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FILED

Vincent P. Hurley #1 11215

Ryan M. Thompson #292281
LAV/ OFFICES OF VINCENT P. HURLEY
A Professional Corporation
28 Seascape Village
Aptos, California 95003
Telephone: (83 1) 661 ~4800
Facsimile: (831 ) 661-4804

SEP 2 B 2015
TERESA A. RISI

CLERK OF THE SUP.t;RIOR COURT

.L._CJ IMUJNGS -. DEPUTY

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Attorneys for Defendants

CITY OF CARMEL~BY-THE-SEA and LUKE E. POWELL

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MONTEREY

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)
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Plaintiff,
)
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vs.
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CITY OF CAR11EL-BY-THE-SEA;
)
LUKE E. POWELL, indnidually and in )
his official capacity as a Police Officer )
for the CITY OF CARMEL-BY-THE~ )
~EA; COUNTY OF MONTEREY;
)
MONTEREY COUNTY SHERIFF' S
)
OFFICE, and DOES 1 through 50,
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mclusive,
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Defendantc;.
)
)

Case No. M132929

JENNIFER DA SILVA,

DEFENDANTS CITY OF CARMEL-BYTHg-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

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Pursuant to California Evidence Code sections 452(c), (d)( I), and (h) and 453, and

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California Rule of Court 3 .1306(c), Defendants CITY-OF -CARMEL-BY-THE-SEA and

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SERGEANT LUKE E. POWELL request that this Court take judicial notice of the following

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items:

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Plaintiff's Complaint for Damages against City of Carmel~by-the-Sea, et al., bearing a

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filing date stamp by t~e above-captioned Court of August 7, 2015, a true and correct copy of

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which is attached as Exhibit A.

Defs' RJN ISO Demurrer

Case No. Ml32929

REQUEST FOR JUDICIAL NOTICE NO. 2:

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Judge Robert O' Farrell' s Order After Submission, signed and filed November 19, 2014,

granting Petitioner' s Petition for Order Relieving Petitioner from the Provisions of Cal. Gov' t.

Code section 945.4, a true nad correct copy of which is attached as Exhibit B.

REQtTEST FOR JUDICIAL NOTICE NO. 3:

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Defendants request judicial notice of the time limltS in the following statutes of
limitations for purposes of calculating the applicable periods and deadlines:

Cal. Gov't Code section 946.6(t): In the event the court makes an order relieving the
petitioner from the provisions of Cal. Gov. Code section 945.4, suit on the cause of action to

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which the claim relates must be filed with the court \\ithin 30 days thereafter. A true and correc

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copy of Cal. Gov' t Code section 946.6(f) is attached as Exhibit C.

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REQUEST FOR JUDICIAL NOTICE NO. 4:

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Plaintiff s May 5, 2015 "Substitution of Attorney" form filed with the Court, wherein

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Plaintiff transitioned from her former attorney, Stephen F. Wagner, to her current attorney,

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Andrew B. Kreeft, a true and correct copy of which is attached as Exhibit D.

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Dated: September1'( , 20 15

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LAW OFFICES OF VINCENT P. HURLEY
A Professional Corporation

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4---

By:

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=t-L:--

RYANM. THOMPSON
Attorneys for Defendants CITY OF
CARMEL-BY-THE-SEA and LUKE E. POWELL

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Dcfs' RJ!'>J ISO Demurrer

Case No. M 132929

EXHIBIT A

ANDREW B. KREEFT (SBN 12667~)

LAURA. L. FRANKLIN (SBN 282642)
BOHNEN, ROSENTHAL & KRFEFT
n7 Ml:1111'as Avenue, Swte 200
P.O. Box 1111
Monterey, CA 93942-1111
(831) 649-5551
Telephone:
F ac.'iimtle:
(831) 649-0272

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Attorneys for Plaintsff

JENNIFER DASILVA

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AUG 7 20f5
~ERESA ~ Ill!!
"'~At< 'Jr.: THE: SUP.!BIOA COURT

--=~ GYMM~~-O".'Ptfrl

CAS! ~.'\~Aa~:N~ l'::~~FEAENCE

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~- J,_, - t~......_.f i --....

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DAre~'<

TIME; 9:00 AM
.....
PLACE: Courtroom f'~.: ~ nd Fr
1200Agua/ltoRd M '
oor
SUPERIOR COL"RT O F C ALIFORNl.A . onterey CA 93940

COUNTY OF MONTEREY- UNLIMITED JL'RISDICTION

CaseNc.M

JENNIFER DA 5ILVA,

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Plamttff,
CO~LAUITFOR~~GES

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vs.
CITY OF CARMEL-BY-THE-SEA; LUKE E.
POWELL, individually and in bJs offi.ctal
capacicyas a Pohce Officer f(lr the CITY OF
CARMEL-BY-THE-SEA~ COUNTY OF
MONTEREY; MONTEREY COUN1Y
S.HE:RIFF'S OFFICE, and DOES 1 through SOt
m"lu!Sive,

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[JURY TRIAL DEMANDED)

Defendants.

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Plainttff JEJ.'."'NIFER DA Sll..V~ fonnerly known as JeDlllfer Little ("Plaintiff') hereby

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alleges a6 follow'->:

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INTRODUCTION

This case arises from a nt>n-Vlolent, verbal dispute between two parents regarding their

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ele\en year-old daughter' s cell phone use that wa& unnecessarily escalat..~ into an incident of

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er.cessive force and unlawful detainment, whereby Plaintiff suffered serivus and permanent

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bodily injury and other damages.

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P~~TIES

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1.

Plaintiff is a resident of Carmel, Cahtorcia in the C'.ounty of Monterey and a

27 ~ citi2.en of the lTnited States of America. At the time of the incidents complained of herem,
28 I Plaintl.ffwas a 37-year-old female with no pnor cnminal record.

COMPh~TFORDAMAGE~

DaSilva v. City of Carmel-by-the-Sea, et a!

2.

Defendant CITY OF CARMEL-BY-THE-SEA is a local entity in the State of

California within the meaning of Part 3 (beginning \\ith 900) of Division 3.6 of Title 1 of the

Government Code. The claims herein are brought against CITY OF CARMEL-BY-THE-SEA by

and through the acts and omissions of its Police Sergean~ Defendant LllKE E. POWELL.

3.

Defendant LUKE E. POWELL ("SERGEANT POWELL") was a Police Sergeant

wtth the Cannel Poli..re Department employed by CITY OF CARMEL BY-THESEA at all

relevant tanes mentioned herein. At all times material to the incidents giving rise to Plaintiff's

clauns in th1s matter, SERGEANT POWELL was acting within the course and scope 0fhis

emph>)'tnent f\lr CITY OF CARMEL BY-THE-SEA. 1he claims herein are brought against

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SERGEANT POWELL in Ius indi\<1dual capacity .and in his official capacity as a Police Sergeant

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for the CITY OF CARMEL BY-THE-SEA.

4.

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Defendant COUNTY OF MONTEREY is a pubiic entity, duly organized and

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existing underthelawsofth.e State of California. Under its authonty, Defendant COUNTY OF

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MONTB:REY operates and manages the Monterey C:ounty Jail and is, and was at all relevant

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times mentioned herein, responsible for the actioruJ and/or mactlons and the pohd~, procedures,

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practices, and customs of the MONTEREY COVNTY SHERIFFs OFFICE. COl..TNTY OF

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MONTEREY employs SO or more persons.

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Defendant MONTEREY COlTNTY SHERH,'F'S OFFICE (!he ''SHERIFF'S

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OFFICE.') is a public entity. duly organized and existing under the laws of the State of California.

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Sheriff Scott Miller was the duly elected Shenff of COUNTY OF MONTBRF.Y at all times

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material to the incidents giving rise to Plaintiff'~ claims in this matter. The SHERIFF'S OFFICE

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is r~ponsible for the day-to-day ~eraiions of Monterey County Jail, includmg promulgating

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policies and procedures for the intake and detention of inmates and all ~ther procedures relating

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tc the operation of the facilities.

6.

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The claims herein are brought against Defendants COUNTY OF MONTEREY

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and the SHERIFF'S OFFICE, in part, by and through the acts and (lmisstons of DOE 1, a female

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employee of COUNTY OF MONTEREY who was working at Monterey Count)' Jail during

28 1Plaintiff's intake and incarceration complained of2 herein. At all times menti\lned herem, DOE 1

COMPLAINT FOR DAMAGES

:JaSilva " City of Carmel-by- t:he~&a. et al.

was the agent ofboth COUNTY OF MONTEREY and the SHERIFF'S OFFICE and was acting
within the course and scope of this agency.

7.

Plamtiff is tgnorant of the true names and capacities of defendants DOES 1

through 50, inclustve, and therefore sues these defendants by such fictinous names. Plamtiffis

informed and believes and thereon alleges that each of these fictib.o~ly named detendants is

respOnsible in some manner for the occurrences alleged in this complamt. Plamttff will seek

leave of the Court to amend her complaint to state the names and capacities ofDOBS 1 through

SO once ascertained.
JURISDICTION AND VENUE

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This action is brought pursuant to 42 U.S C. 1983, the Fourth and Fourteenth

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Amendments to the United_States Consb.tution, and by the laws and Constitution of the State of

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California

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The amount in controversy, excluding interest and co&ts, exceeds the minimum

jurisdictional limit oftlus Court.

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Venue is proper in this Court because all of the events alleged herein occurred

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within the County of Monterey; Plainb.:ff is and was at all times mentioned herein a restdent of the

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County of Monterey; all defendants conduct operations Within the County of Monterey; and all

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witnesses etther work or live wtthin the County of Monterey,

FACTS

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Plaintiff resides in Cmnel, California With her daughter, Jerma, who was eleven

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years old on the night in question. Jenna's father, Daniel Balint ("BaH.nf'). is Plaintiff's ex-

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husband and resides in a separate restdmce m Cannel, California, approximately one mtle a.way

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from Plaintiff'~ re&idence at the time in question. Plamttff and Bahnt had beei'I divorced for

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approximately six yeaN when the events complamed of herein took place .and they generally

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enjoyed an amicable relationship. The shared custody agreement between Plainnff and Bahnt

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providoo that Plaintiff had custody of Jenna on weekdays, while Balmt had custody of Jenna on

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weekends.

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1!/
3
COMPLAJNT FOR DAMAGES

DaSilt~a v.

City QjCarme!-bytlr.e-SefJ, et al.

'

12.

On the evening of August 7, 2013, a W edncsday, Plaintiff and her daughter J enna

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 eleven-year~old 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.

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Even though it was appro~.imately 9.00 p m on a weeknight, during which time

PlamtJffundisputedly had legal custody of Jenna, Balint drove to Pl.untitrs house. picked up

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Jenna, drove her to the house of a nearby family member (Jenna'~J Aunt) and left her there for the

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night. Plaintiff protested Balint's taking of Jenna, but Jid not phy~ically try tl' stop him.

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Plaintiff subsequently called 911 and asked who she rshould contact to :report her

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daughter being taken by Balint in contradiction with thetr custody agreement The 911 operator

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referred Plaintiff to the SHERIFF'S OfFICE. lUther than invohe the SHERIFF'S OFFICE,

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Plaintiff dectded to try to work things out directly Wlth Balmt.

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Balmt had not yet returned to his apartment when PJa.innff aniv~. In acc.ordanr.e

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\\lith thm usual custom suui practice, Plaintiff entered Balint's apartment through his front door,

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which he regular!)' kept unlocked, and waited for Balmt to return from dropping Jenna off at her

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nearby aunt's house.

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Upon Balinfs ret.urn, he and Plaintiff began to argue regarding the cell phone that

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Balint had given Jenna and the safety tssue~ relating to Jenna's internet acce~;s through thl~ phone.

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The ax!Nffient, while non-\liolent, became heated. At one point, Plaintiff threatened to report

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Balint's taking of Jenna in contradiction with their custody agreement. Ralmt responded by

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saying he would call the police himself to report that Plaintiff was trespassing on his property. In

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her fiu'Jtration, Plamtiff eneouraged Balint to call the police and then '\\<alked outside ofBalint's

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apartment to watt for the polioo h)' her \emcle.

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Shortly thereafter, at approximately 10:00 p.m., two officers from the Carmel

Police Department arrived at Balint'~; restdence. Sergeant Brian Pon ("Sergeant Pon") began to
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COMPL-\INT FOR DAMAGES

DaSilv~ v. City of Cw :nl-~}'-tJ..e-Sea, et 11.

question Plaintiff, while SERGEANT POWELL began questioning Balint (Sergeant Pon and
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SERGEANT POWELL hereinafter collectively referred to as the "officers"). Both Plaintiff and

Balint confirmed that their dispute had been verbal only, and that there was no prior history of

domestic violence or physical altercations of any sort between them.

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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 Plaintiff was "so mad" <Jr ~;o angry" despite Plaintiff's repeated response that ~he was

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not angry. Plaintiff attempted to explain to SERGEANT POWELL that she wM at Balint's

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restd.ence because Babnt had inappropriately taken her Jaughter in contradiction with their

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custod}' agreement, and that the whole ordeal related to a disagreement about their daughter's cell

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phone ac~s. Plaintiffbecame disconcerted as SERGEANT POWELL repeatedly mterrupted

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her and accused her oflying.

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As SERGEANT POWELL conttnued his aggre;~ive quesnomng, Plaintiff grew

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increasingly agitated anc.l expressed her confusion as to why she was suddenly being interrogated I

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in thtSi manner. Plaintiff finally state~ "OK,. I need to have my attorney here. I'm 8orry, I'm not

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talking" and began to back away from the officers. At this point. SERGEANT POWELL

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advanced towards Plaintiff, telling her to calm down and physically blocking her from moving

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further down the driveway. Feeling threatene~ Plaintiff walked to'Wards Balint's apartment, in

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the hop~ that Balint could help defuse the situation. SERGEANT PO\V'ELL advanced closer to

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Plaintiff, telling her that she could not enter Balint's apartment. As Plaintiff tumed bael from

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Balint's apartment,. SERGEANT POWF.LI. grabbed her ;um and apphed an ann bar takedown to

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force Plaintiff to the ground. 'Ibis takedown ~,;ausetl Plaintiff's head to hit the asphalt ground w1th

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such force as to give Plamtrff a black eye and open a large laceration on her tbrehead, which

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would eventudlly require eight stitches, aCT scan. and other treatment. In the coun;e C\fthis

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tak:edown by SERGEA'NT POWELL Plaintiff further suffered additional vvounds to the left s1de

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of h~ face and her anns, as well as permanent damage to her right thumb. Once on the ground,

COMPLAINT FOR DAMAGES

DaSilva v.

C:t}

oj Carmel-bv-the-Sea, ei: ai.

I
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Plaintiff was placed in handcuffs.

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Plaintlffbegan to scream as she immediately felt the blood dripping from her head

wound down her face, into her mouth, and onto her clothes. As Plaintiff began to scream,

SERGEANT POWELL stated, "Do you like it? Stay right there. Stand up straight."

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Balint, having emerged from his apartment upon hearing Plaintiff's screaming,

retrieved a towel from his residence and held it on Plaintiff's head to help control the bleeding

until Monterey Fire Department and Carmel Regional Fire Ambulance arrived on the scene.
22.

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Plaintiff was transported to Community Hospital of the Monterey Peninsula

(CHOMP) by Carmel Fire Ambulance for treatment, where she was attended to by the

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,Emergency Room phystcian. Plaintiff was dressed in workout clothes (yoga pan~ and a tank

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top), which were now covered in blood fi:tlm the wound on her head. She bad not been allowed to

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retrieve her jacket out of her car. The Emergency Room medical statJ: having seen Plamtiff

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arrive at CHOMP late at night. in the custody of a police officer, and covered in her own blood,

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repeatedly accused Plainnff of being on drugs. One nurse in particular kept shining a flwmgb.t in

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Plaintiff's eyes, as she asserted: "You're on drugs Just tell me what you're on. Crank'? Pep?

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Pot?" While Plaintlffhad consuttted two glasses of wine earlier that evening, she had not

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ingested any illegal substances, prescription drugs, or even over-the-counter medications at the

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tlme in question.

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Police Department for processmg. Eventually, Plaintiff was transported by Sergeant Pan to

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Plaintiff was subsequently transported by SERGEANT POWEU. to the Carmel

Montere} County Jail. However. the staff at Monterey County Jail would not accept Plaintiff

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because her injuries required further treatment. Accordmgly, Sergeant Pon transported Plaintr.ff

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to Natlvidad Medical Center, where Plaintiff received eight stitches to close the lc1Ceranon on her

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forehead; multlple CT scans of her face, head.'bram, neck, anJ spine; at l~t one x-ray of her

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hand; and other treatment.

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Upon bemg released from Nati"Vidad Medical Center, Plaintiff was transported

back to Monterey County Jail and placed in a group holding ceU where various other inmates
came and v.ent during Plaintiff's detention. After several hours, when Plaintiff's head wound
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COMPl-A INT FOR DAMAGES

DaSi1va v, Glty ofCarmel-by-t~e-Sea, et .:zl.

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 ~ith 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 pre~;ent at the holding cell attending to the other inmate,

Plaintiff mentioned to DOE 1 that she was in need of new gauze for her head wound. Appearing

annoyecl, DOE 1 replied to Plainttff'~ request b:y saying. ''you wouldnt need more gauze ifyo11

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would stop picking at it." When Plamti:ffreplied that she had not been ptcldng at the wound,

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DOE 1 turned to Plamttff, smded, and said in a sarcastic tone, r think you're a danger to

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yourself.'' Plairttdi immediately replied to DOE 1, 'You know that's not true.'' At which time,

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DOE 1 physically removed Plaintlff from the group holding cell and esoorted her to a sohtary

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cell.

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Plaintiff was infonned that she was being placed on a psychiatnc hold pursuant to

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Cal. Welf. and Inst Code section 5150 ("5150 hold") for being a danger to herself. Plainttffwas

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stnpped of all of her clothing in VIew of multtple county employees and at least one male inmate

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and then g1Ven a rectangular heavyweight garment, approximately the size of a bath towel, to

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wrap around herself.

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For sevetal hOUI'!, Plointiff was held in a vay hot soUt.u:y holding cell wi1h cement

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walls. In place of a toilet, there was a hole in the floor with Vlstble feces from previow. inmates.

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The cell wntained one glass window, which fac.:ed the glass window of the adja<:ent holdii:I.g cell.

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When Plaintiff atttmptcd to look out her window to get the guard's attention, she was subjectP.d

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to obscene sexual gestures fram the m&lc inmate m the adjacent celL, who had previously

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Witnessed Plamtdfhemg stripped naked by the guards.

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While !SOund was limited through the solid cement walls of the solitary cell,

Plaintiff oould hear some conversation by the jail employees when ~he pressed her face close to
the cell's glass window. Plaintiff was ultimatdy able to get the attention of oue jail employee by

COMPLAINT FOR DAMAGES

7
Al.Yilva v. City of Carmel-by-the-Sea, ttt ai.

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making a praying symbol with her hands. Plaintiff subsequently observed this same employee
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through the cell window as she reviewed Plaintiff's records with a look of disapproval on her face

and then stated to another employee, "There are no priors " Approximately on hour later,

Plaintiff was allowed to put her blood-oovered clothes back on and return to the group holding

cell.

29.

In total, Plaintiff wa!l detained for approximately 18 hours at the Monterey County

Jail. Plaintiff estlmates that approximately three of such hours were spent m the solitary cell on

the alleged S1SO hold. Plaintiff was not allowed to contact her family at any time during her

detention. Plaintiff was ultimately released on her O\\'D. accord wtthout bail.

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30.

Plaintiffhad been booked into Monterey Co11Ilty Jail on two charges; Obstructing

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an Officer, Penal Code 148(a)(l), and Pubhc Into~ication, Penal Code 647(f). No testing of

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any sort was ever conducted by any officers, tnedtcal staff. or any employee of COUNTY OF

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MONTEREY or CITY OF CARMEL-BY-THE-SEA in connection '\\-ith the charge of Public

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Into"llication. All such charges against Plaintiff were dismissed on March 18, 2014.
31.

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As a <hrect, proximate, and legal result of the acts, omimons, policies, patterns,

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pracbces, and/or customs of defendant~; alleged herein, PlaintiffhaR ~ered damage!! including,

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but not Hunted to: bodilyi njury, loss ofincome and employment, substantial physical and

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emotlonal pain and suffering, shock and injury to her nervous system, humihation, acute anxiety,

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emotional and phy~tcal distress and fear; and Plamtiff wntinues to suffer from post-traumatic

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stres& and anx1ety relatmg to the events complained of herein.

32.

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As a further direct, proximate, and legal result of the injuries alleged herein,

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Plaintiff has incurred, and may continue to incur medical expenses in an amount 8\.'COrdin.g to

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proof.

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33.

Pursuant to Section 910 of the Government Code, Plaintiff filed a "CLAIM FOR

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DAMAGES AGAINST THE CITY OF CARMEL-BY-THE-SEA" on March 19, 2014 (the

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"Claim"). The Claim was not presented v>ithin the time prescribed b:y Govemmoot Code section

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911.2 because of the following facts:

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a) Plaintiff had a pending and related criminal matter before the co1nt in
8

COMPLAINT FOR DAMAGES

DeSilva v. City o fCarmel-by-me-Sea, et al.

Monterey County (Case No. CRMS314352A).

b) Plaintiff was a defendant in a criminal case that arose out of the same operative

facts as set forth in the Claim filed against the CITY OF CARMEL-BY-THE-SEA.

c) The charges against Plaintiff were dismissed on March 18, 2014 following the

presentation of evxdence and arguments by counSel in a Motion to Suppress Evidence (PC

6 ,. 1538.5) before the Hon. Samuel Lavorato, Jr.

d) Plaintiff genuinely beheved that, as a prerequisite to her filing

of a clann

against CITY OF CARMEL-BY-THE-SEA, the criminal matter needed to reach final chsposition.

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After denials by CITY OF CARMEL-BY~TilE-SEA of both the Claim and

34.

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Pla~ntiff' s

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Relieving Petitioner from ProvisiODS ofGov't Code 945.4 (the "Petttionj in Monterey County

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Superior Court.

subsequent Application for Leave to File Late Claim, Plaintiff filed a Petition for Order

35.

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On November 19, 2014, the Hon. Robert O'Farrell granted the Petition. holding

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that Plamtiff acted under a reasonable m1stake when she waited to file her Claim until the day

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after the related cnminal matter reached its final disposition.

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FJRST CAUSE OF ACTION

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42 U,S.C. 1983-VIOLATION OF CIVIL RIGHTS

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(Against Defendants LUKE E. POWELL and

CITY OF CAR.MF.L-BY~TBE...SEA)

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36.

Plaintiff repeats and repleads each and every allegation oontatned in paragraphs 1

through 35, and by this reference mcorpourtcs the same herein as though fally &et forth.
37.

Defendant CITY OF CARMEL-BY -THE-SEA is and was responSJble for

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over8eeing the implementation and promulgation of official policy for its police force, Carmel

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Police Department, which included SERGEANT POWELL at all times herein mentioned. CITY

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OF CARMEL-BY-THE-SEA was deliberately indifferent to the need for ackquate training and

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supervision for its police offi;}ets, the fiulure of which caused constitutional violations upon the

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citizeni) in general, in~luding Plaintiffm pamcular.

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38.

Defendant SERGEANT POWELL was acting under the color oflaw, as an

authori7ed agent ofDefendant CITY Of CARMEL-BY-THESEA, while detaining,

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COMPlAl:N f FOR DAMAGES

DaS;Iva v. Oi.y ofCarmel-by-ttte-Sea, et al.

:interrogating. and arresting Plaintiff, in furtherance of his duties.

2

39.

Defendant SERGEANT POWELL violated Plaintiff's civil rights by brutalizing

and inflictmg severe injury upon Plaintiff under the rulor o{law with force that was grossly

disproportionate in relation to the need for action under the circumstances, and by subjecting

Plaintiff to an 11legal, improper, ar.d unlawful ~eizure of her penon without probable cause,

privilege, or consent. Furthermore, SERGEANT POWELL's actions in aggresshely

mterrogating PlaintltTn~essly and mtentionally ~calatcd an otherwi.se non-\iolent, verbal

domesticdispute into a physical altacation that fac.ilitated Plaint:Jff~ phy!Sical injury and arrest.
40.

The ronstttutivnal deprivation of Plaintiffs nghts Y.as ah;o caused by a dc:.l1berate

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indl.fference demonstrated by CITY OF CARMEL-BY-THE.-SEA and perpetrated upon Cltlzens,

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such as Plaintiff. Such failures include not having officers awropriately trained in the proper

12

procedures for handling non-violent domestic di~tes and improper use of force training and

13

supervision that allows and permits the detention of persons without JUSt cause and through

14

unreasonably inJUDOWI methods.

41.

15

The above described actions of Defendan: SERGEA.NT POWFl.L and the pohcies

and pracuc-e s of Defendants CITY OF CARMEL-BY-THE-SEA depnved Plaintiff of her rights

16 1and
priVIleges under the
and Fourteenth Amendments to the Umted States Constitution
Fourth~

17

42.

18

As a direct, proXllllate, and legal result of the acts, omi:tsions, pohcit:S, patterns,

19

practices, and/or customs uf defendants alleged herem, Plaln.tiffhas suffered damages includmg,

20

but not limited to: bodily injury~ loss of income and employment, substantial phystcal and
emotional pam and suffering, shock and mjury to her nen-ou~ l3y>Jtem, humiliatio~ acute an'\:tety,

emotional and physic.al distre~s and fear, and Plaintiff continues to suffer from post-traumatic
stress and anxiety relating to the events complained of herem.
43.
25
26

As a further du-ect, proxunate, and legal result of the bjunes alleged herein,

Plllintiff bas incurred, and m.ty continue to incur~ substanti.al medical and other out-of pocket

expenses in an amount according to proof.

:: ,
1

44.

As a further direct and proximate consequence of the acts of CITY OF CAR'MEl--

BY-THE-SEA by and through its employee, SERGEANT POWEll., Pla::.nhff\\o1lS transported to

10
COMPl.AThl1 FOR DAM.J\.GFS

DaSz.'va v_ Clo/

~fC:~rmel-hy-ihe-Seu, eta/

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,

including being stripped of all of her clothing in view of multiple county employees and at least

one male inmate.

45.

As such, Plaintiffrequ~ts compensatory damages, reasonable attorneys' fees and

costs pursuant to 42 U.S.C. 1988 and any ~uch othe:t and furtherreli.efas this Court deems just.

SECOI\1> CAUSE OF ACTION

FALSE IMPRISONMENT
(Against Defendan~ LUKE E. POWELL and
CITY OF CARMEL-BY-THE-SEA)

9
10
11

46.

Plaintiff repeats and replead& each and every .allegation contained in paragraphs 1

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 ofha rights. In his

15

response to a call regarding a non-violent, verbal dispute between two paren~ SERGEANT

16

POWELL interrogated and detained Plaintiff without probable GaUSe~ needlessly escalatmg a non-

1?

violent dispute into a confrontational detention of Plain~ whereby Plaintiff was prohibited from

18

tea:ving and subsequently suffered severe bodil}' inJury and other damages.

19

48 .

Defendant CITY OF CAIDvfEL-BY-THF.-SEA i:; vicanously liable for the tortious

20

acts of its emplo}'ee, SERGEANT POWF-LL, that were oomrnttted within the scope and

21

furtherance ofhis emplo)lment.

49.

22

As a direct and proximate consequence of the acts of CITY OF CARMEL-BY~

23

THE-SEA by and through its employee, SERGEA..'I\fT PO\VF.I.L, Plaintlffhas suffered damages

24

including, but not limited to: bodily injury, loss of income and employment, substantial phystcal

25

and emotional pain and suffering, shock and injury tJ her net"\'ous system, humihation, acute
anxiety, emotional and physical distress and fear; and Pla.tntlff continues to suffer from post-

:: I

tra-umatic stress and anxiety relating to the events comptained of herein.

50.

As a further direct, proximate, and legal result of the injuries alleged herem,

COMPLAINT FOR DA.MMiES

11

DaSi!~a v. Cit1 of Carmel-by-the-Sea, et al.

Plaintiff has incurred, and may continue to incur, substantial medical and other out-of pocket
expenses in an amount according to proof.

2
3

51.

As a further direct and proximate consequence of the acts of CITY OF CARMEL-

BY-THE-SEA by and through its employee, SERGEAN_T POWELL, Plaintiff was transported to

Monterey County Ja1l, where she was placed on an unreasonable 5150 hold in sohtary

I!

confinement, during which Plaintiff was subjected to humiliating and traumatic conditions,

including being stripped of all of her clothing in view of multiple county employees and at least

one male inmate.

52.

10

As such, Plaintrff requests compensatory damages, reasonable attorneys' fees

under CCP 1021.5, costs and any such other and further relief as this Court deems Just.

11

THIRD CAUSE OF ACTION

12

BATI'ERY
(Against Defendantli LITKE E. POWELL and
CITY OF CARMEL-BY-THE-SEA)

13
14

15
16

53.

Plainhff repeats and repleads each and every allegation oontained in paragraphs 1

through 52, and by this reference incorporates the ~ame herein as though fully set forth.

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 s 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 and 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 this 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

lJ

right thumb.
I

55.

Defendant CITY OF CARMEL-BY-THE-SEA i$ vicariously hable for the tortious

acts of rts employee, SERGEANT POWELL, that \\'ere commjtted Within the scope and

"'~"

II fuctherance of his employroent.

.
56 .

.:.!:1

As a direct and prox!Dlate consequence ofthe acts of CITY OF CARMEL-BY-

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.

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 ph~ical distress and fear; and Plaintrff continues to suffer from post-

traumatic stress and anxiety relating to the events complained of herein.

57.

As a further direct, proximate, and legal result of the injuries alleged herein,

Plaintiff b8s incurred, and may oontinue to incur, substantial medical and other out-of pocket

expenses 10 an amount according to proof.

8
9

58.

As a further direct and proximate con~equence of the acts of CITY OF CAR.MEL-

BY-TI-IE-SEA by and through its employee, SERGEANT POWELL, Plaintiff was transported to

10

Montere)' County Jatl, where ~he was placed on an unreasonable 5150 hold m ~obtary

11

confinement, dul'ing which Plainttflwas subjected to humiliating and traumatic C".Qndttions,

12

including being stnpped of all of her clothing in view of multiple county employees and at least

13

one male i nmate.

14

59.

15

As such, Plaintiffr~uestb compensatory damages, reasonable attorneys' f~

under CCP 1021 .5, costs and any ruch other and further relief as this Court deems just.

16

FOURTH CAUSE OF AC'IJON

17

INTENTIONAL INFLICI'ION OF EMOTIONAL DISTRESS

(Against Defendants LUKE E. POWELL and
CITY OF CARMEL-BY-THE..SEA)

18
60~

19
20

Plaintiff repeats and realleges Paragraphs 1 through 59, and incorporates them by

reference herem.

21

61 .

Defendant ClTY OF CARMEL-BY-THE-SEA through its employee,

22

SERGEANT POWELL, intentionally caused bodily and emotional harm to Plaintiff, and they

23

knew. or should have known, that emotional di~tre&s would likely occur as a result of their

24
25

conduct.
62.

The conduct ofDefendant CITY OF CARMEL-BY-THE-SEA through its

26

I employee, SERGEANT POWELL, was outrageous; that is, as to go beyond all bounds of

27

decency, and to be regarded as odiou~; and utterly intolerable in a et\ilized community.

28

63 .

Sa.td mtenti.onal conduct wa~ wtllful, rn.ahciom and in total d1sregard of Plaintiffs

n
COMPLAINT FOR DAMAGES

DaSt~ v. City oj Carmel -IJ_v-the-Sea,

et al

rights.

64.

Defendant CITY OF CARMEL.BY-THE-SEA is vicariously liable for the tortious

acts of its employee, SERGEANT POWELL, that were committed within the scope and

furtherance ofhis employment.

65.

As a direct and proximate consequence of the acts of CITY 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 mJUTY to her nervous ~ystem, humiliation, acute

arudety, emotit)nal and physical distress and fear; and Plamtlfi continues to suffer from posttramnatic stress and anxiety relating to the events complained of herein.

10

66 .

11

As a further dJrect. proxunate, and legal re&ult of the mjuries alleged herein,

12

Plaintiff has incurred, and may contmue to inc.ur, substantial medical and other out-of pocket

13

ex.pen&es in an amount &:carding to proof.

6 7.

14

As a further direct and proxunate consequence of the acts of CITY OF CARMEL.

15

BY-THE-SEA by and through its employee, SERGEANT POWELL, Plainnffwas transported to

16

Monterey County Jm.l, where ~e Vias placed on an unreasonable 5150 hold in solitary

17

confinement, during which Plaintiff was subjected to humiliating and traumatL~ conditions,

18

including being stripped of all of her clothing in view of mulb.ple COU!lt)' employees and at least

19

one male inmate.

20

68.

AB such, Plamttffrequests compensatory damages, reasoD.able attorneys' fees

21

under CCP 1021.5, costs and any such other and further relief as this C.ourt deems just.

22

Additionally, Plaintiff requests punitive damages due to the mallciOus nature of the conduct.

23

FIFtH CAUSE OF ACTION

24

MALICIOUS PROSECL"TTION
(Against Defendan.ts DOE l, COUNTY OF MON'IT.REY,
And MONTEREY COUNTY SHERIFF"S OFflC'E)

25
26

69.

27

reference herein.
70.

28
I,

Plaintdfrepeats and realleges Paragraphs 1 through 68, and mcorporates them by

Defendants COUNn~ OF MONTERF.Y and the SHERIFF'S OFFICE through its

i4

COMPLAINT FOR DAMAGES

DaSUva v City qf Carmel-b:y-tP.e-Sea. et al.

l
I

employee, DOE 1, intentionally caused the institution of a legal action under Cal. Welf. and Inst.

Code 5150 and 5150 05 while Plaintiff was detained at Monterey County Jail, resulting in

placement of Plaintiff 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 of medical 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

10

pl'e\"ious inmates. The cell oontamed one glass window, winch faced the glass window ()f the

11

adjacent holding cc:ll. When Plaintdf attemptoo to look out her window to get~ guard's

12

attention, she was subjected to obscene liexual gestures from the m.ale inmate in the adjacent cell,

13

who had previously 'Witnessed Plaintiff being stripped naked by the guards.

14

72.

Said mtentlonal conduct was Willful, mali"'-ious, oppressive, and in total disregard

15

ofPlainnffs rights, safety, and welfare. No m~dical assessment was ever conducted for this 5150

16

hold. Upon review of Plaintiff's file by a different employee in the SHERIFF'S OFFICE, who

17

clearly saw that such a hold was unJ~tdied, Plaintrlf was released back to the group holding c..ell

18

and subsequently allowed to leave the Monterey County htl.

19

73.

Defendants COt"N1Y OF MO~!LRBY and the SHERIFF'S OFFICE are

20

vicariou&ly hable forth~ tortlous acts oi their employee, DOE 1, that were committed wtthin the

21

scope and furtherance of her employment.

22

74.

As a direct and proximate consequenc-e of the acts of Defendants COUNTY OF

23

MONTEREY and the SHERITF'S OFFICE through its employee, DOE l, Plaintiff sustained

24

severe emotional distre.,s, humiliation, emotional pain and suffering, and Pl.aintiff continues to

25

suffer from post-traumatic stress and anxiety relanng to this event, which has led to Plaintiff's

26

loss of mcome and employment, and addttional out-of-pocket e:x.penses

27

28

?5.

As such, Plaintiff requests comp~nsatorydamages, reasonable at+.omeys fees

under CCP 1021.5, c.Jsts, and any c;uch other .md further relief as this Court deems just.
15
COMPLAINT FOR D.AMAGES

lJaSil"a v City of Camel-by-the-Sea, .:tt at.

Addltic;nally, Plaintiff requests. punitive damages due to the malicious nature of the conduct

SIXTH CAUSE OF ACTION

INTENTIONAL I~FLICTION OF EMOTIONAL DISTRESS

(Against Defendants DOE 1, COUNTY OF MONTEREY,
And MONTEREY COU~TY SHERIFF'S OFFICE)

76.

reference herein.

77.

Pldintiff repeats and realleges Paragraphs 1 through 75, and incorporates them by

Defendaut D~fendants COUNTY OF MONTEREY smd MONTEREY COUNIY

SHERIFF'S Of'HCf:, by and through their employee, DOE 1, ;_ntentionally caused emoti\)nal

"

harm to Plaintiff by placmg her on m unjustified and unreasonable 5150 hold. and they knew, or

10

11

~ould have known, that emotional thr;tress would likely occur as a result of therr conduct.

78.

The conduct of Defendant COUNTY OF MONTEREY and MONTEREY

12

COUNTY SHERITF'S OFIICF, by anrl through theu employee. DOE 1 was outrageous, that is,

13

as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a

14

ctviliz:ed community.

15

79.

As part

of this 5150 hold, Plaintiff was stripped (\fall ofher ~lathing in \ttew of

16

multiple county employees and at least one msle inmate and then allowed only a bath towel sued

17

garment to cover herself. For several hours, Plamnffwas held m a very hot &obtary holding cell

18

with cement walls. In place of a tolicl, there war; a hole m

19

previou& inmates. The cell contamed one glass wind~w, which faced the glass wmdow of the

20

adjactmt holding cell. When Plamtiff attempted to look out her windo~ to get the gumd's

21

attention, she was subjected to obscene ~exual gestures from the male mmate in the adJacent cell,

22

who had pre\- iously Wltne~ed Plainuffbeing stripped naked by the guards.

23

80.

th~ floor With Y1s1ble fe~

from

Smd intentional conduct was willful, mahc10us, oppressive, and in total dtsregatd

24

ofPlaintiff'8 rights, safety, and welfare. No medical assessment W&i ever ronducted for this 5150

25

hold. Upon review ofPlaintiff'8 file by a different employee in the 8HFRIFf'8 OFFlCE, who

26

clearly saw that such a hold wl!S unjustified, Plamtiffwa~s released back to the group holding cell

27

and subsequently allowed to leatve the Monterey County Jail.

28

Defendants COUNTY OF MONTEREY and the SHERifF'S OFHCE are

16
COMT~FORDAMAGES

I
[

I
I

vicariously liable for the tortious acts of their employee, DOE 1, that were committed within the

2
3

scope and furtherance of her employment.

82.

As a direct and proximate consequence of the acts of Defendants COUNTY OF

MONTEREY and the SHERIFF'S OFFICE through its employee, DOE 1, Plaintiff sustained

severe emotional dtstre&s, humiliatto~ 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 income and employment, and additional out-of-pocket expenses

'

8
9

83.

As such, Plaintlffrequests compen&atory damage&, reasonable attorneys' fees

under CCP 1021 .5, costs, and any such other and further relief as this Court deems just.

10

Addttionally, the mahi<ious nature of the conduct entitles Plaintiff to the recovery ofpunitive

11

damages.

12

84.

Defendants COUNTY OF MONTEREY and MONTEREY COUNTY

13

SHERlFF'S OFFICE are vicariously liable for the tortious acts of its employee, DOE 1, that were

14

committed within the scope and furtheran~e ofher employment.

15
16

85.

As a direct and proximate consequence of the a:cts of COUNTY OF MONTEREY

and MONTEREY COUNTY SHERIFF'S OFFICE. by and through their employee, DOE 1

17 . Plaintiff was placed on an um easonable 5150 hold in solitary confinement, during which Plamtiff

1g

was subjected to humiliating and traulllSltic conditions, including hemg stripped of all of her

19

clothing in view of multiple county employees and at least one male inmate.

20

86.

As a direct and proxuna.te con<requence of the acts of COUNTY OF MONTEREY

21

and MONTEREY COUNTY SHERIFF'S OFFICE, by and through their employee, DOE l,

22

Plaintiff has suffered damages including, but not limited to: loss ofincume and employment,

23

substantial physical and emotional pain and wffering, ~hock and inJury to her nenous system,

24

humiliation, acute anxiety, emotioii.al and physical distress and fear; and Plaintiff continues to

25

suffer from post-traumatlc stress and anxiety relatmg to the evenn. complamed ofherein.

26 ii

87.

As such, Plaintiff requests compensatory damages, reasonable attorneys fees

27 ~ under CCP 1021.5, costs and any such other and furtherreliefaa this Court deems just.
Additionally, the malicious nature ofthe conduct entitle!l Plaintiffto the recovery of punitive
17
COMPLAIN r FOR DAMAGES

DaSilva v City of Carme:-lw-the-.S&J, eta/.

damages.

SEVENTH CAUSE OF ACTION

NEGLIGENCE
(Against Defendants LUKE E. POWELL and
CITY OF CARMEL-BY-THE-SEA)

4
5

88.

reference herein.
. 89.

Plaintiff !'epeats and realleges Paragraphs 1 through 87, and incorporates them by

Defendants LUKE E. POWELL and CITY OF CARMF.L-BY-THE-SEA, and

each of them, were negligent in performing the1r duties; and e:acb fa1led, neglected, andior reflsed

to properly and fully dl::;charge their responsibilities by, among other tlnng&:

a. Improper compliance with policies, practi~es. and procedures In the quesnoning

10
11

and detention ofPlamtiff;

b. Allowmg a culture to exist of improper or non-compliance with pohcies, praCtices

12

and procedures in the questiomng and detention of a atizen,. includmg Plaintiff;

13

c. Improper and/or ~rroneous threat assessment in the questioning and detention of

14
15

Plaintiff;
d. Exercismg an elicessive and unreasonable level of force against Plaintiff for the

16

17

CU'C\llllstances; and
e. Fadure to use reasonable care in the hiring, tram.ID.g.; and/or supe.tvt&tng of offi~rs.

18
19

90.

As a direct and proXlDlate consequence of the negligent acts of Defendants,

20

Plaintiff sustained severe emotional dtstrcss, humiliation, emotional pain and suffering. and

21

Plaintiff continues to suffer from po~ot-traumahc stress and anxiety relating to this event, which

22

has led to Plaintiff'~ loss of income 'llld employment, and additional out-of~pocket expenses.

23

91.

Defendant CITY OF

CARME~BY-THE-SEA .is ..-icariously liable for the torti"us I

24

acts Clfits employee, SERGEANT POWELL, that were co.tnmitted wtthin the !;COpe aitd

25

furtherance ofhis empl.Jyment

92.

26

As such, Plaintiff requests compensatory damages. reasonable attorneys' fees

27

under CCP 1021.5, costs, and any such other and further relief as this Court deems JUSt.

28

u
18
COMPLAINT FOR DAMAGES

Da81lva 11 City oj Carmel-by-the-Sea, et a/.

EIGHm CAUSE OF ACTION

NEGLIGENCE
(Against Defendants DOE 1, COUNTY OF MONTEREY,
ADd MONTEREY COUNTY SHERIFF'S OFFICE)

93.

reference herein..

94.

Plaintiff repeats and realleges Paragraphs 1 through 92, and mcorporates them by

Defendants COUNTY OF MONTEREY and MONTEREY COUNTY

SHERJFF'S OFFICE, and each of them, were negligent :tn performing their duties; and each

failed, neglected, and/or refused to properly and fully dtscharge their responsibilities by, among

other tlnngrs:

10

a. Improper compliat1.ce with pchctes, practices, and procedures m the as~essm.tmt

11

and Un.plemcntation of5150 holds;

12

b. Allowing a culture to exi'Jt of improper or non-compliance w1th policies, practices

13

and pro\XX!ures in the as&essment and implementation of 5150 hold&;

14

c. Improper and/or erroneous threat assessment in the assessment and

15

implementatJ.on of 5150 holds; and

16

d. Failure to use reasonable care in the hiring, traming, and/or supervising of deputies
and other staff at Monterey County Jail.

17
18

95.

As a duect and proxunate con~equence of the neghgent acts of Defendants

19

COLTNIY OF MONTEREY and MONTEREY COUNTY SHER.If'F'S OFFICE, Plamnff

20

sustained severe- emotional distres~. humiliation, emotional pain and suffering, and Platntlff

21

continues to suffer from :J:"OSt-traumatic stress and anxiety relating to this event, Vl:hich has led to

2.2

Plaintlff s loss of income md employment, and adclitional out -of-pocket expens:5.

23

24

96:

Defeudams

~O~JNI'Y OF MOJI<"IEREY and MON'l'ERFY COtJNW

SHERIFF 8 OFFICE are vtcanou~l~ hable for the tortious acts of tts em.plCiyee, DOE 1, that were
committed within the scope and furtherance of her employment at Monterey County Jatl.

26

97

As such, Plaintiffrequestos compensatory damages, reasonahl~ attomeys' fees

27

under CCP 1021.5, costs, and any 8UCh other and further relief as this Court deem~ ja'>f._

2X

r Addttlon&l.ly, Plaintiff requests punitrve damag~ due to the mahcious nature of the conduct.
19
COMPLAINT FOR DAM.\.GES

Das~z~a v Cl~J

oj ea~rnel-0}-tJ..e-Sea. er al.

I
j

PRAYER FOR RELIEF

WHEREFORE, Plmntiff respectfully 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 of punitive damages against the tndividual defendants sued in their

personal capacity for all actions complained of, including those outside the scope of the

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.

10
11

BOHNEN, ROSENTHAL & KREEFT

Dated: August 7, 2015

12

By.~~

13

Attorney~ for Ple.mtiff Jenmfer Da silva

14

15
16
17
JURY DEMA:.~D

18

19

Plaintiff JENNIFER DA SILVA hereby demands a trial by jury.

20

BOHNEN, ROSENTIIAL & KREEFT

Dated: August 7, 2015

21
22
By.

23
24

An~~
Attorneys for Plaintiff Jennifer Da Silva

25

26
27

28
20
COMPLAIN!' FOR DAMAGES

DaSilva v Ci:y ofCarmel-by-ihe-Sea, et al.

EXHIBIT B

SUPERIOR COL"RT OF CALIFORNIA

COVNTY OF MONTEREY

TE~~ ~

A. Rt-1\

C:...i:f\ oi: -:'rl S\.:PERi R COURT

------------~OEPUN
Case No.: Ml29420

3
4

NvV lf> 201'

I Jennifer Little,

s I~
6

Alina Ol$'er

Order After Submission

Plaintiff,

!I

vs.

71 The City of Cannel-By-The-Sea,

M~~

- -----1' ... . . ----t

?entioner't request to be relieved from the orov~&ions of Govt Code sec 94S.4 came on f(lr hearing on

10

No\'ember 1, 2014. At the ~nclwion of arguments the court took the matter under ~ubmission Now, at a later

11

time, the ~urt issues its r.1liDg.

Pditioner was llt"reSted by the Carmel pollee, apparently for resistms them. She was crlmanal:y charged.

12

13 !. 1hat charge was ultimately dismis:~ed, and the next day she filed a ~laun with the Cit)', alleging excessive force by
14

the polic:e during their encounter. However, the claim was filed a iittle more than ODC! month later than the

15

Gov~uent Code allows.

16

court under CCP Sec 4i3

18

unbl her criminal case. arising out ofthe same incident, was concluded.
The City cites Butlerv. Los Angles County(2008) 61'7 F.Supp.2d 994 in '>Upport of1ts argument that

19
20
21
22

lS

Her e;laim was r"'Jected by the C1ty a.'l bei.ng untimely and she now seeks t-e.liefftom the

She states she d1d not file the claim sooner because she ml&taken!y believed she could rtot legally do 3D

17

I
I

Petitioner should not prevail. That cowt cited the "clear. plain language" ofGovt. Code Sec. 94S 3, wh1cb states

thdl: the time m which to filr a ,elaim ~gainst a public entity under Sechon 91 1.2 Is not ~ed.

Although Sec . 945.3 does state thut the fillng requirements of Sec 911 2 are not extended, there is 'lathing
1m that language that forecloses a petstton for rehef under CCP Sec 473

24
2S

-l

Murwzv. State ofCalifortri<J (1995) 33 Cal.App. 4111 1767 emphasizes the remedial nature of Sec 473. Its

I
I

purpose is to grant reliefftom technical rules that might be a trap for the unwary, and an aff'll1Ilation of the policy
that cases should N: heard on their mcnts and doubts ~hould be resolved in favor of granting relief.

Sec. 94S J is titled, "Civtl Action May Not Be Brought Apinst Peace Officer When Criminal Charges

Pending.'' It ts not unreawnable for a lay person.to believe the claim filing process to be part ofbnnging a civil

action. It is not unUI the last sentence of the 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.

There is no prejudt to the City. The court finds that the Petitioner acted under a reasonable mistake.
The PetJJion is granted.

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Judge of the Superior Court

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Robert O'Farrell

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IS

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CERTIFICATE OF MAILING
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~Code of C1vil Procedure

Sectior. 1013a)
I do h~reby certifY that I am employed tn the Count)' of Monterey. 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 the Order After Submission for collection and

maihng tbis da~te following our ordinary business practices. I am readdy famtltar with the Court'9 practices tar
collectton and proccssinf correspondence for maihng. Oil the same day that IXli~.sp\\ndort~ ts plac:'ld (or r;o\ l~~(l,~ 1
m.d madmg, it 1& deposited m the ordinar} co~rse ofbusin~s w1tb the Umtect St~t.e"' Post~l

V~<a.'i matled ~.,

as follow!!;

Stephen r. Wagner

Noland, lliimerry, Ettenne & HO!Is

POBo>.2SIO
Sahnas CA 93902-2510

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Ryan 1bompson, Esq.

J I..n Offices ofVincent !J Hurley

38

SC~~~;Cape

Apt:o.~ t.;A

Date;

Village

95001

NOV 2 0 2014

TERESA A RISI, Clerk of the Supcnor Court,

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m Saltn.1.~;
Caltfomia, in .ll $Caled ecvelope with postagco fully prepaid. Th~ nam~ and addresses \)t' ~.ach person ~o v.of)om ilotJC1i
)lll"Vl'-t;}

---~-- - ---~ Dcput}' Clerk

Alina Oliver

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EXHIBIT C

 946.6. Denial of application for leave to present claim; relief.., CA GOVT 946.6

IW.est s Annotated California Codes

IGovernment Code (Refs & Annos)
ITitle 1. General
IDivision 3.6 Claims and Actions Against Public Entities and Pubhc Employees (Refs & Annos)
IPart 4 Actions Against Public Entities and Public Employees (Refs & Annos)
IChapter 2 . . \ction~ 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, 2003
Cut rentness

(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 the 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 the 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

Section 9 11.6.

~ithin

six months after the application to the board is denied or deemed to be denied pursuant to

(c) T he court shall relieve the petitioner from the requirements of 5ection 945.4 if the court finds that the application to the
board under Section 911.4 v. as made v. ithin a reasonable time not to exceed that specified in subdiYision (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:

 946.6. Denial of application for 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 the 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 the time specified in Section 911.2
for the presentation of the 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 as
preset ibed by subdi\ ision (b) of Section 1005 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 and 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 the 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 made on the Clerk/Administrator of the court of appeals.

(3) If the petition invol\es a claim arising out of alleged actions or inactions of the Supreme Court or a judge thereof, service
shall be made on the Clerk of the 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 the 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

 946.6. Denial of application for leave to present claim ; relief... , CA GOVT 946.6

on the petition.

(f) If the court makes an order 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. Gov. 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.

EXHIBIT D

05/06120~5

Haner !y

Fro~ : No:ano

1156 p. 002 i 004

t447

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0~/05/2015

i0002/0002

,48PW FAX

FILED
MAY -i totS

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Fro~ . ho a~d

05/06/201!1 14:47

Haneriy

PROOF OF SERVICE BY IIAIL

#1 56 P.003/004

Sulldtullon of Auomev-avn
lnnvctiDrll: ~, havltV.,pMitla ..... by mal wllb , . Subdullota ol ~t ,.. tile (>aan who tJJIIIIed , . dctlt.llriMt
t1U Prod d SeMI by Mail An 11111!\pd CXW" of the 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#q 1fJUIS8( ~.,.,.,.,mel these,.,., IWI$1 the Prodd Sclmw by"'"'
~

1. 1em over the age of 18 and nola pgtr to thia cauM. l am a IHident ol or emplorecf in the county where the mall~ CIClQA1'8CI. My
...tence ar ...,...llddN&a Ia (8PfiCIIY)!

2. f .-wd h S&lbl6tutlan of A~ CNI b'f 1clollng a true copy In a -.led tnvwklpe addraaaall to -=h pilliOn wflote N1mt
and IJddral8 lhiNm bHiw Mel depOIIIIng the erMIIapll'l tN Untad Statas tniiJ wlltt Ole poal8Qe Uly PN(.IaJd.

c1 >oa d m3111n1r.

NAME AND ADDRESS OF EACH PERSON TO WHOII NOTICI! WAS MAILED

4. a Named p8ISOil MMd:

b. Addrael (numbet . . . , dly, Mid 'DPJ'

e Nameofi**Jft...vad.
d. ~ (,..,., .,.., uty. and ZIP)'.

Name ofpenon 181\'ed,

f. Addl'8lll (runber, .tnt db'. and ZJP;

g Nlm8 at PlltiOft I8Mid:

h. Mdrela(IICinber. ~ c:J;r. end ZIF'):

I. Name ofpMOn ..wd:

j. AddiNI (ntmblr, stiNt Cffy. and Zlpt

SUBSllTU110N OF ATTORNEY-cML
(Witttaut Court OnMr)

........

05/06/2015 14:47

From:Noland Hanerly

PROOF OF SERVICE
(Code Civ. Proc. l013(a). 2015.5)

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STATE OF CALIFORNIA

4 ~ COu"NTY OF MONTEREY
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On the date below, 1 served the attached docwnent(s) entitled: SLliSTJTVTION OF

ATTORNEY, on the followmg named person(s) in said action at:
Vincent P. Hurley~ Esq,
Ryan Thompson, Esq.
Law Offices of Vincent P. Hurley
38 Seascape Village
Aptos. CA 95003

Fax: (831)661-4804

0
lil

by personal service on the above-named person(!i) at the above stated ~s(es).

by tJvemight delivery on the above named party(ies) in said.action. by placing a

true and correct copy thereof enclosed m a Seared envelope m a designated area for
-at the offices of Noland, Hamerly,
outgoing, same-day pickup by
Etienne & Hoss fur overnight delivery, billed to Nol~ Hamerly. Etienne &. Hoss,
and~ as set furthabove.

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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.

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#156 p 004/004

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
ordinary practk.e with wbich I am xeadily 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 causing to be 1Iansmitted a true copy thereofto the above-named recipient via

the foilowing facsimi.le tranmussion telephone number (nFax")~ (831) 661-4804.
and no interruption of transmission was reported.

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I declare, under penalty of perjury under the laws of the State of California that the
foregoing is true and com:ct.
Executed on May 6, 201 S, at Salioas. California.

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CBR.l'JFl:CATE OP SERVICE
Jenn/fol' Ltltls v. Cd)l qfCQ111le//CQ.Sr No. M!2942D