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Home My WebLink About06 PRESENT LATE CLAIM 08-04-03AGENDA REPORT Agenda Item Reviewed: City Manager Finance Director MEETING DATE: TO: FROM: SUBJECT: AUGUST 4, 2003 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL LOIS JEFFREY, CITY ATTORNEY APPLICATION TO PRESENT LATE CLAIM BY JULIO AHUMADA, A MINOR, AND/OR MARIA ELENA ALVAREZ AND GUADALUPE AHUMADA (PARENTS OF JULIO AHUMADA) AS GUARDIANS AD LIT£M FOR JULIO AHUMADA, A MINOR SUMMARY: The City Attorney and Application. City's Claims Administrator are recommending denial of the RECOMMENDATION: After investigation and review by this office and by the City's Claims Administrator, it is recommended that the application for permission to file the late claim be denied and that notice thereof be sent to the claimant's guardians ad litem and attorneys. BACKGROUND: The incident giving rise to the application occurred on July 25, 2002. However, the application for permission to file the late claim was not made until July 16, 2003, nearly one year later. At the time of the incident, the claimant minor was a teenager, at least sixteen years old. An application for permission to file a late claim must be presented within a "reasonable time" not to exceed one year after the accrual of a cause of action and shall state the reason for the delay in presenting the claim. In this case, there is no evidence in the application that would allow the council to conclude that the delay in filing the claim is not attributable to the minor himself. Hernandez v. County of Los Angeles (42 C.3d 1020, (1986). The issue here is whether the minor acted diligently in seeking relief from his failure to cause a claim to be filed within six months of July 25, 2002. We dote that the attorneys for the claimant also rely on the Hernandez case, but in that case the minor claimant was an infant. FISCAL IMPACT: None. ATTACHMENTS: Application to Present Late Claim cc: William A. Huston, City Manager 172087.1 KENT M HENDERSON THOMAS A. 9RILL MIGUEL G, CABALLERO JOHN L, de LEON*' RAYMOND E BROWN * LEON C, SUMMER DOUGLAS A GESSELL JESOB J TORRES 'CA & AZ RONALD Z GOMEZ, J,D, LAW OFFICES OF FEDERICO CASTELAN SAYRE 900 N. BROADWAY 4TM FLOOR SANTA ANA, CALIFORNIA 92701 TELEPHONE (714) 550-9117 TELEPHONE (949) 721-0221 FACSIMILE (949) 721-8910 FACSIMILE (714) 550-9125 sayreesq~ sayre-law.corn FERNANDO F. CHAVEZ 1530 THE ALAMEDA, SUITE 301 SAN JOSE, CALIFORN)A 95126 July 16, 2003 Steven Foster Chief of Police Tustin Police Department 300 Centennial Way Tustin, CA 92780 HANDDELIVERY City Clerk City of Tustin 300 Centennial Way Tustin, Ca. 92780 Re: APPLICATION TO PRESENT LATE CLAIM OF GOVERNMENT CLAIM (PURSUANT TO CALIFORNIA GOVERNMENT CODE~ SECTION 905, et seq.) Claimants: Julio Ahumda, a minor and /or Maria Eiena Alvarez and Guadelupe Ahumada (Parents of Julio Ahumada) as guardians ad litem for Julio Ahumada, a minor. Dear Sir/Madam: The claimants herein present this Application to Present Late Claim, pm'suant to California Government Code 911.4, 9t5, and 905, et. seq. h~ support of this Application being granted claimant (and/or his parents on his behalf) assert he was a minor at the time of incident giving rise to the claim and at all times during the pertinent 180 day period as would other wise be required under Govenunent Code Section 911.2 al~d through the filing of this instant application (claimant Julio Ahumada's date of birth is March 3, h\Docs~AHUMADA, JULIO\Corres~Apliicaiton for LeaveO71503,doc LAW OFFICES OF FEDERICO CASTELAN SAYRE 1986). Section 911.6(2) specifically states the Board "shall grant the application where one or more of the following is applicable:... (2) The person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim." Furthermore, the minor claimant was incarcerated by the government during the entire six months subsequent to the incident that gave rise to the current claim. This claim is presented within the one-year statutory limit of presenting the claim. Any and all reasons relating to the presentation of this claim beyond the six-month time period called for in Section 911.2 cannot be attributed to the minor claimant. The California Supreme Court over ten years ago in Hernandez v. City of Los Angeles, 23 Cal.Rptr. 519 (1986) held: "Accordingly, we conclude that because (1) plaintiff's late-claim application was filed within one year of the accrual of his cause of action, (2) plaintiff was a minor for the entire one hundred-day claim period, and (3) any delay in filing the late-claim application was clearly not attributable to any lack of diligence on the part of the minor himself, the county was under an obligation to accept the late claim under section 911.6 and the trial court erred in refusing to enter an order pursuant to section 946.6 relieving plaintiff from the provisions of section 945.4." Here, Julio Ahumada, the minor claimant, was a minor during the entire six-month period subsequent to the incident giving rise to the claim and was incarcerated by the government. This claim is now presented within a one year period of the shooting that gave rise to this claim and therefore this application should be granted. Attached to this application, pursuant to Section 911.4(b) of the Government Code, is the Claim for damages in connection to the incident that gave rise to the attached claim. Please notify undersigned counsel at your earliest convenience of its action on claimants application to present late claim. NAME AND ADDRESS OF CLAIMANTS: Julio Ahumada, (a minor) Address: 216 E. Stanford, Santa Ana, CA 92707 D.O.B: 3/6/1986 Soc. Sec.No. 554-93-2637 h\DocsXAHUMADA, JULIO\Corres~Apllicaiton for Leave071503.doc LAW OFFICES OF FEDERICO CASTELAN SAYRE Parents: Father: D.O.B: S.S.N: Mother: D.O.B: S.S.N. Guadalupe Ahumada, 216 E. Stanford St., Santa Ana, CA 92707 12/12/1945 548-33-2109 Maria Elena Alvarez, 226 E. Stanford St., Santa Aha, CA 92707 08/10/1950 621-01-3245 As guardians ad litem for Julio Ahumada, a minor. DATE OF INCIDENT: July 25, 2002 PLACE OF INCIDENT: The location of the shooting ofJulio Ahumada by the Tustin Police Depamnent was in the vicinity of Red Hill Road and South of Bryan in Tustin, California. MAILING ADDRESS: FEDERICO C. SAYRE, ESQ. LAW OFFICES OF FEDERICO CASTELAN SAYRE 900 N. Broadway, 7th Floor Santa Ana, CA 92701 Very truly yours, LAW OFFICES OF SAYRE & CHAVEZ By: h\Docs~AHUMADA, JULIO\Corres~Apllicaiton for Leave071503.doc 9 10 11 12 13 14 15 16 17 18 t9 2O 21 22 23 24 25 26 27 28 PROOF OF SERVICE State of California ) County of Orange ) I am employed in the County of Orange, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 900 N. Broadway, 4th Floor, Santa Ana, California 92701. On July 16, 2003, I served the foregoing document, entitled APPLICATION TO PRESENT LATE CLAIM OF GOVERNMENT CLAIM on the interested parties to this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST [ ] BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Aha, California, in the ordinary court of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ ] BY FEDERAL EXPRESS: I am "readily familiar" with the firm's practice of collection and processing correspondence for overnight delivery. Under that practice it would be deposited with the express service carrier on that same day, in an envelope or package designated by the express service carrier with delivery fees provided for, at Santa Ana, California, in the ordinary course of business. [X] BY PERSONAL SERVICE: I delivered such envelope(s) by hand to the office of the addressee(s). [ ] BY FAX: I transmitted the foregoing document by facsimile transmission from (949) 721-8910 to the facsimile numbers indicated on the attached mailing list. The transmission was reported as complete and without error on the transmission report which was properly issued by the transmitting facsimile machine. [ ] FEDERAL:I declare under penalty of perjury that I am employed in the office of a member of the bar of this Court at whose direction the service was made. IX] STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. EXECUTED on July 16, 2003, at Santa Ana, California. Law Offices of: Federico Castelan Sayre 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Law Offices o~ Federico Castelan Sayre Client No: S1766 Steven Foster Chief of Police Tustin Police Department 300 Centennial Way Tustin, California 92780 City Clerk Tustin City Hall 300 Centennial Way Tustin, California