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HomeMy WebLinkAboutCC 4 CLAIM #85-44 11-04-85OATE: lO/l'7/85 Inter-Corn TO: FROM: SUBJECT: HONORABLE ~3%YOR AND CITY COUNCIL// JAMES G. ROURKE, CITY ATTORNEY CLAIMANT: SCHROEDER, ERNEST WILLIAM; D/L: 3/15/84; DATE FILED W/CITY: 10/3/85; CLAIM NO: 85-44; CARL WARREN FILE NO: Unknown After investigation and review it is recommended that the above- referenced claim be rejected and the City Clerk directed to give proper notice of the rejection to the claimant and to the claimant's attorney. JGR(F4.se) Enclosure: Copy of Claim l 2 4 5 6 7 9 10 11 12 13 14 15 16 ~7 i9 2O 21 22 23 24 25 26 27 28 CLAIM FOR INDEMNITY AND CONTRIBUTION ERNEST WILLIAM SCNROEDER hereby makes claim against the City of Tustin, by way of indemnity and contribution: 1. Claimant's address is 2. Notices concerning the claim should be sent to Dimino & Card, Attorneys at Law, for Claimant, 1633 East Fourth Street, Suite 120, Santa Ana, California, at the attention Magdalena Lona-Wiant. 3. The date and place of the occurrence giving rise to this Claim was March 15, 1984, at the intersection of McFadden Avenue and Myrtle, in the City of Tustin, California. 4. The circumstances giving rise to the claim are such that the above-described intersection represents a dangerous condition of public property, thereby causing an automobile v. pedestrian accident. 5. On or about March 15, 1984, at or near the intersection of McFadden Avenue and Myrtle, in the City of Tustin, California, the City of Tustin, its agents, employees and contractors, and each of them, so recklessly, carelessly and negligentlY omitted and failed to provide adefluate warning signals, personnel, officers, markings, or other devices and safeguards, which it knew, or should have known, created an unreasonable risk of harm to the public and a dangerous condition, and said condition proximately caused the automobile versus pedestrian accident described above. The facts of the occurrence, and the dangerous condition of the aforesaid intersection are further set forth in Police Report ~84-02387, attached hereto as Exhibit "A". ! 2 3 4 5 6 7 $ 9 !0 11 12 !3 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 6. As a result of the aforementioned accident, an action entitled Kristie Fillippini, a minor by Kathleen Fillippini her Guardian Ad Litem; Kathleen Fillippini; Robert Charles Fillippini, v. Ernest William Schroeder; the City of Tustin, a municipal corporation; et al., Case No. 43-73-37, was filed on August 27, 1984, in the Orange County Superior Court. 7. Ernest William Schroeder was served with a copy of the Summons and Complaint by mail, on July 17, 1985.- Ah Acknowledge- ment of Receipt was signed on August l&, 198&. A copy of the Summons and Complaint and Acknowledgement of Receipt are attached hereto as Exhibits "B", "C" and "D", respectively. 8. Claimant's injuries are undetermined in tha~ this claim is based on indemnity. / DIMINO & CARD Ma~d~i cna ~na-Wi'a~ r -2- · . 'TUSTIN i'~LICE DE'r~J'-~T~ENT TRAFFIC COLLISION REPORT ,,- / o, ~/ [] t 5/731 ?-T.._ t,",-'"-. : A A A, TUSTIN P,..,LICE DEPA.~:TMENT TRAFFIC COLLISION REPORT .... "~ .... , o_ ', I I 3022 ,~U P PL E:~ LNT.I,L I .... ~{ SU?PLE~E~TAL I I ' ~EETC~ · N^,ERATIYE CONTINUATION I'~ I S~- c zs~7~ l S U M M O N S fc/7'4czo/v NOTICE TO DEFENDANT: (Aviso a Acusado) ER:!. ST WILLI~M $CHROEDER; the City of TUST!N, a municipal corporation; and DOES 1%hrcugh 100, inclusive, YOU ARE BEING SUED BY PLAINTIFF: (AUd. le est~ dern.~ndnndo) ;CRISTZE FILL!PPINi, a Minor, bv i~ATHLEEN FILLIPPINI her Guardian (kTHLEEN F!LLIPP!NI: ROBERT CHARLES ad '~'= ; FiLLi?P INI, You have 30 CALF, NDAR DAYS after this sum- mons is served on you to file a tyDewrirten re- sponse at this court. A Jerter or phone call wHI not Orotect you: your typewritten response must be in proper legal form if you wan~ the 'court tO hear your case. If you do not file your response on time, you may lose the case. and your wages, money and pro- party may be taken without further warning from ~he court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney refer- ral service or a legal aid office (listed in the phone book). Despu~s de qua le entre~,uen esta citaddn judicial usted tiene un plazo de 30 DIAS CALENDARIOS para presentar una respuesta escr~ta a m,~quina en esta cone. Una c,~na o un~ ]lamada tetef6nica no le ofrece~ ptotecd6n; su respuesta escrita a mdquina fiene que cumplir con las formaiidades legales apropladas si usted quiere quo la cone escuche su caso. Si usted no presenta su resouesta a tiempo, puede petder el caso, y le pu~en qultar su salar(o, su dinero y o~ cosas de su propiedad sin aviso adicional pot pane de la cone. Existen otro~ requisitos legales. Puede quo usted quie~ llamar a un abogado inmediatamente. 5i no conoco a un abo~do, puede llamat a un serwdo de referencia de abo~odos o a una ofidna de ayuda le~l (yea el dire~orio' leJe~6nico). The name and adCress of ~e court is: (£1 hombre y direcctdn de ia torte SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE ?00 Civic Center Orive West RD. Box 838 San[a Ana. CA E2702-0838 I~] hombre. I,] direccion y el nomero de fei~tOno del abo~ado RONALD W. CHP,!SLIP (714) 547-0!97 A=tcrney at Law 1505 N. Broadway Santa Aha, CA 92706 ' , ~.,-,.I ~U~ Clerk. by DATE: AUG 2 NOTICE TO THE PERSON SERVED: You are served 1. ; ,1 as an individual defendant 2. ', :, as me ~erson sued unaer the fic:i:rous name of l.~Oecl'/y): 3. ' i on behalf of uneer: : CC.: ,.;1~.i0 I:orcorauom I' t C~? 415.20 ~cefunc: corPoratiOn I._~i CT? 415.70 Ic:nservates~ i ' CC.= J, 18.90 :lnalvlCual) SUMMONS 2 3 4 5 6 7 9 I0 11 12 I3 14 I5 16 18 19 20 21 22 23 25 26 27 RONALD W. CHRISLIP A~o~ney at Law 1505 N. Broadway Santa Aha, CA 92706 (714) 547-0197 Attorney for P!ain~i£f FILED AUG 2 7 1~$4 LEE A. BRANCH. Coun,,'y Clerk By SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE K~ZSTIE FILLIPPINI, a Minor, by KATHLEEN FILLIPPINI her Guardian ad Litam; KATHLEEN F!LLIPPINI; ROBERT CHARLES FILLIPPiNI, vs. Plaintiffs, ~.RNEST WILLIAm4 SCHROEDER; the Ci:y of TUSTIN, a municipa! corpora%ion; and DOES 1 through 100, inclusive, Defendants. COM2LAINT FOR DAMAGES' (Negligence) FIRST ~ ~c~ ~AU_- OF ACTION Plaintiff, Y~RISTIE FILLIPPINI, through her guardian ad !item alleges as follows: 1. KATHLEEN FILLIPPINI and ROBERT CHA_RLES FILLiPPINI, are the parents of KRISTiE FILLIPPINI, who is their legitimaue unmarried minor child. For the purpose of this action, i~%THLEEN FILL!PPINI, was duly appoin~ad by the above-entiu!ed ccur5 on , and she is now the guardian ad li%em for said 3 $ 9 I0 I 14 15 I? 19 20 22 _~/ 2. Plain:iff is informed and believes and %hereon aile~es that defendant ERNEST WiLLi~_~ SCHROEDER, was and and now is, and at all times herein me;~tioned, a resident cf Orange County, California. 3. The true names or capacities, whether individual, corporate, associate or otherwise, of defendants ECE ! through DOE !00, inclusive, is unknown to plaintiff who sue said defendants by such ficmi:ious names; plaintiff is informed and believes, and thereon alleges, that each cf said defendants are negligently responsible in some manner for the occurrences herein alleged, and that plaintiff's injuries as herein alleged were proximately caused by said negligence. Plaintiff will amend this complaint if necessary to show their true names and capacities when the same have been ascertained. 4. At alt times herein mentioned, defendants DOE i through DOE 100, and each of the remaining defendants, were the agentst servants, and ~mptoyees of each of their co-defendants, and in doing the things hereinafter mentioned were acting within the scope ~f their authority as such agents, servants and employees, and with the permission, consent and knowledge cf their co-defendants. 5. Plaintiff is informed and believes and thereon alleges that at all times- herein mentioned defendants LRNEST ~iLLi~ SCHROEDER, and Does 1 through !0, and each cf them, were the legal owners of that certain 1964 Rolls Royce au%omcbiie bearing Ca!ilfornia license number ONCLDiC, ~hich was involved in the hereinafter described accident. 6. Plaintiff is informed and believes and thereon alleges ~h&t ac &!l times herein mentioned, '~ ~ ' ERNEST WiLLi~ SCHROEDER, and Does 1! ~hrough 20, we~= cperatinc ~' ~ =~ 1964 Rolls Royce vehicle a= the location hereinafter described, with the knowledge, permission and consent of the co-defendants, and each of them, and cf each other, when said vehicle was involved in the accident herein alleged. 7. At all times herein mentioned McFadden Ave. and Hyrt!e Street, were and are public streets and highways within Corporate limits of the C{tv_ . of" '' County of Orange, California. n_.a~n mentioned, oiain ''= ~R!£T~? FILLIPPINI was a pedestrian crossing McFadden Ave., in the of Tusin, Ca!ilfornia. 9. On or about March !5, !984 at cr near McFadden Ave., and Myrtle Street defendants, and each cf them, so recklessly, care!assly and neg!igen~!y owned, entrusted, managed, inspected, maintained, equipped, repaired, loaded, operated and connro!led their vehicle, so as to cause said vehicle to forcibly strike the minor plaintiff, proximately causing plaintiff to sustain the injuries and damages hereinafter alleged. 10. As a proximate result cf the conduct of %he defendanns, and each of them, plain%iff KRIS'fIE FILLiPP!NI has sustained =~ ~ and permanen~ physical and emotional injury =~ = has caused and will continue ~o cause mental, phys{c:~ and nervous pain and suffering; plaintiff is informed and and thereon alleges, that some of said injuries wi!! ~e cf a permanent nature, and wLl! --=' ~ in some ~ermanent ~<=:~ .... 5he minor ~_-~aint~r2, %ne ~:'.'~-~_ ..... nature and extent cf ',,'r~tch -re 1 2 5 7 8 9 0 1 2 3 5 7 $ 19 2O 21 22 23 24 25 2~ unknown ~o plaintiff, but all of which will entitle the plain:iff herein to general damages in a sum to be established according to proof. Il. As a further proximate result of the conduct of the defendants, and each of them, plaintiff was required to and did employ physicians, surgeons and hospitals to examine, treat and care for the minor plaintiff, and did incur, and will in the future incur, medical and other related expenses in connection therewith. The a>:act ~mount of such present and future expense is unknown to plaintiff at this time and therefore plaintiff ask leave uo prove and, if required by court, to amend this complaint to show the reasonable value of such medical services at the time of trial. 12. As a further proximabe result of the conduct cf the defendants, and each of them, plaintiff is informed and believes, and thereon alleges, that by reason of said injuries herein alleged, the minor plain%iff has suffered, and will in the future suffer, a loss of earning capacity. The exact amount cf such !css is unknown to p!ain%iff at this time, and therefore plaintiff ask leave uo prove and, if required by court, to ~mend this complaint tc show the reasonable value of such loss cf earning capaci5y at the time of trial. W~{EREFORE, olaintiffs prays for judgment against the defendants and each of them as hereinafter set forth. SECO~ID CAUSE OF ACTION For a Second Cause cf Ac=ion Plain=ills ~ATHL£EN F!LLiP?!~i and ROBERT' CH~=%LE£ FiLL!PP!Ni a!iages: !3. ?!ain~iffs hereby refer to paragraphs ! through !2, I '2 3 $ 8 9 lO I1 I'7 18 20 22 23 25 2~ 27 28 inclusive, of the Firs% Cause of Action and incorporates these paragraphs herein by this reference. 14. As a proximate of said injuries to K~ISTiE FiLLZP?INZ, plaintiffs have incurred expenses for medical and surgical attendance, hospital bills and nursing care of said child in that they were required to'and did amp!oy physicians, surgeons and examine, treat and care for her, and did incur, and will in %he future incur, medical and other related expanses in connection therewith. The exact amount of such present and future expense is unknown %0 plaintiffs at this time and therefore ~laintiff$ ask leave to prove and, if required by court, to amend this complaint to show the reasonable value of such medical services at the time of W~EREFOKE, plaintiffs prays for judgment against the defendants and each of them as hereinafter set forth. THirD CAUSE OF ACTION For a Third Cause of Action Plaintiffs alleges: 15. Plaintiffs hereby refer to paragraphs 1 through .12, inclusive, of the First Cause of Action and paragraphs 13 and !4, inclusive, cf %he Second Cause cf Acuion and incorporates these paragraphs herein by this reference. 16. At all times herein mentioned, defendan: CITY OF TUSTZN, was and is a municipal corporation existing under and by viruue of the laws of the Sta~e of California. 17. At all times herein mentioned, F~cFadden Ave. and Street were and are, public strea~s within the corporate of the CITY OF TUSTIN, County cf Orange, Suaze cf Ca!ifcrnia. 18. Au al! times herein mentioned, defenda~% CiTY CF 1 2 3 5 7 8 I0 I1 I2 13 14 17 I8 I9 20 21 22 23 24 25 2~ 27 its agents, servants and employees had ~he control and duty cf placement and maintenance cf proper, safe and visible warnings, traffic controls and lights, personnel, officers, visible road markings and crossing lane stripes cr other pro,active devices on its public streets and~...-~-~ .... ~nc., maintaining, reoairing, and keeping in a safe condition, the oublic streets and. highways within its corporate limits. 19. At all times herein mentioned, defendants 2! through ag_n~s or servants of the !00, inclusive, were employees, ~ ~ defendant CiTY OF' TUSTIN, .and in doing the things hereinafter described, acted within ~n_ course and scope of their agency or emp!o_vment. 20 At said time and olace, and D~o- thereto, defendants CITY OF TUSTiN, by and through its agents, servants and employees, while carrying on its duties, as hereinabove described, did so negligently and carelessly fail to post adequaue signals, signs, personnel, officers, markings or .Protective devices at or n=._a-~ the intersection of ~' ~= Ave. and M,;~t!e Stree~ to warn one coerating a motor v=hic~ cr pedestrian thereon of -~=~._ dangerous condition, atthou~h~ the condition endangered the safe movement cf pedestrain traffic and would not be reasonably apparent to, and ccuSd not be anticipated by, a person walking or traveling at said !ocs%ion, with reasonableca--=,~ in a ..... ~,~=,,._~ manner. 21. On March 15, ~984, and *~;c" thereto, Defendants Does _n~lu_~v_, within 5he scooe, of th=~ ~mD_O = ] ,;m_.~="'_ through !00, ~ ~ '=' '= ..... . . , do sc, failed to .... ~=~=~%.~ said intersection for ~he .Purpose. cf /// I 3 $ I0 11 12 I4 15 16 17 19 20 21 99 24 25 26 27 25 ae~_.m_n-ng whether ~h~ : .... -'-"' in a dangercus condition. 22. As a proximate result of the negligence and carelessness of defendant CITY OF TUSTIN, and DOES 21 through !00, inclusive, plain%iff ~R!STIE F!LLIPPINI was struck by that certain !964 Rolls Royce automobile, owned by defendants LRNEST WILL!~ SCHROEDER and DOES 1 through 10, inclusive, and operated by defendants LR~S. WILL!A~ SCEROEDER and DOES ll %brough 20, inclusive, while said vehicle was traveling eastbound cn McFadden Ave. in the vicinity of the intersec%ion of McFadden Ave. and Myrtle S~raets, said ccl!ision causing the plaintiff to be violently thrown to the ground and suffer the hereinabove described injuries and damages. 23. At all times herein mentioned, defendants, and eech cf them, had notice of the dangerous condition of the said intersection at said location in that said condition had exisled . ~_~_naan~$, in the exercise of du= care, for a long period and '~:= ' ~ ' - should have discovered the condition and it's dangerous character. 24. Defendants, and each of them, had the authority and ~he { =~{ -= ilable to them to have funds and other means _m.m___a._ly ava placed and maintained proper warnings, signals, signs, personnel, officers, markings cr other protective devices n_._ssa_~ :o warn of or prevent said dangerous condition. 25. On or abcu~ !.lay ~, ~984, plain:iff 5LRiSTiE duly presented ~o defendant CITY OF TUSTIN, a claim in the cf $!00,000.00 in c~=-~._.._.__ damaces, suec{:~. _ damaces, and ~.-=ec% injury unkno%'n an this %i~e, fer %he damages sou~n5 7 8 9 I0 ll 12 16 17 I8 19 20 22 23 24 25 26 27 25 A true and correct copy of ~he claim is attached hereto, marked ~xhibit "A" and incorporated herein by this reference. 26. On cr about,-.~aS-~said defendant rejected ~aid claim in it's entirety. WHEREFORE, plaintiffs pray judgment against defendants, and each of them, as follows: FOR THE FIRST CAUSE OF ACTION: For general damages according to proof; For medical and incidental expenses according to proof; For loss of earnings and earning capacity according to proof; 4. and 5. For costs cf suit and attorney's fees ln~u,_ed herein; For prejudgment interest pursuant to Civil Code Section 3291 at %he rate of tan (I0%) percen~per annum ct-an amount set by !aw. 6. For such other and further relief as the Court may deem just and proper. FOR THE SECOND CAUSE OF ACTION: 1. For general damages according 5o proof; For medical and incidental expenses acccrdin9 %0 proof; For costs of suit and attorney's fees incurred herein; and 4. For prejudgment interest pursuant ~o Civil Code Section 3291 at the rata of ten (10%) percent per annum cr an ~r. oun% set ~ mc- such o~h=? and further -=~ ;el as ~= Court -=" ~==- just and proper. 1 ? 8 9 I0 Il 12 13 14 I6 I7 I$ 19 20 2I 2o.2 23 24 25 FOR THE THZRD CAUSE OF AC~,ON: 1. For general damages according to proo,; For medical and incidental expenses' according to proof; For loss of earnings and earning capacity according to proof; 4. For costs of suit and attorney's fees incurred herein; 5. For prejudgment interest pursuant to Civil Code Section 329[ at the rata of ten by law. 6. For such other and further relief as the Court may deem just and proper. .D~D: July 31, ~ONALD W. CHR[SL[? Attorney for Plaintiffs 1 2 7 $ 10 11 14 i7 10 2O 0_2 2~ 2~ 27 2S 1505 N. ~ Santa Aha (714) 547 ~ - ,V ,'I .... CITY OF TUCmrN NOTICE OF CLAIM n=n~NST --- ~R!STIE MICHELLE FILLiP?INi, a minor, by and through her Attorney, RONALD W. CHRISLIP hereby presents her claim to the City cf Tustin pursuant to Section 910 cf the California Government Code. !. The name and post-office address of i~K!ST!E M!CHELLE FILLiPPIN! is as follows: 2. The post-office address to which claimant desire notices to be sent is as follows: RON~.=D W. CHRiSL!P Attorney at Law 1505 n. Broadway Santa .~J.a, CA 3. On or about biarch !5, 1984 at cr near ~cFadden Ave. and Myrtle Street, in the City of TustLn, Coun~-y of Orange, C~ ~;ornia, claimant ~=~ =' personal in~ --'== following cirum~trances: Ciaiman% a minor, was a pedestrian crossing ~='~ '~ ~-.=~sec=icn ~/iuh Mvr~ in ~' ~ c~'/ of ~"s':~ when she was s=ruck by a vehicle driven by Ernest ~,~i!!iam c~' ~-~'=~ thi~-ebv CZUStng her to sustain serious and 2 3 ? 8 ]0 ~2 ~3 ~8 20 2~ 22 25 2~ injuzies. Claimant is informed and believes %hat the sole or - .US~_N s contributing cause .c said accident was the CiTY OF failure to provide adequate warnings, signals, personnel, officers, markings, or other devices and safeguards at said place to allow for the safe movement of pedestrain traffic. 4. On or about said date at cr near the !ccation aforesaid, the City cf 'Tus%in, ~%s agents, employees, and contractors, and each of %hem, so recklesslyr carelessly and negligently omitted and failed to provide adequate warnings signals, p~rsonne!, officers, markings, cr other devices and safeguards, which knew, cr should have known, created unreasonable risk of harm and danger to perscnsr including claimant herein, crossing .the intersection at said location, and did proximat!ey cause injuries and damages to claimant as hereinafter alleged. 5. So far as it is known to AONALD W. CERISL!? at the date of filing this claim, the claimant has suffered injuries to =~ . ex~_n~ of which various parts of h_~ bodvr the extact nature and has not been fully ascertained at this time. 6. The names cf the employees causing said injuries are unknown to claimant a~ this time and are referred herein to as DOES i through 50, inclusive. 7. ~ the time cf orasentation of this ~ .._ _ c~a_m, K~ZSTZE MZCHELLE~r~rr~rxzm-~-z-,.~, claims damages in %he amount cf $!00,000.00 including a~mroximatalv SS0r0~0.00 dollars due to injury and damages, computed cn the basis of ~he following: Fuuure Medical ='.-D=nces; (c) Loss of earning capacity; {d) Pain and suffering, Dsvcho!cgica! and physical. 7 $ 10 i1 !2! 13 !5 17 15 2O 21 23 2~ 2'5 8. The undersigned, is %he au%orney for the aforesaid claimant and hereby present these claims on her behalf. Dated: kay 24, 1983 ,,. RONALD W. CHR~iP RC.L~LD W. CHKISLTP ( !~ 70441 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE P, O. ~OX 8"'8 700 CWIC ~NT~R DR. ~ANTA ANA, CA K?~STIE FILLIPPIN~ E~EST W. SCHROEDER NOTICE AND ACKNOWLaDGMENT OF RECEIPT c~,e ~u~:,~ 43- 73-37 TO: ER-N~ST W. $CHRO"-DER This summons anti other Oocurnent(`:) indicated below are being served ~ursuant to Section 41~.30 of the California CoOe ol Civil Procedure. Your failure to complete this form and return it to me within 20 rays may'suDject you (or the pa~ on whose DenaU you are Doing summons on you in any other manner permi~ed by If you are being served on behalf of a ocr:oration, unincorporated association (incl~ding.a pa~nership), or other entity, this form must be signed Dy you in the name of such entity or by a person authoriz--.cl to receive ':er,ice of process on behalf of such entity, in all other cases, this form must be signed by you personally or by a person authorized by you to acknowiectge receipt of summons. Section 415.30 provides that this summons anc~ other clocument(a) deemeci servec~ on the ~,ate you sign the Acknowledgment of Receipt below. U you return this form to me. ACKNOWLEDGMENT OF RECEIPT This acknowleCges recei:t of: ('To De completecl Dy sender before mailing) 1. ~ A cody of the summons and of the complaint. 2. ~'--~A copy ct the summons and of lhe Petition (Marriage) ancO: ! ~ Blank C~nfi~ential Counseling Statement (M~rriage) ['---]'Oroer to Show Cause (Marriage) ~ Blank Responsive Declaration ~ ~lank Financial Declaration L_~ Other: (Specify) NOTICE AND ACXNOWL---DG?/.--?~T OF RECE3PT