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FILED 1 Vincent P. Hurl ey #1 11215 Ryan M. Thompson #292281 2 LAV/ OFFICE S
FILED
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Vincent P. Hurl ey #1 11215
Ryan M. Thompson #292281
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LAV/ OFFICE S OF VINCENT P . HURLEY
A Professional Corporation
SEP 2 B 2015
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28 Seascape V illage
TERESA A. RISI
Aptos, California 95003
CLERK OF THE SUP.t; RIOR COURT
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Telephone: (83 1) 661 ~4800
Facsimile: (831 ) 661-4804
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IMUJNGS -.
DEPUTY
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Attorneys for Defendants
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CITY OF CARMEL~BY-THE-SEA and LUKE E. POWELL
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF MONTEREY
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Case No. M132929
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JENNIFER DA SILVA,
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Plaintiff,
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vs.
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CITY OF CAR11EL-BY-THE-SEA;
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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
LUKE E. POWELL, indn·idually and in )
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his official capacity as a Police Officer
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Date:
October 30,2015
for the CITY OF CARMEL-BY-THE~
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Time:
9 :00a.m.
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~EA; COUNTY OF MONTEREY ; )
Dept.:
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MONTEREY COUNTY SHERIFF ' S )
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OFFICE, and DOES 1 through 50,
mclusive,
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Date action filed : August 7 , 20 15
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Defendantc;.
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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 Dem urrer
Case

No. M l32929

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REQUEST FOR JUDICIAL NOTICE NO. 2:

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 o f C al. Gov ' t.

Code section 945.4 , a true nad correct copy of whic h

is attached as Exhibit B.

REQtTEST FOR JUDICIAL NOTICE NO. 3:

Defendants request judicial notice of the time limltS in the following statutes of

limitations fo r purposes o f calculating the appli cable periods and deadlines:

Cal. Gov't Code section 946.6(t): In the event the court makes an order reli e ving the

petitioner fro m the

provisions of Cal. Gov. Code section 945.4, suit on the cause of action to

which the clai m relate s must be filed with the court \\ithin 30 day s thereafter.

A true and c orrec

copy of Cal. Gov ' t Code section 946 .6(f)

is attached as Exhibit C.

REQUEST FOR JUDICIAL NOTICE NO. 4:

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

Plaintiff trans itioned from her form er attorney , Stephen F. Wagner, to her current attorney,

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

Dated: September1'( , 20 15

LAW OFFICE S OF VINCENT P . HURLEY

A Professional Corporation

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By:

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RYANM . THOMPSON Attorneys for Defendants CITY OF

CARMEL-BY-THE-SEA and LUKE E . POWELL

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Dcfs ' RJ!'>J ISO Demurrer

Ca se No. M 132929

AUG • 7 20f5 ~ERESA ~· Ill!! "'~At< 'Jr.: THE: SUP.!BIOA COU RT ••- - =~•

AUG • 7 20f5

~ERESA ~· Ill!!

"'~At< 'Jr.: THE: SUP.!BIOA COU RT

••--=~• GYMM~~-O".'Ptfrl

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

Telephone: (831)

F ac.'iimtle: (831)

649- 5551

649-0272

Attorneys for Plaintsff

JENNIFER DASILVA

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

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TIME; 9:00 AM

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PLACE: Courtroom 1200Agua/ltoRd M

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onterey CA 93940

SUPERIOR COL"RT O F C ALIFORNl.A

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I COUNTY OF MONTEREY- UNLIMITED JL'RISDICTION

JENNIFER DA 5ILVA,

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vs.

Plamttff,

CITY OF· CARMEL-BY-THE-SEA; LUKE E.

POWELL, individually and in bJs offi.ctal

capacicy· as 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,

Defendants.

Plainttff JEJ.'."'NIFER DA Sll

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C aseNc.M 1' 3 2 9 2 9

CO~LAUITFOR~~GES

[JURY TRIAL DEMANDED)

~ fonnerly known as JeDlllfer Little ("Plaintiff') hereby

alleges a6 follow'->:

INTRODUCTION

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

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

bodily injury and other damages.

P~~TIES

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

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citi2.en of the

lTnited States

of America. At the time of the incidents complained of herem,

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Plaintl.ffwas a 37-year-old female with no pnor cnminal record .

  • I COMPh~TFORDAMAG E~

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DaSilva v. City of Carmel-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) of Division 3.6 of Title 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 its Police Sergean~ Defendant LllKE E. POWELL.

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

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wtth the Cannel Poli

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Department employed by CITY OF CARMEL BY-THE·SEA at all

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

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

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

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

  • 11 for the CITY OF CARMEL BY-THE-SEA.

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4.

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 SHERIFF·s OFFICE .

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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

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

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

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

  • 24 tc the operation of the facilities.

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  • 6. The claims herein are brought against Defendants COUNTY OF MONTEREY

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

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

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

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COMPLAINT FOR DAMAGES

:JaSilva City of C armel-by-t:he~&a. et al.

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question Plaintiff, while SERGEANT POWELL began questioning Balint (Sergeant Pon and

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.

  • 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 Plaintiff was "so mad" <Jr ••~;o angry" despite Plaintiff's repeated response that ~he 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 ac~s. Plaintiffbecame disconcerted as SERGEANT POWELL repeatedly mterrupted

her and accused her oflying.

  • 19. 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

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 I

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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 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 ~,;ausetl 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

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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 I

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

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COMPLAINT FOR DAMAGES

DaSilva v. C:t} oj Carmel-bv-the-Sea, ei: ai.

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Plaintiff was placed in handcuffs .

  • 20. 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."

  • 21. 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. Plaintiff was transported to Community Hospital of the Monterey Peninsula

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

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

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

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

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

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

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

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

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

tlme in question.

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Plaintiff was subsequently transported by SERGEANT POWEU . to the Carmel

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

  • I 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

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 l~t one x-ray of her

hand; and other treatment.

  • 24 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

  • 28 came and v.ent during Plaintiff's detention. After several hours, when Plaintiff's head wound

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COMPl -AINT FOR DAMAGES

DaSi 1va v , Glty of Carmel-by- t~e-Sea, 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 ~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

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, •·r think you're a danger to

yourself.'' Plairttdi immediately 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 Inst Code section 5150 ("5150 hold") for being a danger to herself. Plainttffwas

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

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

wrap around herself.

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

walls. In 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<:ent holdii:I.g cell. 1

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

to obscene sexual gestures fram the m&lc inmate m the adjacent celL, who had previously Witnessed Plamtdfhemg stripped naked by the guard s.

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

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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

ICOMPLAINT FOR DAMAGES

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

 

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

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

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

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cell.

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

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

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the alleged S 1SO hold . Plaintiff was not allowed to contact her family at any time during her

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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.

 

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31.

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: bodily i njury, loss of income and employment, substantial physical

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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.

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32.

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

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

  • 23 proof.

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

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

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

  • 27 911.2 because of the following facts:

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

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COMPLAINT FOR DAMAGES

DeSilva v. City ·ofCarme l-by-me-Sea, et al.

Monterey County (Case No. CRMS314352A).

 

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

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

 

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c)

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

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

 

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1538 .5) before the Hon. Samuel Lavorato, Jr.

 

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

 

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

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34.

After denials by CITY

OF CARMEL-BY~TilE-SEA of both the

Claim and

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Pla~ntiff' s subsequent Application for Leave to File Late Claim, Plaintiff filed a Petition for Order

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Relieving Petitioner from ProvisiODS ofGov't Code§ 945 .4 (the "Petttionj in Monterey County

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Superior Court.

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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

 
 

(Against Defendants LUKE E. POWELL and

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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

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

 

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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

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citizeni) in

general, in~luding Plaintiffm pamcular.

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

 

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authori7ed agent ofDefendant CITY Of CARMEL-BY-THE·SEA, while detaining,

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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 of his duties.

  • 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

domestic·dispute 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

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 in the proper

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

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

unreasonably inJUDOWI methods.

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

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

  • 17 and priVIleges under the Fourth~ and Fourteenth Amendments to the Umted States Constitution

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

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

·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. A s a further du-ect, proxunate, and legal result of the bjunes alleged herein ,

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

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  • 6 ~ expenses in an amount according

to proof.

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

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and through its employee, SERGEANT POWEll., Pla::.nhff\\o1lS transported to

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Monterey County Jail, where she was placed on an unreasonable 5150 hold in solitary

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.

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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)

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.

47.

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

SERGEANT POWEll, intentionally confined Plaintiff. without consent or lawful pnvilegc; for

an unreasonable period oftnne, Without probable cause. in depnvation ofha rights. In his

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

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

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

tea:ving and subsequently

suffered severe bodil}' inJury and other

damages.

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

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

furtherance ofhis emplo)lment.

49.

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

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 income and employment, substantial phystcal

l

and emotional pain and suffering, shock and in jury 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 of herein.

50.

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

  • I COMPLAINT FOR DA.MMiES

11

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

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Plaintiff has incurred, and may continue to incur, substantial medical and other out-of pocket

expenses in an amount according to proof.

  • 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

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.

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.

THIRD CAUSE OF ACTION

BATI'ERY (Against Defendantli LITKE E. POWELL and

CITY OF CARMEL-BY-THE-SEA)

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,

SERGEANT POWF:LL, intentionally caused bodily harm to Plamnff through the use of

unreasonable force . SERGEANT POWELL •s unnecessary ann bar takedoWtl of Plainttff caused

her head to hit the asphalt ground "hith such force as to give Plaintiff a black eye and open a large

laceration on hez forehead, which would eventually require eight stitches, a cr scan, and other

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

"' ·

~"

.:.!:1

II

fuctherance of his employroent.

.

56 .

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.

I

I

I

   

including, but not hmited to: bodily injury, loss of income and employment, substantial physical

2

and emotional pain and suffenng, shock and injury to her nervous system, humiliation, acute

3

anxiety, emotional and ph~ical distress and fear; and

Plaintrff continues to suffer from post-

4

traumatic stress and anxiety relating to the events

complained of herein.

 

5

57.

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

6

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

7

expenses 10 an amount according to proof.

 

8

58

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

9

BY-TI-IE-SEA by and through i ts 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 ·inmate.

14

  • 59 . As such, Plaintiffr~uestb compensatory damages,

reasonable attorneys' f~

15

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

16

 

FOURTH CAUSE OF AC'IJON

 

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INTENTIONAL INFLICI'ION OF EMOTIONAL DISTRESS (Against Defendants LUKE E. POWELL and

18

CITY OF CARMEL-BY-THE SEA)

..

 

19

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

20

 

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

I

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

24

conduct.

25

  • 62 .

The conduct ofDefendant CITY OF CARMEL-BY-THE-SEA through i ts

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 i ntolerable 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. Ci ty oj Carmel -IJ_v-the-Sea, et al

   

rights.

 

2

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

3

 

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

 

4

furtherance ofhis employment.

 

5

 

65.

As

a direct and proximate consequence of the acts of CITY OF

CARMEL-BY-

 

6

 

THE-SEA by and through its employee, SERGEANT POWELL, Plaintiff ha<> suffered damages

7

includmg, but not limited to: bodily injury, loss of income and employment, substantial physical

8

and emotional pam and suffering, shock and mJUTY to her nervous ~ystem, humiliation, acute

9

arudety, emotit)nal and physical distress and fear; and Plamtlfi continues to suffer from

post-

10

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

11

 

66 .

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.

 

14

 

6 7.

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

 

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MALICIOUS PROSECL"TTION

(Against Defendan.ts DOE l, COUNTY OF· MON'IT.REY,

25

And MONTEREY COUNTY SHERIFF"S OFflC'E)

26

 
  • 69. Plaintdfrepeats and realleges Paragraphs 1 through 68, and mcorporates them by

 

27

 

reference herein.

 

28

 

70.

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

I

,

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COMPLAINT FOR DAMAGES

i4

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

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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

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 get~ 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 m~dical assessment was ever conducted for this 5 150

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

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

..

and subsequently allowed to leave the Monterey County htl.

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

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

scope and furtherance of her employment.

  • 74. As a direct and proximate consequenc-e of the acts of Defendants 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.aintiff continues to

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

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

?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.

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

reference herein.

  • 77. 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

~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

I

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

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

ctviliz:ed community.

  • 79. As part of this 5150 hold, Plaintiff was stripped (\fall ofher ~lathing in \ttew

of

1

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 th~ floor With Y1s1ble fe~ from

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

I

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

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

[

I

who had pre\- iously

Wltne~ed Plainuffbeing stripped naked

by the guards.

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

I

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, Plamtiffwa~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

COMT~FORDAMAGES

3 4 5 6 7 8 " 10 11 12 13 14 15 16 17 18

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  • 26 ii

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

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

  • 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.

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

damages.

  • 84. Defendants COUNTY OF MONTEREY and MONTEREY COUNTY

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

committed within the

scope and furtheran~e ofher employment.

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

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

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

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

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

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

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

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

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

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

  • 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 Plaintiff to the recovery of punitive

17

COMPLAIN r FOR DAMAGES

DaSi l va v City of Carme:-lw-the-.S&J, eta/.

 

damages.

 

2

 

SEVENTH CAUSE OF ACTION

3

 

NEGLIGENCE

 

(Against Defendants LUKE E. POWELL and

4

CITY OF CARMEL-BY-THE-SEA)

5

 
  • 88. 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 them, 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, practi~es. and procedures In the quesnoning

  • 11 and detention ofPlamtiff;

12

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

13

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

14

c.

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

15

Plaintiff;

16

d.

Exercismg an elicessive and unreasonable level of force against Plaintiff 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 offi~rs.

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

22

23

24

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

has led to Plaintiff'~ loss of income 'llld employment, and additional out-of~pocket expenses. 1

91.

Defendant CITY OF CARME~BY-THE-SEA .is ..

-icariously

liable for the torti"us I

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

25

26

27

28

furtherance ofhis empl.Jyment

92 .

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

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

u

18

COMPLAINT FOR DAMAGES

Da81lva 1 1 City oj Carmel-by-the-Sea, et a/.

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EIGHm CAUSE OF ACTION

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

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

reference herein..

  • 94. 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:

a .

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

and Un.plemcntation of5150 holds;

  • b. Allowing a culture to exi'Jt of improper or non-compliance w1th policies, practices and pro\XX!ures in the as&essment and implementation of 5150 hold&;

  • c.