HomeMy WebLinkAbout21 LATE CLAIM 98-7 04-06-98 LA'~ OFFICES OF
~X~OODRUFF~ SPRADLIN & SMARI~
A PROFESSIONAL CORPORATION
AGENDA
TO:
FROM:
DATE:
RE:
MEMORANDUM
Honorable Mayor and Members of the City Council
City of Tustin
City Attorney
April 1, 1998
Application for Leave to File Late Claim and Claim of Robert Mitchell;
Claim No. 98-7
~0. 21
4-6-98
RECOMMENDATION: After investigation and review by this office, it is recommended that
the City Council grant the application for leave to file a late claim, deny the claim, and direct
the City Clerk to send notice thereof to the claimant and to the claimant's attorneys.
DISCUSSION: The claimant seeks the return of $10,500 in cash and poker chips that was
seized by the Police Department when the claimant was arrested for robbery. The alleged
victim also Claims title to the cash and poker chips. An attorney for the alleged victim is
seeking a court hearing to determine ownership of the property. At this time, without a
court order, the City risks liability by turning over the property either to the claimant or to
the alleged victim.
Enclosure
cc: William A. Huston, City Manager
1102-9807
60883_1
Office of'the City Clerk
March 9, 1998 "' _:-'i~ _,~ ii , i
Carl Warren & Co.
P. O. Box 25180 MAR I i 1998
Santa Ana, CA 92799-5180 ,¢ ,,--- ...
Re: Transmittal of Document(s)
C
ity of Tustin
300 Centennial Way
Tustin, CA 92680
(714) 573-3026
FAX (714) 832-0825
Claimant:
Claim No.:
Filed With City:
Robert O. Mitchell
98-7
3-9-98
Receipt of Claim/Summons and Complaint by the City Clerk's' Office on:
Date: 3-9-98
Time: 9:00 a.m.
By:
Personal Service upon the undersigned
Regular Mail
Certified/Registered Mail
Interdepartment Mail
The enclosed Claim (or Application to File Late Claim) was presented to
this office as indicated above and has been referred to the appropriate
City department for its investigation and also to the offices of Woodruff,
Spradlin and Smart, Attn: Lois E. Jeffrey, City Attorney. By this letter,
you are authorized to commence the necessary investigation of this claim
on behalf of the City.
We request that you give such notices as may be appropriate to the City's
insurance carrier(s) and further request that you submit your preliminary
and all subsequent reports to the City, with a copy to the City Attorney
and to the insurance carrier(s) if they so request. Upon receipt of
advice from the City Attorney, we will plan to present this matter to the
City Council and/or take such other steps as are directed by the City
Attorney.
X___ Other: Aoolication to file late claim
A copy of this letter and enclosures were sent on 3-9-98 to the City Attorney
and Department Head, and the original was forwarded to the Finance Department.
SiAcerely,
~aler~i_e Cr.ab~l~F .
Chief Deputy ~C4ty Clerk
Enclosures
PROOF OF SERVICE BY ~AIL
(C.C.P. SECTION 1013a, 2015.5)
STATE' OF CALIFORNIA)
) SS.
COUNTY OF MONTEREY )
I, Robert O. Mitchell , am a resident of the State of
California, County of Monterey. I am over the age of 18 years
and am aparty to the within action. My business address is
On March 5,1998 , 1998 I served the foregoing:
APPLICATION FOR LEAVE T0 FILE LATE CLAIM PURSUANT T0 GOV. CODE§ 911.4
on the parties listed below by placing a' true copy thereof,
enclosed in a sealed envelope with postage thereon fully
prepaid, in the united States?ail at Soledad, California,
addressed as follows:
City of Tustin "OFFICE OF THE CITY CLERK"
300 Centennial Way
Tustin Calif 92780
There is regular delivery service by the U.S. Postal
Service between the place of mailing and the places so
addressed.-
~ declare under the penalty of perjury under the laws of
the State of California that the foregoing is true and correct.
· Executed this 5th day of
So!edad, California.
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TABLE OF CONTENTS
1. Application for Late Claim
2. Copy of ~21 Letters Submitted: Dated: 5-27-97, 6-9-97, 9-11-97, 9-29-97.
3. Tort Claim t~.~t was filed.
4. Letter from the Tustin Finance Department Dated: 2-13-.98
5. Letter sent RE: CLAIM BEING 'FIT,ED' WITHIN ~ ONE-YE~_R OCCURRENCE.
6. Letter received from the Tustin City Clerk's Office Dated; 2-27-98
RE: CLAIM NOT BEING FIT,ED WITHIN TH~ (6) MONTHS OCCURRENCE.
INSTRUCTIONS TO FILE AN APPLICATION FOR LATE CLAIM.
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Robert 01and Mitchell C.D.C. #H-96595
C.T.F.P.O.BOX 689 E-lO5
Soledad Calif 93960
IN AND FOR THE CITY OF TUSTIN
THE STATE OF CALIFORNIA
Robert Oland Mitchell,
VS.
The City of Tustin,
The Tustin Police
Department, et al.
Respondant
Applicant
CASE NO.
APPLICATION FOR LEAVE TO FILE LATE
CLAIM PURSUANT TO GOV. CODE § 911.4
INTRODUCTION
Applicant, Robert O. Mitchell, hereby request permission to file a Late
Claim pursuant to Government Code § 911.4
On 3-28-97, Applicant had personal property taken by the Tustin Police
Department. Applicant first tried to resolve this, by first writing the
Tustin Police Department, and Tustin City Hall on Four (4) prior occasions
DATED: 5-27-97, 6-9-97, 9-11-97, and 9-29-97. All requests went without
ANY response.
On 12-4-97 applicant received a letter from the Tustin City Manager's
Office. Saying that the City "IS NOT" returning applicant's property.
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Upon receiving this information applicant "IMMEDIATEEY" filed a claim
against the City of Tustin for the return of his property. The city filed
Claim No. 98-7 on 1-26-98. On 2-13-98 Claim No. 98-7 WAS RETURNED to
applicant. Reason: Applicant failed to file within the (1) one-year
occurrence. Applicant then RESUBMITTED the claim on 2-23-98 with proof
that the claim Was filed on time.
On 3-2-98 Claim No. 98-7 WAS RETURNED AGAIN REASON: The claim was not
filed within (6) Months after the date of occurrence~ With instructions
to request application to file late claim.
Applicant submits that the occurrance ~ would trigger the Limitation
Periods in Government Code § Did Not Occur Until Refusal By ~he City MGR
in his correspondence of 12-4-97.
Applicant believes that his application for Late Claim should be granted
because applicant . ' with all relevant statutes.
DATED:
RESPECTFULLY SUBMITTED
m ~PART~'IF-.NT -- COUNTY OF' &
PRISONER ~LAIM FOR MISSING OR DAMAGED PROPERTY
FILL OUT IN DUPLICATE
-
~/ ~
HOME PHONE
DESCRIPTION O~' MISSING OR DAMAGED PROPERTY DATE PURCHASED
PRICE NEW CURRENT VALUE
oo sgo. oo
TOTAL
I HEREBY CERTIFY THAT THE ABOVE DESCRIBED PROPERTY WAS TAKEN FROM ME BY' THE SHERIFF'S DEPART-
MENT FOR STORAGE OR CREDITING TO MY TRUST ACCOUNT AND THAT THE ABOV. E STATEMENT5 ARE TRUE AND
CORRECT, ;/
AI~L IDE$CRIBEO ABOVE *HAS BEEN RETURNED TO I~E WITH THE EXCEPTION OF: (IF ALL FOUND INDICA E
NO E)~CEPTIONS ~
FILL OUT COMPLETELY AND P,5'ILSRN TO:
~ml mmmmmmi m m Imml
~. m ~mmmmm
DATE
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Robert Mitchell H-96595
Sept 29,1997
CiTY HALL/EXECUTIVE OFFICE
300 Centennial Way
Tustin Ca, 92780
RE: PERSONAL PROPERTY TAKEN BY TUSTIN P.D.
The problem is your police agency came to Los Angeles/Crystal'Park
Casino and took $10,500.00 from me. Saying that a Robbery had taken
Place in Tustin. The Victim / Witnesses were brought to L.A. for a
Field - Show. At this Field Line Up" I WAS NOT I.D." I was assutted
called Derogatory names, Refused Medical Attention, and my Money was
taken by the Detaining Officer.
I have tryed to resolve this matter by writing the Tustin P.D.
several times, and I have yet to receive a response. Also by having
my family go up to the station were they were given the rnn ~ round.
So I'm writing you in hoping to resolve this matter.
Please be advised that I am going to file a clair against the
City of Tustin, The Police Department, and the Officer in Question.
Fer Violating my Civil & Constitutional Rights, And for the Return
Of my Propert.y. ~
P.S.
If you would like to resolve the Issue at hand before it goes to
litigation. Please RETURN MY PROPERTY.
Property In Question:
$8,500.00 in Hundred Dollar Bills.
$2,000.00 in Casino Chips.
Total Amount $10,500.00 & Miscelleaous Papers
ARGUMENTS IN SUPPORT OF ISSUES
1. In criminal precedings a Defendant has the Right to Suppress Evidenta
The Fact that NO PROSECUTION was taken, there exits NO LEGAL BASIS
for it's continued retention. SEE: P.C.§1538.5 Return of Property
2. ALSO SEE: Calif Crim Law Precedual & Practice Sec Edition
§19.16 C. One Person Show - Ups. People V.'Rodriguez (1987j 196 CA3d.
1041-1049 242 CR. 386-391
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Robert 0!and M~tche!!
C.T.F.P.O.BOX 689 E-105
So!edad Calif 93960
AND FOR THE CITY OF TUSTIN
THE STATE OF CATIFORNIA
Robert Oland Mitchell,
Plaintiff)
VS.
The City of Tustin,
The Tustin Police
Department, et al.
Defendant
CASE NO..
TORT CLAiM [PURSUANT TO GOV.
CODE, §810]
Plaintiff, Robert Olaud Mitchell, hereby'brings this action pursuant
to Government Code § 810. This claim is intended to recover plaintiff's
personal property: ($8,500.00 Dollars in Hundred Dollar Bills, Two(2)
$1,000.00 Dollar Casino Chios, and Miscellaneous Papers.) And to seek
damages for it's unlawful detention.
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FI}~qT CAUSE OF ACTION
[WronEful Deprivation of Property]
U.S. CONSTITUTION 14th AMfNDMf~
On or about the 28th day of March 1997, plaintiff was arrested on a
parole violation, had his property seized by the Tustin Police Department
At that time he(plaintiff) 'Rs in possession of the items listed:
($8,500.00 In Hundred Dollar Bills, Two(2) $1,000.00 Casino Chips and
Miscellaneous Papers. The property is being held by the Tustin Police
Department ~_ud the District Attorney's Office Pending outcome of a tria2~.
klthough there were NO ACCUSATORY pleadings filed in relation to the
aforementioned property, the Police Department and District Attorney's
Office failed to return fne property in question to it's rightful owner,
the plaintiff herein.
Plaintiff believes and alleges that: The taking of his personal
property ($10,500.00) ~s motivated by invidious discriminatory animus
and intended to cause him financial loss, hardship and ruiu. There were
NO ACCUSATORY pleadings filed in relation to the seized property. The
property" IS NOT SUBFECTTOLAWFULDETf:fl~ION."
TNFREFORE, TNFRE IS NO LEGAL BASIS FOR IT'S CONTINUED ~ON.
(SEE: ~ CODE § 1538.5 & 1540)
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FIRST CAUSE OF ACTION
[Wrongful Deprivation of Property]
U.S. CONSTITUTION 14th ~
On or about the 29th day of September 1997, plaintiff requested the
return of the ~orementioned property, via letter and dam~uded it's
immediate retturm., in full. However, on .the 4th day of December q997,
the TustLu City ¥~mager's Office sent plaintiff.a letter refusing to
return the property in question.
Plaintiff believes and S]]eges that the City of Tustin and it's
agents (The City Police Department) ~re ~G "CONV~tISON" which
is CIVIL TNE~T.
The actions of the City of Tustinand there Police Department as herein.
described in controvention of all laws governing this state and the
United States.
CONCLUSION
For the foregoing reasons, plaintiff respectfully requests that the
City of ~astin ~II~EDIATELY" return plaintiff's personal property. The
sum of $10,500.00 Dollars in U.S. Currency, pay the intrest accured since
it's unlawful detention, pay an unspecified amount in punitive damages,
and seeks ali o~ner relief available.
RESPECTFULLY SUBMITT~,
Finance Department
C
ity of Tustin
300 Centennial Way
Tustin, CA 92780
FebI-uary 13, 1998
Robert Oland Mitchell
Director
(714) 573-3061
Secretary
(714) 573-3060
Water Billing
(714) 573-3075
FAX (714) 832-0825
RETURN OF LATE CLAIM PRESENTED AFTER ONE YEAR OF DATE OF OCCURRENCE
(PERSONAL INJURY OR PROPERTY DAMAGE)
Dear Mr. Mitchell:
The claim which you presented to the city Council of the City of
Tustin on January 26, 1998 is being returned herewith, without any
action having been taken by the City Council.
The claim is being returned because it was not presented within one
year after the date of occurrence. To determine whether further
procedures are open to you, you may wish to consult with an attorney
of your choice. If you desire to consult an attorney, you should do
so iiEmediately. (See Government Code'Section 911.6).
Finance Director
RAN:ts
Attachment
RAI~6: FormL .Al [
Office of the City Clerk
January 28, 1998
Carl Warren & Co.
P. O. Box 25180
Santa Ana, CA 92799-5180
Re:
Transmittal of Document(s)
City. of Tustin
300 Centennial Way
Tustin, CA 92680
(714) 573-3026
FAX (714) 832-0825
.Claimant:
Claim No.:
-Filed With City:
Robert Mitchell
98-7
1-26-98
Receipt of Claim/$ummon's and Complaint by the City Clerk's Office on:
Date: 1-26-98
Time: a.m.
By:
Personal Service upon the undersigned
Regular Mail
Certified/Registered Mail
Interdepartment Mail
The enclosed Claim (o[ Application to File Late Claim) was presented to
this office as indicated above and has been referred to the appropriate
City department for its investigation and also to the offices of Woodruff,
Spradlin and Smart, Attn: Lois E. Jeffrey, City Attorney. By this letter,
you are authorized to commence the necessary investigation of this claim
on behalf of the City.
We request that you give such notices as may be appropriate to the City's
insurance carrier(s) and further request that you submit your preliminary
and all subsequent reports to the City, with a copy to the City Attorney
and to the insurance carrier(s) if they so request. Upon receipt of
advice from the City Attorney, we will plan to present this matter to the
City Council and/or take such other steps as are directed by the City
Attorney.
Other:
A copy of this letter and enclosures were sent on 1-29-98 to the City Attorney
and Department Head, and the original was forwarded to the Finance Department.
Si/Tr?erely, . _
Chief Deputy City Clerk
Enclosures
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Robert Oland MAtche~_l H-96595
February 22,1998
The City of Tustin "Finance Department"
300 Centennial Way
Tustin Ca]if, 92780
Dear Mr. Nault:
I have received yot~r letter of 2,13-98, RE: Claim No. 98-7 The letter
indicates that NO ACTION was taken on the claim because it was fled
more than One-Year after the Date:of Occurrence.
The "Occdr~nc~" was March 28,1997. This can be verified by checkin~
Tustin Police Re~ort Number ~97-02350 ,Dated: 3-28-97. The claim was
filed on Jan 26, 1998. The claim was therefore filed more than 2 Months
Prior to the ex"piration ~f One-Year.
PT,FASE TAKE ACTION ON THE CLAIM.
Very True~r?s . ' ,,~
ATTACHED: COVER PAGE OF POLICE REPORT .NUMBER #9?-02350 SHOWING THE
"OCCURRENCE" DATE & TIME.
Office of the City Clerk
February 27, 1998
Robert Oland Mitchell
C.T.F.P.O. Box 689 E-105
Soledad, CA 93960
RE:
Claimant:
Date of Loss:
Filed with City:
Dear Mr. Mitchell:
Robert Oland Mitchell
3/28/97
1/26/98
City of Tustin
300 Centennial Way
Tustin, CA 92780
(714) 573-3026
FAX (714) 832-0825
Please note the letter dated Febuary 13, 1998 (attached), was
mailed to you in error. The correct information regarding your
claim is detailed below.
The claim you presented to the City of Tustin on the date set forth
above is being returned because it was not presented within six (6)
months after the event or occurrence as required by law. See
Sections 901 and 911.2 of the Government Code. Because the claim
was not presented within the time allowed by law, no action was
taken on the claim.
Your only recourse at this time is to apply without delay to the
city of Tustin for leave to present a late claim, see Sections
911.4 to '912.2, inclusive, and Section 946.6 of the Government
Code. Under some circ~mstances,.leave to present a late claim will
be granted. See Section 9'11.6 of the Government Code.
You may seek the advice of an attorney of your choice in connection
with this matter. If You desire to consult an attorney, you should
do so immediately.
cerely,
Beverley. W~i~e
Deputy Cit~lerk
VW/ms
cc: Carl Warren Co.
City Attorney'...
C:5/13/88