HomeMy WebLinkAboutCC 3 CLAIM #85-29 06-03-85~ ~ CONSENT CALENDAR
NO. 3
FILE NO: S39552GH
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
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To:
CLAIM FOE DAMAGES
City of Tustin
300 Centennial Way
Tus~in, California
B2~80
The claimant's name is B,J. McAdams, Inc.
The claiman= requests that ail notices concernin9
this claim be sent to his attorney, William.. W. SamDso,n,. . 22235
Pacific Coast Highway, Ma!ibu, California 90265, phone
213-456-5744.
3. The claimant was served with the Cc, molaint ir, the
case of John-David F. Rott~ eto.~ et al. v. James Mathias Nisson,
et mi. on or aDou~ March 2~, !B85. The Com~laint bears Orange
County Superior Court Case No. 45-35-35 and was f~led on March
18, !~85. The Com~iaint ai!eges that the Cit!j of Tustin has
previously been served with a claim ~resented D? each of the
three plaintiffs named in the aforementioned iawsuit. The
claiman~ herein is informed and beiieves that the Cit? of Tustin
is represented in ~efense of the aforementioned lawsuit by the
firm of EourKe & Woodruff. The underlyin9 accident 9ivin9 rise
to the Complaint against the City filed by the Eotts? (which
Complaint additionally named claimant herein as a defendant)
occurred on August 2~, !B84. The incident occurred at or near
the intersection of Eed Hill and Walnut in the City of lustin.
The claimant herein denies that he is liable for any
of the purported injuries suffered by any of the piaintiffs in
the aforementioned lawsuit. However, if the olaimant is found
liable to any or ali of said plaintiffs, the claimant is
entitled, ~ursuant to the case of American
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vs. Superior Court to complete ano/'or partial indemnification
from the City of Tustin due to the fact that public property
owned and maintained and controlled by the City of Tustin was in
a dangerous condition, thereby preventing the minor plaintiff
(John-David F. ~ott) From seein~ the oncoming traffic with which
he collided as more particularly alleged in the Complaint. A
copy of the Compiaint is attached ~ ~;liS claim for purpo~.e$ of
reference. The allegations of the Complaint alleging tortious
misfeasance and/or nonfeasance by the City of Tustin are
incorporated herein as thou9h fully set forth at length. The
claimant denies each and al! of the tortious allegations of the
Complaint against him.
4. Claimant does not know the names of the
employees who caused his injury.
5. If the claimant herein successfully Oefends against
the aforementioned Complaint~ the damages will consist or, iv of
his costs and his attorney,s fees, the amount of which c~nnot be
ascertained at this time. It is estimated, however, that such
costs and attorney's fees wiii be in the range of $10,000 -
$50~000. If the claimant herein is found liable to the ~laintiff
or plaintiffs, the claimant asserts that it is entitled ~o full
and/or partiai indemnity from the City of Tustin in .~n amount as
yet unascertained. The amount can be estimated only from
plaintiffs' statement of intended damages, filed March
in the Orange County Superior Court.. A copy of that statement is
at~ached hereto. The claimed compensatory dama9es total
$3,500,000; the claimed medical e×penses total $!90,000: the
claimed compensation for loss of earnings and earring
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total $800,000; the claimed compensation for
bicy¢ie is in the sum of $50.
~. The basis for computation of the damages is the
amount which may be awarded at trial against ~he defendants named
in the Rott lawsuit. The claimant herein asserts tha~ it is
entitled to fuji and/or partial indemnification and/or
contribution from the City of Tustin in the amoun~ fi.xed by the
trier of fa¢~ as damages against ail of ~he defendants. The
attorney's fees which will be sought in connection with the
indemnification action will be computed based upon a reasonable
hourly rate consistent with That charged for similmr services in
the community. The ciaimed costs will be computed on an out-of-
pocket basis.
This claim is signed on behalf of the olaiman~ by
his attorney, Wiiiiam W. Sampson.
DATED: May $, IB85
FilLLIAM W. SAMPSO~
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PROOF OF SERVICE
STATE OF CALIFORNIA~ COUNTY OF LOS
I am employed in the county of Los Angeles, State of
California. I am ouer the age of 18 and not a party to the
within action~ my business address is 22235 Pacific Co.ast
Highway, Malibu, CA 90265.
On May ~, 1~85 I served the foregoin9 document described'
ms Claim for Damages on the interested parties in this motion by
placin9 a true copy therof enclosed in a sealed envelope with
postage thereon fully prepaid in the United States mail at
Malibu, California addressed as follows:
City Clerk,
City of Tustin
300 Centennial W~y
Tustin~ California~2680
I declare under ~enalty of perjury under the laws of the State of
California that the above is true and correct. Executed on May
~, 1~85 at Malibu~ California.
Nori Zeliff
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JACK A. ROSE:
BAR NO. 3Z298
Plaintiff
· .qer/'AOZ BL*I,OW FOR FI'L,1NO flTAJfJ' ONI,T)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
JOHN:DAVID F. ROTT, a minor by and ) CASE "0.__4 ~ 35 ~5'
through his guardian ad lttem, JOHN )
J. ROTT; 'JOHN J. ROTT, individually; ) PLAINTIFFS' STATEMENT OF
MILDRED ROTT, individually, ) INTENDED DAHAGES
)
Plaintiffs, ).(C.C.P. Section 425.11)·
)
Ve
jAMES MATHIAS NISSON; CITY OF
TUST]N; B. J. McADAMS INC., a
California corporation; CLARENCE
MILTDN STANFIELD; and DOES 1
through $0, inclusive,
Defendants.
TO: 'ALL DEFENDANTS AND THE1R RESPECTIVE ATTORNEYS OF RECORD
Plaintiff, JOHN-DAVID F. ROTT, shall see the following:
l. General compensatory damages in the amount of $3,500,D00.
Compensation for medical expenses, both past and futUre,
in the amount of $1gO,O00.O0, or according to proof;
3~' Compensation for loss of earnings and earning capacity ir
the amount of $800,000.00;
4. Compensation for repairs to the plaintiff's bicycle in ti
sum of $50.00;
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5. Prejudgment interest as allowed by law; and
6. Costs of suit incurred herein.
Plaintiffs, JOHN J. ROTT and MILDRED ROTT shall seek the
following:
1. Compensation for all mdical and incidental expenses in th(
amount of $1go,o00.O0 or according to pro'of;
2. Prejudgment interest a's allowed by law; and
3. Costs of suit incurred herein.
DATED:~~
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jASiK A~ ROSE
A~. at
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(VERIFICATION -- 446. 201~.S C C. P.)
STATL OF CALIFORNIA. COUNTY OF
I declaee. ~ Immlty of ~r~uty. timt Me feee~elr~ ~ tn,e eeW coeeect.
PROOF OF SERVICE BY MAIL (1013e, 2015.5 C. C. P.)
STATE OF CALIFORNIA. COUNTY OF ORAN GE
I am ti rt$itImt al tie ~ty aforesaid: I am ~er tie age o/ei~htem ~.etl ~,d ~t a ~y to the ~tkio mJttle~ actlml: m~, bmiae~
520 N. Brookhurst ~102, Anaheim, CA. 92801
oo April 24 ~ 85..,~,,,.~,ie~,,~, RESPONSE TO REQUEST
FOR _~TATFMFNT
~, INTERESTED PARTIES
~ ~ o~. ~ ~,! a tree copy ~e,cof~clm~
o, ANAHEIM,iCALIFORNIA
CLIFFORD. R. CUNNINGHAM, ESQ., MAC LACHLAN,
West Sixth St. #355, Ontario, CA. 91762
WILLIAM W. SAMPSON, ATTORNEY AT LAW, 22235
Malibu, CA. 90265
BURFORD & ARIAS, 1131
Pacific Coast Highway
April 24, 1985 o,' Anaheim.
Ca) i forni a . ca./~.,~
t p rocel
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JACK A.
Bar No. 3~g8
PlaintiFfs
MAR A 8
__ Dcpt,r/
SIJPERIOR COURT OF TIlE STATE OF CALIFORNIA
FOR litE COUNTY OF ORANGE
453535
JOtIN-DAVID F. ROTT, a minor by )
and through his guardian ad litem, )
JONN J. Rf)TT; JOilN J. ROI'T, i ndiv- )
idually; MILDRED ROTT, individually,}
)
Plaintiffs,
)
)
JAMES MATNIAS NISSON; CITY OF }
TUSTIN; B. J. McADAMS INC., a )
California corporation; CLARENCE )
MILTON SlANFIELD; and DOES l' )
through 50, inclusive, )
)
Defendants. )
)
CASE NO.
COMPLAINT FOR PERSONAL INJURY
FIRS1 CAUSE OF ACTION
As and for a for a first cause of action, plaintiffs allege as
follows:.
1'. The true names or capacities, wt~ether individual, 'corporate
associate, or otherwise of defendants DOE 1 through DOE 50, and earl
of them,'are Unknown to the plaintiffs, who therefore sue said
defendants by such fictitious names and will ask leave to amend thi~
complaint to show their true names and capacities when same have
been ascertained.
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g. At al1 times ,,enLioned t, erein, each of the defendants was
the agent an'd employee of each of the remaining defendants, and was
at all times herein mentioned, acting within the purpose, scope, an.
furtherance of said agency and employment; each'of the.defendants
was negligently and carelessly selected and chosen by each of the
remaining defendants and that each and ever), defendant, as aforesai.
when acting as a principal, was' neligent in the selection and htrtn.
and training of each and every other defendant as an agent, servant
employee, assistant and consultant.
3. Det~endant, B. d. McADAMS INC., is and was at all times
me~tioned herein, a corporaLion, duly organized and existtng under
and by virtue of the laws of the State of California, and authorize
to do and engaged in. doing business in the State o'f California with
a arincipal place of bustness tn Los Angeles County.
4. For the purpose of this action, dOHN J. ROTT was appointed
:y the above-entitled co,art, and now is the guardian ad 1item of
the p]aintiff', dOIIN-DAVID F. ROTT, a minor who was born on Januar.v
1970.
5. At all times mentioned herein, the defendant, CITY OF
TUSTIN was, and is, a municipal corporation organized and existing
under the laws of the State of California.
6. O, or about December 3, lgB4, plaintiffs,' JOHN-DAVID F.
I~t)l'T, JOIIfl J. ROTT and MILDRED ROTT, duly presented to the defendan
CITY OF IUSTIN ~ claim in writing for the damages sought in this
action. Dn or about January 17, 1985, defendant CITY OF TUSTIN
rejected the plaintiffs' claims in their entirety by operation of
law.
7. At all times mentioned herein, the defendants, B. J. McADA
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INC., a California corporation and CLARENCE MILTON STANFIELD and
DOES 1 through 50, and each of them, were owners of a lg83-.Kenworth
truck, California License No. AP42771, hereinafter referred to in
this complaint as the Kenworth.
B. At all times mentioned herein, defendant STANFI£L.D, and
each of the defendants, was driving' the aforesaid Kenworth motor
vehicle with the consent and permission and knowledge of each of
the other defendants herein.
g. At all times mentioned herein, defendant JAMES MATHIAS
NISSON is the owner of real 'property and acreage located genera.liy
at the northeast corner of the i.tersection of Red Hill Avenue and
Walnut Avenue in the City of Tustin, County of Orange, State of
California. The common street address is 14462 Red Hill Avenue,
TuS~tin, California a,d more particularily described as:
"Commencing at the most Westerly corner of Lot
Forty-six, as shown on Plat One of the Subdivision
of the Ranchos San~tlago de Santa Aha and San
Joaquin, recorded in Book 5, page 7 of Miscellaneous
Records of Los Angeles County, California; running
thence North-40° East, 330 feet; thence South 50o
East, 253 feet; thence South 40o West, 330 feet to
the Southwesterly line of said Lot 46, and thence
North 50o West, 253 feet to the point of beginning."
Said deed'being recorded as Document No. 85610, in Book 3957, page
472on 6/28/57 in'.the official Books and Records of the Orange County
recorders office.
10. At all times mentioned herein, Red Hill Avenue and Walnut
Avenue are public streets in the City of lrvine and adjacent to and
immediately contiguous to the above-described real property and
acreage thereon.
ll. At all times mentioned herein, Red Ilill Avenue and Walnut
Avenue were public streets and highways and public bike pathways in
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the City of Tustin, County of Orange, State of California; and Said
)ublic streets, highways a~d public bikeways were immediately
contiguous and immediately adjacent to the real property, above
described in paragraph No. g. Said real property'and Said public
streets, highways and bikeways did contain thereon overgrown shrub-
beries, trees, and vegetation, wi)ich encroached upon aforesaid real
)roperty, described in paragral~h No. g, and upon the public streets
highways, and bikeways at the northwest corner of Red.Hill and
Walnut. Said vegetation did span and was located on both sides of
the property line of aforesaid real property and the public bikeway
and public roads and streets.
12. Plaintiff is in doubt as to the person, or defendan-~, fro~
wi)om he (or she) is entitled to redress, with the intent that the
question as t'o which, if any, of the defendants, or each of them,
is liable, and to what extent, and therefore, joins all these
defendants under CCP Section 379.
13. On Au.(lust 29, 1984, and for many years prior thereto,
defendant CITY OF TUSTIN and defendant JAMES MATHIAS NISSON and
)OES 1 through 50, and each of them, owned, maintained, controlled,
planted, cultivated, trimmed and failed to trim the northwest cornel
of Red tlill and'-Walnut and the property inm~ediately contiguous to
tho. northwest corner, so Chat the shrubbery, the trees and vegeta-
tion on tile property of both the CITY OF TUSTIN and the other
defendants, obscured the bikeway, the public way and the public
road from the view of the drivers of bicycles and the drivers of
motor vehicles on the intersecting streets, so that drivers of
motor vehicles and bicycles coming from all directions could not se
automobiles and bikes coming through, about and near the northwest
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corner of Red Iltll and Walnut.
14. The defendant CITY OF TUSTIN and defendant dAMES..MATItIAS
NISSON and DOES 1 ti)rough 50, and each of them, had actual knowledg,
of the existence of the condition, or knew or should have known by
exercise of reasonable inspection of the dangerous character a
sufficient time prior to August 29,.1984, to have measures taken to
)rotect agai,st this dangerous'.condition of tile vegetation, shrubbe
and trees. Both tile CITY OF TUSTIN and dAMES MATI41AS NISSON had
tile authority, the finances and it was their responsibility to take
adequate measures tu protect against the dangerous conditions and
the funds were available to remedy this vegetation, trees-and
shrubbery condition at the northwest corner of Red Hill and Walnut.
15. On or about Aug~st 2g, 1984, at approximately 6:40 p.m.
th~.minor plaintiff, JOIIN-DAVID F. ROTT was operating his bicycle
in a generally northern path along the public bikeway, contiguous
to the intersection of Red Hill and Walnut in the City of Tustin.
Said bike~.~ay and streets are public ways. At said time and place,
tile. defendants B. J. McADAMS INC. and CLARENCE MILTON STANFIELD and
DOES 1 through 50 and each of them, were operating their said
Kenworth truck along and upon Red Hill in a northernly fashion,
immediately cont. iguous to the bikeway, at or near its intersection
with Red Hill, and the defendant,' CITY OF TUSTIN, and JAM~S MATHIAS
NISSON, a,d DOES 1 through 50 and each of them, had so carelessly
and negligently ,maintained the dangerous condition of treesj vege-
tation and shrubbery at this intersection and bikeway, that the
)laintiff JOHN-DAVID ROTI, was as a direct and proximate cause of.
the dangerous and negligent condition of the vegetation at aforesai,
intersection and by virtue of the negligent entrustment, management
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operation and driving of the truck, so as a direct and proximate
result he was struck by the truck. $o as to proximately cause the
hereinafter described i.juries and damages to the minor plaintiff.
16. As a d'irect, proximate result of the negligence, acts and
omissions of the defendants and each of them, plaintiff, was injured
in his health, strength, and activity, sustaining injury to his
body and shock ant) injury to his .ervous system and person, all of
which injuries have caused and continue to cause the plaintiff
great mental, physical and nervous pain and suffering. These
injuries will result in permanent disability to plaintiff, all to
))is general damage per CCP Section 425.10 in an amount to exceed
$15,000.00.
17. As' a further direct and proximate result of the said
ne~qigence, acts ~.d om(ssions of defendants, and each of them, the
plaintiff was ~'equired to, and did, and will in the future, emploY
ph½sicians, nurses, technicians, hospital facilities, and special
trained persons to supply care and services; and did, and wi]l in
the future, incur medical and incidental expenses for such care and
services. The exact amount of such expef~ses are unknown at the
present ti~e and the pla)ntiff shall seek leave to amend his pleadi,
to set Forth the, exact amount when same have been ascertained.
)8. As a further direct and proximate result of said negligen,
acts and omissions of the defendants, and each of them, plaintiff
was prevented from attending to his usual occupation, and has
tained loss of earnings and will usstain loss of future earnings ~n
earning capacity in'an amount at the present tim~ unknown, and
therefore asks leave to prove, and if requ(red by the court, to
amend this complain~ to show the exact loss of earnings up to the
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time of trial.
19. As a further direct and proximate result of said.,negligen,
acts and omissio.s of the defendants, and each of them, plaintiff's
bicycle was damaged to such an extent that repairs were necessary
and the reaso.able cost of said repairs being $50.00.
2D. Plaintiff further alleges that he is entitled to prejudg-
ment interest pursua.t to law because of damages resulting from the
negligence, acts and omissio,~s of defendants, and each of them, in
an amount to be determined at the time of trial in this matter.
SECDND CAUSE OF ACTIDN
As and for a second cause of action the minor plaintiff, JOHN-
DAVID ROTT, al leges as follows:
21. Tile minor plaintiff incorporates by reference herein each
anc~ every allegation of the first cause of action.
22. On or about August 29, 1984, and for'many years prior
thereto, tile defenda.t CITY OF TUSTIN, owned, maintained and contro
]ed the public streets and bikeways immediately contiguous to the
northwest i.tersection of Red )lill and Walnut in the City of Tusttn
County of Drange. Said public property was immediately contiguous
and adjac~lt to the real property at the northwest corner of Red
Hill and Walnut,. owned, maintained and controlled by JAMES MATI41AS
NISSON and DOES 1 through 50, and each of them.
23. On or ab'out August 29, 1984 and prior thereto, the above-
described public property was in a dangerous condition that created
a substantial risk of the type of injury liereinafter alleged when
the property was used with due care in tile manner it was reasonab.ly
foreseeable, in that the vegetation, shrubbery and trees on both th
property of the CITY DF TUSTIN and the property of JAMES MATHIAS
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NISSON and DOES 1 through 50, and each of them, so obscured the pub
bikeway, located adjacent to and immediately contiguous to. aforesai
property, and said trees, shrubbery and vegetation also obsured the
intersection from the view of drivers of the intersecting streets,
so the drivers could not see a bike using said bikeway.
24. The defendants CITY OF TUSllN and JAMES MATHtAS N1SSON
and DOES 1 through 50, and each of tilem, had actual knowledge of th
condition, or. reasonably knew or should have known of.its dangerous
characber a sufficient time prior to August 29, lg84, to have
taken measures to protect against the dangerous condition, by simpl'
removing, trimming or cutting the vegetation and shrubbery. The'
defendant CITY DF TUSTIN and JAMES MATtlIAS NISSON and DOES 1 throug
50, and each of ti~em, had tile authority and it was their responsi-
bility and had the finances to take adequate measures to protect
against the dangerous condition with the expenditure of public fund
which were immediately avail,able to them for that use or by private
funds.
25. On or about August 29, 1984, the minor plaintiff, JOHN-
DAVID F. ROTT, was driving his bicycle, approaching the intersectio
of Red Hill and Walnut, adjacent to and contiguous to the real
~roperty and owned by CITY OF TUSTIN and JAMES MATHIAS NISSO)t &nd
DOES 1 through 50, and each of them, and as a direct and proximate
result of the dangerous condition of the intersection, when the
minor plaintiff e~mtered the bikeway located in the intersection,
the minor plaintiff was struck by a truck driven by CLARENCE MILTOI~
STANFIELD, who could not see the minor plaintiff because of the
shrubbery and vegetation and did not stop because said plaintiff wa
obscured, causing injury to the plaintiff.
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26. Aforesaid shrubbery, trees and vegetation obscuring and
impeding the p~th and progress of bicyclists on the bikeway.,
constitutes a dangerous condition and ~id proximately and directly
cause the bicyclist to veer into Red )(ill Avenue, 'immediately
contiguous to the dangerous condition of the property.
~TIII_RD CAUSE OF ACTION
As and for a third ca~se of action, JOHN J. ROTT and MILDRED
ROTT allege as follows:
27. Plaintiffs incorporate by reference each and every
allegation in the first and second causes of action as though fully
set forth herein.'
2B. Plaintiffs JOHN J. ROTT and MILDRED ROTT were formerly
husband and wife and are now divorced. Plaintiff JOIIN J. ROTT is
the father, and MILDRED ROTT is the mother of the minor plaintiff
JOIIN-DAVID FRANKLIN ROTT, born on January 28, l'g70. As a direct
a~ld proximate result of the ~egligence, acts and omissions and the
dangeruus condition of both public and private property, tile
plaintiffs, JOilN J. ROTT and MILDRED ROTT have been obligated to
supply and have incurred indebtedness for the medical and nursing
care, rehabili.tation care and special care, education and treatment
of their minor s. pn, JOHN-DAVID F. ROTI, to their damages in the
amount of approximately $190,000. Tile exact amount of such expense:
are unk)~own at such time and the plaintiffs, JOHN and MILDRED ROTT
seek leave to amend their pleading to set forth the exact amount
when same have been ascertained.
WIIEREFORE, minor plaintiff JOHN-DAVID F. ROTT I~rays for judgmel
as and against the defendants, and each of them, as follows:
1. For general damages per CCP Section 425.10 in an amount t,
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exceed $15,000.00;
2.
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proof;
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For all medical and incidental expenses accordingl.to proof
For all loss of earnings and earning capacity according to
For repairs to tile plaintiff's bicycle in the sum of $50.0~
For prejudgment interest as allowed by law;
For costs of suit incurred herein; and
For such other and further relief as the Court may deem
; 2.
3.
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just and proper.
DATED: ~(l~! ~5
just and proper.
WIIEREFDRE plaintiffs JOHI~ J. RDTT and MILDRED ROTT pray for
judgment as a~d against the defendants, and each of them, as follow.
1. For all n~edical and incidental expenses in the amount of
$190,000.00 or according to proof;
For Prejudgment interest as allowed by law;
For costs of suit incurred herein; and
For such other and further relief as the Court may deem
r Plaintiffs.
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