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HomeMy WebLinkAboutMINUTES - 03011994 - 1.25 CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Claim Against the County, or District governed by) BOARD ACTION the Board of Supervisors, Routing Endorsements, ) NOTICE TO CLAIMANT MARCH 1, 1994 and Board Action. All Section references are to ) The copy of this document mailed to you is your notice of California Government Codes. ) the action taken on your claim by the Board of Supervisors (Paragraph IV below), given pursuai' to Gove'rynn nt Coye Amount: Unknown Section 913 and 915.4. Please note all�`wn'rn:i:ngs"" U CLAIMANT: LARSEN, Alice A. ' . JAN 3 i nk ATTORNEY: Date received COUNTY COUNSEL ADDRESS: 2742 Oak Road # 179 BY DELIVERY TO CLERK ON _qq MAPTlNEZ,CALIF Walnut Creek, CA 94596 BY MAIL POSTMARKED: Hand Deliv r _d 1. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. ppH gg DATED: BtIL DeputyLOR, Clerk .I1. FROM: County Counsel TO: Clerk of the Board of Supervisors ( V) 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. The 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: County Counsel (1) County Administrator (2) ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER: By unanimous vote of the Supervisors present (V/� This Claim is rejected in full. ( ) Other: 1 certify that this is a true and correct copy of the Board's Order entered in its minutes for this date. Dated AAAL I PHIL BATCHELOR. Clerk. By %J _ n �,,Q11.,e . Deputy Clerk WARNING (Gov. code section 913) Subject to certain exceptions, you have only six (6) months from the date this notice was personally served or deposited in the mail to file a court action an this claim. See Government Code Section 945.6. You may seek the advice of an attorney of your choice in connection with this mutter. If you want to consult an attorney, you should do so immediately. *Far additional warning see reverse side of this notice. AFFIDAVIT OF MAILING 1 declare under penalty of perjury that I am now, and at all times herein mentioned, have been a citizen of the .United States, over age 18; and that today I deposited in the united Siates stat Service in Martinez. California.. postage fully prepaid a certified copy of this Board Order and Notice to Claimant, addressed to the claimant as shown above. Dated: aA.Alk BY; PHIL BATCHELOR by 2 Deputy Clerk CC: County Counsel County Administrator Claim lo: BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY INSTRUCTIONS TO CLAIMANT A. Claims relating to causes of action for death or for injury to person or to per- sonal property or growing crops and which accrue on or before December 31, 19870 must be presented not later than the 100th day after the accrual of the cause of action. Claims relating to causes of action for death or for injury to person or to personal property or growing crops and which accrue on or after January 1, 1988, must be presented not later than six months 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. (Govt. Code §911.2.) 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. 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 the end of this form. RE: Claim By ) Reserved for Clerk's filing stamp -�iG ; �• LA�2SEN ) ) as+irE. RECEIVED Oxy Against the County of Contra Costa ) or ) JAN 2$ 199Q District) CLERK BOARD OF SUPERVISORS Fill in name ) CONTRA COSTA CO. The undersigned claimant hereby makes claim against the County of Contra Costa or the above-named District in the sum of $ LAV1Ar c Q,Yfa lvi F,�x and in support of this claim represents as follows: -------------------- L -( aafWU41�_____- 1. When did the damage or injury occur? (Give exact date and hour) 3©, Rq3 2. Where did the damage or injury occur? (Include city and county) i ?6y"�_ C; -�-�1�� _ ao E DQ) a-Ps-Qo�_L_�_O_� el 3. How did the damage or injury occur? (Give full details; use extra paper if required) 4. What particular act or omission on the part of county or district officers, servants or employees caused the injury or damage? \ \ ti�vwu 4-oP VroU ( Dje_.� )k"b' P-$-tt qh ( ect.W1 41 (over) 5. What are the names of county or district officers, servants or employees causing the damage or injury? i \ CQ h�YC4 CO 3` � CO 1M� S SCO o L &)CLA d� G� l.{ 61,1 6. What damage or injuries do you claim resulted? (Give full extent of injuries or damages claimed. Attach two estimates for auto damage. �� +""P, , CU1w, ,��Vvy -b � tS, dpr t hyo.c�i yah�r,-•_ e�. a,�v= � �wg . 7. How was the amount claimed above computed? (Include the estimated amount of any prospective injury or damage.) A)0r r't� — Seems 2- 8. Names and addresses of witnesses, doctors and hospitals. tre S-U"-�4 oQ w�f" Pini e.� OL °f 9. List the expenditures you made on account of this accident or injury: DATE ITEM AMOUNT S f{C"' ®,►n . Gov. Code Sec. 910.2 provides: ' 1 "The claim must be signed by the claimant SEND NOTICES TO: '_(Attorne ) or by some person on his behalf." Name and AddressP'6fr-Attorney.AL" . o� Claimant's Signature LA)0 1.VV-4A—Civ..e. ) (Address) C—I:R- Ot LP�5-16 Wa,t V4+ Telephone No. a� 13 2- - Zt3 Telephone No. U) O 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, city or district board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is punishable either by imprisonment in the county jail for a period of not more than one year, by a fine of not exceeding one thousand ($1,000), or by both such imprisonment and fine, or by imprisonment in the state prison, by a fine of not exceeding ten thousand dollars ($10,000, or by both such imprisonment and fine. CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Claim Against the County, or District governed by) BOARD ACTION the Board of Supervisors, Routing Endorsements. ) NOTICE TO CLAIMANT MARCH 1 , 1994 and Board Action. All Section references are to ) The copy of this document mailed to you is your notice of California Government Codes. ) the action taken on your claim by the-Board of Supervisors (Paragraph IV below), given pursuant I N Dv nt ole M Amount: Unknown Section 913 and 915.4. Please note a lD I1 U 6 CLAIMANT: James W. Dent' Education Center J N 2 8 Mt . Diablo Unified School District ATTORNEY: Date received COUNTY COUNSEL ADDRESS: 1936 Carlotta Drive BY DELIVERY TO CLERK ON Tqni1,qrg MARTINEZ,CALIF Concord;: CA 94519-1397 BY MAIL POSTMARKED: January 26 , 1994 1. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. FH gg DATED: �'0?,V - 9 call DepuLyLOR, Clerk � .Il. FROM: County Counsel TO: Clerk of the Board of Supervisors ( Vf 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. The 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: Je.1,, Z If' BY: Deputy County Counsel I1I. FROM: Clerk of the Board TO: County Counsel (1) County Administrator (2) ( ) Claim was returned as untimely with notice to claimant (Section 911.3). IV. BOARD ORDER: By unanimous vote of the Supervisors present ( ,YThis 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 II �. (. i cl J PHIL BATCHELOR, Clerk, By [ d_._QQ„e ) Deputy Clerk 7- WARNING (Gov. code section 913) Subject to certain exceptions, you have only six (6) months from the date 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. *For additional warning see reverse side of this notice. AFFIDAVIT OF MAILING 1 declare under penalty of perjury that I am now. and at all times herein mentioned, have been a citizen of the United States, over age 18; and that today I deposited in the Unitedtotes stal Service in Martinez. California. postage fully prepaid a certified copy of this Board Order and Notice to Claimant, addressed to the claimant as shown above. Dated: BY: PHIL BATCHELOR by 9Q. , ��a ,��, Deputy Clerk CC: County Counsel County Administrator %Eo Se v L� .' MT.DIABLO UNIFIED SCHOOL DISTRICT _ JAMES W.DENT EDUCATION CENTER RECEIVE 1936 Carlotta Drive � E C IV E JAN I ��4 Concord,California 94519-1397 510)682-8000 MDUSD R f JAN 2 7 1994 -.. MALi JIENJANCE&(Y R�T,,c., PROPERTY DAMAGE REPORT w CLERK BOARD OF SUPERVISORS Date: CONTV'A COSTA CO. / / To: Contra Costa County Sheriff's Dept. Form to be completed and ( distributed as follows: Address: 5- ��, r �%2� jPo4, /0Original: Home Canary & Pink: Maintenance 2 9�.SS3 (Attach Work Request), Goldenrod: School Phone: A billing for property damage attributable to (name of student) will be forwarded to you by our Fiscal Services Department for damages as follows: Date: 1/ 13/94 School Site: Riverview Middle School Description of Damage: Three fence posts are bent and mesh is separated from several posts. (Fence was damaged when it was hit by a sheriff's vehicle while chasing a suspect. ) Actual costs of repairs will be determined by our Maintenance Department upon completion of the work. Please be advised that you are responsible for payment of the above-listed damages. After receipt of the billing, your prompt payment will be expected hank you for your cooperation. (S ' in a Ad strator' s Signature) (To be Completed Site A inistrator) Percent of the total repair costs are chargeable to the above student: (100%, 50%, etc. ) . If more than one student is responsible for this damage, attach all applicable Property Damage Reports to the Maintenance Work Request for repair of damages. If damages are to a "fixed asset" , list engraved/assigned tag number: ---------------=------------------------------------------------------------ (FOR MAINTENANCE USE ONLY) Craft(s) Labor Cost $ Date Repairs Completed Material Cost $ Code Total Cost $ BSO 544 (Maintenance Supervisor' s Signature) Rev. 12/89 o>Dpv NZ O��:� .9' O� !�O wl D� d w �aN �Np'" 3 CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Claim Against the County, or District governed by) BOARD ACTION the Board of Supervisors, Routing Endorsements, ) NOTICE TO CLAIMANTS 1, 1994 and Board Action. All Section references are to The copy of this document mailed to you is your notice of California Government Codes. ) the action taken on your claim by the Board of Supervisors (Paragraph IV below), given pursuant! GoI f ((_Ume IJGtr' LudelTi Amount: 10,000.00 + Section 913 and 915.4. Please note !a10 •Warnings" U ' SII CLAIMANT: NAVA, Jerome A. If FEB 2 i ATTORNEY: William J. Hooy, Esq. NTYCOU�iSEI OU Hooy & Hooy A Professional Law CorpOate received COMARTINEZ,CALIF ADDRESS: 3125 Clayton Road, Second Floor BY DELIVERY TO CLERK ON Februa 1 1994 Concord, CA 94519 BY MAIL POSTMARKED: Hand Delivered I. FROM: Clerk of the Board of Supervisors TO: County Counsel Attached is a copy of the above-noted claim. ppHH B DATED: BILL Deputy OR, Clerk .II. FROM: County Counsel TO: Clerk of the Board of Supervisors ( 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. The 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: t Dated: t- e1xa , 1 01 3 BY: r �� Deputy County Counsel LII. FROM: Clerk of the Board TO: County Counsel (1) County Administrator (2) ( ) Claim was returned as untimely with notice to claimant (Section 911.3). JV. BOARD ORDER: By unanimous vote of the Supervisors present ( 01 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: ,�i� _'q°� _PHIL BATCHELOR. Clerk, By 2 . �" ail QO 12. . Deputy Clerk WARNING (Gov. code section 913) Subject to certain exceptions, you have only six (6) months from the date 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. *For additional warning see reverse side of this notice. AFFIDAVIT OF MAILING 1 declare under penalty of perjury that I am now, and at all times herein mentioned, have been a citizen of the United States, over age 18; and that today I deposited in the United States stat Service in Martinez, California, postage fully prepaid a certified copy of this Board Order and Notice to Claimant, addressed to the claimant as shown above. Dated BY: PHIL BATCHELOR byy �� d.�J[J� �. Deputy Clerk CC: County Counsel County Administrator ,..: RECEIVE® FS 06 CLAIM AGAINST PUBLIC ENTITY — 1 (Government Code, Section 910 et seq. ) CLER COBOARD PITRAO OS A CO.F SU,,rims MND DELIVEKD TO: Supervisor THOMAS POWERS, Chairman, and to the other Supervisors of the County of Contra Costa, State of California : The claim of JEROME A. NAVA ( "Claimant" ) respectfully shows : (a) Name and post: office address of Claimant : JEROME A,. NAVA, 3956 Alameda Drive, San Diego, California 92103 . (b) Name and post office address to which Claimant desires notices to be sent : . JEROME A. NAVA, c/o WILLIAM J. HOOY, ESQ. , HOOY & HOOY, A Professional Law Corporation, 3125 Clayton Road, Second Floor, Concord, California 94519. (c) Date, place and other circumstances of the occurrence or transaction which crave rise to the claim asserted: In some 25 years of service with the County, Claimant, as Alcohol Program Chief, was instrumental in developing in the Department of Health Services the overall County program for prevention and treatment of alcoholism. This program has been imminently successful and was a source of considerable pride and accomplishment for the entire County Civil Service . Because of Claimant' s innovation and perception, considerable amounts of Federal and State moneys were made available to the County to implement new approaches to combat this difficult and pervasive problem. In 1990 , Health Services Director, MARK FINUCANE ( "FINUCANE" ) , obtained approval of the Board to merge the Alcoholism Abuse . Program and the Drug Abuse Program into a single entity. FINUCANE installed CHUCK DEUTSCHMANN ( "DEUTSCHMANN" ) as the Drug Abuse Supervisor. The merger process was a rather difficult one, since DEUTSCHMANN appeared to consider his appointment as a license to "get rid" of those involved in the County Alcohol Program. He and FINUCANE initiated a series of "reorganizations" of this portion of the Department and used these to decimate the Alcohol Staff, who had, together, built all these highly successful programs . Claimant resisted the wholesale dismissals/transfers of the Alcohol Staff and, by so doing, incurred DEUTSCHMANN' s undying wrath. In fact, on several occasions, DEUTSCHMANN told Claimant outright that 'he' d "get (Claimant) too" . Claimant brought these matters to FINUCANE, but these threats continued unabated. At the same time in the course of these reorganizations, FINUCANE/DEUTSCHMANN created "new" supervisory positions within the combined Substance Abuse Division, which were designed to exercise, among other things, the functions of the former Alcohol Staff . They filled these "new" positions with hand-picked individuals from the outside, almost all of whom appear to be in their late 30 ' s and 1 early 40' s . These supervisors had primary loyalty to FINUCANE/DEUTSCHMANN and rapidly formed a "clique" , which acted to exclude Claimant and others in the Alcohol Staff from significant activities in the Section. The overall effect was to "weed out" the older, more senior Alcohol Staff members, thereby achieving at least two obvious Departmental goals : (a) dramatically lowering the average age of the supervisory employees on the Substance Abuse Staff and (2) eliminating the extra burden of pension and other benefit payments on behalf of the former Alcohol Staff personnel , who were under the much-more-favorable Tier I Pension Plan. These changes also had the effect of creating a new hierarchy in the Section that would be less likely to challenge decisions by FINUCANE/DEUTSCHMANN in the use/misuse of alcohol moneys . Sadly, these changes also had the effect of depriving the County of the benefit of hard-earned experience, which had been accumulated by the Alcohol Staff in the administration of their programs . By the end of June, 1993 , virtually the entire former Alcohol Staff was gone, and the time was ripe to move directly against Claimant . At the Budget Hearings before the County Board of Supervisors in July, 1993, FINUCANE/DEUTSCHMANN recommended that Claimant' s position in the Health Services Department be abolished, supposedly "due to funding constraints" . Yet, at about the same time FINUCANE/DEUTSCHMANN requested authority to fill two (2) new full-time "specialist positions" in the Department . The Board considered these changes at its August 17, 1993 , meeting and again on October 19 , 1993 , and, at the latter, finally voted to abolish Claimant' s position, effective November 30 , 1993 . Claimant appeared at both meetings and protested these series of changes, making it clear that this action was unfair and discriminatory and would have the effect of forcing him out of County Service effective with the latter date . The Board made no real investigation into the charges, ultimately deciding they "did not want to get involved with personnel matters" and let FINUCANE/DEUTSCHMANN' s plans proceed. Claimant was "laid-off" on November 30 , 1993 . The irony here is that, in October, when the Board finally acted to eliminate Claimant' s job, Health Services had just received (September, 1993) some $1 . 1 Million in grants from the Federal Government, to fund new Substance Abuse (including alcoholism) projee'ts in the County. Claimant was one of those responsible for obtaining those grants, and the work involved in their administration was well withinhis experience . These involved long-term projects and well justified Claimant' s continued full-time employment with the Department . As Claimant recalls there was another $104 , 000 in annual drug/alcohol related funds, which were previously taken away by the State and which were, before the end of October, 1993 , restored on a permanent basis to the County. These funds also could have been used to aleviate any supposed "funding constraints" , which made necessary the elimination of Claimant as a County employee . As well , the two new 2 j ' Department specialists positions were ones, which could have been tailored to afford Claimant a permanent job, but neither FINUCANE/DEUTSCHMANN nor, ultimately, the Board saw fit to make that happen. It ' s worth noting that though several major Counties have reorganized their Substance Abuse Staffs, none have proceeded with the vindictiveness of the purge, which FINUCANE/DEUTSCHMANN employed in Contra Costa County. In every other case, excess personnel were absorbed by the system, through attrition, or moved into other County programs . And, equally significantly, several major counties (e .g. , Los Angeles, Orange and San Bernardino) have not consolidated their Substance Abuse Staffs, at all . It should not be a matter of pride for the County that the long-time and hard working Alcohol Staff was unjustly eliminated, as it was here, and that the Board of Supervisors, who ultimately had responsibility to oversee the conduct of the Department Heads involved, stood timidly-by and let this all happen. (d) Description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim: At 57 years of age Claimant has been forced from his permanent position as County Alcoholism Abuse Chief . This paid some $63 , 000 per year with full County medical , vacation, insurance and related benefits, and he has had to accept a job in the private sector over .500 miles away in San Diego, California, with no civil service "protection" . This new position pays only $45, 000/year and has no pension and only limited other benefits . In addition, claimant was forced to resign his part-time instructor job at Diablo Valley College, where, since 1976 , he had taught substance abuse avoidance courses and earned some $6 , 000/year. On the face of it, these changes will result in a minimum out-of-pocket-loss to Claimant of $25, 000/year through his normal retirement (2001) . Incidentally, this couldn' t have come at a worse time for Claimant, he having a long-established home in Orinda and two children, one already at U. C. Davis and the second one to enter college in September of this year. Along with these extra expenses and his sharply reduced income, he now has to pay to commute from San Diego on weekends just to see his wife and family. Once claimant' s son has graduated from High School , claimant' s wife expects to give up her unique job as a floral designer, which she enjoys, to come to San Diego to be with claimant, resulting in further losses to the family unit not yet ascertained. The salary and benefit losses set forth above are only part of the story. Claimant has been shut-out from accumulation of pension benefits under the Tier I County Plan in his most productive pension years . This will have catastrophic effects on what he will now get as opposed to what he could have expected to have taken home had he been allowed to go to normal retirement . Indeed, he was still under the old Tier I County Plan, and, as he understood it, his pension benefits could have been extended to both his wife 3 and children (as alternate beneficiaries) had he so opted. And, Claimant expected to do so. The damages from this aspect alone are expected to be in excess of $500 , 000 . And, there are the intangibles (e .g. , emotional distress over his shabby treatment , blatant discrimination and retaliation because of age, forced separation from his wife because of his alternate employment in San Diego, etc . ) , which add significantly to Claimant' s overall loss . Claimant' s wife has also suffered severely by this uprooting of the family unit . Claimant can' t put an exact figure on these losses at present but would estimate these will at least equal the amount of his other losses . (e) The name or names of the public employee or employees causing the injury, change or loss, if known: MARK FINUCANE and CHUCK DEUTSCHMANN directly caused Claimant' s losses, but also the Contra Costa Board of Supervisors (THOMAS POWERS, THOMAS TORLAKSON, SUNNE McPEAK, JEFF SMITH and GAIL BISHOP) let it happen. They also must share the blame . (f) The amount claimed: The amount claimed will be well in excess of $10 , 000 and the jurisdiction over the claim will rest in Superior Court . DATED : January 31, 1994 . HOOY & HOOY, A Professional Law Corporation By WILLIAM J. HO Attorneys Claimant JEROIE A. NAVA 4 �) APPLICATION TO FILE LATE CLAIM BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA BOARD ACTION Application to File Late Claim ) NOTICE TO APPLICANT MARCH 1 , 1994 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: SEE ATTACHED LIST EXHIBIT "All Attorney: Jay Chafetz Address: 1375 Creekside Drive WInut Creek, CA 94596 Amount:Unknown By delivery to Clerk on JANUARY 27 , 1994 Date Received: January 27 , 1994 By mail, postmarked on Hand Delivered 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: a PHIL BATCHELOR, Clerk, By ��, Q Q„�, Deputy II. FROM: County Counsel TO: Clerk of the Board of Supervisors ( ) The Board should grant this Application to File Late yClail (Section 911.6).The Board should deny this Application to File Late (Section 911.6). DATED• Z I9y VICTOR WESTMAN, County Counsel, By Deputy III. BOARD ORDER By unanimous vote of Supervisors I (Check one- only) ( ) This Application is granted (Section 911.6). I.' ( ✓) 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: PHIL BATCHELOR, Clerk, By Deputy .WARNING (Gov. Code $911.8) If you wish to file a court action on this matter, you must first petition the approppliate .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. Yuu may seek the advise of any attorney of your choice in connection with this matter. If 31m want to consult an attorney, u should do so immediately. IV. FROM: Clerk of the Board T0: 1 County Counsel 2 County Administrator Attached are copies of ,the above Application. We notifed the applicant of the Board's action on this Application by mailing a copy of this document, and a memo thereof has ben filed and endorsed on the Board's copy of this Claim in accordance with Section 29703. DATED: jqq LLPHIL BATCHELOR, Clerk, By , , Deputy I 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 EXHIBIT "A" ACHESON, Lawrence / ADAMS , Steven ./ BRISCOE, Larry,-/ CARTER, Jaccarri/ HENRY, Isaac Jr. e"" JOHNSON, Mattie , McMILLAN, .Angelo McPHERSON, Allan McPHERSON, Nina PRESTON, Dorjon PRESTON, Jamersina ,� PRESTON, Louis ,/ RAZAWI , Asad ,.-- SMITH, sad ,/SMITH, Lois ✓ SMITH, Clyde SPICER, Louis ,/ SYKES , Eugene TATUM, Samson✓ 1 2 3 4 5 CLAIM OF LAWRENCE ACHESON, ) APPLICATION FOR LEAVE TO 6 STEVEN ADAMSv,` LARRY BRISCOE, PRESENT LATE CLAIM JACCARRI CARTER,✓ISAAC HENRY,,✓) (GOVERNMENT CODE SECTION 7 JR.; MATTIE JOHNSON, ANGELO ) 911.4) MCMILLAN;ALLAN MCPHERSON;,/` ) 8 NINA MCPHERSON.,/DORJON ) PRESTON, JAMERSINA PRESTON�r ) 9 LOUIS PRESTON,/ ASAD RAZAWI-,�✓) RECEIVED , , CLARENCE SMITH, CLYDE SMITH, ) LOIS SMITH,✓LOUIS SPICER,,� ) 10 EUGENE SYKES,SAMSON TATUM- ) JAN 2 71994 11 ) V. ) CLERK BOARD OF SUPERVISORS CONTi'A COSTA CO. 12 COUNTY OF CONTRA COSTA ) �D d��RED 13 HAND 1. Application is hereby made pursuant to Government Code 14 section 911. 4, for leave to present a late claim founded on a 15 cause of action for personal injury and property damage which 16 accrued on July 26, 1993, for which a claim was not presented 17 within the six-month period provided by Section 911.2 of the 18 Government Code. For additional .circumstances relating to the 19 cause of action, reference is made to the proposed claim attached 20 to this application. 21 2 . The failure to present this claim within the six-month 22 period specified by Section 911.2 of the Government Code was 23 through mistake, inadvertence, surprise and excusable neglect, 24 and the County of Contra Costa was not prejudiced by this 25 failure, all as more particularly shown by the attached 26 declaration of Jay Chafetz . 27 3 . This application is being presented within a reasonable 28 1 time after the accrual of this cause of action, as more 1 particularly shown by the attached declaration of Jay Chafetz. 2 WHEREFORE, it is respectfully requested that this 3 application be granted and that the attached proposed claim be 4 received and acted on in accordance with Sections 912 .4-913 of 5 the Government Code. 6 Dated: January 27, 1994 8 Jay Chafetz Attorney for Claimants 9 10 Note: The address to which notices relating to this application 11 are to be sent is Jay Chafetz, 1375 Creekside Drive, Walnut 12 Creek, California 94596. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF JAY CHAFETZ 1 2 I, the undersigned, declare: 3 1. I am the attorney for the claimants herein. 4 2 . The government claim of claimants is being presented six 5 months and one day after accrual of the cause of action, or one 6 day late due, to mistake, inadvertence, surprise and excusable 7 neglect due to my miscalendaring the date the application was due 8 such that the claim was not typed and mailed yesterday as it 9 should have been. In calendaring the time for the claim to be 10 presented, I put January 27, 1994 in my calendar, instead of July 11 26, 1994. 12 3 . The County of Contra Costa County is not prejudiced by 13 this claim' s being presented one day late because it is well aware 14 of the circumstances surrounding the claim in that thousands of 15 other people injured by the Richmond Chemical spill did present 16 their claims on time. The County of Contra Costa has therefore 17 long known of the claim, just not of these particular claimants. 18 Its investigation of the circumstances potentially subjecting it 19 to liability has not been delayed or prejudiced. Further, so man 20 claims have been presented that the County would not have been 21 able to do anything on this claim even if the claim had been 22 presented a day earlier. 23 I declare under penalty of perjury under the laws of the 24 State of California that the foregoing is true and correct. 25 Dated: January 27, 1994 26 27 Jay C afe z 28 3 GOVERNMENT CLAIM TO: CONTRA COSTA COUNTY The following claim is submitted pursuant to Government Code section 910. 1. Claimant's name and address: See attached list c/o Law Office of Jay Chafetz 1375 Creekside Drive Walnut Creek, CA 94596 2 . Send Notices To: Law Office of Jay Chafetz 1375 Creekside Drive Walnut Creek, CA 94596 3 . The Occurrence: a. Date: July 26, 1993 b. Place: Richmond and surrounding areas C. Circumstances: The circumstances are described fully in the complaint that has been filed against General Chemical Corporation, a copy of which is attached. Claimants intend to assert all possible causes of action and theories arising out of the above circumstances, including but not limited to dangerous condition of public property; negligence in the design, construction, ownership, maintenance, repair, alteration, control, inspection, or upkeep of the property; negligence in the supervision, control, and licensing of the activities of General Chemical corporation; allowing unsafe storage of volatile chemicals; negligence in the design and implementation of the system for warning potential victims of the chemical release; failure to maintain an adequate toxic spill response plan; negligence in the hiring of contractors and delegation or attempted delegation of the responsibilities outlined above; failure to warn; and all other theories raised by any of the other claimants regarding this chemical spill. Claimants under this government claim incorporate by reference, as though fully set forth herein, the claims of all other claimants. 4. General Description of indebtedness, obligation, injury, damage or loss: Damages for personal injuries, including medical expenses, wage losses, and pain and suffering; property damage. 5. Names of government employee(s) causing the loss: Unknown. 6. Amount Claimed: The amount claimed would fall within the jurisdiction of the superior court. Dated: January 26, 1994 Jay Chafetz Attorney for Claimants V i • TOXIC CLOUD ,(as . o£ 1.1/2.9/93) DOA. 7/26/93 Acheson, Lawrence Adams , Steven Briscoe, Larry Carter, Jaccarr i Henry, Arrwri: f a s t Johnson, Matt:l.e McMillan, Ancaelo McPherson, Allan McPherson, Hina Preston, Donjon Preston, Louis Itazawi, Asad Smith , Clarence Smith, Clyde Smith , Lois Slicer, Louis Sykes , Eugene `l'at:,un1, Samf:;oll i If---j 2 JAY CHAFETZ , ESQ. STATE BAR )E 9 57 7 8i.. 7 O 1375 CREEKSIDE DRIVE WALNUT CREEK, CA 94596 3 (510) 933-5890 . FD L[: C� Attorney for Plaintiffs C r� 3 SUPERIOR COURT OF TIHE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF CONTRA COSTA 10 LAWRENCE ACIIESON; STEVEN ADAMS ; ) CASE NO. : LARRY BRISCOE; JACCARRI CARTER; ) 11 ISAAC HENRY JR; MATTIE JOHNSON; ) CLASS ACTION ANGELO McMILLAN; ALLAN MCPHERSON; ) 12 NINA McPHERSON; DORJON PRESTON; ) COMPLAINT FOR DAMAGES , JAMERSINA PRESTON; LOUIS PRESTON; ) INJUNCTIVE RELIEF AND 13 ASHD RAZAWI ; CLARENCE SMITH; CLYDE ) RESTITUTION SMITH; LOIS SMITH; LOUIS SPICER; ) 14 EUGENE SYKES ; SAMSON TATUM; , j JURY TRIAL DEMANDED on behalf of themselves and on ) 15 behalf of all others similarly ) situated, ) ]G ) Plaintiffs ) 17 ) vs. ) 13 ) GENERAL CHEMICAL CORPORATION. , a ) 1,) Corporation; ROBERT JEWETT, and ) DOES 1 through 500, inclusive, ) 20 ) Defendants . ) 21 Plaintiffs and members of the class, by their attorneys, 22 bring this action to challenge defendants ' negligent conduct 23 resulting in the disbursement of the toxic substance oleum into 24 the atmosphere in and around Richmond, California on July 26 , 25 1993 . Plaintiffs and members of the class further challenge 26 defendants ' engagement in ultrahazardous activities including 27 the storage, handling, and transport of toxic substances, 28 1 1 2 including oleum, in the densely populated area in and around 11 Richmond, California. In addition, plaintiffs and members of ,1 the class challenge defendants ' unlawful business practices 5 concerning the storage, handling, and transport of toxic G substances on behalf of themselves and members of the general 7 public. Plaintiffs and members of the class seek compensatory 3 and punitive damages, injunctive relief, and restitution against 9 the named defendants, and complain and allege as follows: 10 THE PARTIES 11 1. Defendant GENERAL CHEMICAL CORP. (hereinafter "General 12 Chemical") is, and at all items material hereto, was, a Delaware 1:3 corporation with its principal place of business in Parsippany, 1,1 New Jersey. It is and was, through its officers, agents, and 15 employees, engaged in the business of storage, handling, and 16 transport of toxic substances, including oleum and sulfuric 1'I acid. It conducts business within the City of Richmond, Contra 18 Costa County, California. 19 2 . Defendant Robert Jewett (hereinafter "Jewett") is the 20 plant manager of defendant General Chemical ' s facility in 21 Richmond, California. On information and belief, plaintiffs 22 allege that defendant Jewett is, and at all times herein 23 mentioned was, a resident of the State of California. 2,1 3 . Plaintiffs and members of the class are ignorant of the 25 true names and capacities of the agents, servants, employees, 2G corporate officers, corporate management personnel , and other 27 persons responsible and others who acted concurrently, in 28 2 1 2 concert with, or directed the acts complained of herein, and accordingly names such defendants as Does 1 through 500. Each 4 of said defendants is legally responsible in some manner for the �- acts and practices complained of herein, and for the resultant damage to plaintiffs, class members similarly situated, and 7 affected members of the general public. �3 4 . Whenever reference is made in this complaint to any act of any corporate defendant, such allegation shall be deemed to 10 mean that such corporation did such act through its officers, 1] directors, employees, agents, and/or representatives while they 12 were acting within the scope of their actual and ostensible 1.3 authority. 145 . Plaintiffs and members of the class are informed and 15 believe, and on that basis allege, that the corporate defendants lG named herein had advance knowledge of the acts of their agents, 17 servants, corporate officers, corporate management personnel and 18 other employees who dealt with and corresponded with plaintiffs 1�) and members of the class, given its prior conduct, and that the 20 corporate defendants condoned, authorized or ratified the 21 wrongful conduct of each of the employees which underlies the 22 causes of action set forth herein and retained the benefit of 23 such wrongful acts. 24 6 . Whenever, reference is made in this complaint to any act 25 of defendants, such allegation shall be deemed to mean the act 26 of each defendant acting individually and jointly. 27 CLASS ACTION ALLEGATIONS 28 3 2 7 . This action is brought pursuant to California Code of . Civil Procedure Section 382 on behalf of a class. The class is 4 composed of all California persons proximately damaged by the 5 General Chemical toxic release of sulfuric acid and resulting G oleum into the atmosphere on July 26, 1993 . Specifically, the .l class consists o.f all persons who are owners of damaged real and 3 personal property in and around the area of the General Chemical 19 Corporation plant and of all injured persons present in the 10 vicinity and downwind of the General Chemical Corporation plant 11 in Richmond, California, including but not limited to, the areas 12 surrounding the General Chemical Corporation plant, Richmond, 13 North Richmond., Point Richmond, El Cerrito, Kensington, El 14 Sobrante, San _Pablo, Crockett, Martinez , Pinole, Pittsburg and 15 Antioch, California. 16 8 . This class is so numerous that joinder of all members 17 would be impracticable. Although the number of class members , 13 cannot be properly determined without discovery, plaintiffs are 19 informed and believes that the class is comprised of thousands. 20 of members. 21 9 . The claims of the named plaintiffs are typical of the 22 claims of all class members, all of whom have been subjected to 23 the defendants ' practices. The named plaintiffs, as the 24 representative parties, will fairly and adequately protect the 25 interests of the class by vigorously litigating this suit 26 through attorneys who are skilled and experienced in this type 27 of litigation. 28 4 1 2 10 . There are numerous common questions of law and fact 3 that predominate over any questions affecting only individual 4 members of the class. Among these questions of law and fact r� common to the class are: , G a. Whether defendants committed the violations of law .� alleged herein; 8 b. Whether -defendants participated In and pursued the acts complaint of; 10 C. Whether defendants acted willfully, recklessly, 11 with gross negligence or negligently in each and every 12 particular aspect of the handling of the oleum. 13 d. Whether defendants are strictly liable regardless 1,1 of fault, for the damages, injuries and losses resulting from 15 the spill ; 1G e. Whether defendants ' conduct constitutes a 1'1 nuisance; 18 f. Whether defendants ' conduct constitutes a 19 trespass ; and 20 g. Whether plaintiff and the class are entitled to 21 damages for economic injury, property losses, bodily injury, 22 emotional distress, annoyance, inconvenience, or loss ' of 23 enjoyment of legal rights and, if so, what is the appropriate 24 means of calculating such monetary damages. 25 11 . The questions of law and fact common to all members of 2C the class predominate over any questions affecting only 27 individual members, and the class action is superior to any 28 5 1 2 other available method for the fair and efficient adjudication j of this controversy. VENUE 12 . Venue is proper in Contra Costa County because the causes of action arose in Contra Costa County. Code of Civil 7 Procedure Sections 393 , 395 . 5 . 8I GENERAL ALLEGATIONS 13 . Defendant General Chemical engages in the business of 10 storing, handling, and transporting of toxic substances, . 11 including sulfuric acid, in the densely populated area in and 12 around Richmond, California. 1,) 14 . On July 26, 1993 , at approximately 7 : 30 a.m. , 14 Defendants were in the process of transferring sulfuric acid 15 from a tanker car into a storage tank when 9 , 500 gallons of the toxic chemical was leaked and released into the atmosphere in 17 the form of a toxic cloud that blanketed the area in and around 13 Richmond, California. The leak of toxic materials was not zJ sealed by defendants until approximately 11: 00 a.m. on July 26, 20 1993 . 21 15 . The toxic cloud spread from the General Chemical 22 Corporation plant for a distance of several miles, covering 23 parts of Richmond, North Richmond, San Pablo, El Cerrito, 2' Kensington, El Sobrante, San Pablo, Crockett, Martinez , Pinole, 25 Pittsburg, Antioch, Benicia, and Vallejo, California. 26 16 . The sulfuric acid cloud caused serious acute injuries, 27 including eye irritation, fainting, nausea, vomiting, reactive 28 6 1 2 airways, trouble breathing, coughing, skin irritation, throat 3 irritation, pain, suffering and emotional distress, and other 4 illnesses and injuries not yet determined. The toxic fumes also ,> spread corrosive substances that settled on cars, gardens, homes G and personal property, damaging paint finishes and contaminating 7 the ground, gardens and objects, and other injuries to property 3 not yet determined. 0 17 . Plaintiffs and members of the class reside within the 10 area covered by the toxic cloud and were within that area on the 11 morning of July 26, 1993 . 12 18 . Plaintiffs and members of the class all came into 13 contact with the toxic substance oleum on the morning of July 14 26 , 1993 as a result of defendants ' release of such substance 15 into the atmosphere as alleged above. 16 19 . Plaintiffs and members of the class all suffered 17 Physical injuries and/or property damage as a result of their 13 exposure to the toxic substance oleum alleged above. In doing lr) the acts herein alleged, defendants acted with oppression, 20 fraud, and malice and with conscious disregard for the rights 21 and safety of others, and plaintiffs and the members of the 22 class are therefore entitled to punitive damages. 23FIRST CAUSE OF ACTION FOR DAMAGED (Negligence) 21 20 . Plaintiffs reallege and incorporate by this reference 25 each and every allegation of this complaint. 2C 21 . Through and including July 26, 1993 , defendants, and 27 each of them, owed plaintiffs and members of the class a duty of 28 7 1 2 due care to store, handle, maintain, and transport ultrahazardous toxic substances, including sulfuric acid and ,1 oleum, in such a way as not to cause physical injury, emotional 5distress, or property damage to the plaintiffs and members of G the class by discharging such ultrahazardous toxic substances 7 into the atmosphere. 3 22 . Defendants, and each of them, breached their duty of care to the. plaintiffs and class members in that they: 10 a. Released the toxic chemical oleum into the 11 atmosphere in the form of a toxic cloud that blanketed the area 12 in and around Richmond, California; b. Failed to implement the necessary safety measures 1,1 to ensure that discharges of toxic substances into the 15 atmosphere in and around Richmond, California would not occur; 1f, C. Failed to design adequately, adopt, and implement 17 a toxic release response plan to prevent or mitigate the damage 13 to persons and .the environment from the release of hazardous 19 materials into the work place or the environment; 20 d. Failed to exercise reasonable care following the 21 rupture, to contain the spill ; 22 e. Failed to notify authorities and the general 2- public in a timely fashion of the full gravity and nature of the 24 spill ; 25 f. Failed to comply with applicable industry 26 standards, internal safety rules, and state safety laws, rules, 27 regulations and standards. 28 a 1. 2 23 . Defendants, and each of them, by their actions acted 3 negligently toward plaintiffs and members of the class. Such negligence directly and proximately caused plaintiffs and r_ members of the class to suffer physical injury, emotional distress, and mental anguish, in addition to other damages as 7 alleged herein. 3 24 . As a direct and proximate result of the conduct of defendants, and each of them, plaintiffs and members of the 10 class have sustained and will suffer the following injuries and damages: ll 12 a. Damages for physical injury; 1:1 b. Damages for mental anguish and emotional distress; 14 C. Damages for injuries to property. SECOND CAUSE OP ACTION 1 15 (Negligence Per Be) 16 25 . Plaintiffs allege and incorporate by this reference 17 each and every allegation of this complaint. 18 26 . The acts and omissions of the defendants were in 19 violation of the following statutes of the State of California, 20 as amended, and implementing rules and regulations: 21 a. Provision of California Health and Safety Code 22 Section 39655 , et seg. , 25500 et se . , 25167 . 1 et seq. , 28740 et 23 se . ; 41700, et sea; and 21 b. Provisions of California Business and Professions 25 Code Section 17200, et seg. 26 27 . Plaintiffs and the class are persons and entities 27 within the classes for whose protection the aforesaid state 28 9 1 2 statutes, rules and regulations were enacted. 1 28 . The injuries and damages suffered by the plaintiffs 4 and the class .resulted from occurrences or omissions which the 5 aforesaid state statutes, rules and regulations were designed to 6 prevent. 7 29 . Defendants had a duty to obey each and every statute, 3 rule and regulation herein mentioned. 30. By their acts and omissions, the defendants did not do 10 what might be expected of persons of ordinary prudence acting 11 under the circumstances who were desirous of complying with the 12 law. 111 31. As a direct and proximate result of the negligence per 1,1 se of defendants, plaintiffs and the class were injured and 111, suffered the damages to their persons and property alleged 16 herein. 1�l THIRD CAUSE OF ACTION FOR DAMAGES 13 (Strict Liability for Damages Caused by Ultrahazardous Activity) 19 32 . Plaintiffs reallege and incorporate by this reference 20 each and every allegation of this complaint. 21 33 . Storing, handling, and transporting sulfuric acid and 22 oleum is an ultrahazardous activity. 23 34 . There existed a high degree of risk that the storage, 21 handling, and transportation of sulfuric acid and oleum would 25 cause physical harm to people and property. 26 35 . The probability that great harm would result from a 27 release of sulfuric acid and oleum into the atmosphere was high. 28 10 X 2 36 . Release of sulfuric acid and oleum carries the 3 potential of severe personal injury, death and property damage 4 to employees and residents. r 37 . The dangers associated with the storage, handling, and Gtransport of oleum were exacerbated in this case by the 7 proximity of a large residential community. 3 38 . The release of oleum in this case caused plaintiffs and members of the class physical injury and discomfort 1Q including burning eyes, nausea, and difficulty breathing. 39 . The release of oleum caused plaintiffs and members of 1"l 12 the class to fear for their future health since the long-term 1.1 effects of exposure to the sulfuric acid created by the release 14 are unknown. 1� 40. The release of oleum has caused the value of ]C; plaintiffs ' and class members ' real and personal property to 17 decrease due to the possible residue left by the release and the 13 fear of future releases of oleum or other toxic chemicals. 1�) 41. The risks associated with the storage, handling and 2() transport of sulfuric acid and oleum are such that they could 21 not be eliminated by the exercise of reasonable care. 22 42 . The storage, handling, and transport of sulfuric acid 23 and oleum are not matters of common usage. Defendants are 24 involved in a specialized business, not carried on by the great 25 mass of mankind or many people in the community, that involves 26 the handling of dangerous chemicals. 27 43 . The dangers to health posed by the storage, handling, 28 11 1 2 and transport of sulfuric acid and oleum outweigh the benefit to. .3 the community that defendants' operations represent. FOURTH CAUSE OF ACTION FOR INJUNCTION AND DAMAGES (Public Nuisance) 44 . Plaintiffs reallege and incorporate by this reference 0 each and every allegation of this complaint. 7 45. Plaintiffs and the class have proprietary interests in 3 certain real and personal private property in the areas around and down wind from the toxic release including . the ownership of 10 homes within the area covered by the toxic oleum cloud created 11 by the acts of the defendant on the morning of July 26, 1993 . 1Z 46 . The conduct of defendants constitutes a nuisance within the meaning of California Civil Code Section 3479 in that 14 it is specially injurious to the health and offensive to the senses of plaintiff and the class, and specially interferes and 1G disturbs their_ comfortable enjoyment of life and of their 17 property and unlawfully prevents their customary use of their 13 property. Deceases in the use and enjoyment of property 1J _include, but are not limited to, the following: 20 a . During the time the toxic cloud hovered above 21 their homes, plaintiffs and members of the class could not 22 safely remain in their own yards; b. During the time the toxic cloud hovered above 24 their homes, the plaintiffs and members of the class could not tri safely remain in their own homes with the windows open; 26 c. Plaintiffs and members of the class ' gardens and 27 lawns were exposed to the toxic cloud' s fall-out and have been 28 damaged; 12 2 d. Plaintiffs and members of the class ' houses were 3 exposed to the toxic cloud's fall-out and their surfaces, 4 including roofing materials and paint, have been damaged. 47 . The release of oleum into the atmosphere has instilled G a fear into plaintiffs and members of the class that a similar 7 release could occur , in the future, such that they cannot 3 comfortably enjoy their real property. The possibility of a future release also significantly decreases the value of plaintiffs and members of the class ' property: 11 48 . Plaintiffs and members of the class are subject to worry and fear due to the possibility of future medical problems 1.1 caused by exposure to the sulfuric acid caused by the release. -14 49 . The fear of future personal injury, property damage, 15 and diminution of property value alleged above has caused the lG plaintiffs and .members of the class emotional distress. 17 50. To the extent the nuisance is not also a private nuisance, the nuisance is specially injurious to plaintiffs and 19 to the class, in that plaintiffs and the class are members of 20 the public who reside, work, own property or conduct business 21 within the area immediately affected by the toxic release, or 22 who have economic interests directly and adversely affected by 21 the nuisance unless and until it is abated, and who have 24 suffered interference and injury to their use and enjoyment 25 which is different in kind from the injury suffered by the 26 general public. 27 FIFTH CAUSE OF ACTION FOR INJUNCTION AND DAMAGES (Private Nuisance) 28 13 1 2 51. Plaintiffs reallege and incorporate by this reference 3 each and every allegation of this complaint. 4 52 . The conduct of defendants constitutes a private r nuisance within the meaning of California Civil Code Section 6 3481 in that it has caused substantial injury to and 7 interference with the comfortable enjoyment and. use by plaintiff 3 and the class of their private real and persona-1 property, and 0 their incidental rights to use their property in the customary 10 manner. 11 53 . Defendants ' unlawful and unsafe business practice are 12 an on-going nuisance. �s 54 . As a result of defendants ' one-time nuisance and 14 ongoing nuisances, plaintiffs and members of the class have 111) suffered damages as alleged above. 16 55. Unless the nuisance is, abated, plaintiffsand the 17 class ' property and rights of enjoyment will be progressively 13 further damaged. 19 (Trespass)CAUSE OF ACTION FOR INJUNCTION AND DAMAGES (Trespass) 20 56 . Plaintiffs reallege and incorporate by this reference 21 each and every allegation of this complaint. 22 i 57 . The oleum release by defendants became a toxic cloud of sulfuric acid which invaded the airspace above plaintiffs 24 and members of the class' homes. 25 58 . Defendants intentionally and/or recklessly committed 2G the wrongful act of trespass by causing sulfuric acid and its Z7 breakdownroducts to invade the real and. personal p p property of 28 14 1 2 plaintiffs and the class by the spread of a toxic cloud. 3 59 . The invasion of oleum caused damage to plaintiffs and members of the class ' property and personal injuries to r� plaintiffs and members of the class as alleged above. G SEVENTH CAUSE OF ACTION FOR INJUNCTIVE RELIEF AND RESTITUTION (Violation of Business & Professions .Code Section 17200 7 et seq. "Unfair Trade Practices Acte) 3 60 . Plaintiffs reallege and incorporate by this reference 0 each and every allegation of this complaint. 10 61 . Plaintiffs bring this cause of action acting as 11 private attorneys general to challenge the practices of 12 defendants. The Unfair Trade Practices Act defines unfair 1:) competition to include and "unfair, " "unlawful , " or "fraudulent" 14 business practice. Business and Professions Code Section 17200. The Act authorizes injunctive relief and restitution for 1G violations. ID. , Section 17203 . Defendant General Chemical ' s 17 business practices regarding the storage, handling, and 13 transport of toxic substances, including oleum, in the densely 1111 populated area in and around Richmond, California are unlawful 20 and unfair. Plaintiffs request that this Court enjoin these 21 practices and exercise its ancillary jurisdiction pursuant to 22 the Unfair Trade Practices Act to order the defendant General 23 Chemical make restitution to all persons who have suffered from 24 such acts. 25 62 . Beginning at an exact date unknown to plaintiffs but 26 at least since July of 1989 , defendant General Chemical has 27 committed acts of unfair competition, as defined by Business and 28 15 r i 2 Professions Code Section 17200. Defendant General Chemical ' s 3 practices involving the storage, handling, and transport of 4 toxic substances, including oleum, in the densely populated area r in and around Richmond, California are unlawful, unfair and G fraudulent business practices because: 7 a. Defendants negligently stored, handled, and 3 transported toxic substances, including sulfuric acid and oleum at. their facility in Richmond, California. 10 b. Defendants engaged in the ultrahazardous activity 11 of storing, handling, and transporting toxic substances, 11 including sulfuric acid and oleum, at their facility in 13 Richmond, California which resulted in the release of oleum into 14 the atmosphere in the form of a toxic cloud that blanketed the 15 area in and around Richmond, California. 1G C. Defendants violated California health and Safety 17 Code Section 25500, et seg. by designing, adopting, and 1 `3 implementing a wholly inadequate toxic release response plan 19 which did not prevent or mitigate the damage to persons and the 20 environment from the release of hazardous materials into the 21 atmosphere. 22 d. Defendants violated California Health and Safety 23 Code Section 41700, et seq. by discharging toxic air 24 contaminants into the atmosphere which caused injury, nuisance 25 and annoyance to the public; endangered the health and safety of 26 the public; and caused injury and damage to property. 27 63 . The acts and practices described above were and are 28 16 1 , 2 likely to endanger members of the general public and, therefore, 3 constitute unlawful or unfair business practices within the meaning of Business and Professions Code Section 17200. 64 . The unlawful and unfair business practices of defendants described above constitute a continuing threat to •l members of the public in that, unless restrained, defendants 3 will continue. to engage in the unlawful and unfair conduct of which plaintiffs complaint. 10 65. Pursuant to Business and Professions . Code Section 11 17203 , plaintiffs are entitled to enjoin these practices and to 12 obtain restitution of all funds obtained by reason of these 1:1 unlawful , and/or unfair practices. Plaintiffs, individually, 14 and on behalf of all affected members of the general public, 15request injunctive relief and such orders as may be necessary to 16 restore to any person in interest, any money or property, real 17 or personal , which may have been acquired or damaged by 18 defendants by means of such unlawful and unfair business 19 practices. Plaintiffs are also entitled to recover their 20 reasonable attorneys' fees pursuant to Code of Civil Procedure 21 Section 1021. 5. 22 EIGHTH CAUSE OF ACTION (Fraud and Deceit) 21 66 . Plaintiffs incorporate each and every allegation of 24 the complaint. 25 67 . At all times herein mentioned, defendants expressly 26 and impliedly represented,p y p promised, and warranted that the 27 oleum and the tank car in which it was contained were safe and 28 17 1 would not endanger the public and that defendants would sell, 3 maintain, dist-ribute, lease, control, use, transport, and unload 4 the tank car and the oleum in a safe manner and without danger r of leakage or spillage. They further warranted that the tank G car and the valves and equipment thereon was manufactured, .1 constructed, assembled, operated and used so as to avoid injury 3 and damage. , 68 . When defendants made these representations, defendants 10 knew their representations to be false, and these 11 representations were in fact made in bad faith and with the 12 intent to defraud and deceive plaintiffs and others and with the 1;1 intent to induce plaintiffs and others to place reliance upon 14 defendants. 1J 69 . At the time these representations were made by 1G defendants, plaintiffs and the other class members were ignorant 17 of the falsity of defendants' representations and believed them 1$ , to be true. 19 70 . In reliance on these representations, plaintiffs and 20 other class members were induced to and did place reliance upon 21 defendants ' statements. Had plaintiffs and ' the other class 22 members known the falsity of defendants' statements, they would 23 not have placed. reliance on those statements. 24 71 . Defendants concealed the true facts from plaintiffs 25 and all members of the class 26 72 . Defendants continued their concealment of the true 27 'fats and represented to plaintiffs that they and all members of 28 18 1 2 the class were in no danger when in fact the health dangers from 11 exposure to oleum were very great. 4 73 . As a proximate result of defendants' fraud and deceit 5 and the facts herein alleged, plaintiffs and the members of the G class have sustained the injuries and damages alleged above. 7 NINTH CAUSE OF ACTION (Negligent Misrepresentation) 3 74 . Plaintiffs incorporate each and every allegation of this complaint. 10 75 . Defendants made these misrepresentations with no 11 reasonable ground for believing them to be true and defendants ' 12 misrepresentations were either grossly negligent or made in bad 1:1 faith. 14 WHEREFORE, plaintiffs pray: 15 1. For an order certifying the proposed class and any 16 appropriate subclass; 17 2 . That plaintiffs and members of the class be awarded 13 actual damages and punitive. damages sufficient to punish and 19 deter defendants and others from engaging in similar wrongful 20 acts, in amounts according to proof: 21 3 . That defendants be permanently enjoined from storing, 22 handling, or transporting of toxic substances, including 23 sulfuric acid and oleum, in the densely populated area in and 24 around Richmond, California in an illegal manner; 25 4 . That defendants be ordered to make restitution to the 26 plaintiffs and all other affected members of the general public 27 of any and all amounts collected through the unlawful and unfair 28 19 1 2 business practices alleged herein; 3. 5. An order requiring defendants to establish a monetary 9 fund to test and provide medical treatment to plaintiffs and members of the class; 6. That plaintiffs be awarded reasonable attorneys ' fees 7 and costs of suit; and 3 7 . That' plaintiffs and members of the class be awarded such other and further relief as the Court may deem appropriate, 10 just and proper. Dated• I 12 JAY IiAI�L`I'Z Attorney for Plaintiffs 1�l 14 15 1G 17 13 1J 20 21 22 2,1 24 25 2G 27 28 20 Proof of Service by mail 1 2 I, the undersigned, declare as follows: 3 I am over the age of 18 years, and not a party to the within 4 action. My business address is 1375 Creekside Drive, Walnut 5 Creek, California 94596. On the date set forth below, I 6 deposited in the United States mail at Walnut Creek, California, 7 in a sealed envelope with first class postage fully prepaid the 8 following document(s) : APPLICATION FOR LEAVE TO PRESENT LATE 9 CLAIM; DECLARATION OF JAY CHAFETZ; GOVERNMENT CLAIM; LIST OF 10 CLAIMANTS; COMPLAINT IN CONTRA COSTA SUPERIOR COURT ACTION NO. 11 2906 12 13 Addressed as follows: 14 15 Contra Costa County Board of Supervisors 16 Clerk's Office 651 Pine Street, Room 106 17 Martinez, CA 94553 18 I declare under penalty of perjury under the laws of the 19 State of California that the foregoing is true and correct. 20 Dated: January 27, 1994 21 Ratmond F. McKinno 22 23 24 25 26 27 28 \ 1 JAY CHAFETZ ATTORNEY AT LAW 1375 CREEKSIDE DRIVE WALNUT CREEK,CALIFORNIA 94596 TEL (510) 933-5890 FAX (510) 933-5620 January 27, 1994 rR AN 2 819% Clerk Board of Supervisors CLERK BOARD OF SUPERVISORS Contra Costa County CONTRA COSTA CO. (551 Pine Street, Room 106 Martinez, CA 94553 Re: Government Claim and Application for leave to present ]Late claim Dear Clerk: 1,nclosed is an original and one copy of an Application for Leave to 'Present Late Claim, Declaration of Jay Chafetz, Government Claim, List of Claimants, and Complaint in Contra Costa Superior Court Action No. 2906. Please return a file stamped copy of these documents in the envelope provided'. 17ery truly yours, ;.Tay Chafetz JC/7g