HomeMy WebLinkAboutCC 9 CLAIM #81-19 08-03-81DATE: 7/27/81
8-3-81
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TO:
FROM:
$ UBJ ECT:
JAMES G. ROURKE, CITY ATTORNEY
APPLICATION FOR LEAVE TO FILE LATE CLAIM:
CLAIMANT: RIEBE, ELEANOR M.; D/L: 12/10/81; FILED
W/CITY: 7/8/81; CLAIM NO: ALC-81-19; CARL WARREN
FILE NO: 29409 RR
After investigation and review it is recommended
that the above-referenced Application for Leave to File Late
Claim be denied and the City Clerk directed to give proper
notice of the denial to the claimant and to the claimant's
attorney.
JGR:se
Enclosure
1. Copy of Claim
APPLICATION FOR LEAVE
TO FILE LATE CLAIM
WITH ACCOMPANYING DOCUMENTS
Govt. Code Section 911.4
In the Matter of the )
Claim of Eleanor Riebe )
against The City of )
Tustin )
)
TO: THE CITY OF TUSTIN ~
1. Application is hereby made for leave to present
a late claim under Section 911.4 of the Government Code. The
claim is founded on a cause of action for personal injury,
which accrued on December 10, 1980, and for which a claim was
not timely presented. For additional circumstances relating
to the cause of action, reference is made to the proposed
claim attached hereto as Exhibit A and made a part hereof.
e
this claim:
There are two reasons for the delay in presenting
(1) Claimant was physically incapacitated during
all of the period when the claim should have been presented and
by reason of the disability failed to timely present the claim
as shown by the declaration of Eleanor Riebe attached hereto
as Exhibit B and made a part hereof.
(2) The mistake, inadvertence, surprise,
and excusable neglect of the claimant and her attorneys,
Robert Aitken and Albert S. Israel, as more particularly
shown by the declarations of Robert Aitken and Albert S.
Israel attached hereto as Exhibits C and D, respectively,
and made a part hereof.
3. This application is presented within a reasonable
time after the accrual of the cause of action as shown by the
accompanying declarations.
WHEREFORE it is respectfully requested that this
application be granted and that the attached claim be received
and acted upon in accordance with Section 912.4 - 912.8 of the
Government Code.
DATED:
June 25, 1981
ALBERT S. ISRAEL
BALL, HUNT, HART, BROWN AND BAERWITZ
Attorneys on behalf of Eleanor Riebe
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CLAIM FOR
DAMAGES TO PERSON
TO:
CITY OF TUSTIN
ELEANOR RIEBE hereby makes claim against the
CITY OF TUSTIN for the sum of $250,000 and makes the
following statement pursuant to Government Code Section
910 e__t seq. in support of the claim:
1. Claimant's post office address is 1082 East
Main Street, Apt. 38, Tustin, California 92680.
2. Notices concerning the claim should be sent
to Robert E. Aitken and Albert S. Israel of the law firm
of Ball, Hunt, Hart, Brown and Baerwitz, Post Office Box
1287, 120 Linden Avenue, Long Beach, California 90801.
3. The date and place of the occurrence are
December 10, 1980, in the parking lot known as the Courtyard
Shopping Center located at the intersections of Holt Avenue
and Irvine Boulevard in Tustin, California.
EXHIBIT A
4. The circumstances giving rise to this claim
are as follows': The claimant, a 70 year old lady, was
walking across the parking lot of the Courtyard Shopping
Center and while walking across a divider-planter between
aisles of parking spaces in the parking lot stepped upon
a pipe sticking up from the ground and hidden by the foliage,
fell a~d broke her leg and wrist, for which she was hospitalized
for almost 9 weeks, was operated upon for both injuries, and
is now only barely able to walk without assistance. She is
presently experiencing other complaints and injuries as a
result of this incident which are presently being diagnosed.
5. The claimant's injuries were treated at Tustin
Community Hospital from December 10, 1981 and for 62 days
thereafter. She has received therapy, her most recent visit
being June 12, 1981. She is presently being treated by
Dr.'William Dixon located in the City of Orange, California.
Her injuries will be more fully reflected by the medical
records kept by them.
DATED: June 25, 1981
BALL, HUNT, HART, BROWN AND BAERWITZ
ALBERT S. ISRAEL
Attorneys for andon behalf of
ELEANOR RIEBE
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EXHIBIT A
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DECLARATION OF ELEANOR RIMBE
I, ELEANOR RIEBE, declare and say:
1. I have personal knowledge of all the facts stated
herein and if called as a witness could and would competently
testify thereto.
2. I am 70 years old and have been a resident of
the City of Tustin for 35 years. On December 10, 1980, I was
walking and fell in the parking lot of the Courtyard Shopping
Center located at Holt Avenue and Irvine Boulevard in the City
of Tustin. I was taken by paramedics to Santa Aha - Tustin
Co~,~unity Hospital where I remained for 9 weeks with a compound
fracture of the right femur and broken wrist, both requiring
surgery.
3. Thereafter I have been confined to my apartment
not being able to walk or assist myself without assistance. Only
within the last week and after considerable therapy (most recently
on June 12, 1980) have I begun to walk again, though only for
very short distances.
4. I only became aware of who owned the parking lot
when my attorneys who hired an independent investigator told me
the results of the investigation on June 25, 1981. It was only
through their industry that it was learned that the City of
Tustin was connected to this incident, in addition to the owners
EXHIBIT B
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of the parking lot.
5. Due to my inability to walk, I was unable to
investigate the circumstances surrounding my fall including the
identity of those responsible for it. Furthermore, due to this
incapacity I have been of no assistance to my attorneys in
ascertaining this information but rather have had to rely upon
their efforts and the efforts of others.
6. It was not possible for me under the circumstances
to have learned at an earlier date of the responsibility of the
City of Tustin so as to have earlier filed a claim with the City
within 100 days of my fall.
7. Due to my physical incapacity, excusable neglect
and surprise., I respectfully request the opportunity to file
this claim, and hope the delay in filing has caused no prejudice
to the City of Tustin.
I declare under the penalty of perjury that the
foregoing is true and correct. Executed on June 30, 1981 at
Tustin~ California.
ELEANOR ' RIEBE
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EXHIBIT B
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DECLAP~TI'ON OF ROBERT E. AITEEN
I, ROBERT E. AITKEN, declare and say:
1. I am an attorney licensed to practice in
California and a partner with the law fi£m of BALL, HUNT, HART,
BROWN AND BAERWITZ, attorneys who have been retained by ELEANOR
RIEBE to represent her in a claim arising from injuries she
sustained on December 10, 1980 in a fall in the parking lot
of the Courtyard Shopping Center located at Holt Avenue and
Irvine Boulevard in Tustin, California.
2. I have personal knowledge of all the facts stated
herein and if called as a witness could and would competently
testify thereto.
3. I only recently became aware of this incident
and retained by Mrs. Riebe to represent her.
4. In the course of investigating the facts and
circumstances underlying Mrs. Riebe's fall by means of a private
investigator, I was informed that the design of the parking lot
and in particular the construction of the planter box divisions
between rows of parking stalls where she fell were done at the
urging and ~rection of the City of Tustin. It was only after
becoming aware of these facts on or about May 21, 1981 and
conducting research into the question of the liability, upon
the part of the City of Tustin under the circumstances of
EXHIBIT C
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this case that it became evident a claim should be made to
the City of Tustin.
5. It was not possible for me to have learned this
information earlier due to the fact that Mrs. Riebe, who is
70 years old, had sustained severe injuries to her legs and
arms, was hospitalized for two months after the accident, and
has only been able to barely walk without assistance recently,
and prior to that could not communicate with her lawyers.
I declare under the penalty of perjury that the
foregoing is true and correct.
on June 24, 1981.
Executed in Long Beach, California
~BERT E. AITKEN' '
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EXHIBIT C
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DECLARATION OF ALBERT S. ISRAEL
I, ~T.mERT S. ISRAEL, declare and say:
1. I am an attorney licensed to practice in the State
of California and an associate with the law fi~m of Ball, Hunt,
Hart, Brown and Baerwitz, attorneys who have been retained to
represent ELEANOR RIEBE in a claim arising from injuries she
sustained on December 10, 1980, in a fall in the parking lot of
the Courtyard Shopping Center located at Holt Avenue and Irvine
Boulevard in Tustin, California.
2. I have personal knowledge of all the facts stated
herein and if called as a witness could and would competently
testify thereto.
3. As shown in the declarations of Eleanor Riebe
and Robert Aitkin, the failure to present the claim was through
mistaken, inadvertence, surprise or excusable neglect, and the
City of Tustin is not prejudiced by the failure to present the
claim within one hundred (100) days allowed for presentation
of the claim.
4. The within application for leave to present a
late claim is presented within a reasonable time after the accrual
of the cause of action.
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EXHIBIT D
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I declare under the penalty of perjury that the
foregoing is true and correct. Executed in Long Beach, California
on June 25, 1981.
ALBERT S. ISRAEL
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EXHIBIT D
I, SANDRA J. HUNTER, say:
That I am, and at all times herein mentioned was,
a citizen of the United States, whose business address is
120 Linden Avenue, Long Beach, California, in the County of
Los Angeles, where the mailing herein referred to took place;
that I am over the age of 18 years, and not a party to the
within entitled cause, nor interested in the event thereof;
that JULY 2, 1981, I enclosed in an envelope a full, true
and correct copy of APPLICATION FOR LEAVE TO FILE LATE CLAIM
WITH ACCOMPANYING DOC%~4ENTS in this matter, sealed the same,
addressed the same as follows, to wit:
CITY OF TUSTIN
300 Centennial
Tustin, California 92680
Attention: CITY CLERK
and on said day deposited the same, so addressed, with postage
prepaid in the U. S. mail at Long Beach, California.
I declare under the penalty of perjury that the
foregoing is true and correct. Executed on July 2, 1981,
at Long Beach, California.
S~D~ J. ~TER