case no. 132929 09-28-15 city's rjn iso demurrer
TRANSCRIPT
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8/17/2019 Case No. 132929 09-28-15 City's RJN ISO Demurrer
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1 Vincent P. Hurley 1 11215
Ryan M.
Thompson
292281
2 LAV/ OFFICES OF VINCENT P. HURLEY
A Professional Corporation
3 28 Seascape Village
Aptos, California 95003
4 Telephone: (83 1) 661
Facsimile: (831 ) 661-4804
5
Attorneys for Defendants
FILE
SEP 2
2 15
TERESA A. RISI
LERK OF THE SUP.t;RIOR OURT
.
L.
_
J
IMUJNGS
-.
DEPUTY
6 CITY
OF
A R M E L ~ B Y T H E S E A and
LUKE
E. POWELL
7
8
9
10
SUPERIOR COURT
OF
THE STATE OF CALIFORNIA
COUNTY OF MONTEREY
11
JENNIFER
DA
SILVA, )
12 Plaintiff, )
13
vs. )
14 CITY OF CAR11EL-BY-THE-SEA; )
LUKE
E.
POWELL,
indn
·idually and in )
15
his official capacity
as
a Police Officer )
for the CITY OF C A R M E L B Y T H E ~ )
16 ~ E A COUNTY OF MONTEREY; )
MONTEREY COUNTY
SHERIFF' S )
17 OFFICE, and DOES 1 through 50, )
mclusive, )
18
)
Defendantc;. )
19 )
20
Case No. M132929
DEFENDANTS CITY OF CARMEL-BY
THg-SEA
AND LUKE E.
POWELL S
REQUEST FOR JUDICIAL NOTICE
IN
SUPPORT OF DEFENDANTS'
DEMURRER TO COMPLAINT OF
PLAINTIFF JENNIFER DA SILVA
Date: October 30,2015
Time: 9 :00a.m.
Dept.: 14
Date action filed: August 7, 20 15
21 Pursuant to California Evidence Code sections 452(c), (d)( I), and (h) and 453, and
22 California Rule of Court 3 .1306(c), Defendants CITY OF-CARMEL-BY-THE-SEA and
23
SERGEANT
LUKE
E.
POWELL
request that this Court take judicial notice
of
he following
4 items:
26 Plaintiff s Complaint for Damages against City of a r m e l ~ b y - t h e - S e a et al., bearing a
27 filing date
stamp by
above-captioned Court
of
August 7, 2015, a true and correct copy
of
28
which is attached as Exhibit A.
Defs'
RJN
ISO Demurrer Case No. Ml32929
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REQUEST FOR JUDICIAL NOTICE NO. 2:
2 Judge Robert O' Farrell' s Order After Submission, signed and filed November 19 , 2014,
3 granting Petitioner' s Petition for Order Relieving Petitioner from the Provisions of Cal. Gov' t.
4 Code section 945.4, a true nad correct copy
of
which is attached as Exhibit B.
5 REQtTEST
FOR
JUDICIAL
NOTICE
NO. 3:
6
Defendants request judicial notice of the time limltS in the following statutes
of
7 limitations for purposes of calculating the applicable periods and deadlines:
8 Cal.
Gov't
Code section 946.6(t):
In the event the court makes an order relieving the
9 petitioner from the provisions
of
Cal. Gov. Code section 945.4, suit on the cause ofaction to
1 which the claim relates must
be
filed with the court
\\ithin
30
days thereafter. A true and correc
11 copy
of
Cal. Gov' t Code section 946.6(f) is attached as Exhibit C.
12 REQUEST FOR JUDICIAL NOTICE NO. 4:
13 Plainti s May 5, 2015 Substitution
of
Attorney form filed with the Court, wherein
14 Plaintiff transitioned from her former attorney, Stephen F. Wagner, to her current attorney,
15 Andrew B. Kreeft, a true and correct copy of which is attached as Exhibit D.
16
Dated:
September1'(
,
20
15
17
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19
2
21
22
23
24
25
26
27
28
Dcfs'
RJ '>J
I
SO emurrer
LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation
By:
=t-L:--
RYANM. THOMPSON
Attorneys for Defendants CITY OF
CARMEL-BY-THE-SEA and LUKE E. POWELL
2
Case No. M132929
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EXHIBIT
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2
3
4
s
6
7
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I
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10 .
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I
12
.
ANDREW
B.
KREEFT (SBN 1 2 6 6 7 ~ )
LAURA.
L. FRANKLIN (SBN 282642)
BOHNEN, ROSENTHAL & KRFEFT
n Ml:1111 as Avenue, Swte 200
P.O. Box 1111
Monterey,
CA
93942-1111
Telephone: (831) 649-5551
Fac.'iimtle: (831) 649-0272
Attorneys
for
Plaintsff
JENNIFER
DASILVA
AUG • 7
20f5
~ E R E S A Ill
' ~ A t < Jr.: THE: SUP. BIOA COU RT
= ~ •
G Y M M ~ ~ - O . ' P t f r
CAS ' \ ~ A a ~ : N ~
l : : ~ ~ F E A E N C E
DAre
•
I , . > • •·- -··
· ~ < J _ - t ~
......
fi --...
TIME; 9:00
AM
.....
PLACE:
Courtroom f ~ . : nd Fr
1200Agua/ltoRd M · · ' oor
SUPERIOR COL"RT OF C ALIFORNl.A . onterey CA
93940
COUNTYOF
MONTEREY UNL
IMITED JL'RISDICTION
JENNIFER
DA
5ILV
A,
C
aseNc.M 1 3 2 9 2 9
Plamttff,
C O ~ L U I T F O R ~ ~ G E S
vs.
CITY OF· CARMEL-BY-THE-SEA; LUKE
E.
13 POWELL, individually and in bJs
offi.ctal
capacicy
·as a Pohce Officer f(lr theCITY OF [JURY TRIAL DEMANDED)
14 CARMEL-BY T H E S E A ~ COUNTY OF
MONTEREY; MONTEREY COUN1Y
15 S.HE:RIFF'S OFFICE, and DOES 1 through SOt
m"lu Sive,
16
17
Defendants.
18
PlainttffJEJ.'."'NIFER
DA
Sll..V fonnerly
known
as JeDlllfer
Little
("Plaintiff') hereby
19 alleges
a6
follow'->:
20 INTRODUCTION
21 This case arises from a
nt>n-Vlolent,
verbal dispute between two parents regarding their
22 ele\en year-old daughter' s cell phone use that wa unnecessarily s c a l a t . . ~ into an incident of
23 er.cessive force and unlawful detainment, whereby
Plaintiff
suffered serivus
and
permanent
24 bodily
injury
and other damages.
P ~ T I E S
26
27
28 I
•
I
1.
Plaintiff
s a resident
of
Carmel, Cahtorcia
in
the C'.ounty
of
Monterey and a
citi2.en
of he lTnited
States ofAmerica. At the time
of
the incidents complained
of
herem,
Plaintl.ffwas
a
37-year-old female with
no pnor
cnminal record
l
C O M P h ~ T F O R D M G
DaSilva v. City o Ca
rmel
by the Sea, et a
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2. Defendant CITY OF CARMEL-BY-THE-SEA is a local entity
in
the State of
2 California
within
the meaning of
Part
3 (beginning
\\ith §
900) ofDivision 3.6 ofTitle 1 of the
3 Government Code. The claims herein are brought against CITY OF CARMEL-BY-THE-SEA
by
4 and through
the
acts and omissions
of ts
Police e r g e a n ~
Defendant
LllKE E.
POWELL.
5
3.
Defendant LUKE E. POWELL ("SERGEANT POWELL")
was a
Police Sergeant
6 wtth the Cannel
Poli..re
Department employed y CITY OF CARMEL BY-THE·SEA at
all
7 relevant tanes mentioned herein. At all times material to the incidents giving rise to Plaintiff's
8 clauns in th1s matter, SERGEANT POWELL was acting within the course and scope fhis
9 emph>)'tnent f\lr CITY OF CARMEL BY-THE-SEA. 1he claims herein are brought against
10 SERGEANT POWELL in Ius indi\
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3
was the agent ofboth COUNTY OF MONTEREY
and
the SHERIFF'S OFFICE and was acting
within the course and scope
of
his agency.
7.
Plamtiff is tgnorant of the true names
and
capacities of defendants
DOES
1
4 through 50, inclustve, and therefore sues these defendants by such fictinous names. Plamtiffis
5 informed and believes and thereon alleges that each of hese i c t i b . o ~ l y named detendants is
6 respOnsible
in
some manner for the occurrences alleged in this complamt. Plamttff will seek
7 leave of
he
Court to amend her complaint to state the names and capacities ofDOBS 1 through
8 S once ascertained.
9 JURISDICTION AND VENUE
10
8.
This action is brought pursuant to 42 U.S C. § 1983, the Fourth and Fourteenth
11
Amendments to the United_States Consb.tution, and by the laws and Constitution of the State
of
2 California
13
9.
The amount in controversy, excluding interest
and
co ts, exceeds the minimum
14 jurisdictional limit oftlus Court.
15
16
17
18
19
20
2
22
23
24
25
26
27
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10. Venue is proper in this Court because all of the events alleged herein occurred
within
the
ounty ofMonterey;
Plainb.:ff
is and
was at
all times mentioned herein a restdent of he
CountyofMonterey; all defendants conduct operationsWithin the County ofMonterey; and all
witnesses etther work or live
wtthin
the County
of
Monterey,
FACTS
11.
Plaintiffresides
n
Cmnel, California With her daughter, J
erma,
who was eleven
years old on the night in question. Jenna's father, Daniel Balint ( BaH.nf'). is Plaintiff's ex-
husband and resides in a separate restdmce m Cannel, California, approximately one mtle a.way '
from P l a i n t i f f ~
re idence
at the time in question. Plamttff and Bahnt had beei'I divorced for
approximately six yeaN when the events complamed ofherein took place .and they generally
enjoyed an amicable relationship. The shared custody agreement between Plainnff and Bahnt
providoo that Plaintiff had custody of Jenna on weekdays, while Balmt had custody ofJenna on
weekends.
1 /
3
COMPLAJNT FOR DAMAGES
D a S i l t ~ a v. City QjCarme -by·tlr.e-Se
, et al
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12. On the evening ofAugust 7, 2013, a W edncsday, Plaintiff and her daughter Jenna
had a disagreement at their house regarding Jenna's online activities via a ceHular telephone that
had recently been given to Jenna by Balint without Plaintiff's consent. Plaintiff was concerned
about certain safety implications of her
e l e v e n - y e a r ~ o l d
daughter havmg unsupervtsed internet
access at her fingertips at all tJmes,
and
threatened to take the phone away from
J
enna. Being
upset w1th her mother for threatening to take her cell phone away, Jenna called her fathet and
asked him to
come
pick her up.
13 . Even though it was a p p r o ~ . i m a t e l y 9.00 p m on a weeknight, during which time
PlamtJffundisputedly had legal custody ofJenna, Balint drove to Pl.untitrs house. picked up
Jenna,
drove
her to
the house
of
a nearby
family member
J e n n a ~ J
Aunt) and left
her
there
for the
night. Plaintiff protested Balint's taking ofJenna, but
Jid
not h y ~ i c a l l y try tl stop him.
14. Plaintiff subsequently·called 911 and asked who she rshould contact to
:report
her
daughter being taken
by
Balint in contradiction with thetr custody agreement The 911 operator
referred Plaintiff o the SHERIFF'S OfFICE.
lUther
than
invoh·e
the
SHERIFF'S OFFICE,
Plaintiff
dectded to try to work things out directly WlthBalmt.
15. Balmt
had
not
yet returned
to his apartment when PJa.innff n v ~ In acc.ordanr.e
\\lith thm usual custom suui practice, Plaintiff entered Balint's apartment through his front door,
which he regular )' kept unlocked, and waited for Balmt to return from dropping Jenna
off
at her
nearby aunt s house.
16, Upon Balinfs ret.urn, he and Plaintiff began
to
argue regarding the cell phone
that·
Balint had given Jenna and the safety s s u e ~ relating to Jenna's internet c c e ~ ; s through t h l ~ phone.
The
ax Nffient, while non-\liolent,
became
heated. At one point, Plaintiff
threatened
to report
Balint's taking ofJenna in contradiction with their custody agreement. Ralmt responded
by
saying he would call the police himselfto report that Plaintiffwas trespassing on his property. In
her fiu'Jtration, Plamtiff eneouraged Balint to call the police and then
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question Plaintiff,
while
SERGEANT POWELL began questioning Balint (Sergeant Pon and
2 SERGEANT POWELL hereinafter
collectively
referred
to
as
the
officers ). Both
Plaintiff
and
3 Balint confirmed that their dispute had been verbal only, and that there was no prior history of
4
domestic violence
or
physical altercations of any sort
between them.
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18.
After questtoning Bahnt, SERGEANT POWELL returned
to Plaintiff, who
was
in
the process of ghmg her statement to Sergeant Pon. Wlnle Sergeant Pon had been civil in his
questioning
of
Plaintiff,
SERGEANT POWELL was immediately
confrontational and aggressive.
Plaintiff maintained a calm,
respectful
tone as SERGEANT POWELl- repeatedly demanded to
know why Plaintiffwas so mad Jr • • ~ o angry despite Plaintiff's repeated response that was
not angry. Plaintiff
attempted
to explain to SERGEANT POWELL
that
she wM at Balint's
restd.ence because
Babnt
had inappropriately taken
her
Jaughter in contradiction with their
custod} agreement,
and that the whole ordeal
related
to a
disagreement about their
daughter s cell
phone
c ~ s Plaintiffbecame disconcerted as SERGEANT POWELL
repeatedly mterrupted
her and accused her oflying.
As SERGEANT POWELL conttnued his a g g r e ~ i v e quesnomng, Plaintiff grew jl
increasingly agitated anc.l expressed her confusion as to why she was suddenlybeing interrogated I
19.
I
in thtSi manner. Plaintiff
finally s t t e ~
OK,. I
need
to have
my
attorney
here. I m 8orry,
I m not
I
talking and began to back away from the officers.
At
this point. SERGEANT POWELL j
advanced towards Plaintiff, telling
her
to calm down and physically blocking her from moving
I
further down the driveway. Feeling h r e t e n e ~ Plaintiffwalked
to Wards
Balint's apartment, in
I
I
the
o p ~ that
Balint could
help
defuse
the
situation. SERGEANT
PO\V ELL
advanced closer to
Plaintiff, telling her that she could not enter Balint's apartment.
As
Plaintiff tumed
bael
from j
Balint's apartment,. SERGEANT
POWF.LI.
grabbed her
;um and
apphed
an
ann bar takedown to 1
force
Plaintiff
to the ground. 'Ibis takedown ; a u s e t l Plaintiff's head to hit the asphalt ground w1th
I
such force as
to
give Plamtrff a black eye and open a large laceration
on
her tbrehead, which
j
would eventudlly require
eight
stitches, aCT scan. and other treatment.
In
the coun;e
C\fthis •
I
tak:edown by SERGEA'NT POWELL Plaintiff further suffered additional vvounds to the left s1de I
of ~ face and her anns, as well as permanent damage to her right thumb. Once
on
the ground,
I
I
aSilva v
C:t}
ojCarmel bv the ea ei: ai. i
OMPLAINT
FOR
DAMAGES
5
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Plaintiff was placed in handcuffs.
2
20. Plaintlffbegan to scream as she immediately felt the blood dripping from her head
3 wound down her face, into her mouth, and onto her clothes. As Plaintiff began to scream,
4 SERGEANT POWELL stated, Doyou like it? Stay right there. Stand up straight.
5
21. Balint, having emerged from his apartment upon hearing Plaintiff's screaming,
6 retrieved a towel from his residence and held t on Plaintiff's head to help control the bleeding
7 until Monterey Fire Department and Carmel Regional Fire Ambulance arrived
on
the scene.
8
. Plaintiff was transported to Community Hospital of the Monterey Peninsula
9 (CHOMP) by Carmel Fire Ambulance for treatment, where she was attended to by the
10
,Emergency Room phystcian. Plaintiff
was
dressed
n
workout clothes (yoga
a n ~
and a tank
I
11 top), which were now covered n blood fi:tlm the wound on her head. She bad not been allowed to
12 retrieve her jacket out of her car. The Emergency Room medical statJ having seen Plamtiff
13
arrive at CHOMP late at night. n
the
custody ofa police officer, and covered in her own blood,
14 repeatedly accused Plainnffofbeing on drugs. One nurse n particular kept shining a
flwmgb.t
in
15 Plaintiff's eyes, as she asserted: You're on
drugs
Just tell me what you're
on.
Crank'? Pep?
16 Pot? While Plaintlffhad consuttted two glasses ofwine earlier that evening,
she
had not
17 ingested any
illegal substances, prescription drugs,
or
even over-the-counter medications
at
the
18 tlme in question.
19
23
. Plaintiff was subsequently transported by SERGEANTPOWEU .to the Carmel
20 Police Department for processmg. Eventually, Plaintiff was transported by Sergeant Pan to
21 I Montere} County Jail However. the staff at Monterey County Jail would not accept Plaintiff
22
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because her injuries required further treatment. Accordmgly, Sergeant Pon transported Plaintr.ff
to Natlvidad Medical Center, where Plaintiff received eight stitches to close the lc1Ceranon on her
forehead; multlple CT scans
of
her face, head.'bram, neck, anJ spine; at ~ t one x-ray ofher
hand; and
other
treatment.
24
Upon bemg released from Nati Vidad Medical Center, Plaintiffwas transported
back to Monterey County Jail and placed n a group holding ceU where various other inmates
came and v.ent during Plaintiff 's detention. After several hours, whenPlaintiff's head wound
6
COMPl-AINT
FOR
DAMAGES
DaSi
va
v
Glty o a r m e l - b y -
S e a
et :zl
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began to bleed through the gauze, a jail nurse changed the dressing
on
Plaintiff's. wound and
warned Plaintiff that she should
.u le
extra caution to avoid the wound getting contaminated
because the holding cell was very dirty.
25.
Sever&l hours later, the gauze covering Plaintiffs
head
wound had once again
become saturated Wlth blood. At this time, another inmate in the holdmg cell Plaintiff
pushed the button to call the deputy for assistance. DOE
1,
a female deputy, appeared in response
to the inmate's call. While DOE 1
was
p r e ~ e n t at the holding cell attending to the other inmate,
Plaintiff mentioned to DOE 1 that
she
was
in
need ofnew gauze for her head wound. Appearing
annoyecl,
OE
1 replied to P l a i n t t f f ~ request b y saying.
'·'you
wouldnt need more gauze
ifyo11
would stop picking at it. When Plamti:ff replied that she had not been ptcldng at the wound,
DOE 1 turned to Plamttff, smded, and said
in
a sarcastic tone, •· think you're a danger to
yourself.'' Plairttdi mmediately replied to DOE
1,
•'You
know
that 's not true.'' At which
time,
DOE 1 physically removed Plaintlff from the group holding cell and esoorted her
to
a sohtary
cell.
26. Plaintiff was infonned that she was being placed on a psychiatnc hold pursuant to
Cal. Welf. and
nst
Code section
5150
( 5150 hold ) for being a danger to herself. Plainttffwas
stnpped
of
all ofher clothing
in
VIew of
multtple
county employees and at least one male
inmate
and then g Ven a rectangular heavyweight garment, approximately the size ofa bath towel, to
wrap around herself.
For sevetal hOUI' , Plointiff
was
held in a vay hot
soUt.u:y
holding cell
wi1h cementI
walls. n place
of
a toilet, there was a hole in the floor with Vlstble feces from previow. inmates. I
The cell wntained one glass window, which fac.:ed the glass window of the
adja
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making a praying symbol with her hands. Plaintiff subsequently observed this same employee
2 through the cell window as she reviewed Plaintiff's records with a look
of
disapproval on her face
3 and then
stated
to
another employee, There are no priors Approximately
on¢
hour later,
4 Plaintiff was allowed to put her blood-oovered clothes back on and return to the group holding
cell.
6
29.
n total, Plaintiff
wa l
detained for approximately 18 hours at the Monterey County
7 Jail. Plaintiff estlmates that approximately three ofsuch hours were spent m the solitary cell on
8 the alleged S1
SO
hold. Plaintiff
was
not allowed
to
contact her family at any time during her
9 detention. Plaintiff was ultimately released on her O\\'D. accord wtthout bail.
10 30.
Plaintiffhad been booked
into Monterey Co11Ilty Jail
on two charges; Obstructing
11
an Officer, Penal
Code§
148(a)(l),and Pubhc
n t o ~ i c a t i o n
Penal Code§ 647(f). No testing of
12 any sort was ever conducted by any officers, tnedtcal staff. or anyemployee of COUNTY OF
13 MONTEREY or CITY OF CARMEL BY THE-SEA in connection \\-ith the charge ofPublic
14 Into"llication. All such charges against Plaintiffwere dismissed on March 18, 2014.
15 '
31. As a
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Monterey County (Case No. CRMS314352A).
2 b)
Plaintiff
was a defendant in a criminal
case that arose
out
of he
same operative
3 facts as
set
forth
in the
Claim filed against the CITY
OF
CARMEL-BY-
THE-SEA.
4 c) The charges against Plaintiffwere dismissed on March 18, 2014 following the
5 presentation
of
evxdence and arguments by
counSel
in
a
Motion
to
Suppress Evidence
(PC
6 . 1538
.5 before the
Hon. Samuel Lavorato, Jr.
7 d) Plaint iff genuinely beheved that, as a prerequisite to her filing o a clann
8 against
CITY
OF CARMEL-BY-THE-SEA,
the
criminal matter needed to reach final chsposition.
9 34. After denials by CITY OF A R M E L B Y ~ TilE-SEA ofboth the Claim and
10
P l a ~ n t i f f
s subsequent Application
for
Leave to
File
Late
Claim, Plaintiff
filed
a Petition
for
Order
11 Relieving Petitioner from
ProvisiODS
ofGov't Code§ 945.4 (the
Petttionj
nMonterey County
12 Superior Court.
13
35. On November 19, 2014, the Hon. Robert O Farrell granted the Petition. hold ing
14 that Plamtiffacted under a reasonable m1stake
when she
waited to file her Claim until the day
15 after the related cnminal
matter
reached
its final
disposition.
16 FJRST CAUSE OF ACTION
7
42 U,S.C.
§
1983-VIOLATION OF· CIVIL RIGHTS
(Against Defendants LUKE
E.
POWELL and
18
CITY
OF
A R . M F . L B Y ~ TBE...SEA)
19
I
36. Plaintiff
repeats
and repleads
each and
every allegation
oontatned
in
paragraphs
1
20
through 35, and by this reference
mcorpourtcs
the same herein as though fally et forth.
21 37.
Defendant
CITY
OF CARMEL-BY-THE-SEA is and was responSJble for
22 over8eeing the implementation and
promulgation
of official policy for
its
police force, Carmel
23
Police
Department,
which
included
SERGEANT POWELL at all
times herein
mentioned.
CITY
24
OF
CARMEL-BY-THE-SEA
was
deliberately indifferent to the need for ackquate training
and
25 supervision for its police offi;}ets, the fiulure of
which
caused constitutional violations upon the
26 citizeni) n general, n ~ l u i n g Plaintiffm pamcular.
27
38. Defendant SERGEANT POWELL was acting under
the color
oflaw, as an
23 authori7ed agent
ofDefendant
CITY
O f CARMEL-BY-THE·SEA,
while detaining,
9
COMPlAl:N
f
FOR
DAMAGES
DaS;Iva v.
Oi.y
ofCarmel-by-ttte-Sea et al
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:interrogating. and arresting Plaintiff, in furtherance ofhis duties.
2
39.
Defendant SERGEANT POWELL violated Plaintiff s civil rights
by
brutalizing
3 and
inflictmg
severe injury upon Plaintiff under the rulor o{law
with
force that was grossly
4 disproportionate in relation to
·the need
for action under the circumstances, and
by
subjecting
Plaintiff o an 11legal, improper, ar.d unlawful ~ e i z u r e ofher penon without probable cause,
6 privilege, or consent. Furthermore, SERGEANT POWELL s actions in aggresshely
7
mterrogating
l a i n t l t T n ~ e s s l y
and
mtentionally c a l a t c d
an
otherwi.se non-\iolent,
verbal
8 domestic·dispute into a physical altacation that fac .ilitated l a i n t : J f f ~ phy Sical injury and arrest.
9
10
11
12
3
14
15
40.
The ronstttutivnal deprivation of
Plaintiffs
nghts Y.as
ah;o
caused
by
a dc:.l1berate
indl.fference demonstrated
by
CITY
OF
CARMEL-BY-
THE
.-SEA
and perpetrated upon
Cltlzens,
such as Plaintiff. Such failures include not having officers awropriately trained n the proper
procedures for handling non-violent domestic d i ~ t e s and improper useofforce training and
supervision that allows and permits the detentionofpersons without JUSt cause and through
unreasonably inJUDOWI methods.
41. The above described actions ofDefendan:
SERGEA.NT
POWFl.L and the pohcies
1
17
and pracuc-es ofDefendants CITY
OF
CARMEL-BY-THE-SEA depnved Plaintiffofher rights
and priVIleges under the o u r t h ~ and Fourteenth Amendments to the Umted States Constitution
18
19
20
42. As a direct, proXllllate, and legal result of he acts, omi:tsions,
pohcit:S,
patterns,
practices, and/or customs ufdefendants alleged herem, Plaln.tiffhas suffered damages includmg,
·but not limited to : bodily n j u r y loss of ncome and employment, substantial phystcal and
emotional
pam and suffering, shock and
mjury
to her
e n o u ~
l3y>Jtem,
h u m i l i a
~ acute an'\:tety,
emotional and physic.al d i s t r e ~ s and fear, and Plaintiff continues to suffer from post-traumatic
stress and anxiety relating
to
the events complained ofherem.
43. As a further du-ect, proxunate, and legal result
of
he
bjunes
alleged herein,
25
Plllintiff bas incurred, and m.ty continue to n c u r ~ substanti.al medical and other out-of pocket
6
expenses in an amount according to proof.
2
44. As a further direct
and
proximate consequence
of
he acts ofCITY OF CAR
MEl--
1
BY-THE-SEA by and through its employee, SERGEANT POWEll., Pla::.nhff\\o1lS transported to
10
COMPl.AThl1 OR DAM.J\.GFS
DaSz. va v_
Cl
o e
ta
1
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Monterey County Jail, where she was placed on an unreasonable 5150 hold in solitary
2 confinement, during which Plaintiff was subjected t.o humihating
and
traumatic conditions,
3 including
being
stripped
of
all
of
her
clothing
in view
of
multiple county employees and at least
4 one
male
inmate.
5
6
7
8
9
10
45. As such, l a i n t i f f r e q u ~ t s compensatory damages, reasonable attorneys' fees and
costs pursuant to 42 U.S.C. §1988 and any u c h othe:t and furtherreli.efas this Court deems just.
46.
SECOI\1> CAUSE OF ACTION
FALSE
IMPRISONMENT
(Against
e f e n d a n ~ LUKE E. POWELL and
CITY OF CARMEL-BY-THE-SEA
Plaintiff repeats and replead&
each
and
every .allegation contained
in
paragraphs 1
11
through 4.,,
and by
this reference
incorporates the
Same herein as though
fully
set forth.
12
47. Defendant
CITY OF
CARMEL-BY-THE-SEA through its employee,
13 SERGEANT
POWEll, intentionally confined Plaintiff. without consent or lawful pnvilegc; for
14 an
unreasonable
period oftnne, Without probable cause.
in
depnvation ofh rights. n his
15 response to
a
call regarding a non-violent, verbal dispute between two a r e n ~ SERGEANT
16 POWELL interrogated and
detained
Plaintiff without probable a U S e ~ needlessly escalatmg a non-
1?
violent
dispute
into a confrontational detention
of
l a i n ~
whereby Plaintiff was
prohibited
from
18 tea:ving and subsequently suffered severe bodil}' inJury and other damages.
l
19 48. Defendant
ITY
OF CAIDvfEL-BY-THF.-SEA i:; vicanous ly liable for the tortious
20
acts of ts emplo}'ee, SERGEANT
POWF-LL,
that
were oomrnttted
within
the scope and
21
furtherance
ofhis
emplo)lment.
22
23
24
25
I
I
49.
s
a direct
and
proximate consequence of the acts of CITY OF A R M E L B Y ~
THE-SEA by and through its
employee,
SERGEA..'I\fT PO\VF.I.L, Plaintlffhas suffered damages
including,
but
not
limited
to:
bodily injury, loss
of
ncome and employment, substantial phystcal
and
emotional pain and
suffering, shock and inj
ury tJ
her net \'ous system, humihation, acute
anxiety, emotional and physical
distress
and fear; and Pla.tntlff
continues
to suffer from post
tra-umatic stress
and
anxiety relating to
the
events comptained ofherein.
50. As a further direct, proximate, and legal result
of he
injuries alleged herem,
11
COMPLAINT
FOR
DA.MMiES D a S i ~ · a v · Cit1• ofCarmel-by-the-Sea et l.
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8/17/2019 Case No. 132929 09-28-15 City's RJN ISO Demurrer
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Plaintiff has incurred, and may continue to incur, substantial medical and other out-of pocket
2 expenses in an amount according to proof.
3
51.
As a further direct
and
proximate consequence
of
he acts
of
CITY OF CARMEL-
4 BY-THE-SEA
by and through its employee, SERGEAN_T
POWELL,
Plaintiff was
transported to
5 Monterey County Ja1l, where she w s placed on an unreasonable
5150
hold in sohtary
6 I confinement, during which Plaintiff was subjected
to
humiliating and traumatic conditions,
7 including being stripped ofall ofher clothing in view ofmultiple county employees and at least
8 one male inmate.
52 As such, Plaintrff requests compensatorydamages, reasonable attorneys' fees
10
11
12
13
14
under CCP
§
1021.5, costs and any such other
nd
further relief as this Court deems
Just.
53.
THIRD CAUSE OF
CTION
BATI ERY
(Against Defendantli LITKE
E.
POWELL
and
CITY
OF CARMEL-BY-THE-SEA)
Plainhff repeats and repleads each and every allegation oontained in paragraphs 1
15 through
52, and by this reference
incorporates the
m e herein as though fully set forth.
16
54.
Defendant CITY OF
CAR...'\ffiL-BY-
TIIE-SFA through
its
employee,
17
SERGEANT POWF:LL, intentionally caused bodily
harm
to Plamnff through the use
of
18
unreasonable force. SERGEANT POWELL • unnecessary ann bar takedoWtl of Plainttff caused
19 her head
to
hit the asphalt ground
"hith
such force as
to
give Plaintiff a black eye nd open a large
20 laceration on hez forehead, which would eventually require eight stitches, a
cr
scan, and other
21 treatment In the course of his tak.edown
by
SERGEANT POWELL Plainttff further suffered
22 addttional wounds to the
ieft
&ide of her
f&::e
and her arms, as well as permanent damage to her
l
right thumb.
I
55. Defendant CITY
OF
CARMEL-BY-THE-SEA
i
vicariously hable for the tortious
I
I
I
cts of rts employee, SERGEANT POWELL, that \\'ere commjtted Within the scope and
· fuctherance ofhis employroent.
56
.
As a direct and prox Dlate consequence ofthe acts of CITY
OF
CARMEL-BY-
: :1 THE-SEA by and through its employee,
SERGEA."NT
POWELL, Plaintiff
has
suffered damages
12
COMPLAINT FOR DAMA.GE.S
DaSiJva v Ci.ty
of
Carmel-1-_v-the-Sea et al.
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2
3
4
5
6
7
8
9
10
12
13
14
15
16
17
18
19
20
21
22
23
24
I
5
26
I
27
28
including,
but
not hmited to: bodily injury, loss
of income
and employment, substantial physical
and
emotional pain
and
suffenng, shock
and
injury
to her
nervous system, humiliation, acute
anxiety, emotional and h ~ i c a l distress and fear; and Plaintrff continues
to
suffer from
post
traumatic stress
and
anxiety relating to the events complained ofherein.
57. As a further direct, proximate, and legal result of the injuries
alleged
herein,
Plaintiff
b s
incurred, and may oontinue
to
incur, substantial medical and
other
out-of
pocket
expenses 10 an amount according to proof.
58. As a further direct and proximate
o n ~ e q u e n c e
of he acts ofCITY OF CAR.MEL-
BY-TI-IE-SEA by and through its employee,
SERGEANT
POWELL, Plaintiffwas transported to
Montere) County Jatl, where
was
placed
on an
unreasonable 5150 hold m
~ o b t a r y
confinement, dul ing which
Plainttflwas
subjected
to
humiliating and traumatic C .Qndttions,
including being stnpped of all ofher clothing
in
view ofmultiple county employees and
at
least
one male ·inmate.
59. As such,
l a i n t i f f r ~ u e s t b
compensatory damages, reasonable attorneys
~
under CCP
§
1021 .5, costs and
any
ruch other and further
relief
as this Court
deems
just.
FOURTH CAUSE OF AC IJON
INTENTIONAL INFLICI ION OF
EMOTIONAL DISTRESS
(Against
Defendants LUKE E.
POWELL
and
CITY
OF CARMEL-BY-THE..SEA)
Plaintiff repea ts and realleges Paragraphs 1 through 59, and incorporates them by
reference herem.
61 .
Defendant
lTY OF CARMEL-BY-THE-SEA through
its
employee,
SERGEANT
POWELL, intentionally
caused
bodily
and
emotional harm to Plain
ti
ff,
and they
knew.
or
should have known, that emotional
i ~ t r e s
would likely occur as a result of their
conduct.
62
.
The conduct
ofDefendant
CITY
OF
CARMEL BY THE SEA
through i
ts
employee, SERGEANT
POWELL,
was outrageous; that is, as to go beyond
all
bounds of
decency, and
to
be
regarded
as d i o u ~ ; and utterly intolerable in a
et\
ilized community.
63
. Sa.td mtenti.onal conduct wtllful, rn.ahciom and in total d1sregard of Plaintiffs
n
COMPLAINT
FOR
DAMAGES
v. Ci
ty
oj Carmel
- _v the-Sea
et l
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2
3
4
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I
I
rights.
64. Defendant CITY OF CARMEL. BY-THE-SEA is vicariously
liable
for the tortious
acts
of
ts
employee, SERGEANT POWELL, that were committed within the scope and
furtherance
ofhis
employment.
65. As a
direct
and
proximate
consequence of
he
acts ofCITY OF CARMEL-BY-
THE-SEA by and through
its
employee, SERGEANT POWELL, Plaintiff ha > suffered damages
includmg, but not limited
to:
bodily injury,
loss of
income and employment, substantial physical
and emotional pam and suffering,
shock
and m UTY
to
her nervous
y s t e m
humiliation, acute
arudety, emotit)nal and physical distress and fear; and Plamtlfi continues to suffer from post
tramnatic stress and
anxiety relating
to
the
events complained
of
herein.
66 . As a further
dJrect.
proxunate, and legal
re&ult of
the mjuries alleged herein,
Plaintiff has incurred, and may
contmue
to inc.ur, substantial medical and other out-of
pocket
ex.pen&es in an amount &:carding to proof.
6
7.
As a further direct and proxunate consequence of he
acts
ofCITY OF CARMEL.
BY-THE-SEAby and through its employee, SERGEANT POWELL, Plainnffwas transported to
Monterey
County Jm.l, where
Vias
placed on an unreasonable 5150 hold
in
solitary
confinement, during
which
Plaintiff
was subjected to
humiliating
and
t r a u m a t L ~
conditions,
including being stripped ofall
of
her clothing in view ofmulb.ple
COU lt)'
employees and
at
least
onemale inmate.
68. B such, Plamttffrequests compensatory damages, reasoD.able attorneys' fees
under
CCP
§ 1021.5,
costs and any such other and further
relief
as this
C.ourt
deems
just.
Additionally, Plaintiffrequests punitive damages due to the mallciOus nature of he conduct.
FIFtH CAUSE OF ACTION
MALICIOUS
PROSECL TTION
(Against Defendan.ts OE l COUNTY OF·MON'IT.REY,
nd MONTEREY COUNTY SHERIFF"S OFflC'E)
69. Plaintdfrepeatsand realleges Paragraphs 1 through
68,
and mcorporates them by
reference herein.
70. Defendants O U N n ~ OF MONTERF.Y and the SHERIFF'S OFFICE through its l
DaSUva v City q Carmel b:y tP.e Sea et al. I
i4
COMPLAINT
FOR
D M GES
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2
3
4
5
6
7
8
10
11
12
3
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
employee, DOE 1, intentionally caused the institution
of
a legal action under
Cal.
Welf. and Inst.
Code§§ 5150 and 5150 05 while Plaintiffwas detained at Monterey County
Jail,
resulting
in
placement ofPlaintiff
on
a psychiatric hold
in
solitary confinement.
This
psychiatric hold places
a person
under detention
for
up
to three days Without legal recourse or further hearings, save for
the
discretion
ofmedical staff.
71. As
part
of
this
5150
hold, Plainbff
was
stripped of
all
of
her clCitbing in
view of
multiple county employees and at least one male inmate and then allowed only a bath towel sized
gannent to cover herself For several hoUN, Plaintiff was held in a very
hot
sulitary holeing cell
with c.ement walls. In plac.c uf a rotlet, there v.a.c; a hole in
the
floor
with
viSible fec.e& from
pl'e\ ious inmates.
The
cell oontamed
one
glass window, winch faced the glass window ()f the
adjacent
holding
cc:ll.
When Plaintdf
attemptoo to look out her
window
to e t ~ guard s
attention, she was subjected to obscene liexual gestures
from
the m.ale inmate in the adjacent cell,
who had previously 'Witnessed Plaintiff being stripped naked by the guards.
72.
Said
mtentlonal conduct
was
Willful, mali '-ious, oppressive, and
in
total disregard
ofPlainnffs rights, safety,
and
welfare.
No
~ d i c a l assessment was ever conducted for
this
5150
hold. Upon review of Plaintif f's file by a different employee
in
the SHERIFF'S OFFICE, who
clearly saw
that such
a hold
was
n J ~ t d i e d
Plaintrlf
was released back to the group holding c..ell
and subsequently allowed to leave the Monterey County htl.
73. Defendants COt •N1Y
OF
O ~ L R B Y and
the
SHERIFF'S OFFICE are
vicariou&ly hable o r t h ~ tortlous acts oi their employee,
DOE
1, that were committed
wtthin
the
scope
and
furtherance of
her
employment.
74. s a direct and proximate consequenc-e
of
he acts ofDefendants COUNTY OF
MONTEREY and the SHERITF'S OFFICE through
its
employee,
DOE
l , Plaintiff sustained
severe
emotional
distre.,s, humiliation, emotional pain and suffering, and Pl.aintiffcontinues to
suffer from post- traumatic stress and anxiety relanng to this event, which has l
ed
to Plaintiff's
loss of mcome and employment, and addttional out-of-pocket
e:x.penses
?5.
As
such, Plaintiff requests o m p ~ n s a t o r y d a m a g e s reasonable at+.omeys· fees
under
CCP §1021.5 , c.Jsts, and any c;uch other .md further reliefas this Court deems just.
15
COMPLAINT
OR
D AMAGES
lJaSil a v City ofCamel-by-the-Sea, :tt
at
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3
4
Addltic;nally, Plaint iff requests.punitive damages
due
to the malicious nature of he conduct
SIXTH CAUSE OF ACTION
INTENTIONAL ~ F L I T I O N
OF EMOTIONAL DISTRESS
(Against Defendants DOE 1, COUNTY OF MONTEREY,
And MONTEREY O U ~ T Y SHERIFF S OFFICE)
76.
Pldinti ff repeats and realleges Paragraphs 1 through 75, and incorporates them by
6 reference herein.
7
8
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
77.
Defendaut ~ f e n d a n t s COUNTY OF MONTEREY
smd
MONTEREY
COUNIY
SHERIFF S Of HCf
: by
and through their employee,
DOE
1, ;_ntentionally
caused
emoti\)nal
harm to Plaintiffby placmg her on m unjustified
and
unreasonable 5150 hold.
and
they knew, or
~ o u l d
have
known,
that
emotional
thr;tress
would
likely
occur as
a
result
of
herr conduct.
78. The
conduct ofDefendant COUNTY OF MONTEREY and MONTEREY I
COUNTY
SHERITF S OFIICF,
by anrl through theu employee. DOE 1 was outrageous, that is, I
as to go
beyond
all
bounds
ofdecency, and to
be
regarded as odious and utterly intolerable in a
j
ctviliz:ed community. 1
79. As
part
o this 5150 hold,
Plaintiff
was stripped (\fall
ofher
l t h i n g in \ttew
of
j
multiple
county
employees and at least one
msle
inmate and then allowed only a
bath
towel
sued
1
garment
to
cover
herself.
For
several hours,
Plamnffwas
held
m a very
hot
obtary holding cell
with cement
walls.
In
place
of
a tolicl, there war; a
hole
m
t h ~
floor
With
Y1s1ble
f e ~
from
previou
inmates.
The
cell
contamed one
glass
i n d ~ w which
faced
the glass wmdow of the
I
[
djactmt
holding
cell.
When
Plamtiff attempted to
look out her i n d o ~
to get
the gumd s
attention, she was subjected to obscene e x u a l gestures from the male mmate in the adJacent cell,
I
who had pre\- iously
l t n e ~ e d
Plainuffbeing stripped naked
by
the guards. I
80.
Smd
intentional conduct was willful, mahc10us, oppressive, and in total dtsregatd l
ofPlaintiff
8
rights, safety,
and
welfare. No medical
assessment
W i
ever ronducted for
this
5150
I
hold. Upon review ofPlaintiff 8 file by a different employee in the
8HFRIFf 8
OFFlCE, who
clearly saw that such a hold wl S unjustified, l a m t i f f w a ~ s released back
to
the group holding cell I
and
subsequently
allowed to leatve the Monterey County Jail.
Defendants COUNTY OF MONTEREY and
the SHERifF S
OFHCE are
16
C O M T ~ F O R D M G E S
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vicariously liable for the tortious acts of heir employee, DOE 1, that were committed within the
2 scope and furtherance of
her
employment.
3
4
5
6
'
'
8
82
As
a direct and proximate consequence of he acts of Defendants COUNTY
OF
MONTEREY and the SHERIFF S OFFICE through it s employee,
DOE
1, Plaintiff sustained
severe
emotional
dtstre&s,
u
l i t t o ~ emotional pain and suffering, and
Plaintiff
oontinues to
suffer from post-traumatic stress and anxiety relating to this event. which has led to Plaintiff's
loss of
ncome and
employment, and additional out-of-pocket expenses
83.
As such, Plaintl ffrequests compen&atory damage&, reasonable attorneys' fees
9
under
CCP §1021 .5, costs, and any such other and further
relief
as this Court deems
just.
10 Addttionally,
the
mahi
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2
3
4
5
damages.
88.
SEVENTH
CAUSE OF ACTION
NEGLIGENCE
Against Defendants LUKE
E.
POWELL and
CITY OF CARMEL-BY-THE-SEA)
Plaintiff
'epeats and
realleges Paragraphs 1 through 87, and incorporates
them by
6 reference herein.
. 89.
Defendants LUKE E POWELL and CITY OF CARMF.L-BY-THE-SEA, and
8 each of hem, were negligent in performing the1r duties; and e:acb fa1led, neglected, andior reflsed
I
9
to properly and fully dl::;charge
their responsibilities
by, among
other tlnng :
1 0 a. Improper compliance with policies,
r a c t i ~ e s .
nd
procedures
n
the
quesnoning
11 and detention ofPlamtiff;
12
b.
Allowmg a culture to exist
of
mproper
or
non-compliance with pohcies, praCtices
13 and procedures
in the
questiomng and detention ofa atizen,. includmg Plaintiff;
14 c. Improper and/or r r o n e o u s threat assessment n
the
questioning and detent ion of
15 Plaintiff;
16 d. Exercismg an elicessive and unreasonable level
of
force against Plaint iff for the
17
CU'C\llllstances;
and
18 e.
Fadure
to
use
reasonable care in the hiring,
tram.ID.
g.; and/or supe.tvt&tng
of f f i ~ r s
19
20
21
22
23
24
25
26
90. As a direct and proXlDlate consequence
of
he negligent acts ofDefendants,
Plaintif f sustained severe emotional dtstrcss, humiliation, emotional pain and
suffering.
and
Plaintiff continues
to
suffer from
p o ~ o t t r a u m a h c
stress and anxiety relating to this event, which
has
led
to P l a i n t i f f ~
loss
of
income 'llld employment,
and
additional
u t - o f
p o k e t expenses.
91.
Defendant CITY OF A R M E ~ B Y THE-SEA .is
..-icariously
liable for the torti"us
I
acts
Clfits
employee,
SERGEANT
POWELL, that
were
co.tnmitted wtthin the
;COpe
aitd
furtherance
ofhis empl.Jyment
92
.
As such, Plaintiffrequests compensatory damages. reasonable attorneys' fees
27
under CCP §1021.5, costs, and any such other and further reliefas this Court deems JUSt.
28 u
18
COMPLAINT FORDAMAGES
Da81lva
1
1
•
ity o
Carmel
-by-the-Sea et
a/
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1
2
3
4
93.
EIGHm
CAUSE
OF
ACTION
NEGLIGENCE
(Against Defendants DOE 1, COUNTY
OF
MONTEREY,
ADd
MONTEREY
COUNTY
SHERIFF S
OFFICE)
Plaintiff repeats and realleges Paragraphs 1 through 92, and mcorporates them by
reference herein .
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
94.
Defendants OUNTYOF MONTEREY and MONTEREY COUNTY
SHERJFF S OFFICE, and e ch of
hem,
were negligent :tn performing their duties; and e ch
failed, neglected, and/or refused
to
properly and fully dtscharge their responsibilities by, among
other tlnngrs:
95.
a. Improper compliat1.
ce
with pchctes, practices, and procedures m the
a s ~ e s s m t m t
and Un.plemcntation of5150 holds;
b. Allowing a culture to exi Jt
of
mproper or non-compliance
w1th
policies, practices
and pro\XX ures in the
as&essment
and implementation of 5150 hold&;
c.
Improper and/or erroneous threat assessment in the assessment
and
implementatJ.on
of
5150 holds; and
d. Failure to use reasonable care in the hiring,
traming,
and/or supervising
of
deputies
and other staff at Monterey County
Jail.
s
a duect and proxunate o n ~ e q u e n c e
of
he neghgent acts of Defendants
COLTNIY OF MONTEREY nd MONTEREY COUNTY SHER.If F S OFFICE, Plamnff
sustained severe- emotional i s t r e s ~ humiliation, emotional pain and suffering, and Platntlff
continues to
suffer
from :J:"OSt-traumatic stress and anxiety relating to this event, Vl:hich h s led to
2.2
23
24
Plaintlffs loss
of
income md employment, and adclitional out -of-pocket
expens€:5.
96: Defeudams O ~ J N I Y OF MOJI
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2
l
3
4
5
6
7
8
9
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21
22
23
24
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27
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PRAYER FOR RELIEF
WHEREFORE
Plmntiffrespectfully
prays
for judgment against Defendants as follows:
1. For an award of compensatory
damages
from Defendants, jomtly and severally, in
an
amount to be proven at trial;
2.
For
an
award ofpunitive damages against
the
tndividual defendants sued in
their
personal capacity for all actions complained
of
including those outside the scope of he
employment;
3.
For an
award of attorneys' fees and cost of suit; and
4. For sud other and
further relief
as the court may
deem just
and
proper.
Dated:
August
7,
2015
BOHNEN ROSENTHAL KREEFT
B y ~ ~
t t o r n e y ~ for Ple.mtiff Jenmfer Da
silva
URY E M A : ~ D
PlaintiffJENNIFER DA SILVA hereby demands a trial by jury.
Dated: August 7, 2015 BOHNEN, ROSENTIIAL KREEFT
By.
n ~ ~
Attorneys for Plainti ff Jennifer
Da
Silva
20
COMPLAIN ' FOR DAMAGES
DaSilva v Ci:y ofCarmel-by-ihe-Sea et
al
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1
SUPERIOR
COL RT OF
CALIFORNIA
COVNTY
OF
MONTEREY
NvV lf> 201'
2
T ~ ~
A.
Rt 1\
C:..£.i·:f\ ·oi: -: rl S\.:PERi R
COURT
~ O E P U N
4 I ennifer Little,
Case No.: Ml29420
Alina Ol$'er
Order After Submission
s Plaintiff,
6 I
vs.
7
The City
o
Cannel-By-The-Sea,
8 ~ ~
t
---·-
.
-----
9
?entioner t requestto be relieved from the
r o v ~
o n s
of
Govt Code sec S
4
came on
f(lr
hearing on
10 No\'ember
1
2014. At
the
~ n c l w i o n
of
arguments the court took the matter under u b m i s s i o n Now, at a later
11
time, the
u r t issues its
r.1liDg.
12
Pditioner was
llt reSted
by the Carmel pollee,
apparently for
resistms them.
She
was
crlmanal:y charged.
13 .1hat charge was ultimately i s m i s : ~ e d , and the next
day
she filed a l a u n with the Cit) , alleging excessive force by
14 the polic:e d·uring their encounter. However, the claim was
filed
a iittle
more
than
ODC month
later than the
15
G o v ~ u e n t
Code allows.
Her
e;laim was
r 'Jected by
the
C1ty
a.'l bei.ng
untimely
and she now
seeks t-e.liefftom
the
16
court
under
CCP Sec
4i3
17 She states she d1d not file
the
claim sooner because she ml&taken y believed she could
rtot legally
do 3D
18 unbl her criminal case. arising out ofthe same
incident,
was concluded.
19 The City cites Butlerv Los Angles County(2008)
61'7
F.Supp.2d 994 in '>Upport of1ts argument that
20 Petitioner should not prevail. That cowt cited the clear. plain language ofGovt. Code Sec.
94S
3,
wh1cb states
.
21 thdl:
the
time m which to
filr a ,elaim
~ g a i n s t
a
public entity
under
Sechon
91
1.2 Is not e d
22·
Although Sec.945
.
3 does state thut the
fillng
requirements of
Sec
911 2 are not
extended,
there is lathing
lS 1m that language that forecloses a petstton for rehef under CCP Sec 473
24
2S
l
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Murwzv State
ofCalifortri J
(1995) 33 Cal.App. 4
1767 emphasizes the remedial nature of Sec 473.
Its
2 I urpose is
to grant
reliefftom technical rules that might be a trap for the
unwary,
and an
aff'll1Ilation of
the policy
I
3
that
cases
should
N:
heard on their mcnts
and
doubts
h o u l e
resolved
in
favor
of
granting relief.
4
Sec.
94S
J is
titled, Civtl Action May Not Be Brought
Apinst
Peace Officer
When
Criminal Charges
s
Pending.'' It
ts not unreawnable
for a
lay person.to believe the claim
filing process
to be
part
ofbnngi
ng a civil
6 action.
It
is not
unUI
the last sentenceof he statute
that
the non-extention oftlme to
file is
found .
The dall
after her 'rirnmal case ended Petitioner filed
her .;; aim.
It
was
only
lillghtly
over a
month late
.
8 There
is
no prejudt«
t the City.
The
court finds
that
the
Petitioner
acted
under
a
reasonable mistake.
9
The
PetJJion is
granted.
10
l
12
Judge of he Superior Court
13
Robert O'Farrell
14
IS
II
16
17
18
9
20
21
22
23
24
z
· 2
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2
3
4
s
6
7
g
9
10
11
2
13
15
16
17
i8
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21
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CERTIFICATE OF
MAILING
~ o d e
of
C1vil Procedure Sectior. 1013a)
I do h ~ r e b y certifY that I am employed tn the Count)' ofMonterey . I
s.un
over the age of eighteen yean and not a
party to
the
w1thin stated cause. 1 plaoed
true
and
correct copies
of
he
Order After Submission
for
collection and
maihng tbis d a ~ t e following our ordinarybusiness practices . I
am
readdy famtltar with the Court'9 practices tar
collectton
and
proccssinf correspondence
for maihng.
Oil the same day that l i ~ . s p \ \ n d o r t ~ ts plac:'ld or
l ~ ~ l
1
m.d
madmg, it deposited m
the
ordinar}
c o ~ r s e
o f b u s i n ~ s w1tb the
Umtect
P o s t )lll V
l€'-t;}
a l t n . 1 . ~
l
Caltfomia, in ll $Caled ecvelope with postagco fully prepaid. T h ~
n a m ~
and addresses
\
)t . a c h person
v.of)om
ilotJC i
V ~ < a . i
matled
as
follow ;
Stephen
r Wagner
Noland, lliimerry, Ettenne &
HO Is
POBo>.2SIO
Sahnas CA
93902-2510
Ryan 1bompson, Esq.
JI..n Offices ofVincent J Hurley
38
S C ~ ~ ~ ; C a p e
Village
A p t : o ~ t ;A 95 1
Date;
OV
2
2014
TERESA A RISI, Clerkof he Supcnor Court,
~
Dcput}' Clerk
Alina Oliver
3
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§
946.6. Denial
of pplic tion
for
leave
to
present claim; relief . CA GOVT
§
946.6
IW
.est s Annotated California Codes
IGovernment Code (Refs Annos)
ITitle
1.
General
I
Division 3.6 Claims and Actions Against Public Entities and Pubhc Employees (Refs Annos)
I
Part 4 Actions Against Public Entit ies and Public Employees (Refs Annos)
I
Chapter 2 . c t i o n ~ Against Pubhc F.nttties (Refs Annos)
West's Ann.Cal.Gov.Code § 946.6
§ 946.6. Denial of application for leave to present claim; relief from provisions of section 945.4; place of filing
petition
Effective: January 1 2 3
Cut re
ntn
ess
(a) If an application for leave
to
present a claim is denied
or
deemed to be denied pursuant to Section 911 .6, a petition may be
made
to the court
for
an order relieving the petitioner from Section 945
4
The proper court for filing the petition is a superior
court
that would
be
a proper court for the
tnal
of
an
action on
the
cause
of
action
to
which the claim relates.
If he
petit10n
is
filed
in
a court which
is
not a proper court for the determination
of
the matter, the court,
on
motion
of any
party, shall transfer
the proceeding
to a
proper court.
If
an action on the cause
of
action to which the claim relates would be a limited civil case, a
proceeding pursuant to this section
is
a limited civil case.
(b)
The
petition shall show
each
of he following:
(1)
That
application was
made
to the board under Section 91 1 4 and was denied
or
deemed denied.
(2)
The
reason for failure
to
present
the
claim within the time limit specified in Section 911.2.
(3)
The
information required
by
Section 910.
The
petition shall be filed
~ i t h i n
six months after the application
to
the board is denied
or
deemed to
be
denied pursuant to
Section 911.6.
(c) The court shall relieve
the
petitioner from the requirements
of
5ection 945.4
if
the court finds that the applicati
on
to the
board under Section 911.4 v. as made v ithin a reasonable
time
not
to
exceed that specified in subd ision (b)
of
Section 911.4
and v.as denied
or
deemed denied pursuant
to
Section
911
.6 and
that
one
or
more
ofthe
following is applicable:
t
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§ 946.6. Denial o application
or
leave to present claim; relief .. CA GOVT
§
946.6
(1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity
establishes that it would be prejudiced in the defense of he claim
if
the court re Iieves the petitioner from the requirements of
Section 945.4.
(2) The person who sustained the alleged injury, damage or loss was a minor during all
of
he time specified in Section 911.2
for the presentation
of
he claim.
(3) The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the
time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim
during that time.
(4) The person who sustained the alleged injury, damage or loss died before the expiration of the time specified in Section
911.2 for the presentation
of
the claim.
(d) A copy
of
the petition and a written notice
of
the time and place
of
hearing shall be served before the hearing s
preset ibed by subdi\ ision (b)
of
Section 005
of
the Code
of
Civil Procedure on (
l
the cletk or secretary or board
of
the
local public entity,
ifthe
respondent is a local public enttty, or (2) the Attorne) General,
if
the respondent
is
the state.
If
the
petition involves a claim arising out
of
alleged actions or inactions
of
the Department
of
Transportation, service
of
the
petttton nd notice of the hearing shall be made on the Attorney General
or
the Director
of
Transportatton. Service on the
Attorney General may be accompli .hed at any
of
the Attorney General's offices in Los Angeles, Sacramento, San Diego, or
San Ftancisco. Service on the Director of Trarisportatton may be accomplished onl) at the Department
of
Transportation's
headquarters office
in
Sacramento.
If
the petition involves a claim arising out
of
alleged actions or inactions
of
a judicial
branch entity, service
ofthe
petition and notice
of
the hearing shall be made in accordance with the following:
1)
If
the petition involves a claim arising out
of
alleged actions or inactions
of
a superior court or a judge, court executive
officer, or trial court employee, as defined in Section 811.9, of he court, service shall be made on the court executive officer.
(2) If the petition involves a claim arising out of alleged actions or inactions of a court of appeals or a judge thereof, service
shall be m de on the Clerk/Administratorof the court of appeals.
(3) If the petition invol\es a claim arising out
of
alleged actions
or
inactions of he Supreme Court or a judge thereof, service
shall be made on the Clerk
of
he Supreme Court.
(4)
If
the petition involves a claim arising out
of
alleged actions or inactions
of
the Judicial Council or the Administrative
Office
of
the Courts; service shall be made on the secretariat
of
he Judicial Council.
(e) The court shall make an independent determination upon the petition. The determination shall be made upon the basis of
the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing
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§
946.6. Denial
of
application
for
leave to present claim; relief
CA
GOVT
§
946.6
on
the petition.
f) If
the court makes
an
ord
er
relieving the petitioner from Section 945.4, suit on the cause
of
action
to
which the claim
relates shall be filed with the court within 30 days thereafter.
Credits
(Added by Stats.1965, c. 653, p. 2016, § 22. Amended by Stats.l970, c. 411, p. 822, § 2; Stats. J987, c. 1201 , § 22;
Stats.1987, c. 1208, § 7; Stats.l989, c. 148, § 1; Stats.1989, c. 693, 8; Stats.2001, c. 4 t (S.B.562), 9; Stats.2002, c. 1007
(A.B 2321 ). § 12.)
West s Ann. Cal.
Go v
.
Code§
946.6, CA
GOVT
§ 946.6
Current with urgency legislation through Ch. 291
of2015
Reg.Sess.
: :nd
of
IJo-:u.nent
t .
2015 Thomson Reuters. No claim to origina;
U.
S. Government
V. orks.
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F r o ~
N o : a n o
Haner y
0 5 0 6 1 2 0 ~ 5 t4•47
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p.
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a ~ d Haneriy
PROOF
OF SERVICE
BY IIAIL
Sulldtullon
of Auomev-avn
05/06/201 1
14
:47
#1 56 P.003/004
J
lnnvctiDrll:
havltV.,pMitla..... y
mal
wllb .
Subdullota ol
. . ile
(»>aanwho JJIIIIed
. ctlt.llriMt
t1U
Prodd
SeMI»
by
Mail
An
11111 \pd CXW
of he
Proof oP SaMa&
by
Mellhould be
completed WI f/tnlftd wllh
the
doCUmfKit.
Give
the Subllllulion at AtiDrrlf)I-CMJ fiJd thfl
Ptool
~
SfNir;e by Mall lD tile Cledc rot lling.
If
you
. .
reptflliBII q1fJUIS8(
. . . . m e l
these,.,., IWI 1
the
ProddSclmwby"'"'·
1. 1em over the age of
18
and nola
pgtr
to
thia
cauM. l
am
a IHidentol or emplore f
in
the county where the m a l l ~ CIClQA1'8CI.
My
...tence
ar
...,...llddN a a (8PfiCIIY)
2. f
. -wd
h S&lbl6tutlan of ~ CNI b'f
«1clollng a true
copy In
a
-. led
nvwklpe
addraaaall
to
-=h
pilliOn
wflote
N1mt
and IJddral8 •lhiNm bHiw
Mel
depOIIIIng
theerMIIapll l tN Untad
Statas tniiJ
wllttOle
poal8Qe Uly PN(.IaJd.
c1
>
oa
d
m3111n1r
NAME
AND ADDRESS OF EACH
PERSON TO
WHOIINOTICI
WAS MAILED
4.
a
Named p8ISOil MMd:
b. Addrael
(numbet
...
dly, Mid DPJ'
e Nameofi**Jft...vad.
d. , . . , . ,
. ..
uty. and
ZIP) .
•
Name of
penon 181\'ed,
f. Addl'8lll
(runber, . tnt db . andZJP
g Nlm8
at
PlltiOft I8Mid:
h. Mdrela(IICinber. c:J;r. endZIF ):
I. Name ofpMOn
. .wd:
j.
AddiNI
(ntmblr, stiNt Cffy. andZlpt
SUBSllTU110N
OF ATTORNEY-cML
(WitttautCourt
OnMr
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From:Noland Hanerly
05/06/2015
14:47
156 p 004/004
I
•
"" ' I I
~ ~
~ ' : ~
i:lli
.. i
rS
z
<
s
a:
2
PROOF OF SERVICE
(Code
Civ. Proc. §§
l013(a). 2015.5)
3 STATE OF CALIFORNIA
)
)
)
COu"NTY OF
MONTEREY
5
6
7
8
9
10
12
13
14
15
16
17
18
19
20'
21
22
23
24
2S
26
27
28
I
am
a
citizen
of
the
United S1ates and a resident
of
Monterey County. I am
over
the age
of
18
years
and nl t a party to
the
within entitled action; my business address is: 333 Salinas
Street. Post Office Box 2510, Salinas,
CA
93902-2510.
On the
date
below,
served
the attached
docwnent(s) entitled: SLliSTJTVTION
OF
ATTORNEY,
on
the
followmg
named
person(s)
in said action at:
VincentP u r l e y ~
Esq,
Ryan Thompson, Esq.
Law
Offices ofVincent P. Hurley
38
Seascape Village
Aptos. CA 95003
Fax:
(831)661-4804
0
lil
0
by personal service on the
above-named
person( i) at the above stated s e s ) .
by placing
said
eopy(ies)
in a
sealed.
envelope(&), postage
thereon fully prepaid,
and
placed for
collection and
processing
for
mailing following
the
busin.t:sfs's
ordinarypractk.e
with
wbich
I
amxeadily
familiar. On
the same:
day
corteBPondenoe is
placed for collection and mailing. it is
deposited in the ordinary
course ofbUBiness
with
the United States Postal Service at
Salinas,
California.
addressed
ag stated above.
by tJvemight delivery on
the
above named party(ies) in said.action. by placing a
true
and
correctcopy thereof enclosed m a Seared envelope m a
designated
area for
outgoing,
same-day
pickup
by
· at he offices of Noland, Hamerly,
Etienne
&
Hoss
fur
overnight delivery,
billed to
o l ~
Hamerly. Etienne . Hoss,
n d ~ as
set
furthabove.
by causing to be
1Iansmitted
a true copy thereof
o the
above-named recipient via
the
foilowing facsimi.le tranmussion telephone
number ( n F a x " ) (831)
661-4804.
and
no
interruption
of ransmission
was reported.
·
I declare, under penalty ofperjury
under
the
laws
of
he State
of
California that the
foregoing is true and com:ct.
Executed on
May
6, 201 S,
at
Salioas. California.
CBR.l'JFl:CA
TE OP SERVICE