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MINUTES - 05211985 - 1.23
CLAIM - BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY. CALMORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT May 21, 1985 governed by the Board of Supervisors, ) The copy of this document mailed to you is your Routing Endorsements, and Board ) notice of Lhe 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: Linda Turnbull COOr,iY-' CounSa_.I Attorney: Donato F-: Allen APR 2 2 1985 . Roboostoff-Allen, Inc. Address: 55 New Montgomery St. , Suite 401 Martinez, 6A 902 San Francisco, CA 94105 Amount: $3,.000,000.00 By delivery to clerk on Date Received: April 17, 1985 By mail, postmarked on April 16, 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: April 18, 1985 PHIL BATCHELOR, Clerk, ByWen Deputy Ann Cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( ) This claim complies substantially with Sections 910 and 910.2. ( Y) 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: l -a-3 — ��, 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 of the Board's Order entered in its minutes for this date. Dated: PHIL BATCHELOR, Clerk, By ,�,,,� 1..�. Qtr 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 present a late claim was mailed to claimant. DATED: :57, PHIL BATCHELOR, Clerk, By0 A4a Deputy Clerk cc: County Administrator (2) - County Counsel (1) CLAIM AGAINST THE COUNTY OF CONTRA COSTA I. CLAIMANT'S NAME (print) : Linda Turnbull 2. CLAIMANT'S ADDRESS: 640 E. Angela, Pleasanton, CA 94566 (address) (City) (State) (Zip Cade) 3. AMOUNT OF CLAIM $___3,000,000.00 PHONE NO. 946-4151 4. ADDRESS To WHICH NOTICES ARE TO BE- SENT, IF DIFFERENT FROM LINES 1 and 2: (print) ROBOOSTOFF-ALLEN, INC. 55 New Mo��gAery St. ,, Suite 401 (Street or P.O. Box Number) San Francisco, CA 94105 (City) (State) (Zip Code) 5, DATE OF ACCIDENT/LOSS: March 6, 1985 6. LOCATION OF ACCIDENTiLOSS: Bancroft Way, Block No. - 1400 T. HOW DID ACCIDENT/LOSS OCCUR: Claimant was walking east across the intersection of 46th Ave/Bancroft in the marked crosswalk. She was between the center median and the east curb when an A.C. Transit bus struck her. $. DESCRIBE INJURY/DAMAGE/LOSS: Numerous fractured bones throughout the body. 9. NAME OF PUBLIC EMPLOYEE(S) CAUSING INJURY/DAMAGE/LOSS, IF KNOWN: Phillip M. McClendon of A.C. Transit 10. ITEMIZATION OF CLAIM (list items totalling amount aet forth above): Medical Expenses $ Unknown at this time Wage Loss Unknown at this time . - t� Special Damages 1, 000 ,000. 00 S _ ___ Several Damages $ 2,000 , 000 .00 p�!L DATCS4El0_". �v essss TOTAL $ 3,000,000. 00 11. Signed by or on behalf of Claimant- it laimant• Donato P. Allen 12. Dated: April 11, 1985 APPLICATION TO FILE LATE CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Application to File Late Claim ) NOTICE TO APPLICANT May 21, 1985 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: Frances Margaret Bailey APR 1 a 1985 Attorney: Rodney Pryor 1615 Bonanza Street, Suite 212 Martinez, CA 94553 Address: Walnut Creek, CA 94596 ggarld delivered Amount: Unspecified By delivery to Clerk on Apr; 1 •16. 1985 Date Received: April 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 Application to File Late Claim. DATED: Apr i 1 16, 19 8 5PHIL BATCHELOR, Clerk, By —(L� a Deputy 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 9.11.6). DATED: 4 1 _ $T7 VICTOR WESTMAN, County Counsel, By_ ", eputy III. BOARD ORDER By unanimous vote of Supervisors present (Check one only) ( ) This Application is granted (Section 911.6). 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: { -2-1 - � PHIL BATCHELOR, Clerk, By o Deputy WARNING (Gov. Code 5911.8) 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 Government Code Section 946.6. 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 inmediately. IV. FROM: Clerk of the Board TO: 1 County Counsel 2 County Administrator Attached are.copies of the above Application. We notifed the applicant of the Boards 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: 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 0RtGthAl 1 LAW OFFICES OF PRYOR, LeVEQLJE & McGHEE 1615 Bonanza St. , Ste. 212 2 Walnut Creek, CA 94596 - 4530 (415) 945 - 0710 3 Attorneys for Claimant 4 File No. : 5 '�E1VED 6 F 7 3; 1108 M. PHIL 8AT1!4EL17•', g CHER!:8 A.�h G: �U'L+•%:'C 1 Br . Denow 9 APPLICATION TO FILE LATE CLAIM: 10 FRANCES MARGARET BAILEY, Claimant, 11 vs. 12 The CITY OF CONCORD, a political sub - N o division of the COUNTY OF CONTRA COSTA, o - D 13 State of CALIFORNIA; CONTRA COSTA COUNTY o moo M> TRANSIT AUTHORITY, an agency/department c�a 14 and/or corporate department of the COUNTY 3 Wwoo OF CONTRA COSTA, a body politic and c0 15 political sub - division of the State of a �3a CALIFORNIA; CONTRA COSTA COUNTY, a body 16 politic and political sub - division of the State of CALIFORNIA; DOES ONE through 17 THIRTY, inclusive; which DOES are the agents, employees, officials and/or 18 representatives of the above - named, and each of them. 19 20 Claimant, FRANCES MARGARET BAILEY, by and through her counsel . and 21 attorney RODNEY E. PRYOR of the LAW OFFICES OF PRYOR, LeVEQUE & McGHEE, 22 does hereby apply to the CITY ATTORNEY, in and for the CITY OF CONCORD, 23 COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA for leave to submit a claim i 24 against the CITY OF CONCORD (above - described) , and to the COUNTY COUNSEL, 25 in and for the COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA for leave to 26 submit claims against CONTRA OOSTA COUNTY, (as above - described) and 27 CONTRA COSTA COUNTY TRANSIT AUTHORITY (CCCTA) , (as above - described) ; 28 1 ' and, to both the CONCORD CITY ATTORNEY and the CONTRA COSTA COUNTY COUNSEL, 2 on behalf of DOES ONE through THIRTY, inclusive, and each of them, pursuant 3 to § 911.4 of the CALIFORNIA GOVERMENT CODE. 4 The cause of action of Claimant, FRANCES MARGARET BAILEY, as set forth 5 in her proposed claim, attached hereto, accrued on March 25, 1985, a period 6 within one year from the date this application is filed. 7 Claimant's reason for the delay in presenting her claim against the 8 above - named individuals and/or entities is as follows: 9 Claimant, above - named was injured in an accident between a CONTRA COSTA COUNTY TRANSIT AUTHORITY (CCCTA) Bus, upon which she was a fare - 10 paying passenger, and another (presently unascertained) vehicle, which collision occured at or near WILLOW PASS ROAD, CITY OF CONCORD, COUNTY OF 11 CONTRA COSTA, on or about December 13, 1984. 12 Injuries sustained by Claimant became obvious, apparent and N requiring of treatment within the months after said accident and Claimant o0 13 had relied upon the previous statements of CCCTA personnel, at the time moo Q of said accident - that further contact with her regarding her injuries W mva 14 would be forthcoming. U m V m a 15 Claimant contacted her attorneys, above - named on April 10, and was �° 3 a first seen by said attorneys on April 12, 1985, wherein it was first 16 determined that the 100 day notice of claim (per applicable Codes) 17 filing period had expired. / 18 Claimants' counsel expedited the attached application in deference 19 to the NOTICE responsibilities and considerations of said NOTICE statute. The Court's have often held that a potential claimant will only 20 21 be granted leave to file a late claim when an application for late 22 claim has been rejected by the public entities, if the claimant 23 meets TWO (2) essentials, by a preponderance of the evidence: 24 1. That a claimant's application is presented within a reasonable time (not to exceed one year) ; and, 25 / 26 2• That claimant's failure to timely file was based on his/her mistake, inadvertance, surprise, or excuseable neglect as defined in CALIFORNIA 27 CODE OF CIVIL PROCEDURE, § 473, (Coon of Sacramento v Superior Court, 105 Cal. App. 3d 898, 164 Cal Rptr resultant late 28 filing of a claimant's claim which has, in fact, resulted from his or her mistake, inadvertance, surprise, or excuseable neglect is to be weighed against the actions of a PRUDENT PERSON USING REASONABLE DILIGENCE IN THE 1 SAME (or similar) FACT SITUATION, (County of Sacramento, [Supra) . 2 Claimant respectfully submits in application for leave to file 3 the attached '7ATE CLAIM"; the following: 4 1. Claimant acted with diligence upon the actions she has taken hereunder having reasonably (AND PCITE[JTIAILY DEIREMMALLY) relied that 5 the promised contact by CCCTA personnel would result in medical resolution and/or reasonable compensation for her injuries; and, 6 2. Upon learning of the NOTICE requirements - Claimants' actions were 7 immediate, swift and in full deference to the intentions of the statute. 8 WHEREFDRE, Claimant respectfully requests that the individuals 9 to whom this "APPLICATION FOR FILING OF LATE CLAIM" is presented 10 grant Claimant such leave, accepting for filing the attached claim. 11 AS SUCH, it is Respectfully submitted: 12 DATED: Ap i 1985 C m a o 13 1YOR, L QUE & Mc 14 .... .. W N Y n RCVNEY PRYOR 15 0 a .0 Ov"° m a �3a 16 17 18 19 20 2] 22 23 24 25 26 27 28 1 LAW OFFICES OF PRYOR, LeVEQUE & McGHEE 0 R 1 G 1 A L 1615 Bonanza St. , Ste 212 2 Walnut Creek, CA 94596 - 4530 (415) 945 - 0710 3 Attorneys for Claimant . 4 File No. : 5 6 / 7 / 8 / 9 In re the Matter of the Claim of: 10 FRANCES MARGARET BAILEY, Claimant, 11 vs. 12 The CITY OF CONCORD, a political sub - N division of the COUNTY OF CONTRA COSTA, 0m�^ 13 State of CALIFORNIA; CONTRA COSTA COUNTY 16, o d �9 TRANSIT AUTHORITY, an agency/department W m 14 and/or corporate department of the COUNTY 9 W OF CONTRA COSTA, a body politic and Z m 0 15 political sub - division of the State of Q 03a CALIFORNIA; CONTRA COSTA COUNTY, a body 16 politic and political sub - division of the State of CALIFORNIA; DOES ONE through 17 THIRTY, inclusive; which DOES are the agents, employees, officials and/or 18 representatives of the above - named, and each of them. 19 20 COMES NOW Claimant, FRANCES MARGARET BAILEY, by and through her 21 counsel and attorney RODNEY E. PRYOR of the LAW OFFICES OF PRYOR, 22 LeVEQUE & McGHEE, does hereby apply to the CITY ATTORNEY, in and 23 for the CITY OF CONCORD, COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA 24 for leave to submit a claim against the CITY OF CONCORD (above - 25 described) , and to the COUNTY COUNCEL, in and for the COUNTY OF 26 CONTRA COSTA, STATE OF CALIFORNIA for leave to submit claims 27 against CONTRA COSTA COUNTY, (as above - described) and CONTRA 28 COSTA COUNTY TRANSIT AUTHORITY (CCCTA), (as above - described) ; r 1 and, to both the CONCORD CITY ATTORNEY and the CONTRA COSTA 2 COUNTY COUNCEL, on behalf of DOES ONE through THIRTY, inclusive, 3 and each of them, pursuant to § 911.4 of the CALIFORNIA 4 GOVERNMENT CODE. 5 The name and post office address of Claimant is: 6 7 FRANCES MARGARET BAILEY 8 4313 Rose Lane Concord, CA 94519 9 10 The name and post office address to which Claimant and Claimant's attorney desire notice and all inquiries regarding this claim; is as 11 follows: 12 N LAW OFFICE OF PRYOR, LeVEQUE & McGHEE c mNo 13 1615 Bonanza Street, Ste. 212 � 5xl Walnut Creek CA 94596 - 4530 a Na oPi W �!' 14 (415) 945 - 0710 N m / W � 0 15 Za5 D m t2,@ 3 a 16 The circumstances giving rise to this claim are as follows: On DECEMBER 13, 1984, Claimant was a passenger on CONTRA COSTA 17 COUNTY TRANSIT AUTHORITY, (CCCTA) Bus number 114, then en route from Concord BART station to her destination, at or about 11:00 A.M. 18 19 At a 4 - way stop (traffic controls presently unascertained [and 20 upon such lack of information does Claimant submit her claim to the CITY OF CONCORD and the COUNTY OF CONTRA COSTA, believing that the 21 possibilities of NEGLIGENT TRAFFIC CONTROLS may be at issue]) the driver of said Bus was involved in a collision with a "NEWER MODEL" (presently 22 unascertained) Ford Mustang automobile - pushing said automobile completely across said intersection. 23 Claimant had been seated on the driver side, first seat (which seat 24 is parallel to the center aisle as opposed to the balance of seats - which face front, along either side of said aisle). 25 26At impact Claimant's head contacted the "STAND - UP SUPPORT POLE", receiving bruising at ber left temple area therefrom. 27 The CONCORD POLICE DEPARTMENT responded to the scene of the accident 28 and a complete report was taken by an unknown male officer, including 1 Claimant's statement of injury; and, Claimant's statement of the accident it self. 2 Claimant indicated to a women investigator for CCCTA who came to the 3 scene of the accident of her head injuries; and Claimant additionally indicated to the woman driver of the CCCTA Bus that she had hit her head 4 on the pole. 5 Claimant was advised by said woman investigator and said bus driver that medical attention would be provided and further contact would be 6 forthcoming should any later developments occur. 7 Claimant now suffers SEVERE HEADACHES and BLURRED VISION as a result from the injuries sustained from said accident. 8 9 As a direct and proximate cause of the injuries sustained by 10 Claimant, as above - described Claimant has, and will continue to 11 sustain medical expenses in amounts which are ongoing and presently 12 unascertainable. Claimant respectfully requires the parties above - >0 N °� 13 named to defray any and all costs for said medical treatment, as o m�� _ o a NQ paj W fn,N 14 same is incurred, to whatever extent same is deemed necessary, R V � m m c 15 proper, prudent and reasonable. o �zvm a �3 D 16 Additionally, Claimant prays leave to further amend her 17 submitted claim to incorporate an amount, presently unascertained 18 (and at present unascertainable) to properly, reasonably and 19 responsibly compensate her for such pain, suffering and 20 compensable damage as may be demonstrated. 21 As such, it is respectfully submitted: 22 DATED: April 15, 1985 23 PRYOR,-_Le —& McG1� 24 25100% . 26 By: 4RO -�. YOR 27 28 1 VERIFICATION 2 3 I, the undersigned, declare: 4 I am the Claimant in the above-entitled action; 5 I have read the foregoing APPLICATION TO FILE LATE CLAIM and 6 and CLAIM 7 8 and know the contents thereof; the same is true of my own 9 knowledge, except as to those matters which are therein stated 10 upon my information or belief, and as to those matters I believe 11 them to be true. 12 I declare under penalty of perjury that the foregoing is ° O 13 true and correct, and that this Verification was executed on K .i P V1 W " lgg 5 , at Walnut Creek W 0 „ v 14 April 15 , California . z 0 - o�- r 15 16 17 18 FRANCES M. BAILEY 19 20 21 22 23 24 25 26 27 28 ENDED 1'0023 CLAIM BOARD OF SMWVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT May 21 , 1985 governed by the Board of Supervisors, ) The copy oft s 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: Calfon Construction, Inc. County C1unse! Attorney: Steven M.- .Bernard 1985 2450 Peralta Boulevard, Suite 211 APR 25 Address: Fremont, California 94536 C.A. 94553 Martinez, Amount: not less than $17, 828.25 By delivery to clerk on Date Received: April 24, 1985 By mail, postmarked on April 2 3, 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: April 24, 1985 PHIL BATCHELOR, Clerk, By DeputyJ46J A Cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( ) This claim complies substantially with Sections 910 and 910.2. ( K) 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: 4 - a 'S 2�S By: 71 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 claie is rejected in full. ( ) Other: I certify that this is a true and correct cop of the Board's Order entered in its minutes for this date. Dated: PHIL BATCHELOR, Clerk, By a , 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 present a late claim was mailed to claimant. DATED: S--At _g< PHIL BATCHELOR, Clerk, By d , Deputy Clerk cc: County Administrator.(2) County Counsel (1) TO: BOARD OF SUPERVISORS Contra Costa County 725 Court Street _P v � Martinez, Caifornia 94553 IN ..1 IN THE MATTER OF THE CLAIM OF: . CALFON CONSTRUCTION INC. N-A8ATr!iE: ' O 05 Claimant, VS. CONTRA COSTA COUNTY Calfon Construction, Inc. hereby presents this claim, for equitable indemnity to the Contra Costa County pursuant to Section 910 and 901 of the California Government Code. 1 . The name and address to which all correspondence should be sent is as follows: Steven M. Bernard 2450 Peralta Boulevard, Suite 211 Fremont , California 94536 2. On or about October 1 , 1984, suit was filed against Calfon Construction, Inc. , et al . , in Contra Costa Superior Court , No. 264131 seeking damages for injuries allegedly received under the following circumstances : a. Several residences of Concord in the vicinity of Monument Boulevard, were flooded during heavy rains occuring on September 30, 1983. b. Calfon Construction, Inc. , was working on a storm system construction project for the Army Corps of Engineers in the nearby area. c. Gallagher & Burk Construction Company was working on a storm system construction project for the Bay Area Rapid Transit District in the nearby area. d. Plaintiff in the ensuing suit , Bayside Capital Management Company, incurred damage to real property and loss of rents and filed its claim against Calfon Construction, Inc. , amongst others. 4. . This claim is being filed for the purpose of seeking equitable indemnity from the County of Contra Costa in compliance with Section 901 of the California Government Code requiring a filing of claim within 100 days of service of the complaint. There I is no proof of service of the complaint in the file but the general appearance of Calfon Construction, Inc. , was by its answer on February 19, 1985. 5. At the date of filing this claim, discovery is just commencing and the amount sought for indemnity is unknown. In the complaint, plaintiff seeks not less than $17,828.25. 6. Further, as discovery is just commencing, the name or names of persons responsible for the damage alleged in the complaint are not known by Calfon Construction, Inc. Dated: April 15, 1985 'STEVEN M. BERNARD Attorney for CALFON CONSTRUCTION, INC. —2- -2- CLAIM 1- 123 BOARD OF SUPERVISORS OF CONTRA COSTA OOUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT May 21 , 1985 CL governed by the Board of Supervisors, ) The copy of this ocument mailed to you is your Routing Endorsements, and Board ) notice of Use action taken on your. elaim 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: Bonnie Brae Swim Club County Counsel Attorney: John Lees Address: Gibbons ,. Lees & Schaefer MAY 0 6 1985 1601 North California Boulevard Amount: Walnut Creek, CA , 94596 By delivery to clerk cMartinez, CA 94553 $115, 000. 00 Date Received: May 3, 1985 By mail, postmarked on May 1, 1985 I. FROM: Clerk of the Board of Supervisors 70: County Counsel Attached is a copy of the above-noted claim. Dated: M;; 6. 1 AR5 PHIL BATCHIIAR, Clerk, By 0a Deputy Ann ('.Pr� al 1 i II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( k) 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: 5 - - 4s By: t 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 AA This claiR is rejected in full. ( ) Other: I certify that this is a true and correct cop of th Boardls Order entered in its minutes for this date. Dated: _ 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, Compel, (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 present a late claim was mailed to claimant. DATED: :5L-%1-TS PHIL BATCHELOR, Clerk, By A'A , Deputy Clerk cc: County Administrator (2) County Counsel (1) M e TU CLAIM AGAINST COUNTY OF CONTRA COSTA (Pursuant to Sec. 910 , et seq. , Gov. Code) Name, address and phone number of claimant Bonnie Brae Swim Club 1811 Del Rio Drive Lafayette, CA 94549 Name, address and phone number of person to whom any notices concerning claim should be sent John Lees (415) 932-3600 Gibbons, Lees & Schaefer 1601 N. California Blvd. Walnut .Creek, CA 94596 Date and time when damage or injury occurred .� _t��,�,,.� i Sc L Approximately February 1, 1983 and thereafter. 0 M Location of occurrence 3100 Del Oceana Drive , Lafayette, California. Circumstances of occurrence Uncontrolled water drainage and unnatural water diversion on to property owned by Robert Van Gelder at above address, caused ` damage to said property. It is alleged that the County, participated in the construction and maintenance of the storm drain facilities adjacent to the property. Description of loss, damage, injury Property damage in the approximate amount of $115 ,000 .00 is claimed. Name (s) of, County employee (s) causing injury, damage or loss, if known Unknown. Amount claimed at present including estimated amount of any prospective loss Plaintiff claims damages in the amount of $115 ,000 .00 . Bonnie Brae Swim Club was served on or about February 21 , 1985 , and seeks indemnity and contribution from the County of Contra Costa. Claim must be signed and dated by claimant or person acting on claimant' s behalf. DATED: April 15 , 1985 JOHN oes S Attor for BONNIE BRAE SWIM CLUB acting on claimant' s behalf AUSTIN R.GIBBONS GIBBONS, LEES & SCHAEFER JOHN M. LEES EDWARD N.SCHAEFER ATTORNEYS AT LAW PETER P. EDRINGTON 1601 NORTH CALIFORNIA BOULEVARD KATHRYN N.RICHTER IRA J.HARRIS - WALNUT CREEK, CALIFORNIA 94596 DOROTHY L.GREEN A.BYRNE CONLEY (415) 932-3600 DOLORES M.DONOHOE JEFFREY R. SIEGEL ROBERT L.COLLINS MARTIN J.O'LEARY April 30, 1985 County CounsP► Peter J. Lucey MAY O 2 19$5 Deputy County Counsel P.O. Box 69 Martinez, CA 945 ;, Martinez , CA 94553 Re: Claim of Bonnie Brae Swim Club Dear Mr. Lucey: Concerning your Notice of Insufficiency and/or Non-Acceptance of Claim, the amount claimed as of the date of presentation is set forth in our Notice of Claim, namely, $115 ,000 .00 . The basis of computation is the First Amended Complaint for damages filed by the plaintiff. Enclosed is a copy of that Complaint, showing the title and court number of the action. If you require anything in addition to enable action to be taken on this claim, let me know. Please consider this an amendment to the claim dated April 15 , 1985 , a copy of which is enclosed. Very truly yours, GIB NS, L S & SCHAEFER oh Lees JL:ps Enclosure _E iii E• :i 39, 51 r}n;o.n-c�lrio� BEL FOFi FILING STAMP ONLY) SCHAEFER a WALKER j ATTORNEYS AT LAN' D 151,NO REDWOO:OR .SUITE M FEB 1 1985 P.0 Soil 4'78 2 I SAN RA;AEL GA 94913-4278 ' ,415,472.7880 I. R. OLSSOME;ounty Ded 3 i OONTBI 664iA COUNTY 4 I ATTORNEYS FORM-ROBERT VAN GELDER ������HS 51 I 6 � I 8 ! SLTPEPIOR '.O.'RT JF CALIFORNIA I 9 COUNTY OF CONTRA COSTA y 10 I I I I 11 ROBERT VAN GELDER, ) NO. 267919 12 I Plaintiff , ) FIRST AMENDED COMPLAINT 131 Vs. ) FOR DAMAGES, NUISANCE , I INVERSE CONDEMNATION AND 14i BONNIE BRAE SWIM CLUB, COUNTY OF ) FRAUD CONTRA COSTA, ALEX and LYNN ) 151 FEINMAN and DOES I through V -- ) I UNKNOWN RESPONSIBLE PARTIES, ) 161 DOES VI through X CONTRACTORS, ) DOES XI through XV -- LAND ) 17 DESIGNERS, DOES XVI through XX -- ) ARCHITECTS, DOES XXI through ) 18 j XXV -- ENGINEERS, and DOES XXVI ) through XXX -- DEVELOPERS, ) 19 I ) �j Defendants. - ) I 20 21 � Plaintiff complains of defendants and alleges as 22 I follows : 23PRELIMINARY ALLEGATIONS I 24 1. Plaintiff ROBERT VAN GELDER (hereinafter referred to 25i as "plaintiff" or 'VAN GELDER" ) was at all times relevant herein i - 261 the owner of the real property and residence located at 3100 Del I I 271 Oceano Drive , Lafayette , Contra Costa County, California . 28 l �� I -1- i 1 ) 2. Plaintiff is. informed and believes and thereon 2 alleges.- that the BONNIE BRAE SWIM CLUB (hereinafter referred to 3 j as "defendant" or BONNIE BRAE' ) is authorized to do business 4 under the laws of the State of California. Defendant BONNIE BRAE j 5 is located at 1811 Del Rio Drive , Lafayette , Contra Costa County, 6 California , and is adjacent to plaintiff 's -property. ' i 3. Plaintiff is informed and believes and thereon 8 alleges that defendant COC. ': : OF CONTRA COSTA, was engaged in t;=e 9 management of storm drain waters in the County of Contra Costa , I 10 ! California . ` 11 4 . Plaintiff is informed and believes and thereon 1 12 alleges that defendants ALEX and LYNN FEINMAN previously owned +3 the property at 3100 Del Oceano Drive and sold said property to 14 plaintiff on or about June 1974. 15 5. The true names and capacities, whether individual , I; 16 corporate , associate or otherwise, of defendants DOES. I through ! I 17 XXX, inclusive , are unknown to plaintiff and are therefore sued 18 by such fictitious names. Plaintiff believes that such ficti- 19 �iously named defendants are or may be in some way legally , 20 responsibile for the damages complained of in this complaint 21 -hrough the ownership, design , construction or building of the j 22 property which directly or indirectly caused plaintiff 's loss. i 23 Plaintiff will amend this complaint to show the true names and 24 , capacities of such fictitious defendants when such have been f 25 ascertained . 26 6. Plaintiff is informed and believe and thereon j 27 -- lieges that at all times herein mentioned each of the defendants ' 28 sued herein as DOES I through XXX was the agent and employee of CHAFFER i WALKER ATTQRN!r$Al LAV.- ; —2— kc 2—NG AC:+wWC OF st; 'Y ,'.. "0t A.-I j SA%NAPM, U I 1 damages . Plaintiff has sustained damages proximately caused by 2 such negligence , according to proof at time of trial, but in an 3 ( amount believed to be in excess of $115,000. . 4 11. At all times relevant hereto, plaintiff made every 5 reasonable effort to prevent loss and damage to his property, 6 including informing BONNIE BRAE that its property was creating 7 uncontrolled water drainage onto plaintiff' s property. Plaintiff ; - I a f 8 has also taker: every Z---sorjeble effort to mitigate any further 9 damage and loss to his property. 10 WHEREFORE, plaintiff prays judgment as hereinafter set 11 forth at the end of this complaint . 12 SECOND CAUSE OF ACTION AGAINST COUNTY OF CONTRA COSTA 13 (Inverse Condemnation) 14 15 12. Plaintiff realleges and incorporates herein by 16 this reference each and every allegation contained in paragraphs 17 1-11 above , inclusive , as though set forth in full at this 18 point . 19 13. Plaintiff is informed and believes and thereon 20 ! alleg s that, at all rime . mate ial herein, , the COUN""f OF CONTRA 21 I COSTA was engaged in the management of storm waters . 22 14. Plaintiff is informed and believe and thereon i 23 alleges that defendant COUNTY OF CONTRA COSTA participated in the ' 24 construction of and maintenance of the storm drainage facilities 25 in the area in front , adjacent to and behind BONNIE BRAE and 26 adjacent to plaintiff ' s property so as to legally cause the 27 injuries and damages set forth herein . 28 SCMAEFER i WAIXER , ArTORW YS Al LAM : - —4— ss+ai K DWXC OF Suit Tse 9n soi 47h,SAO,AA;t, CA w� , i41.,67. ?6K 1 15. As a proximate result of the actions of defendant 2 COUNTY. OF CONTRA COSTA as hereinabove alleged, plaintiff will be 3 required to employ contractors and others to make repairs to the 4 property and plaintiff will incur expenses therefor, all to his S damage . 6 16. By reason of the diversion -of water onto plain- ? tiff ' s property and resulting structural damage, plaintiff's real . 8 1 property and improvemei.ts have been taken or damaged for public ' 9 use in an amount which is atY et unascertained but is not less I 10 than $115,000. 11 WHEREFORE, plaintiff prays judgment against defendants , 12 and each of them, as hereinafter set forth at the end of this 13 complaint. 14 THIRD CAUSE OF ACTION AGAINST DEFENDANTS ALEX AND LYNN FEINMAN 15 16 (Negligent Misrepresentation) 17 17 . Plaintiff realleges and incorporates herein by 18 this reference each and every allegation contained in paragraphs 19 ' 1-6, above, inclusive, as though set forth in full at this 20 point . i 21 18. When defendants ALEX and LYNN FEINMAN sold the 22 residence and real property located at 3100 Del Oceano Drive, 23 Lafayette , County of Contra Costa , California , to plaintiff VAN 24 GELDER, they made certain representations regarding the premises 25 which induced VAN GELDER to purchase said premises . 26 19. Defendants owed a duty to VAN GELDER to disclose 27 any facts known to them which would affect his decision to pur- 28 chase said premises. Defendants knew, and/or reasonably should I 'HAEFER A WALKER •npRNEYS At LAV% 1 —5— , .o w owwo tt,w•n:x •o not 41 1 have known the condition of the premises including, but not 2 limited to, previously existing slide problems associated with 3 the premises . 4' 20. However, defendants intentionally suppressed S and/or failed to disclose to plaintiff VAN GELDER that slides had 6 occured previously on the , rear slope of the lot , impacting the 71 subject property. 8 21 . As a pz;--ximate result of defendant ' s failure to 9 disclose the sliding problems , plaintiff purchased the subject 10 premises and subsequently suffered damages as set forth herein- 11 above . 12 WHEREFORE, plaintiff 'prays judgment against defendants , 13 and each of them, as follows: 14 FIRST CAUSE OF ACTION : 15 1 . For general damages according to proof at trial, in 16 a sum not less than $115 ,000 and for interest thereon at the 17 legal rate ; 18 2. For costs of suit incurred herein; and 19 3. For such other and further relief as the court may 20 I deem proper . 21 + SECOND CAUSE OF ACTION : 2'_ 1 . For general damages according to proof at time of 23 trial, in a sum not less than $115,000 and for interest thereon; . 24 at the legal rate ; 25 2 . For costs of suit incurred herein; and 26 3. For such other and further relief as the court may 27 deem proper . 28 I /� CHAEFER i WALKER — ATTOP+EvcAT L•n MC M IMM;lr Sl,•Lf +y;. P C or, . SAI Mf.!i U W-.: . c 1 � THIRD CAUSE OF ACTION : 2 1 . For the sum of $200 ,000 and interest thereon at the 3 legal rate ; 4 2. For costs of suit incurred herein; and 5 3 . For such other and further relief as the court may 6 deem proper. 7 1 Dated: January 29, 1985 Respectfull/q submitted , SKHAEFER & /WALKER g � i f t ` 9 kkW, , 10 DAN4,tL G. MAG U RE Attorneys for Vlaintiff 11 12 13 14 i IS 16 17 18 19 20 i 21 . 22 23 24 25 26 27 i 28 SCHA.EFER i WALKER —7— 'An OPMEYS A'lAv, 55 MO PEONOM I!t. 75C 010 S0'A" 7E SAh RAS Al i U U4 441-1 47,79K CLAIM? AGAINST COUNTY OF CONTRA COSTA (Pursuant to Sec. 910 , et seq. , Gov. Code) Name, address and phone number of claimant Bonnie Brae Swim Club 1811 Del Rio Drive Lafayette, CA 94549 Name, address and phone number of person to whom any notices concerning claim should be sent John Lees (415) 932-3600 Gibbons , Lees & Schaefer 1601 N. California Blvd. Walnut Creek, CA 94596 ;^j 0 Date and time when damage or injury occurred �C1V ED Approximately February 1, 1983 and thereafter. a Location of occurrence CLERK- Phnl BAT !IE;O" R BOnzLI r Ci , y California. 3100 Del Oceana Drive , Lafayet,.e , -+ � .......:.....�.`;�.._r_.,` Circumstances o= occurrence Uncontrolled water drainage and unnatural water diversion on to orocert_1 owned by Robert Van Gelder at above address , caused damage to said property. It is alleged that the County partic_pated inthe construction and *maintenance of the storm drain facilities adjacent to the property. Description of loss , damage , injury P_ooerty damage in the approximate amount of $115 , 000 .00 is claimed. Name (s) of County employee (s) causing iniury, damage Cr loss , if known Unknown. . ,.cunt claimed at oresent including estimated amount Cf a_^_V prospective loss Plaintiff claims damages in the amount of $115 , 000 .00 . Bonnie Brae Swim Club was served on or about February 21 , 1985 , and seeks indemnity and Contribution from the County o= Contra Costa. Claim must be signed and dated by cl-aimant or person aCti_^_C on Clai:mar t ' s behal= . DATED: April 15 , 1983 jOHN LEF,S ; Attornev.'s *fir BC`::;IE BR`Z SWIM CLUB acting_ on c'laimant ' s behalf: I AMENDED BOARD OF SOPERVISORS OF CONTRA COSTA CMM, CALIFORNIA �. BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT May 21, 1985 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: county COU11c`' Richard Piatt, Cheryl Piatt as Guardian ad litem Attorney: for Christopher Piatt MAY 0.3 1985 David S. -.Rosenberg Address: 5836 Ocean View: Drive Martinez, CA 945.7;,- Oakland, CA 94618 From County Counsel Amount: in excess of $50, 000. 00 By delivery to clerk on _=Ap r i 1 30 , 1985 Date Received: Ap r i 1 30, 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: May 3, 1985 PHIL BATCHELOR, Clerk, By It 11 Deputy Ann Cerve li II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( y ) 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: , 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 ORDERmous vote of Supervisors present S This claim^is rejected in full. ( ) Other: I certify that this is a true and correct copy of the Board's Order entered in its minutes for this date. Fib Dated: _ — 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 pr ent a late claim was mailed. to claimant. DATED: `�a � PHIL BATCHELOR, Clerk, By Lb , , Deputy Clerk cc: County Administrator (2) - County Counsel (1) Y.7 ' 1 DAVID S. ROSENBERG OF COUNSEL TO: OF COUNSEL TO: SEHR.LAMB&GUEST ATTORNEY AT law LAW OFFICES OF KENNETH L.KNAPP 45 QUAIL COURT,SUITE 300 5836 OCEAN VIER' DRIVE 1109 QUAIL STREET WALNUT CREEK,CA 94596 NEWPORT BEACH,CA 92660 415/947-1551 OAKLAND,CALIFORNIA 94618 714/851.1200 (415)652-5745 County Counsel APR 15 1985 Martinez, CA 94553 April 13, 1985 Office of County Counsel County of Contra Costa Martinez, California Re: NOTICE OF CLAIM AND INTENT TO SDE (GOVT. CODE 900.2 et seq) Battery upon and False Arrest and Imprisonment of Richard Piatt Infliction of Emotional Distress upon minor Chistopher Piatt Infliction of Emotional Distress upon minor Does Professional Negligence Violation of Civil Rights Dear Counsel, Please be advised that I represent Richard Piatt and Christopher Piatt, by his mother and guardian ad litem, Cheryl Piatt, in civil matters arising from the incident of 12 April 1985 at J.O. Ford Elementary School, Richmond. This is formal notice of films a claim for damages resulting from the misconduct of sheriff's deputies in those events. Please,refer this notice to county counsel, or to your attorney. The basis of our claim is unnecessary and severe use of police force, unlawful arrest and unlawful imprisonment upon Richard Paitt, and infliction of emotional distress upon Christopher. Piatt. S to0en g DAVID S.ROSENBERG IS A PROFESSIONAL CORPORATION 1 2 PROOF OF SERVICE BY MAIL 3 I DECLARE THAT: 4 I am employed in the COUNTY OF ALAMEDA; that I am over the age of 5 eighteen years; that my business address is 5836 Ocean View Drive, Oakland, G and THAT ON THE DATE BELOW I SERVED THE WITHIN: 7 g NOTICE OF CLAIM AND INTENT TO SUE (GOVT. CODE 900.2 et seq) 9 10 11 ON THE DEFENDANT IN SAID CAUSE by placing a true copy thereof enclosed in a 12 sealed envelope with postage thereon fully prepaid, in the UNITED STATES 1.3 MAIL at Oakland, California, ADDRESSED AS FOLLOWS: 14 15 1G Office of County Counsel County of Contra Costa 651 Pine `17 Martinez, California 94553 18 19 I DECLARE UNDER PENALTY OF PERJURY that the foregoing is TRUE AND CORRECT 20 and that this declaration was executed on the date below at Oakland, Ca. 21 22 23 DATED: 4/14/85 BY: OS • 9-Lc� L. e ecca . osen erg 24 25 26 27 28 OF COUNSEL TO: DAVID S. ROSENBERG of COUNSEL TO: SEHR,LAMB&GUEST ATTORNEY AT LAW LAW OFFICES OF KENNETH L.KNAPP 45 QUAIL COURT,SUITE 300 5836 OCEAN VIEW DRIVE 1109 QUAIL STREET WALNUT CREEK,CA 94596 NEWPORT BEACH,CA 92660 415/947.1551 OAKLAND,CALIFORNIA 94618 714/851.1200 (415)652-5745 April 24, 1985 County Counsel Peter J. Lucey APR 2 9 1985 Deputy County Counsel Martinez, CA 94553 County Counsels' Office of Contra Costa County Administration Building P.O. Box 69 Martinez, California 94553 _ TT_ E RE: Notice of Claim and Intent to Sue Claimants: Richard Piatt, Cheryl Piatt as Guardian ad A RR 3D/ 1985 litem for Christopher Piatt PHIL BAMIELO^ 'ERY,B �;�-6Y CCJ, i Maty Dear Deputy County Counsel, This is in response to your notice of insufficiency or non acceptance claim mailed April 19, 1985• The address of the claimant is 3120 Willard, Richmond, California 94806. Please send all notices and documents to me. As stated in the original notice, the date of the incident is 12 April 1985, and the incident occurred at J.O. Ford Elementary School in Richmond. The circumstances of the claim are as follows: Mr. Piatt was transporting his son, Christopher, age 6, to J.O. Ford school when, a few blocks from the school, he noticed a sheriff's car with lights activated. Mr. Piatt slowed and pulled over in order to let the sheriff's car pass, but it slowed with him, and Mr. Piatt concluded that a stop was being requested. Since he was only approximately two blocks from the school and was concerned with getting his son to school on time, he indicated for the sheriffs to follow him with a hand movement out of his car window, and then proceeded to complete his short trip to the school. At this time he noticed that there were in fact two sheriffs' cars behind him. The sheriffs' cars continued to follow him the short distance to the school, with lights activated, and pulled behind him when he parked in front of the school. Mr. Piatt got out of his car and spoke to the officers who were also getting out of their vehicles. .He then stated and requested — in a voice audible to all of the witnesses in the immediate County Counsel page 2 April 24, 1985 area — that he simply wanted to get his son off to school before discussing the reason for the stop. As Mr. Piatt put one hand on the handle of the door of the passenger compartment and another on the top of the car, separated from his son by only the window glass, two officers, Michael Fisher and Roberto Ortiz, attacked him. Without offering any resistance or threat of resistance, Mr. Piatt was hit about the head, face, ribs, back, shoulder, and arms with fists and batons. As he fell to the ground and thereafter, he was kicked and continued to be struck by fists, boots and batons. His arms were forcefully thrust upwards and backwards and he was handcuffed. These events took place directly outside the passenger and rear window of the car and were observed in their entirety by Christopher Hatt, who was screaming -- "hysterically", in the word of witnesses, including the school principal. There were-approximately twelve parents and thirty children who also watched these events. The parents implored the police officers to stop using force, and openly accused them of police brutality. The officers ignored their entreaties and indeed, ignored their presence. The Principal of the school, Fran Smith, retrieved Christopher Piatt from the rear seat of the car, and entrusted him to one of her assistants. After doing so, she identified herself as the Principal of the school to one or more of the deputies, who refused to give her any explanation of the events, to identify himself, or to communicate with her at all. Mr. Piatt was taken to jail and booked. The charges as given to me, as his attorney, included PC 242, assault on a police officer, PC 243, evasion of a police officer, and failure to stop at a stop signal. Cheryl Piatt was informed by a message from the Sheriff's department that her son was in custody at the jail and could be picked up there. Claimants contend that the arrest of Richard Piatt was made without reasonable or probable cause, and that he was subject to unlawful assault, battery, and infliction of emotional distress as well as false arrest, false imprisonment and violation of his civil rights. Claimants further contend that Christopher Piatt was subject to wrongful and unlawful assault, false imprisonment and intentional and negligent infliction of emotional distress, as well as .to assault and deprivation of his civil , rights. Both claimants were further subjected to professional negligence. Cheryl Piatt was subjected to professional negligence and Violation of civil rights, as well as negligent and intentional infliction of emotion distress. Finally, claimants herein are informed and believe and so contend that these acts constitute part of a policy, County Counsel page 3 April 24, 1985 pattern and practice of misconduct and violation of civil rights by Contra Costa Sheriffs Department. These theories are not necessarily inclusive of the bases of liability claimed. Each of the claimants suffered emotional distress, the specific extent and duration of which has yet to be determined. Mr. Piatt suffered physical damage in the form of bruises, lacerations, and damage to the neck, back, ribs, shoulder, arms, and head. The specific extent and duration of these physical damages have yet to be ascertained. On the basis of present information, the total damage is in excess of $50,000. I hope this information is of use, although it is my experience that the County routinely rejects these claims no matter how compelling the evidence or egregious the offense. 4vid ely, DSR/sh Sosenberg cc: clients AMENDED CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT May 21 , 1985 governed by the Board of Supervisors, ) The copy of this ocument mailed to you is your Routing Endorsements, and Board ) notice of the action taken on your claim by.the Action. All Section references are ) Board of Supervisors (Paragraph IV, 'below), to California Government Codes ) given pursuant to Government Code Section 913 and 915.4. - Please note all "Warnings".. Claimant: Morton Technologies , Inc. , a California corporation County CounsPi Attorney: Greg Bowman V QY U 9 1985 Address: Wild & Jeffrey 1700 Montgomery Street, Suite 110 Martinez, CA 94553 Amount: San Francisco, CA 94111 By delivery to clerk on Unspecified Date Received: Ma 9 1985 By mail, postmarked on >uraT-$y lags y I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: Maw, 9 . 1985 PHIL BATCHELOR, Clerk, By 0,,4JL0 Deputy Ann CPrvP] 1i II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) (?C) 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, County Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present (� This claimkis rejected in full. ( ) Other: I certify that this is a true and correct copy of the Board's Order entered in its minutes for this date. Dated: 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 70: (1) County Counsel, (2) County Administrator Attached are copies of the above claim. We notified the claimant of the Boardvs 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 1 ve to esent a late claim was mailed to claima t. DATED: _ PHIL BATCHELOR, Clerk, By , Deputy Clerk cc: County Administrator (2) - County Counsel (1) CLAIM CEi r VERIFIED CLAIM FOR DAMAGESL!*_ > r,. To: COUNTY OF CONTRA COSTA c/o Clerk, Board of Supervisors 651 Pine Street Martinez, California 94553 Claimant: MORTON TECHNOLOGIES, INC.,. a California corporation. . MORTON TECHNOLOGIES, INC., a California corporation, hereby makes a claim against the above-stated public entity pursuant to Section .910 of the California Government Code: 1. The name and post-office address of claimant is MORTON TECHNOLOGIES, INC. 600 B Street P.O. Box 1659 Santa Rosa, California 95402 2. Notices concerning this claim should be sent to GREG BOWMAN, ESQ. WILD & JEFFREY 1700 Montgomery Street, Suite 110 San Francisco, California 94111 3. This claim is for indemnification with respect to the damages and equitable relief claimed by Cross-complainant BALDWIN & HOWELL, INC., in the following Contra Costa County Superior Court suit: GARY L. NICKERSON, et al. , v. BALDWIN & HOWELL, INC. , et al. , Consolidated Case No. 253706. The said suit is for damages and equitable relief as a result of landslide and flooding onto the property of the plaintiffs located at 3390 San Pablo Dam Road, San Pablo, California. 4. The circumstances giving rise to this claim are as follows: If the Cross-complainant and/or other parties in the said lawsuit prevails against claimant, it will only be because of the above-stated public entity's fault and neglect in having failed to maintain its property in a reasonably safe manner, having created a nuisance, and having failed to properly perform its discretionary and mandatory duties. 5. Claimant's claim as of this date is for indemnifi- cation with respect to any amounts of relief awarded to Cross- complainant and/or any other party against claimant in the said lawsuit, including claimant's attorneys' fees, expenses and costs in defending against this said lawsuit. Case No. 253706 seeks general damages in an unspecified amount, engineering fees, attorneys' fees and costs of suit against Baldwin & Howell and other entities. 6. The names of the public employees causing damages are not known at this time. I am informed and believe, and thereupon allege under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed at San Francisco, California, on April 1985. WILD & JEFFREY By G BOWMAN A ys for MORTON E HNOLOGIES, INC. f PHI;BAT'!iE104 By� Denor/ SUPPLEMENT TO CLAIM FOR DAMAGES To: COUNTY OF CONTRA COSTA c/o Clerk, Board of Supervisors 651 Pine Street Martinez, California 94553 Claimant: MORTON TECHNOLOGIES, INC. , a California corporation. Pursuant to the Notice of Insufficiency of Claims served April 23, 1985, claimant MORTON TECHNOLOGIES, INC., provides the following supplemental information: 1. Dated of landslide: March, 1983. 2. Date Cross-complaint .served on claimant: January 25, 1985. I am informed and believe and thereupon allege under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed at San Francisco, California, on May , 1985. - WILD & JEFFREY By G OWMAN A t eys for MORTON TECHNOLOGIES, INC. 00�ZC� 0� IN3UFFlCI�NCy ` NUN-ACCCYT&UO,: 0V Cl.A11 /1 TO: Greg Bowman, Esq. Wild & Jeffrey 1700 Montgomery St. , Suite llU San Francisco C& 941I1 � Re: Claim Of MORTON TECHNOLOGIES, INC. Please Take Notice as follows : The claim 'you presented against tho Cnunty OF Contra Costa or District governed by the Board of Supervisors fails to comply substantially with the requirements of California Goveznme»t Code Section 910 and 910 , 3 , or is otherwise insufficont for the reasons checked below: � N � l . The claim fails Lo stat-.e the onmr and post offion address ' of the claipuaiot. 2 . 5�bo claim Fails to s�ate 1-hr, ;)o.,;1- nffjco address to which----- the person pceseoLin9 Lhu c| aim Jcuizcs notices to he sent . »c ] . ��be claim fails to state the dato , place or other circum- stances of the oCcnrrenco or which '/an(- rise to the claim asserted ' Give the date or dates the slide damage occurred.* 4 ' The claim fails to sLat'� thenax^� (s) Of tho public employee (s) -----' causing the injury , damage , or lo��s , iF known . ' 5 ' The claim fails to staLu ihe u/oou/�t claimed au of the date ----- of proseo-Lutioo, the estimated amount of any prospective io '`/ry, d 'mage, or loss so far as known , or the basis of computation Of the amount claimed . 6 . The claim is not signed by tbe claimant or by some person ----- on his behalf. X 7 ' Other : * Gine date cross-complaint in Action No. 253706 was served -----� --o�-�T�������--'---'------ ------------'-------'---------- RFS.PMJ\H, County Counsel ) .-A ` CERTIFICATE 01' SCDVICC BY t1/\ZL - (C.C. P' 0I3 , 1813a , 20l5 , 5 / Enid ,C. 08641 , 664 ) My business address is the County Counsel ' s Office of Contra Costa County, Co.Admio.Bld9. , P.O' Boz 69 , Martinez , California 94553 , and I am a citizen of the United S( nvor l8 years of age , employed in Contra Costa County, and not a po /ty |-n Lhis actino ' I served a true copy of this Notice of Znun [ficicucy and/or Hon-Acceptance of Claim by placing it in an coveIo-Pe (s) addressed as shown above (which is/are place (s) having delivery service by G . S. which envelope (s) was then sealed and postage fullE,re2:i.d thereon , aoc3 tbereafter. vvas, on this dal' deposited in the U. S . Mail at Martioez/Con�ord , Contra Costa County, California. ` -7- certify uoaer peoalty of perjury that the furegoin | is true and correct. Dated: , at !iartinez , California . . ^ ` cc: Clerk of the Board of Suyernisui�� (ozigioal) Administrator (NOTICE OF I05i`FFICILNCY OF CLAIM: GOVT. C' qfj!/lO , 910 . 2 , 910 . 4 , 910 ' 8> � ' APR 18'1 1985 PHIL BATC!4EL0R CLERK EO Oi 51inol:C J C.^.1" VERIFIED CLAIM FOR DAMAGES BY °rnoir To: COUNTY OF CONTRA COSTA c/o Clerk, Board of Supervisors 651 Pine Street Martinez, California 94553 Claimant: MORTON TECHNOLOGIES, INC., a California corporation. MORTON TECHNOLOGIES, INC., a California corporation, hereby makes a claim against the above-stated public entity pursuant to Section 910 of the California Government Code: 1. The name and post-office address of claimant is MORTON TECHNOLOGIES, INC. 600 B Street P.O. Box 1659 Santa Rosa, California 95402 2. Notices concerning this claim should be sent to GREG BOWMAN, ESQ. WILD & JEFFREY 1700 Montgomery Street, Suite 110 San Francisco, California 94111 3. This claim is for indemnification with respect to the damages and equitable relief claimed by Cross-complainant BALDWIN & HOWELL, INC., in the following Contra Costa County Superior Court suit: GARY L. NICKERSON, et al. , v. BALDWIN & HOWELL, INC. , et al. , Consolidated Case No. 253706. The said suit is for damages and equitable relief as a result of landslide and flooding onto the property of the plaintiffs located at 3390 San Pablo Dam Road, San Pablo, California. 4. The circumstances giving rise to this claim are as follows: If the Cross-complainant and/or other parties in the said lawsuit prevails against claimant, it will only be because of the above-stated public entity's fault and neglect in having failed to maintain its property in a reasonably safe manner, having created a nuisance, and having failed to properly perform its discretionary and mandatory duties. 5. Claimant's claim as of this date is for indemnifi- cation with respect to any amounts of relief awarded to Cross- complainant and/or any other party against claimant in the said lawsuit, including claimant's attorneys' .fees, expenses and costs in defending against this said lawsuit. Case No. 253706 seeks general damages in an unspecified amount, engineering fees, attorneys' fees and costs of suit against Baldwin & Howell and other entities. 6. The names of the public employees causing damages are not known at this time. I am informed and believe, and thereupon allege under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed at San Francisco, California, on April 1985. WILD & JEFFREY BY - _et � G, EG BOWMAN A$ ys for MORTON TECHNOLOGIES, INC. AMENDED 03 CLAIM BOARD OF SUPERVISORS OF c TRA COSTA COONTY, CALIFORNIA BOARD ACTION Claim Against the County, or bistrict ) NOTICE TO CLAIMANT Ma-v 21 . , 1985 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: Presley of Northern California Coitn`v counsel Attorney: Archer & McComas 1985 1299 Newell Hill Place, Suite 300. APR 2 ,-.; Address: Walnut Creek, CA 94596 Martinez, CA 94553 Amount: By delivery to clerk on Date Received: Apr i 1 22, 1985 By mail, postmarked on April 18, 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: April 23, 1985PHIL BATCHELOR, Clerk, By LA-nDeputQy erye 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. ( K) 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: -u_. - 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 animous vote of Supervisors present This claims rejected in full. ( ) Other: I certify that this is a true and correct cop of the Board's Order entered in its minutes for Ws date. Dated: .$ 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 70: (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 claimantfs right to apply for 1 e toresent, a late claim was mailed to claimant. DATED: ?,'-�f- PHIL BATCHELOR, Clerk, By ° , Deputy Clerk cc: County Administrator (2) County Counsel (1) VICTOR J. WESTMAN CONTRA COSTA COUNTY COUNSEL TO `- r.O. Box 69. Co. ADMIN. BLDG.. MARTINEZ. CA 94553 DATE SUBJECT PA :3 5 rHi •oATr R:o^. ny (�... Denut ' ` NOTICF OF .r?.C)um,rc :r?iJcY County Counsel NOT- -ACCEPTANCE OF C(, TI'll APR 1.9-1985 Martinez, CA 94553 TO: Archer & McComas �Ff2 1299 Newell Hill Place, Suite 300 1 6 Walnut Creek CA 94596 !;t: : ciaim UL PRESLEY Or NORTHERN CAl ,IFORNIA, INC. Please Take Notice follows - The ollows -The claim you presented against L11t.• Cotiiity of Contra Cosi-,a or District governed by the Board of Supervisors fails to comply substantially with the requirements of California Government Cock Suction 910 and 910 . 2 , or is otherwise Lnsufficent: IoL- tht• r.casons checked below: 1. The claim fails to state the name and post office address of the claimaint. 2 . The claim rails to state the lul:ct office address to which the person presentincr LhL' claim desires notices to be sent . 3 .. The claim fails to state the date , place or other circum- stances of the occurrence or transaction which gave rise to the claim asserted . 4 . The claim fails to state the naiw_, (s) of. the Public employee (s) causing the injury, damacTe, or loss, it known . 5. The claim fails to state Lhe amount claimed as of the date of presen11-ation, the estimated amount of any prospective injury, damage, or loss so far as known, or the basis of computation of the amount clamed. 6 . The claim is not signed by the claimant or by some person on his behalf. x 7 . Other: If this is a claim for indemnity, attach copy_of __ _ complaint of main action. VICI'C�R J. [1FS"IT aPi, County Counsel Deputy Count. Counsel CERTIFICATE OF SERVICE_ I3Y MAIL (C.C.P. 5§1012 , 1013a, 2015. 5; Evid.C. §§641 , 664) My business address is the County Counsel ' s Office of Contra Costa County, Co.Admin.Bl.dg. , P.O. Box fig , Martinez , California 94553, and I a►n a citizen of L he United Si oLvs, ovor -1 R years or aqn, employed in Contra Costa County, and not a party to this action. I served a true copy of this Notice of Insufficiency and/or tion-Acceptance of Claim by placing it in an onvelopo (s) as shown above (which is/are place (s) having delivery service by U.S. which envelope (s) was then seal?d and postage fully prepaid thereon, and thereafter was, -- }1.i - Ate- A--•...i 4--A 4 r 4- .1 TT c \A.. . 1 It--- -A 1+_-4 1 Steven S. Weil LAW OFFICES OF RONALD M. ABEND, INC. i ' tL 1333 -Broadway, Suite 840 2 Oakland, California-94612 [' O r L. L �.♦ 8 (415) 465-4430 4 Attorneys for Plaintiffs V 7 . 1gd1 J.11 OL SSCw 5 � CcrJTR'� �o�r.�CCV fT� Y . 6 S. CO • SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 ' • 9 COUNTY OF CONTRA COSTA 10 11 TURTLE CREEK MASTER ) NO. 2 6 O 67 7 -: ASSOCIATION, INC. , } 12 a California nonprofit ) corporation, ) 13 ) "COMPLAINT FOR DAMAGES Plaintiff, ) AND PRELIMINARY AND 1 ) PERMANENT INJUNCTION Vs. ) (NUISANCE, NEGLIGENCE, FAILURE TO DISCHARGE 15 COUNTY OF CONTRA COSTA, } MANDATORY DUTY, 16 CONTRA COSTA WATER DISTRICT., ) MAINTENANCE OF CITY OF CONCORD, CITY OF ) DANGEROUS CONDITION, 17 WALNUT CREEK, PRESLEY OF ) INVERSE. CONDEMNATION, NORTHERN CALIFORNIA, ) STRICT LIABILITY, ROE ENGINEERING COMPANY, and ) BREACH OF CONTRACT, 18 DOES 1-100, inclusive, ) BREACH OF WARRANTY, 19 } INTENTIONAL AND NEGLIGENT ��,//�• Defendants. ) MISREPRESENTATION-) 20 M ) °l Plaintiffs allege that: 21-1 GENERAL ALLEGATIONS 23 - 1 - 24 At all times mentioned, TURTLE CREEK MASTER ASSOCIATI( 25 (ASSOCIATION) was, end now is, a nonprofit corporation duly organized e 28 existing under and by virtue of the laws of the State of California, ,A!A*h : 27 principal place of business in the City of Concord, County of Contra Cost 1 State of California. 2 2 9 Defendants CITY OF CONCORD (CONCORD) and CITY OF WALNU` 4 CREEK (WALNUT CREEK) are municipal corporations, with their principal place 5 of business in the cities of Concord and Walnut Creek. respectively. Defendan 6 COUNTY OF CONTRA COSTA (COUNTY) is a lawful subdivision of the State o 7 California, with its principal place of business . in the City of Martinez 8 California. Defendant CONTRA COSTA WATER DISTRICT (DISTRICT) is 9 special district organized and existing under and by virtue of the laws of th 10 State of California with its principal place of business in Martinez, California. 11 3 12 Plaintiff is ignorant of the true names and capacities of defendant 13 sued herein as Does 1 through 100, inclusive, and therefore. sues thes 14 defendants by such fictitious names. Plaintiff will amend this Complaint to alleg 15 their . true names and capacities when ascertained. Plaintiff is informed an 16 believes, and thereon alleges, that each of the said fictitiously named defendant 17 is responsible in some manner for the occurrences herein alleged, and that suc defendants were the agents, employees and/or independent contractors of tt 19 other defendants and in doing or failing to do the things hereafter alleged acte 20 with the knowledge and consent of the other defendants and within the Cour: 21 and scope of such employment or agency or pursuant to their contract with •tl 22 other defendants. The plaintiffs injuries as herein alleged were proximate: 23 caused by their acts. 24 4 L5 Plaintiff is informed and believes, and thereon alleges, that at all tim 28 mentioned herein, the defendants sued herein as DOES 1 through 40, inclusiv were the agents and employees of defendants CONCORD, WALNUT CREE: 27 28 COUNTY, and DISTRICT, and were at all times acting within the purpose aJ i. LN 1 scope of such agency and empluymert. 2 At all times herein mentioned, DOES 41-60 were indepen. 8 contractors and their employees, . performing maintenance and/or grading act; 4 on property owned and/or controlled by defendants and on behalf of and at S direction of CONCORD, WALNUT CREEK, COUNTY and/or DISTRICT and 6 DOES acted with the knowledge and consent of defendants and/or pursuan t 7 their contracts with defendants. 5 8 9 At all times herein mentioned defendant COUNTY controlled 10 maintained an abandoned quarry southeast of the Cowell Road/Ygnacio V; 11 Road intersection, which quarry plaintiff is informed and believes and the alleges is located within the jurisdiction of CONCORD and also controller 12 1g CONCORD. Plaintiff is informed and believes that the quarry is owned 14 NEWHALL LAND AND FARMING COMPANY, a California corporation, w 15 principal Place of business is in Valencia, California. ' Plaintiff is fu: 16 informed and believes and thereon alleges that the DISTRICT owns a land 17 of approximately 2.5 acres in size within and/or contiguous to the quarry, 18 that a water tank is also located in the quarry area. Plaintiff is fuw 19 informed and believes and thereon alleges that the DISTRICT property is w the control and supervision of CONCORD. Plaintiff is presently unaware o: 20 p p y �! 21 precise 'boundaries of the real property referred to and described he: 22 Plaintiff prays leave to amend this Complaint to state the precise bound 23 when the same are ascertained. 24 6 25 At all times relevant, grading activity was and is occurring 2,8 Ygnacio Valley Road, approximately one-half mile west of the intersectio 27 Ygnacio Valley Road and Cowell Road, and such grading was and is performed by and/or under the control and jurisdiction of WALNUT CR t � 1 CONCORD, the COUNTY, and DOES 1-20, inclusive. 2 7 ' 3 At all times herein ' mentioned, Turtle Creek was and is* a bo( 4 water which passes through property within the jurisdiction of and/or ov 5 controlled, and maintained by defendants CONCORD, WALNUT CREEK, COU. 6 and DISTRICT, and each of them, prior to and subsequent to the passa; 7 Turtle. Creek through plaintiffs property. 1 9 Defendants CONCORD, WALNUT CREEK, COUNTY, and •DIST 10 utilized Turtle Creek as and part of a drainage system at. all times prior tc 11 subsequent to. the passage of Turtle Creek through plaintiff's property. y use of Turtle Creek was and is for a public purpose and benefit; such use lg causes and will continue to cause excessive amounts of sedimentatio: 14 accumulate in Turtle Creek as it runs through plaintiffs property, and 1s damages as alleged below. By such conduct defendants have- created and 'i 16 an implied easement ("defendants' easement") on plaintiffs property which 17 law, defendants should thereby be required to maintain. 18 9 i 19 The conduct described herein continued for at least five years pri the date of the filing of the Complaint and was engaged in without plain 20 2l permission or objection. As a result, a dedication by adverse use implied it 22 was created and still exists. Damages caused by such adverse use to plain 23 property are described below. As used herein, the phrase "dedicated a: 24 refers to defendants' legal and proprietary interest in Turtle Creek as it p; 25 through plaintiff's property.' 2B roperty.- 28 ✓ 10 _ 27 On or about May 4, May 7, and May 9, 1964, plaintiff presented cl 28 1 as re4u::cd by Section 905 of the Government Code to defendants CO.iC,, i 2 WALNUT CREEK, COUNTY, and DISTRICT for the claims :eferred to here,-- q ere,--8 copy of each claim is attached and marked Exhibits A-1. through 4 respectively. - Each claim, other than the claim to DISTRICT which was df 5 by operation of law on or about June 23, 1984, was rejected end copies of 6 such rejection are attached and marked Exhibits B-1 through B-3. Each • 7 and rejection is incorporated herein by reference as if set forth fully. ' 11 3 g PRESLEY OF NORTHERN CALIFORNIA) (PRESLEY) is a Calif a corporation, doing business in California, with its principal place of busine: the City of Walnut Creek, State of California. 12 12 • 13 Plaintiff is informed and believes and thereon alleges that defen 14 PRESLEY OF NORTHERN CALIFORNIA and/ DOES 61-70, . Inclusive, and eac. 15 them, were the owners of real property known as "TURTLE CREEK" and loc 16 in the State of California, Subdivision Tract 4359, County of Contra Costa 17 shown on Book 160 of Maps, Pages 1 through 7, inclusive, in the office of 18 the County Recorder of Contra Costa County; that said defendants, as princ 19 owners and developers, improved, promoted, advertised, designed (including 20 design of the drainage system), and sold homes and townhouses to indivi, + 21 members of plaintiff, all located on Subdivision Nos. 4359, 4495, and 4468A. 22 more fully set forth in Public Reports Nos. 13,091-SF and 12,817SF issued October 25, 1973 and amended on January 30, 1974. •24 13 25 As and part of said Public Reports certain Covenants, Conditions 26 Restrictions were recorded on or about October 15, 1983'.. settjng forth 27 creation of plaintiff TURTLE CREEK HOMEOWNERS ASSOCIATION. The purl of the ASSOCIATION includes the duty to operate, manage, maintain and re: nr_r}�jr ^rnr*+m�n o^n n" �!nnT.nVo 'i Tpn� T1T`r•T•�^•.. pnrj t�nrCnrpl� r in(,11idinL' T11 1 Creek, for the common use and enjoyment of members of the Association. 2 FIRST CAUSE OF ACTION S Private Nuisance 4 (Against CONCORD, WALNUT CREEK, COUNTY, DISTRICT, and DOES 1-6C i S 14 6 Plaintiff realleges Paragraphs 1 through 13, inclusive, of the Gent ;.� Allegations, as if set forth fully here in this First Cause of Action. 15 •r. j s 9 Prior to December, 1982, and continuing to the present, defendar. •� 10 and each. of them, controlled, used, repaired, and maintained their respect .�:• lI properties in such a manner as to project, emit and deposit large amounts 12 sediment-laden water into culverts beneath Ygnacio Valley Road, which x' 13 connected to the Concord storm drain system. The sediment-laden water ent 14 and intrudes upon plaintiff$ drainage system, including the three holding poi •� _•_ ` 15 and connecting streams.located within the TURTLE CREEK project. Further, 16 sediment-laden water is deposited and accumulated in defendants' easement E 17 'dedicated areas. ,. .'3,• 18 16 R�•,C •:.t 19 As a direct and proximate result of the intrusion onto plaintii property of the sediment-laden water, the natural water flow within the projl ' 21 is, at all relevant times, slowed, thereby permitting excessive sediment to set 22 out, greatly decreasing the detentionability and effectiveness of plainti.f 23 drainage system, including the holding ponds and basins as well as t 24 defendants' easement and dedicated areas. s25 17 As a direct and proximate result of the intrusion of sediment-lac 27 water as alleged above, Plaintiff has suffered and *will continue to suffer a 28 experience loss of common area use; plaintiffs common area has suffered and v r � ' 1 continue to suffer erosion of stream and pond banks, excessive sediment 2 into the three holding ponds and connecting waters within the common f - 9 flooding of banks and adjacent landscaped and pathway areas within the co, 4 area, damage to bordering homes, injury to pond equipment and diminutio 5 value to plaintiff's properties. 6 18 The above described occupation, use, control,- maintenance, and rE 8 work of and by all defendants, except PRESLEY, constitute a nuisance r� g the meaning of Section 3479 of the Civil Code, in that such conduct obstr 10 the free use of plaintiffs property, unlawfully obstructs the passage of wF 1I within the Turtle Creek subdivision, and interferes with the reasonable use 12 enjoyment of common area properties by members of plaintiff Association. ,•. 19 19 -- - 14 As a further ' -direct and proximate result of the acts complaine( :, 15 herein, plaintiff has and will continue to sustain damage in g sum accoi•dLn 16 proof, but not less than $675,000 for property damage; installation of _. 17 adequate; alternative drainage system; out of pocket expenses and repF .• . • 18 extraordinary maintenance costs for existing project improvements; and other 19 further economic loss. ' 2 20 0 21 Plaintiff has given notice to defendants, and each of them, of 22 damage caused by the nuisance, and requested its abatement, but 23 defendants, and .each of them, have refused, and continue to refuse, to a 24- the nuisance. 25. 21 28 Defendants, and each of them, except PRESLEY, have _threatene, 27 and will, unless restrained by this court, continue to maintain the nuisance continue the acts and/or omissions complained of, and each and every act C. 1 been, and will be, without the consent, against the will, and in violation of the 2 rights of plaintiff and its members. 3 22 4 Plaintiff has no plain, speedy, or adequate remedy at law, and 5 injunctive relief is expressly authorized by Sections 526 and 731 of the Code Of, 6 Civil Procedure. ? WHEREFORE, plaintiff prays judgement as set forth herein below. t I g SECOND CAUSE OF AMON Abatement of Threatened Nuisance 10 (Against CONCORD, WALNUT CREEK, COUNTY, DISTRICT and DOES 1-60) 11 23 i 22 Plaintiff realleges Paragraphs 1 through 22, inclusive, of the Complaint 13 as if set forth fully here in this Second Cause of Action. 14 24 ~ 15 Defendants, and. each of them, have failed and continue to fail and 16 refuse to properly maintain and effect and implement repairs to their respective , . 17 properties and to the properties, dedicated areas, and easement under their 18 jurisdiction and/or in their control. 19 25 Defendants' failure to properly maintain and effect repairs to prevent 20 21 the continued intrusion and deposit of sediment-laden water onto plaintiffs • 20 property will result in continued deterioration, erosion, and flooding to common 2,3 areas of the Turtle Creek subdivision and to certain individual lots contiguous to 24 the common areas. 2,5 26 26 Unless said defendants are enjoined from permitting their properties 27 and the properties under their .control and jurisdiction to continually emit large �q amounts of sediment en water into the Turtle Creek underground and surface • 1 drainage system, plaintiff will suffer irreparable injury in that the useful-: 2 and economic value of common area and individually owned properties within , y Turtle Creek subdivision wi!I be substantially diminished and the membe:s of 4 Association willbe deprived of the comfortable enjoyment of their properties. 5 27 6 PIaintiff has no adequate* remedy at law for the threatened nuisance " 7 that the nuisance will cause significant. property hazards to plaintiffs membe 8 and it will be impossible for plaintiff to determine the precise damages wh j9 it will suffer if defendants' threatened conduct is not restrained. Injunct 10 zelief is expressly authorized by Section 526 of the Code of Civil Procedure. lI WHEREFORE, plaintiff prays judgment as set forth herein below. THIRD CAUSE OF ACTION 12„ i3 Negligence 14 (Against CONCORD, WALNUT CREEK, COUNTY, DISTRICT and DOES 1-60) t 15 28 18 Plaintiff realleges Paragraphs 1 through. 22, inclusive, except 14, i' 17 the Complaint as if set forth fully here in this Third Cause of Action: 18 29 j 19 At all times herein mentioned, defendants, and each of them, have - ; 9 20 negligently and carelessly , maintained, owned and controlled their respecti i 21 properties, including the negligent and careless performance of grading activ.' 2” on their respective properties or properties under their jurisdiction and contr( 23 so as to cause an .intrusion of, and increase in, the ;amount of sediment-lad 24 water flowing into and through the plaintiffs storm drain system, creeks a holding ponds. 30 ' The conduct complained of in Paragraph 29 above has caused a 27 f . threatens to continue causing damage to property and the storm drainage syst 1 owned and controlled by plaintiff and its members. Unless defendants (c 2 PRESLEY) are enjoined and compelled by the Court to take reasc 9 precautions to maintain and repair their own properties, including=defenc 4 easement and the dedicated areas, and to prevent the- further undue intrusi 5 excessive sediment-laden water into and onto such property, plaintiff will st further physical damage and will have to commence a multipli-ity of lar+ _ 7 against such defendants to secure damages for each future act and- omi j - resulting in the damage described above. i 8 - 9 WHEREFORE, plaintiff prays judgment as set forth herein below. 10 FOURTH CAUSE OF ACTION • 11 Failure to Discharge Mandatory Duty [Govt. Code 4815.6] Ln (Against CONCORD, WALNUT CREEK, COUNTY, DISTRICT and DOES 1-60 19 31 — - `' 14 Plaintiff realleges Paragraphs 1 through 22, inclusive, except 14, 1 . 15 Paragraphs 29 and 30 of the Complaint as if set forth fully here in this Fo .16 Cause of Action. •17 32 18 During December, 1982, and continuously thereafter. "defendants v 19 informed that the improper maintenance and control of their properties, incluc the improper performance of grading activity on said properties, was cau: 20 :21 and would continue to cause excessive sediment to be deposited into the Conc 22 storm drain. system and then into Turtle Creek and its holding pon 23 Defendants had a4 mandatory duty to institute measures to maintain and con 24 their properties, including their easement and the dedicated areas, so as 25 prevent and avoid the deposit of excessive sediment-laden water onto plainti 26 property, but defendants failed to take such measures, causing damage 27 alleged herein. WHEREFORE, plaintiff prays judgment as set forth herein below. 1 FIFTH CAUSE OF ACTION 2 DanVerous Conditions of Public Property 9 (Against CONCORD, WALNUT CREEK, COUNTY, DISTRICT and DOES 1-60) 4 33 5 Plaintiff realleges Paragraphs 1 through 22, inclusive, except 14, a: 6 Paragraphs 29 and 30 of the Complaint as if set forth fully here in this Fif 7 Cause of Action. t . 8 34 9 Plaintiff is informed and believes and thereon alleges that durir L 10 February, 1984, and prior thereto, the above described properties were in 11 dangerous condition and they created a substantial risk of the type of injur F 12 alleged in Paragraphs 16, 17 and 19' above, in that it was reasonably foreseeab 13 that grading activity on defendants' property or on property under the contr 14 or jurisdiction of defendants would cause an increase in the amount c 13 sedimentation into the Concord drain system and thereby into and onto plaintiff 16 drainage system and holding ponds, causing immediate, continuing and permaner 17 damage. 18 35 19 Defendants had actual knowledge of the existence of the condition an 20 should have known of its dangerous character within a sufficient time to tai+ 21 measures to prevent the injury and damage alleged herein. 36 22 23 As a direct and proximate result of the dangerous condition, plainti: 24 and its members have sustained the injuries and damages set forth in Paragrap2: 2S' 16, 17 and 19 above. 26 WHEREFORE,` plaintiff prays judgment as set forth herein below. 27 !/! ,:. 28 /// 1 SIXTH CAUSE OF ACTION 2 Inverse Condemnation 3 (Against CONCORD, WALNUT CREEK, COUNTY, DISTRICT and DOES 1-60) 4 37 5 Plaintiff realleges Paragraphs 1 through 22, inclusive, of the Complain 6 as if set forth fully here in this Sixth Cause of Action. 7 38 ' $ As a direct and necessary result and as a natural consequence of tht 9 planning, design, maintenance, operation, and grading activity of and o: 10 defendants' respective properties as alleged above, including the easement anc 11 dedicated area, plaintiff's property and drainage system was and continues to bi 12 subjected to excessive flooding and erosion and inundation due to the presenc: 19 of excessive sedimentation in its creek and' holding ponds. Plaintiff is informec 14 and believes and thereon alleges that due to the design, maintenance, operatio! 15. and grading .activity of. and on defendants' respective properties, includinj 16 defendants' easement and the dedicated areas, plaintiffs property will continu, 17 to be damaged by the excessive sedimentation of its drainage system now and ii 18 the future. 19 39 20 The above described damage to plaintiffs property was proximate], 21 caused by defendants' failure to maintain their respective properties in tha 22 defendants performed grading and construction and other activities w-ithou 23 adequate safeguards, including adequate drainage, subdrainage and sedimen 2,4 basins and engineering design. Defendants each failed to maintain and contrc 25 the amdunt of sediment flowing into the Concord storm drain system and thenc .26 into the creek and holding . ponds with within the Turtle Creek subdivision. 27 Defendant CONCORD failed to .prevent excessive sedimentation and erosion of it • 28 easement and dedicated areas. 1 40 2 As a result of the above described damage to the creek and holt S ponds, plaintiff has been damaged in a sum which plaintiff is informed 4 .$675,000, or according to proof. Plaintiff prays leave to amend this Complain 5 state the amount of damage as of the date of trial, plus interest. 6 41 • " . ' '7 Plaintiff has received no compensation for this damage to its proper; 42 8 . 9 Plaintiff has incurred and will incur attorney, appraisal, 10 engineering fees because of this proceeding, in amounts that cannot yet 11 ascertained, which are recoverable in this action under the provisions of Sec: 12 1036 of the Code of Civil Procedure. 18 SEVENTH CAUSE OF ACTION 14 Breach of Contract 15 (Against PRESLEY)and DOES 61-70) 16 43 • 17 Plaintiff realleges Paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12 and 12 y the Complaint as if set forth fully here in this Seventh Cause of,'Action. 19 44 20 The true names of 'defendants DOES 61-70 are unknown to plaint . and plaintiff will amend this Complaint when the true names and capacities of 1 22 fictitiously named defendants are ascertained. Plaintiff is informed and belie 23 and thereon alleges that DOES 61-70 participated , in some manner in 24 ownership, development and/or financing of the Turtle Creek subdivision and 25 participated in some manner, presently unknown, in obtaining the necess 28 approval to develop the Turtle Creek subdivision and/or in marketing the sal( individual lots, homes, and townhouses at the Turtle Creek subdivision. 27 ' i• 28 1 45 2 In the County of Alameda, subsequent to .the recordation of g pursuant to the Public Reports and Covenants, Conditions, and Restrict 4 referred to in Paragraph 13 above, PRES 5 entered into written agreements (incorporating said Public Reports and CCL-: 6 with individual members of plaintiff wherein said members agreed to purcl and said defendants agreed to improve, repair, and sell to said memb( g ownership in fee title to townhouses and -homes located within the Turtle Ci • 9 subdivision, together with membership in plaintiff ASSOCIATION (with the r: -,J 10 to use certain common area properties described above). 11 46 L1 That, among other covenants, defendants agreed to sell and con 13 said common area properties, including-Turtle Creek and the drainage syst • • 14 free from defects and - fit for the purpose of effectively distributing 15 processing sediment through Turtle Creek, with all appropriate and necess 16 work, labor, rand materials in accordance with the then existing standards in r. 17 construction industry for such work,. and to convey common area real prope 1s which would not be subject to flooding and erosion. 19 - 47 t • i 20 Individual members of plaintiff and plaintiff, and each of them, h. ed all conditions, covenants and promises under said written agreemer. 21 Perform 2, Public Reports, and Covenants, Conditions, and Restrictions on their part to M performed, including, without limitation, payment of the purchase price, tak • 24 possession of the aforesaid townhouses and homes, acceptance of membership 25 the ASSOCIATION, and acceptance of the obligation to maintain and repair 26 common area properties located within the Turtle Creek subdivision. 27 48 That from the date of the completion of the Turtle Creek subdivi: 1 to the date of this Compl int, defendant PRESLEY oreached' end continue 2 breach the terms of said written agreements by refusing, neglecting, 8 otherwise failing to repair or improve the drainage system, including Ti 4 Creek, located on and within the common area all located within the Turtle C. 5 subdivision, and failed and neglected to repair and improve plaintiffs erc 6 real property. - 7 49 $ That, by reason of said breach by defendants, plaintiff has t 9 damaged in a presently unascertained sum, which plaintiff is informed 10 believes will far exceed the minimum jurisdictional amount of this col 11 representing the reasonable cost of the construction and installation of 12 effective drainage system and to repair the erosion on plaintiffs property; 19 for such other sum or sums as shall be established according to proof. 14 50 15 That by further reason of the breacn of the terms of said "writ 16 agreements, the value of the common area property has greatly diminished, 17 the damage of plaintiff, and its members, in such other sum or sums as shall 1s established according to proof. WHEREFORE, plaintiff prays judgment against defendants as set fo • 20herein below. EIGHTH CAUSE OF ACTION 21 :l 22 Negligence • (Against PRESLEY and DOES 71-100) 23 24 51 25 Plaintiff realleges Paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, r 28 and 46, inclusive, of the Complaint as if set forth fully here in _this Eig; 27 Cause of Action. 28 1 52 2 The •true names of defendants DOES 71-80 are presently unknown 9 plaintiff and plaintiff will amend this Complaint to state their true riames i 4 capacities when the same have become ascertained. Plaintiff is informed z g believes and thereon alleges that each of said fictitiously named defendants w: 6 and are engineering professionals who participated in some manner presen 7 unknown, in the development, design, and/or construction .of the Turtle CrE • 8 subdivision and of the Turtle Creek inlet and drainage system and real prope: 9 contiguous to Turtle Creek where it passes through plaintiff's property.. 10 53 11 The true names f'DOES 81-90 are presently unknown to plaintiff, a • 12 plaintiff will amend this Complaint to state their true names and capacities wh 15 the -same become known. Plaintiff is informed and believes and thereon alleg 14 that each of said fictitiously named defendants were and are design professions 15 who, in some manner .presently unknown, participated in the design of t .,,6 ,Turtle Creek drainage system, including the inlet, holding ponds and. banks • 17 Turtle Creek, as it passes through plaintiffs property; and in the design of t: 18 the construction, installation, and development of plaintiffs real proper 19 contiguous to Turtle Creek. .20 54 21 The true names and capacities of defendants DOES 91-100 a • presently unknown to plaintiff and plaintiff will amend this Complaint to sta 23 their true names and capacities after the same have become ascertainec 24 Plaintiff is informed and believes and thereon alleges that each of sa. 2S defendants were and are subcontractors and/or independent contractors wl ?8 participated in some manner, presently unknown, in the construction and/( 27 installation of the Turtle Creek drainage system, including the inlet, holdir. 23 ponds and banks of* Turtle Creek as It * passes through plaintiff's propert} 1 Such defendants also participated in the construction and development of t 2 portion of plaintiffs real property which is contiguous to Turtle Creek. 55 4 During the approximate period of January, 1974, defendants 5 ihegligentiy% designed, constructed, installed and improved the aforesaid comr. ,• 6 meas, including the Turtle Creek inlet, drainage system, and hold •' 7 ponds, and otherwise failed to use adequate materials and procedures so t 8 said common areas are unsafe and defective in that excessive sedimentat 9 enters and builds up in Turtle Creek and its holding ponds, excess 10 sedimentation accumulates in the system and causes flooding and erosion of cr( 9 11 banks and contiguous real property. x 12 56 • = 19 Defendant PRESLEY, and DOES 61-70, inclusive, as developers of t 14 Turtle Creek subdivision, _regligentiy supervised and/or failed to supervise we 15 of co-defendants herein, amid fauea to ensure that reported and known defects 16 the drainage system were repaired, and failed to notify plaintiff and its membE 17 of the existence of said defective conditions. • 18 �;2 ,;. '19 DOES 71-80 failed to exercise care required of engineeri 20 professionals in analyzing the design of the said drainage system, including t 21 Turtle Creek inlet, and failed to properly inspect, and to notify and recomme: 22 repairs for defects of which DOES 71-80 knew or should have known up 23 conclusion of a reasonable inspection. 24 58 25 DOES 81-9f) negligently failed to exercise care required of desi: 26 professionals in designing and .inspecting a drainage system and the rc 27 property contiguous to Turtle Creek as it passes through plaintiff's property. 1 C 59-=' 2 DOES 91-100 negligently and carelessly and without reasonable ca- 9 constructed and installed the drainage system and the real property contiguou 4 to Turtle Creek 'as it passes through plaintiffs property. 5 60 6 Plaintiff was not aware of the negligent acts set forth in this cause o action at any time prior to three (3) years to the filing of thi: 8 Complaint., 9 61 10 ,As a direct and proximate result of the negligence of defendants, ant + 11 each of them, the creek within the aforesaid common area floods and erodes anc 12 damages the adjacent and landscaped and pathway areas, and further cause: 13 damage to pond equipment ' and results in- a diminution of value to plaintiff's 14 property according to proof. 15 62 16 Plaintiff has been damaged in a sum according to proof but not less 17 .than $675,000 for property damage, installation of an adequate., alternative 18 drainage system, out of pocket expenses and repairs and maintenance costs for 19 existing project improvements and other economic loss caused by the negligence of defendants, end each of them. 20 21 WHEREFORE, plaintiff prays judgment as set forth herein below. 22 NINTH CAUSE OF ACTION 23 Breach of Implied Warranty 24 (AEainst PRESLEY' and DOES 61-70) 25 63 28 Plaintiff realleges Paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13, 44, 27 45, 46, and 47, inclusive, of .the Complaint as if set forth fully here in this 28 Ninth Cause of Action. 1 64 2 At the time each of the homes and townhomes was purchase. S individual members of plaintiff, defendants, and each of them; iu;p' 4 warranted to each of the respective purchasing plaintiffs that the common a 5- including Turtle Creek and the drainage system. would be free from defect: 6 fit for ordinary purposes, including the effective distribution and processiu " 7 sediment through Turtle Creek, and that .plaintiffs real property contiguo, 8 Turtle Creek would not :flood or erode. , 65 10 Each of said members of plaintiff, and plaintiff, at the tim 11 purchase, relied on the skill and judgment of said defendants, and each of t to select materials and perform work and develop a design suitable to imp: 13 replace, repair and install an adequate drainage system and inlet design fi , . 14 their intended purposes. and to design, construct -and improve plaintiffs 15 property so that it would not flood or erode. � - • 16 .. . 66 17 After plaintiff discovered said defects at a time specifically w 18 three (3) years prior to the filing of this Complaint, and within the time ar .9 the manner and form prescribed by law, notice was given to defendants, c 20 and in writing, of the breach of said implied warranties. 67 4 21 22 As a proximate result of th breach of said warranty. plaintiff 23 been damaged, and will be damaged, by a expenditure of certain monies 24 repair, installation, and/or replacement of the defects, as aforesaid. The 25. of repairs and replacement is' presently unknown to plaintiff, but plainti 26 informed that such cost amounts to at least $675,000 to install an adec 27 drainage system, or in an amount according to proof. . WHEREFORE, plaintiff prays judgment as set forth herein below. 1 TENTH CAUSE OF ACTION 2 Intentional Misrepresentation 3 (Against PRESLEY and DOES 61-70) 4 68 5 Plaintiff realleges Paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13. 45: 6 46, and 47, inclusive, of the Complaint as if set forth fully here in this Tent} '± 7 Cause of Action. 9 During the period preceding the execution of the said writter. 10 agreements with individual members of plaintiff, and each of them, and 11 thereafter to the date of this Complaint, inclusive, defendants personally, and it r the persons of their officers and agents, orally and in writing represented, and 19 continue to represent, that the materials used and work performed by defendants 14 in , the improvement, installation, design and construction of the common areE 15 properties, including the drainage system and real property, was and is 18 adequate for the intended purposE -of the drainage sys-tem amend not susceptive to 17 the intrusion of excessive sediment-laden water and 'able-1c�-process-se-diment- 18 laden water through the drainage system; that said drainage system, including 19 the Turtle Creek inlewas free from defe tct, and that such real property .would 20 not be subject to erosion and flooding. 21 70 22 That in fact the drainage system is defective and deteriorating in that 23 it fails to prevent erosion and flooding and the intrusion -of excessive sediment 24 laden water into the Turtle Creek drainage system and fails to process excessive sedimentation, and that plaintiffs real property is subject to erosion and 2,6 flooding, all as contrary to the representations made by defendants -as alleged 27 herein. 28 • • 71 1 1 2 That said representations were made orally and in writing to plain. 3 as part of the sales program of defendants, that said representations i+ 4 untrue in that the said common areas, including Turtle Creek and the contig: . 5 real property, were not of the durability, quality, or condition as represe: 6 by defendants, and each of them, as aforesaid. i .. 7 72 • Plaintiff is informed -and believes and thereon alleges that at the 9 defendants made said representations, defendants knew that the design to materials used to create the aforesaid drainage system were inadequate II markedly inferior to drainage systems commonly conveyed in the course of f of residential dwellings and homes within subdivisions; defendants concealed I3 true facts from plaintiffs members and plaintiff, and did so intentionall. 14 induce individual members of plaintiff to purchase the subject homes -1 15 townhouses, including their respective interest in the aforementioned Corr • 18 areas, substantially less in quality than originally represented and 'offered 17 said defendants and subject to unreasonable, immediate and substantial defe. 18 maintenance, repair and replacement of the drainage system and its compo. 19 parts, and of real property contiguous to Turtle Creek, the cost for which been and will be borne by plaintiff but which should be borne by defendants 20 21 ?3 Plaintiff ASSOCIATION, and its members, ju ' lably re upon 22 representations and said concealed facts in acceptin yance of le 23 24 quality properties, including common area property and drainage syster aforesaid, in that defendants possessed superior knowledge of the construc- 25 28• materials, and design used in the construction, development, and irrprovemei 27 said properties. ASSOCIATION had no knowledge of the true facts. 28 1 74 2 Individual members of plaintiff and plaintiff would not have purchas 9 nor accepted the conveyance of said homes and townhouses sold by defendan 4 as heretofore ' described, nor taken possession thereof, but for 5 representations made to plaintiff and its members by said defendants, in that 6 failure by defendants to repair and design the said common area proper- 7 including the drainage system and Turtle Creek banks, has irreparably inju: y 8 and diminished the enjoyment, safety, and welfare of plaintiffs members in th 9 use of the said common area property. J 10 75 i 11 ... By reason of the said fraudulen epresentations of defendants, a 12 reliance thereon by plaintiff, as aforesaid, plaintiff has been damaged in 13 presently unascertained sum, which plaintiff is informed and believes far excee 14 the minimum jurisdictional amount required by this Court; and such other sum 15 sums as shall be established according to proof, representing the appro=i 16 cost of repair, installation, and!or replacement of the drainage system at t t 17 Turtle Creek subdivision. t' 76 18 ; ` ; 1 19 That defendants, at all times herein pertinent, acted in a willfi j20 .,inle-ntional and malicious manner by their representations and their refusf 21 eglect and failure to improve, complete, replace and repair the drainage systt 22 as aforesaid, for the purpose of defrauding plaintiff. By reason therec 23• plaintiff claims of defendants punitive damages in the- sum of ONE HUNDR' 24 THOUSAND DOLLARS ($100,000.00). 25 WHEREFORE, plaintiff prays judgment against defendants • 26 hereinafter set forth. 27 /!/ 1 ELEVENTH CAUSE OF ACTION 2 Negligent Misrepresentation 3 (Against PRESLEY and .DOES 61-70) 4 77 5 Plaintiff realleges Paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 1 • g 46, 69, 70, 71, 73, 74, 75, and 76, inclusive, of the Complaint as if set • 7 fully here in this Eleventh Cause of Action. ' • 8 9 78 10 Plaintiff is informed and believes, and on that basis alleges, 11 defendants, and each .of them, should have known said facts in the exerci 12 reasonable care, and had no sufficient basis of knowledge 'to justify the 19 malQng the representations aforesaid tb plaintiff; and that said represents ' were made with the intent and for the purpose of inducing individual membe 14 15 plaintiff to purchase the said homes and townhouses and to accept said coc 16 areas which were substantially. -less in quality and afforded less enjoyable • 17 than originally represented and offered by defendants; and negotiated 18 agreed to, and accepted by individual members of plaintiff. 19 WHEREFORE, plaintiff prays judgment as set forth herein below. TWELFTH CAUSE OF ACTION 20 Strict Liability 21 (Against PRESLEY and DOES 61-70) 22 23 79 12 Plaintiff realleges Paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13 25 and -46, inclusive, of the Complaint as if set forth fully here in this Tw, Cause. of Action.26 - - 27 { f61 V 1 SO 2 Plaintiff is informed and believes and based thereon alleges t} 3 defendants, and each of them, ]mew and intended that the common are.a including Turtle Creek, its drainage system and the banks and shores of Tits~ S Creek, would be used for their ordinary purposes by plaintiff and, its,mtmbe_ • 6 who took possession of their homes and townhouses as aforesaid. 8 Plaintiff is informed and believes and thereon alleges that defendant 9 and each of them, knew that the common areas, including Turtle Creek and i 10 drainage system, would be acquired by plaintiff and its members after only + 11 <!e:rf�icial. spection for defects by the prospective purchasers; that sa 12 common areas, including the Turtle Creek storm drain system, were . defecti- 19 and unfit for their intended use and purpose as described above; and th 14 defendants knew . and impliedly represented by the presence of the homes ar 15 townhouses on the market and incident to the purchase of said homes a- 16 townhouses the conveyance of the common area properties to plaintiff, that sa 17 common area, including the Turtle Creek drainage system, was ft for. i 18 intended purposes, including the prevention of excessive sediment laden wat( 19 from entering into and accumulating on and in the common area and fit t 20 effectively process and distribute sediment' through Turtle Creek. t 2 82 1 Plaintiff neither knew nor had reason to know of the "defective defective natui 23 of the common area, including the drainage system, as. afor-said,- at the tin 24 each or any member of plaintiff ASSOCIATION purchased their respective homE 25 or townhouses, or at any time prior to three (3) years from the date of th 26 Complaint. _ 27 28 aG, C 83 2 As a proximate result of said defects in the common area, incl; 3 the drainage system, plaintiff has been and will be damaged by the expend 4 of certain monies for repair and/or replacement of the existing drainage sy S and other common area property in an amount currently unknown to plaintiff 6 which plaintiff is informed and ,believes and thereon alleges far exceeds ' 7 minimum jurisdictional amount of this Court; and plaintiff prays leave of Cou. 8 amend this Complaint to set forth the full extent of damages according to prc ' WHEREFORE, plaintiff prays judgment as set forth herein below. 10 THIRTEENTH CAUSE OF ACTION 11 Intentional Misrepresentation 12 (Against PRESLEY and DOES 61-70) 19 84 14 Plaintiff realleges Paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 13 } 15 and 46, inclusive, of the Complaint as if set forth fully here in this Thirtei 16 Cause of Action. • 17 - 85 18 Subsequent to January 29, 1974, in the County of Contra Costa, S 19 of California, pursuant to said Public Reports and Covenants, Conditions 20 Restrictions, defendants, as sellers, entered into written agreemi 21 (incorporating said Public Reports and Covenants, Conditions and Restrictic 22 with members of plaintiff ASSOCIATION, as purchasers, for the sale of he 23 and townhouses to be constructed by defendants on the aforesaid real prope: 24 By the terms of said written agreements, incorporating said Public Reports 25 Covenants, Conditions and Restrictions, inclusive, defendants agreed with 2,6 'individual purchasers to provide a budget adequate to establish suffic 27 operating capital and reserves, thereby agreeing to pay any- deficit betv assessment monies received by • plaintiff ASSOCIATION from its members. 1 that actually required for annual maintenance, repair and reserve requ:. i•� 2 of plaintiff ASSOCIATION as approved by its Board of Directors and p 9 among each of the townhouses 'and homes. 4 86 5 At no time did either defendants or the said individual pur, 6 rescind the subject written , agreements, Public Reports, or Cov( ; Conditions and Restrictions. --The-said individual purchaser members of F 8 ASSOCIATION haveperformed all conditions, cgvenants and promises und, written agreementsPublic—Reports-0—arid Covenants, Conditions and Rest: 10 on their •part to be performed, including, without limitation, payment 11 Purchase price for, and taldng possession of, the aforesaid condominium 12 accepting membership in plaintiff ASSOCIATION, and subjecting themsel ~ 19 the aforesaid Covenants, Conditions and Restrictions; and plaintiff ASSOCI has performed thereunder by its assumption and operation and maintena 14 the common area properties. '.; 18 87 17 That during the period of October 13, 1973, to the date o Complaint, defendants �a hed, and continue to breach, ;the terms o: 18 written agreements, Pu c Reports, and Covenants, Conditions and Restric '•� - � 19 L by refusing, -neglecting, or otherwise - failing to adequately budget or i 20 :,! 21 alternative, to pay the annual assessment deficit created by the need to 2 and replace the drainage system and common area properties, most partic 23 the reserve requirements thereof for replacement or .repair of the commor. Properties. - 25 88 26 - That by reason of sCbreaches by defendants, pl. ASSOCIATION has been damaged in a presently unascertained .sura, whscl plaintiffs are informed and believe far exceeds the minimum jurisdictional & � � o 1 required by this Court; End such other _sum or sums as shall be establis* 2 according to proof, arising out of assessments chargeable to defendants S deficiencies in maintenance and reserves as developers of the subject project. 4 89 5 That by further reason of the"breach of the terms of said writ 6 agreements by defendants, the value of the common areas of said condomir' 7 units currently owned by plaintiff has greatly diminished due to the inability . 8 establish adequate reserves for long term upkeep and current maintenance, .t R 9 the damage of plaintiff in such other sum or sums as shall also be establis: 10 according to proof. 11 99 12 Pursuant to the aforesaid Covenants, Conditions and Restrictions E 13 Section 3,717 of the California Civil Code,' plaintiff ASSOCIATION is entitled 14 damages for reasonable attorneys' fees against defendants, which plaintiffs s}. 15 set forth according to proof; and seven percent (7$) interest on the said def: 16 assessments. 17 WHEREFORE, plaintiff prays judgment against defendants as follows. 18 1. On the First through Sixth, inclusive, Causes of Action agair 19 DOES and CONCORD, WALNUT CREEK, COUNTY and DISTRICT: a. For damages according to roof but not less than $675,0 2,0 g g P � 21 representing- out of pocket damages and the cost of repairing the existi ±1 drainage system or installation of a new drainage system and repair of the ban 22 2,3 and real property contiguous to Turtle Creek where it passes through plaintif. ,24 property; 25 b. For a restraining order stopping and preventing the intrusi 28 and 'excessive sedimentation into Turtle Creek which diminishes t 27 detentionability of plaintiffs holding ponds and which eliminates flooding a: 28 erosion of Turtle Creek where it passes through plaintiffs property; 1 c. For interest on any sums plaintiff is awarded in this action; 2 �d. For attorneys fees and professional costs pursuant to CCP 8 41036 (Sixth Cause of Action only); 4 e. For costs of suit and such other relief as is appropriate. 5 2. On the Seventh through Thirteenth, inclusive, Causes of Action &.46 against DOES and PRESLEY: -;7 7 a. For damages according to proof but not less than $675,000 r 8 representing out of pocket damages and the cost of repairing the existing drainage system or installation of a new drainage system and repair of the banks . 9 g Y g Y P 10 and real property contiguous to Turtle Creek where it passes through plaintiff's 11 property; 12 - b. "For punitive damages (Tenth and Thirteenth Causes of Action 19 only); 14 c.. For interest on any sums plaintiff is awarded in this action; 15 d. For costs of suit and such other relief as is appropriate. 16 DATED: October 26, 1984 ' M 17 L LAW OFFI E OF RONALD M. ABEND, INC. 19 By: . •. Leven e 20 21 22 23 24 27 ° of g „ co�'oo For Nur Information: 35 May 7, 1984 TO: RONALD M. ABEND, ESQ. FROM: City Clerk, U City of Concord Irt . MAY - 9 1934 - - - - - - - Office of City Clerk 1950 'Parkside Drive Concord, California 94519 RE: Turtle Creek Subdivision, . Concord, California Turtle Creek Master Association, Inc. , hereby makes Claim against the CITY OF CONCORD for the minimum sum of $675,000.00; and makes the following statements in support of that Claim: .1. Notices concerning the Claim should be sent to the Lax Offices of Ronald M. Abend, 1333 Broadway, Suite 840, Oakland, California 94612. ' 2. The crate and place of occurrence giving rise to this Claim, are " as follows: The occurrence or incident is of a continuing natui causing Claimant's uncertainty as to a specific date of the ever or events wherein the cited .injury and damages have occurred The most recent occurrence was on or about February, 1984 The place of occurrence is the Turtle Creek Subdivision, City c,: Concord, County of Contra Costa, California. 3. The circumstances giving rise to this Claim are as follows: an or about February, 1984, several culverts beneath Ygnacio u � _ X R nONALD M. ABEND, ESQ. .�4 X�Y '7 Ph 2 35 LAW OFFICES OF RONALD M. ABEND, INC. ',-' .1333 Broadway, Suite 840 Oakland, California 94612 (415) 465-4430 �Attorneys for Claimant CLAIM AGAINST PUBLIC ENTITY [Government Code "910.2] TO: CITY OF CONCORD ------ Attention: City Clerk 1950 Parkside Drive Concord, California 94519 RE: Turtle Creek Subdivision, Concord, California Turtle Creek Master Association, Inc.,. hereby makes Claim against the CITY OF CONCORD for the minimum sum of $675,000.00; and makes the following statements in support of that Claim: 1. Notices concerning the Claim should be sent to the Law Offices of Ronald M. Abend, 1333 Broadway, Suite 840, Oakland, California 94612. 2. The date and place of occurrence giving rise to this Claim, are as follows: The occurrence or incident is of a continuing nature causing Claimant's uncertainty as to a specific date of the event or events wherein the cited injury and damages have occurred. The most recent occurrence was on or about February, 1984. The place of occurrence is the Turtle Creek Subdivision, Cit; of Concord, County of Contra 'Costa, California. 3. The circumstances giving rise to this Claim are as follows: On or about February, . 1984, several culverts beneath Ygnacio • 1 Valley Road, bordering the southern portion of the Turtle Creek Project, and connected to the Concord storm .drain system, which empties into the Claimant's Development, projected and emitted- and continues, to emit, large amounts of sediment-laden water into the Turtle Creek underground and. surface drainage system. When this water enters the three ponds and connecting streams located within the Turtle Creek Project, which form a part of the • Concord System, the water flow slows. permitting excessive sediment to settle out, severely decreasing the detentionability of those basins; and further causing severe flooding to the Project Park, Common Areas and Improvements, and certain individual Houses and Lots adjacent to the mentioned community park area. The condition has been created and aggravated by: (a) Grading activity taking place as part of landslide repair along Ygnacio Valley Road, [West of the Ygnacio Valley Road/Cowell Road Intersection] , believed to be under the • control and direction of the City of Walnut Creek and the 1 County of Contra Costa, respectively; and under the further control and jurisdiction of the City of Concord. (b) Extreme and continuing erosion along the perimeter of an abandoned quarry southeast of the Cowell Road/Ygnacio Valley Road Intersection, believed to be owned by the County .of Contra Costa, and within the `jurisdiction and control of the City of Concord. (c) Continuing erosion of land area of approximately 2.5 acres believed to be owned by the Contra Costa County Water District, also located within the mentioned quarry area site, which houses a water tank. It is Claimant's understanding that this Water District area is within the control and supervision of the City of Concord. The Turtle Creek Common Park Area hes suffered and continues to experience severe loss of Common Area Park useerosion of stream and pond banks, excessive sedimentation into its three . ponds and connecting waters, flooding of its banks and adjacent landscaped and pathway areas, damage to bordering homes, injury to its pond 1 equipment, and resultant diminution of value to its • properties. 4. Claimant's injuries are in excess of $675,000.00 for property damage, installation of , an adequate, alternative drainage system. out-of-pocket excessive repairs and maintenance to existing Project improvements, and further and other economical loss. 5. The names of the public employees, causing the Claimant's • injuries .are unknown. /�� 6. The Claim as of this date is in exces( of $675,000.00. a 7. Compilation of Claim and damages: 1. Damage to several acres of Turtle Greek Park R Landscaping, irrigation system, paths, walkways: Q S Unknown 2. Loss of Park use: S Unknown 3. Creation of peril and damage to houses located adjacent to the Turtle Creek Park: 5 Unknown 4. Damage to three ponds and connecting streams, due to erosion of , banks, and sedimentation fill: • S Unknown 5. Damage to pond and stream aeration equipment: $ Unknown 6. Damage to walls, fences, grading, drainage system, and utilities located within and around the Turtle Creek Park Area: $ Unknown 7. Required drainage system installation to adequately ' carry Concord City system and other related waters through the Turtle Creek Project: $675,000.00 (estimated). 8. Diminution of value to the Claimant's properties: $ Unknown. TOTAL ESTIMATED CLAIM: Excessive of $675,000.00. Dated: May 4, 1984 Law, ices of Ronal M. Abend, Inc. 'By: onald M. 1kend 6n behalf of Claimant, Turtle Creek Masters Association, Inc. i - I - 1 RONALD M. ABEND, ESQ. LAW OFFICES OF RONALD M. ABEND, INC. Irl Ay 7 1984 1333 Broadway, Suite 840 Oakland, California 94612 (415) 465-4430 C.Tr ATTORNEY'S Orf!Cf %-U-1-NUT CREEK, CALIFORNIA Attorneys for Claimant CLAIM AGAINST PUBLIC ENTITY Government Code 16905 , TO: CITY OF WALNUT CREEK Attention: D. Benjamin, City Attorney P.O. BOX 8039 • . Walnut Creek, California 94596 RE: Turtle Creek Subdivision, Concord, California Turtle Creek Master Association, Inc. , hereby makes Claim against the CITY OF WALNUT CREEK for the minimum sum of $675,000.00; and makes the following statements in support of that Claim: 1. -Notices concerning the Claim should be sent to the Law Offices J .of Ronald M. Abend, 1333 Broadway, Suite 840, Oa%land, California 94612. 2. The date and .place of occurrence giving rise to this Claim, are as follows: The occurrence or incident is of a continuing nature causing Claimant's uncertainty as to a specific date of the event or events wherein the cited injury and damages have occurred. The most recent occurrence was on or about February, 1984. The place of occurrence is the Turtle Creek Subdivision, City of Concord, County of Contra Costa, California. 3. 'The circumstances giving rise to this Claim are as follows: On or about February, 1984, several culverts beneath Ygnacio zYNIQiT � �� Valley Road, bordering the southern portion of the Turtle Creek Project, and connected to the ,Concord storm drain system, which empties into the Claimant's Development, projected and emitted and continues to emit, large amounts of sediment-laden water into the Turtle Creek underground and surface drainage system. When this water enters the three ponds and connecting streams located within the Turtle Creek Project, which form a .part of the Concord System, the water flow slows, permitting excessive sediment to settle out, severely decreasing the detentionability of those basins; and further causing severe flooding to the Project Park, Common Areas and Improvements, and certain individual Houses and Lots adjacent to the mentioned community park area. The condition has been created and aggravated by: (a) Grading activity taking place as part of landslide repair along Ygnacio Valley Road, [West -of the Ygnacio Valley Road/Cowell Road Intersection] , believed to be under the control and direction of the City of Walnut Creek and the County of Contra Costa, respectively; and under the further control and jurisdiction of the City of Concord. (b) Exrtreme and continuing erosion along the perimeter of an abandoned quarry southeast of the Cowell Road/Ygnacio Valley Road Intersection, believed to be owned by the County of Contra Costa, and within the jurisdiction and control of the City of Concord. (c) Continuing erosion of land area of approximately 2.5 acres believed to be owned by the Contra Costa County Water District, also located within the mentioned quarry area site, which houses a water tank. It is Claimant's understanding that this Water District area -is within the control and supervision of the City of Concord. The Turtle Creek Common Park Area has suffered and continues to experience severe loss of Common Area Park use, erosion of stream and pond banks, excessive sedimentation into its three ponds and connecting waters, flooding of its banks and adjacent landscaped and pathway areas, damage to bordering homes, 'injury to its pond equipment, and resultant diminution of value to - its properties. 4. Claimant's injuries are in excess of $675,000.00 for property damage, installation of an adequate, alternative drainage system, out-of-pocket excessive repairs and maintenance to existing Project"� improvements, and further and other economical loss. 5. The 'names of the public employees, causing the Claimant's injuries are unknown. 6. The Claim as of this date is in excess of $675,000.00. 7, Compilation of Claim and damages: 1. Damage to. several acres of Turtle Creek Park t Landscaping, irrigation system, paths, walkways: S Unknown 2. Loss of Park use: $ Unknown 3.. Creation of peril and damage to houses located adjacent to the Turtle Creek Park: S Unknown 4. Damage to three ponds and connecting streams, due to erosion of banks, and sedimentation fill: $ Unknown S." Damage to pond and stream aeration equipment: 5 Unknown 6. Damage to walls, fences, grading, drainage system, and utilities located within and around the Turtle Creek Park Area: $ Unknown 7. Required drainage system installation to adequately carry Concord City system and other related waters through the Turtle Creek Project: $675,000.00 (estimated). $. Diminution of value to the Claimant's properties: • 5 Unknown. TOTAL ESTIMATED CLAIM: Excessive of 5675,000,00. Dated: May 4. 1989 ' Lai ffices of Ronal M. Abend, Inc. y: on �. e o on e o Claimant, Turtle Creek Masters Association, Inc. 4 RONALD M. ABEND, ESQ. LAk' OFFICES OF RONALD M. ABEND, INC. 1333 Broadway, Suite 840 RECEIVED Oakland, California 94612 (415) 465-4430 .Attorneys for Claimant MAY 7" 1964 J. K. OISSON �KRDW SuF'fRVtSO//RS CLAIM AGAINST PUBLIC ENTITY [Government Code 10.2] TO: COUNTY OF CONTRA COSTA Board of Supervisors 651 Pine Street, room 106 Martinez, California 94553 RE: Turtle Creek Subdivision, ' Concord, California Turtle Creek Master Association, Inc. , hereby makes Claim against . .."the COUNTY OF CONTRA COSTA for the minimum sum of $675,000.00; and makes the following statements in support.of that Claim: 1. Notices - concerning the Claim should be sent to the Law Offices of Ronald M. Abend, 1333 Broadway, Suite 840, Oakland, California 94612. 2. The date and place of occurrence giving rise to this Claim, are -as follows: The occurrence or incident is of a continuing nature causing Claimant's uncertainty as to a specific date of the event or events wherein the cited injury and damages have occurred. The most recent occurrence was on or about February, 1984. T,he place of occurrence is the Turtle Creek Subdivision, City of Concord, County of Contra Costa, California. 3. The circumstances giving rise to this Claim are as follows: On or about February, 1984, several culverts beneath Ygnacio 1k i Valley Road, bordering the southern portion of the Turtle Creek Project, and .connected to the Concord storm drain system, which empties into the Claimant's Development, projected and emitted and continues to emit, large amounts of sediment-laden water into the Turtle Creek underground and surface drainage system. When this water enters the three ponds and connecting streams located within the Turtle Creek Project, which form a part of the Concord System, the water flow slows, permitting excessive sediment to settle out, severely decreasing the detention abiliiy of those basins; and further causing severe flooding to the Project Park, Common Areas and Improvements, and certain individual Houses and Lots adjacent to the mentioned community park area. The condition has been created and aggravated by; (a) Grading activity taking place as part of landslide repair „ along Y gnacio Valley Road, [West of the Y gnacio Valley Road/Cowell Road Intersection] , believed to be under the control and direction of the City .of Walnut Creek and.. the ' County of Contra Costa, respectively; and under the further control and jurisdiction of the City of Concord. (b) Extreme and continuing erosion along the perimeter of an abandoned quarry southeast of the Cowell Road/Ygnacio Valley Road Intersection, believed to be owned by the County of Contra Costa, and within the jurisdiction and control*of the City of Concord. (c) Continuing erosion of land area of 'approximately 2.5 acres believed to be owned by the Contra Costa County Water District, also located within the mentioned quarry area site, which houses a water tank. It is Claimant's understanding that this Water District area is within the control and supervision of the City of Concord. The Turtle Creek Common Park Area has suffered and continues to experience severe loss of Common Area Park use, erosion of stream and pond banks, excessive sedimentation into its three ponds and connecting waters, flooding of its banks and adjacent landscaped and pathway areas, damage to bordering homes, injury to its pond equipment, and resultant diminution of value to its properties. 4. Claimant's injuries are in excess of $675,000.00 for property damage, installation of an adequate, alternative drainage system, out-of-pocket excessive repairs and maintenance to existing Project improvements, and further and other economical loss. 5. The names of the public employees, causing the Claimant's injuries are unknown. 6. The Claim as of this date is in excess of $675,000.00. 7. Compilation of Claim and damages: 1: Damage to several • acres. of Turtle Creek Park Landscaping, irrigation system, paths, walkways: $ Unknown 2. Loss of Park use: S Unknown 3. Creation of peril and damage to houses located adjacent to the Turtle Creek Park: $ Unknown 4. Damage to three ponds and connecting streams, due to erosion of banks, and sedimentation fill: $ . Unknown 5. Damage to pond and stream aeration equipment: • $ Unknown 6. Damage to .walls, fences, grading, drainage system, and utilities located within and around the Turtle Creek Park Area: 5 Unknown 7. Required drainage system .installation to adequately carry Concord City system and other related waters through the Turtle Creek Project: $675,000.00 (estimated). 8. Diminution of value to the Claimant's properties: $ Unknown. TOTAL ESTIMATED CLAIM: Excessive of $675,000.00. Dated: May 4. 1984 Offices of Ronal R. dnd, Inc. B L �. RoTt M. Abend n' be i Claimant, Turtie Creek Masters Association, Inc. RONALD M. ABEND, ESQ. LAW OFFICES OF RONALD M. ABEND, INC. 1333 Broadway, Suite 840Lis 3 g 1Q 9461 Oakland, � �rr 465-4430 2 ,,.7e ti Attorneys for Claimant T CEIVED ` C.0_. :NATER DIST. -Ni CA11F. �l CLAIM AGAINST PUBLIC ENTITY [Government Code H955, , 10.2 TO: CONTRA COSTA WATER DISTRICT Attention: Sohn Deo ito, General Manager P.O."BOX "Ii" 20 Concord. California 94524 RE: Turtle Creek Subdivision, Concord, California Turtle Creek Master Association, Inc. , hereby makes Claim against .'the CONTRA COSTA WATER DISTRICT for the minimum sum of $675,000.00; and makes the following statements in support of that Claim: 1. Notices concerning the Claim should be sent to the Law Offices of Ronald M. Abend, 1333 Broadway, Suite. 840, Oakland, California 94612. 2. The date and place of occurrence gi-%rirg rise to this Claim, are as follows: The occurrence or incident is of a continuing nature E causing Claimant's uncertainty as to a specific date of the event or events wherein the cited injury and damages have occurred. .The most recent occurrence was on or about ,February. 1984. The place of occurrence is the Turtle Creek Subdivision, City of Concord, County of Contra Costa, California. 3. The circumstances giving rise to this Claim are as follows: -On or about February, 1984, several culverts beneath Ygnacio EXHiR[T I Valley Road, bordering the southern portion of the Turtle Creek Project, and connected to the Concord storm drain system, which empties into the Claimant's Development, projected and emitted and continues to emit,. large amounts of sediment-laden water into the Turtle Creek underground and surface drainage system. When this water enters the three ponds and connecting streams located within the Turtle Creek Project, which form a part of the Concord System, the water flow slows, permitting excessive sediment to settle out, severely decreasing the detentionability of those basins; and further causing severe flooding to the Project Park, Common Areas and Improvements, and certain individual Houses and Lots adjacent to the mentioned community park area. The condition has been created and aggravated by: (a) Grading activity taking place as part of landslide repair along Ygnacio Valley Road., [West of the Ygnacio Valley Road/Cowell Road Intersection] , believed to be under the control and direction of the City of Walnut Creek and the County of Contra Costa, respectively; and under the further control and jurisdiction of the City of Concord. (b) Extreme and continuing erosion along the perimeter of an abandoned quarry. southeast of the Cowell Road/Ygnacio Valley Road Intersection, believed to be owned by the County of Contra Costa, and within the jurisdiction and control of the City of Concord. (c) Continuing erosion of land area of approximately 2,5 acres believed to be owned by the Contra Costa County Water District, also located within the mentioned quarry area site, which houses a water tank. It is Claimant's understanding that this Water District area is within the control and supervision of the City of Concord. The Turtle Creek Common Park Area has suffered and continues to experience severe loss of Common Area 'Park use, erosion of stream and pond banks, excessive sedimentation into its three ponds and connecting waters, flooding of its banks and adjacent landscaped and pathway _ areas, damage, to bordering homes, injury to its pond equipment, and resultant diminution of value to • its properties. 4. Claimant's injuries are in excess of $675,000.00 for property damage, installation of an adequate, alternative drainage system, out-of-pocket excessive repairs and maintenance to existing Project improvements, and further and other economical loss. 5. The names of the public employees, causing the Claimant's injuries are unknown. 6. The Claim as of this date is in excess of $675,000.00.,," 7. Compilation of Claim and damages: 1: Damage to several acres of Turtle Creek Perk Landscaping, irrigation system, paths, walkways: S Unknown 2. Loss of Park use: S Unknown 3. Creation of peril and damage to houses located adjacent to the Turtle Creek Park: $ Unknown 4. Damage to three ponds and connecting streams, due to erosion of banks, and sedimentation fill: S Unknown—. a ,rte _: f wa', (/�.��� • S • , / 5. Damage to' pond and stream aeration equipment: $ Unknown 6. Damage to walls, fences, grading, drainage system; and utilities located within and around the Turtle Creek Park Area: $ Unknown 7. Required drainage system installation to adequately carry .Concord City system and other related waters through the Turtle Creek Project: $65,000.00 ` (estimated) . S. Diminution of value to the Claimant's properties: $ Unknown. ' TOTAL ESTIMATED CLAIM: Excessive of $675,000:00. Dated: May 4, 1984 Law Offices of Ro d M. Abend, Inc. • Rork d M. Abend on -behaif 61 Claimant, Turtle Creek Masters Association, Inc. r" rs� City of Concord -NE: (415) 671-3078 CITY COUNCIL SIlphen L.Weir.Mavor May 251 1984 Ronald K.Mullin,Vice Mayor June V.Bulman Colleen Coll Diane Longshore Farrel A.Stewart,City Manager Turtle Creek Master Association, Inc. c/o Ronald M. Abend, Esq. Law Offices of Ronald M. Abend, Inc. 1333 Broadway, Suite 840 Oakland, California 94612 MAY 2 9 1934 Re: Turtle Creek Subdivision _ _ _ _ _ _. _ Concord, California Pursuant to the authority vested in me by the City Council, you are hereby notified that the claim you presented to the City of Concord dated May 4, 1984 pertaining to an incident occurring on or about February, 1984 in an' amount excessive of $675,000.00 is hereby rejected in its entirety. WARNING Subject to certain. exceptions, you have only six (6) months from date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government Code 'Section 945.6. Yours very truly, s STANLE PINKOSKI Finance Director SSP:by cc: City Attorney CCCMRMIA—Claims Manager EXHIBIT - - 1 Inut* .►tt" `./T May 21, 1984 � v from the office of CITY ATTORNEY/RISK MANAGER i L 14A 2 3 198 Mr, Ronald M. Abend ' Attorney at Law 1333 Broadway, Suite 840 - Oakland, California Re: Claim Against City of Walnut Creek Turtle Creek Subdivision, Concord, California Dear Mr. Abend: ' Notice is hereby given that the claim for property damage presented to the City of Walnut Creek on May 7 , 1984 was denied by the City Attorney/Risk Manager on'May 21 , 1984 . The City Attorney/Risk Manager is authorized and directed to act on claim: by City Council Resolution No. 4281. The following warning is given as required by Government Code Section 913 : bT RSI NG ' "Subject to certain exceptions, you have only six (6) months from the date this 'notice was personally delivered 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 • desire to consult an attorney, you should do so immediately. " Very truly your •- DAVID BENJAMIN EXHIBIT City Attorney/ Risk Manager DB:ct cc: Mr. Jake O'Malley, Claims Manager ;' Contra Costa ' County Risk Management Insurance Authority "ZIPM Cr cLil A BOARD ACTION June S, 1984 • CLsia Against the C.-Amty,.cr District ) W! TO aAMVor governed by the. Wa d of & Vzutig lridcrserrnts, end ftaraiacscs, ) =*Uca cf the acUm tzksn am poor 0 al-a b y rthe Action. All Section referarcvs are mrd of (Faragra;b 14, bake)• to California Goverramt GQo 1 givwn purWmnt to Gopmimmt Code Section 913 a� W.4. ply =ft all 69arninp% Caimmcnt: Turtle Creek Master Association, Inc. , Attor:sLY: Ronald M. Abend, ESQ. G3C�'Is;pVr �. Law Offices of Ronald M. Abend ��N 19g 1ffir�: 1333 Broadway, Suite 840 Oakland, CA 94612 fit: $675,000.00 BY ��'Y to clerk an � -y Dateoeived: y mil ked on May 4. , 1984 May 7 1984 �tifie Mail P246 571 395 _. ?FjM: derk of the Boar 6uip.er s TO: County Counsel Ahad-Ad is a copy of the claim. Dated: May 7, 1984 J.R. msscM, Clerk, By r Dept} Kelly /R$ Calhoun } 11. FFC.M: County Cowtsel 70: Clerk of the Award (Check only cne) . 3?C j This claims omr plies substantially with Sections 910 and 910.2aslo e1cG-Z-� a)e4A& n or u.•r .Scc .bc1ftj- ( ) This claim FAILS to ==ply subitantially with Secticns 910 and 910.2, and we are so wtifying claimant. The Board cannot act for 15 days (6ecticn 910.8). . ( Claim is not timely f filed^ '&erk shcs teturn claim on grm-d that it was f filed late and send warning orf claimant's richt,to apply for leave to present a late claim (Section 93.1.3). ()C ) Other. �c.�:.. �1iQ amu_ c(a.s�,.•r l'S�sas/ ctXi�-� �. Dated: - By: Deputy Cotmty Cotme III. Mi.- Clerk of the Board 70: ) County Counsel, (2) county Administrator Claim was returned as untimely with mortice to claimant (Section 911.3). IV,. KM M!rlpnL By unanimous vote of Supervisors present ( ) This claim is rejected in full. Xj Others .�Porti_on of original claim not previously returned as untimely is relecttd in full . certify that this N a true correct copy iZ the Boar 's or2O snMa in its minutes for this date. ;Wni DuBois Dated: 6-5-8 4 1. R. Ctmm, Clerk, Ey , Deputy Clez rMUM= Pov. Oodc Section 9,& 6ubjoct to cartain amoeptiarna, T= have aanl.y six (6) vmths fray tax date th Is �y..♦ —• -----w f 1« —- -�—4 1.— I._.. .. • 0 • 0 Is . . . 1• • . e•. . 0 •• 1 1 VERIFICATION (Authorized Agent) 2 5 I. _ 04r' a L.- declare:._ = 4 1 am the authorized agent of TURTLE CREEK MASTER ASSOCIATION, 'S INC. , e nonprofit corporation organized and existing under the laws of 6 California, which is the PLAINTIFF in the above-entitled action, and I have been authorized to make this Verification on its behalf. 6 I . have read the COMPLAINT FOR DAMAGES AND PRELIMINARY AND I 9 PERMANENT INJUNCTION (NUISANCE, NEGLIGENCE, FAILURE. TO DISCHARGE 10 MANDATORY DUTY, MAINTENANCE OF DANGEROUS CONDITION, INVERSE ! 11 CONDEMNATION, STRICT LIABILITY. BREACH OF CONTRACT, BREACH OF WARRANTY, INTENTIONAL AND NEGLIGENT MISREPRESENTATION), and know ; 13 the contents thereof. _ f 14 1 am informed and believe that the matters stated therein are 'true and 15 on that ground, I allege that the matters stated therein are true. 16 Executed on A-4py 1984, at date -_ . city 1T j California. 18 county i ...19. I declare under penalty of perjury that the foregoing is true and J 20 correct. (I 21 22 sign: print: Declarant 24 25 27 - .. .l.nw IL c6mo n ,e Board of Supervisor:}: CCit�d n : � E,0"c o a.•z a a»ocrro ty Administration 8k"rog .y t .' til\ ... • r_ Box 911 '.inez. Catttornia 8 553 u''=`-• � _ - - _ _ - - ;r;:.- G FMdeti and ow'.a •1 L Sc r•odK.3rd DwanC2 • •• May: 18 , 1984 MAY 21 1931 70: Ronald M. Abend, Esq. Law Offices of Ronald M. Abend 1333 Broadway, Suite 840 Oakland, CA 94612 tJ(7E TO CLAI MAW :4 (Of La !led cl ) (Government Code Section 911.3) (X) The claim you presented to the Board of Supervisors of Contra Costa County, California, as governing body of the . X Canty of Contra Costa and/or District, on May 19 , 1984 is being returned. to you herewith because it was not presented within 100 days after the event or bcc-urrence as required by law. (See Sections 901 and 911.2 of the Government Cwe.) Because the claim was not presented within the time allowed by law, no action was taken on the claim. Your crily recourse at this time is to apply without delay to the Board of Supervisors (in its capacity noted above) for leave to present a late claim. (See Sections '911.4 to 912.2, inclusive, and Section 946.6 of the Government Code.) Under sane circumstances, leave to present a late claim will be granted. (See'Section 911.6 of the GoverrrDent Code.) You may seek the advice of an attorney of your choice in connection with this matter. If you desire to oonsult an attor- ney, you should do so i=tediately. D BE FILLED IN BY THE CLERK CF TEE BOAS CNLY IF APPLICABLE: ( Since a portion of your claim is not untimely, we are retaining a oopy of your claim for Baird action on that portion of y_t= claim whidi is not ontimely. J. R OLSSCN, County Clerk ;ruQ I Wrluty Clerk Date: * Claim is not timely filed as tc claims arising more than 1 year pri-or to the filing of the claim. A: BOARD OF surmi ISORs Og dSM OOSTA omm, CALIF+O mA BOARD ACTION Claim Apinst the County, or District ) NOTICE 10 CLAIMANT May 21, 1985 governed by the Board of Supervisors, ) The copy of s t mailed to you is your Routing Endorsements, and Board ) notice of the action taken ca your claim by the .Action. All Section references are ) Board of Supervisors (Paragraph IV, below), to California Government Codes ) given pursuant to Goverrmeat Code Section 913 and 915.4. Please note all wVarainp". Claimant: Oliver deSilva (Sycamore Homes) County Counsel Attorney: Jack T. Friedman -Carroll, Burdick & McDonough APR 18 1985. Address: 49 Quail Court, Suite 300 Walnut Creek, CA 94596 Hand delivereMarfinez, CA 94553 Amount: Unspecified By delivery to clerk on Ap11 ril 16, 1985 Date Received: April 16, 1985 By mail, postmarked on I. : Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: April 17, 19 8 5 PHIL BATCHELOR, Clerk, By 00 D Deputy Ann Cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) 0 This claim complies substantially With Sections 910 and 910.2. ( ) This claim FAILS to comply substantially With Sections 910 and 910.29 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 VWnsel, (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 of the Board` Order entered in its minutes for this date. Dated: _ PHIL BATCHELOR, Clerk, By0 , Deputy Clerk 0 WARNING (Gov. Code Section 913) Subject to certain exceptions, you have only six. (6) months from the date of this notice waspersonally 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 oonsult an attorney, you should do so immediately. Y. FROM: Clerk of the Board 70: (1) County Counsel, (2) County Administrator Attached are copies of the above claim. We notified the claimant of the BoardIs action an 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 present a late claim was mailed to claimant. DATED:_, a PHIL BATCHELOR, Clerk, By N , Deputy Clerk oc: County Administrator (2) County Counsel (1) CLAIM CARROLL, BURDICK & MCDONOUGH COUNSELORS AND ATTORNEYS AT LAW SAN FRANCISCO OFFICE: 49 OUAIL COURT,SUITE 300 ONE ECKER BUILDING,SUITE 400 WALNUT CREEK,CALIFORNIA 94596 ECKER&STEVENSON STREETS SAN FRANCISCO,CALIFORNIA 94105 TELEPHONE [415] 945-8579 (415)495-0500 April 16, 1985 "A.�0 t - J �. Board of Supervisors County of Contra Costa ' :'•:` )(�, 985 651 Pine Street Martinez, CA 94553 F' ':isATcleoz �pn.... •�I Gi :U d °moi°✓ CG: L Clrvcl Attention: Clerk Re: Claim Against the County of Contra Costa Dear Clerk: Enclosed please find a claim against the County of Contra Costa, along with a copy of Plaintiffs' Complaint and DiGiorgio Corporation' s Cross-Complaint. Please return an endorsed-filed copy of the claim to our office in the enclosed return envelope. If you have any questions, please do not hesitate to contact me. Very truly yours, CARROLL, BURDICK & MCDONOUGH Jack T. Friedman JTF/ss Enclosures PERSONAL SERVICE 1 CARROLL, BURDICK & MCDONOUGH LAI COUNSELORS AND ATTORNEYS AT LAW j I ! 1 p 2 49 QUAIL COURT, SUITE 300 y WALNUT CREEK, CALIFORNIA 94596 it P 1, Ie - 3 , TELEPHONE [415] 945-8579 ,. `J P!'.IL BAM4ELO^ 4 :DADr Ceneli 5 ATTORNEYS FOR Cross-Defendant OLIVER deSILVA, INC. 6 7 CLAIM AGAINST: COUNTY OF CONTRA COSTA 8 9 TO THE CLERK OF THE BOARD OF SUPERVISORS: 10 OLIVER deSILVA, INC. hereby makes a claim against the 11 County of Contra Costa for an unspecified amount which cannot be 12 ascertained until the conclusion of the litigation to be hereafter 13 described, and makes the following statements in support of the 14 claim: 15 1. Claimant' s address is: 22991 Clawiter Road Hayward, California 94540 16 17 2. Notices concerning claims should be sent to: 18 Jack T. Friedman, Esq. Carroll, Burdick & McDonough 19 49 Quail Court, Suite 300 Walnut Creek, CA 94596 20 21 3. The date and place of the occurrence giving rise to, 22 this claim are as follows: On June 3, 1983, a Complaint was filed 23 by Plaintiff Sycamore Homes Association, in the Superior Court of 24 California in and for the County of Contra Costa, Martinez, Cali- 25 fornia, against DiGiorgio Corporation, DiGiorgio Development Corpor- 26 ation and Contra Costa County, for inverse condemnation and to 1 recover damages allegedly sustained by its property located in the 2 City of Danville, in a subdivision commonly known as Sycamore 3 Homes. Claimant does not currently know the common address of said 4 parcel but believes it is legally described as Parcels A and B, of 5 Subdivision 4232, in the County of Contra Costa. The alleged 6 damages to Plaintiff' s property were caused by earth and mudslides 7 occurring some time in early Spring, 1983. Plaintiff's Complaint 8 was amended on November 9, 1984, when it filed its First Amended 9 Complaint for negligence, strict liability, breach of warranty, 10 fraud and inverse condemnation. In said amended Complaint Plaintiff 11 again sought to recover for damages to and loss of use of its 12 property caused by earth and mudslides occurring in early Spring, 13 1983. Plaintiff alleged that the cause of the slides was in part 14 due to faulty design and construction of lots adjacent to its 15 property. 16 Claimant herein was not named as a Defendant in either the 17 original Complaint or the First Amended Complaint. Instead, , on or 18 about January 17, 1985, certain of the Defendants in the action 19 filed by Plaintiff, DiGiorgio Corporation and DiGiorgio Development 20 Corporation, served a Cross-Complaint on Claimant seeking indemnity 21 for sums expended in defending itself against the Complaint filed by 22 Plaintiff and for sums which might be expended to satisfy any 23 settlement or judgment rendered against it. Claimant had done 24 certain grading work on behalf of Cross-Complainants at property 25 near that property belonging to Plaintiff. Cross-Complainants 26 -2- 1 therefore contended that they were entitled to indemnity from 2 Claimant pursuant to a written agreement between the parties. 3 Claimant' s claims against the public entity herein named 4 are based on said public entity' s negligence and other wrongful 5 conduct in maintaining property near Plaintiff' s, in planning, 6 approving and constructing certain public improvements near property 7 belonging to- Plaintiff and in approving for development a residen- 8 tial subdivision adjacent to Plaintiff's property. Claimant is 9 informed and believes that such conduct by the public entity was a 10 proximate cause of Plaintiff' s alleged damages, if any. 11 4. Claimant' s damages are: Sums not currently known or 12 ascertained resulting from that Cross-Complaint filed by Cross- 13 Complainants DiGiorgio Corporation and .DiGiorgio Development Corpor- 14 ation in which they claim they are entitled to indemnity for sums 15 expended in their defense and which may be expended to satisfy any 16 settlement or judgment entered in the action entitled Sycamore 17 Homes Association v. DiGiorgio Corporation, et al. Claimant .•herein 18 seeks reimbursement for any judgment or settlement to be assessed 19 or entered against it pursuant to the Cross-Complaint or the under- 20 lying Complaint filed by Plaintiff and litigation costs, attorneys 21 fees and any other expenses incurred in defending against either 22 the Complaint or Cross-Complaint. 23 5. The names of the public employees causing the 24 Claimant's damages are presently unknown. 25 26 -3- PROOF OF SERVICE HAND DELIVERED- CCP 1011, 2015.5 1 1 declare that: 2 1 am (a resident of/employed in) the county of..................................Contra...COsta.............................................. California. (COUNTY WHERE MAILING OCCURRED) 3 1 am over the age of eighteen years and not a party to the within cause; my (business/residence) address is:'........................ 4 49....Q9941...Cour........ Sud. ....3.A.9......Walnut...C.x'e.ek.....CA.......9.45.9.6........................................ 5 On ......... APr1....1.5.t.....19.85......................... I served the within .......... .** (DATE) 6 ............................................................................................................... on the ..............PaY':ty....be.1oW..................................................... 7 in said cause, by placing a true copy thereof enclosed in a sealed envelope, addressed as follows: 8 9 Sycamore Homes V. DiGiorgio, et al. 10 11 Clerk BOARD OF SUPERVISORS 12 COUNTY OF CONTRA COSTA 651 Pine Street 13 Martinez, CA 94553 14 15 16 *** CLAIM AGAINST: COUNTY OF CONTRA COSTA , Underlying Complaint 17 Cross-Complaint 18 19 20 21 22 23 1 declere`undei penalty of perjury that the foregoing is true and correct, and that this declaration was executed on 24 ;:.: �APril...16. ....1.98.5. ........... ................... at ......................WAlnut....0re..eY......................................,California. ,,. (DATE% (PLACE) 25 �f ,• 26 Joan M. Schlink S (TYPE UR PRINT NAM Ei GNATURE D DEC 19 1984 1 1 JEFFREY M. FORSTER I R. OLSSON, County Clerk f BRIAN J. HANNON CONTRA COSTA COUNTY 2 BERLINER, COHEN & BIAGINI h` 99 ALMADEN BLVD. , SUITE 400 M. HIINRICItEN 3 SAN JOSE, CA 95113 TELEPHONE: (408 ) 286-5800 4 5 1 ATTORNEYS FOR DEFENDANTS AND CROSS- COMPLAINANTS DiGIORGIO CORPORATION j 6 , AND DiGIORGIO DEVELOPMENT CORPORATION ' I 7 8 ( SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 10 ) NO. 248025 SYCAMORE HOMES ASSOCIATION, ) ' 11 ) CROSS-COMPLAINT BY Plaintiff, } DiGIORGIO CORPORATION 12 ) AND DiGIORGIO DEVELOPMENT Vs. ) CORPORATION 13 1 ) DiGIORGIO CORPORATION, a ) 14 ► California corporation, ) et al. , ) 15 ) Defendants . ) 16 ) 17 DiGIORGIO CORPORATION, a ) D obw 6son.Mc Delaware corporation, and } D 16 DiGIORGIO DEVELOPMENT COR- ) PORATION, a Delaware ) 19 corporation, ) i ) 20 Cross-Complainants, ) WAX x.985, 21 vs. • 22 SYCAMORE HOMES ASSOCIATION, a California corporation, ) 23 ENGEO, INC. , a California ) corporation, OLIVER DeSILVA, ) 24 . INC. , a California corpora- ) i tion, COUNTY OF CONTRA ) 25 1 COSTA, LLOYD J. RODONI AND ) SONS, a California corpora- ) 26 tion, TOWN OF DANVILLE, ) LIT:X-Comp-004 •-' J0132/007 1 INDEPENDENT CONSTRUCTION ) COMPANY, INC. , a California ) i 2 corporation, and DOES 1 ) through 70, inclusive, ) 3 ) ` Cross-Defendants . ) 4 ) i 5 AND RELATED CROSS-ACTIONS. ) 6 ) Cross-Complainants DiGIORGIO CORPORATION and DiGIORGIO DEVEL- OPMENT CORPORATION (sometimes hereafter referred to collectively 8 . as "DIGIORGIO" ) allege as follows: 9 GENERAL ALLEGATIONS 10 , 1. DiGIORGIO CORPORATION is a. corporation existing under 11 ! , the laws of the State of Delaware, with its principal place of 12 business in San Francisco, California. I 13 2 . DiGIORGIO DEVELOPMENT CORPORATION is a corporation 14 t! Ii existing under the laws of the State of Delaware, with its prin- 15 cipal place of business in San Francisco, . California. It is a . 16 wholly owned subsidiary of DiGIORGIO CORPORATION. DiGIORGIO 17 i ' DEVELOPMENT CORPORATION previously owned and developed Subdivi- 18 i sion 4232 . The map of this subdivision was recorded with the 19 Recorder of the County of Contra Costa on January 24 , 1973 at 20 Book 253 of Maps, pages 49 through 52. DiGIORGIO DEVELOPMENT 21 I CORPORATION also previously owned and developed Subdivision 22 4659. The map of this subdivision was recorded with the Recorder 23 11 of the County of Contra Costae on July 8, 1976 at Book 286 of 24 ' Maps, pages 7 through 9 . Cross-Defendant SYCAMORE HOMES ASSOCI- i 25 ATION contends that Di=IORG10 CORPORATION is the alter ego of 26 ; I, LIT:X-Comp-004 J0132/007 1 i 1 DiGIORGIO DEVELOPMENT CORPORATION in that DiGIORGIO CORPORATION 2 controls and dominates the corporate business of Di.GIORGIO 3 DEVELOPMENT CORPORATION which is a mere shell, instrumentality r 4 ! and conduit through which DiGIORGIO CORPORATION carries on its i ! 5 construction land development and contracting business in a corp- 6 orate form, exercising complete control and dominance of the 7 business of DiGIORGIO DEVELOPMENT CORPORATION to such an extent 8 that any individuality or separateness between them never 9 existed. Cross-Defendant SYCAMORE HOMES ASSOCIATION contends 1 10 further that DiGIORGIO CORPORATION is liable for the acts or ! i 11 omissions of DiGIORGIO DEVELOPMENT CORPORATION. DiGIORGIO denies 12 ( each and every one of these contentions . I 13 3. DiGIORGIO is informed and believes , and thereon alleges, I 14 that Cross-Defendant INDEPENDENT CONSTRUCTION COMPANY, INC. 15 ( "INDEPENDENT" ) is a California corporation. DiGIORGIO is also 16 informed and believes, and thereon alleges , that INDEPENDENT is, 17 I and at all times mentioned herein was, a contractor, duly 18 i licensed under the laws of the State of California. INDEPENDENT i 19 performed grading and excavation work for DiGIORGIO DEVELOPMENT i 20 i CORPORATION on Subdivisions 4232 and 4659 . 21 i 4 . DIGIORGIO is informed and believes , and thereon alleges, 22 that Cross-Defendant ENGEO, INC. ( "ENGEO" ) is a California cor- , I j 23 ( oration. ENGEO performed soils engineering work for DiGIORGIO 24 DEVELOPMENT CORPORATION on Subdivisions 4232 and 4659 . 1 25 i 5. DiGIORGIO is informed and believes , and thereon alleges, 1 26 that Cross-Defendant OLIVER DeSILVA, INC . ( "DeSILVA" ) is a Cali- . ` LIT:X-Comp=004 J0132!007 I j _ I . fornia corporation. DiGIORGIO is also informed and believes , -and - i 2 thereon alleges , that DeSILVA is , and at all times mentioned 3 I herein was, a contractor , duly licensed under the laws of the 4 State of California. DeSILVA performed grading and excavation 5 f work for DiGIORGIO DEVELOPMENT CORPORATION on Subdivisions 4232 I 6 I and 4659 . 7 j 6 . DIGIORGIO is informed and believes , and thereon alleges , 8 ; that Cross-Defendant LLOYD J. RODONI & SONS ( "RODONI" ) is a Cali- i 9 forma corporation. DiGI0RGI0 is also informed and believes, and f`' I 10 thereon alleges , .that RODONI is , and at all times mentioned here- 11 in was , a contractor , duly licensed under the laws of the State 12 1 of C.=lifornia. RODONI performed grading and excavation work on 13 r; Subdivisions 4232 and 4659 . 14 ++ 7 . Cross-Defendant COUNTY OF CONTRA COSTA ( "COUNTY" ) is a I� 15 county and political subdivision within the State of California, 16 duly organized and existing under the laws of the State of Cali- . I i 17. fornia. 18 8. DiGIORGIO is informed and believes , and thereon alleges, 19 that Cross-Defendant CITY OF DANVILLE ( "CITY" ) is a public entity i 20 and municipality, duly organized and existing under the laws of 21 the 'Sate of California. 22 ' 9. The true names and capacities whether individual, cor- ' 4' 23 porate, associate or otherwise of Cross-Defendants DOES 1 through I. 24 70, inclusive, are unknown to DiGIORGIO, who therefore sues such i 25 Cross-Defenda^ts by such fictitious names. DiGIORGIO is informed t 26 and believes, and thereon alleges, that each of the Cross-Defen- f I I LIT:X-Comb_ -004 � ,'0132/007 i • i' I dants sued herein as DOES 1 through 70 are responsible in some 2 manner for the occurrences herein alleced, and that DIGIORGIO' s 3 j damages as herein alleged were proximately caused by such Cross- 4 Defendants. 5 10 . DiGIORGIO is informed and believes , and thereon alleges , 6 ; that at all times relevant herein, Cross-Defendants, and each of 7 them, were the agents, servants and employees of each of the 8 I remaining Cross-Defendants , and in doing the things hereinafter 9 alleced, were acting within the course and scope of such agency, 10 service and employment . 11 11 . On or about November 9, 1984 , Plaintiff SYCAMORE HOMES i 12 ASSOCIATION ( "Plaintiff" ) filed a First Amended Complaint in the i 13 Superior Court of the State of California in and for the County li 14 of Contra Costa (Case No. 248025 ) against DiGIORGIO. In its 15 First Amended Complaint , Plaintiff alleges that DIGIORGIO, 16 ; through its acts or omissions, caused certain earth movement 17 which has damaged or imperiled its property. DiGIORGIO has 18 denied each and every one of these allegations . I 19 FIRST CAUSE OF ACTION 1 [Against DeSILVA and DOES 1-10 , 20 inclusive, for Express Indemnity] 21 12. DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer-- 22 ence as though fully set forth herein each and every allegation 23 '' contained in Paragraphs 1 through 11 of this Cross-Complaint . i 24 .! 13 . % At all times mentioned herein, DeSILVA and DOES 1 25 through 10, were engaged in the business of land grading and ! 26 !' excavation. ! LI'?':Y=Comp-004 V'0132/007 `• ' I , I ' I 1 14 . On or about June 24 , 1976 , DiGIORGIO DEVELOPMENT CORP.OR- 2 i ATION entered into a writter agreement with DeSILVA and DOES 1 i 3 throuah 10 , inclusive, whereby these Cross-Defendants agreed to 1 4 supply the materials, labor , and equipment necessary . to perform 5 the grading and excavation work on Subdivision 4659 . ! I 6 15 . On or about August 14 , 1972, DiGIORGIO DEVELOPMENT COR- j 7 i PORATION entered into a written agreement with DeSILVA and DOES 1 8 through 10, inclusive, whereby these Cross-Defendants agreed to 9 supply. the materials, labor, and equipment necessary to perform I 10 the grading and excavation work on Subdivision 4232. ! 11 16 . In each of these agreements, DeSILVA and DOES 1 through 4 12 10 , inclusive, agreed to "indemnify and hold [DiGIORGIO DEVELOP- 13 i MENT CORPORATION] harmless from any loss , .cost , damage or expense I . 14 ( including attorneys ' fees ) arising out of any accident or other 15 occurrence causing injury to any person or property due directly 16 or indirectly to [Cross-Defendants ' ] work" . 17 17. Should Plaintiff recover , by way of settlement or judg- 18 j ment, any damages from DiGIORGI0 DEVELOPMENT CORPORATION, these 19 damages would be caused primarily and ultimately by Cross-Defen- i 20 ! dants ' active negligence and their failure to properly perform 21 their obligations under their contract with DiGIORGIO DEVELOPMENT 22 CORPORATION. Any liability of DiGIORGIO DEVELOPMENT CORPORATION 23 j -for these damages would arise., not as a result of any active 24 fault on its part, but s-.:�lely because it previously owned and I 25 i developed Subdivisions 4232 and 4659. Accordingly, Cross-Defen- i I 26 ` dants are obligated to hold harmless and indemnify DiGIORGIO i ! LIT:X-Comp-004 ' J0132l007 f I 1 DEVELOPMENT CORPORATION from and against any damages, liability, 2 loss, costs , and expenses, including attorneys ' fees, which it 3 has incurred or may incur in defending against Plaintiff ' s action 4 or in prosecuting this Cross-Complaint . 5 %'HEREFORE, DiGIORGIO DEVELOPMENT COPPORATION prays judgment 6 as hereafter set forth. 7 SECOND CAUSE OF ACTION I [Against INDEPENDENT and DOES 11 through 20 , ' 8 inclusive, for Express Indemnity] 9 18 . DIGIORGIO incorporates by reference as though fully set 1 10 forth herein each and every allegation contained in Paragraphs 1 I 11 through 11 of this Cross-Complaint. , 12 19 . At all times mentioned herein, INDEPENDENT and DOES 1 13 through 10, were engaged in the business of land radin " and.. 99 9 14 excavation. 15 20 . On or about April 29 , 1966 , Filper Corporation entered 16 ! into a written agreement with INDEPENDENT and DOES 11 through 20 , 17 inclusive, whereby these Cross-Defendants agreed to supply the 18 materials, labor , and equipment necessary to perform the grading 19 and excavation work on Subdivisions 4232 and 4659 . 1 I 20 21. In this agreement, INDEPENDENT and DOES 11 through 20 , 21 inclusive, agreed to "indemnify and hold (Filper Corporation) j 22 harmless from any loss, cost, damage or expense ( including 23 j attorneys ' fees ) arising out of any accident or other occurrence 24 causing •• injury to any person or property due directly or j 25 indirectly to [Cross-Defendants ' ] work." 26 22. DiGIORGIO is the successor of Filper Corporation. c 1 LIT:Y-Como-004 .;0-32/007 1 Filper Corporation has assigned and DiGIORGIO has succeeded. to 2 all rights which Filper Corporation had under its agreement with 3 INDEPENDENT and DOES 11 through 20 , inclusive. 4 23 . Should Plaintiff recover , by way of settlement or judg- 5 ment, any damages from DIGIORGIO, these damages would be caused i 6 primarily and ultimately by Cross-Defendants ' active negligence I 7 and their failure to properly perform their obligations under 8 their contract with DiGIORGIO. Any liability of DiGIORGIO for 9 I these -damages would arise, not as a result of any active fault on 10 its part , but solely because' it previously owned and developed I 11 Subdivisions 4232 and 4659 . Accordingly, Cross-Defendants are I 12 obligated to hold harmless and indemnify DiGIORGIO from and 13 , against any damages, liability, loss, costs, and expenses, 14 including attorneys ' fees , which it has incurred or may incur in 15 defending against Plaintiff ' s action or in prosecuting this ' I 16 Cross-Complaint. 17 ( WHEREFORE, DiGIORGIO prays judgment as hereafter set forth. 18 i THIRD CAUSE OF ACTION i [Against ENGEO and DOES 21 through 30, 19 inclusive, for Implied Indemnity] 2C 24 . DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- 21 ence as though fully set forth herein each and every allegation 22 i contained in Paragraphs 1 through 11 of this Cross-Complaint. j 23 25. On or about April 1, 1976; DIGIORGIO DEVELOPMENT CORPOR- 24 ATION entered into an oral agreement with Cross-Defendants ENGEO I i 25 � and DOES 21 through 30, inclusive, whereby these Cross-Defendants i 26 M agreed to investigate the soils conditions existing on Subdivi- . Ii LIT:X-Comp-004 1:. J0132;i007 I) i I � 1 sion :659 and to provide recommendations for the grading -and I .2 drainage thereof. 3 26 . DiGIORGIO DEVELOPMENT CORPORATION also entered into an 4 oral agreement with Cross-Defendants ENGEO and DOES 21 through S 30 , inclusive, whereby these Cross-Defendants agreed to investi- 6 gate she soils conditions existing on Subdivision 4232 and to 7 provide recommendations for the grading and drainage thereof. 8 27. Should Plaintiff recover , by way of settlement or judg- 9 ment, ' .any damages from DiGIORGIO DEVELOPMENT CORPORATION, these 10 + damages would be caused primarily and ultimately by Cross-Defen- 11 I dants ' active negligence and their failure to properly perform I 1.2 their obligations under their contract with DiGIORGIO DEVELOPMENT 13 CORPORATION. Any ' liability of DiGIORGIO DEVELOPMENT CORPORATION ' 14 for these damages would arise, not as a result of any active 15 fault on its part, but solely because it previously owned and 16 developed Subdivisions 4232 and 4659 . Accordingly, Cross-Defen- 17 dants are obligated to 'hold harmless and indemnify DiGIORGIO 18 j DEVELOPMENT CORPORATION from and against any damages, liability, 19 loss, costs, and expenses, including attorneys ' fees, which it 20 ` has incurred or may incur in defending against Plaintiff ' s action 21 j or in prosecuting this Cross-Complaint. I 22 i WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 23 4 as hereafter set forth. 24 25 f 26 i i i LIT:X-Comp-004 J0132/007 j } i 1 FOURTH CAUSE OF ACTION I [Against all Cross-Defendants (except DeSILVA and 2 INDEPENDENT) and DOES 31 through 50 , inclusive , for 'Ecuitable Indemnity] 3 28. DiGIORGIO incorporates by reference as though fully set 4 I i forth herein each and every allegation contained in Paragraphs 1 S j through 11 of this Cross-Complaint. 6 29 . If Plaintiff sustained any damages as alleged in its 7 Complaint , such damages were caused entirely or partly try the 8 � acts or omissions of Cross-Defendants , and each of them. 9 30 . An actual controversy has arisen and now exists between 10 i DiGIORGIO and Cross-Defendants in that DiGIORGIO contends , and 11 j Cross-Defendants deny, the following: 12 (a) That as between DiGIORGIO and Cross-Defendants, 13 responsibility, if any, for the damages claimed by Plaintiff 14 herein rests entirely or partially on Cross-Defendants; and 15 (b) That as a result , Cross-Defendants are obligated to 16 indemnify, in whole or in part, DIGIORGIO for any sum which 17 ' DiGIORGIO may be compelled to pay as a result of any damages, 18 judgment , or other awards recovered by Plaintiff against 19 i DiGIORGIO. 20 i 31. DiGIORGIO desires a judicial determination of the 21 ' respective rights and duties of itself and Cross-Defendants with 22 respect to the damages claimed in Plaintiff ' s First Amended 23 , Complaint . In particular , DiGIORGIO desires a declaration of the 24 respective liabilities of itself and Cross-Defendants for such 25 ' 26 damages, if any, and a declaration of Cross-Defendants' respon- I I LIT:X-Come-004 ! J0132 /007' I sibility to indemnify DiGIORGIO for any sum which DiGIORGIO may i 2 be compelled to pay and for which Cross-Defendants have been 3 " deter.:,ined responsible. ' 4 32. Such a declaration is necessary and appropriate at this 5 time so that DiGIORGIO may ascertain its rights and duties with 6 1 respect to Plaintiff ' s claim herein for damages. Furthermore, . 7 Plaintiff ' s claim and DIGIORGIO'S claim arise out . of the same 8 transaction, and determination of both in one proceeding is 9 necessary and appropriate in order to avoid the circuity and I i 10 { multiplicity of actions which would result if DiGIORGI0 is ! 11 required now to defend against Plaintiff ' s claim and then bring a 12 separate action against Cross-Defendants for indemnification of i i 13 sums which DiGIORGIO may be compelled to pay as a result of any' r r 14 damages , judgment, or other awards recovered by Plaintiff against 15 DiGIORGIO. j 16 i WHEREFORE, DiGIORGIO prays judgment as hereafter set forth. { I 17 i FIFTH CAUSE OF ACTION [Against the COUNTY and DOES 51 through 60 18 i inclusive, for Declaratory Relief ] 19 I 33. DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- 20 ence as though fully set forth herein each and every allegation 21 contained in Paragraphs 1 through 11 of this Cross-Complaint . { i 22 34. On or about March 25 , 1975 , DiGIORGI0 DEVELOPMENT CORPO- 23 RATION entered into a Subdivision Agreement with Cross-Defendants ' 24 { COUNTY 'and DOES 51 through 60 , inclusive. Cross-Defendants 25 required DiGIORGIO DEVELOPMENT CORPORATION to enter into this i 26 Subdivision Agreement as a condition precedent to their approval LIT:X-Como_ -004 J0132!0.07 i 1 i 1 of the Subdivision Map . for Subdivision 4232 . 2 i 35. On or about July 6 , 1976, DiGI0rGI0 DEVELOPMENT CORPORA- 3 I TION entered into a Subdivision Agreement with Cross-Defendants 4 COUNTY and DOES 51 through 60, inclusive. Cross-.Defendants 5 I required DiGIORGIO DEVELOPMENT CORPORATION to enter into this 6 j Subdivision Agreement as a condition precedent to their approval 7 ! of the *Subdivision Map for Subdivision 4659 . 8 36 . Each of these Subdivision Agreements provided, inter 9 alia: 10 j INDEMNITY. Subdivider [DiGIORGIO DEVEL- OPMENT CORPORATION]- shall hold harmless and 11 indemnify the indemnitees from the liabilities I as defined in this section: 12 A. The indemnitees benefited and pro- 13 1 tected by this promise are the County, and its special districts , elective and appointive 14 i boards, commissions, officers, agents and employees . 15 j B. The liabilities protected against it 16 are any liabily cr claim for any damage of s` any kind allegedly suffered , incurred or 17 ; threatened because of actions defined below, and including personal injury, death, property 18 damage, inverse condemnation, or any combina- tion of these, and regardless of whether or 19 i not such liab'lity, claim or damage was unforeseeable at any time before the County 20 i approved the improvement plan or accepted the improvements as completed, and including the 21 defense of any suit(s) , action(s ) or other proceeding(s) concerning these . 22 C. The actions causing liability are 23 j any act or omission (negligent or non-necli- • gent) in connection with the matters covered 24 ` by this Agreement and attributable to the , i subdivider , contractor, subcontractor , or any 25 officer , agent or employee of one or more of them. j 26 i i LiT:X-CCmD-004 - { Tnl 17 inn, I 1 D. Non-Conditions : The promise and agreement in this section is not conditioned 1 2 i or dependent upon whether or not any Indem- nitee has prepared, supplied or approved any 3 plan(s) or specification(s ) in connection with this work or subdivision, or has insurance or 4 i other indemnification covering any of these matters, or that the alleged damage resulted 5 partly from any negligent or willful miscon- duct of any Indemnitee. j 6 i 37 . There is implied in every contract , including the Sub- 7 division Agreements described above, a covenant of good faith and o fair dealing. This covenant requires that neither party do any- 9 thing which would deprive the other of the benefits of the agree- 10 ment. 11 38. This covenant required Cross-Defendants not do anything ! 12 which would give rise to any obligation of DiGIORGIO DEVELOPMENT 13 CORPORATION to indemnify and hold them harmless . 14 I' 39 . The earth movement described in Plaintiff ' s Complaint 15 was caused, in whole or in part, by the willful or negligent acts 16 j or omissions of Cross-Defendants. 17 40 . Cross-Defendants have demanded that DiGIORG20 DEVELOP- 18 it it MENT CORPORATION indemnify and hold them harmless should they be 19 held liable for any personal injury or property damace resulting 20 from the earth movement described in Plaintiff ' s Complaint . 21 ` 41. An actual controversy has arisen and now exists between 22 DiGIORGIO DEVELOPMENT CORPORATION and Cross-Defendants concerning ' 23 their respective rights and duties. 24 (a) DiGIORGIO DEVELOPMENT CORPORATION _ contends that 25 �! { Cross-Defendants contractually breached the covenant of good ! 26 i I � LIT:X-Comp-004 i 30132/007 I i 1 ' faith and fair dealing when they caused through their own acts or 2 omissions the earth movement described in Plaintiff ' s Com- .. 3 plaint. DiGIORGIO DEVELOPMENT CORPORATION contends further that 4 this breach excuses any obligation which it may have to indemnify 5 i and hold Cross-Defendants harmless should Cross-Defendants be 6 held liable for any personal injury or property damage resulting 7 from the earth movement described in Plaintiff ' s Complaint . 8 I Cross-Defendants dispute these contentions and contend that 9 DiGIORGIO DEVELOPMENT CORPORATION is obligated to indemnify and I 10 ! hold them harmless . 11 (b) DIGIORGIO DEVELOPMENT CORPORATION contends that any 12 condition which a public entity imposes as a condition precedent 13 ; to its approval of a subdivision map must be reasonable and • i 14 relate to the purposes of the Subdivision Map Act (Cal .Gov. Code 15 §66410 et seq. ) to regulate the design, improvement and uses of 16 the subdivision for the safety and welfare of the lot owners and 17 the public. DiGIORGIO DEVELOPMENT CORPORATION contends further 18 that the indemnity and hold harmless provision set forth in para- 19 i graph 36 is invalid and unenforceable because it is not reason- 20 ; able nor is it related to the purposes of the Subdivision Map 21 ! Act. Cross-Defendants dispute these contentions and contend that j 22 this indemnity and hold harmless provision is valid and enforce- . I a 23 I able. ' 24 42. DiGIORGIO DEVELOPMENT CORPORATION desires a judical 25 determination of its rights and duties . It desires a declaration I 26 as to whether it is excused from any obligation to indemnify and j 1.I7':X-Como-004 ;,0132/007 1 hold Cross-Defendants harmless should Cross-Defendants be held 2 liable to for any personal injury or property damage resulting 3 from the earth movement described in Plaintiff 's Complaint . 4 DiGIORGIO DEVELOPMENT CORPORATION also desires a declaration as 5 to whether the indemnity and hold harmless provision is invalid 6 and unenforceable. 7 43 . A judicial declaration is necessary and appropriate at 8 i this time so that DIGIORGIO DEVELOPMENT CORPORATION may ascertain 9 I whether it has any obligation to indemnify and hold Cross-Defen- 10 dants harmless should Cross-Defendants be held liable for any 11 j .personal injury or property damage resulting from the earth move- ' �• i 12 I' ment described in Plaintiff ' s Complaint. 13 f WHEREFOPE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 14 i as hereafter set forth. 15 SIXTH CAUSE OF ACTION I (Against Plaintiff and DOES 61 through 70 , 16 I inclusive, For Declaratory Relief) 17 44 . DiGIORGIO incorporates by reference as though fully set 18 j forth herein each and every allegation contained in Paragraphs 1 19 through 11 of this Cross-Complaint . J 20 45 . One of the ' common areas within Subdivision 4659 is 21 denominated "Parcel A. " Parcel A is .more particularly described 22 at Page 8 of Book 186 of Maps. 23 ,' 46. Earth movement has occurred on Parcel A which has i 24 , 1 damaged several adjacent properties. Several of the owners of 25 these adjacent properties have brought suit against Plaintiff and I � 26 DiGIORGIO as a result of the damage to their properties. Each of i LIT:X-Ccmp-004 .7 r,1 17 inns 1 these property owners seek damages in an amount which exceeds 2 $15, 000 . 3 47. An actual controversy has arisen and now exists between I 4 Plaintiff and DiGIORGIO concerning the ownership of Parcel A. I 5 Plaintiff contends that it never accepted from DiGIORGIO the deed i 6 to Parcel A and, consequently, that it does not hold legal title 7 to the property. DiGIORGIO is informed and believes, and thereon I8 alleges , that Plaintiff contends further that it is not liable to 9 adjacent property owners for any damage to their properties or 10 for any personal injury resulting from earth movement on Parcel A 11 since it has never held legal title to Parcel A. DiGIORGIO dis- j 12 I putes these contentions and contends that Plaintiff does hold I I _ 131. legal title to Parcel A and, consequently, that Plaintiff is 14 I' liable to adjacent property owners for any damage to their 15 properties and for any personal injury resulting from earth move- . , 16 . ment on Parcel A. 17 48 . DiGIORGIO desires a judical determination of its rights 18 and duties, and a declaration as to whether Plaintiff or 19 DiGIORGIO holds legal title to Parcel A. 20 49. A judicial declaration is necessary and appropriate at 21 this time so that DiGIORGIO may ascertain who holds legal title I I 22 to Parcel A and whether Plaintiff or DiGIORGIO is liable to the i 23 adjacent property owners for any damage to their properties or 24 •) for any P 9 personal injury resulting from the earth movement on 25 I Parcel A. 26 ( WHEREFORE, DiG:ORGIO prays judgment as hereafter set forth. I LIT:X=Comp-004 I Tn1 77 /nn- 1 1 SEVENTH CAUSE OF ACTION I (Against the COUNTY and DOES 51 through 60 , f 2 inclusive, for Inverse Condemnation ] i 3 50 . DiGIORGIO incorporates by .reference as though fully set 4 forth herein each and every allegation contained in Paragraphs 1 t 5 through 11 and 45 through 49 of this Cross-Complaint. 6 i 51 . DiGIORGIO dedicated to and Cross-Defendants COUNTY and 7 DOES 51 through 60, inclusive, accepted for public use and bene- 8 I� fit the drainage easements and drainage systems on Parcel 'A and 9 ` properties adjacent thereto. 10 52 . DiGIORGIO is informed and believes , and thereon alleges, 11 that Cross-Defendants failed to properly maintain these drainage 12 easements and drainage systems. 13 53 . DiGIORGIO is also informed and believes , and thereon 14 alleges , that earth movement occurred on Parcel A as a proximate 15 result of Cross-Defendants ' failure to properly maintain these 16 drainage easements and systems. 17 54 . As a proximate result of this earth movement, the fair 18 market value of Parcel A has been diminished in an amount accord- 19 ing to proof, but exceeding $15, 000 . As a further proximate 20 result of this earth movement, whoever holds legal title to 21 Pardel A shall incur costs and expenses to repair Parcel A in an 22 amount according to proof, but exceeding $15 ,000. i 23 55. Should the Court find that DiGIORGIO holds legal title 24 .' to Parcbl A, DiGIORGIO would be entitled to recover these damages i. 25 from Cross-Defendants under a theory of inverse condemnation. 26 DiGIORGIO would also be entitled to recover its reasonable costs, i LIT_ .. X-_Comp-004 J0132/007 i 1 disbursements and expenses, including , but not limited to, att6r- 2 ` neys ' , engineering and appraisal fees. 3 WHEREFORE, DIGIORGIO prays judgment against Cross-Defendants 4 as follows: 5 1. For indemnification by DeSILVA from and against any i 6 damages , liability, loss, costs and expenses , including attor- 7 neys ' fees, which DiGIORGIO DEVELOPMENT CORPORATION incurs or may 8 incur in defending against Plaintiff ' s action or in prosecuting 9 this Cross-Complaint; 10 �2. For indemnification by INDEPENDENT from and against any 11 damages , liability, loss, costs and expenses , including attor- 12 neys ' fees, which DiGIORGIO incurs or may incur in defending 13 against Plaintiff ' s action or in prosecuting this Cross 14 Complaint ; 15 3. For indemnification by ENGEO from and against any 16 damages, liability, loss, costs and expenses , including" attor- 17 neys ' fees, which DiGIORG70 DEVELOPMENT CORPORATION incurs or may 18t incur in defending against Plaintiff ' s action or in prosecuting 19 this Cross-Complaint ; 20 4. For a judicial determination of Cross-Defendants ' 21 responsibility and liability for the damages claimed by Plain- . ' 22 tiff, if any there are; 23 5. For a declaration of the : amount for which Cross-Defen- 24 dants are obligated to indemnify DiGIORGIO if DiGIORGIO is com- 25 i pelled to pay any sum as a result of any damages, judgment, or 26 other award recovered by Plaintiff against DiGIORGIO; LIT:X-Comb-004 u01321007� i 1 6 . . For a declaration that DiGIORGIO DEVELOPMENT CORPORATION 2 is excused from any obligation to indemnify and hold the COUNTY j 3 harmless from any liablity to Plaintiff arising out of the I 4 i COUNTY's own acts or omissions . i 5 I 7 . For a declaration that the indemnity and hold harmless i 6 provision set forth in the Subdivision Agreement is invalid and 7 unenforceable. 8 ' 8 . For a declaration that Plaintiff holds legal title to 9 i Parcel A; 10 ! 9. Should the Court find that DiGIORGIO holds legal title 11 ! to Parcel A, for damages for inverse condemnation. These damages 1.2 would include the diminution in fair market value of the _property 13 4 . and the cost and expense to repair Parcel A. DiGIORG-&O would 14 �' also be entitled to recover its reasonable costs, disbursements i 15 and expenses , including, but not limited to, attorneys ' , engi- i 16 neering and appraisal fees . 17 10. For costs of suit herein incurred; 18 11. For interest on all sums as permitted by law; and 19 i 12. For such other and further relief as the Court may deem 20 i proper . 21 22 I 23 24 25 26 i1 f LZT:X-Comp-004 J013?%007 ^ i I i i i 1 Dated: December 1984 . ! 2 I BERLINER, COHEN & BIAGINI I 3 I 4 j By JEFF 1 . F ST, R 5 ! At rn r Dere4dants I an d-np ainants 6 DiGIORGI0 Cei. DORATION and DiGIORGIO DEVELOPMENT 7 I CORPORATION 8i 9 i 10 11 I 1.2 i 13 14 t 15 16 17 i 18 19 i 20 ! 21 22 23 24 ! 25 �! 26 ! I II LIT:X-Comp-004 Tni 11) /nn7 li I 1 PROOF OF SERVICE BY MAIL I (CCP 1013x, 2015.5) 2 3 I declare that: i 4 I am a citizen of the United States and employed in the Count• of Santa Clara, State of California; I am over the age of 5 eighteen (18) years and not a party to the within-entitled action; my business address is Union Bank Building - Park Center Plaza, 6 99 Almaden Boulevard, Suite 400, San Jose, California 95113 . 7 I On the 18th day of December 19 84 I served the within 8 CROSS-COMPLAINT BY DiGIORGIO CORPORATION AND DiGIORGI0 9 DEVELOPMENT CORPORATION AND CERTIFICATE OF MERIT I 10 I 11 on the parties in said action, by placing a true ' copy thereof enclosed in a sealed envelope with postage thereon 12 fully. prepaid, in the United States mail at San Jose, California, addressed as follows: 13 I! 14 Timothy J. Ryan, Esq. Gordon, DeFraga, Watrous & 15 I Pezzaglia, Inc. 611 Las Juntas Street 16 P. 0. Box 630 Martinez, CA 94553 17 Mark L. Armstrong 18 Barbara Duval Jewell Thiessen, Gagen & McCoy 19 ` 279 Front Street P. 0. Box 218 20 Danville, CA 94526 21 ►' 22 23 I declare under penalty of perjury that the foregoing is ; true and correct, and that this declaration was executed on 24 December 18 19 84 San Jose. California. 25 I� — 26 is DEBRA A. ELLIOTT I (Type or Print Name) -�— Signa.. re r I MARK L. ARMSTRONG NOV1984BARBARA DUVAL JEWELL 2 THIESSEN, GAGEN & MCCOY J. R. CILSSON, County Clerk A Professional Corporation B CONTRA COSTA COUNTV ` 3 279 Front Street, P. 0. Box 218 4A.ia��; ,�pr�',� Ue�ut� Danville, California 94526-0218 4 Telephone: (415) 837-0585 5 Attorneys for Plaintiff SYCAMORE HOMES ASSOCIATION 6 7 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 8 9 10 SYCAMORE HOMES ASSOCIATION, ) NO. 248025 11 ) Plaintiff , ) FIRST AMENDED COMPLAINT 12 ) FOR NEGLIGENCE, STRICT VS. ) - LIABILITY, BREACH OF 13 ) WARRANTY, FRAUD, AND DiGIORGIO CORPORATION, a ) INVERSE CONDEMNATION 14 California corporation, ) Di,GIORGIO DEVELOPMENT. ) 15 CORPORATION, a California ) corporation, CONTRA COSTA ) 16 COUNTY; and DOES 1 through ) 50 , inclusive , ) 17 ) Defendants. ) 18 19 Plaintiff SYCAMORE HOMES ASSOCIATION (hereinafter SHA) 20 I alleges : 21 1 FIRST CAUSE OF ACTION I I 22 (FOR ;NEGLIGENT DESIGN AND CONSTRUCTION AGAINST DEFENDANTS DiGIORGIO CORPORATION, DiGIORGIO 23 DEVELOPMENT CORPORATION AND DOES 1 THROUGH 40) 24 1. Plaintiff SHA is and at all times herein mentioned was 25 � a non-profit California corporation organized and existing for 26 the -benefit of the homeowners of SYCAMORE, a multi-subdivision LAW OFFICES '-;ESSEN GAGEN&M-Cpr A PROFESSIONAL CORPORATION 279 FRONT STREET _. DANVIL:E. Ca 9a�2E I TEL R^.+.n5k: 1 NOY 13 1484 4 1 planned development as defined in Business and Professions Code 2 §11003.1, comprised of :single family residences, ;duplexes, and 3 condominia, located in Danville , Contra Costa County, 4 California. Pursuant to the Covenants, Conditions and 5 Restrictions promulgated by the developers of SYCAMORE and the 6 Corporate Bylaws and Articles, Plaintiff SHA owns and is 7 responsible for managing and maintaining all common areas in the 8 development. Pursuant to CCP 5374 SHA has standing to' bring 9 this action. 10 2. Defendants DiGIORGIO CORPORATION and DiGIORGIO 11 DEVELOPMENT CORPORATION (hereinafter jointly known as DiGIORGIO) 12 are , and at all times herein mentioned were corporations 13 organized and existing under the laws of the State of Delaware 14 authorized to operate .in California, with their principal places 15 of business in San Francisco, California. DiGIORGIO DEVELOPMENT 16 CORPORATION is a subsidiary of DIGIORGIO CORPORATION. 17 3. Plaintiff alleges on information and belief that 18 Defendant DiGIORGIO CORPORATION is and at all times herein 19 mentioned was the principal shareholder of Defendant DiGIORGIO 20I DEVELOPMENT CORPORATION, beneficially owning or controlling more 21 than fifty-one percent (51%) of the issued and outstanding 22 shams of stock of said corporation. There exists , and at all 231 times herein mentioned , there existed a unity of interest and L4, I ownership between Defendants DiGIORGIO CORPORATION and DiGIORGIO 251 DEVELOPMENT CORPOR ""ION such that any individuality and 26 separateness between the parties ceased . DiGIORGIO CORPORATION LAW OFFICES -2- T.iESSEh GAGEN%Mc;Jr A PROFESSIONAL COFPORATION 279 FRONT STREET DANVILLE, CA 94526 TEL 8370585 I is the alter ego of DiGIORGIO DEVELOPMENT CORPORATION in that 2 DiGIORGIO CORPORATION controls and dominates the corporate 3 business of DiGIORGIO DEVELOPMENT CORPORATION which is a mere 4 shell, instrumentality and conduit through which DiGIORGIO S CORPORATION carries on its construction land development and : 6 contracting business in a corporate form, exercising complete 7 control and dominance of the business of DiGIORGIO DEVELOPMENT 8 CORPORATION to such an extent that any individuality or 9 separateness between them does not and at all times herein 10 mentioned did not exist. Adherence to the fiction -of the 11 separate existence of DiGIORGIO DEVELOPMENT CORPORATION as an 12 entity distinct from DiGIORGIO CORPORATION would permit an abuse 13 of the corporate privilege and would promote injustice. 14 4. The true names and capacities of Defendants DOES 1 15 through 50 are unknown to SHA who therefore sues such Defendants 16 by such fictitious names under CCP 5474. Each of the Defendant 17 DOES is responsible in some manner for the events alleged 18 herein, and caused injury and damages to SHA as hereafter 19 alleged. SHA will amend its Complaint to assert the true names 20 and capacities of the fictitiously named Defendants where -they 21 are ascertained. 22 5. SHA alleges on information and belief that at all times 23 mentioned each Defendant was acting as an agent , servant or 24 employee of each other Defendant , and was acting within the 25 course and scope of said agency and/or employment. 26 LAW OFFICES _3_ THIESSEN GAGEN 6 McCOY A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE. CA 9152E TE: E27-I)529 1 1 6. Plaintiff alleges on information and belief that 2 Defendants DiGIORGIO are and at all times herein mentioned were 3 developers , builders, and contractors licensed by the State of 4 California, in the business of mass producing residential 51 subdivisions and custom tract housing and selling said housing 6 to the public. Said Defendants were familiar with the standards 7 of care and skill exercised by developers, builders and 8 contractors within this county engaging in the same or 9 substantially similar business, and developed, built and 10 contracted the SYCAMORE DEVELOPMENT described herein. 11 7 . In the course- of developing SYCAMORE, Defendants 12 DiGIORGIO and DOES 1 through 25 dedicated and deeded to -:SHA 'the 13 open space (Parcel B) in Subdivision 4232, and attempted to 14 dedicate and deed to SHA Parcel A described in the map of 15 Subdivision 4659 . Although SHA has never accepted Parcel A, the 16 deed thereto was recorded by DiGIORGIO. 17 8. SHA alleges on information and belief that4th--the 18 course of developing Subdivisions 4232' and 4659 ` DiGIORGIa' and 19 DOES 1 through 25 did so negligently cut, 'fill , grade., :-compact, 20 ;design, and manufacture the lotj e to t' Parcels A and -B 21 that they cut into and/or removed the toes ' -of one or more steep 22 s=•lopes .on Parcels .A and B; and Defendants did so negligently -.and 23 improperly deposit . soils from the- 'residential lots onto portions 24 of ..-Parcel's A And :B .:that. .they impaired drainage of water from 25Parce15� A and.--B onto said =residential lots . Defendants further 26 failed* to repair existing instability on Parcels A and B that LAW OFFICES _4_ '«LESSEN GAGEN&McCCv A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE CA 9da'E 1 I was required as a result of the placement of residential lots 2 near that instability. 3 9. As a proximate result of the above conduct, and other 4 conduct which Plaintiff has not yet discovered and which is to 5 be determined according to proof at trial, the drainage on and 6 stability of Parcels A and B was impaired and commencing in the 7 early spring, 1983 (January through March) portions of Parcels A 8 'and B began to slide, rendering the parcels dangerous and unfit 9 for their intended use, impairing the value of the SYCAMORE 10 common areas, breaking concrete drainage ditches and 'drain -pipes 11 and :exposing SHA to litigation by the owners of the properties 12 below each of the slides. 13 10. As a proximate result of the conduct of Defendants and 14 each of them, as herein alleged, Plaintiff was required to and 15 will be required to employ professional engineers and 16 contractors to determine the causes of the damage to its 17 property, to make recommendations in respect thereto and to make 18 repairs on said property, and Plaintiff incurred and will incur 19 expenses therefore in the sum of at least $300,000. 00 and 20 according to proof at the time of trial , all to Plaintiff ' s 21I damage in that sum. 22 11. As a further direct and proximate - result of Defendants ' 23 conduct, the value of the SYCAMORE common areas has diminished 24 according to proof at time of trial . 25 26 LAW OFFICES _5_ T-;ESSEN,,AGE',A.,:CCY A PROFESSIONAL CORPORATICN 279 FRONT ST=_ET OANVILLE. CA ?a52E I TEL. 837.0585 I WHEREFORE, Plaintiff pray judgment against said Defendants 2 and each of them as hereinafter set forth. 3 SECOND CAUSE OF ACTION 4 FOR STRICT PRODUCTS LIABILITY AGAINST DEFENDANTS 5 DiGIORGIO CORPORATION, DiGIORGIO DEVELOPMENT CORPORATION AND DOES 1 THROUGH 25 6 12. Plaintiff repeats realleges and incorporates herewith 7 by reference Paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10 and 11 of its 8 First Cause of Action. 9 13. At all times herein mentioned said Defendants knew and 10 intended that the residential lots constructed by them in 11 Subdivisions 4232 and 4659 of SYCAMORE would be purchased by 12 members of the public and used by them without inspection for 13 defects and further knew that if work done by Defendants were 14 defective, it would cause damage to not only Parcels A and B but 15 also the residential lots described hereinabove. 16 14: When construction of the ",lots along Ambleside Court , 17 Leeds Court and Tunbridge Road adjacent to Parcels A acid -B,was 18 completed , it was defective and unsafe for its intended- purpose 19 for a variety of reasons , including but not limited to the fact 20 that the toes of steep slopes lying on Parcels A and B had been c.it into to form the lots for Subdivisions 4232 and 4659 thereby 22 weakening the slopes , the drainage on Parcels A and B was 23 I inadequate to handle surface and sub-surface water in the area, 24 I because Defendants had poured uncompacted fill •from't'he` 25 pegs` dent ial`lots on some of the slopes in"PaTc.els A. and ct, and 26 in t'h3t sliding had already occurred on Parcels A and B adjacent LAW OFFICES —6— 'WESSEN G4�E��SW:ZOr A PROFESSIONAL CORPORATION 279 FRONT STREET i DANVIL_E. CA 94=,E TEL Ec'.rSF= 11 I to the residential lots and Defendants had failed to properly 2 repair the same. 3 15. As a proximate result of the defects described above 4 and others to be determined according to proof at time of trial, 5 Plaintiff sustained the damages hereinabove set forth. 6 WHEREFORE Plaintiff prays judgment against said Defendants 7 and each of them as hereinafter set forth. 8 THIRD CAUSE OF ACTION 9 (AGAINST DEFENDANTS DiGIORGIO CORPORATION, DiGIORGIO DEVELOPMENT CORPORATION AND 10 DOES 1 THROUGH 25 FOR BREACH OF WARRANTY) 11 16. SHA repeats realleges and incorporates herewith by 12 reference as though set forth at length hereunder the 13 allegations contained in Paragraphs 1, 2, 3, 4 , 5, 6, 7, 9, 10, 14 and 11 of its First Cause of Action. 15 17. SHA alleges on information and belief that Defendants ' 16 DiGIORGIO and DOES 1 through 25 and each of them, at the time as 17 place of transfer and/or alleged transfer of Parcels A and B of 18 the SYCAMORE DEVELOPMENT to SHA, impliedly warranted and 19 represented that Parcels A and B found within said development 20 , were designed and constructed in a reasonably workmanlike manner 211 such that defects including but not limited to settling , 22 � sliding , sinking and shifting of the ground that could affect 23 adjoining residential development would not occur . 241 18 . Parcels A and B were not designed and constructed in a 251 reasonable workmanlike manner but in fact were defective and 26 were ,not fit or safe for their intended use as open spaces 'LAW OFFICES _7_ '«ESSE% GAGE'.&vcCC, A PROFESSIONAL CORPORATION 279 FRONT STREET 'DANVILLE. CA 9452E TEL 637•'"585 II I because of the defective design and manufacturing the adjoining 2 residential development as hereinabove described. The defects 3 in Parcel A and B constituted a breach of the implied warranty. 4 19. As a proximate result of the breach of warranty, SHA 5 has been damaged in that it is suffered the loss of use of it's .6 open spaces and been forced to incur and will hereafter incur 7 expenses to. determine the cause and extent of damage, and 8 expenses to make repairs to its property, so as to avoid damages 9 to adjoining residential development, all to its damage as 10 hereinabove alleged . 11 20. In or about. early 1983, SHA discovered the defective 12 condition of Parcels A and B when landsliding occurred on said 13 Parcels above the residences located on Ambleside Court, Leeds 14 Court and Tunbridge Road. SHA thereafter gave Defendants 15 DiGIORGIO due and timely notice of said Defendants ' breach of 16 warranty. 17 21. SHA had demanded that Defendants DiGIORGI0 correct the 18 conditions on Parcels A and B but said Defendants have refused 19 to do so to the present date. 201 WHEREFORE, SHA prays for judgment as hereinafter set forth. 21 I 22 23 24 26 LAW OFFICES _8_ THrSSEN GA„EN&M.,COY A PROFESSIONAL CORPORATION 279 WRONT STREET DANVILLE. CA 9452E I ' TEL 8370585 I 1 FOURTH CAUSE OF ACTION 2 (AGAINST DEFENDANTS DiGIORGIO CORPORATION, DiGIORGIO DEVELOPMENT CORPORATION 3 AND DOES 1 THROUGH 25 FOR INTENTIONAL MISREPRESENTATION OF FACT BY A FIDUCIARY, ) 4 S 22. Plaintiff repeats, realleges and incorporates herewith 6 by reference Paragraphs 1 through 7, and 9 through 11 of its 7 First Cause of Action. 8 23. At all times herein mentioned Defendants DiGIORGIO were 9 Plaintiff ' s fiduciaries by virtue of the fact that Defendants 10 were Plaintiff 's promoters , initial officers and directors , and 11 controlled Plaintiff for many years , commencing in 1966. As 12 such , said Defendants were under a duty to tell Plaintiff the 13 truth regarding the open spaces being dedicated to Plaintiff, 14 and to disclose to Plaintiff all relevant and material facts 15 regarding the property. 16 24. Plaintiff alleges on 'information and belief that in or 17 about March 30, 1973, said Defendants transferred and deeded to 18 Plaintiff the common area located in Subdivision 4232 which is 19 described herein as Parcel B. Plaintiff accepted the 20 transfer . In or about October , 1976 Defendants attempted to 21 transfer and deed to Plaintiff the common areas described on 22 Subdivision Map No. 4659 and herein as Parcel A. The deed was 23 not recorded until 1982 . Plaintiff disputes the transfer and 24 has never accepted it, although the deed has been recorded . 25 25. Plaintiff alleges on information and belief that prior 26 to and at the time they transferred on attempted to transfer LAW OFFICES _9 THIESSEN.GAr,EN A MCCO'- A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE, CA 9452E I TEL 8370585 I Parcels A and B to Plaintiff, Defendants DiGIORGI0 and DOES 1 2 through 10 represented to Plaintiff 's then officers and 3 directors that the land contained within Parcels A and B was 4 stable, that drainage was adequate to prevent slippage of the 5 slopes, and that the residential lots adjoining the parcels had 6 been designed and manufactured in a fit and workmanlike manner 7 and that they would not impair the stability of the adjoining 8 parcels. 9 26. Defendants ' representations to Plaintiff as to the fit 10 condition of the parcels were false in that Defendants had 11 removed the toes of the slopes abutting the lots on Tunbridge 12 Road , Ambleside Court, and/or Leeds Court , and in that they had 13 impaired drainage and stability on Parcels A and B in the course 14 of manufacturing and designing the lots abutting said parcels by 15 cutting and removing the toes of slopes and by depositing 16 uncompacted fill from the lots on slopes of land within Parcels 17 A and B. 18 27. Plaintiff alleges on information and belief that at all 19 iI times indicated Defendants and each of thein knew their 201 representations were false and that Parcels A and B were 1 21I unstable and likely to slide due to defects in drainage and 2211 design of the adjoining lots and due to the fact that Defendants 23 had repaired at least one slide on Parcel A previously . 11 24 i1 28 . Plaintiff alleges on information and belief that 25Defendants and each of them made their representations to 26 LAW OFFICES _1 0_ '"'ESSEN GAGEN 8 k.-CCv A PROFESSIONAL CORPORATION , 279 FRONT STREET DANVILLE. CA 9152 TEL 837-0585 I defraud Plaintiff and induce Plaintiff to accept said parcels 2 and assume liability for the condition of said parcels. 3 29. Plaintiff was unaware of the falsity of the 4 representations and acting in reliance thereon accepted Parcel B 5 although Plaintiff has refused to accept Parcel A, title is 6 currently vested in Plaintiff. 7 30. As a proximate result of the conduct of Defendants as 8 herein alleged, Plaintiff sustained the damages hereinabove set 9 forth. 10 31. In making this representations hereinabove set forth, 11 said Defendants and each of them were guilty of oppression, 12 fraud and malice and by reason thereof Plaintiff is entitled to 13 exemplary and punitive damages in at least the amount of One 14 Million Dollars ($1,000, 000. 00) . 15 WHEREFORE, Plaintiff prays judgment against said Defendants 16 and each of them as set forth hereinafter . 17 FIFTH CAUSE OF ACTION 18 (AGAINST DEFENDANTS DiGIORGIO CORPORATION, DiGIORGIO DEVELOPMENT CORPORATION 19 AND DOES 1 THROUGH 25 FOR CONCEALMENT 201 32. Plaintiff repeats , realleges and incorporates herewith 211 by reference Paragraphs 1 through 7 and 9 through 11 of its 22 �I First Cause of Action. 23 !� 33. Plaintiff alleges on information and belief that prior I 24i to and at the time said Defendants transferred or attempted to 251 transfer Parcels A and B to Plaintiff , Defendants and each of 26 them- knew that Parcels A and B suffered from instability and a LAW O«ICES _11_ T-IESSEN 4o-.,E•.3 N: A PROFESSIONAL CORPOMATION 279 FROM?CA STREET i DANVILLE 952E i TEL 81 58= • :c f c d I variety of other defects due in part to the defective and/or 2 negligent design of the adjoining residential lots , as described 3 hereinabove, and knew that damage to Parcels A and B and the- 4 adjoining residential lots could and probably would occur in the 5 future. 6 34. Plaintiff alleges on information and beliefthat said 7 Defendants and each of them were under a duty to disclose said 8 facts to Plaintiff because they knew said facts were neither 9 known to nor readily accessible to Plaintiff ; that such facts 10 were material to the value and desirability of the parcels ; and 11 because said Defendants and each of them were Plaintiff ' s 12 f iduciar ies. 13 35. Defendants and each of them intentionally concealed • or 14 suppressed their knowledge of the foregoing facts with an intent 15 to defraud Plaintiff and induce Plaintiff to accept the parcels. 16 36 ._ Plaintiff would -not have accepted Parcel B and would 17 have commenced litigation to set aside the alleged transfer of 18 Parcel A if Plaintiff had known of the concealed or suppressed 19 facts regarding the- condition of said property. 20 37. Plaintiff did not discovery the condition of the 21 .parcels until the early spring , 1983. Plaintiff did not 22 discovery that title to Parcel A was vested in Plaintiff until a 23 date within three (3) years of the filing of this action. 24 38 : As a proximate result of Defendants ' concealment or 25 suppression of the aforesaid facts Plaintiff sustained the 26 damages hereinabove set forth. LAW OFFICES _12- 7�'ESSEh GA GEN 4 MCCO` A PROFESSIONAL CORPORA71ON 279 FRONT STREET DANVILLE. CA 9452E TEL 837. 595 ' 1 39. In concealing the facts as hereinabove alleged, said 2 Defendants and each of them were guilty of oppression, fraud, - 3 , and malice and by reason thereof Plaintiff is entitled to 4 exemplary and punitive damages in at least the amount of One 5 Million Dollars ($1,000,000. 00) . 6 SIXTH CAUSE OF ACTION 7 (AGAINST DEFENDANTS DiGIORGIO CORPORATION, DiGIORGIO DEVELOPMENT CORPORATION 8 AND DOES 1 THROUGH 25 FOR NEGLIGENT MISREPRESENTATION) 9 40. Plaintiff repeats , realleges and incorporates herewith 10 by reference Paragraphs 1 through 7 and 9 through 11 of its 11 First Cause of Action. 12 41. Plaintiff alleges on information and belief that when 13 Defendants transferred or attempted to transfer Parcels A and B 14 to Plaintiff , and before and after said date, said Defendants 15 made representations regarding the condition of the parcels of 16 land as alleged herein, without any reasonable grounds for 17 believing them to be true to induce Plaintiff to accept the 18 parcels . 19 42. The representations said Defendants made regarding the 20 condition of the parcels were in fact false for the reasons 21 alleged in Paragraph 8 and 26 hereinabove. 22 43. Plaintiff reasonably relied on the representations of 23 said Defendants in that the defects in the property were latent 24 and not discoverable by lay persons not intimately familiar with 25 the •lands and subdivision as were said Defendants. 26 LAW OFFICES _13- rM1ESSEN.GAGE+&MECO A PROFESSIONAL COPPORATION " 279 FRONT STREET DANVILLE. CA 9452E . TEL 837.0585 1 44. Plaintiff was unaware of the falsity of the 2 representations and acting in reliance thereon accepted Parce-1 B 3 and took no action to dispute the transfer of Parcel A. 4 Plaintiff's reliance was justified in that the defects in 5 Parcels A and.-B were latent defects of which Plaintiff was 6 unaware, and in that Defendants were Plaintiff 's fiduciaries, 7 under a duty to exercise the highest care and trust in their 8 dealings with Plaintiff . 9 45. As a proximate result of the conduct of Defendants as 10 herein alleged, Plaintiff was damaged as hereinabove set forth. 11 WHEREFORE, Plaintiff prays judgment against said Defendants 12 and each of them as set forth hereinafter . 13 SEVENTH CAUSE OF ACTION 14 (AGAINST DEFENDANT COUNTY OF CONTRA COSTA FOR - INVERSE CONDEMNATION 15 16 46. SHA repeats, realleges and incorporates herewith by 17 reference Paragraphs 1 through 7 of its First Cause of Action. 18 47 . Defendant CONTRA COSTA COUNTY (hereinafter COUNTY) is a 19 local governmental entity organized and existing under the laws 20 of the State of California . 21 48 . Prior to the acts of Defendants DiGIORGIO, DOES 1 22 through 50, inclusive , and COUNTY complained of here , rainwater 23 runoff would be disbursed without causing mud slides and damage 24 to the property that was deeded from Defendants DiGIORGIO and 25DOES 1 t^rough 50 , inclusive. to SHA. 26 LAW OFFICES -14- TMiESSEN GAGEN S McCGv .A PROF=_SSIONAL CORPO?ATION 279 FRONT STREET DANVILLE. CA 9452E TEL 837-0585 1 49. The excavation and other related work performed by 2 Defendants DiGIORGIO and DOES 1 through 50, inclusive, and all 3 -of them was for the purpose of constructing and operating public 4 drainage ditches , culverts , collection boxes and sewers on the 5 property, to be ' used by the above-described new subdivision, and 6 as such, said excavation was for public use and benefit. COUNTY 7 planned, approved, inspected and was otherwise engaged in said 8 excavation and placement of public drainage ditches, culverts, 9 collection boxes and sewers , or was at least obligated to so 10 engage itself on the property, some or all of which has been 11 dedicated to, and accepted by COUNTY. SHA is informed and 12 believes and upon such information and belief alleges that by 13 reason of the foregoing acts or failures to act by COUNTY, 14 further mud slide damage will occur to SYCAMORE's property. 15 50. As a proximate result of COUNTY' s acts or failures to 16 act as above-described, the real property of SHA was taken or 17 damage and by reason of such taking or damage SHA suffered loss 18 of use of its property and SHR was forced to incur and is 19 continuing to incur expenses of repair of its property, all to 20 its damage in a sum according to proof but in excess of 21 $15, 000. 00. 22 51 . SHA has not been paid , nor has it received, any 23 compensation whatsoever on the account of the injury described :4 above. 25 WHEREFORE, SHA prays for judgment as hereinafter set forth: 26 1. For special damages according to proof at time of trial LAW OFFICES -15- TNIESSEN GAGEN 6 M---OV A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE, CA 9452E TEL. 837.0585 1 for repairs to its property and for its expenses for 2 contractors. 3 2. For diminution in value of its property as a 4 its defects , according to proof at time of trial; '; 5 3. For interest on all sums prayed for ; 6 4. For punitive damages against Defendants DiGIORGI() 7 DEVELOPMENT. CORPORATION, and DiGIORGIO CORPORATION; 8 5. On the Seventh Cause. of Action only for damages 9 according to proof but in excess of $15 , 000 .00 with interest 4� 1 10 the legal rate, for reasonable attorney ' s fees and costs of sur, 11 and other disbursements and expenses including but not limited 12 to engineering and appraisal fees , according to proof and; 13 6. On all causes of action for such other and further 14 relief as the Court deems just and proper. 15 16 November .� 1984 17 THIESSEN, GAGEN & McCOY A Professional Corporation' 18 / _... 19 t / , I 20 By RK L. ARMSTRONG i; Attorneys for Plaintiff 21 iI I 22 II 23 'I j 24 I 2s i! 26 LAW OFFICES -16- T.-LESSEN GAGE❑S%'-CC• A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE. CA 9-52E II TEL 837.0585 1 BRIAN D. THIESSEN MARK L. ARMSTRONG ) 19 C 2 DONALD C. CADY THIESSEN, GAGEN & MCCOY I R. OL�SDN, C:-;ty "Jet*- -, A Professional Corporation CON'Tr.' COSTA 279 Front Street, P. 0. Box 218 fly 4 Danville, California 94526 Telephone: (415) 837-0585 5 Attorneys for Plaintiff 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 10 _ 11 SYCAMORE HO!-ES ASSOCIATION, ) NO. 2 `}8 0 2� 12 Plaintiff,' ) COMPLAINT FOR PROPERTY DAt•1AGE FRCM MUDSLIDE; 13 vs. ) INVERSE CON`DF.-,IATION 14 DiGIORGIO CORPORATION,. a California ) corporation, DiGIORGIO DEVELOP•ENT ) 15 CORPORATION, a California ) . corporation, WWRA COSTA COUNTY, and ) 16 DOES 1 through 50, inclusive, ) 17 Defendants. ) ) 16 Plaintiff, SYCAMORE HDES ASSOCIATION, for its cause of action 19 against Defendants, and each of them, alleges as follows: 20 FIRST CAUSE OF ACTION 21 (NEGLIGENT DESIGN, GRADING, CONSTRUCTION, INSPECTION, 22 MAINTENANCE AND REPAIR OF STEEP SLOPE) 23 1. Plaintiff, SYCAMORE HCtES ASSOCIATION, (hereinafter "SYCAMORE") 24 is, and at all times herein mentioned was, an unincorporated association of 25 the homeowners in the Sycamore development, located in Danville, Contra Costa 26 LAW OFFICES -1- "USEN.GEGEN a 1.4-GOY A PROF=SSIONAL CCRPCRATION 279 FP.ONT STREET 'Ai4VILLE.CA 94526 TEL. 8::7.0585 1 County, California. On or about 1974, or thereafter, SYCAMORE became the owner 2 in fee simple of the common grounds and appurtenant recreational facilities 3 within the Sycamore development including, but not limited to, Subdivisions 4 3951, 4221, 4232, 4659, and 5687, and Parcel "A." 5 2. Defendants DiGIORGIO CORPORATION and DiGI0RGIO DEVEIAPMENT 6 CORPORATION (hereinafter "DiGIORGIO") are, and at all times mentioned were, 7 corporations organized and existing under the laws of the State of California g with their principal places of business in San Francisco, California. 9 DiGI0RGIO DEVELOPMENT CORPORATION is a subsidiary of DiGI0RGIO CORPORATION. 10 3. The true names and capacities of Defendants DOES 1 through 50 are 11 unknown to SYCAMORE, who therefore sues such Defendants by such fictitious 12 names under §474 of the Code of Civil Procedure. Each of the Defendant DOES 13 is responsible in some manner for the events herein referred 'to, and caused 14 injury and damages thereby to SYCAIMORE as hereinafter alleged. SYCAMOPE will 15 amend its complaint to insert the true names and capacities of the 16 fictitiously named Defendants when ascertained. 17 4. SYCAMORE is informed and believes, and on such information and 18 belief alleges, that at all times herein mentioned DiGIORGIO and some or all 19 of the Defendant DOES were the agent or employee of DiGIORGIO and each of the 20 remaining Defendant DOES, and in doing the things hereinafter alleged, were 21 acting as agents for the others with each giving its consent and permission to 22 each other in the course and scope of their employment. 23 5. DiGI0RGIO is, and at all times herein mentioned was, engaged in 24 the mass.production of houses for sale to and use by the members of the 25 general public, and as a part of its business, DiGIORGIO.developed and 26 constructed a planned unit development in Danville, Contra Costa County, LAW OFFICES -2- •iESSEN,GAGEN&McCOY A PROFESSIONAL CORPORATION .:79 FRONT STREET 4NVILLE, CA 94526 TEL. F37-0585 I California, known as Sycamore. Said development consists of single-family 2 detached homes, condominium homes, common grounds and appurtenant recreational . 3 facilities. Development and construction includes but it not limited to 4 designing, surveying, engineering, testing the soils, cutting, filling, 5 grading., compacting, planning, supervising, constructing, inspecting, 6 repairing, managing, and controlling. 7 6. SYCN40RE is informed and believes, and thereon alleges, that 8 DiGIORGIO, together with Defendant DOES 1 through 50, inclusive, and each of 9 them, on or about 1974, had an ownership interest in the open space,. steep 10 slope areas of SYCAMORE. 11 7. SYCAMORE is informed and believes, and based upon such information 12 and belief alleges, that DiGIORGIO together with the Defendant DOES 1 through i3 '50, inclusive, and each of them, negligently developed and constructed such 14 steep slope by, among other things, improperly placing or allowing to be 15 placed or allowing to remain on such steep slope substantial amounts of 16 improperly coffpacted debris, earth and fill; by failing to stabilize or 17 provide adequate drainage for such steep slope when it was reasonable to 16 expect, and was reasonably foreseeable, that water would be collected, 19 accumulated, concentrated, diverted and redirected by the channels and scarps 20 resulting from the saturation of the slope with water, which would carry such 21 water to, or retain it on, the steep slope in such a manner and at such a 22 location that it was reasonable to expect, and was reasonably foreseeable, 23 that the, steep slope would become saturated and liquefy and, as a result, fail 24 and cause substantial amounts of mud, earth and debris to slide over and dcrwn 25 SYCAMORE's property, and onto and over- adjacent SYCAMORE residents' properties 26 and cause substantial harm to the SYCAMORE property and to the properties of LAW OFFICES -3- '�IESSEN.GAGEN 6 MCCOY A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE,CA 94526 TEL.837.0585 1 the adjoining residences. 2 8. As a proximate result of. the negligence of Defendants, and each of 3 them, SYCAMORE has suffered the loss of use of its property due to the steep 4 slope mudslides thereon, and was forced to incur, and is continuing to incur, 5 the expense of repair of its property, all to its damage in a sum according to 6 proof, but in excess of $15,000. SYCAMORE has been forced to employ work 7 crews, contractors and soils engineers to take remedial action by evaluating 8 steep slope mud slides and suggesting preventative and curative measures, 9 covering steep slopes with vis-queen, relieving the water build-up in scarps, 10 constructing trenches to drain the water and replacing the culverts and pipes 11 destroyed by the mudslide. 12 9. Notwithstanding, at no time prior to, or on or about, early 1983, 13 despite the demands made by SYCAdORE, did DIGIORGIO and/or the Defendant DOES 14 named in this cause of action, or any of them, take any steps to prevent the 15 escape of such material from the improperly developed and constructed steep 16 slope upon SYCAMORE's property. 17 10. By reason of the acts and omissions alleged herein of .DiGIORGIO 18 and Defendant DOES, and each of them, to this cause of action, such steep 19 slopes failed on or about early 1983, are still failing and will continue to 20 fail when the rains resume, which caused, and which will continue to cause, 21 substantial amounts of mud, earth and debris to slide down the slope, altering 22 the characteristics of the slope, destroying and damaging the improvements. 23 thereon, and sliding onto and over certain SYCAMORE residents' property, 24 destroying and damaging improvements therein Including '!substantial damage to 25 gardens, retaining walls,, and residences. 26 WHEREFORE, SYCAMORE prays for judgment as hereinafter set forth. LAW OFFICES -4- ''+:ESSEN.GAGEN A McCOY A PROFESSIONAL CORPORATION 279 FRONT STREET )ANVILLE, CA 94526 TEL. 637-0585 1 SECOND CAUSE OF ACTION 2 (NUISANCE) 3 11. SYCAMORE refers to and incorporates by reference as though set 4 forth at length hereunder the allegations contained in Paragraphs 1 through 5 10, inclusive, of this complaint. 6 12. SYCAMORE is informed and believes, and upon such information and belief alleges, that at all times mentioned herein, Defendants DiGIORGIO and 8 DOES 1 through 50, inclusive, and each of them, so developed and constructed 9 the steep slope which is located in the SYMNIDRE common area, that such steep 10 slope became and remained injurious to the health and constituted an 11 obstruction to the free use of the SYCAMORE coamn area so as to have 12 constituted thereby a nuisance to SYCAMORE, to SYCAMORE's real property and to 13 the persons residing in the Sycamore development. 14 13. As a proximate result of the negligence of D--fendants, and eG�:h 15 of them, SYCAMORE has suffered the loss of use and enjo�7rent of its property 16 due to the steep slope mudslides thereon, all to its damages in a sm 17 according to proof but in excess of $15,000. 18 VHERE�MRE, SYCAMORE prays for judgment as hereinafter set forth. 19 THIRD CAUSE OF ACTION 20 (STRICT LIABILITY) 21 14. SYCAMORE refers to and incorporates by reference as though set 22 forth at length hereunder the allegations contained in Paragraphs 1 through 23 10, 'inclusive, of this complaint. 24 15. SYMIORE is informed and believes, and upon such information 25 and belief alleges, that at all times mentioned herein, Defendants DiGIORGIO 26 and D08S 1 through 50, inclusive, and each of them, manufactured the LAW OFFICES -5- 7MiESSEN.GAGEN 6 MCCOY APROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE.CA 9=526 TEL.837-0585 I : I above-described steep slope areas by designing, surveying, engineering, 2 testing the soils, cutting, filling, grading, compacting, planning, 3 supervising, constructing, inspecting, repairing, managing, maintaining and 4 controlling for the purposes of developing and constructing suitable ccr,:ron 5 areas and suitable drainage facilities. The manufacturing process was 6 defective. The defects were not apparent to SYCAMORE and they could only have 7 been ascertained by a subsurface soil test and inspection. 8 16. As a result of said defects, SYCAMORE has been daTaged in that it has suffered the loss.of use of its property and was forced to incur, and is 10 continuing to incur, the expense of repair of its property, all to its damage 11 in a sum according to proof but. in excess of $15,000. 12 kIMEFORE, SYCAMORE prays for judgment as hereinafter set forth. 13 FOURTH CAUSE OF ACTION 14 (BREACH OF IMPLIED WARRANTY) 15 17. SYCAMORE refers to and incorporates by reference as though set I 16 forth at length hereunder the allegations contained in Paragraphs 1 through 17 10, inclusive, of this complaint. 18 18. SYCAMORE is informed and believes, and upon such information and 19 belief alleges, that at all times mentioned herein, Defendants DiGIORGIO and 20 DOES 1 through 50, inclusive, and each of them, were, and are now, engaged in 21 the business of the development and.construction of residential subdivisions. 22 19. SYCAMORE is informed and believes, and upon such information and 23 belief alleges, that at all times mentioned herein, Defendants DiGIORGIO and 24 DOES 1 through 50, inclusive, and each of them, at the time and place of 25 transfer of the steep slope common grounds of the Sycamore development to 26 SYCAMORE impliedly warranted and represented that the steep slope coirrmon areas LAW OFFICES -6- HIESSEN.GeGEN&McCOY A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE, CA 9=526 TEL.837.0585 found within the Sycamore development were designed and constructed in a 1 reasonably workmanlike manner such that defects including, but not limited 2 3 to, settling, sliding, sinking and shifting of the ground, causing damage to 4 improvements thereon, preventing use of the property and endangering 5 surrounding residences, would not occur. 6 20. The steep slope common areas described above were not designed 7 and constructed in a reasonably workmanlike manner but, in fact, were 8 defective and were not fit or safe for the use intended by reason of the 9 dangerous and hazardous condition of the steep slope common grounds, thereby 10 being defective. Said defects include, but are not limited to, settling, 11 sliding, sinking and shifting of the, steep slope common area causing damage 12 to improvements thereon, preventing the use of the property and endangering i3 adjoining residences. 14 21. As a result of said breach of warranty, SYCAMORE has been 15 damaged in its property in that by reason of said defects, it has suffered 16 the loss of use of its property and was forced to incur, and is continuing 17 to incur, the expense of repair of its property, all to its damage in. a sum 18 according to proof but in excess of $15,000. 19 22. On or about early 1983, SYCAMORE discovered the defective 20 quality of the steep slope common grounds on the above-described real 21 property and thereafter gave DiGIORGIO due and timely notice of the 22 defective quality of its goods. 23 23. SYCAMORE has demanded that DiGIORGIO correct the conditions, but 24 DiGI0RGIO has refused to do so and continues to refuse to perform such work. 25 WHEREFORE, SYCAMORE prays for judgment as hereinafter set forth. 26 LAW OFFICES -� HIESSEN.GAGEN 6 MCCOY A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE, CA 94526 TEL. 2370565 I FIFTH CAUSE OF ACTION 2 (INTENTIONAL SUPPRESSION OF FACT) 3 24. SYCAMORE refers to and incorporates by reference as though set 4 forth at length hereunder the allegations contained in Paragraphs 1 through 5 10, inclusive, of this complaint. 6 25. At the time DiGI0RGIO deeded SYCAMORE the real property 7 described above and set forth in Exhibit A, it was represented to SYCAMORE g that the real property, including the steep slope n grounds, which 9 DiGIORGIO sought to deed was sound, having been developed and constructed 10 for the purposes of adequate and safe maintenance and water drainage, but 11 failed to reveal and suppressed the fact that prior to the date DiGI0RGIO 12 deeded to SYCAMORE the real property described above and set forth in 13 Exhibit A, there had been a substantial slide on the steep slope, that 14 substantial amounts of noncoacted fill had been deposited on the steep ms 15 slope, and that the installed drainage improvements were inadequate to 16 Provide water drainage on the steep slope approximately located behind the 17 residences at 26 and 44 Leeds Court East, in Sycamore Subdivision No. 4232, lg Danville, Contra Costa County, California; that substantial amounts of ' 19 noncommmpacted fill had been deposited on the slope and that the installed 20 drainage improvements were inadequate to.provide water drainage on the steep 21 slope above another slide approximately located behind the residences at 22 753, 757, 761, and 763 Tunbridge Road, in Sycamore Subdivision No. 4232, 23 Danville, Contra Costa County; California; and that substantial amounts of 24 noncompacted fill had bin deposited on the slope and that the installed 25 drainage improvements were inadequate to provide water drainage on the steep 26 slope above another slide which is approximately located behind the LAW OFFICES —$— SSEN.GAGEN d McCOY A PROFESSIONAL CORPORATION 79 rRONT STREET .`MLLE. CA 94 526 TEL. 837.0585 I residences at 12, 18, and 30 Ambleside Court in Sycamore Subdivision 2 No. 4232, and the adjacent open area Parcel "A," Danville, Contra Costa 3 County, California. The suppression of said facts were likely to mislead 4 SYCAMORE and did in fact mislead SYCAMORE to its detriment. 5 26. The representations, failures to disclose information and 6 suppressions of information herein alleged that have been made by DiGI0RGIO 7 were made with the intent to induce SYCAMORE to act in the manner alleged in 8 reliance thereon; namely, to accept the steep slope common grounds in 9 question, taking full responsibility for its upkeep, maintenance and 10 control, with the belief that such property was in sound condition and in 11 need of no further designing, surveying, engineering, testing of the soils, 12 cutting, filling, grading, compacting, planning, supervising, constructing, 13 inspecting, repairing, managing, maintaining and controlling. 14 27• SYCAMORE, at the time these failures to disclose and 15 suppressions of fact occurred, and at the time DiGIORGIO took the actions 16 herein alleged, was ignorant of the existence of the facts which DiGIORGIO 17 suppressed. 18 28. As a proximate result of said failures to disclose and 19 suppression of facts, SYCAMORE has been damaged in its property and that by 20 reason of said defects it has suffered loss of the use of its property and 21 was forced to incur and is continuing to incur the expense of repair of its 22 property, all to its damage in a sum according to proof but in excess of 23 $15,000. 24 29. In doing the acts herein alleged, Defendants acted with oppres- . 25 Sion; fraud, and malice, and Plaintiffs are entitled to punitive damages in 26 the sum of $1,000,000. LAW OFFICES —9— �!cSSEN.GAGEN&MCCOY A PROFESSIONAL CORPORATION '79 FRONT STREET 'AIVILLE.CA 94526 TEL. 837-0585 I IN111- ARE, SYCAMORE prays for judgment as hereinafter set forth. 2 SIXTH CAUSE OF ACTION .3 (NEGLIGENT] MISREPRESENTATION OF FACT) 4 30.. SYCAMORE refer' to and incorporates by reference as though set 5 forth at length hereunder the allegations contained in Paragraphs 1 through 6 10, inclusive, and 23 through 27, inclusive, of this complaint. 7 31. DiGIORGIO was negligent in making the representations, in 8 failing to disclose information and in suppressing information herein 9 alleged, given that DiGIORGIO was in the business of developing and 10 constructing entire subdivisions. 11 32. SYCAMORE, at the times these failures to disclose and 12 suppressions of fact occurred, and at the time DiGIORGIO took or failed to 13 take the actions herein alleged, was ignorant of the facts which DiGI01.GIO 14 suppressed. 15 33. As a result of said breach of warranty, SYCAMORE has been 16 damaged in its property in that by reason of said defects, it has suffered 17 the loss of use of its property and was forced to incur, and is continuing 18 to incur, the expense of repair of its property, all to its damage in a: sum 19 according to proof but in excess of $15,000. 20 WHEREFORE, SYCAMORE prays for judgment as hereinafter set forth. 21 SEVENTH CAUSE OF ACTION 22 (INVERSE CONDDNATION) 23 34. SYCAMORE refers to and incorporates by reference as though set 24 forth at length hereunder the allegations contained in Paragraphs 1 through 25 10, inclusive, of this complaint. 26 35. Defendant CONTRA COSTA COUNTY (hereinafter "COtUIV) is a local. LAW OFFICES -10- ,IESSEN.GAGEN 6 McCOY A PROFESSIONAL CORPORATION 279 FRONT STREET '7ANVILLE.CA 9.520 TEL.837.0565 „ , I governmental entity organized and existing under the laws of the State of 2 California. 3 36. Prior to the acts of Defendants DiGIORGIO, DOES 1 through 50, 4 inclusive, and COUNTY complained of here, rainwater runoff would be S disbursed without causing mudslides and damage to the property that was 6 dc -�ded from Defendants DiGIORGIO and DOES 1 through 50, inclusive, to 7 Sti(-'AMORE. 8 37. The excavation and other related work performed by Defendants 9 D3c;IORGI0 and DOES 1 through 50, inclusive, and all of them, was for the 10 pi pose of constructing and operating public drainage ditches, culverts, 11 ccllection boxes and sewers on the property, to be used by the .above- 12 described new subdivision, and as such, said excavation was for public use . 13 ar3 benefit. COUNTY planned, approved, inspected and was otherwise engaged 14 it said excavation and placement of public drainage ditches, culverts, 15 collection boxes and sewers, or was at least obligated to so engage itself, 16 O1 the property, some or all of which has been dedicated to, and accepted 17 b} , COUNTY. SYCAMORE is informed and believes, and upon such information 18 a13 belief alleges, that by reason of the foregoing acts or failures to,"act .19 b5 COUNTY, further mudslide damage will occur to SYCAMORE's property. 20 38. As -a proximate result of COUNTY's acts or failures to act as' 21 a: ove-described, the real property of SYCAMORE was taken or damaged, and by 22 reason of such taking or damage SYCAMORE suffered loss of use of its 23 property and SYCAMORE was forced to incur and is continuing to incur 24 expenses of repair of its property, all to its damage in a sum according to 25 proof but in excess of $15,000. 26 39. SYCAMORE has not been paid, nor has it received, any LAW OFFICES -11- i HIESSEN,GAGEN A MCCOY A PROFESSIONAL CORPORATION 279 FRONT STREET DANVILLE, CA 94526 TEL.837.05185 I compensation whatsoever on the account of the injury described above. 2 WHEREFDRE, SYCAMORE prays for judgment as follows: 3 1. On the First through Fourth Causes of Action, inclusive, and on 4 the Sixth Cause of Action, for damages according to proof but in excess of 5 $15,000, for reasonable attorney's fees and costs according to proof and for 6 other relief that the court considers proper; 7 2. On the Fifth Cause of Action for general damages according to 8 proof but in excess of $15,0001 for punitive damages in the amount of 9 $1,000,000, for reasonable attorney's fees and for costs of suit according 10 to proof and for other relief that the court considers proper; and 11 3. On the Seventh Cause of Action for damages according to proof 12 but in excess of $15,000 with interest at the legal rate to the date of 13 those damages, for reasonable attorney's fees and costs of suit and other ! 14 disbursements and expenses, including but not limited to engineering and i 15 appraisal fees, according to proof and for other relief that the court 16 considers proper. 17 Dated: June - , 1983 18 THIESSEN, GAGEN & McCOY A Professional Corporation 19 v" 20 By 21 BRIAN- ' THIESSEN Attorneys for Plaintiff 22 23 24 25 26 I LAW OFFICES -12- cEEN.GAGE:6 McCOY PROFESSIONAL .:ORPORATION FRONT STREET 'MLLE, CA 94526 !EL. 637-0585 CLAIM Jl-0 v 3 W= OF SUPFRVIM OF COW OWTA OMM, CALIFORNIA WNW ACTION Claim Against the County, or District ) XMCE 10 CLA qW May 21, 1985 governed by the Hoard of Supervisors, ) The copy OfWSFt mailed to you is your Routing Brndarsements, and Hoard ) notioe of the action taken an your claim by the Action. All Section references are ) Board of Supervisors (Paragraph IV, below), to California Goverrment Codes ) given pursuant to Government Code Section 913 and 915.4. Please note all ffWarnings". Claimant: Oliver deSilva (Ron Atkins & Renee Atkins, EdYvd Pj;G bels& Judith Michaels) Attorney: Jack T. Friedman -Carroll, Burdick & McDonough APR 795 Address: 49 Quail Court, Suite 300 dartineu, CA 94553 Walnut Creek, CA 94596 Hand delivere Amount: Unspecified By delivery to clerk on April 16, 19.85 Date Received: April 16, 1985 By mail, postmarked on I. : Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: April 17, 19 8 5 PHIL BATCHELOR, Clerk, By Deputy!�M i Cervelli II. FROM: County Counsel 70: Clerk of the Board of Supervisors (Check only one) (x) 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: Lf - By: Deputy County Counsel III. FROM: Clerk of the Board TO: (1) Count 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 4 This claim is rejected in full. ( ) Other: I certify that this is a true and correct ce of the 's der entered in its minutes for s date. Dated: - PHIL BATCHELOR, Clerk, By ° , Deputy Clerk WARNING (Gov. Code Section 913) Subject to oertain ptions, you have only six: (6) months from the date of this =tioe was.personally-awed or deposited in the mail to file a court action on this claim. See Government Code Section 945.6. You my seek the advice of an attorney of your ohoios in connection with this tatter. If. you want to consult an attorney, you should do so immediately. V. FIM: Clerk of the Board 10: (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 Hoard's copy of this Claim in accordance with Section 29703. ( ) A warning of claimant's right to apply for lea to ent a late claim was mailed to alai . DATED: - PHIL BATCHIIAR, Clerk, By ° , Deputy Clerk CC: County Administrator (2) County Counsel (1) rs_ATM _ 1 CARROLL, BURDICK & MCDONOUGH `Ec � COUNSELORS AND ATTORNEYS AT LAW 2 49 QUAIL COURT, SUITE 300 WALNUT CREEK, CALIFORNIA 94596 3 TELEPHONE (415) 945-6578 PHIL BAMIELO" C:ER::BOA4r10i 5 �L'3Yt=�.'-;, 4 Col Br v Dm�a. 5 ATTORNEYS FOR Cross-Defendant OLIVER deSILVA, INC. 6 7 CLAIM AGAINST: COUNTY OF CONTRA COSTA 8 9 TO THE CLERK OF THE BOARD OF SUPERVISORS: 10 OLIVER deSILVA, INC. hereby makes a claim against the 11 County of Contra Costa for an unspecified amount which cannot be 17 ascertained until the conclusion of the litigation to be hereafter 13 described, and makes the following statements in support of the 14 claim: 15 1. Claimant' s address is: 22991 Clawiter Road Hayward, California 94540 16 17 2. Notices concerning claims should be sent to: 18 Jack T. Friedman, Esq. Carroll, Burdick & McDonough 19 49 Quail Court, Suite 300 Walnut Creek, CA 94596 20 21 3. The date and place of the occurrence giving rise to 22 this claim are as follows: On June 17, 1983, a Complaint was filed 23 by Plaintiffs Ron Atkins and Renee Atkins, Edward Michaels and 24 Judith A.: Michaels, in the Superior Court of California in and for 25 the County of Contra Costa, Martinez, California, against DiGiorgio 26 Development Corporation and Sycamore Homeowners Association, to 1 recover damages allegedly sustained by their property located in 2 the City of Danville. The property owned by the Atkins is commonly $ described as 753 Tunbridge .Road, Danville, California. The prop- 4 erty owned by the Michaels is commonly known as 757 Tunbridge Road, 5 Danville, California. The alleged damages to Plaintiffs' property 6 were caused by earth and mudslides occurring in late Winter or 7 early Spring, 1983. Plaintiffs contended that defects in their lot 8 and lots adjacent to theirs which were developed by Defendant 9 DiGiorgio Corporation were defective and that the slides occurred 10 as a result of these defects. 11 Claimant herein was not named as a Defendant in the 12 Complaint. Instead, on or about January 17, 1985, DiGiorgio Cor- 13 poration and DiGiorgio Development Corporation served a Cross- 14 Complaint on Claimant seeking indemnity for sums expended in 15 defending itself against the Complaint filed by Plaintiffs and for 16 sums which might be expended to satisfy any settlement or judgment 17 rendered against it. Claimant had done certain grading work'� on 18 behalf of Cross-Complainants at property near that property belong- 19 ing to Plaintiffs. Cross-Complainants therefore contended that 20 they were entitled to indemnity from Claimant pursuant to a written 21 agreement between the parties. 22 Claimant's claims against the public entity herein named 23 are based on said public entity's negligence and other wrongful 24 conduct in maintaining property near 'Plaintiffs' , in planning, 25 approving and constructing certain public improvements near property 26 belonging to Plaintiffs and in approving for development a residen- -2- 1 tial subdivision adjacent to Plaintiffs' property. Claimant is 2 informed and believes that such conduct by the public entity was a 3 proximate cause of Plaintiffs' alleged damages, if any. 4 4. Claimant' s damages are: Sums not currently known or 5 ascertained resulting from that Cross-Complaint filed by Cross- 6 Complainants DiGiorgio Corporation and DiGiorgio Development Cor- 7 poration in which they claim they are entitled to indemnity for 8 sums expended in their defense and which may be expended to satisfy 9 any settlement or judgment entered in the action entitled Ron 10 Atkins and Renee Atkins, Edward Michaels and Judith A. Michaels v. 11 DiGiorgio Corporation, et al. Claimant herein seeks reimbursement 12 for any judgment or settlement to be assessed or entered against it 13 pursuant to the Cross-Complaint or the underlying Complaint filed 14 by Plaintiffs and litigation costs, attorneys fees and any other 15 expenses incurred in defending against either the Complaint or 16 Cross-Complaint. 17 5. The names of the public employees causing the ,;. 18 Claimant's damages are presently unknown. 19 6 . The amount of Cross-Complainants or Plaintiffs' 20 claim is unknown but Claimant seeks an agreement from the County of 21 Contra Costa to defend and/or reimburse Claimant for the defense 22 costs, fees and expenses set forth above and for any judgment or 23 settlement to be entered arising out of the matters herein 24 asserted. 25 26 -3- 1 7. The basis of the computation of Claimant' s claim is 2 amounts so far expended for defense costs, fees and expenses, any 3 such costs, fees and expenses to be incurred in the future, and the 4 amount of any judgment or settlement reached in the action brought 5 by Cross-Complainants or Plaintiffs. 6 DATED: 7 CARROLL, BURDICK & McDONOUGH a 11 9 By ,J . is ck T. Friedman 10A torneys for Claimant IVER deSILVA, INC. 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 26 -4- PROOF OF SERVICE HAND DELIVERED-CCP 1011, 2015.5 1 1 declare that; 2 1 am(a resident of/employed in)the county of.................................Contra....Costa............................................y California. (COUNTY WHERE MAILING OCCURRED) 3 I am over the age of eighteen years and not a party to the within cause; my (business/residence) address is:...................... 4 4.9...Qua .1...Court,....Suite...300......Wa. In>at....C. 'eek .....CA.......9.4.5.9.6........................................ 5 On .........APri.l...16.►.....19$.`�........I................. I served the within .........**lr.................................................................................. IDATD 6 ............................................................................................................... on the .............Party...below..................................................... 7 in said cause, by placing a true copy thereof enclosed in a sealed envelope, addressed as follows: 8 9 Atkins V. DiGiorgio, et al. 10 11 Clerk BOARD OF SUPERVISORS 12 COUNTY OF CONTRA COSTA 651 Pine Street 13 Martinez, CA 94553 14 15 16 *** CLAIM AGAINST: COUNTY OF CONTRA COSTA Underlying Complaint 17 Cross-Complaint 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 ..........April.....1..6'r.....19.85................................. at ......................VAln..u.t...Creek......................................... California. (DATE) (PLACE) 25 c 26 Joan M. Schlink ............................._................................................................................... (TYPE OR PRINT NAME, SIGNATURE ` I STARK, STEWART, WELLS & ROBINSON NED ROBINSON, ESQ. 2 Citicorp Savings Plaza 180 Grand Avenue, Suite 1400 • - 3 Oakland, CA 94612 Telephone: (415) 834-2200 0 4 JUN 17 1983 5 Attorneys for Plaintiffs 1 A.OLSS(lk Count Clerk 6 t11:71!n1'i!%lA.A1IN1Y 7 1 In Y.1.k1�.1.11.IA'IYI) 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA . - 9 10 RON ATKINS and RENEE ATKINS, ) EDWARD MICHAELS, and JUDITH A. ) 11 MICHAELS, ) 12 Plaintiffs, . ) NO' 248565 13 VS• ) COMPLAINT FOR DAMAGES (Negligence, Strict 14 DiGIORGIO DEVELOPI4ENT CORPORATION, ) Liability, Breach of a California corporation, SYCAMORE ) Warranty) 15 HOMEOWNERS ASSOCIATION, a California Mutual Benefit Corporation, 16 and DOES I to XXV, inclusive, ) 17 Defendants. ) 18 ) 19 Plaintiffs allege: 20 1. Plaintiffs Ron and Renee Atkins (."Atkins") are owners 21 of and reside at the real property ("Atkins property" ) commonly 22 known as 753 Tunbridge Road, Danville, located in the County of 23 Contra Costa. 24 2. Plaintiffs Edward and Judith A. Michaels ("Michaels") 25 are owners and reside at the real property C'Michaels property") 26 commonly known as 757 Tunbridge Road, Danville, located in the •�LLL!{h Rl)ItIXlttl� ATTORNEYS AT LAW MLITT PLAZA.14TH FLOOR 100 GRAND AVENUE 1- 40AKt.AND,CA 94610 - 111{I O>t1•=tO0 • •- I County of Contra Costa. 2 3. Defendant DiGiorgio Development Corporation ("DiGiorgio") 3 is, and at all relevant times was, a - corporation incorporated 4 under the laws of the State of California. 5 4. Defendant Sycamore Homeowners Association ("Association") 6 is a California Mutual Benefit Corporation. 7 5. Plaintiffs are ignorant of the true names and 8 capacities of defendants sued as DOES I through XXV, inclusive, 9 and sue these defendants by fictitious name. Plaintiffs will 10 amend this complaint to allege the true names and capacities 11 of such defendants when ascertained. Plaintiffs are informed 12 and believe and on that basis allege that each of the ficti- 13 tiously named defendants is responsible in some manner for 14 plaintiffs injuries as alleged in this complaint. 15 - FIRST .CAUSE OF ACTION Strict Liability 16 17 6. Defendant DiGiorgio was at all relevant times engaged 18 in the mass production of lots and homes for sale to and use by 19 members of the general public. As part of its business, 'in or 20 about 1973, DiGiorgio and DOES I through XX, inclusive, 21 ("Developers") subdivided, developed and constructed homes upon 22 property in a subdivision located in Danville, County of 23 Contra Costa. 24 Y. The Atkins and Michaels properties were two lots 25 developed as part of that subdivision. 26 8• At the time defendant developers originally developed %TEWAitT, V ULLK a 140111 Mom —2— ATTORNEYS AT LAW •ccuTY FLAU-14IN FLOOR 180 GRAND AVtNU[ , 414KLAND.CA 94019 1416)634-2300 1 the subdivision, the property located adjacent to and up hill 2 from the Atkins and Michaels properties ("Association property") 3 was owned by defendant developers and as part of the original 4 subdivision plan was not..' to be developed. After completion of - 5 the project, the Association property, in accord with the' 6 development plan, was deeded to defendant Association. 7 Defendant developers intended that the lots and homes 8 constructed upon them were to be used for the purpose of single 9 family residences. 10 10. Defendant developers knew that the lots and homes 11 would be purchased and used without inspection for defects by 12 the purchasers. 13 11. At the time the Atkins and* Michaels properties were 14 ' purchased, the properties were defective in that, developers 15 grading and/or excavation activities had removed a significant 16 amount of the lateral support -for the Association property, 17 thereby rendering the Association property subject to land- 18 slides, mudslides, erosion, or other soil movement. 19 12. Plaintiffs relied upon the skill and expertise of 20 the developers to grade, excavate, and/or fill the subdivision 21 lots in such a manner that the subdivision, as- a whole, would 22 be free from landslides , mudslides, erosion, or other soil 23 movement caused by developers ' activities in developing the 24 lots and constructing homes . 25 13. In the late winter or early spring of 1983, as. a proxi- 26 mate result of the defect described above, mud- and debris from ATTORNEYS AT LAW -3- -o RAND.IDIN R \ 11000 GRAND AVENUE .iAKLA\D.CA 9462% 14101 1 the Association property began sliding and slid into the Atkins 2 and Michaels ' properties . 3 14. As a proximate result of the slide, plaintiffs have 4 incurred expenses in . an amount as yet unknown for repairs, for . 5 relandscaping their properties, and for the removal . of mud and 6 debris all to their general damage according to proof. • 7 15. As a further proximate result of the slide, the value 8 of plaintiffs ' properties has been diminished in an amount as 9 yet unknown. 10 16. As a further proximate result of the slide, plaintiffs 11 may be required to expend an amount as yet unknown for a portion 12 of the expenses incurred in repairing the Association property. 13 SECOND CAUSE OF ACTION (Breach .of Implied Warranty) 14 15 17. Plaintiffs reallege and incorporate by reference 16 Paragraphs 1 through 1G above. , 17 18. Defendant developers impliedly warranted that the 18 Atkins and Michaels ' properties were graded, excavated, filled, 19 and/or constructed in a reasonably workmanlike manner. 20 19 . Plaintiffs relied upon such warranty and believed 21 in good faith that the lots and homes were of merchantible 22 quality. 23 20. Defendants developers breached this warranty that the 24 lots and homes were designed and constructed in a reasonably 25 workmanlike manner in that the home was defective as alleged 26 above; ATTORNEYS AT LAW -4_ IO[IITT PLAZA.14TH rLOOR 110 GRAND AVENUE l)^KLAN'D.CA goes 14111•34.7200 .. 1 21. As a proximate result of the breach of warranty by 2 defendant developers, plaintiffs were damaged as alleged above.. 3 22. On March 21, 1983, Atkins and Michaels gave notice to 4 defendant developers of such .breach of implied warranty within 5 a reasonable time after plaintiffs discovered defendants ' breach 6 before the filing of this complaint. 7 23. Despite this notice, the defendant developers have 8 declined to acknowledge responsibility or effectuate any 9 repairs or make payment to plaintiffs . 10 THIRD CAUSE OF ACTION (Negligent Construction) 11 12 24 . Plaintiffs reallege and incorporate by reference 13 paragraphs 1 through 16 above. 14 25. In doing the development work described above, 15 defendant developers negligently and carelessly graded, 16 excavated, filled and/or constructed the Atkins and Michaels ' 17 properties so as to cause the defects described above. - 18 26. As a proximate result of the negligence of defendant 19 developers, plaintiffs were damaged as alleged above. 20 FOURTH CAUSE OF ACTION (Negligent Failure to Correct Natural Condition on Property) 21 22 27. Plaintiffs reallege and incorporate by reference 23 paragraphs 1 through 8 and paragraphs 14 through 16 above. 24 28 . In connection with the overall development of the area, 25 defendant developers deeded the Association property to. defendant 26 Association. Since that time the Association property has been -IrAIIK,STEIVART. ELL%&I10IIIN!1OV ATTORNEYS AT LAW —5— DILITV PLAZA.14TH FLOOR 160 GRAND AV[NUE 4,AKLAND.CA 94e1U ' NIf10lA•!!00 r s. • I owned and maintained by the Association and DOES XXI through 2 XXv. 3 29. Defendants owed a duty to plaintiffs , the adjacent 4 land owners, to maintain their property in such a manner as to 5 avoid damaging the Atkins and Michaels ' properties. 6 30. In late winter and early spring of 1983, a landslide 7 occurred on the Association property. The landslide caused 8 dirt and mud to flow from the Association property onto 9 plaintiffs ' adjacent premises, the Atkins and Michaels ' 10 properties. 11 31 . Defendants knew or should have known• of the possibility 12 of a landslide because of previous occurrences and previous 13 discussions of the Association' s board of directors. 14 32. Defendants failed to take reasonable steps to prevent 15 landslides injuring plaintiffs ' properties. 16 33. As a proximate result of defendants ' negligent and 17 careless failure to take reasonable steps to prevent landslides, 18 plaintiffs were damaged as alleged above. 19 WHEREFORE, plaintiffs pray judgment against defendants 20 as follows : 21 1. For general damages .according to proof; 22 2. For the diminution in value of their properties 23 according to proof; 24 3. For any expenses incurred by plaintiffs for the 25 repair of the Association property; 26 'iTA11K.NTE%ART. WELLS&It(tlll�rll)\ ATTORNEYS AT LAW -6- •OZLITT PLAZA.8014►LOOA '180 GRAND AVENUE 410AIL"SD.CA 04629 111.1•7 .7200 - •• + 1 4 . For costs of suit incurred; and 2 5. For such other and further relief as the court 3 may deem proper and just. ' 4 DATED: June 16, •1983. 5 STARK, STEWART, WELLS & ROBINSON 6 ; 7 By . NED ROBINSON 8 Attorneys for Plaintiffs 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 �T.\ltK. liTE\t'AItT, 'IiLL�&NL/IIIVriI/\ ATTORNZYS AT LAW 7� •,*,LITT PLAZA.14TH FLOOR 100 GRAND AVENUE /FAKLAN4.CA 04618 I4I91 011.3200 1 VERIFICATION 2 I, NED ROBINSON, declare: 3 I am an attorney at law fuly admitted to practice before 4 all the courts of the State of California, and I have my office 5 at 180 Grand Avenue, Suite 1400, Oakland, California; 6 I am a member of the firm of Stark, Stewart, Wells & 7 Robinson, attorneys for plaintiffs in the above-entitled action. 8 The plaintiffs are absent from the county in which I 9 have my office and for that reason I make this verification on 10 behalf of said plaintiffs. 11 I have read the foregoing COMPLAINT FOR DAMAGES (Negligence, 12 Strict Liability, Breach of Warranty) and know the contents 13 thereof. I am informed and believe that the matters stated 14 therein are true, and on that ground I allege that the matters 15 stated therein are true. 16 I declare under penalty of perjury that the foregoing is 17 true and correct. 18 Executed at Oakland, California, on June .16, 1983. 19 20 NED ROBINSON 21 .22 23 24 25 26 �T.\ItIC.%TE%V.\/2T. YELLS. AE I2()11I\tit/X ATTORNtVS AT LAW •09LITY PLA,A.14104 FLOOR 100 GI1ANO AVENUE —8— YAKLA\b.c^ 04010 44191034-2200 . r'-934- r NAME AND'ADDRESS OF SENDER: TELEPHONE NO(415)834-2200 • For Court Use Only: f STARK, STEWART, WELLS & ROBINSON NED ROBINSON, ESQ. ` 180 Grand Ave. , Suite 1400 Oakland, CA 94612 Insert name o1 court,judicial district or branch court,if any,and Post Office and Street Address: SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA P. 0. Box 911 Martinez, CA. 94553 PLAINTIFF: RON ATKINS AND RENEE ATKINS, EDWARD MICHAELS _AND JUDITH A. MICHAELS DEFENDANT: DiGIORGIO DEVELOPMENT CORPORATION, a California corporation, SYCAMORE HOMEOWNERS ASSOCIATION,a California Mutual Benefit Corporation, et al. NOTICE AND ACKNOWLEDGMENT OF RECEIPT Case Number: 248565 TO: •SYCAMORE HOMEOWNERS ASSOCIATION, a California Mutual Benefit 'Corp.• • . . . . . . . . . . . . . . . . . . . (Insert name of individual being served) This summons and other document(s) indicated below are being served pursuant to Section 415.30 of the California Code of Civil Procedure. Your failure to complete this form and return it to me within 20 days may subject you (or the party on whose behalf you are being served) to liability for the payment of any expenses incurred in serving a summons on you in any other manner permitted by law. If you are being served on behalf of a corporation, unincorporated association (including a partnership), or other entity, this form must be signed by you in the name of such entity or by a person authorized to receive service of process on behalf of such entity. In all other cases, this form must be signed by you personally or by a person authorized by you to acknowledge receipt of summons. Section 415.30 provides that-this summons and other document(s) are deemed served on the date you sign the Acknowledgment of Receipt belo /if you return this f rtn to me. STAR ', S W , W S� & BINSON July 8, 1983 B ` P % rt��� ,—c�t4.L� Dated: . . . . . . . . . . . . . . . . . . _ (Signature of sender) ACKNOWLEDGMENT OF RECEIPT NED ROBINSON This acknowledges receipt of: (To be completed by sender before mailing) 1. 0 A copy of the summons and of the complaint. 2. Q A copy of the summons and of the Petition(Marriage)and: C Bunk Confidential Counseling Statement(Marriage) [�Order to Show Cause(Marriage) n Blank Responsive Declaration Q Blank Financial Declaration DOther:(Specify) (To be completed by recipient) Date of receipt:. . . . . . . . . . . . . . i (Signature of person acknnwledging receipt.with title if acknowledgment is made on behalf of another person) Date this form is signed: . . . . • . . . • . (Type or print your name and name of entity.1f any, on whose behalf this form is signed) Foran Approva0 by the CCP 415.30.417.10: Judicial Council ofcofilonMa NOTICE AND ACKNOWLEDGMENT OF RECEIPT cal Rules of court. ROV.M Ffferltve,l.nuery 1,1475 Rote 1216 DEC 1 8 198 1 JEFFREY M. FORSTER BRIAN J. HANNON 1. R. OLSSON, County Clerk _ 2 BERLINER, COHEN & BIAGINI h, C,UNTRA COSTA COUNTY 99_ ALMADEN BLVD. , SUITE 400 OmwDeputy 3 SAN JOSE, CA 95113 TELEPHONE: (408) 286-5800 4 5 ATTORNEYS FOR DEFENDANT DiGIORGIO DEVELOPMENT CORPORATION AND CROSS- 6 COMPLAINANTS DiGIORGIO CORPORATION AND DiGIORGIO DEVELOPMENT CORPORATION 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 10 ) NO. 248565 RON ATKINS, et al. , ) 11 ) CROSS-COMPLAINT BY Plaintiffs, ) DiGIORGIO CORPORATION 12 ) AND DiGIORGIO DEVELOPMENT VS. ) CORPORATION 13 ) DiGIORGIO DEVELOPMENT COR- ) 14 PORATION, a California cor- poration, et al. , ) 15 ) 16 Defendants. ) ) . 17 DiGIORGIO CORPORATION, a ) Delaware corporation, and ) 18 DiGIORGIO DEVELOPMENT COR- ) PORATION, a Delaware ) 19 corporation, ) 20 Cross-Complainants, ) 21 vs. ) 22 SYCAMORE HOMES ASSOCIATION, ) a California corporation, ) 23 ENGEO, INC. , a California ) corporation, OLIVER DeSILVA,' ) 24 INC. , a California corpora- ) tion, COUNTY OF CONTRA ) 25 COSTA, LLOYD J. RODONI AND ) SONS, a California corpora- ) 26 tion, INDEPENDENT CONSTRUC- ) LIT:X-Comp-005 J0132/006 12/12/84 -1- • ti 1 1 TION COMPANY, a California ) corporation, TOWN OF ) 2 DANVILLE, and DOES 1 through ) 60, inclusive,14 i ) -- "Cross-Defendants. ) 4 ) 5 AND RELATED CROSS=ACTIONS. ) 6 7 - Cross-Complainants DiGIORGIO CORPORATION and DiGIORGIO DEVEL- OPMENT CORPORATION (sometimes hereafter referred to collectively 8 as "DIGIORGIO" ) allege as follows: 9 GENERAL ALLEGATIONS 1. DiGIORGIO CORPORATION is a corporation existing under the laws -of the State of Delaware, "with_ -its principal place of 12 business in San Francisco, California. 13 14 2. DiGIORGIO DEVELOPMENT CORPORATION is a corporation existing under the laws of the State of Delaware, with its prin- cipal place of business in San Francisco, California. It is a 16 wholly owned subsidiary of DiGIORGIO CORPORATION. Di-.GIORGIO 17 DEVELOPMENT CORPORATION previously owned and developed Subdivi- 18 Sion 4232. The map of this subdivision was recorded with the 19 Recorder of the County of Contra Costa on January 24, 1973 at 20 21 Book 253 of Maps, pages 49 through 52. Cross-Defendant SYCAMORE HOMES ASSOCIATION ( "SYCAMORE" ) has filed a Complaint in the 22 23 Superior Court of the State of California in and for the County of Contra Costa (Case No. 248025) against DiGIORGIO. In that 24 Complaint, SYCAMORE alleges that DiGIORGIO CORPORATION is the 25 26 alter ego of DiGIORGIO DEVELOPMENT CORPORATION in that DiGIORGIO LIT:X-Comp-005 J0132/006 12/12/84 -2- CORPORATION controls and dominates the corporate business of 1 ' DiGIORGIO DEVELOPMENT CORPORATION which is a mere shell, instru- 2 mentality and conduit through which DiGIORGIO CORPORATION carries 3 on its construction land development and contracting business in 4 a corporate form, exercising complete control and dominance of 5 the business of DiGIORGIb DEVELOPMENT CORPORATION to such an 6 extent that any individuality or separateness between them never 7 ' existed. Cross-Defendant SYCAMORE alleges further that DiGIORGIO 8 CORPORATION is liable for the acts or omissions of DiGIORGIO 9 DEVELOPMENT CORPORATION. DiGIORGIO denies each and every one of 10 these allegations. 11 3. DiGIORGIO is informed and believes, and thereon alleges, 12 that Cross-Defendant SYCAMORE is a non-profit California corpora- 13 tion organized and existing for the benefit of the homeowners of 14 15 Sycamore, a multi-division planned development, as defined in Section 11003.1 of the California Business and Professions Code, 16 located in Danville, California. 17 ' 4. DiGIORGIO is informed and believes, and thereon alleges, 18 - that Cross-Defendant ENGEO, INC. ( "ENGEO" ) is a California cor- 19 poration. ENGEO performed soils engineering work for DiGIORGIO 20 DEVELOPMENT CORPORATION on Subdivision 4232. 21 22 5. DiGIORGIO is informed and believes, and thereon alleges, that Cross-Defendant OLIVER DeSILVA, INC. ( "DeSILVA" ) is a Cali- 23 . fornia corporation. DiGIORGIO is also informed and believes, and 24 thereon : alleges, that DeSILVA is, and at all times mentioned 25 26 herein was, a contractor, duly licensed under the laws of the LIT:X-Comp-005 J0132/006 12/12/84 -3- 1 State of California. DeSILVA performed grading and excavation 2 work for DiGIORGIO DEVELOPMENT CORPORATION on Subdivision 4232. 3 6. DiGIORGIO is informed and believes, and thereon alleges, 4 that Cross-Defendant LLOYD J. RODONI & SONS ( "RODONI" ) is a Cali- 5 fornia corporation. DIGIORGIO is also informed and believes, and 6 thereon alleges, that RODONI is, and at all times mentioned here- 7 in was, a contractor , duly licensed under the laws of the State 8 of California. RODONI performed grading and excavation work on 9 Subdivision 4232. 10 7 . Cross-Defendant COUNTY OF CONTRA COSTA ( "COUNTY" ) is a 11 county and political subdivision within the State of California, 12 duly organized and existing under the laws of the State of Cali- 13 fornia. 14 8. DiGIORGIO is informed and believes, and thereon alleges, 15 that Cross-Defendant CITY OF DANVILLE ( "CITY" ) is a public entity 16 and municipality, duly organized and existing under the laws of 17 the State of California. ' 18 9 . DiGIORGIO is informed and believes, and thereon alleges, 19 that Cross-Defendant INDEPENDENT CONSTRUCTION COMPANY, INC. 20 ( "'INDEPENDENT" ) is a California corporation. DiGIORGIO is also 21 informed and believes, and thereon alleges, that INDEPENDENT is, 22 and at all times mentioned herein was, a contractor , duly 23 licensed under the laws of the State of California. INDEPENDENT 24 performed grading and excavation work for DiGIORGIO DEVELOPMENT 25 CORPORATION on Subdivison 4232. 26 10 . The true names and capacities whether individual, cor- LIT:X-Comp-005 J0132/006 12/12/84 -4- 1 porate, associate or otherwise of Cross-Defendants DOES 1 through 2 60, inclusive, are unknown to DiGIORGIO, who therefore sues such 3 Cross-Defendants by such fictitious names. DiGIORGIO is informed 4 and believes, and thereon alleges, that each of the Cross-Defen- 5 dants sued herein as DOES 1 through 60 are responsible in some 6 manner for the occurrences herein alleged, and that DiGIORGIO' s 7 damages as herein alleged were proximately caused by such Cross- 8 Defendants. 9 11. DiGIORGIO is informed and believes, and thereon alleges, 10 that at all times relevant herein, Cross-Defendants, and each of 11 them, were the agents, servants and employees of each of the 12 remaining Cross-Defendants, and in doing the things hereinafter 13 alleged, were acting within the course and scope of such agency, 14 service and employment. 15 12. On or about June 17, 1983, Plaintiffs RON ATKINS, RENEE 16 ATKINS, EDWARD MICHAELS, and JUDITH A. MICHAELS ( "Plaintiffs" ) 17 filed a Complaint in th6 Superior Court of the State of Cali- 18 fornia in and for the County of Contra Costa (Case No. 248565) 19 against DiGIORGIO DEVELOPMENT CORPORATION. In their Complaint, 20 Plaintiffs allege that DiGIORGIO DEVELOPMENT CORPORATION, through 21 its acts or omissions, caused certain earth movement which has 22 damaged or imperiled their property. DiGIORGIO has denied each 23 and every one of these allegations. 24 FIRST CAUSE OF ACTION [Against DeSILVA and DOES 1-10, 25 inclusive, for Express Indemnity) 26 13. . DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- LIT:X-Comp-005 J0132/006 12/12/84 -5- 1 ence as though fully set forth herein each and every allegation 2 contained in Paragraphs 1-through 12 of this Cross-Complaint. 3 14. -At -all times - mentioned herein, DeSILVA and DOES- -1 4 through 10, were engaged in the business of land grading and 5 excavation. _ . 6 15. On or about August 14, -1972, DiGIORGIO DEVELOPMENT COR- 7 PORATION entered into a written agreement with DeSILVA and DOES 1 8 through 10, inclusive, whereby these Cross-Defendants agreed to 9 supply the materials, labor, and equipment necessary to perform 10. the grading and excavation work on Subdivision 4232. 11 16. In this agreement., DeSILVA and DOES 1 through 10, inclu- 12 sive, agreed to "indemnify and hold [DIGIORGIO DEVELOPMENT CORP- 13 ORATION] harmless from any loss, cost, damage or expense ( includ- 14 ing attorneys ' fees) arising out of any accident or other occur- 15 rence causing injury to any person or property due directly or 16 indirectly to [Cross-Defendants.' ] work" . 17 17 . Should Plaintiffs recover, by way of settlement dr judg- 18 ment, any damages from DiGIORGIO DEVELOPMENT CORPORATION, these 19 damages would be caused primarily and ultimately by Cross-Defen- 20 dahts ' active negligence and their failure to properly perform 21 their obligations under their contract with DiGIORGIO DEVELOPMENT 22 CORPORATION. Any liability of DiGIORGIO DEVELOPMENT CORPORATION 23 for these damages would arise, not as a result of any active 24 fault on its part, but solely- because it previously owned and 25 developed Subdivision 4232. Accordingly, Cross-Defendants are 26 obligated to hold harmless and indemnify DiGIORGIO DEVELOPMENT LIT:X-Comp-005 J0132/006 12/12/84 -6- 1 CORPORATION from and against any damages, liability, loss, costs., 2 and expenses, including attorneys ' fees, which it has incurred or 3 may incur in defending against Plaintiffs ' action or in prosecut- 4 ing this Cross-Complaint. 5 WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 6 as hereafter set forth. 7 SECOND CAUSE OF ACTION [Against ENGEO and DOES 11 through 20, 8 inclusive, for Implied Indemnity] 9 18. DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- 10 ence as though fully set forth herein each and every allegation 11 contained in Paragraphs 1 .through 12 .of this Cross-Complaint. 12 19 . DiGIORGIO DEVELOPMENT CORPORATION entered into an oral 13 agreement with Cross-Defendants, ENGEO and DOES 11 through 20, 14 inclusive, whereby these Cross-Defendants agreed to investigate 15 the soils' conditionsexisting on Subdivision 4232 and to provide 16 recommendations for the grading. and drainage thereof. 17 20 . Should Plaintiffs recover, by way of settlement or judg- 18 ment, any damages from DiGIORGIO DEVELOPMENT CORPORATION, these 19 damages would be caused primarily and ultimately by Cross-Defen- 20 dants ' active negligence and their failure to properly perform 21 their obligations under their contract with DiGIORGIO DEVELOPMENT 22 CORPORATION. Any liability of DiGIORGIO DEVELOPMENT CORPORATION 23 for these damages would arise, not as a result of any active 24 fault on its part, but solely because it previously owned and .25 developed Subdivision 4232 . Accordingly, Cross-Defendants are 26 obligated to hold harmless and indemnify DiGIORGIO DEVELOPMENT LIT:X-Comp-005 J0132/006 12/12/84 -7- 1 CORPORATION from and against any damages, liability, loss, costs, 2 and expenses, including attorneys ' fees, which it has incurred or 3 may incur in defending against Plaintiffs ' action or in prosecut- 4 ing this Cross-Complaint. 5 WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 6 as hereafter set forth. 7 THIRD CAUSE OF ACTION [Against INDEPENDENT and DOES 21 through 30, 8 inclusive, for Express Indemnity] 9 21. DiGIORGIO incorporates by reference as though fully=-set 10 forth herein each and every allegation contained in Paragraphs 1 11 through 12 of this Cross-Complaint. .. 12 22. At all times mentioned herein, INDEPENDENT and DOES 21 13 through 30, were engaged - in the business of. -land grading and 14 excavation. 15 23. On or about April 29 , 1966, Filper Corporation entered 16 into a written agreement with INDEPENDENT and DOES 21 through 30, 17 inclusive, whereby these Cross-Defendants agreed to supply the 18 materials, labor , and equipment necessary to perform the grading 19 and excavation work on Subdivision 4232. 20 24 . In this agreement, INDEPENDENT and DOES 21 through 30, 21 inclusive, agreed to "indemnify and hold [Filper Corporation] 22 harmless from any loss, cost, damage or expense ( including attor- 23 neys' fees) arising out of .any accident or other occurrence caus- 24 ing injury to .-any person or property due directly or indirectly 25 to [Cross-Defendants ' ] work." 26 25. DiGIORGIO is the successor of Filper Corporation. LIT:X-Comp-005 J0132/006 121/12/84 -8- 1 Filper Corporation has assigned and DiGIORGIO has succeeded -to 2 all rights which Filper Corporation had under its agreement with 3 INDEPENDENT and DOES 21 through 30, inclusive. 4 26. Should Plaintiffs recover , by way of settlement or judg- 5 ment, any damages from DiGIORGIO, these damages would be caused 6 primarily and ultimately by Cross-Defendants ' active negligence 7 and their . failure to properly perform their obligations under 8 their contract with DiGIORGIO. Any liability of DiGIORGIO for 9 these damages would arise, not as a result of any active fault on 10 its part, but solely because it previously owned and developed 11 Subdivision- 4232. Accordingly, Cross-Defendants are obligated to 12 hold harmless and indemnify DiGIORGIO from and against any 13 damages, liability, loss, costs, and expenses, including attor- 14 neys ' fees, which it has incurred or may incur in defending 15 against -Plaintiffs ' action or in prosecuting this Cross- 16 Complaint. 17 WHEREFORE, DiGIORGIO prays judgment as hereafter set forth. 1$. FOURTH CAUSE OF ACTION [Against all Cross-Defendants (except DeSILVA and 19 INDEPENDENT) and DOES 31 through 50, inclusive, for Equitable Indemnity] 20 27. DiGIORGIO incorporates by reference as though fully set 21 forth herein each and every allegation contained in Paragraphs 1 22 through 12 of this Cross-Complaint. 23 28. If Plaintiffs sustained any damages as alleged in their 24 Complaint, such damages were caused entirely or partly by the 25 acts or omissions of Cross-Defendants, and each of them. 26 LIT:X-Comp-005 J0132/006 12/12/84 -9- 1 29. An actual controversy has arisen .and . now exists between 2 DiGIORGIO and Cross-Defendants in that DiGIORGIO contends, and 3 Cross-Defendants deny, - the following: 4 (a) That as between DiGIORGIO and Cross-Defendants, 5 responsibility, if any, for the damages claimed by : Plaintiffs 6 herein rests entirely or partially on Cross-Defendants; and 7 (b) That as a result, Cross-Defendants are obligated 'to 8 indemnify, in whole or in part, DiGIORGIO for any sum which 9 DiGIORGIO may be compelled to pay as a result of- any damages, 10 judgment, or other awards recovered by Plaintiffs against 11 DiGIORGIO. 12 30 . DiGIORGIO desires a judicial determination of the 13 respective rights and duties of itself and Cross-Defendants . with 14 respect to the damages claimed in Plaintiffs ' Complaint . .. . In 15 particular , DiGIORGIO desires a declaration of the respective 16 liabilities of itself and Cross-Defendants for such damages, if 17 any, and a declaration of Cross-Defendants ' responsibility to 18 indemnify DiGIORGIO for any sum which DiGIORGIO may be compelled 19 to pay and for which Cross-Defendants have been determined 20 responsible. 21 31. Such a declaration is necessary and appropriate at this 22 time so that DiGIORGIO may ascertain its rights and duties with 23 respect to Plaintiffs ' claim herein for damages. Furthermore, 24 Plaintiffs ' claim and DiGIORGIO' s claim arise out of the same 25 transaction, . and determination of both in one proceeding is 26 necessary and appropriate in order to avoid the circuity and LIT•X-Comp-005 J0132/006 12/12/84 -10- 1 multiplicity of actions which would result if DiGIORGIO is 2 required now to defend against Plaintiffs ' claim and then bring a 3 separate action against Cross-Defendants for indemnification of 4 sums which DiGIORGIO may be compelled to pay as a result of any 5 damages, judgment, or other awards recovered by Plaintiffs 6 against DiGIORGIO. 7 WHEREFORE, DiGIORGIO prays judgment as hereafter set forth. 8 FIFTH CAUSE OF ACTION [Against the COUNTY and DOES 51 through 60, 9 inclusive, for Declaratory Relief ] 10 32. DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- 11 ence as though fully set .forth herein each and every allegation 12 contained in Paragraphs 1 through 12 of this Cross-Complaint. 13 33. On or about March 25, 1975, DiGIORGIO DEVELOPMENT CORPO- 14 RATION entered into a Subdivision Agreement with Cross-Defendants 15 COUNTY and DOES 51 through 60, inclusive. Cross-Defendants 16 required DiGIORGIO DEVELOPMENT CORPORATION to enter into this 17 Subdivision Agreement as a condition precedent to their approval 18 of the Subdivision Map for Subdivision 4232. 19 34 . This Subdivision Agreement provided, inter alia: 20 INDEMNITY. Subdivider [DIGIORGIO DEVEL- OPMENT CORPORATION] shall hold harmless and 21 indemnify the indemnitees from the liabilities as defined in this section: " 22 A. The indemnitees benefited and pro- 23 tected by this promise are the County, and its special districts, elective and appointive 24 boards, commissions, . officers, agents and employees. 25 B. The liabilities protected against 26 are any liability or claim for any damage of LIT:X-Comp-005 J0132/006 12/12/84 -11- 1 any kind allegedly suffered, incurred or . threatened because of actions defined below, 2 and including personal injury, death, property damage, inverse condemnation, or any combina- tion of these, and -regardless of whether .or _ . not such liability, claim or damage was 4 unforeseeable at any time before the County approved the improvement plan or accepted the 5 improvements as completed, and including the defense of any suit(s) , action(s) or other 6 proceeding(s) concerning these. 7 C. The actions causing liability are any act or omission (negligent or non-negli- 8 gent) in connection with the matters covered by this Agreement and attributable to the 9 subdivider, contractor, -,subcontractor, or any . officer, agent or employee of one or more of 10 them. 11 D. Non-Conditions: The promise and agreement in this section is not conditioned 12 or dependent upon whether or not any Indem- nitee has prepared, supplied or approved any 13 plan(s) or specification(s) in 'connection with -: this work or subdivision, or has insurance or 14 other indemnification covering any of these matters, or that the alleged damage resulted 15 partly from any negligent or willful miscon- duct of any Indemnitee. 16 35 . There is implied in every contract, including the Sub- 17 ' division Agreement described above, a covenant of good faith and 18 19 fair dealing. This covenant requires that neither party do any- thing which would deprive the other of the benefits of the agree- 20 ment . 21 36 . This covenant required Cross-Defendants not do anything 22 which would give rise to any obligation of DiGIORGIO DEVELOPMENT 23 24 CORPORATION to.. �indemnify and hold them harmless. 37. .. The earth movement described in Plaintiffs ' Complaint 25 26 was caused, in whole or in part, by the willful or negligent acts LIT:X-Comp-005 J0132/006 12/12/84 -12- I or omissions of Cross-Defendants. 2 38. Cross-Defendants have demanded that DiGIORGIO DEVELOP- l 3 MENT CORPORATION indemnify and hold them harmless should they be 4 held liable for any personal injury or property damage resulting 5 from the earth movement described in Plaintiffs ' Complaint. 6 39. An actual controversy has arisen and now exists between 7 DiGIORGIO DEVELOPMENT CORPORATION and Cross-Defendants concerning 8 their respective rights and duties. 9 (a) DiGIORGIO DEVELOPMENT CORPORATION contends that 10 Cross-Defendants contractually breached the covenant of good 11 faith and fair dealing when they caused through their own acts or 12 omissions, the earth movement described in Plaintiffs ' Com- 13 plaint. DiGIORGIO DEVELOPMENT CORPORATION contends further that 14 this breach excuses any obligation which it may have to indemnify 15 and, hold - Cross-Defendants harmless should Cross-Defendants be 16 held liable for any personal injury or property damage resulting 17 from the earth movement described in Plaintiffs ' Complaint . 18 Cross-Defendants dispute these contentions and contend that 19 DiGIORGIO DEVELOPMENT CORPORATION is obligated to indemnify and 20 hold them harmless. 21 (b) DiGIORGIO DEVELOPMENT CORPORATION contends that any 22 condition which a public entity imposes as a condition precedent 23 to its approval of a subdivision map must be reasonable and 24 relate to the purposes of the Subdivision Map Act (Cal.Gov. Code 25 566410 et seq.) to regulate the design, improvement and uses of 26 the subdivision for the safety and welfare of the lot owners and LIT:X-Comp-005 J0132/006 12/12/84 -13- 1 the public. DiGIORGIO DEVELOPMENT CORPORATION contends further 2 that the indemnity and hold harmless set forth above is invalid 3 and unenforceable because itis not reasonable -nor is it related 4 to the purposes of the Subdivision Map Act. Cross-Defendants 5 dispute these contentions and contend that this indemnity and 6 hold harmless provision is valid and enforceable. 7 40. DiGIORGIO DEVELOPMENT CORPORATION -desires a judical 8 determination of its rights and duties. It desires a declaration 9 as to whether it is excused from any obligation to indemnify and 10 hold Cross-Defendants harmless should Cross-Defendants be held 11 liable for any personal injury or property damage resulting .-from 12 the earth movement described in Plaintiffs ' Complaint. ' DiGIORGIO 13 DEVELOPMENT CORPORATION also'- denies a- declaration -as to whether 14 the indemnity and hold harmless provision is invalid and 15 unenforceable. 16 41. A judicial declaration is necessary and appropriate at 17 this time so that DiGIORGIO DEVELOPMENT CORPORATION may ascertain 18 whether it has any obligation to indemnify and hold Cross-Defen- 19 dants harmless should Cross-Defendants be held liable for any 20 personal injury or property damage resulting from the earth move- 21 ment described in Plaintiffs ' Complaint. 22 WHEREFORE, DiGIORGIO prays judgment against Cross-Defendants 23 as follows : 24 1. For indemnification by DeSILVA from and against any 25 damages, liability, loss, costs and expenses, including attor- 26 neys ' fees, which DiGIORGIO DEVELOPMENT CORPORATION incurs or may LIT:X-Comp-005 J0132/006 12/12/84 -14- 1 incur in defending against Plaintiffs ' action or in prosecuting 2 this Cross-Complaint; 3 2. For indemnification by INDEPENDENT from and against any 4 damages, liability, loss, costs and expenses, including attor- 5 neys ' fees, which DiGIORGIO incurs or may incur in defending 6 against Plaintiffs ' action or in prosecuting this Cross- 7 Complaint; 8 3. For indemnification by ENGEO from and against any 9 damages, liability, loss, costs and expenses, including attor- 10 neys ' fees, which DiGIORGIO DEVELOPMENT CORPORATION incurs or may 11 incur in defending against Plaintiffs ' action or in prosecuting 12 this Cross-Complaint; 13 4 . For a judicial determination of Cross-Defendants ' 14 responsibility and liability for the damages claimed by Plain- 15 tiffs, if- any there are; 16 5. ' For a declaration of .the amount for which Cross-Defen- s. 17 dants are obligated to indemnify DiGIORGIO if DiGIORGIO 'is com- 18 pelled to pay any sum as a result of any damages, judgment, or 19 other award recovered by Plaintiffs against DiGIORGIO; 20 6. For a declaration that DiGIORGIO DEVELOPMENT CORPORATION 21 is excused from any obligation to indemnify and hold the COUNTY 22 harmless from any liablity to Plaintiffs arising out of the 23 COUNTY's own acts or omissions. 24 7. For a- declaration that the indemnity and hold harmless 25 provision set forth in each Subdivision Agreement is invalid and 26 unenforceable. LIT:X-Comp-005 J0132/006 12/12/84 -15- 1 8. For costs of suit herein incurred; 2 9. For interest on all sums as permitted by law; and 3 10. For such other and further relief as the .Court may.-deem 4 proper. 5 - -Dated: December, - 1984. 6 BERLINER, COHEN & BIAGINI 7 8 By 9 EFS' M. 0 TEA -- tor sf rDetehdants 10 and r SCO plainants DiGIORGI CORPORATION and 11 DiGIORGIO DEVELOPMENT _ .. ... CORPORATION 12 13 - 14 15 16 - 17 18 19 20 21 22 23 24 25 26 LIT:X-Comp-005 J0132/006 12/12/84 -16- 1 PROOF OF SERVICE BY MAIL (CCP 1013a, 2015.5) 2 3 I declare that: 4 I am a citizen of the United States and employed in the County of Santa Clara, State of California; I am over the age of 5 eighteen (18) years and not a party to the within-entitled action; my business address is Union Bank Building - Park Center Plaza, 6 99 Almaden Boulevard, Suite 400, San Jose, California 95113. I On the 17th day of December 19 84 , I served the within 8 CROSS-COMPLAINT BY DiGIORGIO CORPORATION AND DiGIORGIO 9 DEVELOPMENT CORPORATION AND CERTIFICATE OF MERIT 10 11 on the parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon 12 fully prepaid, in the United States mail at San Jose, California, addressed as follows: 13 14 Ned Robinson, Esq. Stark, Stewart, Wells & Robinson 15 Citicorp Savings Plaza 180 Grand Avenue, Suite 1400 16 Oakland, CA 94612 17 Theissen, Gagen & MpCoy P. 0. Box 218 18 Danville, CA 94526 19 20 21 22 23 I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on 24 December 17 19 84 t an Jose. California. 25 26 DEBRA A. ELLIOTT (Type or Print Name) Signature �"..�a:3 CLUX BOARD. OF Summon OF ODrITRA COSTA COUNTY. CALI1?ORNI_A BOARD ACTION Claim Against the County, or District ) NOTICE 70 CLAIMANT May 21, 1985 governed by the Board of Supervisors, ) The copy o s t led 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";el Claimant: Oliver deSilva (Norman D. and Chrisabel B. Frase'rtLlj,� �Oul(� Attorney: Jack T. Friedman APR 18 1995 - Carroll, Burdick & McDonough Address: 49 Quail Court, Suite 300 Martinez, CA 94553 Walnut Creek, CA 94596 Hand delivered Amount: Unspecified By delivery to clerk on April 16, 1985 Date Received: Ap r i 1 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. I Dated: Apri l 17, 19 8 5 PHIL BATCHELOR � ! ., 0R, Clerk, By r �1,-0, Deputy Ann Cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) (T`) 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:4 - By: Deputy County Counsel III. FROM: Clerk of the Board TO: (1) County Counsel, (2) y Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present C>< This claim is rejected in full. ( ) Other: I certify that this is a true and correct cop .of the Board's Order entered in its minutes for his date. Dated: _ PHIL BATCHELOR, Clerk, By o , Deputy Clerk WARNIM (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 70: (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 =t late claim was mailed to claimant. DATED: PHIL BATCHELOR, Clerk, By GAA&Q Deputy Clerk cc: County Administrator (2) County Counsel (1) CLAIM I CARROLL, BURDICK & MCDONOUGH E, ,y COUNSELORS AND ATTORNEYS AT LAW 2 49 QUAIL COURT, SUITE 300 rl•�}7 ��/ l�V J WALNUT CREEK, CALIFORNIA 94596 3 TELEPHONE [415] 945-8579 CE2!: OPxprli iu h:'itSL'::, 5 ATTORNEYS FOR Cross-Defendant OLIVER deSILVA, INC. 6 7 CLAIM AGAINST: COUNTY OF CONTRA COSTA 8 9 TO THE CLERK OF THE BOARD OF SUPERVISORS: 10 OLIVER deSILVA, INC. hereby makes a claim against the 11 County of Contra Costa for an unspecified amount which cannot be 12 ascertained until the conclusion of the litigation to be hereafter 13 described, and makes the following statements in support of the 14 claim: 15 1. Claimant's address is: 22991 Clawiter Road Hayward, California 94540 16 17 2 . Notices concerning claims should be sent to: 18 Jack T. Friedman, Esq. Carroll, Burdick & McDonough 19 49 Quail Court, Suite 300 Walnut Creek, CA 94596 20 21 3. The date and place of the occurrence giving rise to 22 this claim are as follows: On January 23, 1984, a Complaint was 23 filed by Plaintiffs Norman D. and Chrisabel B. Fraser against 24 DiGiorgio Development Corporation, Sycamore Homeowners Association, 25 County of''Contra Costa, -and the City of Danville, in the Superior 26 Court of California, in and for the County of Contra Costa, Martinez , I California, for inverse condemnation, abatement of nuisance and to 2 recover damages allegedly sustained by their property located in-- 3 the City of Danville, commonly described as 30 Ambleside Court, 4 Danville, California which is adjacent to the subdivision commonly 5 known as Sycamore Homes. Plaintiffs allege that the damages to 6 their property were caused by earth and mudslides occurring some 7 time in early Spring, 1983. The Plaintiffs further allege that the 8 cause of the slides was due in part to faulty design and construc- 9 tion of lots adjacent. to their property, some of which were owned 10 by Defendant Sycamore Homeowners Association. 11 Claimant herein was not a named as a Defendant in the 12 Complaint. Instead, on or about January 17, 1985, certain of the 13 Defendants in the action filed by Plaintiffs, DiGiorgio Corporation 14 and DiGiorgio Development Corporation, served a Cross-Complaint on 15 Claimant seeking indemnity for sums expended in defending itself 16 against the Complaint filed by Plaintiffs and for sums which might 17 be expended to satisfy any settlement or judgment rendered against 18 it. Claimant had done certain grading work on behalf of Cross- 19 Complainants at property near that property belonging to Plaintiffs. 20 Cross-Complainants therefore contended that they were entitled to 21 indemnity from Claimant pursuant to a written agreement between the 22 parties. 23 Claimant' s claims against the public entity herein named 24 are based on said public entity' s negligence and other wrongful 25 conduct in maintaining property near Plaintiffs' , in planning, 26 approving and constructing certain public improvements near property -2- h 1 belonging to Plaintiffs and in approving for development a residen- t tial subdivision adjacent to Plaintiffs' property. Claimant is = 3 informed and believes that such conduct by the public entity was a 4 proximate cause of Plaintiffs' alleged damages, if any. 5 4. Claimant' s damages are: Sums not currently known or 6 ascertained resulting from that Cross-Complaint filed by Cross- 7 Complainants DiGiorgio Corporation and DiGiorgio Development Cor- 8 poration in which they claim they are entitled to indemnity for 9 sums expended in their defense and which may be expended to satisfy 10 any settlement or judgment entered in the action entitled Norman D. 11 and Chrisabel B. Fraser v. DiGiorgio Corporation, et al. Claimant 12 herein seeks reimbursement for any judgment or settlement to be 13 assessed or entered against it pursuant to the Cross-Complaint or 14 the underlying Complaint filed by Plaintiffs and litigation costs, 15 attorneys fees and any other expenses incurred in defending against 16 either the Complaint or Cross-Complaint. 17 5. The names of the public employees causing the;: 18 Claimant' s damages are presently unknown. 19 6. The amount of Cross-Complainants or Plaintiffs' 20 claim is unknown but Claimant seeks an agreement from the County of 21 Contra Costa to defend and/or reimburse Claimant for the defense 22 costs, fees and expenses set forth above and for any judgment or 23 settlement to be entered arising out of the matters herein 24 asserted. 25 26 -3- 1 9 . The basis of the computation of Claimant's claim is 2 amounts so far expended for defense costs, fees and expenses, any- 3 such costs, fees and expenses to be incurred in the future, and the 4 amount of any judgment or settlement reached in the action brought 5 by Cross-Complainants or Plaintiffs. 6 DATED: 7 CARROLL, BURDICK & McDONOUGH 8 9 BY J a k T. Friedman 10t orneys for Claimant,IVER deSILVA, INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -4- PROOF OF SERVICE HAND DELIVERED- CCP 1011, 2015.5 1 1 declare that: 2 1 am (a resident of/employed in)the county of...............................Contra...Costa................................................ California. (COUNTY WHERE MAILING OCCURRED) 3 1 am over the age of eighteen years and not a party to the within cause, my (business/residence) address is:....................... 4 .................4.9....Quail.:..Court.,.....Suite....3.0.0.1....WAlnut...Creek,....CA......9.45.9.6.......................................... 5 On ........April....16.1.....1985............................ I served the within .......*.**...................................., ............................................... IDATQ 6 ............................................................................................................... on the ............Party...below....................... ................................ 7 in said cause, by placing a true copy thereof enclosed in a sealed envelope, addressed as follows: 8 9 Fraser v. DiGiorgio, et al. 10 11 Clerk BOARD OF SUPERVISORS 12 COU14TY .OF CONTRA COSTA 651 Pine Street 13 Martinez, CA 94553 14 15 16 *** CLAIM AGAINST: COUNTY OF CONTRA COSTA Underlying Complaint 17 Cross-Complaint 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 April....lb. ....19.8.5 at ....................:Walnut....C .eek........................................, California. ATE) ( ACE) 25 26 ..............Joan...M.....Schl nk............................................. (TYPE OR PRINT NAME) - NATURE ' 1 CURRAN & ALSCHULER, D A Professional Corporation JAN 231984 2 629 Oakland Avenue Oakland , CA 94611 J.R. OLSSON, Countyy Clerk 3 Telephone:. (4 15) 653-7207 D., CONTRA COSTA COUNTk P.MTL —OC—H.0e p uut 4 +� Attorneys for Plaintiffs. 6 I i • 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,. - 9 IN AND FORTHE COUNTY OF`CONTRA COSTA. 10 - Ja�3'�� 11 i! NORMAN D. and CHRISABEL ) No. , iB. FRASER, ) 12 j ) COMPLAINT FOR INVERSE Plaintiffs , ) CONDEIMNATION, ABATEMENT i 1? ) OF NUISANCE , INJUNCTIVE II Vs . ) RELIEF AND DAMAGES DI GIORGIO DEVELOPMENT ) CORPORATION , SYCAMIORE ) HOMZOWNERS :ASSOCIATION , ) 16 ) COUNTY OF CONTRA COSTA, ) CIT`: OF DAN'VILLE , and ) 17 DOES' 1 t.hro;:c;h 20 , ) II Defendants . ) 19 I'• 20 GENERAL- ALLEGATIONS it - 21 �I i . The true names and canacit.ies of defendants sued li 22 as DUES 1 ti:rouc_,ti 20 , in6ividual , corcorate , associate or 2: I� othorwi.se , are unknown to plaintiffs w.h.-) therefore sue them by 24 II fic-.itious names , and will ask le•a.►e of Court to insert the true 25 I name'swhen ascertained. Upon information and belief , plaintiffs 26 allege that, at all times herein mentioned , each of the 27 actually and fictitiously named defendants was the principal , 28 agent; or employee of other actually or fictitiously named 1. i 1 defendants , acting either as such principal , or within the scope 2 and course of such employment or agency, and had some part in 3 the acts or omissions set forth herein by reason of which each 4 of said fictitiously and actually named defendants is liable to 5 -the plaintiffs for the relief prayed for herein. 6 2 . Defendant DI GIORGIO DEVELOPMENT CORPORATION is 7 incorporated in California and at all relevant times did and is i 8 doing business in the State of California in the County of 9 Contra Costa, as :a developer of real property and housing, and 10 has an interest in land relative to this action. 11 3• Defendant COUNTY OF CONTRA COSTA is 'a County of 12 I the State of California , and is the owner of real property and i� imzrovemen:-.s relative to this action. _ �. 4. Plaintiffs , husband and wife , are the owners of 14 I15 rea: property and improvements , including a. single family dwelling, commonly known as 30 Ambleside Co Danville , 16 u i� Ca__ =ornia . 17 5 . Defendant COUNTY OF CONTRA COSTA has an interest 19 in -djacent real propert.y by reason of a conveyance of develop- 20 men— rights by defendant. developer. 6. Plaintiffs are informed and believe and allege 2: i� 22 I1i defendant. DI GIORGIO DEVELOPMENT CORPORATION , a California 4' cor::orat.ion, cut.. , graded , f i l l-ed and did of improvement on 2 �i land in the State of California , County of Contra Costa, de- 24 scribed as : 25 Parcel A, as shown on the Map of Subdivision 4659, 26 which map was filed on July 8, 1976 , in Book 186 27 of Maps , at. page 7 , Contra Costa County Records; { adjacent to the real property of plaintiffs and owned by SYCAMORE 28 HOMEOWNERS ASSOCIATION. 2. 1 7 . Upon the real property df defendant SYCAMORE 2 HOMEOWNERS ASSOCIATION a landslide has occurred adjacent to the 3 real property of' plaintiffs . The landslide is continuing, 4 ii invading the real property of plaintiffs , and threatening s I� damage to and destruction of plaintiffs ' single family dwelling. 6 !I FIRST CAUSE OF ACTION - ABATEMENT OF NUISANCE. i 7 !! 8. The General Allegations are incorporated by g !i reference. 9 9. The occupation, use and maintenance of the i� 10 j': property and improvements of defendants and each of them con- 11 " stitute a nuisance within the maaning of the Civil Code of the 12 State of California, in that they endanger the real. property 1: and improvements of the ?laint.iffs , and constitute a hazard to 14 their safety and health, are frightening and off.:!.:siv.:., to the 1� senses and interfere. with the comfortable use and enjoyment of 16 said property. 1 10. The nuisance affects , at the same time , a 1� - considerable number of persons in the vicinity of plaintiffs ' 19 pro-jort.y , and causes special injury peculiar to the plaintiffs 20 as sot forth above. 2; 11. Defendants , and each of them, have had notice 22 of said nuisance , and have continued and will continue to 23 i; maintain said nuisance; all without the consent, agt. ains ' the i' 24 i� will and in violation- of the rights of the plaintiffs . 25 i 12. .Unless defendants , and each of them, are 26 restrained by order of. this Court it will be .necessary for I . 27 the plaintiffs to commence many successive actions against them 28 requiring a multiplicity of suits , and the plaintiffs are and 3. i will continue to be daily threatened with destruction of their 2 home and real property and improvements. 3 I 13. Unless defendants, and each of them, are enjoined 4 i and restrained from continuing to maintain the nuisance afore- 5 II, said , plaintiffs will be irreparably injured in an amount which r 6 cannot be calculated in terms of money, in that the usefulness 7 i and economic value of their real property and improvements g I will be substantially diminished, and the efforts of plaintiffs q (I to sell or lease said property will- be without avail , and 10 �� plaintiffs are being and will be deprived to a substantial - 11 ii extent of `he use , occupancy; and free enjoyment of their 12 li property. _ 1: The plain_ifFs have no plain, speedyor adequate Ir - 4 �� rer,,ed-, at. law , and injunctive relief is expressly authorized 1= therefor by the Code of Civil Procedure of this St.a`e. i 16 :;HEREFORE, plaintiffs pray judgment against defendants , i; 17 II and each cf there, as follows : .I I, 1` For a judgment declaring that the facts alleged I I . 19 Ii constitute a nuisance , and that defendants be perpetually 20 �! enjoined :.nd restrained from so operating and maintaining their 21 real oropert.y and improvements , or from so using or nermitt.ing �r 22 j� such use of their real pro_eerty and im_orovement.s . I�2 2 . For costs of suit; and �� 24 3. For such other and further relict as t.ho Court �I 25 may deem :roper. 26 SECOND CAUSE OF ACTION - NUISANCE - DAMAGE'S. 27 I As to defendants DI 'GIORGIO DEVELOPMENT CORPORATION, 28 SYCAMORE HOMEOWNERS ASSOCIATION and DOES 1 through 5 , plaintiffs alleoe : 4. ' 1 15. The General Allegations and allegations of the 2 First Cause of Action are incorporated herein by reference. 3 I 16 . As a proximate result of the nuisance alleged , 4 plaintiffs have been and will be damaged in an amount reason- 5 ably necessary for works of reconstruction and repair to their i 6 real property and improvements ; the value of plaintiffs ' prop- 7 erty has been and will be temporarily diminished in substantial I E { amounts , and unless the nuisance is abated, plaintiffs ' property 9 i will be progressively further diminished in value; for the 10 I reasonable cost of repairs and damages to plaintiffs ' property I 11 caused by said nuisance , after the abatement thereof , by the I' 12 ;� necessity of bringing a mulit.iplcity of suits to secure com- 1. pensation for damages sustained , and other damages necessarily i !I flowing from the maintenance of the nuisance. ,r, 15 i 17 . Plaintiffs are informed and believe and there- 16 uoon allecc�. that each an14 every item of damage alleged sub- 17 s�an�tially exceeds $15 , 000 . 00 , according to proof. i . 1F WHEREFORE, plaintiffs .ray judgment against. tr,e 19 de"endant.s charged in this Cause of Action as follows : 2 �( 1. For generall damages against said defendants I 21 I anc each o` them accord_ nig to proof ; 22 I 2 . For spe=cial damages , including costs of repai r 2; it and restoration ,_ d.iminut.ion in property. value , and the like , it 24 ii according to proof. ; { i 25 I 3. For costs of suit; and 26 I 4 . For such other and further relief as the Court �I may deem proper . 27 I 28 I 5 . ] THIRD CAUSE OF ACTION - INVERSE CONDEMNATION. 2 Plaintiffs allege, in reference to defendants COUNTY 3 OF CONTRA COSTA, the CITY OF DANVILLE, and DOES 1 through 5 ; 4 public entities : 5 18. The General Allegations , and those of the First 6 Cause of Action and Paragraph 16 are incorporated herein by reference. 8 19. That the drainage system aforesaid, functioning 9 as conceived, designed and built by said defendants , and each 10 of them, or as accepted by them, is a substantial cause of the 11 nuisance and the damages alleged. 12 WHEREFORE , plaintiffs pray for damages against defendants COU1v'r'i OF CONTRA COSTA, t CITY OF DANVILLE , and 1. DOES 1 through 5 as follows : 1; 1. For general damages ac-=inst. said defendants and 16 each of them accordinc to proof; 17 2 . For special damages , iincluding costs of repair i 18 I and restoration, diminution in Jroporty value, and the lire , 19 according to proof; II1%0 I 3. For costs of suit; anr. 21 j 4 . For such other and fur`.:-,r--r relief as the Court. 22 f may deem proper. 2?, I Dated : January 20 , 1984 . 24 CURRAN S ALSCHULR, r-- A Profess, ionjl _poration 2 26 A - BY i 27 Donald W. Curran Attorneys for Plaintiffs . j 28 6 . ,, j- REPORT OF LOSS -;,:._.t P;.,.� OST 4- c (DIN wHAT STATE DID Loss occuR� .. OTHER THAN AUTG = ��,_:0 POLICE REPORT/WITNESS? YES ❑ NO 4 • r O COMP4NY: ❑ FARMERS / TEXAS-1 ❑ FIRE - 3 ❑ MID-CENTURY NON-AUTO - 4 ❑ TEXAS COUNTY MUTUAL - 5 RUCK - 8 O REPORTED BY ( ) ST. DIST- AGT. PHONE PREFIX POLICY NUMBER SFX LOSS MO DAY YR TIME LOSS OCCURRED Q` POLICY DBTE ( M El ON ON PREMISES ❑ O I TIME LOC' LOCATION NS calo 0- raho ( ) ULAST AME HOME PHONE R 1 ( ) E D ADDRESS CITY ST ZIIP�.ey]J�. BUS.PHONE DESCRIBEnuCCU ira WHAT � r1 HAPPENED �'J t E REPORT AND/OR WITNESSES CITY STATE SHERIFF '•� REPORTED TO: ❑ P011a E) PATROL E] DEPT. DATE REPORTED REPORT NO. WITNESS V w LAST NAME - - FIRST MAY 2J 1 E ADDRESS CITY ZIP 1 r♦ /^i OTHER THAN AUTO - PROPERTY DAMAGE w P ( ) O A lA$T ME FIFAT / ♦ HOME PHONE Do P M ( ) E A A=wr&s C11Y S1 ZIP BUS.PHONE R G T E KIND OF PROPERTY DAMAGED- Y LOCATION- DESCRIBE DAMAGE CR'"VeraZZe net confi" OTHER THAN AUTO - INJURIES I ( ) N VAST NAME FIRST PHONE J , RADDRESS CITY ST ZIP Y NATURE OF INJURY EXTENT OF INJURY TE R R. FOR AGENTS REPORTED TO: ST. DIST. AGENT DATE eco Was policy in force at.time work USE ONLY - PHONE was completed? ASSIGNED TO: CLAIMS REPR. DATE NO. ASSIGNED AGENT: ST. DIST. AGENT O. Was policy in force of time of accident or loss? NAME COVERAGE: ADDRESS REPORTED TO: BCO by DAT nE M 1 DiGIORGIO DEVELOPMENT CORPORATION in that DiGIORGIO CORPORATION 2 controls and dominates the corporate business of DiGIORGIO 3 DEVELOPMENT CORPORATION. which is a mere shell , instrumentality 4 and conduit through which DiGIORGIO CORPORATION carries on its 5 _construction land development and contracting business in a corp- 6 orate form, exercising complete control and dominance of the i 7 business of DiGIORGIO DEVELOPMENT CORPORATION to such an extent g that any individuality or separateness between them never I I 9 existed. Cross-Defendant SYCAMORE alleges further that DiGIORGI0 10 CORPORATION is liable for the acts or omissions of DiGIORGIO 11 DEVELOPMENT CORPORATION. DiGIORGIO denies each and every one of I. 1.2 these. allegations . 13 3. DiGIORGIO is informed and believes, and thereon alleges , 14 that Cross-Defendant SYCAMORE is a non-profit California corpora- 15 tion organized and existing for the benefit of the homeowners of 16 Sycamore, a multi-division planned development , as defined in 17 Section 11003 .1 of the California Business and Professions Code , 18 located in Danville, California. 19 4 . DiGIORGIO is informed and believes, and thereon alleges , 20 that Cross-Defendant ENGEO, INC. ( "ENGEO" ) is a California cor- 21 poration. ENGEO performed soils engineering work for DiGIORGIO 22 on Subdivisions 4232 and 4659 . 23 5. DiGIORGIO is informed and' believes, and thereon alleges , 24 that Cross-Defendant OLIVER DeSILVA, INC. ( "DeSILVA" ) is a Cali- 25 fornia corporation. DiGIORGIO is also informed and believes , and 26 thereon alleges, that DeSILVA is , and at all times mentioned LIT:X-Com -003 P . J0132/009 1 herein was , a contractor , duly licensed under the laws of_ the 2 State of California . DeSILVA performed grading and excavation work for DiGIORGIO on Subdivisions 4232 and 4659 .- 3 . ... _ q 6 . DiGIORGIO is informed and believes, and thereon alleges , 5 : that Cross-Defendant LLOYD J. RODONI & SONS ( "RODONI" ) is a Cali- 6 fornia corporation. DiGIORGIO is also informed and believes , and 7 thereon alleges, that RODONI is, and at all times mentioned here- 8 in was , a contractor , duly licensed under . the laws of the State 9 of California. RODONI performed grading and excavation work .on 10 Subdivisions 4232 and 4659 . 11 7 . Cross-Defendant COUNTY OF CONTRA COSTA ( "COUNTY" ) is a 1.2 I county and political subdivision within the State of California , 13 duly organized and existing under the laws of the State of Cali- 14 fornia. 15 8. DiGIORGIO is informed and believes , and thereon alleges , 16 that Cross-Defendant CITY OF DANVILLE ( "CITY" ) is a public entity 17 and municipality, duly organized and existing under the laws of 18 the State of California. 19 9 . The true names and capacities whether individual , cor- 20 porate, . associate or otherwise of Cross-Defendants DOES 1 through 21 60 , inclusive, are unknown to DiGIORGIO, who therefore sues such 22 Cross-Defendants by such fictitious names . DiGIORGIO is informed 23 and believes, and thereon alleges, that each of the Cross-Defen- 24 dants 'sued herein as DOES 1 through 60 are responsible in some i i 25 manner for the occurrences herein alleged, and that DiGIORGIO' s i 26 damages as herein alleged were proximately caused by such Cross- . i LIT:X-Com -003 P J0132/009 1 Defendants . I 2 10 . DiGIORGIO is informed and believes, and thereon alleges , 3 that at all times relevant herein, Cross-Defendants , and each of 4 them, were the agents , servants and employees of each of the 5 . remaining Cross-Defendants , and in doing the things hereinafter 6 alleged, were acting within the course and scope of such agency, I 7 service and employment . 8 11 . On or about January 23, 1984 , Plaintiffs NORMAN D. and 9 CHRISABEL B. FRASER ( "Plaintiffs" ) filed a Complaint in the 10 Superior Court of the State of California in and for the County 11 I of Contra Costa (Case No. 255353) against DiGIORGIO DEVELOPMENT 12 ( CORPORATION. In their Complaint, Plaintiffs, allege that 13 ( DiGIORGIO DEVELOPMENT CORPORATION, through its acts or omissions , 14 caused certain earth movement which has damaged or imperiled i 15 their property. DiGIORGIO has denied each and every one of these 16 allegations. 17 FIRST CAUSE OF ACTION [Against DeSILVA and DOES 1-10, 18 inclusive, for Express Indemnity) 19 12 . DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- 20 ence as though fully set forth herein each and every allegation 21 contained in Paragraphs 1 through 11 of this Cross-Complaint . 22 13. At all times mentioned herein, DeSILVA and DOES 1 23 through 10, were engaged in the business of land grading and 24 excavation . 2 14 . On or about June 24 , 197&', DiGIORGIO DEVELOPMENT CORPOR- 26 ATION entered into a written agreement with DeSILVA and DOES 1 I I LIT:X-Comp-003 170132/1009 i I I through 10 , inclusive , whereby these Cross-Defendants agreed to 2 supply the materials , labor , and equipment necessary to perform y 3 the grading and excavation work . on Subdivision 4659 . 4 15 . On or about August 14 , 1972 , DiGIORGIO DEVELOPMENT CORP- 5 -ORATION entered into a written agreement with DeSILVA and -DOES .1 b through 10, inclusive, whereby these Cross-Defendant- .agreed -to 7 supply the materials, labor , and equipment necessary to perform 8 the grading and excavation work on Subdivision 4232 . 9 16 . In each of these agreements, DeSILVA and DOES 1 through 10 { 10 , inclusive; agreed to " indemnify and hold [DIGIORGIO DEVELOP- 11 f MENT CORPORATION] harmless from any loss, cost, damage or expense 12 ( including attorneys ' fees) arising out of any accident or other 13 occurrence causing injury to any person or property due directly 14 or indirectly to [Cross-Defendants ' ] work" . 15 17 . Should Plaintiffs recover , by way of settlement or judg- 16 ment, any damages from DiGIORGIO DEVELOPMENT CORPORATION, these 17 damages would be caused primarily and ultimately by Cross-Defen- 18 dants ' active negligence and their failure to properly perform 19 their obligations under their contract with DiGIORGIO DEVELOPMENT 20 CORPORATION. Any liability of DiGIORGIO DEVELOPMENT CORPORATION 21 for these damages would arise, not as a result of any active 22 fault on its part , but solely because it previously owned and 23 developed Subdivisions 4232 and 4659 . Accordingly, Cross-Defen- 24 dants are obligated to hold harmless and indemnify DiGIORGIO 25 DEVELOPMENT CORPORATION from and against any damages , liability, i 26 loss , costs, and expenses , including attorneys ' fees , which it , LIT:X-Comp-003 J0132/009 1 I I has incurred or may incur in defending against Plaintiffs ' action Y 9 9 2 or in prosecuting this Cross-Complaint . 3 WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 4 as hereafter set forth. f 5 SECOND CAUSE OF ACTION [Against ENGEO and DOES 11 through 20, 6 inclusive, for Implied Indemnity] 7 18. DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- 8 ence as though fully set forth herein each and every allegation 9 contained in Paragraphs 1 through 11 of this Cross-Complaint . 10 i 19 . On or about April 1, 1976, DiGIORGIO DEVELOPMENT CORPOR- 11 I ATION entered into an oral agreement with Cross-Defendants ENGEO 12 and DOES 11 through 20, inclusive, whereby these Cross-Defendants 13 agreed to investigate the soils conditions existing on Subdivi- 14 1, sion 4659 and to provide recommendations for the grading and 15 , drainage thereof. 16 20. DiGIORGIO DEVELOPMENT CORPORATION also entered :into an 17 oral agreement with Cross-Defendants ENGEO and DOES 11 through 18 20, inclusive, whereby these Cross-Defendants agreed to investi- 19 gate the soils conditions existing on Subdivision 4232 and to 20 provide recommendations for the grading and drainage thereof . 21 I 21 . Should Plaintiffs recover , by way of settlement or judg- 22 I ment , any damages from DiGIORGI0 DEVELOPMENT CORPORATION these 23 damages would be caused primarily and ultimately by Cross-Defen- 24 dants ' active negligence an(;' their failure to properly perform 25 their obligations under their contract with DiGIORGIO DEVELOPMENT 26 CORPORATION Any liability of DiGIORGIO DEVELOPMENT CORPORATION LIT:X-Comp-003 i J0132/009 A I any kind allegedly suffered, incurred or threatened because of actions defined below, 2 and including personal injury, death, property damage, inverse condemnation, or any combina- .3 tion of these, and regardless of whether or not such liability, claim or damage was 4 unforeseeable at any time before the County approved the improvement plan or accepted the 5 improvements as completed , - and including the defense of any suit (s ) , action(s ) or other 6 proceeding ( s) concerning these . 7 C. The actions causing liability are any act or omission (negligent or non-negli- 8 gent ) in connection with the matters covered by this Agreement and attributable to the 9 I subdivider , contractor , subcontractor , or any officer , agent or employee of one or more of 10 them.- 11 hem:11 I D. Non-Conditions: The promise and I. agreement in this section is not conditioned 12 or dependent upon whether or not any Indem- nitee has prepared, supplied or approved any 13 plan( s ) or specification( s ) in connection with this work or subdivision, or has insurance or 14 other indemnification covering any of these matters, or that the alleged damage resulted 15 partly from any negligent or willful miscon- duct of any Indemnitee . 16 31 . There is implied in every contract , including the Sub- 17 ' division Agreements described above , a covenant of good faith .and 18 fair dealing. This covenant requires that neither party do any- 19 thing which would deprive the other of the benefits of the agree- 20 ment. 21 32. This covenant required Cross-Defendants not do anything 22 which would give rise to any obligation of DiGIORG10 DEVELOPMENT 23 . CORPORATION to indemnify and hold them harmless. 24 33. The earth movement described in Plaintiffs ' Complaint 25 was caused, in whole or in part , by the willful or negligent acts 26 LIT:X-Comp-003 .Tni 'i,) inns �I i 1 I or omissions of Cross-Defendants . j I 2 34 . Cross-Defendants have demanded that DiGIORGIO DEVELOP- 3 MENT CORPORATION indemnify and hold them harmless should they be j I 4 held liable for any personal injury or property damage resulting 5 - from the earth movement described in Plaintiffs ' Complaint . ' 1 6 35. An actual controversy has arisen and now exists between 7 i DiGIORGIO DEVELOPMENT CORPORATION and Cross-Defendants concerning 8 their respective rights and duties. y (a) DiGIORGIO DEVELOPMENT CORPORATION contends that 10 i Cross-Defendants contractually breached the covenant of good 11 faith and fair dealing when they caused through their own acts or I 1.2 omissions the earth movement described in Plaintiffs ' Com- 13 ! plaint . DiGIORGIO DEVELOPMENT CORPORATION contends further that 14 this breach excuses any obligation which it may have to indemnify 15 and hold Cross-Defendants harmless should Cross-Defendants be I 16 j held liable for any personal injury or property damage resulting i 17 from the earth movement described in Plaintiffs ' Comp-aint . 18 Cross-Defendants dispute these contentions and contend that 19 I DiGIORGIO DEVELOPMENT CORPORATION is obligated to indemnify and I ' 20 i hold them harmless. 21 i (b) DiGIORGIO DEVELOPMENT CORPORATION contends that any 22 . i condition which a public entity imposes as a condition precedent I 23 to its approval of a subdivision map must be reasonable and 24 relate to the purposes of the Subdivision Map Act (Cal .Gov. Code 25 i §66410 et sec. ) to reaul ate the desian, imorovemernr and uses of 26 i the subdivision for the safety and welfare of the lot owners and LIT:X-Coro-003 J0132/009 ! t , i i 1 the public. DiGIORGIO DEVELOPMENT CORPORATION contends further i that the indemnity and hold harmless provision set forth in para- ' 2 ` Y P ; 3 i graph 36 is invalid and unenforceable because it is not reason- ' 4 able nor is it related to the purposes of the Subdivision Map I 5 I.-Act . Cross-Defendants dispute these contentions and contend that 6 this indemnity and hold harmless provision is valid and enforce- I 1 7 ( able. 8 ! 36 . DiGIORGIO DEVELOPMENT CORPORATION desires a judical I 9 determination of its rights and duties . It desires a declaration i i 10 1 as to whether it is excused from any obligation to indemnify and j 11 hold Cross-Defendants harmless should Cross-Defendants be held 12 liable for any Personal injury or property damage resulting from I I� 13 ! the earth movement described in Plaintiffs ' Complaint . DiGIORGiO 14 DEVELOPMENT CORPORATION also denies a declaration as to whether I ! 15 the indemnity and hold harmless provision is invalid and i 16 I unenforceable. 17 37 . A judicial declaration is necessary and appropriate at i 18 i this time so that DiGIORGIO DEVELOPMENT CORPORATION may ascertain 19 whether it has any obligation to indemnify and hold Cross-Defen- 20 ; dants harmless should Cross-Defendants be held liable for any i 21 personal injury or property damage resulting from the earth move- 22 ment described in Plaintiffs ' Complaint . I 23 i WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 24 as hereafter set forth. 25 I; FIFTH CAUSE OF ACTION [Against SYCAIMORE and DOES 51 through 60 , 26 inclusive, For Declaratory Reliefl LIT:X-Como_ -003 J0132/009 38 . DiGIORGIO incorporates by reference as though fully set 2 forth herein each and every allegation contained in Paragraphs 1 3 through 11 of this Cross-Complaint . 4 39 . One of the common areas within Subdivision 4659 -is ' . i 5 ; denominated "Parcel A. " Parcel A is more particularly described 61 i at Page 8 of Book 186 of Maps . 7 40 . Earth movement has occurred on Parcel A which has 8 damaged several adjacent properties . Several of the owners of 9 i these adjacent properties, including the Plaintiffs herein, have 10 brought suit against SYCAMORE and DiGIORGIO as a result of the 11 damage to their properties . Each of these property owners seek I 12 i damages in an amount which exceeds $15 , 000. 13 41 . An actual controversy has arisen and now exists between 14 SYCAMORE and DiGIORGIO concerning the ownership of Parcel A. 15 i SYCAMORE contends that it never accepted from DiGIORGIO the deed 16 to Parcel A and, consequently, that it does not hold legal title 17 I i to the property. DiGIORGIO is informed and believes , and thereon I 18 i alleges , that SYCAMORE contends further that is is not liable to ' 19 adjacent property owners for any property damage or personal 20 ; i 21 I injury resulting from earth movement on Parcel A since it has f never held legal title to Parcel A. DiGIORGIO disputes these 22 I contentions and contends that SYCAMORE does hold legal title to 23 i Parcel A and, consequently, that SYCAMORE is liable for all prop- 24 erty damage and personal injury resulting from earth movement on 25 I Parcel A. 26 I i LIT:X-Comp-003 J0132;009 1 42 . DiGIORGIO desires a judical determination of its rights 2 and duties, and a declaration as to whether SYCAMORE or DiGIORGIO I 3 holds legal title to Parcel A. 4 43 . A judicial declaration is necessary and appropriate at 5 _this time so that DiGIORGIO may ascertain who holds legal title 6 to Parcel A and whether SYCAMORE or DiGIORGIO is liable for the 7 property damage and personal injury resulting from the earth 8 movement on Parcel A. 9 WHEREFORE, DiGIORGIO prays judgment as hereafter set forth. 10 SIXTH CAUSE OF ACTION j [Against the COUNTY and DOES 4i through 50 , 11 inclusive, for Inverse Condemnation ] i 12 44 . DiGIORGIO incorporates by reference as though fully set 13 i forth herein- each and every allegation contained in Paragraphs 1 14 j, through 11 and 39 through 43 of this Cross-Complaint. 15 I 45 . DiGIORGIO dedicated to and Cross-Defendants COUNTY and i 16 DOES 41 through 50., inclusive, accepted for public use and bene- 17 fit the drainage easements and drainage systems on Parcel A and 18 i properties adjacent thereto. 19 46 . DiGIORGIO is informed and believes , and thereon alleges , 20 that Cross-Defendants failed to properly maintain these drainage 21 easements and drainage systems . 22 1 47 . DiGIORGIO is also informed and believes, and thereon 23 i alleges, that earth movement occurred on Parcel A as a proximate 24 .! result -of Cross-Defendants' failure to properly maintain these 25 ! drainage easements and systems . 26 48. As a proximate result of this earth movement , the fair I ITIT• X-COmD-003 � J0132/009' i 1 market value of Pa.-cel A has been diminished in an amount accord- 2 ing to proof , but exceeding $15 , 000 . As a further proximate 3 result of this earth movement, whoever holds legal title to 4 Parcel A shall incur costs and expenses to repair Parcel A in an 5 -amount according to proof, but exceeding .$15,000 . . - 6 49 . Should the Court find that DiGIORGIO holds legal title 7 to Parcel A, DiGIORGIO would be entitled to recover these damages g from Cross-Defendants under a theory of inverse condemnation. 9 DiGIORGIO would also be entitled to recover its reasonable . costs , 10 disbursements -and expenses , including, but not limited to, attor- 11 neys ' , engineering and appraisal fees . 12 WHEREFORE, DiGIORGIO prays judgment against Cross-Defendants 13 as follows : 14 rI 1 . For indemnification by DeSILVA fromand against any 15 I damages , liability, loss , costs and expenses ,. including attor- 16 neys ' fees, which DiGIORGIO DEVELOPMENT CORPORATION incurs or may 17 incur in defending against Plaintiffs ' action or in prosecuting 18 this Cross-Complaint ; 19 2. For indemnification by ENGEO from and against any 20 damages, liability, loss, costs and expenses , including attor- 21 neys ' fees, which• DiGIORGIO DEVELOPMENT CORPORATION incurs or may 22 incur in defending against Plaintiffs ' action or in prosecuting 23 I this Cross-Complaint; 24 3. ' For a judicial determination of Cross-Defendants ' 25 responsibility and liability for the damages claimed by Plain- 26 tiffs, if any there are; LIT:X-Comp-003 J0132/009 j 1 4 . For a declaration of the amount for which Cross-Defen- 2 dants are obligated to indemnify DiGIORGI0 if DiGIORGIO is com- 3 pelted to pay any sum as a result of any damages, judgment , or i 4 other award recovered by Plaintiffs against DIGIORGIO; ! 5 5. For a declaration that DiGIORGIO DEVELOPMENT CORPORATION 6 is excused from any obligation to indemnify and hold the COUNTY 7 harmless from any liablity to Plaintiffs arising out of the 8 COUNTY' s own acts or omissions . 9 6. For a declaration that the indemnity and hold harmless 10 1 provision set forth in each Subdivision Agreement is invalid and 11 1 unenforceable. 12 ! 7 . For a declaration that SYCAMORE holds legal title to 13 Parcel A; 14 ;' 8. Should the Court find that DiGIORGIO holds legal title f I 15 to Parcel A, for damages for inverse condemnation. These damages 16 would include the diminution in fair market value of the property i 17 ; and the cost and expense to repair Parcel A. DiGIORGIO would i 18 also be entitled to recover its reasonable costs, disbursements 19 and expenses, inclining, but not limited to, attorneys ' , engi- i 20 i neering and appraisal fees . 21 -9 . For costs of suit herein incurred; 22 permitted b law; and 10 . For interest on all sums as y I � 23 11 . For such other and further relief as the Court may deem 24 proper .' 25 Dated: December , 1984 . 26 i LIT:X-Comp-003 J0132/009 I _ I 1 BERLINERCOHEN & IAG NI i 2 � I BY ; 3 _ JEF Y FORrSTER Att s for Defendant 4 ro -Complainant DiGIORGIO DEVELOPMENT 5 - . - CORPORATION. . _ I 6 7 { i 8 9 i 10 i 11 i 12 13 r � • 14 15 ' 16 17 ( ' 18 !I 19 4 20 21 i 22 23 I S 24 I' 25 j I ' 26 1 LIT:X-Comp-003 I J0132:/009 i 1 !, PROOF OF SERVICE BY MAIL ( (CCP 1013a , .2015.5) 2 / 3 I declare that: 4 ! I am a citizen of the United States and employed in the County of Santa Clara, State of California; I an over the age of 5 eighteen (18) years and not a party to the within-entitled action; my business address is Union Bank Building - Park Center Plaza, 6 99 Almaden Boulevard, Suite 400 , San Jose, California 95113 . 7 i On the 17th day of December 19 84 I served the within 8 I CROSS-COMPLAINT BY DiGIORGIO CORPORATION AND DiGIORGIO 9 DEVELOPMENT CORPORATION AND CERTIFICATE OF MERIT 10 11 on the parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon 12 fully prepaid, in the United States mail at San Jose, California, addressed as follows: 13i Donald W. Curran, Esq. 14 F Curran & Alschuler 629 Oakland Avenue 15 Oakland, CA 94611 7 16 i Timothy J. Ryan, Esq. 17 �, Gordon, DeFraga, Watrous & Pezzaglia, Inc. 611 Las Juntas Street 18 P. 0. Box 630 Martinez, CA 94553 19 20 I 21 Ij 22 i" 23 �': I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on 24 is December 17 19 84 ak San Jose. California. 25 26 ! DEBRA A. ELLIOTT f� Y . (Type or Print Name) Signature i BOARD OF SDPFRVISORS OF dMW COSTA amm, CALIFORNIA - BOARD ACTION Claim Against the County, or District ) NOTICE 70 CL.ADEW May 21, 1985 governed by the Board of Supervisors, ) ibe copy oeWitt mailed to you is your Routing Wwsements, 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 Goverment Code Section 913 and 915.4. Please note ali Varnings". Claimant: Oliver deSilva (Charles & Michelle Claussen) County Counsel Attorney: Jack T. Friedman APR 18 1985 -Carroll, Burdick & McDonough Address: 49 Quail Court, Suite 300 Maftl0°Z' CA 94553 Walnut Creek, CA 94596 Hand delivered Amount: Unspecified By delivery to clerk on April 16, 1985 Date Received: Ap r i 1 16, 1985 By mail, postmarked on I. : Clerk of the Board of Supervisors T0: County Counsel Attached is a copy of the above-noted claim. Dated: Apri 1 17, 19 8 5 PHIL BATCHELOR, Clerk, By _C.LDeputy Ann Cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( . ) lois 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: �I By: Deputy County Counsel III. FROM: Clerk of the Board 10: (1) County Counsel, (2) County Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD WDER By unanimous vote of Supervisors present This claim is rejected in full. ( ) Other: I certify that this is a true and correct cop of the is rer entered in its minutes for this date. Dated: _ PHIL BATCHUM, Clerk, By , Deputy Clerk WATOM (Gov. Code Section 913) Subject to certain szoeptions. 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 70: (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 1 e to elsent late claim was mailed to claima t. DATED: - PHIL BATCHELOR, Clerk, By `� , Deputy Clerk cc: County Administrator (2) County Counsel (1) MAW 1 CARROLL, BURDICK & MCDONOUGH COUNSELORS AND ATTORNEYS AT LAW 2 49 QUAIL COURT. SUITE 300 WALNUT CREEK. CALIFORNIA 94596 3 TELEPHONE (415] 945.8579 ma BAMiELO^ ILI4 e 5 ATTORNEYS FOR Cross-Defendant OLIVER deSILVA, INC. 6 7 CLAIM AGAINST: COUNTY OF CONTRA COSTA 8 9 TO THE CLERK OF THE BOARD OF SUPERVISORS: 10 OLIVER deSILVA, INC. hereby makes a claim against the 11 County of Contra Costa for an unspecified amount which cannot be 12 ascertained until the conclusion of the litigation to be hereafter 13 described, and makes the following statements in support of the 14 claim: 15 1. Claimant' s address is: 22991 Clawiter Road Hayward, California 94540 16 17 2. Notices concerning claims should be sent to: 18 Jack T. Friedman, Esq. Carroll, Burdick & McDonough 19 49 Quail Court, Suite 300 Walnut Creek, CA 94596 20 21 3. The date and place of the occurrence giving rise to 22 this claim are as follows: On March 21, 1984, a Complaint was 23 filed by Plaintiffs Charles Claussen and Michelle Claussen, in the 24 Superior Court of California in and for the County of Contra Costa, 25 Martinez, California, against DiGiorgio Development Corporation, 26 Sycamore Homeowners Association, County of Contra Costa, City of 1 Danville and St. Paul Fire & Marine Insurance Company, for inverse 2 condemnation, abatement of nuisance and to recover damages alleg- 3 edly sustained to their property located in the City of Danville, 4 commonly described as 24 Ambleside Court, Danville, California, 5 which is adjacent to the subdivision commonly known as Sycamore 6 Homes. The causes of action in the Complaint are based on damages 7 allegedly sustained by Plaintiffs' property which were allegedly g caused by earth and mudslides occurring some time in early Spring, 9 1983. Plaintiffs' Complaint was amended in or about September, 10 1984, when they filed their First Amended Complaint, again for 11 inverse condemnation, abatement of a nuisance and for damages their 12 property sustained as a result of a mudslide and earth movement 13 activity occurring near their residence in early Spring, 1983. 14 Plaintiffs alleged in part that the cause of the slide was due to 15 faulty design and construction of lots adjacent to its property 16 which were developed by DiGiorgio Development Corporation. The 17 slide itself allegedly occurred on property owned by Sycamore 18 Homeowners Association. 19 Claimant herein was not named as a Defendant in either 20 the original Complaint or the First Amended Complaint. Instead, on 21 or about January 17, 1985, certain of the Defendants in the action 22 filed by Plaintiffs, DiGiorgio Corporation and DiGiorgio Develop- 23 ment Corporation, served a Cross-Complaint on Claimant seeking 24 indemnity for sums expended in defending itself against the Com 25 plaint filed by Plaintiffs and for sums which might be expended to 26 satisfy any settlement or judgment rendered against them. Claimant -2- 1 had done certain grading work on behalf of Cross-Complainants at 2 property near that property belonging to Plaintiffs. Cross-Com- 3 plainants therefore contended that they were entitled to indemnity , 4 from Claimant pursuant to a written agreement between the parties. 5 Claimant's claims against the public entity herein named 6 are based on said public entity's negligence and other wrongful 7 conduct in maintaining property near Plaintiffs' , in planning, 8 approving and constructing certain public improvements near property 9 belonging to Plaintiffs and in approving for development a residen- 10 tial subdivision adjacent to Plaintiffs' property. Claimant is 11 informed and believes that such conduct by the public entity was a 12 proximate cause of Plaintiffs' alleged damages, if any. 13 4. Claimant' s damages are: Sums not currently known or 14 ascertained resulting from that Cross-Complaint filed by Cross- 15 Complainants DiGiorgio Corporation and DiGiorgio Development Corpor- 16 ation in which they claim they are entitled to indemnity for sums 17 expended in their defense and which may be expended to satisfy any 18 settlement or judgment entered in the action entitled Charles 19 Claussen�and Michelle Claussen v. DiGiorgio Corporation, et al. 20 Claimant herein seeks reimbursement for any judgment or settlement 21 to be assessed or entered against it pursuant to the Cross-Complaint 22 or the underlying Complaint filed by Plaintiffs and litigation 23 costs, attorneys fees and any other expenses incurred in defending 24 against either the Complaint or Cross-Complaint. 25 5. The names of the public employees causing the 26 Claimant' s damages are presently unknown. -3- 1 6 . The amount of Cross-Complainants' or Plaintiffs ' 2 claim is unknown but Claimant seeks an agreement from the County of 3 Contra Costa to defend and/or reimburse Claimant for the defense 4 costs, fees and expenses set forth above and for any judgment or 5 settlement to be entered arising out of the matters herein 6 asserted. 7 7. The basis of the computation of Claimant' s claim is 8 amounts so far expended for defense costs, fees and expenses, any 9 such costs, fees and expenses to be incurred in the future, and the 10 amount of any judgment or settlement reached in the action brought 11 by Cross-Complainants or Plaintiffs. 12 DATED: 13 CARROLL, BURDICK & McDONOUGH 14- 15 By 16 rk T. Friedman A torneys for Claimant IVER deSILVA, INC. 17 18 19 20 21 22 23 24 25 26 -4- PROOF OF SERVICE HAND DELIVERED- CCP 1011, 2015.5 1 1 declare that: C 2 I am (a resident of/employed in)the county of.....:................................ont..........ra....Costa..................................................California. _ •, (COUNTY WHERE MAILING OCCURRED( 3 1 am over the age of eighteen years and not a party to the within cause; my (business/residence) address is: ....................... 4 49 Quail Court, Suite .300, Walnut Creek, CA 94596 .... . ..................................................................... A ril 16, 1985 *** 5 On ...........p (.........................DAT.yD...........I..........................., Iserved the within ..................................................................................................... 6 ............................................................................................................... on the ..........party...below ......................................................... 7 in said cause, by placing a true copy thereof enclosed in a sealed envelope, addressed as follows: 8 9 Claussen V. DiGiorgio, et al. 10 11 Clerk BOARD OF SUPERVISORS 12 COUNTY OF CONTRA COSTA 651 Pine Street 13 Martinez, CA 94553 14 15 16 *** CLAIM AGAINST: COUNTY OF CONTRA COSTA Underlying Complaint 17 Cross-Complaint 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 April...16./�....19.8.5................................... at .....................Walnut...Creek......................................... California. TDATE7 (PLACE) 25 26 S (TYPE OR PRINT NAMD SIGNATURE r• a 1 JEFFREY M. FORSTER BRIAN J. HANNON ' 2 BERLINER, COHEN & BIAGINI 99 ALMADEN BLVD. , SUITE 400 C :: 3 SAN JOSE, CA 95113 TELEPHONE: (408) 286-5800 r �0M 4 5 ATTORNEYS FOR DEFENDANT DiGIORGIO DEVELOPMENT CORPORATION AND CROSS- 6 COMPLAINANTS DiGIORGIO CORPORATION AND DiGIORGIO DEVELOPMENT CORPORATION 7 8 SUPERIOR COURT OF CALIFORNIA, -COUNTY OF CONTRA COSTA 9 10 ) NO. 257536 CHARLES CLAUSSEN, et al. , ) 11 ) FIRST AMENDED CROSS-COMPLAINT Plaintiffs, ) BY DiGIORGIO CORPORATION 12 ) AND DIGIORGIO DEVELOPMENT VS. ) CORPORATION 13 ) DiGIORGIO DEVELOPMENT COR- ) 14 PORATION, a California cor- poration, et al. , ) 15 ) Defendants. ) 16 ) 17 DiGIORGIO CORPORATION, a ) Delaware corporation, and ) 18 DiGIORGIO DEVELOPMENT COR ) PORATION, a Delaware ) 19 corporation, ) 20 Cross-Complainants, ) 21 vs. ) 22 SYCAMORE HOMES ASSOCIATION, ) a California corporation, ) 23 ENGEO, INC. , a California ) corporation, OLIVER DeSILVA, ) 24 INC. , a California corpora- ) tion, COUNTY OF CONTRA ) 25 COSTA, LLOYD J. RODONI AND ) SONS, a California corpora- ) 26 tion, TOWN OF DANVILLE, and ) LIT:X-Comp-006 J0132/010 12/12/84 -_- 1 , 1 DOES 1 through 60, inclusive, ) 2 Cross-Defendants. ) 3 ) AND RELATED CROSS-ACTIONS. ) 4 ) 5 Cross-Complainants DiGIORGIO CORPORATION and DIGIORGIO DEVEL- 6 OPMENT CORPORATION (sometimes hereafter referred to collectively 7 as "DIGIORGIO" ) allege as follows: 8 GENERAL ALLEGATIONS 9 1. DiGIORGIO CORPORATION is a corporation existing under 10 the laws of the State of Delaware, with its principal place of 11 business in San Francisco, California. 12 2. DiGIORGIO DEVELOPMENT CORPORATION is a corporation 13 existing under the laws of the State of Delaware, with its prin- 14 cipal place of business in San Francisco, California. It is a 15 wholly owned subsidiary of DiGIORGIO CORPORATION. DiGIORGIO 16 DEVELOPMENT CORPORATION previously owned and developed Subdivi- 17 sion 4232. The map of 'this subdivision was recorded with the 18 Recorder of the County of Contra Costa on January 24, 1973 at 19 Book 253 of Maps, pages 49 through 52. DiGIORGIO DEVELOPMENT 20 CORPORATION also previously owned and developed Subdivision 21 4659 . The map of, this subdivision was recorded with the Recorder 22 of the County of Contra Costa on July 8, 1976 at Book 286 of 23 Maps, pages 7 through 9 . Cross-Defendant SYCAMORE HOMES ASSOCI- 24 ATION (SYCAMORE" ) has filed a Complaint in the Superior Court of 25 the State of California in and for the County . of Contra Costa 26 (Case No. 248025) against DiGIORGIO. In that Complaint, SYCAMORE LIT:X-Comp-006 J0132/010 12/12/84 -2- 1 alleges that DiGIORGIO CORPORATION is the alter ego of DiGIORGIO 2 DEVELOPMENT CORPORATION in that DiGIORGIO CORPORATION controls 3 and dominates the corporate business of DiGIORGIO DEVELOPMENT 4 CORPORATION which is a mere shell, instrumentality and conduit 5 through which- DiGIORGIO - CORPORATION - carries on its construction 6 land development and contracting business in a corporate form, 7 exercising complete control and dominance of the business of 8 DiGIORGIO DEVELOPMENT CORPORATION to such an extent that any 9 individuality or separateness between them never existed. Cross- 10 Defendant SYCAMORE alleges further that DiGIORGIO CORPORATION is 11 liable for the acts or omissions of DiGIORGIO DEVELOPMENT 12 CORPORATION. DiGIORGIO denies each and every one of .. these 13 allegations. - 14 3 . DiGIORGIO is informed and believes, and thereon alleges , 15 that Cross-Defendant SYCAMORE is a non-profit California corpora- 16 tion organized and existing for the benefit of the homeowners of 17 Sycamore, a multi-division planned development, as defined in 18 Section 11003.1 of the California Business and Professions Code, 19 located in Danville, California. 20 4 . DiGIORGIO is informed and believes, and thereon alleges, 21 that Cross-Defendant ENGEO, INC. ( "ENGEO" ) is a California cor- 22 poration. ENGEO performed soils engineering work for DiGIORGIO 23 DEVELOPMENT CORPORATION on Subdivisions 4232 and 4659 . 24 5 . DiGIORGIO is informed and believes, and thereon alleges, 25 that Cross-Defendant OLIVER DeSILVA, INC. ( "DeSILVA" ) is a Cali- 26 fornia corporation. DiGIORGIO is also informed and believes, and LIT:X-Comp-006 J0132/010 12/12/84 -3- 1 thereon alleges, that DeSILVA is, and at all times mentioned 2 herein was, a contractor, duly licensed under the laws of the 3 State of California. DeSILVA performed grading and excavation 4 work for DiGIORGIO DEVELOPMENT CORPORATION on Subdivisions 4232 5 and 4659. 6 6. DiGIORGIO is informed and believes, and thereon alleges, 7 that Cross-Defendant LLOYD J. RODONI, & SONS ( "RODONI" ) is a Cali- 8 fornia corporation. DiGIORGIO is also informed and believes, and 9 thereon alleges, that RODONI is, and at all times mentioned here- 10 in was, a contractor, duly licensed under the laws of the State 11 of California. RODONI performed grading and excavation work on 12 Subdivisions 4232 and 4659. . 13 7 . Cross-Defendant COUNTY OF CONTRA COSTA ( "COUNTY" ) is a 14 county and political subdivision within the State of California, 15 duly organized and existing under the laws of the State of Cali- 16 'fornia. ' 17 8. DiGIORGIO is informed and believes, and thereon alleges, 18 that Cross-Defendant CITY- OF DANVILLE ( "CITY" ) is a public entity 19 and municipality, duly organized and existing under the laws of 20 the State of California. 21 9 . The true, names and capacities whether individual, cor- 22 porate, associate or otherwise of Cross-Defendants DOES 1 through 23 60, inclusive, are unknown to DiGIORGIO, who therefore sues such 24 Cross-Defendants by such fictitious names. DiGIORGIO is informed 25 and believes, and thereon alleges , that each of the Cross-Defen- 26 dants sued herein as DOES 1 through 60 are responsible in some LIT:X-Comp-006 J0132/010 12/12/84 -4- 1 manner for .the occurrences herein alleged, and that . DiGIORGtO' s 2 damages as herein alleged were proximately caused by such Cross- 3 Defendants. - - 4 10. DiGIORGIO is informed and believes, and thereon alleges, 5 that at all times relevant herein, Cross-Defendants, and each of 6 them, were the agents, servants and . employees of each of the 7 remaining Cross-Defendants, and in doing the -things hereinafter 8 alleged, were acting within the course and scope of such agency, 9 service and employment. 10 11. On or about October 11, 1984, Plaintiffs CHARLES 11 CLAUSSEN and MICHELLE CLAUSSEN ( "Plaintiffs" ) filed -a First 12 Amended Complaint in the Superior Court of the State of Cali- 13 fornia in and -for- the County of Contra Costa (Case No. 257536 ) 14 against DiGIORGIO DEVELOPMENT CORPORATION. In their Complaint , 15 Plaintiffs allege that DiGIORGIO DEVELOPMENT CORPORATION, through 16 its acts or omissions, caused certain earth movement which has 17 damaged or imperiled their property. DiGIORGIO has denied.."each 18 and every one of these -allegations. On •or about October 23, 19 1984, Defendant and Cross-Complainant COUNTY filed a Cross- 20 Complaint in the above-entitled action against DiGIORGIO.. In its 21 Cross-Complaint, the COUNTY alleges that DiGIORGIO has an obliga- 22 tion to indemnify it should it be liable to Plaintiffs . 23 DiGIORGIO has denied each and every one of these allegations. 24 FIRST CAUSE OF .ACTION (Against DeSILVA and DOES 1-10 , 25 inclusive, for Express Indemnity] 26 12 . DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- LIT:X-Comp-006 J01321010 12/12/84 -5- 1 ence as though fully set forth herein each and every allegation - 2 contained in Paragraphs 1 through 11 of this Cross-Complaint. 3 13. At all times mentioned herein, DeSILVA and DOES 1 4 through 10, were engaged in the business of land grading and 5 excavation. 6 14. On or about June 24, 1976, DiGIORGIO DEVELOPMENT CORPOR- 7 ATION entered into a written agreement with DeSILVA and DOES 1 8 through 10, inclusive, whereby these Cross-Defendants agreed to 9 supply the materials, labor, and equipment necessary to perform 10 the grading and excavation work on Subdivision 4659. 11 15. On or about. August 14, 1972, DiGIORGIO DEVELOPMENT COR- 12 PORATION entered into a written agreement with DeSILVA and DOES 1 13 through 10, inclusive, whereby these Cross-Defendants agreed to 14 supply the materials, labor, and equipment necessary to perform 15 the grading and excavation work on Subdivision 4232 . 16 16. In each of these agreements, DeSILVA and DOES 1 through 17 10, inclusive, agreed to "indemnify and hold [DiGIORGIO DEVELOP- 18 MENT CORPORATION] harmless from any loss, cost, damage or expense 19 ( including attorneys ' fees) arising out of any accident or other 20 occurrence causing injury to any person or property due directly 21 or indirectly to jCross-Defendants ' ] work" . 22 17. Should Plaintiffs recover , by way of settlement or judg- 23 ment, any damages from DiGIORGIO DEVELOPMENT CORPORATION, these 24 damages would be caused primarily and ultimately by Cross-Defen- 25 dants ' active negligence and their failure to properly perform 26 their obligations under their contract with DiGIORGIO DEVELOPMENT LIT:X-Comp-006 J0132/010 12/12/84 -6- 1 CORPORATION. Any liability. of DiGIORGIO DEVELOPMENT CORPORATION 2 for these damages would arise, not as a result of any active 3 fault on its - part, but solely because it previously owned-.:-and 4 developed Subdivisions 4232 and 4659 . Accordingly, Cross-Defen- 5 dants are obligated to hold harmless and indemnify DiGIORGIO 6 DEVELOPMENT CORPORATION from and against any damages,. liability, 7 loss, costs, and expenses, including attorneys ' fees, which.- it 8 has incurred or may incur in defending against Plaintiffs ' action 9 or in prosecuting this Cross-Complaint. 10 WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 11 as hereafter set forth.. 12 SECOND CAUSE OF ACTION _ [Against ENGEO and DOES 11 through 20 , 13 inclusive, for Implied Indemnity] 14 18. DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer:- 15 ence as though fully set forth herein each and every allegation 16 contained in Paragraphs 1 through 11 of this Cross-Complaint. 17 19. On or about April 1, 1976 , DiGIORGIO DEVELOPMENT CORPOR- 18 ATION entered into an oral agreement with Cross-Defendants ENGEO 19 and DOES 11 through 20, inclusive, whereby these Cross-Defendants 20 agreed to investigate the soils conditions existing on Subdivi- 21 sion 4659 and to provide recommendations for the grading and 22 drainage thereof. 23 20 . DiGIORGIO DEVELOPMENT CORPORATION also entered into an 24 oral agreement with Cross-Defendants ENGEO and DOES 11 through 25 20, inclusive, whereby these Cross-Defendants agreed to investi- 26 gate the soils conditions existing on Subdivision 4232 and to LIT:X-Comp-006 J0132/010 12/12/84 -7- I provide recommendations for the grading and drainage thereof. 2 21. Should Plaintiffs recover, by way of settlement or judg- 3 meet, any damages .from DiGIORGIO DEVELOPMENT CORPORATION, these 4 damages would be caused primarily and ultimately by Cross-Defen- 5 dants' active negligence and their failure to properly perform 6 their obligations under their contract with DiGIORGIO DEVELOPMENT 7 CORPORATION. Any liability of DiGIORGIO DEVELOPMENT CORPORATION 8 for these damages would arise, not- as a result of any active 9 fault on its part, but solely because it previously owned and 10 developed Subdivisions 4232 and 4659. Accordingly, Cross-Defen- 11 dants are obligated to hold harmless and indemnify DiGIORGIO 12 DEVELOPMENT CORPORATION from and against any damages, liability, 13 loss, costs, and expenses, including attorneys ' fees, which it 14 has incurred or may incur in defending against Plaintiffs ' action 15 or in prosecuting this Cross-Complaint. 16 WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 17 as hereafter set forth. 18 THIRD CAUSE OF ACTION (Against all Cross-Defendants (except DeSILVA) 19 and DOES 21 through 40, inclusive, for Equitable Indemnity] 20 22. DiGIORGIO incorporates by reference as though fully set 21 , forth herein each and every allegation contained in Paragraphs 1 22 through 11 of this Cross-Complaint. 23 23. If Plaintiffs sustained any damages as alleged in their 24 Complaint, such damages were caused entirely or partly by the 25 acts or omissions of Cross-Defendants, and each of them. 26 LIT:X-Comp-006 J0132/010 12/12/84 -8- r 1 24. An actual controversy has arisen and now exists between - 2 DiGIORGIO and Cross-Defendants in that DiGIORGIO contends, and 3 Cross-Defendants deny, the following: 4 (a) That as between DiGIORGIO and Cross-Defendants, 5 responsibility, if - any, for the -damages claimed by Plaintiffs 6 herein rests entirely or partially on Cross-Defendants; and 7 (b) That as a result, Cross-Defendants-are obligated-to 8 indemnify, in whole or in part, DiGIORGIO for any sum which 9 DiGIORGIO may be compelled to pay as a result of any damages, 10 judgment, or other awards recovered by Plaintiffs against 11 DiGIORGIO. 12 25. DIGIORGIO desires a judicial determination of .._ the 13 respective rights and duties of itself and Cross-Defendants-- with 14 respect to the damages claimed in Plaintiffs ' Complaint . : . . In 15 particular, DiGIORGIO desires a declaration of the respective 16 liabilities of itself and Cross-Defendants for such damages, if 17 any, and a declaration of Cross-Defendants ' responsibility to 18 indemnify DiGIORGIO for any sum which DiGIORGIO may be compelled 19 to pay and for which Cross-Defendants have been determined 20 responsible. 21 26 . Such a declaration is necessary and appropriate at this 22 time so that DiGIORGIO may ascertain its rights and duties with 23 respect to Plaintiffs ' claim herein for damages. Furthermore, 24 Plaintiffs ' claim and DiGIORGIO' s claim arise out of the same 25 transaction, and determination of both in one proceeding is 26 necessary and appropriate in order to avoid the circuity and LIT:X-Comp-006 J0132/010 12/12/84 -9- 1 multiplicity of actions which would result if DiGIORGIO is 2 required now to defend against Plaintiffs ' claim and then bring a 3 separate action against Cross-Defendants for indemnification of 4 sums which DiGIORGIO may be compelled to pay as a result of any 5 damages, judgment, or other awards recovered by Plaintiffs 6 against DIGIORGIO. 7 FOURTH CAUSE OF ACTION [Against the COUNTY and DOES 41 through 50 8 inclusive, for Declaratory Relief) 9 27 . DiGIORGIO DEVELOPMENT CORPORATION incorporates by refer- 10 ence as though fully set forth herein each and every allegation 11 contained in Paragraphs 1 through 11 of this Cross-Complaint . 12 28. On or about March 25, 1975, DiGIORGIO DEVELOPMENT CORPO- 13 RATION entered into a Subdivision Agreement with Cross-Defendants 14 COUNTY and DOES 41 through 50, inclusive. 'Cross-Defendants 15 required DiGIORGIO DEVELOPMENT CORPORATION to enter into this 16 Subdivision Agreement as a condition precedent to their approval 17 of the Subdivision Map for Subdivision 4232. 18 29. On or about July- 6, 1976, DiGIORGIO DEVELOPMENT CORPORA- 19 TION entered into a Subdivision Agreement with Cross-Defendants 20 COUNTY and DOES 41 through 50, inclusive. Cross-Defendants 21 required DiGIORGIO DEVELOPMENT CORPORATION to enter into this 22 Subdivision Agreement as a condition precedent to their approval 23 of the Subdivision Map for Subdivision 4659 . 24 30 . Each of these Subdivision Agreements provided, inter 25 alia: 26 INDEMNITY. Subdivider [DiGIORGIO DEVEL- LIT:X-Comp-006 J0132/010 12/12/84 -10- ' I I OPMENT CORPORATION) shall hold --harmless and indemnify the indemnitees from the liabilities 2 as defined in this section: 3 A. The indemnitees. benefited and pro- tected by this promise are the County, and its 4 special districts, elective and . appointive = boards, commissions, officers, agents and 5 employees. - . 6 S. The liabilities protected against are any liability or claim for any damage of 7 any kind allegedly suffered, incurred or threatened because of actions defined below, 8 and including personal injury, death, property damage, inverse condemnation, or any combing- 9 tion of these, and regardless of whether or not such liability, claim or damage was 10 unforeseeable at any time before the County -- .:. . approved the improvement plan or accepted the 11 .improvements- as. completed and. . including the defense of any suit(s) , action( s) or other 12 proceeding(s) concerning these. - 13 C. The actions causing - liability are any act or omission (negligent or non-negli- 14 gent) in connection with the matters covered by this Agreement and attributable to the 15 subdivider, contractor, subcontractor , or any officer, agent or employee of one or more of 16 them. 17 D. Non-Conditions: The promise and agreement in this section is not conditioned 18 or dependent upon whether or not any Indem- nitee has prepared, supplied or approved any 19 plan(s) or specification(s) in connection with this work or subdivision, or has insurance or 20 other indemnification covering any of these matters, or that the alleged damage resulted 21 partly from any negligent or willful miscon- duct of any Indemnitee. 22 31. There is implied in every contract , including the Sub- 23 division Agreements described above, a covenant of good faith and 24 fair dealing. This covenant requires that neither party do any- 25 thing which would deprive the other of the benefits of the agree- 26 LIT:X-Comp-006 J0132/010 12/12/84 -11- 1 ment. 2 32. This covenant required Cross-Defendants not do anything 3 which would give rise to any obligation of DiGIORGIO DEVELOPMENT 4 CORPORATION to indemnify and hold them harmless. 5 33 . The earth movement described in Plaintiffs ' Complaint 6 was caused, in whole or in part, by the willful or negligent acts 7 or omissions of Cross-Defendants. 8 34. Cross-Defendants have demanded that DiGIORGIO DEVELOP- 9 MENT CORPORATION indemnify and hold them harmless should they be 10 held liable for any personal injury or property damage resulting 11 from the earth movement described .in Plaintiffs ' Complaint. 12 35. An actual controversy has arisen and now exists between 13 DiGIORGIO DEVELOPMENT CORPORATION and Cross-Defendants concerning 14 their respective rights and duties. 15 (a) DiGIORGIO DEVELOPMENT CORPORATION contends that 16 Cross-Defendants contractually breached the covenant of good 17 faith and fair dealing when they caused through their own acts or 18 omissions the earth movement described in Plaintiffs ' Com- 19 plaint. DiGIORGIO DEVELOPMENT CORPORATION contends further that 20 this breach excuses any obligation which it may have to indemnify 21 and hold Cross-Defendants harmless should Cross-Defendants be 22 held liable for any personal injury or property damage resulting 23 from the earth movement described in Plaintiffs ' Complaint. 24 Cross-Defendants dispute these contentions and contend that 25 DiGIORGIO DEVELOPMENT CORPORATION is obligated to indemnify and 26 hold them harmless. LIT:X-Comp-006 J0132/010 12/12/84 -12- 1 (b) DiGIORGIO DEVELOPMENT CORPORATION contends that any 2 condition which a public entity imposes as a condition precedent 3 to its - approval of a subdivision map must -be reasonable and 4 relate to the purposes of the Subdivision Map Act (Cal .Gov. Code 5 §66410 et seg. ) to regulate the design, -improvement and uses of 6 the subdivision for the safety and welfare of the lot owners and 1 the public. DiGIORGIO DEVELOPMENT CORPORATION contends furth6r 8 that the indemnity and hold harmless provision set forth in 'para- 9 graph 30 is invalid and unenforceable because it is not reason- 10 able nor is it related to the purposes of the Subdivision Map 11 Act. Cross-Defendants dispute these contentions and contend that 12 this indemnity and hold harmless provision is valid and enforce- 13 able. 14 36. DiGIORGIO DEVELOPMENT CORPORATION desires a judical 15 determination of its rights and duties. It desires a declaration 16 as to whether it is excused from any obligation to indemnify --and 17 hold Cross-Defendants harmless should Cross-Defendants be held 18 liable for any personal injury or property damage resulting from 19 the earth movement described in Plaintiffs ' Complaint. DiGIORGIO 20 DEVELOPMENT CORPORATION also desires a declaration as to whether 21 the indemnity and hold harmless provision is invalid and 22 unenforceable. 23 37. A judicial declaration is necessary and appropriate at 24 this time so that DiGIORGIO DEVELOPMENT CORPORATION may ascertain 25 whether it has any obligation to indemnify and hold Cross-Defen- 26 dants harmless should Cross-Defendants be held liable for any LIT:X-Comp-006 J0132/010 12/12/84 -13- 1 personal injury or property damage resulting from the earth move- . 2 ment described in Plaintiffs ' Complaint. 3 WHEREFORE, DiGIORGIO DEVELOPMENT CORPORATION prays judgment 4 as hereafter set forth. 5 FIFTH CAUSE OF ACTION [Against SYCAMORE and DOES 51 through 60, 6 inclusive, For Declaratory Relief] 7 38. DiGIORGIO incorporates by reference as though fully set 8 forth herein each and every allegation contained in Paragraphs 1 9 through 11 of this Cross-Complaint. 10 39. . One of the common areas within Subdivision 4659 is 11 denominated "Parcel A. " Parcel A is more particularly described 12 at Page 8 of Book 186 of Maps. 13 40. Earth movement has occurred on Parcel A which has 14 damaged several adjacent properties. Several of the owners of 15 these adjacent properties, including the Plaintiffs herein, have 16 brought suit against SYCAMORE and DiGIORGIO as a result of the 17 damage to their properties: Each of these property owners :seek 18 damages in an amount which exceeds $15,000 . 19 41. An actual controversy has arisen and now exists between 20 SYCAMORE and DiGIORGIO concerning the ownership of Parcel A. 21 SYCAMORE contends that it never accepted from DiGIORGIO the deed 22 to Parcel A and, consequently, that it does not hold legal title 23 to the property. DiGIORGIO is informed and believes, and thereon 24 alleges, that SYCAMORE contends further that it is not liable to 25 adjacent • property owners for any property damage or personal 26 injury resulting from earth movement on Parcel A since it has LIT:X-Comp-006 J0132/010 12/12/84 -14- i 1 never held legal . title to Parcel A. DiGIORGIO disputes these_ 2 contentions and contends that SYCAMORE does hold legal title to 3 Parcel-A and; consequently, that- SYCAMORE is liable for alL,prop- 4 erty damage and personal injury resulting from earth movement on 5 Parcel A. 6 42. DiGIORGIO desires a judical determination of its rights 7 and duties, and a declaration as to whether SYCAMORE or DiGIORGIO 8 holds legal title to Parcel A. 9 43. A judicial declaration is necessary and appropriate at 10 this time so that DiGIORGIO may ascertain who holds legal .title 11 to Parcel A and whether SYCAMORE or DiGIORGIO -.is liable far -the 12 property damage and personal injury resulting from the earth 13 movement on Parcel A. - 14 .14 WHEREFORE, DiGIORGIO prays judgment as hereafter set forth. - -= 15 SIXTH CAUSE OF ACTION [Against the COUNTY and DOES 41 through 50 , 16 inclusive, for Inverse Condemnation) 17 44. DiGIORGIO incorporates by reference as though fully set 18 forth herein each and every allegation contained in Paragraphs 1 19 through 11 and 39 through 43 of this Cross-Complaint . 20 45. DiGIORGIO dedicated to and Cross-Defendants COUNTY and 21 DOES 41 through 50 , inclusive, accepted for public use and bene- 22 fit the .drainage easements and drainage systems on Parcel A and 23 properties adjacent thereto. 24 46 . DiGIORGIO is informed and believes, and thereon alleges, 25 that Cross-Defendants failed to properly maintain these drainage 26 easements and drainage systems. LIT:X-Comp-006 J0132/010 12/12/84 -15- 1 I r f 1 47 . DiGIORGIO is also informed and believes, and thereon 2 alleges, that earth movement occurred on Parcel A as a proximate j 3 result of Cross-Defendants ' failure to properly maintain these 4 drainage easements and systems. 5 48. As a proximate result of this earth movement, the fair 6 market value of Parcel A has been diminished in an amount accord- 7 ing to proof, but exceeding $15,000 . As a further proximate 8 result of this earth movement, whoever holds legal title to 9 Parcel A shall incur costs and expenses to repair Parcel A in an 10 amount according to proof, but exceeding $15 , 000 . 11 49 . Should the Court find that DiGIORGIO holds legal title 12 to Parcel A, DiGIORGIO would be entitled to recover these damages 13 from Cross-Defendants under a theory of inverse condemnation. 14 DiGIORGIO would also be entitled to recover its reasonable costs, 15 disbursements and expenses, including, but not limited to, attor- 16 neys ' , engineering and appraisal fees. 17 WHEREFORE, DiGIORGIO prays judgment against Cross-Defendants 18 as follows: 19 1. For indemnification by DeSILVA from and against any 20 damages, liability, loss, costs and expenses, including attor- 21 neys ' fees, which,DiGIORGIO DEVELOPMENT CORPORATION incurs or may 22 incur in defending against Plaintiffs ' action or in prosecuting 23 this Cross-Complaint; 24 2. For indemnification by ENGEO from and against any 25 damages, ' liability, loss, costs and expenses, including attor- 26 neys ' fees, which DiGIORGIO DEVELOPMENT CORPORATION . incurs or may LIT:X-Comp-006 J0132/010 12/12/84 -16- 1 incur in defending against Plaintiffs ' action. or in prosecuting - 2 this Cross-Complaint ; 3 3: For a judicial determination of Cross-Defendahts '. 4 responsibility and liability for the damages claimed by Plain- s tiffs, if any there are; 6 4. For a declaration of the amount for which Cross-Defen- 7 dants are obligated to indemnify DiGIORGIO if DiGIORGIO is com- 8 pelled to pay any sum as a result of any damages, judgment, or 9 other award recovered by Plaintiffs against DiGIORGIO; 10 5. For a declaration that DiGIORGIO DEVELOPMENT CORPORATION 11 is excused from any obligation to indemnify and hold the COUNTY 12 harmless from any liablity to Plaintiffs arising out of- .-.the 13 COUNTY' s own acts or omissions. 14 6 . For a declaration that the indemnity and hold harmless 15 provision set forth in each Subdivision Agreement is invalid and 16 unenforceable. 17 7 . For a declaration that SYCAMORE holds legal title to 18 Parcel A; 19 8. Should the Court find that DiGIORGIO holds legal title 20 to Parcel A, for damages for inverse condemnation. These damages 21 would include the diminution in fair market value of the property 22 and the cost and expense to repair Parcel A. DiGIORGIO would 23also be entitled to recover its reasonable costs, disbursements 24 and expenses, including, but not limited to, attorneys ' , engi- 25 neering and appraisal fees. 26 9. For costs of suit herein incurred; LIT:X-Comp-006 J0132/010 12/12/84 -17- I 1 10 . For interest on all sums as permitted by law; and 2 11. For such other and further relief as the Court may deem 3 proper. 4 Dated: December , 1984. 5 BERLINER, COHEN & BIAGINI 6 7 By 8 M. RS ER Att n s or fendants 9 an - mplainants DiGI0 GIO ORPORATION and 10 DiGIORGIO DEVELOPMENT CORPORATION 11 12 13 14 15 16 17 ' 18 19 20 21 22 23 24 25 26 LIT:X-Comp-006 J0132/010 12/12/84 -18- 1 Barry L. Siders, Esq. Law Offices of Barry L. Siders 2 401 South Hartz Avenue, Suite 308 Danville, CA 94526 3 Timothy J. Ryan, Esq. 4 Gordon, DeFraga, Watrous & Pezzaglia,' Inc. 5 611 Las Juntas Street P. 0. Box 630 6 Martinez, CA 94553 7 Law Offices of R. Richard Audley 1801 Oakland Boulevard, Suite 210 8 Walnut Creek, CA 94596 9 Theissen, Gagen & McCoy P. O. Box 218 10 Danville, CA 94526 11 Charles J. Williams, Esq. Williams, Capole & Robbins 12 P. 0. Box 698 Benecia, CA 94510 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I� A. r ' 1 PROOF OF SERVICE BY NAIL. (CCP 1013a, 2015 . 5) 21 i 3 I! __ . I declare that: 4 I am a citizen of the United States and employed in the County of Santa Clara, State of California; I am over the age of 5 eighteen (18) years and not a party to the within-entitled action; my business address is Union Bank Building - Park Center Plaza, 6 99 Almaden Boulevard, Suite 400 , San Jose, California 95113 . 7 On the 14th day of December 19 84 , I served the within 8 i FIRST AMENDED CROSS-COMPLAINT BY DiGIORGIO CORPORATION 9 i AND DiGIORGIO DEVELOPMENT CORPORATION 10 11 on the parties in said action, by placing a true 'I copy thereof enclosed in a sealed envelope with postage thereon 12 fully prepaid, in the United States mail at San Jose, California, addressed as follows: 1.: I SEE ATTACHED I' ,4 is I i 15 16 17 18 19 20 11 21 h 22 II 23 ji I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on 24 y i! December 14 19 84 at San Jose . California. 25 Ij 26 DEBRA A. ELLIOTT � i i (Type or Print Name) Signature 'j I 1 LAW OFFICES OF BARRY L. SIDERS 401 South Hartz Ave. , Suite 308 2 Danville, CA 94526 - 3 Telephone: (415) 838-8282 _ i Attorney for Plaintiffs TRAM 004423 03/21/°- 4 y CASE. 257536 DEPT:C:07PLAINTS 5RECEIPT: 003856 C: 01 TOTAL DUE 7 ; i ' I 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA 9 CHARLES CLAUSSEN, MICHELLE ) 10 CLAUSSEN, and DOES I through ) Case No. j c V, inclusive, j U 11 ] CO.'TLAINT FOR INVERSE Plaintiffs - ] CONDE'%ATION, ABATEMENT 12 I j OF NUISANCE, INJUNCTIVE I vs. ) RELIEF, BREACH OF 13 ] CONTRACT, PRODUCTS DI GIORGIO DEVELOPMENT CORPORATION, ] LIABILITY, AND DA-'AGES 14 I� SYCAMORE HOMEOWNERS ASSOCIATION, j CO7JNTY OF CONTRA COSTA, CITY OF ] r -,• ,r•,: ,,, �, , , . D N-VILLE, ST PAUL FIRE AND MARINE ] - ► _� i`, �,,. „ i INSURANCE C0.*1-PANY and ROES I through ] 16 XX,Defendants. ] 17 GENERAL ALLEGATIONS 1s 1. The true names and capacities of defendants sued as ROES I 19 through 3):, individual, corporate, associate of otherwise, are 20 unknown to plaintiffs who therefore sue them by fictitious names, 21 and Will ask leave of Court to insert the true names when 22 ascertained. Upon information and belief, plaintiffs allege that, 23 at all times herein mentioned, each of the actually and fictitiously 24 named defendants was the principal, agent, or employee of other 25 (' actually or fictitiously named defendants, acting ei`her as such 26 - principal, or within the scope and course of such employment or 27 �; i • j 1 �: agency, and had some part in the acts or omissions set forth herein i i Iby reason of which each of said fictitiously and actually named I 3 defendnats is liable to the plaintiffs for the relief prayed for � i 4 herein. 5 2. Plaintiffs named herein as DOES I through V, inclusive, are 6 persons similarly situated to plaintiffs CHARLES CLAUSSEN and 7 i MICHELLE CLAUSSEN. The true names of such plaintiffs are unknown at � f 6 this time, and leave of Court will be requested to insert their true ' g names when ascertained. I 10 3. Defendant DI GIORGIO DEVELOPMENT CORPORATION is incorporated ,1 in California and at all relevant times did and is doing business in 12 the State of California in the County of Contra Costa, as a i 13 developer of real property and housing, and has an interest in land I! 14 I relative to this action. Jr `i 4. Defendant COUNTY OF CONTRA COSTA is a County of the State of 16 California, and is the owner of real property and improvements relative to this action. ,7 f I 1S ! S. Plaintiffs, CF-LP-LES CLAUSSEN and MICHELLE CLAUSSEN, husband,, i 19 and wife, are the owners of real property and improvements, i. 20 including a single family dwelling, commonly knowns as 24 Ambleside 21 Court, Danville, California. 22 6. Defendant COUNTY OF CONTRA COSTA has an interest in adjacent 23 real property by reason of a conveyance of development rights by 24 defendant developer. 25 7. Plaintiffs are informed and believe and allege that I 26 defendant DI GIORGIO is ti'ELO?i ;i "CL=. .- ._ivy , a Ca:ice[ ...I" 27 corporation, cut, graded, filled and did works of improvement on f 2E i' 1 land in the State of California, County of Contra Costa, described i 2 i as: 3 Parcel A, as shown on the Map of Subdivision 4659, which map was 4 filed on July 8, 1976, in Book 186 of Maps, at page 7, Contra 5 Costa County Records; 6 adjacent to the real property of plaintiffs and owned by SYCAMORE 7 HOMEOWNERS�ASOCIATION. 8 8. Upon the real property of defendant SYCAMORE HOMEOWNERS J 9 ASSOCIATION a landslide has occurred adjacent to the real property 10 of plaintiffs. The landslide is continuing, invading the real 11 property of plaintiffs, and threatening damage to and destruction of 12 plaintiffs' single family dwelling. 13 FIRST CAUSE OF ACTION - ABATEMENT OF NUISANCE. 14 9. The General Allegations are incorporated by reference. 10. The occupation use and maintenance of the �J �; pronert} and 16 I improvements of defendants and each of them constitute a nuisance 17 within the meaning of the Civil Code of the State of California, in 18 that they endanger the real property and i-mprovements of the 19 I plaintffs, and constitute a hazard to their safety and health, are 20 frightening and offensive to the senses and interfere with the 21 comfortable use and enjoyment of said property. 22 11. The nuisance affects, at the same time, a considerable 23 number of persons in the vicinity of plaintiffs' property, and 24 causes special injury peculiar to the plaintiffs as set forth above. ?5 12. Defendants, and each of them, -have had notice of said 26 nuisance, and have continued and will continue to maintain said 27 nuisance; all without the consent, against the will and in 28 i OF- 1 1 i violation of the rights of the plaintiffs. i 2 I! 13. Unless defendants, and each of them, are restrained by j 3 order of this Court, it will be necessary for the plaintiffs to 4 commence many successive actions against them requiring a 5 multiplicity of suits, and the plaintiffs are and will continue to 6 be daily threatened with destruction of their home and real property 7 and improvetents. j g 14. Unless defendants, and each of them, are enjoined and j g restrained from continuing to maintain the nuisance aforesaid, I 10 plaintiffs will be irreparably injured in an amount which cannot be 11 calculated in terms of money, in that the usefulness and economic 12 value of their real property and improvements will be substantially 13 dminished, and the efforts of plaintiffs to sell or lease said 14 property will be without avail, and plaintiffs are being and will be 15 j deprived to a substantial extent of the use, occupancy, and free i; 16 enjoyment of their property. 17 13. The plaintiffs have no plain, speedy or adequate remedy at I i 1g law, and injunctive relief is expresslyauthorized therefore by the , I 19 I Code of Civil Procedure of this State. I� r 20 WHEREFORE, plaintiffs pray judgment against defendants, and each 21 of them, as follows: 22 1. For a judgment declaring that the facts alleged constitute a 23 nuisance, and that defendants be perpetually enjoined and restrained 24 from so operating and maintaining their real property and 25 improvements, or*from so using or permitting such use of their real 2E I ✓�Gr__�• G ;C 1 ✓rGv�_c1rJ, 27 2. For costs of suit; and cG ' -4- i ii it � 1 3. For such other and further relief as the Court may deem 2 I i proper. i 1 3 SECOND CAUSE OF ACTION — NUISANCE — DAMAGE. I 4 As to defendants DI GIORGIO DEVELOPMENT CORPORATION, SYCAMORE 5 HOMEOWNERS ASSOCIATION and ROES I through V, plaintiffs allege: 6 16. The General Allegations and allegations of the First Cause 7 I of Action are incorporated herein by reference. , 8 17. As a proximate result of the nuisance alleged, plaintiffs 9 have been and will be damaged in an amount reasonably necessary for 10 works of reconstruction and repair to their real property and improvements; the value of plaintiffs' property has been .and will 12 be temporarily diminished in substantial amounts, and unless the 13 { nuisance is abated, plaintiffs' property will be progressively 14 further diminished in value; for the reasonable cost of repairs and dara�as to Plaintiffs' property caused by said nuisance, after the I 16 abatement thereof, by the necessity of bringing a multiplicity of I 17 suits to secure compensation for damages sustained, and other i 18 ii damages necessarily flowing from: the maintenance of the nuisance. 19 (i 18.- Plaintiffs are informed and believe and thereupon allege 20 that each and every item of damage alleged substantially exceeds 21 $15,000.00, according to proof. 22 I WHEREFORE, plaintiffs pray judgment against the defendants i 23 i charged in this Cause of Action as follows: 24 1. For general damages against said defendants and each of them 25 according to proof; 26 2. For special damages, including costs of repair and ' 27 restoration, diminution in property value, and the like, according i i 1 I to proof; I 2 f 3. For costs of suit; and 3 I 4. For such other and further relief as the Court may deem 4 I proper. 5 THIRD CAUSE OF ACTION - INVERSE CONDE' NATION. 6 Plaintiffs allege, in reference to defendants COUNTY OF CONTRA 7 COSTA, the CITY OF DANVILLE, and ROES VI through R, public entities: ' I g (' 19. The General Allegations, and those of the First Cause of I ' 9 Action and Paragraph 17 are incorporated herein by reference. I 10 20. That the drainage system aforesaid, functioning as 11 conceived, designed and built by said defendants, and each of them, 12 or as accepted by them, is a substantial cause of the nuisance and 13 the damages alleged. 14 WHEREFORE, plaintiffs pray for damages against defendants COUNTY 15 I; OF CO2I P-k COSTA, the CITY OF D NVILLE, and ROES VI through R as i io ' follows: ' i 17 1. For general damages against said defendants and each of them I 18 according to proof; 19 , E 2. For special damages, including costs of repair and 20 i restoration, di--inution in property value, anu the like, according 21 to proof; 22 3. For costs of suit; and 23 24 25 27 26 j -6- i I FOURTH CAUSE OF ACTION - 1 CON t R A C Ti CRCSS-CO','-",',INT _ ar. ✓- _ en'.:y __ nas `.S v'^o arc nol :.0- =:e-. c=:. :S :S 5-. a Cn=n is a r.2*_•2' __7Sor St. Pau'_ t:tea! _= ^�^ urs• ....._.: L:—_ — Ce .._ 2 D::D•'_ ? off- ✓� C -- D. 1 ne .',_ z—es an= Zc:=::-_S C•' __ _ _c .:'. S_ez as :S c c _ •":+. � c '.... C. ::7 a=D;.,: 2=. ,:Cra* o.-1`. n!f no: fc:Jle _ --_s e 40E- 410 - - __ CLAUSSEN, et al , vs. ST. PAUL FIRE AND .1-MRINE INS. COI — -=-a!T - - - ---- -.. 4. Piaintift is recurred to comply wife a claims sta%;te. and a. '— piaintiff has como!ied v�:t"• aooiicat)ie c.ia::^:s s;=;:;es or t). riainti'f is e%CUset frO:r cOmpl in .^.e:.c.35C :5✓PC't)'. n!5 GC:IG^ :s Coo! Cc-=e Se.:;lo.^. 1F'� .iY' "__a Coo! E 7!)!s arnion,is ',iL iri this xX COUnt)' `;;UC-::iai Ca Cc_3USe a e Ce'encant enzerec into the contra:t here .� a Ce•enCant live here when the contra.: v.2s En;e'eC int.^. c a ce-lenoan' it es ^ere now C tn_ Ccr,t,a=. was to be aerlormied here. e a 04?�endanl is c zo,:)Oratior. O• UnincOrDc' *.et 2n� !*j -' O-are 01 _,_eno c c ^c•c S_ ` cc .✓e';: .'.c ° sit:ez. O! •n!s ac'1'.. Tne ✓arac•a-?hs O`• t:pis D ieB.-in_ a'c a! ?C 37. i^i: Exemplary Damages Attachment, 'Page 4 , Ex-3. E O'ner C enc :a--Se5 of a-::nr, z'P 2';a:.r.?G cnG 'nP to e=::h (Gacr L'omz;ain: .r- -. .. _•Tach of ;onrac -- - ar ;• -;s - E; molar • Da:iaaes -- 1C' P_.AIN7;= DRAYS L. .. _ t;�• C:.cic C• SUi. <O' SUC. •E;•t` E :E fa-- 2-7 X 100, 0nn.-00 es; On the gar-:aces -�is--:Orc _ t: zra. . = = = - frorr- (Ca?e; October 12 , 1983 attorney tees o' E __—_--- X acco,c',nc t: r-X o'nerW;ecify) Such other and further relief as the Court may deem just and proper. BARRY L. SIDERS i lop- CLAUSSEN, et al. , vs. ST. PAJJT INS. CO. , et al. 'Use a seze,a:: cause of tom fcr eacn cause c.`a_t;on..) 3^ P,a-ntift(name), CHARLES CLAUSSEN and MICHELLE CLAUSSEN alle;e; ;r.� or, or a�ou!!ca•ei' October 20, 1982 a ALL.1,1;11 — c;"-= �_ �.•-_. /eJE:.r: Plaintiffs and Defendants ST. _, AT FIRE F,'�ID MARINE INS['RAIvCE CONiPANl' C A copy of the agreement s anaCrrec as txhi5rt A. or YX Tne es--ent:a' !erns of tr:e agree rent —'.are stated in Attacnment 5C-1 [3r-.are as follows(spe:4). Defendant insurance comDanv issued to- Plaintiffs a oolicy insuring_ against all risks of physical loss to Plaintiffs ' dwelling. Implied in said policy of . insurance is a covenant of good faith and fair dealing. Or. or ac•c,:t:=.,es. October 12 , 1983 zefcnc;nI �,=: - = .t a 'S S:�c=... .^ n;'c�-+�- . ✓_ t `.�' .;r..'._ =- Def=^Cant has _�i l o.i ';--d ::nd re',-,se-' to �' nC ^int_-tLeS _ .. �'J fa1 , ana re SC LC Do", L�7P C1Fi'_.. C� L. - _a;.. _._�=r C3::� = to their dwelling. '^'ialr.!:". suf`e.ra_ :.a7na:t 'c-::a,'. ;prxima?e'y' caL'sae!e C= i s D'e= of .'e E9--e.'c... a as fo;*c:ws soecrfr): $100 , 000. r 0 - diminution in value of home. $250, 000. 00 - Emotional distress. ' 711.-5 �'a!r`:if` .s ?"....c,. = 2::Jr'c; `Ec= `'; c'•^ ar'"cc E .. Jr 2 5'a._.. ? Ott CLAUSSEN, et al . , vs. ST. PAUL _INS. CO. , et al. _X-1. As additional damages c_a n„ decent-an,rna.^P: St. Paul Fire and Marine Insurance Company. yal's_as deferida^t :•.a° �''i�i'.' of po - X^ --- XZ OpCrcSS•pn as defined in Civil COoe seCUon 329= arc p.aintiff snculC reCove-. in ac .titin i a--:..a' C2712_�5 --a— to make an example of and to punas` detercan; EX-2. The facts supporting plaintiff's claim are as follows Plaintiffs allege that the breach of contract alleged herein was willful and malicious, in fraud of Plaintiffs ' rights under their insurance contract, and with full knowledge of the damage caused thereby to the Plaintiffs, and that, in leaving Plaintiffs _ uncompensated for an unjust period of time, has oppressed them, contrary to law. _X-3 Tne a 10:. , Of eXc'-:.:ary ZE.712;c5 SCt_ . ,s a. not sncwn. pursuant ;o CCCE of Civil ?roceCure sec::cn :25 ?G D _X 5 1, 000, 000. 00 i FIFTH CAUSE OF ACTIOIi 1 1 ..L. �.'.!•1 1 -�f`-�`.-_• :-� rr-= r.J��j,1 �t�..1_��t l[i�' �f J� C—=-h ! t C;:._R rcucts Li abil its• ) ' CLAUSSEN V. DI GIORGIO DEVELOPMENT CORPORATION -K =r-��t Giorgio Sycamore Development Corporation Homeowners Association A Homeowners Association L __ c .'.i;s. , c- 'C 'C• :p:y v.,.. a _;elms S 8i .c and `- c' ibas: c-. :c'e"=an' r.cv, Ir 's L _ .c � '.Y:IrI_ -a =_ _. 's ✓ .'. � ... = c c r. __-_ .. ' : _.... a"C c c !4_ c- -' =r =. ." c CLAL'SSEN V.DI GIORGIO DEVEi.,ORMENT CORPORATION ten: � 1 f• •;r v„ 7ne Ga'-=c3 C+a' . c.. tC: .ti' Z..z_ CEa.- a-.- -ne 'c:c = ,mss of Oiaaonti°.' t0 the CE'EaseC are lis: n C. ^ a.. .— .:.avc rr.--., i was ov.s Plaintiffs have suffered or axi►� xa will suffer css less of js- %' C•=:e— ce.^e-a. ;e 1. Diminution in the value of property 2. Emotional destress and mental suffering in the form of domestic disruption, fres-ration, anger, worry, and despair. For diminution in the value of property according to y?"O✓t; For damages for emotional distress and mental suffering according to Droor. �-X i L. SIDERS ALI (. Ar CLAUSSEN V. DI GIORGIO DEVELOPMENT CORPORATION — -- --- - CAUE51— G _'se- a se,-arae= cause. c(a:"or. :Cr.'.'. lol $c_ ' -- 0`c_. �•^ ' CHARLES CLAUSSEN, MICHELLE CLAUSSEN and DOES I through V. ' _ = December, 1982. Defectively manufactured and designee subdivision lot which caused landslide onto Plaintiffs ' adjoining lot. o1 ;ne Ce'Endanls kne-e. :he DfCC,jct w,-.U�_"+ DE DU'Cnasct an.^. Use waho'.:' Ins:e,..:or !;r _c`._._ 7ne Aa= ^e`e_:!ve v%,ne.^. .1 le'! Ine c3r,i'= of c'_= . .c`c .__^' Tne '•'_'__, a'. .= e Usc-C :n the Ta.-'e-' Inic.-^, by !he te`=—n3-=is sc� .. c' r•:' :c ...-.a' ..?_ le.__-.c: �C'_:c=a� _ or. _ ES as ;nvCr1." Pu' use, o` :nE JtC: C. Adjoinina Landowner - Di Giorgio Deveio�ment Cc ocra-ion! Di Giorgio Development Corporatic:-. x. A S 1 20 -X Ccs .. - ---_. .. - _ - . _- -= =-=_"._ .. _..__ a _ __ Di Giorgio {� Development Corporation- ! _ -x 1 - - 20 -X _2 0 -= - XX Tn= --X-- a_ _ _ Defendant DI GIORGIO DEVELOPMENT CORPORATION and ROES I through 20 designed the product. J CLAUSSEN V. DI GIOt?GIO DEVELOPMENT COR.POR.ATION •r.•r _ - -- - ----- Cr..-QS' 0- ACOTI �i—�fc - ;ScS L!c ;.y Pc_' -5— — u.5 d 5�=2 a:E C2USE' Of aC. 0^ fC/•T .`O:c'8. Gc_=? : d�.._. - __-.�-i Pla�rtiff(rase; CHARLES CLAUSSEN, MICHELLE CLAUSSEN, and DOES I through V. a!!eyes the ac!s Of ;,E1c^.o1ant5 we'E the ie_a"prox+matel Cause of cama_es to oiaM011. Or. (dace): on or about Diet ( r, Dfa nf;" w•25 injured or the foiicwng -re!r;ses in the fo:;Ow r5 1982 d5' .s.5 _ -' _ .=rc- - se. _ ._ =ircurrs:c'?ce-- of niur'y,• On or about December, 1982 , a landslide occurred on defendants ' property. The landslide cause dirt, mud, and debris to flow from defendants' property onto Plaintiffs ' , adjacent premises. Defendants knew, or should have known of the possibility of a landslide because of previous landslides, and because of the unstable condition of defendants' hillside property; nevertheless, defendants failed to take reasonable steps to prevent lanslides on their property. A COLnt 0nn_! ec;;c=nCe -t-,e me yes=r:b_c -gee .._ e _ SYCA—MORE HOMIEO WNERS ASSOCIATION Ccur.: T 1i':—tai:�:: ri 7iL i C :C 1r�2'•^. -C _ _ __ _ '_ _ Or Ta? ..'CUs; fa :e= 'C cuar0 0.r warn. aca-s' (na.^es). —'-noes —_.—� tc ---- -- �c:. _ __r'_'= 7,a -;Se" 'Ncs a- :r1V:tec _ 'es: _:2 C r-. 7 r:tZ. _e LS C0r:Cia0- 0f ri.- C i'rCZ,enf Tri 'mac"'_gin ._ ..-.v :\•.-�� _.._ !C d _ ne _ _ c' . .^ 'C c' .•t'r na� a:.Jal _CO^s-.. C. :Q -z:.Ce of .-.e ?x._._ire '^ C+2.^.y= :_5 :✓'C�.:Cr :r Su}`�C.e'. a*-:c .. Cr :O the f'.;Ur'y :0 'd'.= .._ _- cC .. b I ne C.)nu riOr: W25 C•rEV=-� 'JV e":)10'y?e5 Of the c`e.'•Ca'lr c. . 3 At B�ct!CI1S about Other fleter�dnl5 The OE'c^d2n!s ti''✓ Wer- .. = e_ t5 dr C e"C 0jpc5 the O!r,Er de:en E't5 2^C a:,ed -w:tnin the 5=Gu9 0f the a_encv —' inE .=.E.r✓a 25 h-.G afe ✓c :0 b '.l.!'.5 ,nr Ci = .'caSJ'S c ca4: a c described in ar,acnment Frem.L-5.b ^:a5 f0!1Cws(narnas: _:_ CAItc- 0= Ar i 1 4. For such other and further relief as the Court may deem L ^ I proper. . - _ I .i 4 DATED: BARRY L. SIDERS 5 Attorney for Plaintiffs CHARLES CLAUSSEN and MICHELLE CLAUSSEN 6 i 7 8 I 9 10 11 I - I 12 I 13 14 I! 16 17 ,S 1q f i 20 21 22 23 24 25 27 I` 1 0"3 CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COMMg CALIFORNIA BOARD ACTION May 21, 1985 Claim Against the County, or-tistriet ) NOTICE TO CLAIMANT 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 Antion. 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: Adolfo Sanchez, Sr. , Adolfo Sanchez, . Jr. , Mark Sanchez, Rosemary Arroyo, Victor Sanchez and Edward Sanchez Attorney: G. Todd Withy Withy, Miller, Gerstler & Clark Address: 2222 Martin Luther King Jr. Way Berkeley, CA 94704 Amounts $1, 250, 000. 00 By delivery to clerk on Date Received: April 25, 1985 By mail, postmarked on April 24, 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: April 25, 19 8 5PHIL BATCHELOR, Clerk, By Deputy Ann Cervelli II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( � ) This claim complies su stantially wit Set ons 10 d 0.2� M J� ( ) � s cl m FAILS toply 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: _ a.cl� -�,�ssp Dated: - - y. Deputy County C Rel III. FROM: Clerk of the Board TO: (1) County Counsel, (2) County Administrator (>4 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. (>Q Other: portion oforig;nal rl a;m -nnt pre3d ollsl F zat-lirned as 1�3ntimpl y is refected in full - I certify that this is a true and correct copy of the is Order entered in its minutes for this date.. Dated: _ PHIL BATCHIIAR, Clerk, ByUA= 4 a , 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 1e to esent a late claim was mailed to claimant. DATED: (-$�' PHIL BATCHELOR, Clerk, By , Deputy Clerk cc: County Administrator (2) ' County Counsel (1) r 1 G. TODD WITHY POLLY LEVIN 2 WITHY, MILLER, GERSTLER & CLARK 2222 Martin Luther Ring Jr. Way C-EIT TEED 3 Berkeley, California 94704 �=d (415) 848-7200 4 �.R 9GS Attorneys for Claimants 5 pHll BA,--!f_E:M 6 B Gervr 7 8 CLAIM FOR DAMAGES 9 10 TO: COUNTY OF CONTRA COSTA CLERK OF THE BOARD OF SUPERVISORS cc Q 11 J c 3v 12 CLAIMANT'S NAMES: ADOLFO SANCHEZ, SR. , w ,5" ADOLFO SANCHEZ , JR. , .0 0°'8 13 MARK SANCHEZ, ROSEMARY ARROYO, ~ 4E,- VICTOR SANCHEZ , EDWARD SANCHEZ di cnY=,� tc 14 w (D .jn CLAIMANT'S ADDRESSES: ADOLFO SANCHEZ, SR. , VICTOR SANCHEZ w sYV 15' and EDWARD SANCHEZ 42 ROBINSON AVENUE Cv Nm 16 PITTSBURG, CA. N N 17 ADOLFO SANCHEZ, JR. , ROSEMARY ARROYO 3 175 FRONTAGE RD. 18 PITTSBURG,, -CA. - 19 ITTSBURG, CA.19 MARK SANCHEZ 13 MARAMAC CT. 20 PITTSBURG, CA. 21 ADDRESS TO WHICH NOTICES ARE TO BE SENT: G. TODD WITHY 22 WITHY, MILLER, GERSTLER & CLARK 2222 MARTIN LUTHER RING JR. WAY 23 BERKELEY, CA 94704 24 DATE OF ACCRUAL OF CLAIM: April 7 , 1985 25 AMOUNT OF CLAIM: $1 ,250,000.00 26 27 Maria Sanchez, wife of Claimant Adolfo Sanchez, Sr. , and mother of all other Claimants, was a patient at the Contra Costa 28 CLAIM FOR DAMAGES - Page 1 1 1 County Hospital and Clinic, a County hospital, because she had 2 sjogren's syndrome with renal tubular acidosis and rheumatoid 3 arthritis. In November 1982, medical practitioners employed by 4 the County at their hospital and clinic prescribed Penicilamine, 5 a drug which is used in the treatment of rheumatoid arthritis, 6 for Maria Sanchez . One side-effect of this drug is severe 7 respiratory distress resulting in eventual death. Neither Maria 8 Sanchez nor claimants herein received any warning of the possible 9 adverse side-effects of the drug. No complete history was taken 10 from Maria Sanchez prior to administering the drug. Y Q 11 Within two weeks of beginning the Penicilamine therapy, J 12 Maria Sanchez presented to her treating doctors, employees of LU �0 g 13 Contra Costa County, with symptoms of respiratory. distress. In NYc�Z a: m ocb W ==,v14 May 1984, Maria Sanchez was hospitalized in Contra Costa County C7 5v m a� J rr 15 Hospital for severe respiratory distress. Notwithstanding these J W d`� Nac m 16 episodes and complaints, Penicillamine therapy was continued N N 17 until July 1984. By that time Maria Sanchez had developed a 18 severe respiratory condition. She was diagnosed as suffering 19 from bronchialitis obliterans, secondary to Penicillamine 20 symptoms. On April 7 , 1985, Maria Sanchez died from 21 bronchialitis obliterans. 22 Claimants herein are the heirs-at-law of Maria Sanchez . 23 Claimants have suffered irreparable harm in that they have been 24 deprived of the comfort, care, society, support and affection of 25 their wife and mother due to the professional negligence of the 26 employees of the Contra Costa County Hospital and Clinic. 27 Claimants allege that the County employees were negligent in that 28 they: (1) failed to warn Maria Sanchez and Claimants regarding CLAIM POR DAMAGES - Page 2 t f `L r ` 1 the adverse effects of the drugs on the respiratory system, (2) 2 failed to take a complete history to determine the 3 appropriateness of the drugs for Maria Sanchez , (3) prescribed 4 drugs that were especially dangerous for Maria Sanchez due to her 5 history of lung problems, and (4) failed to promptly discontinue 6 the use of the drugs once lung and respiratory complications and 7 other adverse effects appeared. 8 Claimants ' claim for the wrongful death of their wife and 9 mother arose on April 7, 1985, the date of Maria Sanchez' death. 10 The public employees who have caused Claimants' injury are Y °C 11 Mark Wille, M.D. , Frederic D. Huie, M.D. and any and all other 5 U � ,d 3a 12 hospital , clinic or emergency room personnel who were in any way w �V 13 responsible for the negligent acts alleged above. cl) Y'c LL m o ,U t_v 14 The damages claimed, as of the date of presentation of this 0 =!L)- co 0C T- 15 claim are computed as follows: J m m" Nm16 Adolfo Sanchez , Sr. N N 17 Loss of Consortium 5/83 - 4/7/85 $ 250 ,000.00 3 18 Wrongful Death of Spouse 500 ,000 .00 19 20 Adolfo Sanchez , Jr. . Mark Sanchez 21 Rosemary Arroyo. Victor Sanchez 22 and Edward Sanchez 23 Wrongful Death of Mother 500 .000 .00 24 TOTAL $1 ,250,000 .00 25 26 27 28 CLAIM FOR DAMAGES - Page 3 r 1 ' 1 2 The amount of additional damages, including but not limited. 3 to, the cost of the funeral and burial for Maria Sanchez, is 4 . unknown at this time, but is anticipated. 5 6 7 i 8 DATED: D WITHY 9 '- Attorney for Claimants 10 Y Q 11 J U � ca 3v 12 w 13 ¢ w 14 t-e 0 33a C Tr 15 J (D Y Nm 16 N = N 17 3 18 19 20 21 22 23 24 25 26 27 28 CLAIM FOR DAMAGES - Page 4 Aw CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT ?iay 21, 1985 governed by the Board of Supervisors, ) The copy oft s 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: Donald Hebert County Counsel Attorney: APR 2 5 1985 Address: 223 St. Paul Drive ✓ Martinez, GC 94553 Amount.. Alamo, CA 94507 By delivery to clerk on $490.74 Date Received: April 24, 1985 By mail, postmarked on April 22, 1985 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. . Aril 24, 1985 Dated. P PHIL BATCHELOR, Clerk, Bylzvelli a Deputy II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) W) 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: - 74 - By: Deputy County Counsel III. FROM: Clerk of the Board TO: (1) County Counsel, ) County Administrator ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER By unanimous vote of Supervisors present t>< This claim is rejected in full. ( ) Other: I certify that this is a true and correct copy of the Board's Order entered in its minutes for this date. Dated:: L a-1 LL PHIL BATCHELOR, Clerk, By �.,,,,,�,� i ,„�, Q ,•, , 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 ent a late claim was mailed to claimant. DATED , 2 (_ $'� PHIL BATCHELOR, Clerk, By , Deputy Clerk cc: County Administrator (2) County Counsel (1) CLAIM TO: BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY Instructions -Lo Claimant A. Claims relating to causes . of action for death or for injury to person or to personal property or growing crops must be presented not later than the 100th day after the accrual of the cause of action: Claims relating to any other cause of action must be presented not later than one year after the accrual of the cause of .action. (Sec. 911. 2, Govt. Code) B. Claims must be filed with the Clerk of the Board of Supervisors at its office in Room 106, County Administration Building, 651 Pine Street, Martinez ,, . CA 94553 (or mail to P.O. Box 911, Martinez, .CA) C. If claim is against a district governed by the Board of Supervisors , rather than the County, the name of the District should be filled in. D. If the claim is against more than one public entity, separate claims must be filed against each public entity. E. Fraud. See penalty for fraudulent claims , Penal Code Sec. 72 at end of this form. RE: Claim by ) Reserved for Clerklg filingstamps IVED Against the COUNTY OF CONTRA COSTA) or i ,riG.� DISTRICT) Pkv!BATCHELOR S1L02 !cnF;BOh.k�Gi 5 P 2YI�CR3 . ;.CO' • ..� .. Demi (Fill in .name) ) a. The undersigned claimant hereby Makes claim against the Cot� of Contra Costa or the above-named District in the sum of $ and in support of this claim represents as follows- ----------=------------------------------------------------------------- 1. When did the damage or injury occur? (Give exact date and hour) ------------------ ------`----------------- 2---Whe-r-e-diTd-th-e---a-m-a-ge---or--injur occur? (Inclide city and count) - ' _-----� ---- - - � --------- -- 3. How did the damage or i �njury occur? (Give-full_details, use extra sheets if required) _ ------------------------------------------------------------------------ 4. What particular act or omission on the part .of county or district officers , servants or employees caused the injury or damage? eO� w�` w�-�S .�. /11/ (over) 5'. - What are the names of county or district officers, servants or employees causing the damage or injury? IY ------------------------------------------------------------------------- 6. Whatdamage or injuries 'do you claim resulted? (Give full extent of injuries or damages claimed. Attach-.two est�'Va s fc auto dame) --------4so119_,Z,,_L���----4-1, -- - - -- --� -------- 7. How was the amount claimed above computed? (Include the estimated at of any prospective ink y or damage. ) C 4` i�� Cod - _a 01 �4,v -----�Ll_ �, J-------------------------------------------------------- 8. Names and addresses of witnesses, doctors and hospitals.. l ------------------------------------------------------------------------- 9. List the expenditures you made on account of this accident or injury: DATE ITEM AMOUNT / so Govt. Code Sec. 910. 2 provides : "The claim signed by the claimant SEND NOTICES TO: (Attorney) or by some ersori o his behalf. " Name and Address of Attorney A Claimant' s Signature J . �'q v L D/Pf dE . Address ,4.Z_ C-.09 9 Telephone No. Telephone No. `//S 8 Z a NOTICE Section --72 of the Penal Code provides.: "Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town; city district, ward or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty. of_a felony. '", THE Farmers Insurance Gr'oup .F, COMPANIES Office Of County Administrator Contra Costa County 651 Pine Martinez, Ca 94553 Attention: Phyliss Young This letter is to inform you of a dangerous condition that existed on Stone Valley Rd. , approximately 1/4 mile east of Highway 680. On April 2 , 19B5 at approximately 7:00 P. M. I was driving Eastbound on Stone Valley Rd when the right front wheel of my 1985 Audi 5000 struck a hole in the road way causing extensive damage to the tire and wheel . My vehicle was inspected and repaired at Road America Tire Company, 2241 San Ramon Valley Blvd. , San Ramon. Phone 820-9054. Cost of repairs was $ 490.00. Repair estimate enclosed. Colored photos of the road are available for your review. I am hereby presenting a claim for damages in the amount ,of $490.00 Please direct any correspondence to me, Donald Hebert, 223 St Paul Dr. , Alamo, Ca 94507 Donald Hebert cc: B&B Paving 2490 Vists Del Monte Concord, Ca 94520 Attention: Wayne Kenyon } , � '_ ;; .::?.s •; cam. --- t. + a r �. �� Y 1 y. "• � s 1 i 51�'4 - : +" .. �'7"�: `moi�.r �.''• tf t1�. t _.. ............ r a a f- K � M�+�-:• •fie - n I i i 70te1�r��� >A O 70 Ol . �^N�� •'y � � r � wit.''" to � � o o ny NG f, > =a zo i1 df I.Y.3^`yam 0 ile .J 7� + t/3 Cri r a 000 3 G clc31 d d J m \ A A . tit or^ I 1 O Iiiat * i x th �o ' . � 1 •rr IPA to .. C p M 2 0 �► � w CLAIM ---0 3 BOARD OF SUPERVISORS OF CONTRA COSTA OOUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT May 21, 1985 governed by the Board of Supervisors, ) The copy oft s 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". V Claimant: Sanford L. Good County Counsel' Attorney: APR 2 5 1985 n/ Address: 5330 Victor Avenue Y-nfti cz, CP 9.4553 • E1 Cerrito, CA 94530 Amount: $218 .19 By delivery to clerk on r Date Received: April 24, 1985 By mail, postmarked on April 23, 1985 14 I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. Dated: April 24, 1985 PHIL BATCHELOR, Clerk, By Deputy ere 1 II. FROM: County Counsel TO: Clerk of the Board of Supervisors (Check only one) ( Y) 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 ounsel, (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 cop of the Board's Order entered in its minutes for this date. Dated: PHIL BATCHELOR, Clerk, By O � , 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 1e to esent a late claim was mailed to claimant. DATED: ,�a j-Jr� PHIL BATCHELOR, Clerk, By , Deputy Clerk cc: County Administrator (2) County Counsel (1) CLAIM TO: BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY • Instructions ---o Claimant A. Claims relating to causes of action for death or for injury to person or to personal property or growing crops must be presented not later -than the 100th day after the accrual of the cause of action. Claims relating to any other cause of action must be presented not later than one year after the accrual of the cause of action. (Sec. 911. 2, Govt. Code) B. Claims must be filed with the Clerk of the Board of Supervisors at its office in Room 106, County Administration Building, 651 Pine Street, Martinez, CA 94553 (or mail to P.O. Box 911, Martinez , .CA) . C. If claim is against a district governed by the Board "of Supervisors , rather -than the County, the name of the District should be filled in. D. If the claim is against more than one public entity, separate claims must be filed against each public entity. E. Fraud. See penalty for fraudulent claims,. Penal Code Sec. 72 at end of this form. RE: Claim by ) Reserved for Clerk' s filing stamps ) ) Against the COUNTY OF CONTRA COSTA) � np^may► or DISTRICT) P OL BAT-_!;E,0s (Fill in name) ) =R1:Bo6.kDO: S!J?[zvt°C ; Lb The undersigned claimant hereby Makes claim against e ou y f Contra Costa or the above-named District in the sum of $ 'Z\S • Icj and in support of this claim represents as follows: -------------------------------------------------------------------- l. When did the damage or injury occur? (Give exact date and hour) V. ———————————T———— --—— damage——--- o--r ——inj --——ury——occur?——————————————(Include--———city——and—————————county)—--------- 2. Where did the c kvz Co-.14_�06_ cm S,� Co 3. How did the damage or injury occur. (Give-full details, use extra sheets if required) ------------------------------------------------------------------------ 4. What particular act or omission on the part of county or district officers, servants or employees caused the injury or damage? (over) f r 5. What are the names 'of county or district officers , servants or employees causing the damage or injury? - --- -- -- Q- ---------- --------- ------------------------------------------------------- 6. What damage or injuries do you claim resulted? (Give full extent of injuries or damages claimed. Attach two estimates for au o damage) � '�<ro--` -�-v mow-►_ �c.c,�,,,�� � �R '2-�-�. ------------------------------------------------------------------------- 7. How was the amount claimed above computed? (Include the estimated amount of any prospect�iv� injury or damage. ) - - - ----------------` ---------------------------- 8-.--N-ames- ---and----addresses----------of witnesses, doctors and hospitals. ------------------------------------------------------------------------- 9. List the expenditures you made on account of this accident or injury. DATE ITEM AMOUNT Govt. Code Sec. 910. 2 provides : "The claim signed by the claimant SEND NOTICES TO: (Attorney) . . . . . . .or b erson ori his behalf. " Name and Address of Attorney �Clai�mant` Signat S-z 30yk--J�� _ . Address Telephone No. Telephone No. NOTICE Section 72 of the Penal Code provides: "Every person who, with intent to defraud, presents for allowance or for ,payment to any state board or officer, or to any county, town, city district, ward or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony. " RAFF{C COLLISION REPOR T—Property Dimage,only Original to officer,copy(les)to involved por(YM&/ [CIAL CONDITIONS N&R CITY JUDICIAL JUDICIAL OISTRICT NUM lKR G F t a COUItJY RE!gR TING DISTRICT - RR C.,.•+"gr1 '!' 1nO 'rf t—ir. T7 \J LL.IIh;;1 :OLLl SION OCCV RRQO ONi.,t� Aw TIME *400 NCIG*'_�, 44GG�J+J ,�`fi+ �-- £J , ,- � =�'6 �:V`"- G7L7 �"''.`J..t'✓�,`j .;�� �;�'."•.,_'''`; AT/NT[R![GT/ON WITH _ DAY OI I11 [K TOW AWAY! STATE"WY RQ LA TtD D OR: PRRT MIL[f oP f�Ir " ' ✓ ©YK/ /F i NO �Ytt� CJ NO PARTY NAr/MK,P "'T./{IOOLB.LAST r r MON IMUMPKR SKETCH j I /r ,{�Eitl�ir?/"•s//tl DRI,V R ADORES! CITY (j ISO CODE - I ` � ,� !7�"V !; L✓:r I f, /.S ,�{'i (i•7�G.. -G. /'7 - �J.a.i��•.r..� � V� ..I"�'.rr.. ....,;,�_NORTN .PED. OR!V[R/LICENSE NUM![R RTATE - liRTH DATE 17 PRO Va" VEHICLE YR MAK[fMOOEL LICEN/[NUMltR / l r r _., ETATt.J{'17 RI{C'�Y C. GOLJ9RTy//� DIRECT{ON or ONrj`AC ROff STREET ORM,t/G+�NWAY) +OTHER VaHIGLe DAMAGE REMOVED TO µ PARTY NAME M1004.8.FIRST,MIDO8.LAST )) ,. ,,+-- ,PHOHN NU ![ Mf,,, 1. er ! to '7 / 4 DRIVER ADDRESS CITYII �f ,+��yr, i ,+^ ,• ,/` / }� P,.jCObE NARRAT{Ya :•\ tr "} t Pat*. DjRy�W1R R5 LICt MJR NUMlER .A y� �JTa _ E{R/T/NDAT6 ,/y /sRi f / 1 � Y PKD YEN VE�N,•ICLE YR MANH(M ODEL - LICRN/E NUMlEq STATE M{f CaLLANEOUS - I ,. ' 'l/CYC. COLOR',' '•� O&RUC ION gri ONiAEROSS STREE7 OR:HIOMW AY ,.v u f 1{-r...- T'' ,i .OTHaR VEHICLE DAMAGE ! REMOVED To �.. II[►ORT/No are =; . ADE fEX NAME ADDRESS _ _ PNONR NUMERR T��• ;vY' Q O PARTV NO. V 7 • ADE sax NAM[ K _ PHONE PARTY O. "a o ca ADORES/ NNUMlRR N s .. . .a . .'PROP, NAME ADDRESS DAM AGED PROPa RTY 1 k , mac^ r'S ? �' -,+ ''. ,:•jy S",.- "'� :-- K Y T 4- �.4' b k saw - • .:-.`:, s:- c- .4..:'- �- ...� l ?. �§ ,�� .� �.. IMPORTANT READ CAREFUi.LY. yxtr .(, -t a- -''" "t `� +, ��*y �i' 4'# c •p.- s. '. ry".. c+y X. !',r'"�i< 3` r cT :•.. "#-a'.'r� :R`r'r'"'`' : •`'Q.• 'T"" u'"'S5 'T'`k 'Y.,e-r` *t ',Z•r . 1y�1; Fa. t r ^ . Keep this report. This is your`recordrof this accident.,To comply with California Ve`hlcle-Code Section X0002(duty:' where property damaged), You must either= T r „ - .•�i. �•. " y�, -'�,�"�"-r F •{t { - ' .=a Give the owner ,dr person +n charge of such property the name and address of the driver and owrnec of-the Veh or to the absence of the owner. ' ' s5 -},,. �.`"'.7 .sL ,rx r r u, -*f�1 �.r.� -ys^`. ..._ ]. ,.., :•�. ;.�_,"� •.'}r'h{.$'S^+.�„'�.. - Y..a],y�}�tJ'?•y •»' ? b --Leave a.written notice in a conspicuous place on`the other vehicle or damaged property,^giving the name and - < address of the driver and own circums er of the vehicle involved and a statement of the tances i L"� �G :.This information is necessary for the completion of your State SR-1.Rep6rt and Insurance Rep rt �w :VEHICLE CODE SECTION 16000 - ` J The,driverMof a rvehicle involved in an acclzi dentYresulting in damage t, the property of any'{�NE party in excess of thea, amount stated in V C:16000 or in the injury or death of any person MUST submit a State Injury or Damage Report, t Form SR-1 to the California Department of Motor Vehicles within 15 days Note Failure to comply may result in suspension of your driverIs license y s Form SR-1 may be obtained from the Department of Motor Vehicles, the California Highway Patrol, any police station, motor vehicle club, or insurance agent .rl" .-. _- - .' :.. ... -. :. .,_ „�' .. .. f .._ - ..,5r T t Yom. �r+�__ ..r ,;-• . lf,City or State property is damaged,you will be contacted regarding possible liability y- . BM VV' PORSCHE PRECISION AUTO BODY 630 SAN PABLO AVENUE, ALBANY, CALIFORNIA 94706 TELEPHONE 527-3590 ESTIMATE OF REPAIRS Owner Address ,3 - City Insurance Co. Address Phone Year / License � Make j ,r Mode W �rr< Number 11Iz/�y 7 /.3Date _ QUAN. DESCRIPTION OF LABOR OR MATERIAL MATERIAL LABOR T _-lr.2�- - lv..� 7 ' 03 PARTS PRICES BASED ON STANDARD CATALOGUE PROCUREMENT PRICE LISTS SUBJECT TO TOTAL CHANGE WITHOUT NOTICE. PROCUREMENT AND DELIVERY CHARGES MAY BE ADDED FOR I SPECIAL SERVICES ON ITEMS NOT AVAILABLE LOCALLY. MATERIAL (/ The above is an estimate based on our inspection and does not cover additional parts or labor which may TOTAL LABOR be required after the work has been opened up. Occasionally after work has started worn parts are discovered which are not evident on first inspection. Because of this the above prices are not guaranteed. TOTAL MATERIAL / REGISTERED AUTOMOTIVE REPAIR DEALER REG. # 55105 , Estimated by TAX TOW SERVICE AUTHORIZED AND ACCEPTED Date SUBLET REPAIRS By Owner C or Agent TOTAL / a'rp�mitljijonr: 524=2721 171[banp 36obp *bop 702 *an j"Jablo ,2brnur • 241banu; California 94706 ESTIMATE OF REPAIRS Owner Address City Insurance Co. Address Phone Year , License --s `q � Ma ` .>�� Mo ,� `) Number //TT Date .� QUAN. DESCRIPTION OF LABOR O ATERIAL MATERIAL LABOR L1: / PARTS PRICES BASED ON STANDARD CATALOGUE PROCUREMENT PRICE LISTS SUBJECT TO TOTAL CHANGE WITHOUT NOTICE. PROCUREMENT AND DELIVERY CHARGES MAY BE ADDED FOR SPECIAL SERVICES ON ITEMS NOT AVAILABLE LOCALLY. MATERIAL The above is an estimate based on our inspection and does not cover additional parts or labor which may TOTAL LABOR �J< <�( be required after the work has been opened up. Occasionally after work has started worn parts are 71 discovered which are not evident on first inspection. Because of this the above prices are not guaranteed. TOTAL MATERIAL REGISTERED AUTO TI E REPAIR DEALER-#2919 TAX Estimate TOW SERVICE r AUTHORIZED AND ACCEPTED Date SUBLET REPAIRS By Owner or Agent TOTAL CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or District ) NOTICE TO CLAIMANT May 21, 1985 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 Ronald Timothy Ward and 915.4. Please r ;�gto�gnings". Claimant: Marshall & Moore APR 2 3 1985 Attorney: Pier 24, The Embarcadero Address: San Francisco, CA 94105 MBrtIl1nZ, GP. 94553 Amount: $117, 058 . 00 to date By delivery to clerk on Date Received: April 22, 1985 By mail, postmarked on gyp,-; 1 19 , 19 8 5 I. FROM: Clerk of the Board of Supervisors 70: County Counsel Attached is a copy of the above-noted claim. Dated: April 23, 19 8 BHIL BATCHELOR, Clerk, By AMA 0 Deputy -==a Cerve1 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: 4 -,;z 4- 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 ,of the d's Order entered in its minutes Por his date. Dated: 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 present a late claim was mailed to claimant. DATED: S� a $s PHIL BATCHIIAR, Clerk, By } , Deputy Clerk ec: County Administrator (2) County Counsel (1) CLAIM T0; BOARD OF SUPERVISORS OF 'RA COk*Qi�8pplicationto: .!� Instructions to ClaimantC!erk of"Board ' M rtinez,California 54553 A. -Claims relating to causes of action for death or or injury to person or to personal property or growing crops must be presented not -later than the- 100th day after the accrual of the cause of action. Claims relating to any other cause of action must be presented not later than one year after the accrual of the cause of action. (Sec. 911.2, Govt. Code) B. Claims must be filed with the Clerk of the Board of Supervisors at its office in Room 106, County Administration Building, 651 Pine Street, Martinez , California 94553. C. If claim is against a district governed by the Board of Supervisors, rather than the County, the name of the District should be filled in. D. If the claim is against more than one public entity, separate claims must be filed against each public entity. . E. Fraud. See penalty for fraudulent claims, Penal Code Sec. 72 at end of this form. RE: Claim by )Reserved for Clerk's filing stamps RONALD TIMOTHY WARD ) Against the COUNTY OF CONTRA COSTA) P PRoV, 1985 or DISTRICT) PHIL BATCHELOR F1 n name ) CLERK B ARP 0i 5U;-L :1;,C R_ 9 Genufv, The undersigned claimant hereby makes claim against the County of Contra Costa or the above-named District in the sum of $117 , 058 . 00 , to date and in support of this claim represents as follows: S. When did the damage or �n�ury occur? Give exact date and fiourj January 10, 1985 at 6:50 p.m. WFiere di tfie damage or �nlury occur? ZInc�ude city and county] Shady Glen Road, unincorporated area of Contra Costa County, near city limit of Walnut Creek. 3. $ow did the damage or �n�ury occur? Give �uII details, use extra . sheets if required) Driver of 1970 Camaro automobile, headed southbound on Shady Glen Rd. (near 271 Shady Glen Rd. ) , failed to negotiate an unmarked right angle curve and ran virtually head-on into vehicle driven by Claimant R. Timothy Ward. Mr. Ward' s vehicle was "totalled, ". his carpentry tools were destroyed and he was severely injured as result of the collision. See attached ----------- ---------------:-- -------- ----- ------ r--- -----apage. What particular act or omission on the part o� county or �xstr�ct ' officers, servants or_employees caused the injury or damage? Combination of narrow roadway, blind curve, no speed warning, no curve warning, no lane separation, and no other motoring safety devices present, combined to provide a "trap" for unwary motorists on that road, and thus constituted a dangerous condition of this public property. (over) 5,. What are the names of county or district officers, servants or employees causing the damage or injury? • . Unknown at this time. �. W�iat damage or �n�uries do you clam resulted? ZG�ve �u�� extent of injuries or damages claimed. Attach two estimates for autodamage) Claimant' s vehicle destroyed, carpentry tools rencered unusable . Claimant was severely injured: contusions and cuts, injuries to head, chest, legs, and ankle. Claimant lost his job because he was unable to work. . ------------------------------------------- above --------------- -�------ ---- -- 7. How Nas the amount claimed above computed? (Include the est�oated amount of any- prospective injury or damage. ) Medical:. approx. $1, 000 , to date. Property damage: $10, 558 . 00 Wage loss: approx. $5,500, to date. General damages: $100, 000 . 00 This claim will be amended when additional damages have been ascertained. U ----------and--- ---------- ----T------------------ Names addresses of witnesses, doctors and hospitl . This information is still being investigated. List the expenditures you made on account of this accident or injury: DATE ITEM AMOUNT Claimant will provide documentation when it is received by him. Govt. Code Sec. 910.2 provides: "The claim signed by the claimant SEND NOTICES TO: (Attorney) or b ome person on his behalf. " Name and Address of Attorney ��Iualt-�w�Attorney) MARSHALL & MOORE Claimant's Signature Pier 24 , The Embarcadero (BY ATTORNEY) San Francisco, CA 94105 Claimant ' s 5508 Nebraska Dr. , Concord, CA Address: 94518 Telephone No. ( 415 ) 543-3924 Telephone No. ( 415 ) 672-9471 NOTICE Section 72 of the Penal Code provides: "Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city district, ward or village board or officer,- authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony. " CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Claim Against the County, or bistriet ) NOTICE TO CLAIKANT May 21, 1985 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 T� &Al "Warnings". Claimant: California Casualty COu��Y (David Brennan) , X985 Attorney: 200 South Manchester APR 2 P.O. Box 5995 Gp 94453 Address: Orange, California � 92667 �Tr 11 Ma�(1neZ, Amount: $1602.13 By�ellpvery to clerk on April 23, 1985 Date Received: April 23, 1985 By mail, postmarked on I. FROM: Clerk of the Board of Supervisors 70: County Counsel Attached is a copy of the above-noted claim. Dated: April 23, 1985 PHIL BATCHELOR, Clerk, By Deputy Cervelli II. FROM: County Counsel T0: Clerk of the Board of Supervisors (Check only one) (1C ) 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: Deputy County Counsel Ill. 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 of the Board's Order entered in its minutes for this date. Dated: - 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 70: (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 ent a late claim was mailed to claimant. DATED:�� _ PHIL BATCHELOR, Clerk, By , Deputy Clerk cc: County Administrator (2) County Counsel (1) J RECEIVED APR 151985 California Casualty Public Works Dept.{th Floor April , 1985 Contra Costa County RECEIVED Public Works Department 651 Pine ST. APR.9-3, 1965 Martinez, CA f Kll DAT!!4E.0" Pcnlli5� ?L't�:5:::: Br :.•rn�r OUR INSURED OUR CLAIM NO. ACCIDENT LOCATION David Brennan 795988 O'hara Ave. YOUR INSURED YOUR CLAIM NO. DATE OF ACCIDENT Driver: Obie Don Anderson I Unknown 2/26/85 ❑ Your company has been named as the insurance carrier for the person responsible for the damage to our insured's automobile. ❑ We shall forward copies of the repair invoices when they are received. Attached-are invoices for the necessary repairs in the amount of $1 ,602.13 , which includes our insured's $250 deductible. ❑ Sometime ago we sent you our subrogation claim, but we have not received an acknowledgment. Please advise us promptly the position you are taking on our claim. ❑ The insured's collision deductible has been waived. Please make payment'• to this company -only. ❑ The documents you requested are enclosed. ❑ Enclosed are executed releases. Please forward payment as agreed upon. ❑ Since we have been unable to reach an agreement, we are filing with the Arbitration 1cmnittee. ® Your driver rear ended our assured and our in reports injuries. Har rosby I!riS DEP AR . - PERSCNAL LMS c r insured PL, 22 4176] California Casualty&Fire Insurance Co. California Casualty Indemnity Exchange California Casualty&We Insurance Co. California Casualty Insurance Co. California Casualty General Insurance Co. 200 South Manchester P.O.Box 5995 Orange California 92667 (714)937-0130 ale, t• MATERIALC MAGE CLOSING REPORT DATE OF LOSS LOG # i DATE OWNER CONTACTED �` Z� DATE ASSIGNED DATE CLOSED 2 ,Z� DATE INSPECTED s1 i OWNER'S NAME LOSS CODE i PLACE OF INSPECTION SETTLEMENT CODE 11 ESTIMATE: FULL SERVICE REPAIR SHOP 0 CLOSED WITHOUT ESTIMATE i ' J D REINSPECTION E3 CLOSED NO CLAIM DRIVE-BY CLOSED NO CLAIM—UNDER DEDUCTIBLE FIELD INSPECTION (ESTIMATE PREPARED) 0 TOTAL LOSS Dosis tviAN� i POLICY NUMBER I 'MO.8 DAY CLAIM NUMBER ..ADJ.-- - OFF DAFT NUMBER" ISSUE DATE '"' UNE C C. AM�NT"�+ ,j ?9sg8� 6 5 0 2 ` .. tNSUR �. 1010 80 DAYS.:-: i + FROM ISSUE DATE' + i UPON ACCEPTANCE Y TO THE ORD R OF: .Cal' Casualty �.•._.. CI[:] FO (DRAFTIDRAWM OMPANY MARKED XjPAYABLETHROUGH IAC ITY EXCNANGEIRST INTERSTATE BANK -•.x:11-57/657. . C AL INS CE C0. �.;`'OFCALIFORNIA 1210--•._ - ) °SAN MATED,CALIFORNIA RNIA C 6 FIRE fNSURANCE CO.T i!300(1/85) - .- ORNIA CASUALTY GENERAL INSURANCE CO. OUNTEpSlGN RE REQUIRED OVER 15,000.00 ' r.... _ a FILE COPY = ss.xs DRAFT NP 6 S"v ALREADY ISSUED TO FOR S l �3 L V CONDITION OF UNIT AT TIME OF INSPECTION: UNREPAIRED REPAIRED PARTIALLY REPAIRED iibUTHORIZED BY I� oi USED PARTS CONSIDERED: YES NO REMARKS i EXPLAIN BASIS FOR DEPRECITION/ALLOWANCES: ms's -, �- �c_ CLOSING REMARKS: . � AC-378(3/83) APPRAISER/ADJUSTER ,e - r� Caldbmia Casualty i� CLAIM PHOTOGRAPH RECORD Insured Policy No.or Claim No. Claimant PHOTO #1 Taken J PHOTO #2 Taken D TE fN0 Negative availab� ❑ Yes No Negative availabl ❑ Yes Car pictured is: Insured's ❑ laimant's Car pictured is: Insured's ❑ imant's TOyoTA�7 I 1 ^I I Vl 1 1 Submitted by: Date AC—339 OLICY.Np ,.- l oAo Catifomia Casualty OFFf ESS --- :LAIM NO ",� REPAIR ESTIMATE CITY STATE ZAP )A'E EXAMINER.S NAME NSUR CLAIMANT PHONE NO. A J 1LAND rE O d STATE g .INE PAIR LACPARTS E DESCRIPTION OF WORK OL INC LABOR PANT SUBLET 1 2 1Z .3 4 y-blt"_c 5 8 9 10 „ 44 . 3 s, 12 + 13 14 15 16 17 18 n �..- (J 19 20 REPAIR SH L DEDUCTIBLE TOTALS I _J ADDRESS &JAA4X ALLOWANCE CITY DEPRECIATION GROSS PARTS PHONE NO. TOTAL E -%DISCOUNT �j � AGREED PRICE BY: NET PARTS LABOR HRSIi-Z /@ I ESTIMATE PREPARED BY PAINT 3 SUBLET I Oil, DEPRECIATION BASED ON TAXES A 'zTHIS IS NOT AN AUTHORIZATION TO REPAIR NOR AN ADMISSION OF LIABILITY GRAND TOTAL 4 - NOSUPPLEMENTWILLBEHONORED UNLESSAUTHORIZEDBYCALIFORNIA CASUALTY. COLLECT FROM OWNER CAL. CASUALTY PAYS PL-33d(iiia~) WHITE COPY:FILE YELLOW COPY:SHOP PINK COPY:CUSTOMER