HomeMy WebLinkAboutAgenda Report - April 6, 2016 C-13TM
CITY OF LODI
COUNCIL COMMUNICATION
AGENDA ITEM
C- 1 3
AGENDA TITLE: Authorize City Clerk to Deny Request for Leave to Present Late Claim, Filed on
Behalf of Diane Wilbur, Pursuant to Government Code Section 911.6(a)
MEETING DATE: April 6, 2016
PREPARED BY: City Attorney
RECOMMENDED ACTION: Authorize City Clerk to deny request for Leave to Present Late
Claim, filed on behalf of Diane Wilbur pursuant to Government Code
Section 911.6(a).
BACKGROUND INFORMATION: Request for Leave to Present Late Claim was filed with the City
Clerk by Diane Wilbur, pursuant to Government Code Section 911.4
on February 12, 2016, a copy of the request to file a late claim,
initial submittal, cover letter, and City's rejection are attached. The original submittal was filed seven (7)
months after the expiration of the statutory period in which the claim was to have been filed, based on the
December 14, 2014 date of loss. Government Code Section 911.2 requires that claims against public
entities, with limited exception, be filed within six months of the accrual of the action giving rise to the
claim, which in this instance would have been June 14, 2015. Ms. Wilbur submitted her claim on January
19, 2016, which was rejected as untimely. Subsequently, Ms. Wilbur, in an email dated February 12,
2016, requested leave to present a late claim.
Statutory exceptions to the claim filing requirements include failure to present the claim through mistake,
inadvertence, surprise or excusable neglect with no resulting prejudice to the public entity; the injured
party was physically or mentally incapacitated during the claim filing period; and the minority or death of
the injured party.
Ms. Wilbur failed to present any proof that one or more of the statutory grounds for the submittal of a late
claim applies in this matter. Therefore, it is recommended that the Council authorize the City Clerk to
deny the request of Diane Wilbur to present a late claim pursuant to Government Code section 911.6(a).
FUNDING: Not Applicable.
Janice D. Magdich
City Attorney
Attachments
City/CounCom/Claims/ApplicationForLateClaim-Wilbur.doc
Manager
Request to File Late Claim
Kirk Evans
Subject: FW: Slip and Fall
From: Wilbur, Diane [mailto:
Sent: Friday, February 12, 2016 3:23 PM
To: Kirk Evans
Cc: Steve Schwabauer; Jennifer Ferraiolo
Subject: RE: Slip and Fall
2/12/2016
I'd appreciate my claim getting a second look and am grateful for the kindness and concern.
Thank you.
Diane Wilbur
•
CONFIDENTIALITY NOTICE: This email message and any accompanying data or files is confidential and may contain privileged information intended
only for the named recipient(s). If you are not the intended recipient(s), you are hereby notified that the dissemination, distribution, and or copying of this
message is strictly prohibited. If you receive this message in error, or are not the named recipient(s), please notify the sender at the email address
above, delete this email from your computer, and destroy any copies in any form immediately. Receipt by anyone other than the named recipient(s) is
not a waiver of any attorney-client, work product or other applicable privilege.
From: Kirk Evans [mailto: kevans@ lodi.gov]
Sent: Friday, February 12, 2016 3:08 PM
To: Wilbur, Diane
Cc: Steve Schwabauer; Jennifer Ferraiolo
Subject: RE: Slip and Fall
Good afternoon Ms. Wilbur,
Yes, I see your attachment — it did arrive with the original claim and is in your claim file. The City will (re)consider the
main points outlined in your letter and provide a response shortly. I am glad to hear your chiropractic treatments are
proving effective.
Ri44 52. Eotar44
Risk Manager
City of Lodi
221 West Pine Street
Lodi, CA 95240
1
The content of this e-mail is confidential. If you receive it in en -or, do not forward, notify me immediately, and delete it. Thank you.
From: Wilbur, Diane rmailt
Sent: Friday, February 12, 2 1 2:23 PM
To: Kirk Evans
Cc: Steve Schwabauer; Jennifer Ferraiolo
Subject: RE: Slip and Fall
2/12/2016
Good afternoon, Mr. Evans
Thank you for responding.
I actually sent a letter along with my claim, because I figured it would be unusual that I had waited so long to file. (SEE
ATTACHED)
There is really no other reason "why" I filed my claim late, other than what is stated in my initial filing.
I can generate a second letter, but it will look much like the first, unfortunately.
Perhaps somehow the first letter became detached from the claim? If you could advise if they have the initial letter, that
would be great. That is the only thing I can think of that may be fixable.
On the positive, my chiropractic visits are helping which is a good thing.
Diane Wilbur
CONFIDENTIALITY NOTICE: This email message and any accompanying data or files is confidential and may contain privileged information intended
only for the named recipient(s). If you are not the intended recipient(s), you are hereby notified that the dissemination, distribution, and or copying of this
message is strictly prohibited. If you receive this message in error, or are not the named recipient(s), please notify the sender at the email address
above, delete this email from your computer, and destroy any copies in any form immediately. Receipt by anyone other than the named recipient(s) is
not a waiver of any attorney-client, work product or other applicable privilege.
From: Kirk Evans [mailto:kevans@lodi.gov]
Sent: Thursday, February 11, 2016 5:52 PM
To: Wilbur, Diane
Cc: Steve Schwabauer; Jennifer Ferraiolo
Subject: RE: Slip and Fall
Good afternoon Ms. Wilbur,
2
There is no standard form for submitting a leave to present a late claim. The Notice of Late Claim -Rejection of Claim
sent by the City Clerk to you 2/3/2016 contains the following information regarding the process:
"Your only recourse at this time is to apply without delay to the City of Lodi for leave to present a late claim. (See
Government Code Sections 911.4 to 912.2, inclusive, and Section 946.6). Under certain circumstances, leave to present a
late claim may be granted. (See Government Code Section 911.6)"
Basically, you need to compose and send a letter to the City, attached to your claim, explaining why the claim is
late. Should you have any questions please contact me at (209) 333-6708.
Ecteurz
Risk Manager
City of Lodi
221 West Pine Street
Lodi, CA 95240
The content of this e-mail is confidential. if you receive it in error, do not forward, notify me immediately, and delete if. Thank you.
From: Wilbur, Diane [mailt ]
Sent: Wednesday, February , 2:01 PM
To: Steve Schwabauer
Cc: Kirk Evans
Subject: RE: Slip and Fall
2/10/2016
Update.
I filed the claim on 1/19/2016, but received a notice of late claim — rejection of claim letter from the city dated
2/3/2016.
Because the claim was not presented within 6 months of the event no action was taken.
I can apply for "leave to present a late claim" (?) and see if that may be granted, which I am going to try.
In scouting the website, I am not finding a form for that. Can you direct me to where to locate that or email me the
paperwork? or do I need to call the City Clerk?
It is my desire, regardless if the city helps with my chiropractic bills or not, to be sure nobody else falls in that same spot
especially if they are handicapped and using the access with a supporting device or wheelchair.
During the last big rain we had, I took some pictures with my cell phone to document what happens in case you folks
want to know. The problem still exists and the mud lingers after rain. Something is not sloped right. There is no yellow
pad with the big bumps which might solve the muddy issue, not sure.
My experience should at least spark an improvement and change in safety features. I trust that you can pass along this
information for inquiry with the proper department as I see this as a potential liability again if it is not resolved.
Thanks for your time.
Diane Wilbur
.11111111/111
3
CONFIDENTIALITY NOTICE: This email message and any accompanying data or files is confidential and may contain privileged information intended
only for the named recipient(s). If you are not the intended recipient(s), you are hereby notified that the dissemination, distribution, and or copying of this
message is strictly prohibited. If you receive this message in error, or are not the named recipient(s), please notify the sender at the email address
above, delete this email from your computer, and destroy any copies in any form immediately. Receipt by anyone other than the named recipient(s) is
not a waiver of any attorney-client, work product or other applicable privilege.
4
Claim for Money or Damages
Against the City of Lodi
01/18/2016
City of Lodi
P.O. Box 3006
221 W. Pine St.
Lodi, CA 95240
Re: Notice of Claim
To whom it may concern,
RECEIVED
JAN 19 2Ota
CITY CLERK
Attached please find a completed notice of claim form.
On Dec. 14, 2014 (Sunday) I had a slip and fall accident in the disabled access ramp on
the corner of Newbury Circle and Ham caused by pooled mud following rain. On Dec. 15,
2014 I called and reported the muddy conditions to the City of Lodi to alert them of the
hazard and hopefully prevent anyone else from falling too. The City sent a crew out to
clean up the area and asked me if I was hurt and in need of medical attention. At that time
I did not feel the need as no bones appeared to be broken, no bleeding, etc.
Since the fall I have been dealing with left hip and leg issues that I assumed would "just
get better with time". I am not as young as I used to be, and am not springing back from
this accident.
After dealing with this way too long, and modifying my life style to accomodate the
discomfort and pain, I have decided to seek medical attention.
Last week on Jan. 8, 2016 I was examined and diagnosed by Dr. Shawn Hayes, D.C. and
have begun chiropractic treatment for my injury.
I am filing this claim to hopefully get some assistance with the cost involved.
Please reach out to Dr. Shawn Hayes at (209) 745-6639 for any questions you have in
order to determine responsibility.
Thank you so much,
u)
Diane Wilbur
FILE CLAIM WITH:
City Clerk — City of Lodi
221 West Pine Street
(209) 333-6702
OR MAIL To:
PO Box 3006
Lodi, CA 95241-1910
CLAIM FOR MONEY
OR DAMAGES AGAINST THE
CITY OF LODI, CALIFORNIA
Reserved For Filing Stamp
I
Claim No. b-oc1
RECEIVED
JAN 19 2016
CITY CLERK
Attach estimates, receipts, photos diertrsms, or witness statements to suppprt your claim. If additional space
Is needed, attach supplemental sheets — clearly Identify the sectlori(s, bele, answered.
Government Code requires claims be presented by the claimant or the claimant's representative and include the following:
Section 1. Claimant Information:
Name: L
Mailing Address:
City/State/Zip Code: L
Section 2. Representative Information (Must be completed if claim Is filed by claimant'sattorney or
authorized representative):
Name:
U Check box if same as above
Mailing Address:
City/State/Zip Code:
Telephone: ( )
Section 3. Claim Information:
q x.
Date of Occurrence: yne(,_. ' LI r 1)11* 4 (S ci C .. Time of Occurrence l 1:00
Location: ; C C Y1• x of' 'r\ e t kiyA IN 11' (',� C e, r tt a __La ,,..
Circumstances giving rise to this claim and ikhy yeti believe the City of Lodi is responsible: 116 ,i);
LO_C.c..eS_S_alm.p. \t)h[e t47 Ar
.c \- ,CL) p1: i 1. yu`i,r> J- t fl t'( ,
General description of the indebtedness, obligation, injury, damage, or loss inctrreci so far as it may be known at
the time of the present t€on of the claim.
t,t.JN4} t" _ \‘\<-e- -4
� l \• b '(
(A\'\�t r�AC1 - k k\
ifiR
Name of City departrnent(s) or City employee(s) pausing the injury, damage, or los, if known,
CG -t:eA ('`,\ ‘SiOr--�� (41 Alir LK) 0tk 7
The amount claimed as of the date of presentation of the claim should include the estimated amount of any
prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim,
together with the basis of computation of the amount claimed. t0
Basis for computation of claim: Amount Claimed: $ \NS40F 4 2 0000
\`?n n r o, 1--$~aO\ (�
If amount claimed exceeds $10,000: If the amount claimed exceeds ten thousand dollars ($10,000), no dollar
amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.
A limited civil case is one where the recovery sought, exclusive of attorney fees, interest, and court costs does not
exceed $25,000. An unlimited civil case is one in which the recovery sought is more than $25,000 (CCP §86.)
I 1 Limited Civil Case } Unlimited Civil Case
Revised 9/2012
Faction 4. Additional Information:
You are required to provide the information requested on the previous page to comply with the Califomia
Government Code; however, to assist the City's investigation, please answer the following questions:
If the claim involves a minor, provide minor's date of birth.
Name, address, and telephone number of any witnesses to the occurrence or transaction which gave rise to the
claim asserted:
If the claim involves medical treatment for a claimed injury, please provide the name, address and telephone
number of any doctors or hospitals providing treatment:
6 136,10,82- .A
( n6 --i+45 6 3Gt
If applicable, please attach any medicalbiIis or reports or similar documents supporting yourctaim,
Does this claim relate to an automobile accident? JI No ( gn below) ❑ Yes (cern p1ete.thls section and sign below
Claimant's -Auto Insurance Co.:
Claimant Drivers License No.:
Mailing Address: '`----.,
City/State/Zip:
'''�.
License Expires:
Telephone: ( )
-
Vehicle Make/Model/Year:
Insurance Broker/Agent:
" --_-
Mailing Address:
-License No.:
City/State/Zip
InsurancePaileyV..:
Telephone: ( )'~
Section 5. Medicare Medicaid and S -CHIP Extension Act
Section 111 of the Medicare Medicaid & S -CHIP Extension Act requires the City of Lodi to report certain claims to
the federal government. Please indicate if the claimant is : 65 years of age or older, or received Social Security
Disability Insurance Benefits for 24 or more months, or has End Stage Renal Disease. If yes, you may be
required to provide additonal information to process your claim. Please circle one:
YES K)
Section 6, Notice and Signature
Notice: Presentation of a false claim is a felony (Penal Code §72). Every person who, with intent to defraud,
presents any false or fraudulent claim is punishable either by pmrisonment in the county jail for a period of not
more than one year, by a fine of not exceeding one thousand dollars (51,000), or by both such imprisonment and
fine, or by imprisonment in the state prison, by a fine of not exceeding ten thousand dollars (510,000), or by both
such imprisonment and fine. Pursuent to Code of Civil Procedure §1038.
Unsigned or incomplete claims will be returned as insufficient, resulting in no action on the part of the City. Please note that this
Claim Form and any attachments are a public record subject to disclosure under the California Public Records Act.
k.cikAr\e) Aet)
Ci!almanve Signature Date Claim Submitted
Claimant's Name (please print)
Revised 9/2012
Please retain a copy of the completed form for your records
SPINALANALYSIS
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CARRY THIS CARD AT'ALL TIMES
CHIROPRACTIC EMERGENCY CARD
T77b3�1
NAME
This office will accept calls for additional information pertaining
to the card holder, from all Doctors of Chiropractic in the U.S.A.
Hayes Chiropractic Offices
I3AYES CHIROPRACTIC; INC.
620 S. Fairmont Ave. <t Lodi, CA 95240 t Teieplwne 359.6639
2707 E. Fremont, Suite 6 ■ Stockton, CA 95205 r+ Telephone 403.6639
9008 Thornton Rd. a Stockton, CA95209 • Telephone 952-6639
750 Spans, Ste.A r Galt, CA95632 a Telephone 745-6639
Caper th) ce.l oc-A 6
L.1860
Rejection of Claim
CITY COUNCIL
MARK CHANDLER, Mayor
DOUG KUEHNE,
Mayor Pro Tempore
BOB JOHNSON
JOANNE MOUNCE
ALAN NAKANISHI
February 3, 2016
CITY OF LODI
CITY HALL, 221 WEST PINE STREET
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209) 333-6702 / FAX (209) 333-6807
www.lddi.gau cityclerk4lodi.gov
STEPHEN SCHW ;BAUER
City Manager
JENNIFER M. FEFiRAIOLO
City Clerk
JANICE D. W1 GDICH
City :Attorney
Diane M. Wil
./(C14 -(--=CL- J
SUBJECT: NOTICE OF LATE CLAIM — REJECTION OF CLAIM
Claimant: Diane M. Wilbur
Date of Claim: January 19, 2016
To Whom It May Concern:
The above -referenced claim which you presented to the City Clerk's Office on January
19, 2016, with respect to an incident occurring on December 14, 2014, is being rejected
and returned because it was not presented within six months after the event and/or
occurrence, as required by law. (See Government Code Sections 901 and 911.2)
Because the claim was not presented within the time allowed by law, no action was taken
on the claim.
Your only recourse at this time is to apply without delay to the City of Lodi for leave to
present a late claim. (See Government Code Sections 911.4 to 912.2, inclusive, and
Section 946.6). Under certain circumstances, leave to present a late claim may be
granted. (See Government Code Section 911.6)
You may seek the advice of an attorney of your choice in connection with this matter. If
you desire to consult an attorney, you should do so immediately.
Sincerely,
IJ { 1 J- iVUrl t,
nnifer MUFerraiolo
City Clerk
cc: File