HomeMy WebLinkAboutCC 5 CLAIM #93-37 09-20-93AGENDA
CONSEN? CALENDAR NO. 5
9-20-93
Inter-Com
..,ATE:
SEPTEMBER 13, 1993
TO' HONORABLE MAYOR AND CITY COUNCIL
FROM' CITY ATTORNEY
SUMJ£CI: CLAIMANT: SONDRA BERRY-YOUNG; CLAIM NO: 93-37; D/L: 10-10-92;
DATE FILED W/CITY: 08-16-93; CARL WARREN FILE NO: S ??9834 CLB
After investigation and review it is recommended that the
above-referenced Application to File Late Claim be rejected and the
City Clerk directed to give proper notice of the rejection to the
claimant and to the claimant's attorney.
JAME~ty Attorney
JOR:jab:~l ~3(CL-9337 ~b)
Enclosure: Copy of Claim
cc: Carl Warren & Co.
Finance Director
City Manager
10
11
13
14
18
19
20
21
22
23
24
25
27
28
Andrina G. Hanson, CSB No.
LAW OFFICES OF BERGLUND & JOHNSON
15650 Devonshire St., Suite 310
Granada Hills, CA 91344
(818)891-1851 (213)873-2363
Attorneys for Claimant
In the matter of the Claim of
SONDRA BERRY-YOUNG )
)
)
Claimant, )
)
against )
)
STATE OF CALIFORNIA, DEPT. OF )
TRANSPORTATION )
)
Defendant. )
APPLICATION FOR LEAVE TO
PRESENT A LATE CLAIM
PURSUANT TO CALIFORNIA
GOVERNMENT CODE SECTIONS
911.4 AND 911.6;
DECLARATION OF ANDRINA G.
HANSON; 'ORIGINAL CLAIM FOR
DAMAGES
Section 911.4:
"(a) When a claim that is required by Section 911.2 to be
presented not later than six months after the accrual of the
cause of action is not presented within such time, a written
application may be made to the public entity for leave to
present such claim.
(b) The application shall be presented to the public entity
as provided in Article 2 (commencing with Section 915) of this
· TO THE STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATION:
Application is hereby made for leave to present a late claim
by Claimant SONDRA BERRY-YOUNG under Sections 911.4, 911.6 of the
California Government Code, which state as follows:
l?
18
19
2O
22
25
28
chapter within a reasonable time not to exceed one year after
the accrual of the cause of action and shall state the reason
for the delay in presenting the claim."
Section 911.6(b)(1):
"The board shall grant the application where: The failure to
present the claim was through mistake, inadvertence, surprise
or excusable neglect and the public entity was not prejudiced
in its defense of the claim by the failure to present the
claim within the time specified in Section 911.2.'
For relief on this ground, Claimant must show that her
misconception was reasonable and that she did not merely fail to
discover a fact until it was too late. Cole v. City of Los Angeles,
187 Cal. App. 3d 1369 (1986). In the present case, Claimant's
previous attorney, Bruce Schweitzer, only filed a claim against the
State of California, rather than against the County of Orange, or
City of Tustin, one of which Claimant has recently been informed
and believes may be responsible forrthe hole left on the shoulder
of the road where she was injured. The state of California
rejected Ms. Young's claim on June 11, 1993, a week after she
retained BERGLUND & JOHNSON to represent her interests. Claimant
therefore has not filed claims against the County of Orange or the
City of Tustin prior to the expiration of the statute of
limitations on April 10, 1993.
However, once Claimant was notified that the State of
California may not be the only governmental entity liable for her
injuries, she immediately prepared claims against the County of
Orange and City of Tustin. Claimant's filing of her action against
the County of Orange after the expiration of the time specified in
2
10
11
12
13
14
15
18
17
18
19
20
21
22
23
24
25
28
27
28
Section 911.2 for the presentation of the claim, was due to the
mistake, inadvertehce, or excusable'neglect regarding the source of
liability for her injuries.
Further, Defendant is not prejudiced by the late filing of the
within claim as it before the accrual of the one-year statute of
limitations, and is therefore within a reasonable time under Govt.
Code Section 911.4(b). Based on the foregoing, Claimant
respectfully requests that the within Application to Present Late
Claim be granted.
Additional grounds, facts, and circumstances supporting this
application are contained in the attached Declaration of ANDRINA G.
HANSON, and the proposed Claim which is attached hereto.as Exhibit
DATED: August 6, 1993
Law Offices Of
BERGLUND & JOHNSON
A~DRINA G. HANSON
Attorneys for Plaintiffs
10
11
14
l?
18
20
21
23
25
26
28
DECLARATION OF ANDRINA G. HANSON
I, Andrina G. Hanson, declare as follows:
I am an attorney at law, duly licensed to p.ractice in the
State of California and am an associate in the Law Offices of
Berglund & Johnson, attorneys for Claimant SONDRA BERRY-YOUNG. As
such, I am familiar with the facts contained within this
declaration, and if called as a witness, I could and would
competently testify under oath to the following:
1. On or about October 10, 1992, Claimant SONDRA BERRY-
YOUNG was injured as a result of her slip and fall into an ~'
unmarked, uncovered hole left on the shoulder of Freeway 22, near
the call box used by Claimant to phone the Automobile Club for help
when her car ran out of gas.
2. The incident occurred when, due to the lack of a proper
funnel' for placing gasoline into Claimant's car, the tow truck
driver sent to help Claimant spilled gasoline all over her, causing
her to step backward into the hole. Claimant sustained severe
injuries to her knees, lower back, neck, and both legs.
3. Plaintiff's previous attorney filed a timely claim
...
against the State of California because' the incident occurred on a
state highway.
4. Ms. Young's claim against the County of Orange is
submitted late because Claimant was not notified of the potential
liability of the County until the statute of limitations for
presenting claims pursuant to section 911.2 had expired. However,
Plaintiff's previous'attorney did file a timely claim against the
State of California.
5. Ms. Young retained the Law offices of BERGLUND & JOHNSON
1 to represent her interests arising out of the above-referenced
2 incident, shortly before receiving the State of California's
3 rejection of her original claim sent by attorney Bruce Schweitzer.
4 6. As a matter of law, Claimant's request must be granted
5. according to California Government Code Section 911.6(b)(1), which'
$ mandates that the application be granted in a case of mistake,
? inadvertence, surprise or excusable neglect, where the public
8 entity was not prejudiced in ~its defense of the claim.
9 7. The information required by Government Code Section 910
relative .to Petitioners' claim is set forth in the claim attached
10
12
14
15
17
18
20
21
22
23
24
25
26
27
28
as Exhibit "1' to this Petition.
WHERE'FORE, it is respectfully requested that this Application
be granted pursuant to California Government Code Section 911.4.
Further, it is requested that the attached claim be received and
acted upon in accordance with Section 911.6(b)(1) of the California
Government Code on grounds of mistake, inadvertence and the
excusable neglect of Claimant's previous attorney, Bruce
Schweitzer.
I declare under the penalty of perjury that the foregoing is
true and correct.
Executed this 6th day of August, 1993, in Granada Hills,
California.
Respectfully submitted,
ANDRINA G. HANSON
Declarant
10
11
12
17
18
19
20
21
22
23
24
25
27
28
Andrina G. Hanson, CSB No.
LAW OFFICES OF BERGLUND & JOHNSON
15650 Devonshire St., Suite 310
Granada Hills, CA 91344
(818) 891-1851 (213) 873-2363
Attorneys for Claimants
In the matter of the Claim of
SONDRA BERRY-YOUNG,
Claimant,
against
CITY OF TUSTIN, CALIFORNIA
Defendant.
CLAIM FOR DAMAGES
(Government Code
Section 910)
TO THE COUNTY CLERK'S OFFICE OF THE CITY OF TUSTIN, STATE OF
CALIFORNIA:
Pursuant to Section 910 of the Government Code of the State of
California, SONDRA BERRY-YOUNG, presents her Claim for Damages
against you as follows:
1. THE NAME OF CLAIMANT:
SONDRA BERRY-YOUNG
2. THE POST OFFICE ADDRESS TO WHICH CLAIMANT DESIRE NOTICES
TO BE SENT:
Law Offices of BERGLUND & JOHNSON, 15650 Devonshire Street,
Suite 310, Granada Hills, California 91344 (818) 891-1851.
·
DATE OF BIRTH OF CLAIMANT:
10
11
13
14
17
18
19
20
21
22
23
24
25
26
27
28
4. CLAIMANT'S SOCIAL SECURITY NUMBER:
SONDRA BERRY-YOUNG'S SSN:
·
THE DATE THE INCIDENT OCCURRED:
The incident occurred on October 10, 1992.
6. THE LOCATION WHERE INCIDENT OCCURRED:
The incident occurred while Claimant was stopped on the 55
Freeway in the County of Orange, City of Tustin, State of
California.
7. 'THE CIRCUMSTANCES SURROUNDING THE INCIDENT WHICH GAVE
RISE TO THIS CLAIM:
On October 10, 1992, Ms. Young's car ran out of gas, forcing
her to stop on the shoulder of the westbound 22 Freeway, near its
intersection with the 55 Freeway. She immediately used the call
box nearby to contact the Automobile Club, who sent Tri-Star Towing
to refill her car with gasoline.
While Tri-Star Towing was putting gas in her car, Plaintiff
stepped backward into a utility box hole that was approximately one
foot wide and three feet long. [See Exhibit A, xerox copies of
photos]. Ms. Young lost her balance, fell backward, and severely
injured both of her knees, her neck, lower back and legs. Ms.
Young has incurred over $4,000.00 in medical bills to date, and is
in need of surgery to repair the damage caused to her knees by the
fall, specifically, a torn meniscus.
///
///
10
12
13
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8. THE PARTICULAR ACT OR OMISSION ON THE PART OF THE CITY
OFFICERS, SERVANTS OR EMPLOYEES CAUSED THE INJURY OR DAMAGE:
CLAIMANT contends that liability against said public entity is
based on the dangerous condition allowed to exist on the shoulder
of the 22 Freeway, near the intersection with the 55 Freeway, at
the site of the call box Claimant used, where a large hole had been
left uncovered. This hole posed a trap to persons using the call
box on the shoulder of the road where the hole was located and
constituted a dangerous condition of a public roadway for which the
City of Tustin is responsible.
It is CLAIMANT'S contention that the portion of the roadway
·
where the hole existed was not in compliance with all normal safety
requirements. Said public entity's failure to take reasonable
precautions to ensure that the hole was not left uncovered or
unfilled, despite knowledge that persons would be traversing the
area in order to reach the nearby call box, created a dangerous
condition on the roadway which endangered the safe movement of
pedestrians and which was not reasonably apparent to, or
anticipated by persons exercising due care. The City should have
provided safeguards to prevent persons from falling in the hole,
including roping off the area around the hole, covering the hole,
or warning persons of its existence through signage posted at the
s:te.
CLAIMANT contends that the foregoing failures were substantial
factors and the proximate cause of the accident at issue in the
instant claim.
CLAIMANT'S investigation continues.
10
11
12
..13
~5
16
17
2O
21
22
23
24
25
26
27
28
9. THE NAME OR NAMES OF THE PUBLIC EMPLOYEE OR EMPLOYEES
CAUSING THE INJURY, DAMAGE, OR LOSS, iF KNOWN:
Unknown at this time; investigation and discovery are
continuing.
10. THE AMOUNT CLAIMED AS OF THE DATE OF THE PRESENTATION OF
THE CLAIM, INCLUDING THE ESTIMATED AMOUNT OF ANY PROSPECTIVE
INJURY, DAMAGE OR LOSS, INSOFAR AS IT MAY BE KNOWN AT THE TIME OF
THE PRESENTATION OF THE CLAIM, TOGETHER WITH THE BASIS OF
COMPUTATION. OF THE AMOUNT CLAIMED:
Jurisdiction lies in the Superior Court of the State of
California.
DATED: August 6, 1993
Law Off ices of
BERGLUND & JOHNSON
BY: /~-~/~?~.~ '--,.
ANbRINA G. HANSON '-- ....
Attorney for Claimant