HomeMy WebLinkAboutCC 4 CLAIM #85-28 06-03-85A ~ ~m ~lkl r~ A ~ CONSENT CALENDAR
· _~.~_~ NO. 4
T0: ~LE MAYOR AND CITY COUNCIL
FROH:
S UBJ ECT:
JAMES G. ROURKE, CITY ATTORNEY
CLAIMANT: CLARENCE MILTON STANFIELD; D/L: 8/29/84;
DATE FILED W/CITY: 5/10/85; CLAIM NO: 85-28; CARL
WARREN 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 (F 4. se )
Enclosure:
Copy of Claim
1
2
3
5
.6
7
8
9
10
11
12
13
14.
15
16
i7
18
19
20
21
22
23
24.
25
26
27
28
To:
CLAIM FOP, DAMAGES
City of Tustin
300 Centennial Way
Tustin, California
~2680
The claimant's name is Clarence Milton Stanfield.
The claimant requests that al! notices concernin9
this claim be sent to his attorney, William W. SamDso.n, 22235
Pacific Coast Highway, Malibu, California ~02~57 phone
3. The claimant was served with the Complaint in the
case of John-David F. Eott, etc., et al. ,..). James. Mathias Nisson,
et mi. on or about April %~, %D85. The Comolaint bears 0ranDe
County Superior Court Case No. 45-25-35 and was filed on March
18, i~85. The Complaint alleges that the Cit~ of Tustin Mas
previously been served with a ciaim presented by each of the
three plaintiffs named in the aforementioned lawsuit. The
claimant herein is informed and beiieues that the City of Tus. tin
is re'presented in defense of the aforementioned lawsuit by ~he
firm of RourKe & Woodruff. The underiyin~ accident givin~ rise
to the Complaint against the City flied by the Rotts, (which
ComDiain~ a~ditionally named claimant herein as a defendant)
occurred on August 2~ 1984. The incident occurred at or near
the intersection of Red Hili and Walnut in the City of Tustin.
The claimant herein denies that he is liable for any
of the purporzed injuries suffered by any of the plaintiffs in
the aforemen~ior, ed iawsui~. However, if the ciaiman~ is found
liabie to any or ali of said plaintiffs, the aZaimant is
entitied, pursuant to the case of American Mot¢,rc,..,cle As~.¢,ciation
1
2
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
v~.. Superior Court to complete and/or partial indemnification
from the City of Tustin due to the fact that public property
owned and maintained ann controlled by The City if Tustir, w.as in
a dangerous condition, thereb? preventing the minor plaintiff
(John-David F. Aott) from seeing the oncoming traffic with which
he collided as more particularly aiieged in the Complaint. A
copy of the Complaint is attached to this claim for purposes of
reference. The allegations of the Complaint alleging tortious
misfeasance and/or nonfeasance by The City of Tustin are
incorporated herein as though full? set forth at iength. The
cimimant denies each and all of the tortious ailegmtions of the
Complaint agminst him.
4. Claimant does not Know the names of ~he pub!lc
employees who caused his injury.
5. If the c!aimant herein su¢cessfuii? defends agains~
the aforementioned Complaint, the dmmages wiii consis, t chi? of
his costs and his attorney's fees, the amount of which cannot be
ascertained mt this time. It is estimmted, however, that such
costs ~nd attorney's fees wiii be in the range of $10,000 -
$50,000. If the claimant herein is found iim~ie to the olaintiff
or p!aintiffs, the claimant asserts ~hat it is entitied to fuji
and/or partial indemnity from the Cit? of Tus~in in an amount as
yet unascertained. The amount can be estimated c, nly from
' plmintiffs' stmtement of intended damages, filed March 18, 1985,
in the Orange County Superior Court. A copy of that statement is
attached hereto. The claimed compens&tory damages totai
$3,500,000; the claimed medical expenses totai $!90,O00; the
claimed compensation for loss of emrnings and earning o~om~it?
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
total $800,000; the claimed compensation for repairs
bicycle is in the sum of $50.
~. The basis for computation of the damages is the
amount which may be awarded at trial against the defendants named
in The Rott lawsuit. The claimant herein asserts that it is
entitled to full and/or partial indemnification and/or
contribution from the City of Tustin in the amount fi.xed by the
t~ier of fact as damages against ail of the defendants. The
attorney's fees which will be sought in connection wi~h the
indemnification action wiii be computed based upon a reasonable
hourly rate consistent with that charged for similar seruices in
the community. The claimed costs will be computed on an out-of-
pocket basis.
This claim is signed on behalf of' ~he claimant by
his attorney, Wiiiiam W. Sampson.
DATED: May 8, 1985
WILLIAM W. SAMPSON
1
2
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
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the county of Los Angeles, State of
California. I am over the age of 18 and not a party ~o the
within action; my business address is 22235 Pacific Coast
Highway, Malibu, CA 90265.
On May ~, 1985 I served the foregoing document described
as Claim for Damages on the interested parties in this action by
placing a true copy therof enclosed in a sealed envelope with
postage thereon fui. ly prepaid in the United States mail at
Ma£ibu, California addressed as follows:
City Clerk,
City o? Tustin
300 Centennial Way
Tustin, California ~2G80
I declare under penal~y of perjury under the laws of the Sta~e of
California that the above is true and correct. Executed on Ma?
~, 1985 at Malibu, California.
Nori Zeliff
1
4
5
6
7
8
9
10
11
12
15
14
15
16
17
18
19
'20
21
22
23
24
25
25
27
28
JACK A.
BAR NO. 3Z298
Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFOR. NIA
FOR THE COUNTY OF ORANGE
JOHN-DAVID F. ROTT, a minor by and ) CASE NO. J 5 35 35
through his guardian ad litem, JOHN ) --
J. ROTT; .JOHN J. ROTT, individually; ) PLAINTIFFS' STATEMENT OF
MILDRED ROTT, individually, ) INTENDED DAMAGES
)
Plaintiffs, ).(C.C..P. Section 425.11}
)
JAMES MATHIAS NISSON; CITY OF
TUSTIN; B. J. McADAMS INC., a
California corporation; CLARENCE
MILTON STANFIELD; and DOES 1
through 50, inclusive,
Defendants.
TO: ALL DEFENDANTS AND THEIR RESPECTIVE ATTORNEYS OF RECORD
Plaintiff, JOHN-DAVID F. ROTT, shall see the following:
1. General compensatory damages in the amount of $3,500,D00,
2. Compensation for medical expenses, both past and future,
in the amount of $190,000.00, or according to proof;
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;
-1-
10
11
12
15
14
15
16
17
18
19
2O
21
22
25
24
25
26
27
28
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 $190,D00.00 or according to proof;
2. Prejudgment interest a's allowed by law; and
3. Costs of suit incurred herein.
DATED: ' 5));-1%~
j~ROSE
A . at Law
-2-
i
4
§
6
?
9
10
11
12
15
14
15
16
17
18
19
20
21
22
2~
24
25
26
27
28
.JACK A. ROSE
AI"rORN~I' AT LAW
iBar No. 32298
,ttu,r~,.~ ~,,r Plainti ffs
IgOR /~I,INO STAM~ OHL,T)
MAR 1 D
~;i-, ..... )l, (j~ Url[y Clerk
Dcpul't
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR TIlE COUNTY OF ORANGE
453535
JOHN-DAVID F. ROTT, a minor by )
and through his guardian ad litem, )
JOHN J. ROTT; JOHN d. ROTT, indiv- )
idually; MILDRED ROTT, individuallyJ
Plaintiffs,
CASE NO.
COMPLAINT FOR PERSONAL INJURY
JAMES MATHIAS NISSON; CITY OF
TUSTIN; B. J. McADAMS INC., a
California corporation; CLARENCE
MILTON STANFIELD; and DOES 1
through 50, inclusive,
Defendants.
FIRSI CAUSE OF ACTION
As and for a for a first cause of action, plaintiffs allege as
follows.:
]'. The true names or capacities, whether individual, 'corporatt
associate, or otherwise of defendants DOE 1 through DOE 50, and eact
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.
-1-
1
2
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
2].
24
25
26
2. At all ti,,,es mentioned I~erein, each of the defendants was
the agent an'd employee of each of the remaining defendants, and was
at ail 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 every defendant, as aforesai.
when acting as a principal, was neligent in the selection and hirin,
and training of each and every other defendant as an. agent, servant
employee, assistant and consultant.
3. Defendant, B. J. McADAMS INC., is and was at all times.
mentioned herein, a corporation, duly organized and existing under
and by virtue of the laws of the State of California, and authorize
to do and engaged in. doing business in the State of California with
a ~rincipal place of business in Los Angeles County.
4. For the purpose of this action, JOHN J. ROTT was appointed
Iby the above-entitled court, and now is the guardian ad litem of
the plaintiff, JOHN-DAVID F. ROTT, a minor who was born on January
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-. On or about December 3, 1984, plaintiffs,' JOHN-DAVID F.
ROTT, JOH)~ J. ROTT and MILDRED ROTT, duly presented to the defendan
CITY OF TUSTIN a claim in writing for the damages sought in this
action. On or about Ja,uary 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
-2-
1
4
5
6
?
8
9
10
11
lZ
14
15
16
17
18
19
20
~4
~5
S6
Z?
~8
INC., a California corporation and CLARENCE MILTON STANFIELD and
DOES 1 through 50, and each of them, were owners of a 1983. Kenworth
truck, California License No. AP42771, hereinafter referred to in
this complaint as the Kenworth.
B. At all times mentioned herein, defendant STANFIELD, 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.
9. At all times mentioned herein, defendant JAMES MATHIAS
NISSON is the owner of real property and acreage located generally
at the northeast corner of the intersection 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,
Tu~tin, California and 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 S mptiago de Santa Ana and San
Joaquin, recorded in Book 5, page 7 of Miscellaneous
Records of Los Angeles County, California; running
thence North 40o East, 330 feet; thence South 50o
East, 253 feet; thence South 40° 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
472 on 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 Irvine and adjacent to and
limmediately contiguous to the above-described real property and
acreage thereon.
ll. At all times mentioned herein, Red Hill Avenue and Walnut
Avenue were public streets and highways and public bike pathways in
-3-
5
6
7
8
9
10
11
1~-
14
15
16
17
18
19
20
24
.~.5
~.6
27
28
the City of lustin, County of Orange, State of California; and said
public streets, highways a,d public bikeways were immediately
contiguous and immediately adjacent to the real property, above
described in paragraph No. 9. Said real property and said public
streets, highways and bikeways did contain thereon overgrown shrub-
beries, trees, and vegetation, which encroached upon aforesaid real
property, described in paragraph No. g, and upon the public streets
highways, and bikeways at the northwest corner of Re4 Hill and
Walnut. Said vegetation did span and was located on both sides of
the property li~e of aforesaid real p~'operty and the public bikeway
and public roads and streets.
12. Plaintiff is in doubt as to the person, or defendans, fro~
whom he {or she) is entitled to redress, with the intent that the
qu~stion as to 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 August 29, 1984, and for many years prior thereto,
de~endant CITY OF TUSTIH and defendant JAMES MATHIAS NISSON and
DOES 1 through 50, and each of them, owned, maintained, controlled,
~lanted, cultivoted, trimmed and failed to trim the northwest come,
~of Red Hill and'.Walnut and the property in, mediately contiguous to
the northwest corner, so that the shrubbery, the trees and vegeta-
tion on the 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
-4-
5
6
7
8
9
3. O
12
'13
'14
3.5
;].6
3.8
3.9
2O
23
25
27
28
corner of Red Hill and Walnut.
14. The defendant CITY OF TUSTIN and defendant OANESi MATHIAS
NISSON and DOES 1 through 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
protect against this dangerous'condition of the vegetation, shrubbe
and trees. Both the CITY OF TUSTIN and JAMES NATHIAS NISSON had
the authority, the finances and it was their responsibility to take
adequate measures to 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 August 29, 1984, at approximately 6:40 p.m.
th~.minor plaintiff, JOtIN-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 bikeway and streets are public ways. At said time and place,
the. defendants B. J. McADANS INC. and CLARENCE MILTON STANFIELD and
DOES 1 through 50 and each of them, were operating their said
Kenworth truck along and upon Red Hil] in a northernly fashion,
immediately conKiguous to the bikeway, at or near its intersection
with Red Hill, and the defendant, CITY OF TUSTIN, and JANES MATHIAS
NISSON, and DOES 1 through 50 arid each of them, had so carelessly
and negligently maintained the dangerous condition of trees, vege-
tation and shrubbery at this intersection and bikeway, that the
plaintiff 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
-5-
1
2
4
§
6
7
8
9
lO
11
12
14
15
16
17
18
19
2O
21
22
2~
24
25
26
27
28
operation and driving of the truck, so as a direct and proximate
result he was struck by the truck, so as to proximately cause the
hereinafter described ir~juries and damages to the minor plaintiff.
16. As a direct, proximate result of the negligence, acts and
omissions of the defendants and each of them, plaintif~ was injured
in his health, strength, and activity, sustaining injury to his
body and shock and injury to his nervous 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
his 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 ~l~d omissions of defendants, and each of them, the
plaintiff was required 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 will in
the future, incur medical and incidental expenses for such care and
services. The exact amount of such expenses are unknown at the
)resent ti~e and the plaintiff shall seek leave to amend his pleadir
to set forth the. exact amount when same have been ascertained.
18. 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 sus-
tained loss of earnings and will usstain loss of future earnings ~n
earning capacity in an amount at the present time unknown, and
therefore asks leave to prove,.and if required by the court, to
amend this complaint to show the exact loss of earnings up to the
-6-
1
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
24
25
26
27
28
time of trial.
19. As a further direct and proximate result of said~ negligen,
aJts and omissions of the defendants, and each of them, plaintiff's
bicycle was damaged to such an extent that repaiPs were necessary
and the reasonable cost of said repairs being $50.00.
20. Plaintiff further alleges that he is entitled to prejudg-
ment interest pursuant to law because of damages resulting from the
negligence, acts and omissions of defendants, and each of them, in
an amount to be determined at the time of trial in this matter.
SECOND CAUSE OF ACTION
As and for a second cause of action the minor plaintiff, JOHN-
DAVID ROTT, alleges as follows:
21. The minor plaintiff incorporates by reference herein each
an~ every allegation of the first cause of action.
22. On or about August 29, 1984, and for many years pKior
thereto, the defenda~t CITY OF TUSTIN, owned, maintained and contro
led the public streets and bikeways immediately contiguous to the
northwest intersection of Red Hill and Walnut in the City of Tustin
County of Drange. Said public property was immediately contiguous
and adja.c~nt to the real property at the northwest corner of Red
Hill and Walnut,. owned, maintained and controlled by JAMES MATHIAS
NISSON~and DOES 1 through 50, and each of them.
23. On or about 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 hereinafter alleged when
the property was used with due care in the manner it was reasonably
foreseeable, in that the vegetation, shrubbery and trees on both th
property of the CITY OF TUSTIN and the property of JAMES MATHIAS
-7-
1
4
5
6
7
8
9
10
11
12
14
15
16
17
18
19
2O
21
22
2~
24
25
26
27
28
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 TUSlIN and JAMES MATHIAS NISSON
and DOES 1 through 50, and each' of them, had actual knowledge of th
condition, or~ reasonably knew or should have known of its dangerous
characber a sufficient time prior to August 29, 1984, to have
taken measures to protect against the dangerous condition, by simpl.
removing,' trimming or cutting the vegetation and shrubbery. The
defendant CITY OF TUSTIN and JAMES MATHIAS NISSON and DOES 1 throug
50, and each of them, had the 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 available 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 Hi%l and Walnut, adjacent to and contiguous to the real
property and owrLed by CITY OF TUSTIN and JAMES MATHIAS NISSON ~nd
DOES l'through 50, and each of them, and as a direct and proximate
result of the dangerous condition of the intersection, when the
minor plaintiff entered the bikeway located in the intersection,
the minor plaintiff was struck by a tru~ck driven by CLARENCE MILTON
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.
-8-
4
5~
6
7
9
10
11
14
15
16
17
18
19
~0
~5
~6
~7
26. Aforesaid shrubbery, trees and vegetation obscuring and
impeding the path and progress of bicyclists on the bikeway,
constitutes a dangerous condition and did proximately and directly
cause the bicyclist to veer into Red Hill Avenue; immediately
contiguous to the dangerous condition of the property.
THIRD CAUSE OF ACTION
As and for a third callse o'f action, JOHN J. ROTT and MILDRED
ROTT allege as follows:
27. Plaintiffs incorporate by reference each and every
allegation in the firsL and second causes of action as though fully
set forth herein.
28. Plaintiffs JOHN J. ROTT and MILDRED ROTT were formerly
husband and wife a,d are now divorced. Plaintiff JOHN J. ROTT is
thru father, and MILDRED ROTT is the mother of the minor plaintiff
JOHN-DAVID FRANKLIN ROTT, born on Ja~luary 28, 1970. As a direct
and proximate result of the,.negligence, acts and omissions and the
dangerous condition of both public and private property, the
)laintiffs, JOHN J. ROTT and MILDRED ROTT have been obligated to
supply and have incurred indebtedness for the medical and nursing
care, rehabilitation care and special care, education and treatment
of their minor s. Qn, JOHN-DAVID F. ROTT, to their damages in the
amount'of approximately $190,000. The exact amount of such expense:
ire unknown at such time and the plaintiffs, JOHN and MILDRED ROTT
;eek leave to ame~d their pleading to set forth the exact amount
when same have been ascertained.
WHEREFORE, minor plaintiff JO)mN-DAVID F. ROTT ~rays for judgme!
as and against the defendants, and each of them, as follows:
1. Fo)- general damages per CCP Section 425.10 in an amount t,
-9-
1
'2
4
5
6
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
25
26
27
28
exceed $15,000.00;
2.
3.
proof;
4.
5.
6.
7.
For all medical and incidental expenses according, to proof
For all loss of earnings and earning capacity according to
For repairs to the plaintiff's bicycle in the sum of $$0.0~
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.
4.
just and proper.
DATED: ~lll..l ~
just and proper.
WIIEREFORE plaintiffs JOH~I J. ROTT and MILDRED ROTT pray for
judgment as a,d against the defendants, and each of them, as follow.
1.- For all medical 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
JA~/K A.~ ROSE
At~3j for Plaintiffs.
-10-