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Home My WebLink AboutCC 4 CLAIM #89-36 04-02-90DATE: TO: FROM: SUBJECT: March 16, 1990 HONORABLE MAYOR AND CITY COUNCIL CITY ATTORNEY CONSENT CALENDAR NO. 4 4-2-90 Inter - Com CLAIMANT: Thomas, Walter & Irene; D/L: 03/03/89; DATE FILED W/CITY: 03/01/90; CLAIM NO: 89-36; CARL WARREN FILE NO: S 59900 CLB After investigation and review it is recommended that the above - referenced additional/amended claim be rejected and the City Clerk directed to give proper notice of the rejection to the claimant and to the claimant's attorney. ,,JAMES G. ROURKE City Attorney JGR(F4) Enclosure: Copy of Claim FRANK A. POZZI (1934-1982) FRANK J. TERRERI FAMILY LAW LAW OFFICES OF F Q4; n K j. T -E R R -E Q I COAST HIGHWAY AT AVOCADO newPOQT BEACH, CALIfoQnl4i TELEPHONE (714) 759-0141 February 27, 1990 City Clerk City Attorney City of Tustin 300 Centennial Way Tustin, CA 92680 RE: Claimant: Date of Loss: and MAILING ADDRESS: 2121 E. PACIFIC COAST HIGHWAY SUITE 280 CORONA DEL MAR, CALIFORNIA 92625 FAX (714) 759-0788 Irene Thomas November 10, 1989 (death) RE: Your Notice of Refusal to Accept Late Claim; dated February 15, 1990 DEMAND FOR RE—EXAMINATION OF REJECTED CLAIM (Government Code Section 913.2) Gentlemen: I represent Irene Thomas, claimant in this action. My file reflects the following claims and notices have been served and received in this action and that the events took place chronologically as follows: March 3, 1989 Walter Thomas injured at situs of claim September 1, 1989 Claim for Walter Thomas served November 8, 1989 Claim first rejected January 4, 1990. Amended claim served on behalf of Irene Thomas January 22, 1990 Notice of Insufficiency of claim sent January 29, 1990 Amended claim filed for wrongful death by Irene Thomas February 15, 1990 Notice of Refusal to Accept Late Claim sent to me, received February 20, 1990 City Clerk City of Tustin February 27, 1990 Page 2 As should be obvious, the six month time on this wrongful death action has not expired. on November 10, 1989. The claim was filed by claimant on January 4, 1990. It was filed as clarify for wrongful death only on January 29, for filing claim Mr. Thomas died Irene Thomas as amended to,. 1990. "A claim relating to a cause of action for death... shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than six months after the accrual of the cause of action." Government Code Section 911.2 Accrual of cause of action against a public entity for wrongful death is within 100 days. Harman v. Mono General Hospital (1982) 131 Cal. App. 3d 607, 182 Cal. Rptr. 570. (time for presentment of claims amended to be 6 months, Stats. 19871. Since Mr. Thomas died on November 10, 1989, the claim filed on January 4, 1990 is well within the six months. The claim as amended and clarified was sent on January 29, 1990 to which your letter does not even reference, so it is again reattached here. Mrs. Thomas would have until May 10, 1990 to file her claim for wrongful death. Under Government Code Section 910.8, a plaintiff may file an amendment to correct a defect of a claim if the public entity gives written notice that it deems a claim insufficient within 20 days of its presentation, setting forth the defects or omissions with particularity. This the plaintiff did in response to the notice of insufficiency from the City Clerk dated January 22, 1990. Pursuant to Government Code Section 913.2, demand is herewith made on you to re-examine this claim and notify in writing of your determination of acceptance or rejection. It would appear that your "refusal to accept late claim" is an improper action by the public entity and that leave to present late claim in innapplicable to this case; that this City Clerk City of Tustin February 27, 1990 Page 3 claim has not been reviewed by counsel and that the applicable statute of limitations and accrual of the cause of action has not been considered. Thank you for your cooperation. Cordially yours, FRANK J. TERRERI FJT:ls enc. cc: Irene Thomas FRANK A. POZZI (1934-1982) FRANK J. TERRERI FAMILY LAW City Clerk City of Tustin 300 Centennial Way Tustin, CA 92680 LAW OFFICES OF Fu;nK J. T-ERR-ERi COAST HIGHWAY AT AVOCADO nEWPOV 5EACH, CALIfoanifi TELEPHONE (714) 759-0141 January 29, 1990 RE: Claim for Personal Injuries Gov't Code Sect. 910, et seq. Gentlemen: MAILING ADDRESS: 2121 E. PACIFIC COAST HIGHWAY SUITE 280 CORONA DEL MAR, CALIFORNIA 92625 FAX (7141759-0788 The claimant below has retained this office to represent her regarding the following claim: CLAIM AGAINST PUBLIC ENTITY 1. Name, Address of Claimant: Irene Thomas 2. Address to Which Notices Should Be Sent: Frank J. Terreri, Attorney for Claimant 2121 E. Coast Highway, Suite 280 Corona del Mar, CA 92625 3. Date, Place, Other Circumstances of the Occurrence or Transaction which Gave Rise to the Claim(s) Asserted: On March 3, 1989, at approximately 3:00 pm, Walter Thomas was involved in an automobile accident on Newport Boulevard at or near its intersection with Old Irvine Boulevard in Tustin, California. Mr. Thomas was a pedestrian at said intersection and was struck by a car driven by Tracy Lynn Runyon. As a proximate resit of the injuries sustained in said accident, Walter Thomas died on or about November 10, 1989. City of Tustin January 29, 1990 Page 2 The City of Tustin was negligent in failing to have erected a controlled intersection at this location. In- formation to this time indicates that the City of'Tustin had definitely intended to erect a traffic signal at this intersection, and apparently was in the process of doing so for at least a three (3) month period but did not, in fact, erect the traffic signal until after the accident in question here. They had knowledge previous accidents had occurred here and that the intersection was "blind" and created a dangerous condition for vehicles and pedestrians. 4. General Description of the Injury, Damages or Loss incurred as it may -be known at*the time of presentation of this claim: Irene Thomas' damages are governed by the rules relating to loss of consortium and to loss of a loved husband, in- cluding, but not limited to, support, maintenance, loss of society, comfort, attention, funeral and burial expenses. 5. The Name or Names of the Public Employee or Employees Causing the Injury, Damages, Loss known to Claimant at this time: City of Tustin Orange County, California 6. The Amount Claimed as of Date of Presentation of the Claim, including the estimated Amount of any Prospective Injury, Damage, or Loss, insofar as it be known at Time of Presentation of the Claim, tocrether with the BAsis of Computation of the Amount Claimed: The amount claimed is sufficient to invoke the juris- diction of the Superior Court of the State of- California for an act or omission occurring -after 1/88. Gov't Code Sect. 910, 910.2. The within claim is presented according to the applicable provisions of the Gov't Code of the State of California. Please acknowledge receipt of this claim and act upon it in compliance with the law. City of Tustin January 29, 1990 Page 3 Cordially yours, FRANK J. TERRERI FJT:ls cc: Irene Thomas