Case No. 132929 09-28-15 City's RJN ISO Demurrer

8/17/2019 Case No. 132929 09-28-15 City's RJN ISO Demurrer

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1 Vincent P. Hurley 1 11215

Ryan M.

Thompson

292281

2 LAV/ OFFICES OF VINCENT P. HURLEY

A Professional Corporation

3 28 Seascape Village

Aptos, California 95003

4 Telephone: (83 1) 661

Facsimile: (831 ) 661-4804

5

Attorneys for Defendants

FILE

SEP 2

2 15

TERESA A. RISI

LERK OF THE SUP.t;RIOR OURT

.

L.

_

J

IMUJNGS

-.

DEPUTY

6 CITY

OF

A R M E L ~ B Y T H E S E A and

LUKE

E. POWELL

7

8

9

10

SUPERIOR COURT

OF

THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

11

JENNIFER

DA

SILVA, )

12 Plaintiff, )

13

vs. )

14 CITY OF CAR11EL-BY-THE-SEA; )

LUKE

E.

POWELL,

indn

·idually and in )

15

his official capacity

as

a Police Officer )

for the CITY OF C A R M E L B Y T H E ~ )

16 ~ E A COUNTY OF MONTEREY; )

MONTEREY COUNTY

SHERIFF' S )

17 OFFICE, and DOES 1 through 50, )

mclusive, )

18

)

Defendantc;. )

19 )

20

Case No. M132929

DEFENDANTS CITY OF CARMEL-BY

THg-SEA

AND LUKE E.

POWELL S

REQUEST FOR JUDICIAL NOTICE

IN

SUPPORT OF DEFENDANTS'

DEMURRER TO COMPLAINT OF

PLAINTIFF JENNIFER DA SILVA

Date: October 30,2015

Time: 9 :00a.m.

Dept.: 14

Date action filed: August 7, 20 15

21 Pursuant to California Evidence Code sections 452(c), (d)( I), and (h) and 453, and

22 California Rule of Court 3 .1306(c), Defendants CITY OF-CARMEL-BY-THE-SEA and

23

SERGEANT

LUKE

E.

POWELL

request that this Court take judicial notice

of

he following

4 items:

26 Plaintiff s Complaint for Damages against City of a r m e l ~ b y - t h e - S e a et al., bearing a

27 filing date

stamp by

above-captioned Court

of

August 7, 2015, a true and correct copy

of

28

which is attached as Exhibit A.

Defs'

RJN

ISO Demurrer Case No. Ml32929


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REQUEST FOR JUDICIAL NOTICE NO. 2:

2 Judge Robert O' Farrell' s Order After Submission, signed and filed November 19 , 2014,

3 granting Petitioner' s Petition for Order Relieving Petitioner from the Provisions of Cal. Gov' t.

4 Code section 945.4, a true nad correct copy

of

which is attached as Exhibit B.

5 REQtTEST

FOR

JUDICIAL

NOTICE

NO. 3:

6

Defendants request judicial notice of the time limltS in the following statutes

of

7 limitations for purposes of calculating the applicable periods and deadlines:

8 Cal.

Gov't

Code section 946.6(t):

In the event the court makes an order relieving the

9 petitioner from the provisions

of

Cal. Gov. Code section 945.4, suit on the cause ofaction to

1 which the claim relates must

be

filed with the court

\\ithin

30

days thereafter. A true and correc

11 copy

of

Cal. Gov' t Code section 946.6(f) is attached as Exhibit C.

12 REQUEST FOR JUDICIAL NOTICE NO. 4:

13 Plainti s May 5, 2015 Substitution

of

Attorney form filed with the Court, wherein

14 Plaintiff transitioned from her former attorney, Stephen F. Wagner, to her current attorney,

15 Andrew B. Kreeft, a true and correct copy of which is attached as Exhibit D.

16

Dated:

September1'(

,

20

15

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2

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Dcfs'

RJ '>J

I

SO emurrer

LAW OFFICES OF VINCENT P. HURLEY

A Professional Corporation

By:

=t-L:--

RYANM. THOMPSON

Attorneys for Defendants CITY OF

CARMEL-BY-THE-SEA and LUKE E. POWELL

2

Case No. M132929


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EXHIBIT


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.

ANDREW

B.

KREEFT (SBN 1 2 6 6 7 ~ )

LAURA.

L. FRANKLIN (SBN 282642)

BOHNEN, ROSENTHAL & KRFEFT

n Ml:1111 as Avenue, Swte 200

P.O. Box 1111

Monterey,

CA

93942-1111

Telephone: (831) 649-5551

Fac.'iimtle: (831) 649-0272

Attorneys

for

Plaintsff

JENNIFER

DASILVA

AUG • 7

20f5

~ E R E S A Ill

' ~ A t < Jr.: THE: SUP. BIOA COU RT

= ~ •

G Y M M ~ ~ - O . ' P t f r

CAS ' \ ~ A a ~ : N ~

l : : ~ ~ F E A E N C E

DAre

•

I , . > • •·- -··

· ~ < J _ - t ~

......

fi --...

TIME; 9:00

AM

.....

PLACE:

Courtroom f ~ . : nd Fr

1200Agua/ltoRd M · · ' oor

SUPERIOR COL"RT OF C ALIFORNl.A . onterey CA

93940

COUNTYOF

MONTEREY UNL

IMITED JL'RISDICTION

JENNIFER

DA

5ILV

A,

C

aseNc.M 1 3 2 9 2 9

Plamttff,

C O ~ L U I T F O R ~ ~ G E S

vs.

CITY OF· CARMEL-BY-THE-SEA; LUKE

E.

13 POWELL, individually and in bJs

offi.ctal

capacicy

·as a Pohce Officer f(lr theCITY OF [JURY TRIAL DEMANDED)

14 CARMEL-BY T H E S E A ~ COUNTY OF

MONTEREY; MONTEREY COUN1Y

15 S.HE:RIFF'S OFFICE, and DOES 1 through SOt

m"lu Sive,

16

17

Defendants.

18

PlainttffJEJ.'."'NIFER

DA

Sll..V fonnerly

known

as JeDlllfer

Little

("Plaintiff') hereby

19 alleges

a6

follow'->:

20 INTRODUCTION

21 This case arises from a

nt>n-Vlolent,

verbal dispute between two parents regarding their

22 ele\en year-old daughter' s cell phone use that wa unnecessarily s c a l a t . . ~ into an incident of

23 er.cessive force and unlawful detainment, whereby

Plaintiff

suffered serivus

and

permanent

24 bodily

injury

and other damages.

P ~ T I E S

26

27

28 I

•

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1.

Plaintiff

s a resident

of

Carmel, Cahtorcia

in

the C'.ounty

of

Monterey and a

citi2.en

of he lTnited

States ofAmerica. At the time

of

the incidents complained

of

herem,

Plaintl.ffwas

a

37-year-old female with

no pnor

cnminal record

l

C O M P h ~ T F O R D M G

DaSilva v. City o Ca

rmel

by the Sea, et a


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2. Defendant CITY OF CARMEL-BY-THE-SEA is a local entity

in

the State of

2 California

within

the meaning of

Part

3 (beginning

\\ith §

900) ofDivision 3.6 ofTitle 1 of the

3 Government Code. The claims herein are brought against CITY OF CARMEL-BY-THE-SEA

by

4 and through

the

acts and omissions

of ts

Police e r g e a n ~

Defendant

LllKE E.

POWELL.

5

3.

Defendant LUKE E. POWELL ("SERGEANT POWELL")

was a

Police Sergeant

6 wtth the Cannel

Poli..re

Department employed y CITY OF CARMEL BY-THE·SEA at

all

7 relevant tanes mentioned herein. At all times material to the incidents giving rise to Plaintiff's

8 clauns in th1s matter, SERGEANT POWELL was acting within the course and scope fhis

9 emph>)'tnent f\lr CITY OF CARMEL BY-THE-SEA. 1he claims herein are brought against

10 SERGEANT POWELL in Ius indi\


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3

was the agent ofboth COUNTY OF MONTEREY

and

the SHERIFF'S OFFICE and was acting

within the course and scope

of

his agency.

7.

Plamtiff is tgnorant of the true names

and

capacities of defendants

DOES

1

4 through 50, inclustve, and therefore sues these defendants by such fictinous names. Plamtiffis

5 informed and believes and thereon alleges that each of hese i c t i b . o ~ l y named detendants is

6 respOnsible

in

some manner for the occurrences alleged in this complamt. Plamttff will seek

7 leave of

he

Court to amend her complaint to state the names and capacities ofDOBS 1 through

8 S once ascertained.

9 JURISDICTION AND VENUE

10

8.

This action is brought pursuant to 42 U.S C. § 1983, the Fourth and Fourteenth

11

Amendments to the United_States Consb.tution, and by the laws and Constitution of the State

of

2 California

13

9.

The amount in controversy, excluding interest

and

co ts, exceeds the minimum

14 jurisdictional limit oftlus Court.

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10. Venue is proper in this Court because all of the events alleged herein occurred

within

the

ounty ofMonterey;

Plainb.:ff

is and

was at

all times mentioned herein a restdent of he

CountyofMonterey; all defendants conduct operationsWithin the County ofMonterey; and all

witnesses etther work or live

wtthin

the County

of

Monterey,

FACTS

11.

Plaintiffresides

n

Cmnel, California With her daughter, J

erma,

who was eleven

years old on the night in question. Jenna's father, Daniel Balint ( BaH.nf'). is Plaintiff's ex-

husband and resides in a separate restdmce m Cannel, California, approximately one mtle a.way '

from P l a i n t i f f ~

re idence

at the time in question. Plamttff and Bahnt had beei'I divorced for

approximately six yeaN when the events complamed ofherein took place .and they generally

enjoyed an amicable relationship. The shared custody agreement between Plainnff and Bahnt

providoo that Plaintiff had custody of Jenna on weekdays, while Balmt had custody ofJenna on

weekends.

1 /

3

COMPLAJNT FOR DAMAGES

D a S i l t ~ a v. City QjCarme -by·tlr.e-Se

, et al


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12. On the evening ofAugust 7, 2013, a W edncsday, Plaintiff and her daughter Jenna

had a disagreement at their house regarding Jenna's online activities via a ceHular telephone that

had recently been given to Jenna by Balint without Plaintiff's consent. Plaintiff was concerned

about certain safety implications of her

e l e v e n - y e a r ~ o l d

daughter havmg unsupervtsed internet

access at her fingertips at all tJmes,

and

threatened to take the phone away from

J

enna. Being

upset w1th her mother for threatening to take her cell phone away, Jenna called her fathet and

asked him to

come

pick her up.

13 . Even though it was a p p r o ~ . i m a t e l y 9.00 p m on a weeknight, during which time

PlamtJffundisputedly had legal custody ofJenna, Balint drove to Pl.untitrs house. picked up

Jenna,

drove

her to

the house

of

a nearby

family member

J e n n a ~ J

Aunt) and left

her

there

for the

night. Plaintiff protested Balint's taking ofJenna, but

Jid

not h y ~ i c a l l y try tl stop him.

14. Plaintiff subsequently·called 911 and asked who she rshould contact to

:report

her

daughter being taken

by

Balint in contradiction with thetr custody agreement The 911 operator

referred Plaintiff o the SHERIFF'S OfFICE.

lUther

than

invoh·e

the

SHERIFF'S OFFICE,

Plaintiff

dectded to try to work things out directly WlthBalmt.

15. Balmt

had

not

yet returned

to his apartment when PJa.innff n v ~ In acc.ordanr.e

\\lith thm usual custom suui practice, Plaintiff entered Balint's apartment through his front door,

which he regular )' kept unlocked, and waited for Balmt to return from dropping Jenna

off

at her

nearby aunt s house.

16, Upon Balinfs ret.urn, he and Plaintiff began

to

argue regarding the cell phone

that·

Balint had given Jenna and the safety s s u e ~ relating to Jenna's internet c c e ~ ; s through t h l ~ phone.

The

ax Nffient, while non-\liolent,

became

heated. At one point, Plaintiff

threatened

to report

Balint's taking ofJenna in contradiction with their custody agreement. Ralmt responded

by

saying he would call the police himselfto report that Plaintiffwas trespassing on his property. In

her fiu'Jtration, Plamtiff eneouraged Balint to call the police and then

'\\


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question Plaintiff,

while

SERGEANT POWELL began questioning Balint (Sergeant Pon and

2 SERGEANT POWELL hereinafter

collectively

referred

to

as

the

officers ). Both

Plaintiff

and

3 Balint confirmed that their dispute had been verbal only, and that there was no prior history of

4

domestic violence

or

physical altercations of any sort

between them.

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18.

After questtoning Bahnt, SERGEANT POWELL returned

to Plaintiff, who

was

in

the process of ghmg her statement to Sergeant Pon. Wlnle Sergeant Pon had been civil in his

questioning

of

Plaintiff,

SERGEANT POWELL was immediately

confrontational and aggressive.

Plaintiff maintained a calm,

respectful

tone as SERGEANT POWELl- repeatedly demanded to

know why Plaintiffwas so mad Jr • • ~ o angry despite Plaintiff's repeated response that was

not angry. Plaintiff

attempted

to explain to SERGEANT POWELL

that

she wM at Balint's

restd.ence because

Babnt

had inappropriately taken

her

Jaughter in contradiction with their

custod} agreement,

and that the whole ordeal

related

to a

disagreement about their

daughter s cell

phone

c ~ s Plaintiffbecame disconcerted as SERGEANT POWELL

repeatedly mterrupted

her and accused her oflying.

As SERGEANT POWELL conttnued his a g g r e ~ i v e quesnomng, Plaintiff grew jl

increasingly agitated anc.l expressed her confusion as to why she was suddenlybeing interrogated I

19.

I

in thtSi manner. Plaintiff

finally s t t e ~

OK,. I

need

to have

my

attorney

here. I m 8orry,

I m not

I

talking and began to back away from the officers.

At

this point. SERGEANT POWELL j

advanced towards Plaintiff, telling

her

to calm down and physically blocking her from moving

I

further down the driveway. Feeling h r e t e n e ~ Plaintiffwalked

to Wards

Balint's apartment, in

I

I

the

o p ~ that

Balint could

help

defuse

the

situation. SERGEANT

PO\V ELL

advanced closer to

Plaintiff, telling her that she could not enter Balint's apartment.

As

Plaintiff tumed

bael

from j

Balint's apartment,. SERGEANT

POWF.LI.

grabbed her

;um and

apphed

an

ann bar takedown to 1

force

Plaintiff

to the ground. 'Ibis takedown ; a u s e t l Plaintiff's head to hit the asphalt ground w1th

I

such force as

to

give Plamtrff a black eye and open a large laceration

on

her tbrehead, which

j

would eventudlly require

eight

stitches, aCT scan. and other treatment.

In

the coun;e

C\fthis •

I

tak:edown by SERGEA'NT POWELL Plaintiff further suffered additional vvounds to the left s1de I

of ~ face and her anns, as well as permanent damage to her right thumb. Once

on

the ground,

I

I

aSilva v

C:t}

ojCarmel bv the ea ei: ai. i

OMPLAINT

FOR

DAMAGES

5


9/35

Plaintiff was placed in handcuffs.

2

20. Plaintlffbegan to scream as she immediately felt the blood dripping from her head

3 wound down her face, into her mouth, and onto her clothes. As Plaintiff began to scream,

4 SERGEANT POWELL stated, Doyou like it? Stay right there. Stand up straight.

5

21. Balint, having emerged from his apartment upon hearing Plaintiff's screaming,

6 retrieved a towel from his residence and held t on Plaintiff's head to help control the bleeding

7 until Monterey Fire Department and Carmel Regional Fire Ambulance arrived

on

the scene.

8

. Plaintiff was transported to Community Hospital of the Monterey Peninsula

9 (CHOMP) by Carmel Fire Ambulance for treatment, where she was attended to by the

10

,Emergency Room phystcian. Plaintiff

was

dressed

n

workout clothes (yoga

a n ~

and a tank

I

11 top), which were now covered n blood fi:tlm the wound on her head. She bad not been allowed to

12 retrieve her jacket out of her car. The Emergency Room medical statJ having seen Plamtiff

13

arrive at CHOMP late at night. n

the

custody ofa police officer, and covered in her own blood,

14 repeatedly accused Plainnffofbeing on drugs. One nurse n particular kept shining a

flwmgb.t

in

15 Plaintiff's eyes, as she asserted: You're on

drugs

Just tell me what you're

on.

Crank'? Pep?

16 Pot? While Plaintlffhad consuttted two glasses ofwine earlier that evening,

she

had not

17 ingested any

illegal substances, prescription drugs,

or

even over-the-counter medications

at

the

18 tlme in question.

19

23

. Plaintiff was subsequently transported by SERGEANTPOWEU .to the Carmel

20 Police Department for processmg. Eventually, Plaintiff was transported by Sergeant Pan to

21 I Montere} County Jail However. the staff at Monterey County Jail would not accept Plaintiff

22

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because her injuries required further treatment. Accordmgly, Sergeant Pon transported Plaintr.ff

to Natlvidad Medical Center, where Plaintiff received eight stitches to close the lc1Ceranon on her

forehead; multlple CT scans

of

her face, head.'bram, neck, anJ spine; at ~ t one x-ray ofher

hand; and

other

treatment.

24

Upon bemg released from Nati Vidad Medical Center, Plaintiffwas transported

back to Monterey County Jail and placed n a group holding ceU where various other inmates

came and v.ent during Plaintiff 's detention. After several hours, whenPlaintiff's head wound

6

COMPl-AINT

FOR

DAMAGES

DaSi

va

v

Glty o a r m e l - b y -

S e a

et :zl


10/35

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began to bleed through the gauze, a jail nurse changed the dressing

on

Plaintiff's. wound and

warned Plaintiff that she should

.u le

extra caution to avoid the wound getting contaminated

because the holding cell was very dirty.

25.

Sever&l hours later, the gauze covering Plaintiffs

head

wound had once again

become saturated Wlth blood. At this time, another inmate in the holdmg cell Plaintiff

pushed the button to call the deputy for assistance. DOE

1,

a female deputy, appeared in response

to the inmate's call. While DOE 1

was

p r e ~ e n t at the holding cell attending to the other inmate,

Plaintiff mentioned to DOE 1 that

she

was

in

need ofnew gauze for her head wound. Appearing

annoyecl,

OE

1 replied to P l a i n t t f f ~ request b y saying.

'·'you

wouldnt need more gauze

ifyo11

would stop picking at it. When Plamti:ff replied that she had not been ptcldng at the wound,

DOE 1 turned to Plamttff, smded, and said

in

a sarcastic tone, •· think you're a danger to

yourself.'' Plairttdi mmediately replied to DOE

1,

•'You

know

that 's not true.'' At which

time,

DOE 1 physically removed Plaintlff from the group holding cell and esoorted her

to

a sohtary

cell.

26. Plaintiff was infonned that she was being placed on a psychiatnc hold pursuant to

Cal. Welf. and

nst

Code section

5150

( 5150 hold ) for being a danger to herself. Plainttffwas

stnpped

of

all ofher clothing

in

VIew of

multtple

county employees and at least one male

inmate

and then g Ven a rectangular heavyweight garment, approximately the size ofa bath towel, to

wrap around herself.

For sevetal hOUI' , Plointiff

was

held in a vay hot

soUt.u:y

holding cell

wi1h cementI

walls. n place

of

a toilet, there was a hole in the floor with Vlstble feces from previow. inmates. I

The cell wntained one glass window, which fac.:ed the glass window of the

adja


11/35

making a praying symbol with her hands. Plaintiff subsequently observed this same employee

2 through the cell window as she reviewed Plaintiff's records with a look

of

disapproval on her face

3 and then

stated

to

another employee, There are no priors Approximately

on¢

hour later,

4 Plaintiff was allowed to put her blood-oovered clothes back on and return to the group holding

cell.

6

29.

n total, Plaintiff

wa l

detained for approximately 18 hours at the Monterey County

7 Jail. Plaintiff estlmates that approximately three ofsuch hours were spent m the solitary cell on

8 the alleged S1

SO

hold. Plaintiff

was

not allowed

to

contact her family at any time during her

9 detention. Plaintiff was ultimately released on her O\\'D. accord wtthout bail.

10 30.

Plaintiffhad been booked

into Monterey Co11Ilty Jail

on two charges; Obstructing

11

an Officer, Penal

Code§

148(a)(l),and Pubhc

n t o ~ i c a t i o n

Penal Code§ 647(f). No testing of

12 any sort was ever conducted by any officers, tnedtcal staff. or anyemployee of COUNTY OF

13 MONTEREY or CITY OF CARMEL BY THE-SEA in connection \\-ith the charge ofPublic

14 Into"llication. All such charges against Plaintiffwere dismissed on March 18, 2014.

15 '

31. As a


12/35

Monterey County (Case No. CRMS314352A).

2 b)

Plaintiff

was a defendant in a criminal

case that arose

out

of he

same operative

3 facts as

set

forth

in the

Claim filed against the CITY

OF

CARMEL-BY-

THE-SEA.

4 c) The charges against Plaintiffwere dismissed on March 18, 2014 following the

5 presentation

of

evxdence and arguments by

counSel

in

a

Motion

to

Suppress Evidence

(PC

6 . 1538

.5 before the

Hon. Samuel Lavorato, Jr.

7 d) Plaint iff genuinely beheved that, as a prerequisite to her filing o a clann

8 against

CITY

OF CARMEL-BY-THE-SEA,

the

criminal matter needed to reach final chsposition.

9 34. After denials by CITY OF A R M E L B Y ~ TilE-SEA ofboth the Claim and

10

P l a ~ n t i f f

s subsequent Application

for

Leave to

File

Late

Claim, Plaintiff

filed

a Petition

for

Order

11 Relieving Petitioner from

ProvisiODS

ofGov't Code§ 945.4 (the

Petttionj

nMonterey County

12 Superior Court.

13

35. On November 19, 2014, the Hon. Robert O Farrell granted the Petition. hold ing

14 that Plamtiffacted under a reasonable m1stake

when she

waited to file her Claim until the day

15 after the related cnminal

matter

reached

its final

disposition.

16 FJRST CAUSE OF ACTION

7

42 U,S.C.

§

1983-VIOLATION OF· CIVIL RIGHTS

(Against Defendants LUKE

E.

POWELL and

18

CITY

OF

A R . M F . L B Y ~ TBE...SEA)

19

I

36. Plaintiff

repeats

and repleads

each and

every allegation

oontatned

in

paragraphs

1

20

through 35, and by this reference

mcorpourtcs

the same herein as though fally et forth.

21 37.

Defendant

CITY

OF CARMEL-BY-THE-SEA is and was responSJble for

22 over8eeing the implementation and

promulgation

of official policy for

its

police force, Carmel

23

Police

Department,

which

included

SERGEANT POWELL at all

times herein

mentioned.

CITY

24

OF

CARMEL-BY-THE-SEA

was

deliberately indifferent to the need for ackquate training

and

25 supervision for its police offi;}ets, the fiulure of

which

caused constitutional violations upon the

26 citizeni) n general, n ~ l u i n g Plaintiffm pamcular.

27

38. Defendant SERGEANT POWELL was acting under

the color

oflaw, as an

23 authori7ed agent

ofDefendant

CITY

O f CARMEL-BY-THE·SEA,

while detaining,

9

COMPlAl:N

f

FOR

DAMAGES

DaS;Iva v.

Oi.y

ofCarmel-by-ttte-Sea et al


13/35

:interrogating. and arresting Plaintiff, in furtherance ofhis duties.

2

39.

Defendant SERGEANT POWELL violated Plaintiff s civil rights

by

brutalizing

3 and

inflictmg

severe injury upon Plaintiff under the rulor o{law

with

force that was grossly

4 disproportionate in relation to

·the need

for action under the circumstances, and

by

subjecting

Plaintiff o an 11legal, improper, ar.d unlawful ~ e i z u r e ofher penon without probable cause,

6 privilege, or consent. Furthermore, SERGEANT POWELL s actions in aggresshely

7

mterrogating

l a i n t l t T n ~ e s s l y

and

mtentionally c a l a t c d

an

otherwi.se non-\iolent,

verbal

8 domestic·dispute into a physical altacation that fac .ilitated l a i n t : J f f ~ phy Sical injury and arrest.

9

10

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3

14

15

40.

The ronstttutivnal deprivation of

Plaintiffs

nghts Y.as

ah;o

caused

by

a dc:.l1berate

indl.fference demonstrated

by

CITY

OF

CARMEL-BY-

THE

.-SEA

and perpetrated upon

Cltlzens,

such as Plaintiff. Such failures include not having officers awropriately trained n the proper

procedures for handling non-violent domestic d i ~ t e s and improper useofforce training and

supervision that allows and permits the detentionofpersons without JUSt cause and through

unreasonably inJUDOWI methods.

41. The above described actions ofDefendan:

SERGEA.NT

POWFl.L and the pohcies

1

17

and pracuc-es ofDefendants CITY

OF

CARMEL-BY-THE-SEA depnved Plaintiffofher rights

and priVIleges under the o u r t h ~ and Fourteenth Amendments to the Umted States Constitution

18

19

20

42. As a direct, proXllllate, and legal result of he acts, omi:tsions,

pohcit:S,

patterns,

practices, and/or customs ufdefendants alleged herem, Plaln.tiffhas suffered damages includmg,

·but not limited to : bodily n j u r y loss of ncome and employment, substantial phystcal and

emotional

pam and suffering, shock and

mjury

to her

e n o u ~

l3y>Jtem,

h u m i l i a

~ acute an'\:tety,

emotional and physic.al d i s t r e ~ s and fear, and Plaintiff continues to suffer from post-traumatic

stress and anxiety relating

to

the events complained ofherem.

43. As a further du-ect, proxunate, and legal result

of

he

bjunes

alleged herein,

25

Plllintiff bas incurred, and m.ty continue to n c u r ~ substanti.al medical and other out-of pocket

6

expenses in an amount according to proof.

2

44. As a further direct

and

proximate consequence

of

he acts ofCITY OF CAR

MEl--

1

BY-THE-SEA by and through its employee, SERGEANT POWEll., Pla::.nhff\\o1lS transported to

10

COMPl.AThl1 OR DAM.J\.GFS

DaSz. va v_

Cl

o e

ta

1


14/35

Monterey County Jail, where she was placed on an unreasonable 5150 hold in solitary

2 confinement, during which Plaintiff was subjected t.o humihating

and

traumatic conditions,

3 including

being

stripped

of

all

of

her

clothing

in view

of

multiple county employees and at least

4 one

male

inmate.

5

6

7

8

9

10

45. As such, l a i n t i f f r e q u ~ t s compensatory damages, reasonable attorneys' fees and

costs pursuant to 42 U.S.C. §1988 and any u c h othe:t and furtherreli.efas this Court deems just.

46.

SECOI\1> CAUSE OF ACTION

FALSE

IMPRISONMENT

(Against

e f e n d a n ~ LUKE E. POWELL and

CITY OF CARMEL-BY-THE-SEA

Plaintiff repeats and replead&

each

and

every .allegation contained

in

paragraphs 1

11

through 4.,,

and by

this reference

incorporates the

Same herein as though

fully

set forth.

12

47. Defendant

CITY OF

CARMEL-BY-THE-SEA through its employee,

13 SERGEANT

POWEll, intentionally confined Plaintiff. without consent or lawful pnvilegc; for

14 an

unreasonable

period oftnne, Without probable cause.

in

depnvation ofh rights. n his

15 response to

a

call regarding a non-violent, verbal dispute between two a r e n ~ SERGEANT

16 POWELL interrogated and

detained

Plaintiff without probable a U S e ~ needlessly escalatmg a non-

1?

violent

dispute

into a confrontational detention

of

l a i n ~

whereby Plaintiff was

prohibited

from

18 tea:ving and subsequently suffered severe bodil}' inJury and other damages.

l

19 48. Defendant

ITY

OF CAIDvfEL-BY-THF.-SEA i:; vicanous ly liable for the tortious

20

acts of ts emplo}'ee, SERGEANT

POWF-LL,

that

were oomrnttted

within

the scope and

21

furtherance

ofhis

emplo)lment.

22

23

24

25

I

I

49.

s

a direct

and

proximate consequence of the acts of CITY OF A R M E L B Y ~

THE-SEA by and through its

employee,

SERGEA..'I\fT PO\VF.I.L, Plaintlffhas suffered damages

including,

but

not

limited

to:

bodily injury, loss

of

ncome and employment, substantial phystcal

and

emotional pain and

suffering, shock and inj

ury tJ

her net \'ous system, humihation, acute

anxiety, emotional and physical

distress

and fear; and Pla.tntlff

continues

to suffer from post

tra-umatic stress

and

anxiety relating to

the

events comptained ofherein.

50. As a further direct, proximate, and legal result

of he

injuries alleged herem,

11

COMPLAINT

FOR

DA.MMiES D a S i ~ · a v · Cit1• ofCarmel-by-the-Sea et l.


15/35

Plaintiff has incurred, and may continue to incur, substantial medical and other out-of pocket

2 expenses in an amount according to proof.

3

51.

As a further direct

and

proximate consequence

of

he acts

of

CITY OF CARMEL-

4 BY-THE-SEA

by and through its employee, SERGEAN_T

POWELL,

Plaintiff was

transported to

5 Monterey County Ja1l, where she w s placed on an unreasonable

5150

hold in sohtary

6 I confinement, during which Plaintiff was subjected

to

humiliating and traumatic conditions,

7 including being stripped ofall ofher clothing in view ofmultiple county employees and at least

8 one male inmate.

52 As such, Plaintrff requests compensatorydamages, reasonable attorneys' fees

10

11

12

13

14

under CCP

§

1021.5, costs and any such other

nd

further relief as this Court deems

Just.

53.

THIRD CAUSE OF

CTION

BATI ERY

(Against Defendantli LITKE

E.

POWELL

and

CITY

OF CARMEL-BY-THE-SEA)

Plainhff repeats and repleads each and every allegation oontained in paragraphs 1

15 through

52, and by this reference

incorporates the

m e herein as though fully set forth.

16

54.

Defendant CITY OF

CAR...'\ffiL-BY-

TIIE-SFA through

its

employee,

17

SERGEANT POWF:LL, intentionally caused bodily

harm

to Plamnff through the use

of

18

unreasonable force. SERGEANT POWELL • unnecessary ann bar takedoWtl of Plainttff caused

19 her head

to

hit the asphalt ground

"hith

such force as

to

give Plaintiff a black eye nd open a large

20 laceration on hez forehead, which would eventually require eight stitches, a

cr

scan, and other

21 treatment In the course of his tak.edown

by

SERGEANT POWELL Plainttff further suffered

22 addttional wounds to the

ieft

&ide of her

f&::e

and her arms, as well as permanent damage to her

l

right thumb.

I

55. Defendant CITY

OF

CARMEL-BY-THE-SEA

i

vicariously hable for the tortious

I

I

I

cts of rts employee, SERGEANT POWELL, that \\'ere commjtted Within the scope and

· fuctherance ofhis employroent.

56

.

As a direct and prox Dlate consequence ofthe acts of CITY

OF

CARMEL-BY-

: :1 THE-SEA by and through its employee,

SERGEA."NT

POWELL, Plaintiff

has

suffered damages

12

COMPLAINT FOR DAMA.GE.S

DaSiJva v Ci.ty

of

Carmel-1-_v-the-Sea et al.


16/35

2

3

4

5

6

7

8

9

10

12

13

14

15

16

17

18

19

20

21

22

23

24

I

5

26

I

27

28

including,

but

not hmited to: bodily injury, loss

of income

and employment, substantial physical

and

emotional pain

and

suffenng, shock

and

injury

to her

nervous system, humiliation, acute

anxiety, emotional and h ~ i c a l distress and fear; and Plaintrff continues

to

suffer from

post

traumatic stress

and

anxiety relating to the events complained ofherein.

57. As a further direct, proximate, and legal result of the injuries

alleged

herein,

Plaintiff

b s

incurred, and may oontinue

to

incur, substantial medical and

other

out-of

pocket

expenses 10 an amount according to proof.

58. As a further direct and proximate

o n ~ e q u e n c e

of he acts ofCITY OF CAR.MEL-

BY-TI-IE-SEA by and through its employee,

SERGEANT

POWELL, Plaintiffwas transported to

Montere) County Jatl, where

was

placed

on an

unreasonable 5150 hold m

~ o b t a r y

confinement, dul ing which

Plainttflwas

subjected

to

humiliating and traumatic C .Qndttions,

including being stnpped of all ofher clothing

in

view ofmultiple county employees and

at

least

one male ·inmate.

59. As such,

l a i n t i f f r ~ u e s t b

compensatory damages, reasonable attorneys

~

under CCP

§

1021 .5, costs and

any

ruch other and further

relief

as this Court

deems

just.

FOURTH CAUSE OF AC IJON

INTENTIONAL INFLICI ION OF

EMOTIONAL DISTRESS

(Against

Defendants LUKE E.

POWELL

and

CITY

OF CARMEL-BY-THE..SEA)

Plaintiff repea ts and realleges Paragraphs 1 through 59, and incorporates them by

reference herem.

61 .

Defendant

lTY OF CARMEL-BY-THE-SEA through

its

employee,

SERGEANT

POWELL, intentionally

caused

bodily

and

emotional harm to Plain

ti

ff,

and they

knew.

or

should have known, that emotional

i ~ t r e s

would likely occur as a result of their

conduct.

62

.

The conduct

ofDefendant

CITY

OF

CARMEL BY THE SEA

through i

ts

employee, SERGEANT

POWELL,

was outrageous; that is, as to go beyond

all

bounds of

decency, and

to

be

regarded

as d i o u ~ ; and utterly intolerable in a

et\

ilized community.

63

. Sa.td mtenti.onal conduct wtllful, rn.ahciom and in total d1sregard of Plaintiffs

n

COMPLAINT

FOR

DAMAGES

v. Ci

ty

oj Carmel

- _v the-Sea

et l


17/35

2

3

4

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I

I

rights.

64. Defendant CITY OF CARMEL. BY-THE-SEA is vicariously

liable

for the tortious

acts

of

ts

employee, SERGEANT POWELL, that were committed within the scope and

furtherance

ofhis

employment.

65. As a

direct

and

proximate

consequence of

he

acts ofCITY OF CARMEL-BY-

THE-SEA by and through

its

employee, SERGEANT POWELL, Plaintiff ha > suffered damages

includmg, but not limited

to:

bodily injury,

loss of

income and employment, substantial physical

and emotional pam and suffering,

shock

and m UTY

to

her nervous

y s t e m

humiliation, acute

arudety, emotit)nal and physical distress and fear; and Plamtlfi continues to suffer from post

tramnatic stress and

anxiety relating

to

the

events complained

of

herein.

66 . As a further

dJrect.

proxunate, and legal

re&ult of

the mjuries alleged herein,

Plaintiff has incurred, and may

contmue

to inc.ur, substantial medical and other out-of

pocket

ex.pen&es in an amount &:carding to proof.

6

7.

As a further direct and proxunate consequence of he

acts

ofCITY OF CARMEL.

BY-THE-SEAby and through its employee, SERGEANT POWELL, Plainnffwas transported to

Monterey

County Jm.l, where

Vias

placed on an unreasonable 5150 hold

in

solitary

confinement, during

which

Plaintiff

was subjected to

humiliating

and

t r a u m a t L ~

conditions,

including being stripped ofall

of

her clothing in view ofmulb.ple

COU lt)'

employees and

at

least

onemale inmate.

68. B such, Plamttffrequests compensatory damages, reasoD.able attorneys' fees

under

CCP

§ 1021.5,

costs and any such other and further

relief

as this

C.ourt

deems

just.

Additionally, Plaintiffrequests punitive damages due to the mallciOus nature of he conduct.

FIFtH CAUSE OF ACTION

MALICIOUS

PROSECL TTION

(Against Defendan.ts OE l COUNTY OF·MON'IT.REY,

nd MONTEREY COUNTY SHERIFF"S OFflC'E)

69. Plaintdfrepeatsand realleges Paragraphs 1 through

68,

and mcorporates them by

reference herein.

70. Defendants O U N n ~ OF MONTERF.Y and the SHERIFF'S OFFICE through its l

DaSUva v City q Carmel b:y tP.e Sea et al. I

i4

COMPLAINT

FOR

D M GES


18/35

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3

4

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7

8

10

11

12

3

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15

16

17

18

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21

22

23

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25

26

27

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employee, DOE 1, intentionally caused the institution

of

a legal action under

Cal.

Welf. and Inst.

Code§§ 5150 and 5150 05 while Plaintiffwas detained at Monterey County

Jail,

resulting

in

placement ofPlaintiff

on

a psychiatric hold

in

solitary confinement.

This

psychiatric hold places

a person

under detention

for

up

to three days Without legal recourse or further hearings, save for

the

discretion

ofmedical staff.

71. As

part

of

this

5150

hold, Plainbff

was

stripped of

all

of

her clCitbing in

view of

multiple county employees and at least one male inmate and then allowed only a bath towel sized

gannent to cover herself For several hoUN, Plaintiff was held in a very

hot

sulitary holeing cell

with c.ement walls. In plac.c uf a rotlet, there v.a.c; a hole in

the

floor

with

viSible fec.e& from

pl'e\ ious inmates.

The

cell oontamed

one

glass window, winch faced the glass window ()f the

adjacent

holding

cc:ll.

When Plaintdf

attemptoo to look out her

window

to e t ~ guard s

attention, she was subjected to obscene liexual gestures

from

the m.ale inmate in the adjacent cell,

who had previously 'Witnessed Plaintiff being stripped naked by the guards.

72.

Said

mtentlonal conduct

was

Willful, mali '-ious, oppressive, and

in

total disregard

ofPlainnffs rights, safety,

and

welfare.

No

~ d i c a l assessment was ever conducted for

this

5150

hold. Upon review of Plaintif f's file by a different employee

in

the SHERIFF'S OFFICE, who

clearly saw

that such

a hold

was

n J ~ t d i e d

Plaintrlf

was released back to the group holding c..ell

and subsequently allowed to leave the Monterey County htl.

73. Defendants COt •N1Y

OF

O ~ L R B Y and

the

SHERIFF'S OFFICE are

vicariou&ly hable o r t h ~ tortlous acts oi their employee,

DOE

1, that were committed

wtthin

the

scope

and

furtherance of

her

employment.

74. s a direct and proximate consequenc-e

of

he acts ofDefendants COUNTY OF

MONTEREY and the SHERITF'S OFFICE through

its

employee,

DOE

l , Plaintiff sustained

severe

emotional

distre.,s, humiliation, emotional pain and suffering, and Pl.aintiffcontinues to

suffer from post- traumatic stress and anxiety relanng to this event, which has l

ed

to Plaintiff's

loss of mcome and employment, and addttional out-of-pocket

e:x.penses

?5.

As

such, Plaintiff requests o m p ~ n s a t o r y d a m a g e s reasonable at+.omeys· fees

under

CCP §1021.5 , c.Jsts, and any c;uch other .md further reliefas this Court deems just.

15

COMPLAINT

OR

D AMAGES

lJaSil a v City ofCamel-by-the-Sea, :tt

at

1


19/35

3

4

Addltic;nally, Plaint iff requests.punitive damages

due

to the malicious nature of he conduct

SIXTH CAUSE OF ACTION

INTENTIONAL ~ F L I T I O N

OF EMOTIONAL DISTRESS

(Against Defendants DOE 1, COUNTY OF MONTEREY,

And MONTEREY O U ~ T Y SHERIFF S OFFICE)

76.

Pldinti ff repeats and realleges Paragraphs 1 through 75, and incorporates them by

6 reference herein.

7

8

10

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

77.

Defendaut ~ f e n d a n t s COUNTY OF MONTEREY

smd

MONTEREY

COUNIY

SHERIFF S Of HCf

: by

and through their employee,

DOE

1, ;_ntentionally

caused

emoti\)nal

harm to Plaintiffby placmg her on m unjustified

and

unreasonable 5150 hold.

and

they knew, or

~ o u l d

have

known,

that

emotional

thr;tress

would

likely

occur as

a

result

of

herr conduct.

78. The

conduct ofDefendant COUNTY OF MONTEREY and MONTEREY I

COUNTY

SHERITF S OFIICF,

by anrl through theu employee. DOE 1 was outrageous, that is, I

as to go

beyond

all

bounds

ofdecency, and to

be

regarded as odious and utterly intolerable in a

j

ctviliz:ed community. 1

79. As

part

o this 5150 hold,

Plaintiff

was stripped (\fall

ofher

l t h i n g in \ttew

of

j

multiple

county

employees and at least one

msle

inmate and then allowed only a

bath

towel

sued

1

garment

to

cover

herself.

For

several hours,

Plamnffwas

held

m a very

hot

obtary holding cell

with cement

walls.

In

place

of

a tolicl, there war; a

hole

m

t h ~

floor

With

Y1s1ble

f e ~

from

previou

inmates.

The

cell

contamed one

glass

i n d ~ w which

faced

the glass wmdow of the

I

[

djactmt

holding

cell.

When

Plamtiff attempted to

look out her i n d o ~

to get

the gumd s

attention, she was subjected to obscene e x u a l gestures from the male mmate in the adJacent cell,

I

who had pre\- iously

l t n e ~ e d

Plainuffbeing stripped naked

by

the guards. I

80.

Smd

intentional conduct was willful, mahc10us, oppressive, and in total dtsregatd l

ofPlaintiff

8

rights, safety,

and

welfare. No medical

assessment

W i

ever ronducted for

this

5150

I

hold. Upon review ofPlaintiff 8 file by a different employee in the

8HFRIFf 8

OFFlCE, who

clearly saw that such a hold wl S unjustified, l a m t i f f w a ~ s released back

to

the group holding cell I

and

subsequently

allowed to leatve the Monterey County Jail.

Defendants COUNTY OF MONTEREY and

the SHERifF S

OFHCE are

16

C O M T ~ F O R D M G E S


20/35

vicariously liable for the tortious acts of heir employee, DOE 1, that were committed within the

2 scope and furtherance of

her

employment.

3

4

5

6

'

'

8

82

As

a direct and proximate consequence of he acts of Defendants COUNTY

OF

MONTEREY and the SHERIFF S OFFICE through it s employee,

DOE

1, Plaintiff sustained

severe

emotional

dtstre&s,

u

l i t t o ~ emotional pain and suffering, and

Plaintiff

oontinues to

suffer from post-traumatic stress and anxiety relating to this event. which has led to Plaintiff's

loss of

ncome and

employment, and additional out-of-pocket expenses

83.

As such, Plaintl ffrequests compen&atory damage&, reasonable attorneys' fees

9

under

CCP §1021 .5, costs, and any such other and further

relief

as this Court deems

just.

10 Addttionally,

the

mahi


21/35

2

3

4

5

damages.

88.

SEVENTH

CAUSE OF ACTION

NEGLIGENCE

Against Defendants LUKE

E.

POWELL and

CITY OF CARMEL-BY-THE-SEA)

Plaintiff

'epeats and

realleges Paragraphs 1 through 87, and incorporates

them by

6 reference herein.

. 89.

Defendants LUKE E POWELL and CITY OF CARMF.L-BY-THE-SEA, and

8 each of hem, were negligent in performing the1r duties; and e:acb fa1led, neglected, andior reflsed

I

9

to properly and fully dl::;charge

their responsibilities

by, among

other tlnng :

1 0 a. Improper compliance with policies,

r a c t i ~ e s .

nd

procedures

n

the

quesnoning

11 and detention ofPlamtiff;

12

b.

Allowmg a culture to exist

of

mproper

or

non-compliance with pohcies, praCtices

13 and procedures

in the

questiomng and detention ofa atizen,. includmg Plaintiff;

14 c. Improper and/or r r o n e o u s threat assessment n

the

questioning and detent ion of

15 Plaintiff;

16 d. Exercismg an elicessive and unreasonable level

of

force against Plaint iff for the

17

CU'C\llllstances;

and

18 e.

Fadure

to

use

reasonable care in the hiring,

tram.ID.

g.; and/or supe.tvt&tng

of f f i ~ r s

19

20

21

22

23

24

25

26

90. As a direct and proXlDlate consequence

of

he negligent acts ofDefendants,

Plaintif f sustained severe emotional dtstrcss, humiliation, emotional pain and

suffering.

and

Plaintiff continues

to

suffer from

p o ~ o t t r a u m a h c

stress and anxiety relating to this event, which

has

led

to P l a i n t i f f ~

loss

of

income 'llld employment,

and

additional

u t - o f

p o k e t expenses.

91.

Defendant CITY OF A R M E ~ B Y THE-SEA .is

..-icariously

liable for the torti"us

I

acts

Clfits

employee,

SERGEANT

POWELL, that

were

co.tnmitted wtthin the

;COpe

aitd

furtherance

ofhis empl.Jyment

92

.

As such, Plaintiffrequests compensatory damages. reasonable attorneys' fees

27

under CCP §1021.5, costs, and any such other and further reliefas this Court deems JUSt.

28 u

18

COMPLAINT FORDAMAGES

Da81lva

1

1

•

ity o

Carmel

-by-the-Sea et

a/


22/35

1

2

3

4

93.

EIGHm

CAUSE

OF

ACTION

NEGLIGENCE

(Against Defendants DOE 1, COUNTY

OF

MONTEREY,

ADd

MONTEREY

COUNTY

SHERIFF S

OFFICE)

Plaintiff repeats and realleges Paragraphs 1 through 92, and mcorporates them by

reference herein .

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

94.

Defendants OUNTYOF MONTEREY and MONTEREY COUNTY

SHERJFF S OFFICE, and e ch of

hem,

were negligent :tn performing their duties; and e ch

failed, neglected, and/or refused

to

properly and fully dtscharge their responsibilities by, among

other tlnngrs:

95.

a. Improper compliat1.

ce

with pchctes, practices, and procedures m the

a s ~ e s s m t m t

and Un.plemcntation of5150 holds;

b. Allowing a culture to exi Jt

of

mproper or non-compliance

w1th

policies, practices

and pro\XX ures in the

as&essment

and implementation of 5150 hold&;

c.

Improper and/or erroneous threat assessment in the assessment

and

implementatJ.on

of

5150 holds; and

d. Failure to use reasonable care in the hiring,

traming,

and/or supervising

of

deputies

and other staff at Monterey County

Jail.

s

a duect and proxunate o n ~ e q u e n c e

of

he neghgent acts of Defendants

COLTNIY OF MONTEREY nd MONTEREY COUNTY SHER.If F S OFFICE, Plamnff

sustained severe- emotional i s t r e s ~ humiliation, emotional pain and suffering, and Platntlff

continues to

suffer

from :J:"OSt-traumatic stress and anxiety relating to this event, Vl:hich h s led to

2.2

23

24

Plaintlffs loss

of

income md employment, and adclitional out -of-pocket

expens€:5.

96: Defeudams O ~ J N I Y OF MOJI


23/35

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8

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PRAYER FOR RELIEF

WHEREFORE

Plmntiffrespectfully

prays

for judgment against Defendants as follows:

1. For an award of compensatory

damages

from Defendants, jomtly and severally, in

an

amount to be proven at trial;

2.

For

an

award ofpunitive damages against

the

tndividual defendants sued in

their

personal capacity for all actions complained

of

including those outside the scope of he

employment;

3.

For an

award of attorneys' fees and cost of suit; and

4. For sud other and

further relief

as the court may

deem just

and

proper.

Dated:

August

7,

2015

BOHNEN ROSENTHAL KREEFT

B y ~ ~

t t o r n e y ~ for Ple.mtiff Jenmfer Da

silva

URY E M A : ~ D

PlaintiffJENNIFER DA SILVA hereby demands a trial by jury.

Dated: August 7, 2015 BOHNEN, ROSENTIIAL KREEFT

By.

n ~ ~

Attorneys for Plainti ff Jennifer

Da

Silva

20

COMPLAIN ' FOR DAMAGES

DaSilva v Ci:y ofCarmel-by-ihe-Sea et

al


24/35

EXHI IT


25/35

1

SUPERIOR

COL RT OF

CALIFORNIA

COVNTY

OF

MONTEREY

NvV lf> 201'

2

T ~ ~

A.

Rt 1\

C:..£.i·:f\ ·oi: -: rl S\.:PERi R

COURT

~ O E P U N

4 I ennifer Little,

Case No.: Ml29420

Alina Ol$'er

Order After Submission

s Plaintiff,

6 I

vs.

7

The City

o

Cannel-By-The-Sea,

8 ~ ~

t

---·-

.

-----

9

?entioner t requestto be relieved from the

r o v ~

o n s

of

Govt Code sec S

4

came on

f(lr

hearing on

10 No\'ember

1

2014. At

the

~ n c l w i o n

of

arguments the court took the matter under u b m i s s i o n Now, at a later

11

time, the

u r t issues its

r.1liDg.

12

Pditioner was

llt reSted

by the Carmel pollee,

apparently for

resistms them.

She

was

crlmanal:y charged.

13 .1hat charge was ultimately i s m i s : ~ e d , and the next

day

she filed a l a u n with the Cit) , alleging excessive force by

14 the polic:e d·uring their encounter. However, the claim was

filed

a iittle

more

than

ODC month

later than the

15

G o v ~ u e n t

Code allows.

Her

e;laim was

r 'Jected by

the

C1ty

a.'l bei.ng

untimely

and she now

seeks t-e.liefftom

the

16

court

under

CCP Sec

4i3

17 She states she d1d not file

the

claim sooner because she ml&taken y believed she could

rtot legally

do 3D

18 unbl her criminal case. arising out ofthe same

incident,

was concluded.

19 The City cites Butlerv Los Angles County(2008)

61'7

F.Supp.2d 994 in '>Upport of1ts argument that

20 Petitioner should not prevail. That cowt cited the clear. plain language ofGovt. Code Sec.

94S

3,

wh1cb states

.

21 thdl:

the

time m which to

filr a ,elaim

~ g a i n s t

a

public entity

under

Sechon

91

1.2 Is not e d

22·

Although Sec.945

.

3 does state thut the

fillng

requirements of

Sec

911 2 are not

extended,

there is lathing

lS 1m that language that forecloses a petstton for rehef under CCP Sec 473

24

2S

l

I

I


26/35

Murwzv State

ofCalifortri J

(1995) 33 Cal.App. 4

1767 emphasizes the remedial nature of Sec 473.

Its

2 I urpose is

to grant

reliefftom technical rules that might be a trap for the

unwary,

and an

aff'll1Ilation of

the policy

I

3

that

cases

should

N:

heard on their mcnts

and

doubts

h o u l e

resolved

in

favor

of

granting relief.

4

Sec.

94S

J is

titled, Civtl Action May Not Be Brought

Apinst

Peace Officer

When

Criminal Charges

s

Pending.'' It

ts not unreawnable

for a

lay person.to believe the claim

filing process

to be

part

ofbnngi

ng a civil

6 action.

It

is not

unUI

the last sentenceof he statute

that

the non-extention oftlme to

file is

found .

The dall

after her 'rirnmal case ended Petitioner filed

her .;; aim.

It

was

only

lillghtly

over a

month late

.

8 There

is

no prejudt«

t the City.

The

court finds

that

the

Petitioner

acted

under

a

reasonable mistake.

9

The

PetJJion is

granted.

10

l

12

Judge of he Superior Court

13

Robert O'Farrell

14

IS

II

16

17

18

9

20

21

22

23

24

z

· 2


27/35

2

3

4

s

6

7

g

9

10

11

2

13

15

16

17

i8

19

21

22

23

24

25

CERTIFICATE OF

MAILING

~ o d e

of

C1vil Procedure Sectior. 1013a)

I do h ~ r e b y certifY that I am employed tn the Count)' ofMonterey . I

s.un

over the age of eighteen yean and not a

party to

the

w1thin stated cause. 1 plaoed

true

and

correct copies

of

he

Order After Submission

for

collection and

maihng tbis d a ~ t e following our ordinarybusiness practices . I

am

readdy famtltar with the Court'9 practices tar

collectton

and

proccssinf correspondence

for maihng.

Oil the same day that l i ~ . s p \ \ n d o r t ~ ts plac:'ld or

l ~ ~ l

1

m.d

madmg, it deposited m

the

ordinar}

c o ~ r s e

o f b u s i n ~ s w1tb the

Umtect

P o s t )lll V

l€'-t;}

a l t n . 1 . ~

l

Caltfomia, in ll $Caled ecvelope with postagco fully prepaid. T h ~

n a m ~

and addresses

\

)t . a c h person

v.of)om

ilotJC i

V ~ < a . i

matled

as

follow ;

Stephen

r Wagner

Noland, lliimerry, Ettenne &

HO Is

POBo>.2SIO

Sahnas CA

93902-2510

Ryan 1bompson, Esq.

JI..n Offices ofVincent J Hurley

38

S C ~ ~ ~ ; C a p e

Village

A p t : o ~ t ;A 95 1

Date;

OV

2

2014

TERESA A RISI, Clerkof he Supcnor Court,

~

Dcput}' Clerk

Alina Oliver

3


28/35

EXHI IT C


29/35

§

946.6. Denial

of pplic tion

for

leave

to

present claim; relief . CA GOVT

§

946.6

IW

.est s Annotated California Codes

IGovernment Code (Refs Annos)

ITitle

1.

General

I

Division 3.6 Claims and Actions Against Public Entities and Pubhc Employees (Refs Annos)

I

Part 4 Actions Against Public Entit ies and Public Employees (Refs Annos)

I

Chapter 2 . c t i o n ~ Against Pubhc F.nttties (Refs Annos)

West's Ann.Cal.Gov.Code § 946.6

§ 946.6. Denial of application for leave to present claim; relief from provisions of section 945.4; place of filing

petition

Effective: January 1 2 3

Cut re

ntn

ess

(a) If an application for leave

to

present a claim is denied

or

deemed to be denied pursuant to Section 911 .6, a petition may be

made

to the court

for

an order relieving the petitioner from Section 945

4

The proper court for filing the petition is a superior

court

that would

be

a proper court for the

tnal

of

an

action on

the

cause

of

action

to

which the claim relates.

If he

petit10n

is

filed

in

a court which

is

not a proper court for the determination

of

the matter, the court,

on

motion

of any

party, shall transfer

the proceeding

to a

proper court.

If

an action on the cause

of

action to which the claim relates would be a limited civil case, a

proceeding pursuant to this section

is

a limited civil case.

(b)

The

petition shall show

each

of he following:

(1)

That

application was

made

to the board under Section 91 1 4 and was denied

or

deemed denied.

(2)

The

reason for failure

to

present

the

claim within the time limit specified in Section 911.2.

(3)

The

information required

by

Section 910.

The

petition shall be filed

~ i t h i n

six months after the application

to

the board is denied

or

deemed to

be

denied pursuant to

Section 911.6.

(c) The court shall relieve

the

petitioner from the requirements

of

5ection 945.4

if

the court finds that the applicati

on

to the

board under Section 911.4 v. as made v ithin a reasonable

time

not

to

exceed that specified in subd ision (b)

of

Section 911.4

and v.as denied

or

deemed denied pursuant

to

Section

911

.6 and

that

one

or

more

ofthe

following is applicable:

t


30/35

§ 946.6. Denial o application

or

leave to present claim; relief .. CA GOVT

§

946.6

(1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity

establishes that it would be prejudiced in the defense of he claim

if

the court re Iieves the petitioner from the requirements of

Section 945.4.

(2) The person who sustained the alleged injury, damage or loss was a minor during all

of

he time specified in Section 911.2

for the presentation

of

he claim.

(3) The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the

time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim

during that time.

(4) The person who sustained the alleged injury, damage or loss died before the expiration of the time specified in Section

911.2 for the presentation

of

the claim.

(d) A copy

of

the petition and a written notice

of

the time and place

of

hearing shall be served before the hearing s

preset ibed by subdi\ ision (b)

of

Section 005

of

the Code

of

Civil Procedure on (

l

the cletk or secretary or board

of

the

local public entity,

ifthe

respondent is a local public enttty, or (2) the Attorne) General,

if

the respondent

is

the state.

If

the

petition involves a claim arising out

of

alleged actions or inactions

of

the Department

of

Transportation, service

of

the

petttton nd notice of the hearing shall be made on the Attorney General

or

the Director

of

Transportatton. Service on the

Attorney General may be accompli .hed at any

of

the Attorney General's offices in Los Angeles, Sacramento, San Diego, or

San Ftancisco. Service on the Director of Trarisportatton may be accomplished onl) at the Department

of

Transportation's

headquarters office

in

Sacramento.

If

the petition involves a claim arising out

of


of

a judicial

branch entity, service

ofthe

petition and notice

of

the hearing shall be made in accordance with the following:

1)

If


of


of

a superior court or a judge, court executive

officer, or trial court employee, as defined in Section 811.9, of he court, service shall be made on the court executive officer.

(2) If the petition involves a claim arising out of alleged actions or inactions of a court of appeals or a judge thereof, service

shall be m de on the Clerk/Administratorof the court of appeals.

(3) If the petition invol\es a claim arising out

of

alleged actions

or

inactions of he Supreme Court or a judge thereof, service

shall be made on the Clerk

of

he Supreme Court.

(4)

If


of


of

the Judicial Council or the Administrative

Office

of

the Courts; service shall be made on the secretariat

of

he Judicial Council.

(e) The court shall make an independent determination upon the petition. The determination shall be made upon the basis of

the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing


31/35

§

946.6. Denial

of

application

for

leave to present claim; relief

CA

GOVT

§

946.6

on

the petition.

f) If

the court makes

an

ord

er

relieving the petitioner from Section 945.4, suit on the cause

of

action

to

which the claim

relates shall be filed with the court within 30 days thereafter.

Credits

(Added by Stats.1965, c. 653, p. 2016, § 22. Amended by Stats.l970, c. 411, p. 822, § 2; Stats. J987, c. 1201 , § 22;

Stats.1987, c. 1208, § 7; Stats.l989, c. 148, § 1; Stats.1989, c. 693, 8; Stats.2001, c. 4 t (S.B.562), 9; Stats.2002, c. 1007

(A.B 2321 ). § 12.)

West s Ann. Cal.

Go v

.

Code§

946.6, CA

GOVT

§ 946.6

Current with urgency legislation through Ch. 291

of2015

Reg.Sess.

: :nd

of

IJo-:u.nent

t .

2015 Thomson Reuters. No claim to origina;

U.

S. Government

V. orks.


32/35

EXHI IT D


33/35

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34/35

a ~ d Haneriy

PROOF

OF SERVICE

BY IIAIL

Sulldtullon

of Auomev-avn

05/06/201 1

14

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lnnvctiDrll:

havltV.,pMitla..... y

mal

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(»>aanwho JJIIIIed

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t1U

Prodd

SeMI»

by

Mail

An

11111 \pd CXW

of he

Proof oP SaMa&

by

Mellhould be

completed WI f/tnlftd wllh

the

doCUmfKit.

Give

the Subllllulion at AtiDrrlf)I-CMJ fiJd thfl

Ptool

~

SfNir;e by Mall lD tile Cledc rot lling.

If

you

. .

reptflliBII q1fJUIS8(

. . . . m e l

these,.,., IWI 1

the

ProddSclmwby"'"'·

1. 1em over the age of

18

and nola

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to

thia

cauM. l

am

a IHidentol or emplore f

in

the county where the m a l l ~ CIClQA1'8CI.

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...tence

ar

...,...llddN a a (8PfiCIIY)

2. f

. -wd

h S&lbl6tutlan of ~ CNI b'f

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Statas tniiJ

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poal8Qe Uly PN(.IaJd.

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oa

d

m3111n1r

NAME

AND ADDRESS OF EACH

PERSON TO

WHOIINOTICI

WAS MAILED

4.

a

Named p8ISOil MMd:

b. Addrael

(numbet

...

dly, Mid DPJ'

e Nameofi**Jft...vad.

d. , . . , . ,

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uty. and

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penon 181\'ed,

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I. Name ofpMOn

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AddiNI

(ntmblr, stiNt Cffy. andZlpt

SUBSllTU110N

OF ATTORNEY-cML

(WitttautCourt

OnMr


35/35

From:Noland Hanerly

05/06/2015

14:47

156 p 004/004

I

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s

a:

2

PROOF OF SERVICE

(Code

Civ. Proc. §§

l013(a). 2015.5)

3 STATE OF CALIFORNIA

)

)

)

COu"NTY OF

MONTEREY

5

6

7

8

9

10

12

13

14

15

16

17

18

19

20'

21

22

23

24

2S

26

27

28

I

am

a

citizen

of

the

United S1ates and a resident

of

Monterey County. I am

over

the age

of

18

years

and nl t a party to

the

within entitled action; my business address is: 333 Salinas

Street. Post Office Box 2510, Salinas,

CA

93902-2510.

On the

date

below,

served

the attached

docwnent(s) entitled: SLliSTJTVTION

OF

ATTORNEY,

on

the

followmg

named

person(s)

in said action at:

VincentP u r l e y ~

Esq,

Ryan Thompson, Esq.

Law

Offices ofVincent P. Hurley

38

Seascape Village

Aptos. CA 95003

Fax:

(831)661-4804

0

lil

0

by personal service on the

above-named

person( i) at the above stated s e s ) .

by placing

said

eopy(ies)

in a

sealed.

envelope(&), postage

thereon fully prepaid,

and

placed for

collection and

processing

for

mailing following

the

busin.t:sfs's

ordinarypractk.e

with

wbich

I

amxeadily

familiar. On

the same:

day

corteBPondenoe is

placed for collection and mailing. it is

deposited in the ordinary

course ofbUBiness

with

the United States Postal Service at

Salinas,

California.

addressed

ag stated above.

by tJvemight delivery on

the

above named party(ies) in said.action. by placing a

true

and

correctcopy thereof enclosed m a Seared envelope m a

designated

area for

outgoing,

same-day

pickup

by

· at he offices of Noland, Hamerly,

Etienne

&

Hoss

fur

overnight delivery,

billed to

o l ~

Hamerly. Etienne . Hoss,

n d ~ as

set

furthabove.

by causing to be

1Iansmitted

a true copy thereof

o the

above-named recipient via

the

foilowing facsimi.le tranmussion telephone

number ( n F a x " ) (831)

661-4804.

and

no

interruption

of ransmission

was reported.

·

I declare, under penalty ofperjury

under

the

laws

of

he State

of

California that the

foregoing is true and com:ct.

Executed on

May

6, 201 S,

at

Salioas. California.

CBR.l'JFl:CA

TE OP SERVICE

Case No. 132929 09-28-15 City's RJN ISO Demurrer

Documents

Transcript of Case No. 132929 09-28-15 City's RJN ISO Demurrer