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Home My WebLink About2021-05-13 Mesa, Sherry.pdf1 Gloria Sanchez From:Kevin Borgen <kborgen@gibbsandfuerst.com> Sent:Thursday, March 3, 2022 2:20 PM To:Varon, Tim Cc:Mike Gibbs; Karen Hernandez; Cora Gaugush; Steve Aryan; Robert Hargreaves Subject:RE: 3012624, Palm Desert, Sherry Mesa et al - CONFIDENTIAL ATTORNEY - CLIENT COMMUNICATION Attachments:We sent you safe versions of your files; Mesa Notice of Taking Deposition of City PMK.pdf Mimecast Attachment Protection has deemed this file to be safe, but always exercise caution when opening files. Tim, Mediation in this case is scheduled for May 16, 2022, with the Hon. Robert G. Taylor (Ret.). In the meantime, we request authority to prepare a motion for summary judgment (discussed further below) with the hope that the motion will educate the other parties on the issue of duty, provide some leverage at the mediation, and hopefully resolve the case if mediation is unsuccessful. Plaintiffs’ counsel served the attached deposition notice for City’s person most qualified on several subjects. The deposition was set unilaterally for April 7, 2022. We believe most of the subjects are objectionable for vagueness and overbreadth and/or because the subjects are legal issues. We are optimistic we can resolve the issues about the scope and specificity of the subjects. However, we seem to be completely at odds on the propriety of the subjects covering legal issues, specifically subjects 1, 2 & 6. The subjects propose that a City PMQ should explain the Presidents Plaza Property and Business Improvement District and testify about the City’s and property owners’ respective responsibilities and obligations relative to the parking lot. We do not believe the City must or should produce a witness to offer legal explanation, opinions, or contentions at a deposition. Counsel for the other parties can analyze for themselves the nature and legal effect of Presidents Plaza Property and Business Improvement District by reference to the Streets & Highways Code provisions regarding Business Improvement Districts and the documents produced by the City relative to the Presidents Plaza Property and Business Improvement District. We are trying to convince the other parties to at least postpone the PMQ deposition until after the May 16 mediation. We will keep you posted on this discovery issue. While the other parties’ counsel can analyze issues of duty for themselves, it appears they have not considered anything much further than general principles of premises liability. In relation to the Presidents Plaza Property and Business Improvement District, counsel for the other parties are both under the misimpression that there is an agreement between the City and private owners of the property on which the parking lot sits and seem to believe the supposed agreement makes the City fully responsible for the parking lot. We propose to bring a motion for summary judgment limited to the question of duty. The gist of the argument would be that, regardless of whether the City owed some duty to the general public, the City had no duty to maintain this property for the benefit of the private owner or its commercial tenant. Further, a Business Improvement District is a mechanism for making assessments to be used for the special benefit of property owners with a District; it is not a transfer of legal responsibility for private property to a public entity. As indicated above, we believe it would be helpful to prepare an MSJ regarding duty to educate the parties on the issue and the City’s position before the mediation, to provide settlement leverage at the mediation, and, if mediation were 2 unsuccessful, to get a ruling as early as possible that will either resolve the case for the City or allow the City to re- evaluate its settlement position based on the court’s ruling on the question of duty. Please grant us authority to prepare a motion for summary judgment, and please let us know if you have any comment or question. GIBBS & FUERST LLP Kevin Borgen, Esq. 2247 SAN DIEGO AVE., SUITE 137 SAN DIEGO, CALIFORNIA 92110 TELEPHONE (619) 702-3505 FACSIMILE (619) 702-1547 The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender and delete the material from any computer. Important Message to Our Valued Clients & Co-Litigants ~ pursuant to the recommendations made statewide by the CDC in response to COVID-19, our office hours may vary and staff members may be working remotely until further notice. Please send your email to the staff member you would regularly communicate with, and addition, copy jpadgett@gibbsandfuerst.com with your email. This is a requirement firm-wide or electronic service will be considered invalid. Thank you for your patience during this time, and stay well! 1 Gloria Sanchez From:Varon, Tim <TVaron@carlwarren.com> Sent:Wednesday, August 18, 2021 2:56 PM To:Michael T. Gibbs (mgibbs@gibbsandfuerst.com); Kevin Borgen Cc:Cora Gaugush; Steve Aryan Subject:NEW SUIT REFERRAL 3012624, Palm Desert, Sherry Mesa Attachments:We sent you safe versions of your files; 20210818 Mesa Palm Desert SUIT REFERRAL LETTER 3012624.pdf; 20210713 Mesa Palm Desert SUMMONS AND COMPLAINT 3012624.pdf Importance:High Mimecast Attachment Protection has deemed this file to be safe, but always exercise caution when opening files. Hi Mike and Kevin, Please find attached a copy of our Suit Referral Letter along with a copy of the Summons and Complaint. Originally Plaintiff’s Counsel agreed to send in a demand package for our review and granted a 60 day extension to answer the complaint from the date that the demand package was received. However, the Claimant’s attorney is now advising that she is still undergoing treatment and has asked that we answer the complaint. Please move forward with reviewing the attached file material and answering the complaint. Here is the link to download the file material: Password: Z7xRYcfxxAdw https://carlwarren.egnyte.com/fl/5lFrNNdwI1 Each link will expire in one month. Thank you! Tim (email 1 of 1) Tim Varon | Claims Supervisor Carl Warren & Company, LLC | A Venbrook Company PO Box 2411, Tustin, CA 92781 Office: (951) 465-4551 | Fax: (866) 254-4423 Because Quality and Integrity Matter... please EMAIL my Supervisor about the service you received. This email and any files transmitted with it are intended solely for the use of the individual or entity to which they are addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination, or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this email in error, please contact the sender and delete the material from your computer. Please note that any views or opinions presented in this email are solely those of the author and do not necessarily represent those of Carl Warren & Company, LLC (“CWC”) and/or its subsidiaries. Finally, the recipient should check this email and any attachments for the presence of viruses. CWC accepts no liability for any damage caused by any virus transmitted by this email. If this email has been 2 sent by a representative of Carl Warren to an attorney or law firm that is providing legal defense to a CWC client, this email and any attachments are intended to be confidential and privileged attorney-client communications. 1 Gloria Sanchez From:Rice, William <WRice@carlwarren.com> Sent:Wednesday, July 7, 2021 1:25 PM To:Varon, Tim Cc:Gaugush, Cora Subject:Re: Sherry & Rick Mesa DOL 03/25/2021 Claim 3012624 Tim, DIARY REVIEW Event: This is a bodily injury and loss of consortium claim that was submitted by counsel for the claimants regarding a trip and fall incident that occurred in a pothole in a City parking lot. Statute of Limitations: 03/25/2023 Action plan items from last review and status: 1. On 05/17/2021 I submitted our ISO Claim Search on the claimants. No alerts or matches were provided. Sherry Mesa does not appear to be Medicare eligible as her reported age is 63. Rick Mesa age is 72 (05-31-1948) which appears to make him Medicare eligible. 2. We have confirmed City maintenance of the parking lot on behalf of the owners. The City has no formal inspection program for parking lots. They were aware of the pothole conditions in the parking lot as they had previously made repairs in May 2019 to the entire parking lot and apparently overlooked the one involved in this loss. Coverage: Confirmed under the MOC. Liability Review: I view this as a case of probable liability on the part of the City for its failure to maintain the parking lot involved in this loss. City crews were in the area repairing the parking lot potholes and did not repair the pothole that the claimant later stepped into. The claimant will have comparative issues for inattention when proceeding in the parking lot. The pothole dept appears to be up to a 4 ¾ inches from the City provided photographs. Damages Review – Property Damage: None Bodily Injury Alleged: Sherry Mesa – Fractured ankle/foot with resulting surgery. Rick Mesa – Loss on consortium. Submitted Medical Bills: None. The Rawlings Company for Blue Shield has provided notice of their lien in which they report the medical invoices for the fractured ankle were reduced to about $12,000.00. Considered: The claimant is reported to be currently undergoing physical therapy. Residuals: Unknown Loss of Earnings Alleged: Yes. No specific amount or support has been provided. Reserve Review: $50,000.00 & $10,000.00 - Appears adequate in light of the injuries, facts, and client protocol. Updated Action Plan: 1. Secure sufficient medical information within which to evaluate this case for possible settlement on a comparative basis. 2. I will evaluate for liability and exposure to recommend further handling and monitor the file for the Statute of Limitations. Subrogation Referral: N/A William Rice | Claims Examiner Carl Warren & Company, LLC PO Box 2411, Tustin, CA 92781 Office: (657) 622-4319 | Fax: (866) 254-4423 2 Because Quality and Integrity Matter... please EMAIL my Supervisor about the service you received. This e-mail and any files transmitted with it are intended solely for the use of the individual or entity to which they are addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this e-mail in error, please contact the sender and delete the material from your computer. Please note that any view or opinions presented in this e-mail are solely those of the author and do not necessarily represent those of Carl Warren & Company, LLC (CWC) and/or its subsidiaries. Finally, the recipient should check this e-mail and any attachments for the presence of viruses. CWC accepts no liability for any damage caused by any virus transmitted by this e- mail. If this email has been sent by a representative of Carl Warren to an attorney or law firm that is providing legal defense to a Carl Warren client, this email and any attachments are intended to be confidential and privileged attorney-client communications. Service Request ID# 699434: Street/Sidewalk Issues Request Type: Street/Sidewalk Issues Date Created: May 16, 2019 @ 09:27 AM Last Updated: Jun 2, 2019 @ 04:15 AM Date Closed: May 21, 2019 @ 05:40 AM Approximate Address: 73981 Palm Desert Dr S, Palm Desert, CA, 92260 Request Coordinates: 33.7206578, -116.3743007 Status: Closed Assigned To: Marco Zamudio Device: Console Console Url: https://console.citysourced.com/pages/issues/issuedetail.aspx?issueid=699434 Issue Type: Pothole/Pavement Description: Two locations in Presidents Plaza. One west of Portola on the north side of the lot. The other near 73- 925. Attachments Date Created Url May 16, 2019 @ 09:28 AM https://d2p5liwq1c5kwh.cloudfront.net/FileStorage/2019-05/8ab1e339daf34d73a246450ab4255d0a.jpg May 16, 2019 @ 09:28 AM https://d2p5liwq1c5kwh.cloudfront.net/FileStorage/2019-05/8db6135424bd49ffadbd2097a8e80d0f.jpg Author Information Ryan Gayler [ Email: rgayler@cityofpalmdesert.org; Phone: 7603330941 ] Comments Date Created Author Comment May 20, 2019 @ 05:08 AM Palm Desert Palm Desert has updated this report's status from 'Received' to 'In Process'. May 21, 2019 @ 05:40 AM Palm Desert Palm Desert has updated this report's status from 'In Process' to 'Closed'. May 21, 2019 @ 05:40 AM Palm Desert work request was completed by Aaron Z and Joe Rosas on 5-20-2019. Private Notes Date Created Author Note May 16, 2019 @ 09:28 AM Palm Desert This request was assigned to David Reyes and a notification was sent to: dreyes@cityofpalmdesert.org. May 16, 2019 @ 10:28 AM Palm Desert This request was assigned to Marco Zamudio and a notification was sent to: mzamudio@cityofpalmdesert.org. Additional Data Date Created Key Value May 16, 2019 @ 09:27 AM OriginationIpAddress 67.52.175.194 May 16, 2019 @ 09:27 AM AttachedMediaCount 2 May 16, 2019 @ 09:28 AM InitialBoundaryName Palm Desert, CA Maps From:Gaugush, Cora To:"WRice@carlwarren.com" Cc:Aryan, Stephen; Carney, Lori Subject:FW: Claims Against the City-849-MESA, RICK and 850- MESA, SHERRY Date:Tuesday, May 18, 2021 10:40:53 AM Good Morning Mr. Rice, The following response was received from our Public Works Department, as well as the attached photos. Please let me know if you need additional information. Thank you, Cora Cora, David and Ryan helped put together the following responses in red font below. Attachments supporting certain responses as noted. 1. Does the City own and/or maintain the parking lot? The various owners of the parcels that the parking lot is built over pay into an assessment district. Per the assessment district, the City maintains the asphalt on behalf of the owners. 2. If so, please provide copies of all historical inspection and maintenance records and photographs. The City conducted pothole repairs in May, 2019. Refer to the attached print of the service request. No significant asphalt rehabilitation has been performed in recent years due to insufficient funding from the assessment. The City hired an engineering design consultant in 2018 for a complete replacement to the existing parking lot. The project commences construction June 1, 2021. 3. If possible, supply details and photographs prior to repair describing the depth and dimensions of the pothole. See attached photos. 4. If the City doesn’t own and/or maintain the parking lot, who does? What caused the pothole? For ownership, see response to Question 1. The pothole likely result from asphalt deterioration, possibly due to a failure of the subgrade. 5. Does this section of parking lot have a documented history of complaints? If so, please provide copies of all records regarding same. See response to Question 2. 6. Does the City have a formal inspection program for the parking lot? If so, please provide a copy of it. There exists no formal inspection program for the parking lot. Randy Bowman Deputy Director of Public Works Ph: 760.346.0611 Direct: 760.776.6493 rbowman@cityofpalmdesert.org Files attached to this message Filename Size Checksum (SHA256) IMG_0312.JPG 7.62 MB 225ff829bbfaeb2dc4fb9419e13ff372802c9debe7d99f9d5e9918936fa9a4d6 IMG_0313.JPG 7.21 MB 3b6cf9b374eb215924a995037b0815943dc4cc1f17543435f1f8e9faa9167679 IMG_0314.JPG 3.22 MB f83f8cc534f4f529e23554994074e556eb31f0170d61a37ba93f759824700855 IMG_0317.JPG 4.28 MB 184ca90fecea99fbf954661cc9f94998a7c8fa4b594c5a1f1bbb404264d7d279 IMG_0320.JPG 8.68 MB 2c333434721617bd3c9bcc9dbc54b627434cdbc30db4eb6c7c7d66796ea86107 IssueDetail_699434_2021- 05-18-09-51-011.pdf 248 KB 4d0970e82f7e1dd5d0a06f9c0911199dfd1a7e8b26f8cf78989c757f129677ad Please click on the following link to download the attachments: http://cpdftp.org/message/oJt37AGCf1xKC1O9noe5Rf This email or download link can be forwarded to anyone. The attachments are available until: Tuesday, 31 August. Message ID: oJt37AGCf1xKC1O9noe5Rf From: Gaugush, Cora Sent: Monday, May 17, 2021 11:03 AM To: Bowman, Randy <rbowman@cityofpalmdesert.org> Cc: Firestine, Andy <afirestine@cityofpalmdesert.org>; Aryan, Stephen <saryan@cityofpalmdesert.org> Subject: Claims Against the City-849-MESA, RICK and 850- MESA, SHERRY Hi Randy, The questions below have been received from Carl Warren, the City claims Administrator, regarding the attached claims filed by Sherry and Rick Mesa. Your prompt response is appreciated, for timely processing of these claims. Does the City own and/or maintain the parking lot? If so, please provide copies of all historical inspection and maintenance records and photographs. If possible, supply details and photographs prior to repair describing the dept and dimensions of the pothole. If the City doesn’t own and/or maintain the parking lot, who does? What caused the pothole? Does this section of parking lot have a documented history of complaints? If so, please provide copies of all records regarding same. Does the City have a formal inspection program for the parking lot? If so, please provide a copy of it. Please feel free to contact me should you have any questions or require additional clarification. Cora Cora Gaugush Management Specialist II Cell: 760.574.3541 Direct: 760.776.6490 cgaugush@cityofpalmdesert.org www.cityofpalmdesert.org Install the Palm Desert In Touch app to stay in touch with your community Android Apple Mobile Web PO Box 2411, Tustin, CA 92781 Tel: 657-622-4200 | Fax: 866-254-4423 | www.carlwarren.com CA License #2607296 May 14, 2021 James Cicalese, Attorney 45-841 Oasis St., Ste. 6 Indio, CA 92201 RE: Claimants : Sherry Mesa & Rick Mesa Date of Loss : 3/25/21 Claim Filing Date : 5/7/21 Our File Number : 3012624 WRV Carl Warren & Company is the claims management company for the City of Palm Desert. The above-captioned claim has been assigned to William Rice for handling. Mr. Rice may be reached at 657-622-4319. When our investigation is complete, we will advise you as to whether or not we can recommend settlement. Very Truly Yours, CARL WARREN & CO. Timothy M. Varon Timothy M. Varon Claims Supervisor cc: Member Agency: City of Palm Desert, attn:Stephen Aryan TO: CJPIA (c/o CARL WARREN & CO.), CITY MANAGER, CITY ATTORNEY, COPY: ASSISTANT CITY MANAGER, DIRECTOR OF ADMINISTRATIVE SERVICES, CITY CLERK. FROM: STEPHEN ARYAN, RISK MANAGER DATE: May 13, 2021 SUBJECT: CLAIM NO. – 850-MESA-SHERRY The attached Claim No. 850 is being transmitted to you for the following: ☐Information only. or ☒Review and recommendation to the Claims Review Committee for any action required by the City of Palm Desert. We would appreciate your report, if requested, by June 11, 2021, for timely response to the Claimant. Note: At your earliest convenience, please let me know if you have any information related to the incident giving rise to this Claim so that I may forward it to the City’s third- party Claims Adjusters, Carl Warren & Company. ___________________ STEPHEN ARYAN RISK MANAGER Attachment (as noted) CITY OF PALM DESERT 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346-0611 INFO@PALM-DESERT.ORG Stephen Y. Aryan 850 X