages to worsen due to the vibration from the dump trucks (shown in the images on pages 148 to 158 of the expert opinion). The conduct is therefore continuous. To this day the construction has not been fully declared in the cadastral records; the last movement was a fiduciary substitution on March 15, 2018.
8. The property whose beneficial rights are held 100% by the defendant is located 60 linear meters in a straight line from the property whose beneficial rights are held by my principal. The vibrations from the operation of heavy machinery and transportation of heavy materials caused the damages, which at that time were quantified at approximately $2,722,550.02. The property continues to suffer damage to this day. The defendants have ignored repeated extrajudicial attempts at dialogue. Therefore, it became necessary to obtain a new expert appraisal from Architect Silvia Quilvania Quiroga Iturburu (Professional License 3428192, Valuation Specialty License 5687494, authorized expert of the Superior Court of Justice of the State of Baja California Sur) in the matter of “TECHNICAL APPRAISAL OF WORK: STRUCTURAL DAMAGES, CONSTRUCTION FAILURES, QUANTIFICATION AND BUDGET.” She concluded that the physical value of the repair works for “Casa Gallo” is $3,334,342.66 plus VAT = $3,867,837.50, corresponding mainly to finishing works, wall structure, and foundation, among other concepts. The total claim is therefore set at $4,528,320.00 plus VAT.

EVIDENCE OFFERED

1. Confessional examination of DAVID NAKAMA OANCEA. 
2. Confessional examination of PHILIP ORR. 
3. Private documentary evidence: Technical opinion by Engineers Leonel Reyes Zetina and Josué Aharon Maza Ruiz. 
4. Public documentary evidence: Certified copy of public deed XX,XXX (ownership of the affected property). 
5. Public documentary evidence: Notarial Certificate of Facts, instrument 24,822, Book 748, dated August 6, 2019. 
6. Private documentary evidence: Expert opinion by Civil Engineer Oscar Castillo Sánchez (200 pages + annexes and CD). 
7. Documentary evidence by report from the General Directorate of Urban Development / Construction Licenses Directorate regarding license 019LIC-SJC/2018 and architectural plans. 
8. Documentary evidence by report from the Urban Planning Directorate regarding the citizen’s complaint and official letter 0463/2019-CSL of May 15, 2019. 
9. Documentary evidence by report from the Municipal Cadastre Directorate regarding whether the construction on Lot 55, Block 16 has been fully declared. 
10. Public documentary evidence: Certified copy of public deed XX,XXX (Oancea’s ownership). 
11. Judicial inspection (with expert assistance) of the affected property (Casa Gallo). 
12. Judicial inspection of the construction site on Lot XX, Block XX. 
13. Expert evidence in soil mechanics. 
14. Private documentary evidence: Technical appraisal by Architect Silvia Quilvania Quiroga Iturburu (the newest expert report quantifying the higher repair cost). 
15. Legal and human presumptions. 
16. Instrumental of the proceedings.

LAW

The action is based on Articles 1815, 1818, 1820, 1830, 1838 (fractions VI and VII) and related provisions of the Civil Code of Baja California Sur, and on Articles 121, 254, 255 and related provisions of the Code of Civil Procedure of Baja California Sur.

PRAYER FOR RELIEF

I respectfully request that you:

FIRST. Hold me as having filed this lawsuit in the ordinary civil venue and in the terms stated.

SECOND. Recognize the authorizations and the address for notifications designated above.

THIRD. Give this lawsuit the legal processing that corresponds.

FOURTH. Authorize electronic consultation of the file via internet for the authorized attorneys.

FIFTH. After certification and comparison, order the return of all original documents submitted.

SIXTH. In due course, order the defendants to pay each and every one of the claims demanded.

I PROTEST WHAT IS NECESSARY.

Cabo San Lucas, Baja California Sur, on the date of its presentation.

JENNIFER L

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