HomeMy WebLinkAbout05 CLAIM 09-05, HERNANDEZ 09-15-09Agenda Item 5
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4 AGENDA REPORT City Manager t
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Finance Director NIA
MEETING DATE: SEPTEMBER 15, 2009
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: KRISTI RECCHIA, DIRECTOR OF HUMAN RESOURCES
SUBJECT: CONSIDERATION OF CLAIM OF VICTOR HERNANDEZ, CLAIM NO. 09-05
SUMMARY:
The Claimant alleges that Tustin Police used excessive force when questioning him regarding a
potential criminal act. On October 17, 2008, Tustin Police detained the claimant when a witness
identified him as the perpetrator in a criminal investigation. During a weapons pat down search,
Mr. Hernandez began to struggle, requiring Officers to handcuff and restrain him. During the
struggle, Mr. Hernandez sustained a broken finger and a contusion above his eye. Ultimately, Mr.
Hernandez was determined not to be the perpetrator.
RECOMMENDATION:
That the City Council deny Claim Number 09-05, Victor Hernandez, and direct Staff to send notice
thereof to the Claimant.
FISCAL IMPACT:
None.
DISCUSSION:
The City's Claims Administrator has found no fault attributable to the City of Tustin in this incident.
The Officers involved were acting lawfully in response to a witness' identification in their initial
detention of the claimant. The claimant's injuries were sustained as a result of his resistance and
struggle with the Officers. Staff is recommending denial of the claim.
Kristi Recchia
Director of Human Resources
ATTACHMENT: Copy of Claim No. 09-05
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BILL T. 'T'R.AN"
.& ASSOCIATES
A Professional Law Corporation
10161 BOLSA AVENUE
SUITE 202-A
WESTMINSTER, CA 92683
March 3, 2009
Via First Certified Mail
7007 2560 0003 01 12 6129
City of Tustin
City Clerk's Office
300 Centennial Way
Tustin, CA 92780
TELEPHONE (714) 531-1950
FACSIMILE (714) 784-7500
lawyerbilltran @ yahoo.com
RE: Claimant: Victor Hernandez
Date of Incident: 10/17/2008
Location: McFadden Avenue & Richy, City of Tustin, CA
Dear City Clerk:
Our office has been retained by the above-referenced individual to represent his claim(s)
for bodily injury arising out of an incident involving Tustin Police Officers on October 17, 2008.
We have enclosed the completed "Claim against the City of Tustin" for your review and record.
Please provide our office with an acknowledgment of receipt and claim number as soon as
possible.
Thank you for your prompt attention and assistance in this matter.
Should you have any questions or concerns, please do not hesitate to contact our office. I
may be reached between the hours of 9:30AM - 5:30PM, Monday thru Friday.
Sincerely,
BILL T. TRAN & ASSOCIATES, APLC
Bill T. Tran
Attorney at Law
BTT/cql
Enclosure: as indicated.
~ECEIVEC
Maa a 4 2009
Rt~l~N RESO~a=~~ES
f
CLAIM AGAINST THE CITY OF TUS i ..
(For Damages to Person or Personal Property)
R ceived Via: Time Stamp:
~] U.S. Mail C! I Y Or I US'I I~
^ Inter-Office Mail ~~~,~~
^ Over the Counter TQ~9 h1A~ _ (~ A 9: S Maim No:
PLEASE NOTE:
A. Read entire claim before filing.
B. Be sure your claim is against the City of Tustin, not another public entity.
C. Claims for death, injury to person or to personal property must be filed no later than 6 months after the occurrence
(Government Code § 911.2).
D. Claims for damages to real property must be filed no later than one year after the occurrence (Government Code § 911.2).
E. If additional space is needed to provide your information, please attach sheets, identifying the paragraph(s) being answered.
F. A claim must be presented, as prescribed by the Government Code of the State of California, by the claimant or a person
acting on his/her behalf and shall provide the information shown below and must be signed by the claimant or a person on
his behalf (Government Code § 910.2).
G. This form is for the convenience of those desiring to present claims against the city. Claimant is advised to consult a private
attorney if legal advice is desired. No employee of the City may give legal advice to any claimant relating to private claims.
H. Completed claims must be mailed or delivered to the City of Tustin, City Clerk's Office, 300 Centennial Way, Tustin,
California 92780.
Name and Post Office address of the Claimant:
Name of Claimant: VICTOR M. HERNANDEZ
Home Address:
Home Telephone: Work Telephone:
2. Post Office address to which the person presenting the claim desires notices to be sent:
(If different from above)
Name of Addressee: ~i~~ -j' `j',-an ~ ~SS~Glpt~S Telephone: ~-jl~) 531-~q*~ O
Post Office Address: ~ pl (o ~ {30 [ ~ f~V-eYKa~ r CSI~1'kC o20o'~Ar
(up sfirn I n afie ~ , Cat q Q~o~ ~
The date, place and other circumstances of the occurrence or transaction from which the claim arises.
Date of Occurrence: 1 0 -1 7- 2 0 0 8 Time of Occurrence: g• 5 0 PM
Location: In front of my Apartment Complex Tustin, CA
Circumstances giving rise to this claim:
See my attached statement.
4. General description of the indebtedness, obligation, injury, damage or loss incurred so far as you now know.
See my attached statement
Page 1 of 4
5. The name or names of the public employee or employees causing the injury, damage, or loss, if known.
Tustin Police Department
6. If amount claimed totals less than $10,000: Provide the amount claimed if it totals less than ten thousand
dollars ($10,000) as of the date of your claim, including the estimated amount of any related potential future injury,
damage, or loss, insofar as it may be known as of the date of your claim, together with the basis of computation of
the amount claimed (include copies of all bills, invoices, estimates, etc.)
Amount Claimed and basis for computation:
If amount claimed exceeds $10,000: If the amount claimed exceeds ten thousand dollars ($10,000), do not
provide a dollar amount in the claim. However, your claim must indicate whether it would be a limited civil case.
A limited civil case is one where the recovery sought, exclusive of attorney fees, interest and court costs, does not
exceed $25,000. An unlimited civil case is one in which the recovery sought is more than $25,000. (See CCP §
86. )
^ Limited Civil Case ®Unlimited Civil Case
You are required to provide the information requested above in order to comply with Government Code
§910. Additionally, in order to conduct a timely investigation and possible resolution of your claim, the
City of Tustin requests that you answer the following questions.
7. Name, address and telephone number of any witnesses to the occurrence or transaction from which the claim
arses:
Information of the involved officers were not released to me. As such,
the requested information is in the possession of the Tustin Police
Department. Crime Report No. 08-7585.
8. If the claim involves medical treatment for a claimed injury,
number of any doctors or hospitals providing treatment:
See attached Health Provider list, please provide the name, address and telephone
If applicable, please attach any medical bills or reports or similar documents supporting your claim.
9. If the claim relates to an automobile accident:
Claimant(s) Auto Ins. Co.: Telephone:
Address:
Insurance Policy No.:
Insurance Broker/Agent: Telephone:
Address:
Claimant's Veh. Lic. No.: Vehicle Make/Year:
Claimant's Drivers Lic. No.: Expiration:
If applicable, please attach any repair bills, estimates or similar documents supporting your claim.
Page 2 of 4
READ CAREFULLY
For all accident claims, place on following diagram name of
streets, including North, East, South, and West; indicate place of
accident by "X" and by showing house numbers or distances to
street corners. If City/Agency Vehicle was involved, designate by
letter "A" location of City/Agency Vehicle when you first saw it,
and by "B" location of yourself or your vehicle when you first saw
City/Agency Vehicle; location of City/Agency vehicle at time of
accident by "A-1" and location of yourself or your vehicle at the
time of the accident by "B-1" and the point of impact by "X."
NOTE: If diagrams below do not fit the situation, attach hereto a
proper diagram signed by claimant.
~~ J1P 'til`'~~ ~~ s
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SIDEWALK
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CURB -~ ~ ~ AS,T- ~ G _ ~ ~ _ - -- . _ _ .
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PARKWAY ~ W~~`
SIDEWALK
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Warning: Presentation of a false claim is a felony (Penal Code §72). Pursuant to CCP §1038, the City/Agency may seek
to recover all costs of defense in the event an action is filed which is later determined not to have been brought in good
faith and with reasonable cause.
Signature:
Date: ~ ~ 2
Page 3 of 4
i
i
IF LATE CLAIM: COMPLETE ITEMS 1- 9 AND THIS APri_ICATION.
SIGN BOTH FORMS.
APPLICATION FOR LEAVE TO PRESENT A
LATE CLAIM TO THE CITY OF TUSTIN
The undersigned hereby applies for leave to present a late claim to the City of Tustin. This application is being made
within a reasonable time, not exceeding one (1) year, after the accrual of the cause of action. Under some circumstances,
leave to present a late claim will be granted (Government Code § 911.6). The reason for delay in presenting the claim is:
Date Signature of Clan
Revised 12/2004
Page 4 of 4
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Bill T. Tran, Esq. SBN 202837
BILL T. TRAN & ASSOCIATES, APLC
10161 Bolsa Avenue, Suite 202-A
Westminster, CA 92683
Tel: (714) 531-1950
Fax: (714) 784-7500
Attorneys for Claimant,
VICTOR HERNANDEZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
VICTOR M. HERNANDEZ
Plaintiff/Claimant,
Case Number:
vs.
CITY OF TUSTIN; and Does 1 through 50,
inclusive,
Defendant/Respondent.
DECLARATION OF CLAIMANT IN
SUPPORT OF CLAIM AGAINST THE
CITY OF TUSTIN
I am the Claimant in the above-entitled matter. I make this declaration in support of my
claim against the City of Tustin. I have personal knowledge of, and if called as a witness to
testify could and would testify to, the following facts:
1) On October 17, 2008 at approximately 8:50 PM, I was walking on the north side
of McFadden heading eastbound. I was on my way to my apartment from Burger King.
2) As I approached my the front of my apartment complex, a Tustin Police
Department cruiser pulled up in front of me and Officer #1 ordered me to stop. He asked me
where I was coming from. I told him that I was coming from Burger King located on 1766 E
McFadden. Then, he asked me "Are you the one that pushed the girl at the liquor store ?" I
answered him "NO". I again confirm with the officer that I was coming from Burger King and
that I live in this apartment complex.
-1-
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Declaration of Victor Hernandez
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1 3) He grabbed my wrist and told me not to move. I stood still. He turned around and
2 ask a male bystander, "Is this the guy?", and the male bystander said "Yes". He then forcefully
3 pushed me to the ground. My face made a hard contact to the cemented sidewalk from and I
4 became unconscious.
5 4) I rememberred waking up briefly after the fall and felt the continuous punching
6 and beating on my head and body from Officer #1. I was rather confused more than feeling the
7 severe pain as he beat me. I ask him, "Officer, what did I do? I'm not resisting, I'm not
8 resisting, you're hurting me..." but he did not stop dispite my plea to stop and that I am not who
9 he think I was. I thought I was going to die because I couldn't breath as he continued beating my
10 head and body.
11 5) Subsequently, Officer # 2 showed up. I thought Officer # 2 would intervene and
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stop Officer # 1 from excessively punching me. To my dismay, Officer # 2 jumped on my back
~ 13 and pinned me hard against the cemented floor with his knees and twisted my arms and hand-
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cuffed my hands.
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6) I kept calling out for help and begged the officers to stop hurting me as I was not
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stop hurting me. They told me to shut up instead.
18 7) Eventually, the beating stop. The Officers picked me up and shoved me in the
19 back of the police cruiser.
20 S) Moment later, the female victim showed up and spoke to the Officers. I overhead
21 she said that I was not the male who pushed her earlier at the liquor store.
22 9) The whole time, I was detained in the back of the Police Cruiser until they
23 arrested the male that allegedly pushed the female victim. I was released without offer for
24 medical care..
25 10) Due to the injuries sustained from the beating, which was quite visible, my sister
26 took me to Western Medical Center for emergency care and treatments.
27 //
28 //
-2-
Declaration of Victor Hernandez
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11) While I was at the hospital, a Tustin Police Department Officer came to visit me.
He identify himself as Captain and told me that he apologize about what had happened.
12) As of today, I am still receiving medical treatments as a result of the incident.
~~~'~-~~~
Victor Hernandez
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Declaration of Victor Hernandez