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HomeMy WebLinkAboutMINUTES - 01141986 - 1.14 41(v CLAIM BOARD OF SOPERVISORS OF CONTRA COSTA COMM, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT January 14, 1986 governed by the Board of Supervisors, ) The copy of this document mailed to you is your Routing Endorsements, and Board ) notice of the action taken on your claim by the Action. All Section references are ) Board of Supervisors (Paragraph IV, below), to California Government Codes ) agiivvennd q pursuant to Government Code Section 913 BRYAN MURPHY ASSOCIATES, ir1FA. Please note all "Warnings". Claimant. Attorney: G. Kelley Reid, Esq. William J. Boyd, Esq . DEC ` 19$5 Address: Bishop, Barry, Howe & Reid 465 California Street., 11th Floor Ma�trRA2, CA 953 Amount: San Francisco , CA. 941* delivery to clerk on Equitable Indemnity, Contribution & Declarator ._ Date Received: becerrber 23 , 1985 By mail, postmarked on December 21 , 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: nP(- ?4} 1 f3 5_PHIL BATCHELOR, Clerk, By Deputy _ n erve II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) (�) This claim complies substantially with Sections 910 and 910.2. ( ) This claim FAILS to comply substantially with Sections 910 and 910.2, and we are so notifying claimant. The Board cannot act for 15 days (Section 9i0.8). ( ) Claim is not timely filed. Clerk should return claim on ground that it was filed late and send warning of claimant's right to apply for leave to present a late claim (Section 911.3). ( ) Other: Dated: 5 By: Deputy County Counsel III. FROM: Clerk of the Board TO: (1) ounty Counsel, (2) County Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present b� This claim is rejected in full. ( ) Other: I certify that this is a true and correct copof the Board's Order entered in its minutes for this date. ri, Dated: JAN 1 4 1986 PHIL BATCHELOR, Clerk, ByJ , Deputy Clerk WARNING (Gov. Code Section 913) Subject to certain exceptions, you have only six (6) -months from the date of this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. V. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator Attached are copies of the above claim. We notified the claimant of the Board's action on this claim by mailing a copy of this document, and a memo thereof has been filed and endorsed on the Board's copy of this Claim in accordance with Section 29703. ( ) A warning of claimant's right to apply for lea to pr ent a la a claim was mailed to cl mant,. DATED: JAN 41986 PHIL BATCHELOR, Clerk, By J , Deputy Clerk cc: County Administrator (2) County Counsel (1) CLAIM CLAIM AGAINST COUNTY OF CONTRA COSTA TO: Board of Supervisors , County of Contra Costa 651 Pine Street , Martinez , California 94553 BRYAN & MURPHY ASSOCIATES, INC. hereby makes claim against the County o f Contra Costa for indemnity and makes the following statements in support of its claim: 1 . CLAIMANT' s Post Office address : P. 0. Bo 2 s 7 RECEIVED Walnut Creek , CA 94597 DEW, 1985 2. Notices concerning the claim should be s t to : PHK SATCHEtOR LERK APn O� P CS G. Kelley Reid, Esq . AAW c RAc A William J. Boyd , Esq. " ° Bishop, Barry, Howe & Reid 465 California Street , 11th Floor San Francisco, CA 94104 3. Dates of occurrences : October 31 , 1985 and November 27, 1985 ( Dates of service of underlying complaints ) . 4. Place of occurrence: 11 Tennis Club Drive, Danville , CA 94526 5. The circumstances giving rise to this claim are : See attached copies of First Amended Complaint for Negligence , Deceit , and Breach of Insurance Contract and Danielian Associates ' Cross-Complaint For Equitable Indemnity, Contribution, and Declaratory Relief in Contra Costa County Superior Court Action No . 247764. 6. Damages or injuries : Equitable Indemnity, Contribution and Declaratory Relief . BISHOP, BARRY, HOWE & REID By � c". William J. Boyd Attorneys for BRYAN & MURPHY ASSOCIATES, INC. 3/0553A 1 THOMAS C. THOMPSON ATTORNEY AT LAW 2 TWO NORTH SECOND STREET SUITE FOURTEEN-NINETY ft 3 SAN JOSE, CALIFORNIA 95113 _ h� 4 TELEPHONE: (408) 288-6363 J.R. OLSSON, Coj;ii, ri -k 5 ATTORNEY FOR PLAINTIFF �J�1TH'' L'-' i . s-'� • "` ' JAMES DOWNING 6 cc:.?�:: 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF CONTRA COSTA 9 JAMES DOWNING, ) NO. 247764 10 - ) Plaintiff, ) FIRST AMENDED COMPLAINT FOR 11 ) NEGLIGENCE, QECEI-T (CC V. ) SECTION 1710), AND BREACH 12 ) OF INSURANCE CONTRACT (CC BLACKHAWK CORPORATION, a ) SECTION 3300, 3302) 13 Delaware Corporation, ) BLACKHAWK DEVELOPMENT COMPANY, ) 14 DeBENE, INC. , a California ) Corporation, BRYAN & MURPHY ) 15 ASSOCIATES, INC. , a California ) Corporation, DANIELLIAN & > 16 ASSOCIATES, INC. , a California ) Corporation, WILLIAM H. ) - 17 APPLEGATE and PATRICIA A. ) APPLEGATE, STATE FARM FIRE AND ) 18 CASUALTY COMPANY, an ILLINOIS ) Corporation, STATE FARM GENERAL ) 19 INSURANCE COMPANY, an ILLINOIS ) CORPORATION, DOES I-XX, inclusive, > 20 WHITE CORPORATION, BLACK ) CORPORATION and WHITE REALTY > 21 COMPANY, CONTRA COSTA COUNTY, CA ) 22 Defendants. ) 23 24 Plaintiff Alleges: 25 FIRST CAUSE OF ACTION 26 I 27 Plaintiff is, ' and at all times herein mentioned was, a 28 LAW OFFICES OF " SMAS C. THOMPSON 2 NORTH SECOND STREET SUITE 1490 ^SN Ince r1 nc, - resident of Contra Costa County, California. 1 II. 2 The true names and capacities of Defendants, sued herein as 3 Does I-XX, inclusive, and WHITE CORPORATION, BLACK CORPORATION, 4 and WHITE REALTY COMPANY, are unknown to Plaintiff at this time . 5 and Plaintiff will pray for leave of Court to amend this 6 Complaint to show said true names and capacities if the same has 7 been ascertained. 8 9 III. 10 Each of the Defendants named herein were the agents, 11 employees, and servants of each of the other nambd Defendants 12 herein, and at all times herein mentioned, were acting within the 13 course and scope of such agency and employment. 14 IIIc. 15 Plaintiff has complied with all provisions of Code of Civil 16 Procedure Section 411. 35. 17 I V. 18 At all times mentioned herein after March 2, 1981, plaintiff 19 JAMES DOWNING owned and presently owns the real property located 20 at 11 Tennis Club Drive, Danville, California 94526. 21 V. 22 Defendant BLACKHAWK CORPORATION is a Deleware Corporation 23 which at all times herein mentioned was and presently is 24 doing business in Contra Costa County, California, as BLACKHAWK 25 DEVELOPMENT CORPORATION. 26 V I. 27 Defendants BLACKHAWK CORPORATION and BLACKHAWK CORPORATION 28 LAW OMCEs OF THOMAS C.THomwN 2 NORTH SECOND STREET SUMS 1490 dba BLACKHAWK DEVELOPMENT COMPANY developed, as part of a 1 development known as "BLACKHAWK" the real property located at 11 2 Tennis Club Drive, Danville, California 94526, which development 3 included the planning and supervision of the construction of a 4 ` permanent residential dwelling on that property. 5 �\ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L1w OFFICES Or =.OMAS C.THOMPSON 2 NORTH SECOND STREET SUFiE 1190 6N rcr r, ncn I VII 2 Defendants' development of the real, property at 11 3 Tennis Club Drive was done in a negligent manner. 4 VIII 5 As a proximate result of the negligence of Defendants , 6 Plaintiff' s private residence located at 11 Tennis Club Drive 7 has sustained and is continuing to sustain serious structural 8 damage resulting from subsidence of the earth below the 9 foundation of the building. 10 TX 11 Thei subsidence and consiquent damage is and has been 12 proximately caused by water infiltration and seepage due to 13 improper drainage, lard fill , and engineering, as well as faulty 14 construction and design of the foundation. 15 X 16 The exact amount of the structural damage to Plaintiff ' s 17 private residence is unknown to plaintiff at this time. 18 Plaintiff is informed and believes and thereupon alleges that 19 said sum exceeds $150,000. Plaintiff will ask leave of court to 20 amend this Complaint accordingly when said sum has been 21 ascertained. As a further and proximate result of .the acts 22 complained of herein, the actual value of the residence which 23 plaintiff purchased did not exceed the sum of $82,000 and the 24 contract price paid by plaintiff was the sum of $231,530; 25 plaintiff was therefore damaged by the acts complained of herein 26 in the approximate sum of $150,000. 27 WHEREFORE, Plaintiff prays judgment against defendants 28 BLACKHAWK CORPORATION and BLACKHAWK CORPORATION dba BLACKHAWK -3- 1 DEVELOPMENT COMPANY as set forth below. 2 SECOND CAUSE OF ACTION 3 I 4 Plaintiff realleges and incorporates herein by rference 5 the allegations set forth in Paragraphs I through IV, inclusive , G of the First Cause of Action as fully as though set forth herein 7 in its entirety. 8 II 9 Defendant DeBENE, Inc. is , and at all times mentioned 10 herein was, a corporation duly organized and existing under the 11 laws of the State of California with its principal place of 12 business in Contra Costa County. 13 III 14 Defendant DeBENE was the contractor in charge of 15 construction of the private residence that currently exists on 16 the property at 11 Tennis Club Drive, Danville, California. 17 IV 18 Defendant'-s performance of its duties as contractor for 19 the construction of the above-mentioned private residence was 20 done in a negligent manner. 21 V 22 As a proximate result of the negligence of Defendant , �3 Plaintiff' s private residence located at 11 Tennis Club Drive 24 has sustained and is continuing to sustain serious structural 25 damage resulting from subsidence of the earth below the 26 foundation of the building. 27 VI 28 This subsidence and consequent damage is and has been -4- 1 proximately caused by water seepage and infiltration due to 2 improper drainage, land fill, and engineering, as well as faulty 3 construction of the foundation. 4 VII 5 The exact amount of the structural damage to plaintiff' s 6 private residence is unknown to plaintiff at this time. 7 Plaintiff is informed and believes and thereupon alleges that 8 said sum exceeds $150,000. Plaintiff will ask leave of court to 9 amend this Complaint accordingly when said sum has been. 10 ascertained. As a further proximate result of the acts 11 complained of herein, the actual value of the residence which 12 plain-I' purchased did not exceed the sum of $82 , 000 and the 13 contract price paid by plaintiff was the sum of $231, 530; 14 plaintiff was therefore damaged by the acts complained of herein 15 in the approximate sum of 5150,000 . 16 WHEREFORE, Plaintiff prays Judgment against Defendant 17 DeBENE, INCL. , as set forth below. 18 THIRD CAUSE OF ACTION 19 I 20 Plaintiff realleges and incorporates herein by• reference 21 the allegations set forth in Paragraphs I through IV, Inclusive , 22 of the First Cause of Action as fully as though set forth herein �3 in entirety. 24 II 25 Defendant BRYAN & MURPHY ASSOCIATES, INC. , is , and at 26 all times mentioned herein was, a corporation duly organized and 27 existing under the laws of the State of California with its 28 principal place of business In Contra Costs County. -5- 1 III 2 Defendant BRYAN & MURPHY ASSOCIATES, INC. acted as 3 engineer in the design and development of the property and 4 private residence at 11 Tennis Club Drive, Danville, 5 California. 6 IV 7 Defendant' s performance of its duties as engineer in 8 connection with the design and development of said property and 9 structure was done in a negligent manner. 10 V 11 As a proximate result of the negligence of Defendant , 12 Plaintiff' s private residence located at 11 Tennis Club Drive 13 has sustained and is continuing to sustain serious structural 14 damage resulting from subsidence of the earth below the 15 foundation of the building. 16 VI 17 This subsidence and consequent damage is and has been 18 proximately caused' by water seepage and infiltration due to 19 improper drainage, land fill, and engineering, as .well as faulty 20 construction and design of the foundation. 21 VII 22 The exact amount of the structural damage to Plaintiff' s 23 private residence is unknown to Plaintiff at this time. 24 Plaintiff is informed and believes and thereupon alleges that 25 said sum exceeds $150,000. Plaintiff will .ask leave of court to 26 amend this Complaint accordingly when said sum has been 27 ascertained. As a, further and proximate result of the acts 28 complained of herein, the actual value of the residence which -6- C 7(- I plaintiff purchased did not exceeed the sum of $82,000 and the 2 contract price paid by by plaintiff was the sum of $231 , 530; 3 plaintiff was therefore damaged by the acts complained of herein 4 in the approximate sum of $150,000. 5 WHEREFORE, Plaintiff prays ,judgment against Defendant 6 BRYAN & MURPHY ASSOCIATES, INC . , as set forth below. 7 FOURTH CAUSE OF ACTION 8 I 9 Plaintiff realleges and incorporates herein by reference 10 the allegations set forth in Paragraphs I through IV, Inclusive, 11 of the First Cause of Action as fully as through, set forth here 12 in entirety. 13 II _ 14 Defendant DANIF.LIAN & ASSOCIATES, INC. is , and at all 15 tunes mentioned herein was , a corporation duly organized and 16 existing under the laws of the State of California with its 17 principal place of business in Contra Costa County. 18 III 19 Defendant -DANIELIAN & ASSOCIATES, INC. , acted as 20 architect for the design and development of the property and 21 private residence at 11 Tennis Club Drive, Danville, 22 California. 23 IV 24 Defendant' s performance of its duties an architect in 25 connection with the design and development bf said property and 26 structure was done in a negligent manner. 27 V 28 As 'a proximate result of the negligence of Defendant , -7- I Plaintiff' s private residence located at 11 Tennis Club Drive 2 has sustained and is continuing to sustain serious structural 3 damage resulting from subsidence of the earth below the , 4 folandation of the building. 5 IV 6 The subsidence and consequent damage is and has been 7 proximately caused by water seepage and infiltration due to 8 improper drainage, seepage ; and infiltration due to improper 9 drainage, land fill, and engineering, as well as faulty 10 construction and design of the foundation. 11 VII 12 The exact amount of the structural damage to Plaintiff ' s 13 private residence is unknown to plaintiff at this time. 14 Plaintiff is informed and believes and thereupon alleges that - 15 said sum exceeds $150 ,000. Plaintiff will ash; leave of court to 16 amend this complaint accordingly when said sum has been 17 ascertained. As a further and proximate result of the acts 18 complained of herein, the actual value of the residence which 19 plaintiff purchased did not exceed the sum of $82,000 and the 20 contract price paid by plaintiff was the sum of $231,530; 21 plaintiff was therefore damaged by the acts complained of herein 22 in the approximate sum of $150,000. �3 WHEREFORE, Plaintiff prays ,judgment against defendant 24 Danielian & Associates , Inc. , as set forth below. 25 FIFTH CAUSE OF ACTION 26 ( Intentional Misrepresentation) 27 Plaintiff "realleges and incorporates herein by reference 28 the allegations set forth in Paragraphs I through IV, -8- 1 inclusive, of the First Cause of Action as fully as though set 2 forth here in entirety. 3 II 4 Defendants WILLIAM H. APPLEGATE and PATRICIA A. 5 APPLEGATE were at all times mentioned herein, and are residents 6 of Contra Costa County, California. 7 III 8 Plaintiff is informed and believes and thereon alleges 9 that at all times mentioned herein defendants WILLIAM H. 10 APPLEGATE and PATRICIA A. APPLEGATE were the agents and . 11 employees of defendants BLACKHAWK CORPORATION an8 BLACKHAWK 12 CORPORATION dba BLACKHAWK DEVELOPMENT COMPANY, and in doing the 13 things herein alleged was acting within the course and scope of 1.1 such agency and with the permission and consent of their 15 co-defendants . 16 IV 17 On or about February 1, 1981 , Defendants WILLIAM H. 18 APPLEGATE and PATRICIA A. APPLEGATE were the -owners of certain 19 real property located in Danville, Contra Costa County, 20 California, and known as 11 Tennis Club Drive. 21 V 22 On or about the above-mentioned date, Defendants WILLIAM 23 H. and PATRICIA A. APPLEGATE, with the intent to deraud and 24 deceive Plaintiff and with the intent to induce Plaintiff to 25 purchase the above-described real property for a sum of 26 approximately $230 ,000, representd to Plaintiff that this 27 property, including the private residence constructed on the 28 property, was a soundly designed, engineered, and developed -9- I piece of property. This representation was false and 2 defendants knew it to be false at the time they made it, and at 3 all times herein mentioned. In fact and truth, the above- 4 desQribed real property was not soundly designed, engineered, or 5 developed. The property has improper drainage and land fill and 6 the foundation for the private residence was improperly 7 constructed. 8 VI 9 Plaintiff did not know that this representation was 10 untrue, but on the other hand, believed it to be true. In 11 reliance on this representation, Plaintiff entered into a 12 1 contract of purchase and sale of the above described real 13 property with Defendants i+IILLIAM H. and PATRICIA A. APPLEGATE, 14 and paid Defendants the sum of $231,530.50 as a purchase price 15 therefor. Except for the false representation of Defendants , 16 Plaintiff would not have entered into the above-mentioned 17 contract and would not have .paid the contract sum of 18 $231, 530.50, or any sum, for the above-described real property . 19 VII 20 .As a proximate result of the improper design, 21 engineering, and development of the above-described property, 22 Plaintiff' s private residence has sustained and is continuing to 23 sustain serious structural damage caused by water seepage and 24 infiltration and consequent subsidence of the earth below the 25 foundation of the building. This damage is 'due to improper 26 drainage, land fill, and engineering as well as faulty 27 construction and design of the foundation of the building. 28 VIII -10- 1 The exact amount of the structural damage to Plaintiff' s 2 private residence is unknown to plaintiff at this time. 3 Plaintiff is informed and believes and thereupon alleges that 4 sand sum exceeds $150 ,000. Plaintiff will ask leave of court to 5 amend this complaint accordingly when said sum has been 6 ascertained. As a further and proximate result of the acts 7 complained of herein, the actual value of the residence which 8 plaintiff purchased did not exceed the sum of $82,000 and the 9 contract price paid by plaintiff was the sum of $231,530; 10 plaintiff was therefore damaged-by the acts complained of herein 11 in the approximate sum of $150,000 . 12 IX 13 In doing the acts herein alleged, Defendants acted with 14 oppression, fraud, and malice, and Plaintiff is entitled to 15 punitive damages in the stun of $500, 000. 16 SIXTH CAUSE OF ACTION 17 (Negligent Mlisrepresentation) 18 I 19 Plaintiff reallages and incorporates herein by reference 20 the allegations set forth in Paragraphs I through IV, inclusive , 21 and VI through VIII, inclusive of the Fifth Cause of Action. 22 II 23 On or about February , 1981, Defendants WILLIAM H. AND 24 PATRICIA A. APPLEGATE, with the intent to induce Plaintiff to 25 purchase the above-described real property for a sum of 26 approximately $230,000, represented to plaintiff that this 27 property, including the private residence constructed on the 28 property, was a soundly designed, engineered, and developed -11- I piece of property. This representation was false in that , in 2 fact and truth, the above-described real property was not 3 soundly designed, engineered, or developed. The property has 4 improper drainage and land fill, and the foundation for the 5 private residence was improperly constructed . 6 III 7 Defendants , and each of them, when they made these 8 representations to Plaintiff, had no reasonable ground for 9 believing that the representations were true. 10 SEVENTH CAUSE OF ACTION 11 (Suppression of Fact) 12 I 13 Plaintiff realleges and incorporates herein by reference 14 the allegations set forth' in Paragraphs I through IV, inclusive , 15 1 and VI through VIII, inclusive, of the Fifth Cause of Action and 16 Paragraphs II of the Sixth Cause of Action. 17 II 18 Defendants failed to reveal and suppressed the facts 19 that the property had improper drainage and land fill, and that 20 the foundation for the private residence was improperly 21 constructed. The failure .to disclose these facts concerning the 22 condition of the property was likely to mislead and did in fact 23 mislead Plaintiff in the light of other representations by 24 defendants concerning the soundness of the design, engineering, 25 and development of the property. 26 III 27 Defendants , and each of them, made the failures to 28 disclose the the suppressions of information herein alleged with -12- 1 the intent to induce plaintiff to act in the manner herein 2 alleged in reliance thereon 3 WHEREFORE, plaintiff prays judgment against WILLIAM APPLEGATE 4 and PATRICIA A. APPLEGATE as set forth below. 5 EIGHTH CAUSE OF ACTION 6 I 7 Plaintiff realleges and incorporates herein by reference the 3 allegations set forth in Paragraph I of the Seventh Cause of Action 9 of the Complain on file herein. 10 II 11 Defendants STATE FARM FIRE and CASUALTY COMPANY and 12 STATE FARM GENERAL INSURANCE COMPANY are, and at all times herein i3 � , entior.ed were corporations organized and existing under the laws , �4 ,pf the State of Illinois , and authorized b.a the California �I . 15lµnsurance Commissioner to transact business in the State of II i 16 alifornia as a fire and casualty insurers . 17 III 18 At all times herein mentioned, Plaintiff was and is the owner 19 f that certain real property described as follows : 20 Ll Tennis Club Drive, Danville, California. 21 IV 22 On or about March 2, 1981 , in consideration of the payment 23 Df an annual premium of $460 . 00 made by Plaintiff , Defendants STATE 24 FARM FIRE AND CASUALTY COMPANY and STATE FARM GENERAL INSURANCE 25 COMPANY, by its duly authorized agents, executed and delivered to 26 Plaintiff in Contra Costa County, California its policy of 27 insurance bearing number 05 0102458 , hereinafter referred to as 28 "the policy" , wherein and whereby Defendants insured Plaintiff in -13- 1 the sum of $160, 000 for the term from March 2 , 1981 to March 2 , 2 1982 against all risks of physical loss to the property described 3 in Paragraph II , supra. A copy of the policy is attached -hereto as 4 Exhibit A and made a part hereof. i 5 V 6 During the period that the policy was in full force and effect, 7 the above-described property was seriously damaged due to subsidence 8 of the earth below the foundation of the building caused by the 9 infiltration and seepage of water into that soil . This water 10 seepage and infiltration was a product of improper drainage, land 11 fill , and construction, all of which were due to the negligence of 12 developer, architect, engineer, and building contractor involved 13 in the design and construction of the building on the above 14 mentioned c-roperty . 1VI 16 This damage to the property has resulted in Plaintiff ' s loss 17 and damage in the sum of at least $150 , 000 . Plaintiff at this 18 time is uncertain of the exact amount of his damages . j 19 VII 20 PlaintLff has performed all conditions of the policy on his 21 part to be performed and, in accordance with the terms of the 22 policy, gave Defendants due and timely written notice and proof of 23. loss . 24 VIII 25 Plaintiff has demanded of defendant payment of the sum of 26 $150 , 000 , as alleged in Paragraph VII , supra. , but defendant has 27 failed and refused , and continues to fail and refuse, to pay 28 Plaintiff that sum or any part of it, and there is now due, owing , -14- 1 and unpaid to Plaintiff from Defendant the sum of at least r 2 $150 , 000 . 3 IX 4 As a proximate result of Defendant ' s failure and refusal as 5 herein alleged, Plaintiff has been damaged in the. sum of at least 6 $150 , 000 , with interest on that sum at the legal rate from the 7 date that payment should have been made. I 8 NINTH CAUSE OF ACTION 9 I 10 Plaintiff realleges and incorporates herein by reference the 11 allegations set forth in Paragraph I of the Eighth.Cause of Action 12 of the Complaint on file herein. i i 13 II _ 141 On or about February 10 , 1983 , Plaintiff submitted a claim r 15I to the Board of Supervisors of Contra Costa County, California. 161 A copy of said claim is attached hereto as Exhibit B and by this 17 reference incorporated herein. j 18 III 19 On or about March 15, 1983, the Board of Supervisors of Contra 20 Costa County, California, rejected said claim. A copy of the 21 Notice of said rejection is attached hereto as Exhibit C and by 22 this reference incorporated herein. 23 IV 24 At all times herein mentioned after March 2, 1981, Plaintiff 25 JAMES DOW14ING owned and presently owns the real property located at 26 11 Tennis Club Drive, Danville, California 94526 . 27 V 28 Defendant CONTRA COSTA COUNTY ' S building inspection was done -15 - 1 in a negligent manner and the final inspection of said property 2 should not have been granted. I 3 VI Plaintiff is informed and believes and thereupon alleges that 5 the issuance of a building permit by Contra Costa County should 6 not have been so issued, and was issued, therefore, negligently. 7 VII `I 1 8 As a proximate result of the aforementioned negligence, 9 Plaintiff ' s residence located at 11 Tennis Club Drive, Danville , 10 CA has sustained and is continuing to sustain serious structural 11 damage resulting from subsidence of the earth below the foundation 12 of the building. Plaintiff is informed and believes and thereu^on 13 , alleges that said subsidence and consequential damage is, and has 1-'- � been proximately caused by water infiltration and seepage due to I 15 improper drainage , landfill , engineering and nlanning , as well as 16 faulty construction and design of the foundation, all of which 17 should have been prevented by denial of the building permit and 18 denial of the subsequent inspections made upon said property by 19 Defendant CONTRA COSTA COUNTY. 20 VIII i 21 The exact amount of the structural damages to Plaintiff ' s 22 private residence is unknown to Plaintiff at this time. Plaintiff 23 is informed and believes and thereupon alleges that said sum exceed 24 $150, 000. Plaintiff will ask leave of Court to amend this complain 25 accordingly when said sum has been ascertained . As a further 26 proximate result of acts complained of herein, the actual value 27 of the residence which the Plaintiff purchased did not exceed the 28 sum of $82, 000 . 00 and the contract price ,paid by Plaintiff was the -16- 1 sum of $231, 530. 00; Plaintiff has therefore been damaged by the 2 acts complained of herein in the approximate sum of $150 . 000 . 3 WHEREFORE, Plaintiff prays judgment against Defendants , a and each of them, as follows: 5 ON THE FIFTH CAUSE OF ACTION 6 1 . For punitive damages in the sum of $500 , 000. ; 7 ON THE SIXTH CAUSE OF ACTION al 2 . For interest at the legal rate on $150 , 000 from the i � I date that payment should have been made; 1011 ON ALL CAUSES OF ACTION: 11 3 . For the sum of at least $150, 000 . , with the exact sum -1.2 to be determined according to proof; j -� 4 For costs of suit herein incurred; and 11 5 . For attorneys fees nerein incurred; and -sI 6 . For such other and further relief as the court may 161 deem prcper. 7, - 17 I DATED . September 16, 1985 THO' -C . THOMPSON, 18 Attorney forte Plaintiff 19 20 21 22 23 24 25 26 27 28 -17- J E R I F I C A T I 0 N 1 2 I am an attorney at law admitted to practice before all courts of the State of California and have my ofice in* Santa. 3 Clara County, California, and am the attorney for plaintiff in 4 ` the above entitled action; plaintiff is unable to make the 5 verification because he is absent from said county and for that 6 reg:=.._n affiant makes this verification on plaintiff' s behalf; 7 that I have read the foregoing FIRST AMENDED COMPLAINT FOR 8 DANATES FOR NEGLIGENCE, DECEIT (CC Section 1710) AND PREACH OF 9 NSURANCE CONTRACT (CC Section 3300, C.;02) and am informed 8nd 10 believe the natters therein to be true and on that ground allege 11 that tthe matters stayed therein are true. 12 Executed on September 7 =;, 19 J. . 13 ` 1 declare under penalty of perjury, that the foregoing is 14 true and conrect. 15 16 17 THOMAS C. THOMPSON, EEC. ATTORNEY FOR PLAINTIFF 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF ""NOMAS C.THOMPSON i NORTH SECOND STREET SMT N90 I CHARLES D. MAURER, JR., ESQ. JANE CURRAN PANDELL, ESQ. l� 2 MAURER, HIGGINBOTHAM & HARRIS 109 Stevenson Street, Suite 600 3 San Francisco, California 94105-3488 �y (415) 543-8474 4 Attorneys for Cross-ComplainantiV 5 DANIELIAN ASSOCIATES 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF CONTRA COSTA 10 JAMES DOWNING, ) No. 247764 11 ) • Plaintiff, ) DANIELIAN ASSOCIATES' 12 ) CROSS-COMPLAINT FOR VS. ) EQUITABLE INDEMNITY, 13 ) CON'T'RIBUTION, AND BLACKHAWK CORPORATION, et al., ) DECLARATORY RELIEF 14 ) Defendants: ) 15 ) 16 DANIELIAN ASSOCIATES, a California ) corporation, ) 17 ) Cross-Complainant, ) 18 vs. ) 19 ) BLACKHAWK CORPORATION, a Delaware ) 20 corporation, dba in California as ) ' BLACKHAWK DEVELOPMENT COMPANY; ) 21 BRYAN & MURPHY ASSOCIATES, INC., a ) California corporation; DeBENE, INC., a ) 22 California corporation; ENGEO, INC., a ) �. California corporation; WILLIAM H. ) f 23 APPLEGATE and PATRICIA A. APPLEGATE; ) STATE FARM FIRE AND CASUALTY COMPANY, ) 24 an Illinois corporation; STATE FARM ) ;` GENERAL INSURANCE COMPANY, an Illinois ) 25 corporation; CONTRA COSTA COUNTY, ) a public entity; JOHN NISHIZAWA COMPANY, ) 26 a California corporation; JAMES HAGOPIAN; ) AND ZOES 1 through 100, inclusive, ) 27 ) Cross-Defendants. ) 28 ) - 1 - I COMES NOW Cross-complainant Danielian Associates and complains of 2 cross-defendants, and each of them, as follows: 3 FIRST CAUSE OF ACTION - (EQUITABLE INDEMNITY) 4 1. Cross-complainant alleges that the true names or capacities, whether 5 individual, corporate, or otherwise, of cross-defendants ZOES 1 through 100, inclusive, 6 are unknown to cross-complainant at the present time, who therefore sues said cross- 7 defendants by such fictitious names. Cross-complainant is informed and believes and 8 thereon alleges that each of said cross-defendants named herein as a ZOE is legally 9 responsible in some manner for the events and happenings herein complained of and 10 thereby proximately caused the damages suffered by the cross-complainant and 11 alleged herein. Cross-complainant will amend this complaint. to allege their true 12 names and capacities when ascertained. 13 2. Cross-complainant is informed and believes and thereon alleges that 14 at all times relevant hereto, each of the cross-defendants, including ZOES 1 through 15 100, was the agent or employee of each of the remaining cross-defendants, and was 16 acting within the scope and course of said employment and/or agency at the time of 17 the acts complained of herein. 18 3. Cross-defendants, and each of them, were and now are corporations 19 or other business entities authorized to do and doing business in the State of 20 California. 21 4. Cross-complainant has been named in a prior pleading in the subject 22 litigation. Cross-complainant incorporates the First Amended Complaint for 23 Negligence, Deceit, and Breach of Insurance Contract herein by reference, for 24 reference only, and not for the purpose of admitting or denying the allegations 25 contained therein. 26 5. In the event that the plaintiff in this action should establish liability 27 on the part of cross-complainant, which liability is expressly denied, such liability will 28 arise solely by reason of the active and primary conduct and negligence of cross- - 2 - 1 defendants, and each of them. Cross-defendants, and each of them, are therefore 2 bound and obligated to defend, indemnify and hold harmless cross-complainant from 3 and against any and all claims, losses, damages, attorney's fees, judgments and 4 settlement expenses incurred or to be incurred in this action by cross-complainant. 5 WHEREFORE, cross-complainant prays for judgment against cross- 6 defendants, and each of them, as hereinafter set forth. 7 SECOND CAUSE OF ACTION - (CONTRIBUTION) 8 6. Cross-complainant herein incorporates, repleads and realleges all of 9 the allegations contained in paragraphs 1 through 5 of the first cause of action as 10 though the same were fully set forth. 11 7. In the event plaintiff should establish a liabilityon the part of cross- 4 12 complainant, which liability is expressly denied, cross-complainant is informed and believes and thereon alleges that it may be obligated to pay sums representing a 13 14 percentage of liability not cross-complainant's own, but rather that of cross- 15 defendants, and each of them. Therefore, cross-complainant requests an adjudication 16 and determination of the respective degrees of liability, if any, on its part and on the 17 part of the cross-defendants, and each of them, so as to determine that portion of the amount, if any, by which cross-complainant is found liable to plaintiff, which actually 18 19 represents the proportionate degree of fault of cross-defendants, and each of them. ZO WHEREFORE, cross-complainant prays for judgment against cross- defendants, and each of them, as hereinafter set forth. 21 THIRD CAUSE OF ACTION - (DECLARATORY RELIEF) 22 23 8. Cross-complainant herein incorporates, repleads and realleges all of the allegations contained in paragraphs 1 through 5 of the first cause of action as 24 though the same were fully set forth. 25 26 9. A determination of the proportionate degree of liability, if any, of the cross-complainant, on the one hand, and the cross-defendants, and each of them, 27 on the other hand, is necessary to protect the rights of cross-complainant against said 28 - 3 - I cross-defendants, and each of them. 2 10. An actual controversy has arisen and now exists relating to legal 3 rights and duties of cross-complainant and cross-defendants, and each of them, and 4 cross-complainant desires a declaration of its rights of indemnification. By reason of 5 these premises, if any recovery is had against the instant cross-complainant as prayed 6 for, cross-defendants will be damaged in the amount recovered and, in such event, 7 cross-complainant is entitled to recover such sum from cross-defendants, and each of 8 them, together with cross-complainant's costs and attorneys' fees. 9 WHEREFORE, cross-complainant prays for judgment against cross- 10 defendants, and each of them, as follows: 11 1. That cross-complainant be fully indemnified and held harmless from 12 and against any judgment rendered against it for any claims, losses, costs, damages, 13 attorneys' fees, judgment and/or settlement expenses incurred by cross-complainant in 14 connection with these related actions; - 15 2. That cross-complainant have judgment against cross-defendants for 16 contribution and/or indemnity in an amount which is proportional to the percentage of negligence attributable to said cross-defendants; 17 18 3. That the Court declare the respective rights and duties of cross- 19 complainant and cross-defendants and further declare that the cross-complainant is 20 entitled to indemnity and/or contribution from the cross-defendants, and each of 21 them, in proportion to the percentage of negligence attributable to such cross- 22 defendants; 23 4. That as to all cross-defendants, cross-complainant be awarded its costs, expenses and attorneys' fees incurred herein; 24 5. For such other and further relief as the Court deems just and proper. 25 DATED: November 26 V, 1985. MAURER, HIGGINBOTHAM & HARRIS 27 By 28 JANE CU AN PANDELL Attorneys for Cross-Complainant DANIELIAN ASSOCIATES I PROOF OF SERVICE BY MAIL 2 I am a citizen of the United States. I am over the age of eighteen years, 3 and not a party to the within action. My business address is 109 Stevenson Street, 4 Suite 600, San Francisco, California 94105-3488. 5 On November, 1985, I served the within Danielian Associates' Cross- 6 Complaint for Equitable Indemnity, Contribution, and Declaratory Relief on the 7 parties in said action by placing a true copy thereof enclosed in a sealed envelope, 8 with postage thereon fully prepaid, in the United States post office at San Francisco, 9 California, addressed as follows: 10 Thomas C. Thompson, Esq. State Farm General Two North Second Street, Suite 1490 6400 State Farm Drive 11 San Jose, California 95113 Ronert Park, California 94926 12 Chris Burford III, Esq. Craig A. Bestwick, Esq. Burnhill, Morehouse, Etc. Gordon & Rees P.O. Box 5168 601 Montgomery,. Fourth Floor 13 Walnut Creek, California 94596 San Francisco, California 94111 14 Joseph D. Ryan, Esq. Frederick D. Schwarz, Esq. 15 Martin, Ryan & Andrada Hardin, Cook, Loper, Engel & Bergez One Kaiser Plaza, No. 2275 One Kaiser Plaza, Suite 2300 16 Oakland, California 94612 Oakland, California 94612-3686 17 David A. Hirshik, Esq. G. Kelley Reid, Jr., Esq. Law Offices of Thomas A. Marple Bishop, Barry, Howe & Reid 18 P.O. Box 3615 465 California Street, 11th Floor San Francisco, California 94119 San Francisco, California 94104 19 Linda Debene, Inc. Jonathan Daniel Adams, Esq. 20 Bishop Ranch Office Plaza Low, Ball & Lynch Building B, Suite 109 Suite 200 21 Two Annabel Lane 1990 North California Boulevard San Ramon, California 94583 Walnut Creek, California 94596 22 I certify under penalty of perjury that the foregoing is true and correct. 23 Executed on November85, at San Francisco, California. / 19 24 25 26 27 28 CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT January 14, 1986 governed by the Board of Supervisors, ) The copy oft s oeument mailed to you is your Routing Endorsements, and Board ) notice of the action taken on your claim by the Action. All Section references are ) Board of Supervisors (Paragraph IV, below), to California Government Codes ) given pursuant to Government Code Section 913 and 915.4. Please not& ,. !, 1n ,ngs". Claimant: ARATA EOUIPYIENT COMPANY C 2 .1 1985 Attorney: Dorothy L. Green Gibbons , Lees & Schaefer '8rtmez, CA 94553 Address: 1601 North California Boulevard Walnut Creek CA 94596 By Amount: Indemnity & Contribution CERT P�Z19429100to clerk n Date Received: December 23, 1985 By mail, postmarked on December 17 , 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: Dec. 24, 1985 PHIL BATCHELOR, Clerk, By Deputy II. FROM; County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( This claim complies substantially with Sections 910 and 910.2. ( ) This claim FAILS to comply substantially with Sections 910 and 910.2, and we are so notifying claimant. The Board cannot act for 15 days (Section 910.8). ( ) Claim is not timely filed. Clerk should return claim on ground that it was filed late and send warning of claimant's right to apply for leave to present a late claim (Section 911.3). ( ) Other: Dated; By: Deputy County Counsel III. FROM: Clerk of the Board TO: (1) C unty Counsel, (2) County Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present (-,P< This claim is rejected in full. ( ) Other: I certify that this is a true and correct copy f the arrd's Order entered in its miJA n} d�e1s for this date. Dated: 1 4 PHIL BATCHELOR, Clerk, ByJ A&Jo , Deputy Clerk WARNING (Gov. Code Section 913) Subject to certain exceptions, you have only six (6)-months from the date of this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. V. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator Attached are copies of the above claim. We notified the claimant of the Board's action on this claim by mailing a copy of this document, and a memo thereof has been filed and endorsed on the Board's copy of this Claim in accordance with Section 29703• ( ) AQwarning of claimant's right to apply for leav to pr sent a late claim was mailed DATED:tlA �i PHIL BATCHELOR, Clerk, By ° , Deputy Clerk cc: County Administrator (2) County Counsel (1) 1 AUSTIN R. GIBBONS ..... DOROTHY L. GREEN ����jc�'�7'1 2 GIBBONS, LEES & SCHAEFER I r D 1601 North California Boulevard 3 Walnut Creek, CA. 94596 OEC Al%5 Telephone: (415) 932-3600 4 PMt6ATCHR * Attorneys for Claimant SER" Ria S 5B- ARATA EQUIPMENT COMPANY 6 TO: Board of Supervisors County of Contra Costa 7 P. 0. Box 911 8 Martinez, CA. 94553 RE: CLAIM FOR INDEMNITY AND CONTRIBUTION 9 ARATA EQUIPMENT COMPANY hereby makes claim against 10 the County of Contra Costa for Indemnity and Contribution and 11 makes the following statements in support of this claim: 12 1 . Claimant: ARATA EQUIPMENT COMPANY 2 . Notices: Notices concerning this claim are to 13 be sent to Dorothy L. Green, Gibbons, Lees & Schaefer, 1601 14 North California Boulevard, Walnut Creek, CA. 94596 3. Occurrence Giving Rise to Claim: Arata Equipment 15 Company has been named as a defendant in Henry vs. McLellan,et al . an action filed in the County of Contra Costa, Action No. 248895. 16 A copy of said First Amended Complaint is attached hereto. Plaintiff is seeking damages from Arata Equipment Company. The 17 complaint alleges a cause of action for general negligence and 18 products liability against Arata Equipment Company and has served Arata Equipment Company as Does 3, 13 , 33 and 43 therein. 19 4 . Date of Service of First Amended Complaint: 20 Arata Equipment Company was served as DOES 3, 13 , 33 and 43 on or about October 9, 1985. 21 5. Identity of Public Employees: At this time 22 the names of the public employees causing the damage are unknown. 23 24 6. Damages and Injuries: Plaintiff alleges personal injuries, property damages , wage loss, medical expenses, and 25 emotional distress. 26 GIBBONS, LEES & SCHAEFER ATTORNEYS Al LAW 1601 North Calitorma B&v0, WALNUT CREEK.CA 945% (415)931.3600 1 Arata Equipment Company seeks indemnity and contribution from County of Contra Costa for any and all damages 2 held against them. 3 DATED: December 17, 1985 4 GIBBONS, LEES & SCHAEFER By � ') 6 Doro by L. Green 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GIBBONS, LEES & SCHAEFER ~2- ATTORNEYS AT LAW 1601 Noon CanlorrQ Blvd, WALNUT CREEK.CA 915% 1/151932 3600 ,UIViIV1U1VJ Al IFIJL, D COMPI.n1N-P t (Cl TA CION JUDICIAL, W roa rourar cast ONLY ' -.'NOTICE TO DEFENDANT; (Aviso a Acusado) /1010-04 1150 Of JA CO/rr) EDGAR REED MCTFLJ,AN r DOMESTIC AUTO-TRUCK. REPAIR, INC. and VOLVO WHITE TRUCK CORP. , INC. and Does 1 to 20, inclusive phd Does '30 through 50 , inclusive. YOU ARE BEING SUED BY PLAINTIFF: (A Ud. le estJ`denlandando) CLARENCE WILLIAM HENRY You have 30 CALENDAR DAYS after this sum- Despu6s de que le entrrguen esta citacidn judicial casted mons is served on you to fila a typewritten re- bene un p/azo de 30 DIAS CALENDARIOS para presentar sponse at this.court. una respuesm escrita a miquina en esta torte. A letter or phone call will not protect you; your Una Carta o una llamada telef6nica no le ofmcerrf typewritten response must be In proper legal prptecci6n; su respuesta escrita a miquina tiene que form H you went the court to hear your case. cumplir con las formalidades lega/es apropiadas si usted N you do not file your response on time,you may quiere que la Corte escuche su Casa lose the case, and your wages, money and pro- Si usted no presenta su respuesta a tiempo, puede perder perty may be taken without further warning from el casq y le pueden quitar su salariq su dinero y otras cocas the court. de su propiedad sin aviso adicional por parte de la torte. There are other legal requirements. You may Existen ofros requisitos legales. Puede que usted quiera went to call an attorney right away. If you do not llamar a un abogado inmediatamente. Si no conoce a un know an attorney, you may call an attorney refer- abogado puede llamar a un servicio•de referencia de tai service or a legal aid office(listed in the phone Abogados o a una oficina de ayuda legal(v�ea el directorio book)• telef6nico). CASE NUMBER: tNj~#o del Caro) The name and address of the court is: (El nombre y direcci6n de la torte es) _ 248895 Contra Costa Superior Court P. O. Box 911, 725 Court Martinez , CA 94553 The name4 address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: (EI nombre, la direcci6n I el numero de relriono del abogado del demandante, u del demandants que no Nene .Ebogado, es) Harvey M. Kletz (4).5) 655-7241 KLETZ & MOLL 5315 College Avenue Oakland, CA 94618 DATE: MAR 2 31984 J. �_ OLSSON Clerk, by _ Deputy Iferhal (Actuarro) (Delegadol ISEALI NOTICE TO THE PERSON SERVED: You are served 1. as an individual defendant. 2. as the person sued undo( the fictitious name of (specily): 3. ® on bDoes elf of'isP ciiy):33AraL Equipment Co . under: L ] CCP 416.10 (corporation) Q CCP 416.60 (minor) [] CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) [� CCP 416.40 (association or partnership) R CCP 416.90 (individual) Q other: 4. Q by personal delivery on (duel: ro,,w AAAtlI�tl Dv Rulr 9RJ ISw• ,....,�• In• 0.nn1 n1 Cw•••f .. AOOF OF SERVICE — SUMMONS l • (fee separate proof of service for each person serwdl 1. 1 servnd the e. summons FX-1complaint Q amended summons Q amended complaint P completed and blank Case Questionnaires Other (specify): b. on defendant (name): ARATA EQUIPMENT COMPANY C. by serving 0 defendant ® other (name and title or relationship to person served): VIOLA DUARTE, Authorized AgVnt d. ® by delivery= at home ® at business (1) date: October 9, 1985 (2) time: � 11:50 A.M. (3) address: 100 California Drive, Burlingame, CiAlifornia e. Q by mailing (1) date: 12),place: 2. Manner of service (check proper box): a. ® Pbrsonai service. By personally delivering copies. (CCP 415.101 Q o Substituted service on corporation, unincorporated association (Including partnership), or public entity. By leaving, during usual office hours, copies in the office of the person served with the person who apparently was in charge and thereafter mailing (by first-class mail, postage prepaid)copies to the person served at the place where the copies were left. (CCP 415.20(e)) C. Q Substituted service on natural person, minor, conservatee, or candidate. By leaving copies at the dwelling house, usual place of abode, or usual place of business of the person served in the presence of a competent member of the household or a person apparently in charge of the office or place of business, at least 18 years of age, who was informed of the general nature of the papers, and thereafter mailing (by first-class mail, postage prepaid) copies to the person served at the place where the copies were left. (CCP 415.20(b)) (Attach separate declaration or aNidevit stating acts relied on to establish reasonable diligence in first attempting personal service.) d. Q Mail and acknowledgment service. By mailing (by first-class mail or airmail, postage prepaid) copies to the person served, together with two copies of the form of notice and acknowledgment and a return envelope,postage prepaid, addressed to the sender. ICCP 415.30) /Attach completed acknowledgment of receipt.) a. Q Certified or registered mail service. By mailing to an address outside California (by first-class mail, postage prepaid, requiring a return receipt)copies to the person served. (CCP 415.40) (Attach signed return receipt or other evidence of actual delivery to the person served.) f. Q Other (specify code section): Q additional page is attached. 3. The "Notice to the Person Served" (on the summons) was completed as follows (CCP 412.30, 415.10, and 474): a. as an individual defendant. b, as the person sued under the fictitious name of (specify): C. on behalf of (specify): ARATA EQUIPMENT COMPANY under: CCP 416.10 (corporation) [] CCP 416.60 Iminor► other: [� CCP 416.20 Idefunct corporation) 0 CCP 416.70 lconservatee) CCP 416.40 (association or partnership) CCP 416.90 (individual) d. © by perscnal delivery on (dare): 10-9-85 Al. At the time of service 1 was at least 18 years of age and not a party to this action. 5. Fee for service: S 27.50 6. Person serving: a. Q California sheriff, marshal, or constable. (. .Name,address and telephone number and,if applicable, b, o Registered California process server. county of registration and number: C. ® Employee or independent contractor of a registered METRO LEGAL SERVICES, INC. California process server. 1330 Broadway, Suite 900 d. Not a registered California process server. Oakland, California 94612 (415) 444-4800 a. Exempt from registration under Bus. & Prof. Code #132 Alameda County Registered 22350(b)• Server's registration No. declare under penalty of perjury under the laws of the State (For California sheriff, marshal, or constable use only) of California that the foregoing is true and correct. I certify that the foregoing is true and correct. Date: October 1 1985 Date: {S N {SIGNATURf� ss2unsi IMK+«w..r t. rasa .R. JOHNSTON IA•3 ATTOWY OR PARTY WITHOUT ATTOFMY(NAME AND ADDRESS): TELEPt FOR COURT USE ONLY HARVEY M. KLETZ, KLETZ 6 MOLL (415) 655-7141 1 5315 College Avenue Oakland, CA 94618 CLARENCE WILLIAM HENRY O ATT(�1MIEv ion tNAMEI f Insert name of court,judicial district Or branch court.it any,and poet office and sl»el address: MAR 2 3 1984 I SUPERIOR COURT OF THE STATE OF CALIFORNIA ,I.Ci. O1_��,,;! Cuui,1Y Clerk I� IN AND FOR THE COUNTY OF CONTRA COSTA le"P. C.3 coUh i't P.O. Box 911 , Court and Main Streets Martinez, CA 94553 PLAINTIFF: CLARENCE WILLIAM HENRY DEFENDANT: EDGAR REED McLELLAN, DOMESTIC AUTO-TRUCK REPAIR, INC. and VOLVO WHITE TRUCK CORP. , INC. and [a00E5l TO 2D, inclusive and DOES 30 through 50, inclusive D CASE NUMBER: --Personal Injury, Property Damage, Wrongful Death GaMOTOR VEHICLE CDOTHIM(specify): Q►roperty Damage Q Wrongful Death 901111ersonal Injury Q O#w Damages(specify). 248895 1. This pleading, including ahachments and exhibits,consists of the following number of pages: 9 2. a. Each plaintiff named above Is a competent adult Q Except plaintiff(name): CD a corporation qualified to do business In California C an unincorporated entity(describe): Q a public entity(describe): Q a minor M an adult [_] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed Q other(speedy): Q other(specify): Q Except plaintiff(nano): []a corporation qualified to do business M California Q an unincorporaled entity(describe): [—)a public entity(describe): Ma minor [Z)an adult C:3 for whom a guardian or conservator of the estate or a guardian ad Ulem has been appointed ED other(speopy): p other(Specify) b. Q Plaintiff(name): is doing business under the Ncti lous name of(specify): and has complied with the fictitious business name laws. c. Q Information about additional plaintiffa who are not competent adults is shown in Complaint— Attachment 2c. (Continued) Form Appfoveo Dv Ina Judfal1 01 1COMPLAINT—Personal Injury, Property Damage Jan Janua�� 1 �962 EMClira 9b2 , Ruh 982 1111 Wronotiel D&SI i 1A-4 _ SNORT TITLE: CASE NUMBER HENRY v. McLELLAN 248895 'FIRST AMENDED COMPLAINT--Personal Injury�Property Damage,wrongful Death hes w. 3. a. Each defendant named above Is a natural person ®Except defendant(name): DOES 1 to 10 KM Except defendant(name): DOES 11 to 20 Cg)ca business organization, form unknown Q a business organization, form unknown []a corporation, Q a corporation Q an unincorporated entity(describe): []an unincorporated entity(describe): C a public entity(describe): [ J a public entity(describe): Q other (specify): [.1 other(specify): Q Except detendant(name): Q Except defendant(name): Q a business organization, form unknown []a business organization, form unknown Q a corporation M a corporation Q an unincorporated entity(describe): []an unincorporated entity(describe): Q a p�sbhc entity(describe): CD a public entity(describe): other (specie , .�� Y): Q other(specify): b. The true names and capacities of defendants sued as Does are unknown to plaintiff. c. Informaiion about additional defendants who are not natural persons is contained in Complaint— Attachment 3c d. Q Defendants who are joined pursuant to Code of Civil Procedure section 382 are(names): s. ® Plaintiff .s required to comply with a claims statute, and a. ffypiaintrff has compiled with applicable claims statutes, or b. G plarntrtf is excused from complying because(specify): 5. This court is the proper court because Q at least ogle delepdant now resides in its jurisdictional area. Q the principal place of business of a corporation or unincorporated association is in its jurisdictional area. ® injury to person or damage to personal property occurred in its jurisdictional area. Q other(specdy) 6. Q The following paragraphs of this complaint are alleged on information and belief(specify paragraph numbers).- (Continued) umbers).(Continued) Pap two IIA-4 SNORT TITLE CASE NUMBER HENRY v. McLELLAN 248895 COMPLAINT—*ir>wAd InWy.Property Damage,Wrongful Death(Continued) Pao.*ase 7. Q The damages claimed for wrongful death and the relationships of plaintiff to the deceased are Q listed in Complaint—Attachment 7 C]as follows: A. Plaintiff has suffered ©wage loss []loss of use of property ©hospital and medical expense& fy]general damage Q properly damage JEZ loss of earning capacity ©other damage(spec)W: emotional distress 9. Relief sought in this complaint is within the jurisdiction of this court. 10. PLAINTIFF PRAYS For judgment for costs of suit; for such relief as is fair,just, and equitable; and for 10 compensatory damages Q(superior Court)according to proof. Q(Municipal and Justice Court)in the amount of S Q other (specify). 11. The following causes of action are attached and the statements above apply to each. (Each complaint must have one of more causes of soden attached.) IM Motor vehicle =General Negligence Q Intentional Tort Products liability (�Premises liability (�Other(specify) Dated: March 16, 1984 HARVEY M. KLETZ (Type a prktl mare*) - (Si alum of pi mbff or auor COMPLAINT-Personal llqluy, Propeny Damage, Y P&OSUwe* 111460621(1)1 not Al I`160illir (i:'W1lrit+ )J,I c'r.Qa?9 r? IIA-7 SHQRT TITLE: CASE NUMBER HENRY v. McLELLAN 248895 FIRST CAU8E OF ACTION—Motor Vehicle Page 4 (number) FIRST AMENDED ATTACHMENT TO [ZiComplalnt QCrou-Oomplaint (vee a aeparafe cause of action form for each cause of action.) Plaintiff(name) CLARENCE WILLIAM HENRY MV-1. Plaintiff alleges the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff; the acts occurred on(date) 3/22/83 at(place) Moraga Way, South of Orchard Road, unincorporated, Contra Costa County MV-Z. DEFENDANTS a. CX�he defendants who operated a motor vehicle are(names): EDGAR REED mCLELLAN M Does . 31 to_ _ 40 b. ® The defendants who employed the persons who operated a motor vehicle in the course of their employment are(names): )(K Does 1_.._to 10 c. The defendants who owned the motor vehicle which was operated with their permission are(names): tx; Does 41_— to 5 0 d. ® The defendants who entrusled the motor vehicle are(names): [X*Does 1L_ to 20 e. ® The defendants who were the agents and employees of the other defendants and acted within the scope of the agency were(names): EDGAR REED McLELLAN [�] Does to f. ® The delendants who are liable to plaintiffs for other reasons and the reasons for the liability are []listed in Attachment MV-2f CDas follows: See attached Third Cause of Action, Fourth Cause of Action, Fifth Cause of Action [�Does . to FOM Appovoo by Me Juaraial C 4md of Coidoinis (Efbctive January 1, 1902 Rule 962 1)?) r F nIF iA fb7: SHOAT TITLE CASE NUMeEa HENRY v. McLELLAN 248895 SECOND _. CAUSE OF ACTION—General Negligence Page s inumbefl FIRST AMEN ATTACHMENT TO oComplalnt MCrose-Complain! (Use a separate cause of action torr" for each cause of action.) ON-t, Plaintiff(name) CLARENCE WILLIAM HENRY alleges that defendant(name): EDGAR REED McLELLAN Does was the legal (proximate) Cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to pialntlff on(dere) 3/22/83 et(place) Moraga Way , South of Orchard Road, unincorporated, Contra Costa County (description of reasons for Nab)My): Operated his motor vehicle in a careless, negligent manner causing it to collide with plaintiff , a pedestrian Form Approved n, 1ho 'A0CM 1 Council of CaMomia E iwu till�i�i '�2 CAUSE OF ACT1( P1—Oene►tl Ne ll once cr.ift as 12 tA•11 SHORT TITLE CASE NUMBEA HENRY v. McLELLAN 248895 THIRD _ CAUSE OF ACTION—General Negligence Page 6 rJ^De„ FIRST AMENDED ATTACHMENT TO EcXIComplaint []Cross•Complaint (Use a separate cause of acllon form for each cause of action.) GN-1. Plaintiff iname) CLARENCE WILLIAM HENRY alleges that delendant(name): DOMESTIC AUTO—TRUCK REPAIR, INC. t ;Does was the legal (proximate) cause of damages to plaintiff. ey the following acts or omissions to act, defendant negliStantty caused the damage to plaintiff on(nate) at(place) (description of reasons for liability): Defendant DOMESTIC AUTO-TRUCK REPAIR, INC. negligently repaired and cared for the vehicle from which plaintiff had lighted immediately prior to being struck by a vehicle, in that defendant DOMESTIC AUTO-TRUCK REPAIR did not repair certain lights and other items on plaintiff ' s vehicle, therefore causing another vehicle to collide with the rear of plaintiff 's vehicle and plaintiff. Foam Approvea bi the Judicial Council of Ca1,10111w Eamisve.Ianuair i i 9a2 Ru*982 it 3.1 CAUSE OF ACTION--General NF(Jlinenre r•rP 4?5 1? to-9 Now SHORT TITLE CASE NUMBER HENRY v. McLELLAN 248895 FOURTH CAUSE OF ACTION—General Negligence Page FIRST AMENDED ATTACHMENT TO XX)Complaint CDCron-Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff iname) ` CLARENCE WILLIAM HENRY alleges that defendant(name): VOLVO WHITE TRUCK CORP. , INC. Does -__ to was the Legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act. defendant negllgemiy caused the damage to plaintl" on(dates at(place I (description of reasons for Nabdity): Defendant VOLVO WHITE TRUCK CORP. , INC. negligently designed and manufactured the vehicle plaintiff was operating immediately prior to being struck by a vehicle, therefore causing another vehicle to collide with the rear of plaintiff ' s vehicle and plaintiff . Foien Appfowea by Int Judic6al Councd of Cabfu a EA«uw January I Isaz pub 962 1(3) CAUSE OF ArMON--Cene►al Negligence CCP 425 12 •, to-t: SHORT TITLE: CASE NUMBER: HENRY v. McLELLAN 248895 FIFTH _ CAUSE OF ACTION—Products Liability Page 8 tnumtot) FIRST AMENDED With Regard to Defendant VOLVO - ATTACHMENT TO GaCompildnl [QCros"ampiaint WHITE TRUCK CORP. , INC. Only (Uao a seperafe_Cause Of actton form br each cause of action.) f ftliff(name) CLARENCE WILLIAM HENRY Prod.L-1. On or about(dots): 3/2 2/8 3 plaintiff was Injured by the following product: VOLVO WHITE garbage compactor truck Prod.L-2. Each of the defendants knew the product would be purchased and used without inspection for defects. The product was defective when It left the control of each defendant. The product at the time of injury was being [R]Qjsed in the manner intended by the defendants. (_R) sed in a manner that was reasonably foreseeable by defendants as involving a substantial danger not readily apparent. Adequate warnings of the danger were not given. Prod.L-3. Plaintiff was a C purchaser of the product. EM user of the product. [=I bystander to the use of the product. [D other(specify): PLAINTIFF'S INJURY WAS THE LEGAL(PROXIMATE)RESULT OF THE FOLLOWING: Prod.L-4. ®Count One—S rW U&MIlly of the following defendants who a Lx7 manufactured or assembled the product(names): VOLVO WHITE TRUCK CORP. , INC. ®Does 51 __ to___60 __.. b [ designed and manufactured component parts supplied to the manufacturer(names): VOLVO WHITE TRUCK CORP . , INC. jA Does_61___110 - 7.0- c __to 7D- c atsoid the product to the public(names): VOLVO WHITE TRUCK CORP. , INC. ®Does 7 7 10-80-- Prod-L-5. o $0-_Prod.L-5. [—y)Count Two--Negllgenoe of the following defendants who owed a duty to plaintiff(names): VOLVO WHITE TRUCK CORP. , INC. ®Does Qom=_to--go-- Prod.L-8. [�ounl Three—MeepR of warranty by the following defendants(names): VOLVO WHITE TRUCK CORP. , INC. ®Does 91 to Inn_ a. x[ *who breached an Implied warranty b. Cawho breached an express warranty which was [] written Coral Unknown Prod.L-7. Q The delendanb who are Mable to plaintiffs for other reasons and the reasons for the liability are Q listed In Atlaohmenl—Prod.L-7 []as follows: Form Approvea b,1h6 Judic1W Council of C5111011yrs f"euve 46nuary 1.1083 p:rM VR'' if•1 r S pkv'?' f% 1 ATTACHMENT 3 (c) 2 The organizational form of DOMESTIC AUTO-TRUCK REPAIR 3 is unknown at this time. 4 VOLVO WHITE TRUCK CORP . , INC. is a corporation . L S 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 _g_ YLETZ t MOLL ATTON"V&AT LAO I'll 6 COLLLO4 Av[Mu[ . LANO.CAL/1 Mel• 14 1•t���-'►t 11 1 PROOF OF SERVICE BY MAIL 2 I am a resident of the United States and the County of 3 Contra Costa. I am over the age of eighteen (18) years and not a 4 party to the within action. My business address is 1601 North 5 California Boulevard, Walnut Creek, CA. 94596 6 On the date set forth below, I served the within: 7 Claim for Indemnity and Contribution 8 9 10 11 by placing a true copy thereof enclosed in a sealed envelope with 12 postage thereon fully prepaid, in the United States Post Office, 13 at Walnut Creek, California, addressed as follows: 14 Board of Supervisors 15 County of Contra Costa P. 0. Box 911 16 Martinez, CA. 94553 17 18 19 20 21 22 I declare under penalty of perjury that the foregoing is 23 true and correct. 24 Executed on December 17 , 1985 1985, at Walnut Creek, 25 California 26 DARLENE LEE GIBBONS, LEES & SCHAEFER ATTORNEYS AT LAW 1601 Noon C hfwfu pw. WUNOI CREEK.CA 915% 14151912-3600 CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or bistriet ) NOTICE TO CLAIMANT January 14, 1986 governed by the Board of Supervisors, ) The copy of this document mailed to you is your Routing Endorsements, and Board ) notice of the action taken on your claim by the Action. All Section references are ) Board of Supervisors (Paragraph IV, below), to California Government Codes ) given pursuant to Government Code Section 913 Claimant. MOLLY MILLIKEN and 915.4. Please note all "Warnings". Attorney: Kuvara Law Firm 2204 Union Street DEC 1 i 19$5 Address: San Francisco, CA 94123 Amount: $75 , 000. 00 By delivery to clerk on Marttinp.z, CA 94553 Date Received: December 16 , 1985 By mail, postmarked on December 13 , 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: Dec. 17, 1985 PHIL BATCHELOR, Clerk, By " Deputy Ann Cer Mi II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( ) This claim complies substantially with Sections 910 and 910.2. ( ) This claim FAILS to comply substantially with Sections 910 and 910.2, and we are so notifying claimant. The Board cannot act for 15 days (Section 910.8). ( ) Claim is not timely filed. Clerk should return claim on ground that it was filed late and send warning of claimant's right to apply for leave to present a late claim (Section 911.3). ( ) Other: Dated: ;.- ,- /°, `:, By: Deputy County Counsel III. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present ( This claim is rejected in full. ( ) Other: I certify that this is a true and correct copy f the Board's Order entered in its minute for t is date. Dated: J A 14 i98 PHIL BATCHELOR, Clerk, By ° , Deputy Clerk WARNING (Gov. Code Section 913) Subject to certain exceptions, you have only six (6) months from the date of this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. V. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator Attached are copies of the above claim. We notified the claimant of the Board's action on this claim by mailing a copy of this document, and a memo thereof has been filed and endorsed on the Board's copy of this Claim in accordance with Section 29703• ( ) A warning of claimant's right to apply for le ve to esent a late claim was mailed DATED:Wi"Ntb PHIL BATCHELOR, Clerk, By , Deputy Clerk cc: County Administrator (2) County Counsel (1) rrr 8 TM 1 KUVARA LAW FIRM 2204 Union Street San Francisco, CA 94123 (415) 922-5522 13 4 1 Attorneys for Claimant 5 In the Matter of the Claim of CLAIM FOP. PERSONAL INJURY MOLLY MILLIKEN against BAY G AREA RAPID TRANSIT, CITY OF (Gov. Code Section 910) _ WALNUT CREEP: and COUNTY OF CONTRA COSTA 8 To The Board of Supervisors for `� �EIVED BAY AREA RAPID TRANSIT 9 To the Board of Supervisors of Contra Costa County for the DEC 16 1985 10 COUNTY OF CONTRA COSTA To the City Clerk for the PW e�rcNf►ol 11 CITY OF WALNUT CREEK: �ERc TRACos v psoas 12 13 MOLLY MILLIKEN of 2770 Geneva Street, Martinez, CA, 94553, pre- 14 sents a claim for damages in the amount of SEVEITTY FIVE THOUSAND 15 DOLLARS ($75, 000 . 00) estimated as of the date of presentation of 16 this claim. The following statements are made in reference ' to 17i this claim. 18 1. Notices concerning this claim should be sent to the 19 KUVARA LAW FIRM, 2204 Union Street, San Francisco, CA, 94123 . 20 2. The occurrence giving rise to this claim took 21 place on or about November 23, 1985, at or near the Walnut Creek 22 BART STATION. The circumstances of the occurrence are as follows 23 Claimant tripped and fell over a bicycle post on the sidewalk at 24 Walnut Creek BART station. Said post is nearly invisible by 23 � reason of its being the same color as the surrounding pavement. 26 3. The name (s) of the public employee (s) causing or 271 contributing to the injuries, damage, and loss for which this 28i claim is to be made are "unknown. " s� 1 , 4 . The injuries, damages, and loss for which this claim is made, so far as now known, consist of a broken -arm, 3�! shattered wrist, cuts abrasions and bruises to the hip, thigh 4 I and leg. 5i 5 . The basis of computation for the amount claimed for G these injuries, as now known and prospectively estimated, is as 7 follows: Extended past, present and future treatment at Kaiser S Permanente. Bills and records although unavailable at this time will be presented as soon as they are received. 10 1 11 Dated: December 13 , 1985 KUVARA LAWFIRM 12 13 14 1 By NEAL KU"/ARIA.- 15 U ARA15 Attorneys for Claimant 161 1 18 I 20 21 2`' ' 23 2.1 251 2611 2, 1 281,r u 1 PROOF OF SERVICE BY MAIL 2 I declare that I am employed in the City of San Rafael, 3 County of Marin, California. I am over the age of eighteen years 4 and not a party to the within cause. My business address is 5 P. O. Box 150, San Rafael, California. 6 On December 13 , 1985 I served the within 7 CLAIM FOR PERSONAL INJURIES - 8 9 10 11 on THE INTERESTED PARTIES 12 in said cause by placing a true copy thereof enclosed in a sealed 13 envelope with postage thereon fully prepaid, in the United States 14 mail at San Rafael, California, addressed as follows: 15 16 Mr. Phillip Ormsbee BART DISTRICT 17 800 Madison St. , 5th Floor Oakland, CA 94604 18 Clerk to the 19 Board of Supervisors 651 Pine Martinez , CA 94553 20 City Clerk 21 P.O. Box 8039 Walnut Creek, CA 94596 22 Attn: Risk Manager 23 I declare under the pbnalty of perjury that the foregoing 24 is true and correct, and that this declaration was executed on 25 December 13 , 1985 at San Rafael, California. 26 27 28 SERE,NA HAL IAN �y CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COi1NTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT January 14 1986 governed by the Board of Supervisors, ) The copy of this document mailed to you is your Routing Endorsements, and Board ) notice of the action taken on your claim by the Action. All Section references are ) Board of Supervisors (Paragraph IV, below), to California Government Codes ) given pursuant to Government Code Section 913 and 915.4. Please note all "Warnings". Claimant: STATE FARM FIRE AND CASUALTY and CALANDRIO TRIL and ROSARIO TRIL Attorney: Stephen N. Cole Cole Cross Culbreth, Inc. Address: 4242 Florin Road ITEC 1 ? 1985 Sacramento, CA 95823 Amount: $900, 000. 00 By delivery to clerk on 51artinez, CA 94553 Date Received: December 16, 1985 By mail, postmarked on December 12 . 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: Deg, 17 , 19 8 5 PHIL BATCHELOR, Clerk, By Deputy Cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) (�) Thi c aim 0 'es substanially With Sections910 and 910.2,CA�eZg�� ( ) This clai FAILS to c ply substantially with ections 910 and 910.2, and we are so notifying claimant. The�Bgard�t act for. 1 ays (Se i n.910 8) Claim is not timely filed: Clerk should return elaim//--on ground that it uwas file late and send warning of claimant's right to apply for leave to present a late claim (Section 911.3). ( ) Other: Dated: By: Deputy County Counsel Ll III. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present ( ) This claim is rejected in full. CKI Other: Portion of original claim not previously returned as untimely is refected in full . I certify that this is a true and correct copf th ard' Order entered in its minutes for this date. Dated: JAN 14 1& PHIL BATCHELOR, Clerk, By ° , Deputy Clerk WARNING (Gov. Code Section 913) Subject to certain exceptions, you have only six (6)-months Prem the date of this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. V. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator Attached are copies of the above claim. We notified the claimant of the Board's action on this claim by mailing a copy of this document, and a memo thereof has been filed and endorsed on the Board's copy of this Claim in accordance with Section 29703. ( ) A warning of claimant's right to apply for le to esent a 4te claim was mailed to,claimant. DATED: JAN 1 k 1986 PHIL BATCHELOR, Clerk, By , Deputy Clerk cc: County Administrator (2) County Counsel (1) 1 STEPHEN N. COLE (Bar No . 53319 ) 2 COLE CROSS CULBRETH, INC. 4242 Florin Road 3 Sacramento, California 95823 4 (916 ) 427-5981 5 Attorneys for STATE FARM FIRE AND 6 CASUALTY, CALANDRIO TRIL and 7 ROSARIO TRIL 8 9 BOARD OF SUPERVISORS COUNTY OF CONTRA COSTA 10 11 12 STATE FARM FIRE AND CASUALTY, ) 13 a corporation, CALANDRIO TRIL; ) ...Y. ROSARIO TRIL, > 14 RECEIVED ) 15 Claimants , ) 16 VS . DEC 1(o 1995 17 ftft COUNTY OF CONTRA COSTA, a public 18entity ) � Aj 19 ) 20 21 22 CLAIM FOR DAMAGES PURSUANT TO GOVERNMENT CODE SECTION 910 23 TO THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA: 24 25 26 YOU ARE HEREBY NOTIFIED THAT STATE FARM FIRE AND 27 28 CASUALTY, CALANDRIO TRIL AND ROSARIO TRIL, HIS WIFE, CLAIM 29 AS FOLLOWS: 30 31 1. The home address of Claimants is 65 Muth 32 33 Drive, Orinda, California. 34 35 36 2. Claimants request that notice to them be sent to their above-named attorney. 1 3. On or about April 10, 1985 , and thereafter , 2 3 Claimants resided at their residence located at the above 4 address . Claimants owned said real property at all times 5 prior and subsequent to the damage hereinbelow described . 6 7 8 4. As a result of the COUNTY OF CONTRA COSTA' s 9 below-described acts, Claimants suffered damage to their 10 11 real and personal property located thereat, and also 12 suffered damage for loss of time , interest from the date of 13 loss to the date of judgment, damages to TRIL'S fixtures, 14 15 diminution in value of TRIL' s real property, interest on 16 loans procured by TRIL as a result of said damage , loss of 17 use of TRIL's property, additional living expenses, loss of 18 19 time in the repair and replacement of items damaged , and 20 Claimants TRIL suffered personal injuries . 21 22 23 5. Claimants set forth the amount of the claim as 24 Nine Hundred Thousand Dollars ( $900, 000. 00) . 25 26 27 6. Damages occured to Claimants' real property 28 and contents and loss of time to CALANDRIO TRIL, ROSARIO 29 30 TRIL and STATE FARM FIRE AND CASUALTY caused by the streets , 31 roadways and associated drains, ditches , fill , and 32 structures associated with Muth Street and Austin Court, 33 Orinda, California. 34 35 36 7. Claimants are informed and believe and thereon 1 allege that the COUNTY OF CONTRA COSTA negligently planned 2 3 and designed said roadways, the drainage culvert servicing 4 said roads at said location, maintained said roadway and 5 drainage culvert system. 6 7 8 B. The COUNTY OF CONTRA COSTA caused said 9 damage of Claimants' property. 10 11 12 9. Said damage constituted a temporary taking of 13 Claimants' said property and permanent damage to Claimants' 14 15 property for public use without a condemnation proceeding in 16 violation of California Construction Article I section 19. 17 18 19 10 . The COUNTY OF CONTRA COSTA has not 20 compensated Claimiants for said taking and use. 21 22 23 11 . Flooding was the proximate cause of said 24 taking . 25 26 27 12. Said taking deprived Claimants of their use 28 and enjoyment of said property. 29 30 31 13 . Said negligence in the plan , design, and 32 maintenance activities was foreseeable , and the COUNTY OF 33 34 CONTRA COSTA had constructive knowledge of said negligence 35 and the foreseeable injuries caused by said negligence. 36 1 14 . Said roadways constitute public property in a 2 3 dangerous and defective condition on April 10, 1985 and 4 immediately prior thereto . 5 6 7 15 . Said dangerous and defective condition 8 created a reasonably foreseeable risk of water and soil 9 damage to property in the areas adjacent to said roadways . 10 11 12 16. The COUNTY OF CONTRA COSTA had constructive 13 knowledge of said dangerous and defective condition and the 14 15 foreseeability of injury as a result of said dangerous and 16 defective condition. 17 18 19 Date : Z, b- j CANDELARIO TRIL AND ROSARIO TRIL By: 20 21 22C 71� �-- 23 STEPHLVN iQ. COLE 24 Attorney for Claimants 25 26 n 27 / 28 STATE VARM FIRE AND CASU TY 29 30 31 32 33 34 35 36 BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT January 14, 1986 governed by the Board of Supervisors, ) The copy of this document mailed to you is your Routing Endorsements, and Board ) notice of the action taken on your claim by the Action. All Section references are ) Board of Supervisors (Paragraph IV, below), to California Government Codes ) given pursuant to Government Code Section 913 and 915.4. Please note all "Warnings". Claimant: JOHN RANDOLPH HASSENZAHL Attorney: Robert J. Orduna DEC 17 1985 Address: Attorney at Law 1104 Buchanan Road, Suite 4 Martinez, CA, 94553 Amount: Antioch, CA 94509 By Aligri%Gbigfei Cdon X100, 000. 00 December 16, 1985 Date Received: December 16, 1985 By mail, postmarked on I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: Dec. 17 , 1985 PHIL BATCHELOR, Clerk, By0� Deputy Cervel i II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) � ) This claim complies substantially with Sections 910 and 910.2. ( ) This claim FAILS to comply substantially with Sections 910 and 910.2, and we are so notifying claimant. The Board cannot act for 15 days (Section 910.8). ( ) Claim is not timely filed. Clerk should return claim on ground that it was filed late and send warning of claimant's right to apply for leave to present a late claim (Section 911.3). ( ) Other: Dated: /YS's By: �.r. l= C' \ G jC.� (.e,A-77�._ Deputy County Counsel III. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present This claim is rejected in full. ( ) Other: I certify that this is a true and correct copy =f the Board's Order entered in its minutes for this date. Dated: JAN 1 A 1986 PHIL BATCHELOR, Clerk, By , Deputy Clerk WARNING (Gov. Code Section 913) Subject to certain exceptions, you have only six (6) months from the date of this notice was personally served or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this matter. If you want to consult an attorney, you should do so immediately. V. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator Attached are copies of the above claim. We notified the claimant of the Board's action on this claim by mailing a copy of this document, and a memo thereof has been filed and endorsed on the Board's copy of this Claim in accordance with Section 29703. ( ) A warning of claimant's right to apply for leave to resent a late claim was mailed to DATED: JAfRi 6 PHIL BATCHELOR, Clerk, ByrL. 0 , Deputy Clerk cc: County Administrator (2) County Counsel (1) CLAIM v RECEIVED CLAIM AGAINST THE COUNTY OF CONT COSTA PWeAsc"FLoR arc eoAro OF swevr"s ITS AGENTS AND EMPLOYEES e ows s, co. JOHN RANDOLPH HASSENZAHL presents a claim for damages against the COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, and its agents and employees. ADDRESS OF CLAIMANT: 4630 N. Stone Road Bethel Island, CA 94511 ADDRESS TO WHICH NOTICES ARE TO BE SENT: JOHN R. HASSENZAHL c/o ROBERT J. ORDUNA Attorney at Law 1104 Buchanan Road, Suite 4 Antioch, CA 94509 DATE, PLACE AND CIRCUMSTANCES OF OCCURRENCE : On Sunday evening, September 8, 1985, at approximately 8:00 p.m. , Claimant was lawfully using a public telephone located at DELTA RESORT, 6777 Riverview Road, Bethel Island, California, when he was physically assaulted by Deputy ED L. NUNN, Employee No. 22844, and another Deputy officer, name unknown. Claimant was talking on the telephone with his girlfriend , CHRISTINE SIMMONS, when he was approached by Deputy Nunn, who began striking Claimant about the body with a billy club. After pleas by Claimant, the Deputy stopped with the clubbing. The unknown Deputy witnessed the beating, but took no action to prevent or stop said act. PARTIES RESPONSIBLE: CONTRA COSTA COUNTY SHERIFF'S DEPT. SHERIFF RICHARD RAINEY, DEPUTY ED. L. NUNN, UNKNOWN DEPUTY J AMOUNT OF CLAIM: $ 100,000.00. GENERAL DESCRIPTION OF INJURIES & BASIS OF COMPUTATION OF DAMAGES: JOHN RANDOLPH HASSENZAHL suffered the following injuries: Fractured left wrist bone; fractured right hand; head concussion; laceration behind right ear; bumps and bruises on shoulders and numerous parts of body. Claimant also suffered distress and loss of dignity and pride as an American citizen as a result of the assault by Contra Costa County Sheriff 's Deputy Officers. Damages for Claimant are computed on the basis of medical costs, past, present, and future; as well as what it would cost to adequately compensate him for the intentional and/or negligent misconduct of the members of the CONTRA COSTA COUNTY SHERIFF 'S DEPARTMENT and other agents and employees of the COUNTY OF CONTRA COSTA. / DATED: ��//�/ �� / ✓l ((( ROBERT J. ORD A,-Attorney -for JOHN RANDOLPH HASSENZAHL, Claimant s APPLICATION TO FILE LATE CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COMM, CALIFORNIA BOARD ACTION Application to File Late Claim ) NOTICE TO APPLICANT January 14, 1986 Against the County, Routing ) The copy of this document mailed to you is your Endorsements, and Board Action.) notice of the action taken on your application by (All Section References are to ) the Board of Supervisors (Paragraph III, below), California Government Code.) ) given pursuant to Government Code Sections 911.8 and 915.4. Please note the "WARNING" below. Claimant: LONNIE'H. STARK Attorney: John M. Starr Law Office of John M. Starr Address: 1460 Washington Boulevard, Suite B-101 Concord, CA 94521 Amount: $5, 000, 000. 00 By delivery to Clerk on Date Received: December 20, 1985 By mail, postmarked on December (unreadable) I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above noted Application to File Late Claim. DATED: Dec. 23, 1985 PHIL BATCHELOR, Clerk, By j ° Deputy 4An -cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors ( ) The Board should grant this Application to File Late Claim (Section 911.6). The Board should deny this Application to File Late Claim (Section 911.6). DATED: VICTOR WESTMAN, County Counsel, BY � e ut Y III. BOARD ORDER By unanimous vote of Supervisors present (Check one only) ( ) This Application is granted (Section 911.6). 5<1' This Application to File Late Claim is denied (Section 911.6). I certify that this is a true and correct copy of the Board's Order entered in its minutes for this date. DATE: JAN 14 1986 PHIL BATCHELOR, Clerk, By u Deputy WARNING (Gov. Code 6911.8) If you wish to file a court action on this matter, you must first petition the appropriate court for an order relieving you from the provisions of Government Code Section 945.4 (claims presentation requirement). See Goverment Code Section 9.46.6. Such petition must be filed with the court within six (6) months from the date your application for leave to present a late claim was denied. You may seek the advise of any attorney of your. choice in connection with this matter. If you want to consult an attorney, u should do so immediate) . IV. FROM: Clerk of the Board T0: 1 County Counsel 2 County Administrator Attached are copies of the above Application. We notifed the applicant of the Board's action on this Application by mailing a copy of this document, and a memo thereof has ben filed and endorsed on the Board's copy of this Claim in accordance with Section 29703. DATED: JAN 14 1986 PHIL BATCHELOR, Clerk, By ' Deputy V. FROM: 1 County Counsel 2 County Administrator TO: Clerk of the Board of Supervisors Received copies of this Application and Board Order. DATED: County Counsel, By County Administrator, By APPLICATION TO FILE LATE CLAIM e4 i 1 LAW OFFICE of JOHN M. STARR 2 1460 Washington Boulevard, Suite B-101 Concord, California 94521 3 Telephone: (415)672-2080 4 4L%JP 5 Attorney for_M a math ll•AA 0EE a0 19 Eft F 6 F.p 0,- 19Q�kS 7 8 In re the claim of: ) 9 Claimant : LONNIE H. STARK ) APPLICATION TO FILE LATE CLAIM AGAINST THE COUNTY OF 10 vs. ) CONTRA COSTA AND RICHARD RAINEY, SHERIFF OF CONTRA 11 Respondent : COUNTY OF CONTRA ) COSTA COUNTY COSTA, and ) 12 RICHARD RAINEY, ) Sheriff of Contra) 13 Costa County ) 14 TO: THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA: 15 1 . LONNIE H. STARK. hereby applies to the Board of 16 Supervisors of the COUNTY OF CONTRA COSTA for leave to present a 17 claim against the COUNTY OF CONTRA COSTA and RICHARD RAINEY, 18 Sheriff of Contra Costa County, pursuant to §911 .4 of the 19 Government Code. 20 2 . The cause of action of Claimant LONNIE H. STARK as 21 set forth in his proposed claim attached hereto accrued on 22 January 19 , 1985 , a period within one year from the filing of 23 this application. 24 3. The reason for the delay by LONNIE H. STARK in 25 presenting his claim against the COUNTY OF CONTRA COSTA and 26 Sheriff RICHARD RAINEY is as follows: Claimant was shot by one 27 JODELL WILLIAMS on January 19 , 1985, in the COUNTY OF CONTRA 28 COSTA, STATE OF CALIFORNIA, and suffered the injuries and - 1 - damages which are the basis for his claim. 1 Claimant was unaware. that JODELL WILLIAMS was a 2 convicted felon under the supervision of the Department of 3 Corrections of the STATE OF CALIFORNIA and that said JODELL 4 ` WILLIAMS was prohibited by law from owning and possessing the 5 concealable firearm with which JODELL WILLIAMS shot and injured 6 the claimant. Claimant was unaware that the COUNTY OF CONTRA 7 COSTA might be liable upon its failure to take adequate 8 measures to prevent JODELL WILLIAMS from purchasing , owning , and 9 possessing the concealable firearm which was used to shoot the 10 claimant . 11 Claimant did not retain an attorney to represent 12 him in this matter until December 12, 1985, and as a layman was 13 unaware that there might be a legal basis for claim against the 14 COUNTY OF CONTRA COSTA and Sheriff RICHARD RAINEY, but was so 15 informed of such matters by his retained attorney. 16 4 . All of the above constitutes mistake , 17 inadvertence , surprise and excusable neglect by Claimant LONNIE 18 H. STARK, justifying the granting of this application. 19 5 . The COUNTY OF CONTRA COSTA and Sheriff RICHARD 20 RAINEY will not be prejudiced by the failure of claimant to 21 present his claim within the time specified in Government Code 22 §911 .2 by reason of the fact that similar claims were filed by 23 other victims of the shooting incident above-referred to and the 24 COUNTY OF CONTRA COSTA denied each of said claims on the basis 25 that the factual and legal issues are complicated and require 26 judicial resolution. This claimant' s cause of action may be 27 consolidated with the action filed by other victims without 28 .AW OFFICE OF fOHN M.STARR _ 2 _ 460 Washington Blvd. suite B-101 ;oncord,CA 94521 aisi��2.2nsn additional burden or prejudice to the COUNTY OF CONTRA COSTA in 1 matters of discovery, investigation, and trial of such factual 2 and legal issues. 3 , 6. The proposed claim is attached hereto. 4 _ DATE$: December 12, 1985. 5 LAW OFFICE OF JOHN M. STARR 6 7 /� 8 '� JOHNI M. STARR f Attorney for Claimant 9 l 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AW OFFICE OF OHN M.STARR _ 3 _ 460 Washington Blvd. uite B-101 oncord, CA 94521 15)672-2080 1 LAW OFFICE OF JOHN M. STARR 2 1460 Washington Boulevard, Suite B-101 Concord, California 94521 3 Telephone: (415) 672-2080 4 5 Attorney for Claimant 6 7 8 In re the claim of: ) 9 Claimant : LONNIE H. STARK ) CLAIM FOR PERSONAL INJURIES [Government 10 vs. ) Code §910] 11 Respondent : COUNTY OF CONTRA COSTA) and RICHARD RAINEY, ) 12 SHERIFF OF CONTRA ) COSTA COUNTY ) 13 ) 14 TO: COUNTY OF CONTRA COSTA, and RICHARD RAINEY, SHERIFF OF 15 CONTRA COSTA COUNTY: 16 You are hereby notified that : LONNIE H. STARK, 17 3598 Savage Avenue, Pinole, California, claims damages against 18 the County of Contra Costa and Sheriff Richard Rainey in the 19 amount, computed as of the date of presentation of this claim, 20 of $5 ,000 , 000 .00 . 21 This claim is based on personal injuries sustained by 22 claimant on or about January 19, 1985 , under the following 23 circumstances : On or before January 19 , 1985 , agents, officers 24 and employees of the Sheriff' s Department of the County of 25 Contra Costa, negligently, carelessly, recklessly and improperly 26 investigated , controlled, directed , and maintained records 27 of handgun purchases by residents of Contra Costa County so as 28 to permit JODELL WILLIAMS, a convicted felon, to possess , - 1 - f - ' control , or have access to concealable firearms at his place of 1 residence and to carry said concealable firearm on his person. 2 On the date of January 19 , 1985 , at about 7 :30 p.m. claimant 3 4 was a pedestrian in the vicinity of 2772 Pinole Valley Road , 5 Pinole , Contra Costa County, California, when claimant was 6 suddenly and unexpectedly attacked by JODELL WILLIAMS in that JODELL WILLIAMS discharged a concealable firearm at claimant and 7 8 a bullet from said firearm struck claimant, all of which caused 9 permanent damage and injury to claimant' s person. 10 Claimant' s injuries are as far as now known on the 11 date of presentation of this claim: gunshot wound to the chest 12 causing loss of mental function, concussion, scarring, pain, 13 sufferring , mental and emotional distress, permanent physical 14 disability. 15 The names of the public agents, officers, employees, 16 and representatives causing claimant' s damages and loss are at this time unknown to claimant. 17 18 The amount claimed , as of the date of presentation of 19 this claim, is computed as follows : 20 Medical and Hospital Expenses $ 50 ,000 . 00 ( to date and future estimate) 21 General Damages $4 ,950 ,000 . 00 22 ( to date and prospective) 23 Total Claim (as of date of $5,000 ,000.00 presentation of this claim) 24 All notices or other communication with regard to this 25 claim should be sent to JOHN M. STARR, LAW OFFICE OF JOHN M. 26 STARR, 1460 Washington Boulevard , Suite B-101 , Concord , 27 28 .AW OFFICE OF JOHN M.STARR 1460 Washington Blvd. — 2 — 3uite B-101 Doncord, CA 94521 415)672-2080 1 California , 94521 , ( 415) 672-2080 . 2 DATED: December 12 , 1985. LAW OFFICE OF JOHN M. STARR 3 4 C ' JOHNM. STARRY` 6 Attorney for Claimant 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AW OFFICE OF - OHN M.STARR 460 Washington Blvd. _ 3 _ uite B-101 oncord, CA 94521 115)672-2080 PROOF OF SERVIC-E BY NWL -- CCP 1013a, 2015.5 1 1 declare that: 2 1 am (a resident of/employed in) the county of.......................CQntr.a...,Costa. California. ........ lCO:JNTV WHERE MAILING UCCURREDI 3 1 am over the age of eighteen years and not a party to the within cause; my (business/residence) address is:........................ 4 ,14.60 Washington Blvd...., Suite B-101, Concord, CA 94521 5 On ..........Decemb�r...,19........1.9.8.5 ......... I served the within ....Aja?.P.Ilc,dtlon....to—Fi.1.e....Late.............. ...... ... (DATE) 6 Claim...Apainst....the...County....of................. on the .........listed....party........................................................ Contra Costa and Richard Rainey, Sheriff of Contra Costa County 7 in said cause, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the 8 United States mail at..........................C' n.corcY..r.....C:�.17.1c�r11a addressed as follows: 9 Board of Supervisors 10 County of Contra Costa 651 Pine Street 11 Martinez, CA 94553 12 13 14 15 16 17 18 19 20 21 22 23 1 declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on 24 December. 1.9.,.....1.E 8. at ..................... p.37G.Q .c1.........................................................., California. ................................... (DATE) (PLACED 25 26 Lori R. Bisordi ................................................ ................................................ (TYPE OR PRINT NAME) 511NATURE ATTORNEYS PRINTING SUPPLY FORM NO. 11-S REV.JANUARY 1973