HomeMy WebLinkAbout2022-03-21 RV Management Co.pdf1
Gloria Sanchez
From:Kevin Borgen <kborgen@gibbsandfuerst.com>
Sent:Thursday, May 19, 2022 6:24 PM
To:Robert Hargreaves; Andrea Staehle; Mariana Rios; Steve Aryan; Varon, Tim
Cc:Mike Gibbs; Karen Hernandez
Subject:RE: Pres Plaza -Mesa vs City of Palm Desert CONFIDENTIAL ATTORNEY-CLIENT
COMMUNICATION
All parties have now agreed to mediator’s proposed settlement. We’ll be putting together a formal agreement/release
and will hopefully have this case dismissed soon.
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!
From: Kevin Borgen
Sent: Tuesday, May 17, 2022 6:43 AM
To: Robert Hargreaves <Robert.Hargreaves@bbklaw.com>; Andrea Staehle <astaehle@cityofpalmdesert.org>; Mariana
Rios <mrios@cityofpalmdesert.org>; Steve Aryan <saryan@cityofpalmdesert.org>
Cc: 'Varon, Tim' <TVaron@carlwarren.com>; Mike Gibbs <mgibbs@gibbsandfuerst.com>
Subject: RE: Pres Plaza -Mesa vs City of Palm Desert CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
We mediated this Presidents’ Plaza pothole fall case yesterday with retired Judge Robert Taylor. The session began with
a $500k settlement demand and ended with Judge Taylor proposing a $200,000 settlement with $100k to be paid on
behalf of RV Management and $100k to be paid on behalf of the City of Palm Desert.
We should know by next Monday whether the other parties agree. My impression is that the plaintiffs were likely to
agree, and RV Management’s insurer needs to obtain additional settlement authority.
2
Most of the mediation was spent arguing about the relative responsibilities of RV Management and the City. RV
Management came convinced the City should be paying the bulk of any settlement. Tim Varon made it clear that would
not be the case and got Judge Taylor moving on the above-mentioned proposal we hope will resolve the case.
We will report back when we know whether the proposed settlement has been accepted. If you have any question or
comment, please let us know.
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:Kevin Borgen <kborgen@gibbsandfuerst.com>
Sent:Tuesday, May 17, 2022 6:43 AM
To:Robert Hargreaves; Andrea Staehle; Mariana Rios; Steve Aryan
Cc:Varon, Tim; Mike Gibbs
Subject:RE: Pres Plaza -Mesa vs City of Palm Desert CONFIDENTIAL ATTORNEY-CLIENT
COMMUNICATION
We mediated this Presidents’ Plaza pothole fall case yesterday with retired Judge Robert Taylor. The session began with
a $500k settlement demand and ended with Judge Taylor proposing a $200,000 settlement with $100k to be paid on
behalf of RV Management and $100k to be paid on behalf of the City of Palm Desert.
We should know by next Monday whether the other parties agree. My impression is that the plaintiffs were likely to
agree, and RV Management’s insurer needs to obtain additional settlement authority.
Most of the mediation was spent arguing about the relative responsibilities of RV Management and the City. RV
Management came convinced the City should be paying the bulk of any settlement. Tim Varon made it clear that would
not be the case and got Judge Taylor moving on the above-mentioned proposal we hope will resolve the case.
We will report back when we know whether the proposed settlement has been accepted. If you have any question or
comment, please let us know.
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, disseminatio n 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, May 11, 2022 5:20 PM
To:Kustra, Chris; Michael T. Gibbs (mgibbs@gibbsandfuerst.com); Kevin Borgen; Paul
Zeglovitch; Mariana Rios
Cc:Andrea Staehle; Amber Molina
Subject:MESA V. CITY OF PALM DESERT 20220511 Mesa Palm Desert LITIGATION
MANAGEMENT PLAN 3 3012624
Attachments:20220511 Mesa Palm Desert LITIGATION MANAGEMENT PLAN 3 3012624.pdf
RV Management has presented a late claim for indemnification. We have returned it as late and have denied
their application to present a late claim. We are going to Mediation on 5/16/22 in order to try to resolve this
exposure in an early stage. Should the Mediation fail, we will continue with pursuing a Motion for Summary
Judgment.
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.
Important Notice: This e-mail (including any attachments) is intended solely for the use of the individual or entity to which it is addressed, and may
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LITIGATION MANAGEMENT PLAN
[Level: 2]
This report and our investigation are done in anticipation of litigation for the ultimate
transmittal to defense counsel and with the intent that it remains confidential.
PRINCIPAL
CJPIA Member: Palm Desert Report Date: 5/11/22
CW File No: 3012624 Previously Reviewed: 2/11/22
PLAINTIFF
Name: Sherry Mesa Marital Status: Married.
Age: 64 Occupation: Beauty solon co-
owner.
Sex: Female Dependents: None.
PLAINTIFF
Name: Rick Mesa Marital Status: Married.
Age: 73 Occupation: Beauty solon co-
owner.
Sex: Male Dependents: None.
FINANCIAL
Loss Paid/Reserve: Expense Paid/Reserve: Total Incurred:
$0.00/$260,000.00(aggregate)$26,338.51/$23,666.49 $310,005.00
Litigation Budget Secured: Yes.
Settlement Value: $100,000.00 for the City’s portion of the injury settlement.
Reserve Adequacy: Both reserves are adequate at this time.
Does the claim meet reinsurance and excess reporting requirements? No.
If yes, when was the claim reported and who was notice sent to? N/A
OCCURRENCE
Date of Loss: 3/25/21
Time: 7:40pm
Location: The parking lot of 73880-73890 El Paseo, Palm Desert, CA
FACTS: The Claimant-Sherry Mesa tripped and fell due to a pothole located within
the parking lot of 73880-73890 El Paseo, Palm Desert, CA.
LIABILITY
• If Sherry Mesa were any other member of the public, there is a fair chance the
City would be liable. The accident occurred in a Presidents Plaza parking lot,
which sits on the parcels of several different private owners. While the City did
not own the lot, it held a parking easement and almost certainly exercised
sufficient control over the lot to trigger a general duty to maintain it in a safe
condition. It appears the City did not have actual knowledge of the particular
pothole that felled Sherry Mesa, but it was long known that the lot was in bad
shape and required renovation. The City did not perform safety inspections
regarding the surface of the lot. Rather, the City would respond to complaints
reported to the City. Accordingly, there is a fair chance the City would be found
to have constructive notice of the pothole.
• However, Sherry Mesa was not just some public user of the lot. Plaintiffs were
commercial tenants of the property owner, and plaintiffs held a nonexclusive right
under the lease to use the lot. So, plaintiffs and the City had somewhat similar
rights relative to the private property where Sherry Mesa fell.
• The open question is whether the City owed a duty to maintain the privately-
owned lot for the benefit of the private property owner and its commercial tenants
(or whether liability should be determined under Government Code §835 without
regard to the fact that plaintiffs were commercial tenants of the private property).
• We believe this is a question of law that should be resolved in favor of the City,
but it remains to be seen whether the court will agree.
• It is important to note, in contrast to RV Management’s contention that the City
agreed to maintain the lot, the City was involved in the administration of a
Business Improvement District (“BID”) covering the lot. In essence, special
assessments were made on the property owners for the special benefit of the
private properties within the BID, benefits including trash collection,
maintenance, lighting, etc. for the lot. The City did not dictate the assessments or
the amount of those assessments. Rather, the BID members (the property owners)
had to vote to approve the BID and the amount of the assessments, and the
assessments were to be applied in accordance with a Management District Plan,
which was prepared by the BID owners’ association. So, in contrast to RV
Management’s understanding that the City agreed to handle all maintenance of
this privately-owned lot, the City agreed to perform maintenance and other
services to the extent funded by the special BID assessments. In other words, if
$10,000 were allocated for maintenance, the City would provide maintenance up
to that amount.
• The City’s position has been that the property owners within the BID were
historically unwilling to approve assessments sufficient to fund maintenance that
could keep pace with the deterioration of the aging parking lot, and, for some
time, the property owners within the BID declined to approve a continuation of
the BID. The lot was therefore in poor shape and had many defects, including the
pothole involved in Sherry Mesa’s fall.
• It may also be noteworthy that a complete renovation of Presidents Plaza was
actually in the works when Sherry Mesa fell, though construction had not actually
started.
• If the City were determined liable to the plaintiffs, there may be some
apportionment of comparative negligence to Sherry Mesa. If she did not have
actual notice of the particular pothole at issue, she certainly had notice the lot
surface had many defects of that type.
CONTRIBUTION / CODEFENDANTS
• RV Management Co.
LOSS PREVENTION RECOMMENDATIONS
• Conduct regular inspections of properties that are the City’s maintenance
responsibility and correct any dangerous conditions.
DAMAGES -Sherry Mesa
Description of Injuries: Fractured left ankle/foot requiring surgery, and soft tissue
back injury.
Treatment: Surgical repair of ankle. Post surgy follow up
appointments through 9/27/21 with minimal additional
treatment. The hardware is still in the Plaintiff’s ankle and
must surgically be removed at a future point in time.
Lumbar injections for back pain.
Howell Medical Specials: $16,706.16 (Plaintiff claims the Howell number to be
$24,706.00 without submitting supporting docs.)
Was the Treatment Reasonable?: Right ankle treatment appears to be reasonable. The
Plaintiff had a prior back injury dating back to 2015 which
she was receiving treatment for including injections. She
did not undergo any treatment for her back until 6 months
post loss, which calls into question whether it is even
accident related.
Residuals: Hardware in ankle. Continued complaints of back pain
which we do not believe were caused by this loss.
Future Medical Specials: Future ankle surgery to remove hardware.
Loss of Earnings: N/A
Date of Last Index: 5/17/21
DAMAGES -Rick Mesa
Description of Injuries: Loss of consortium.
LEGAL
Plaintiff Attorney: James Cicalese of Cicalese Jaguar Law Firm, PC
CJPIA Attorney: Mike Gibbs
Mediation: 5/16/22.
MSC: Not yet set.
Trial: Not yet set (TSC set for 6/15/22)
Plaintiff Demand: None made to date.
CJPIA Offer: None.
CURRENT CASE STATUS
RV Management has presented a late claim for indemnification. We have returned it as
late and have denied their application to present a late claim. We are going to Mediation
on 5/16/22 in order to try to resolve this exposure in an early stage. Should the Mediation
fail, we will continue with pursuing a Motion for Summary Judgment.
MANAGEMENT PLAN
Goal: A reasonable settlement.
Plan:
1. Complete the scheduled Mediation.
2. Should Mediation fail we will complete written discovery.
3. Review for a possible Motion for Summary Judgment. If it is warranted we will
file it.
4. Review for an IME.
5. Should the MSJ fail we will position the case for Mediation for settlement.
Timeframe: Approximately 12 months.
COMMENTS
Courthouse: 3255 E. Tahquitz Canyon Wy., Palm Springs, CA 92262
Plaintiff Attorney Strength: Appears to be competent.
Impression of the Plaintiff: While these plaintiffs both seem nice, they also do not
seem to present a big risk of getting an undue amount of sympathy from a jury. At their
depositions, both plaintiffs seemed to be healthy and well situated in life. One complaint
both plaintiffs had was that, because of the accident, they had to postpone a 7-week
vacation in Hawaii for one month (and later the same year, they were back in Hawaii for
another 4-week vacation). An ordinary jury might be wishing it had that kind of
problem.
REQUEST FOR AUTHORITY
• $100,000.00 (Granted by Paul Zeglovitch on 4/27/22)
Completed by: Timothy Varon
Date: 5/11/22
1
Gloria Sanchez
From:Kevin Borgen <kborgen@gibbsandfuerst.com>
Sent:Wednesday, March 23, 2022 6:33 AM
To:Varon, Tim; Robert Hargreaves; Andrea Staehle; Mariana Rios; Amber Molina
Cc:Mike Gibbs; Karen Hernandez
Subject:RE: 3012624, Palm Desert, Sherry Mesa et al - CONFIDENTIAL ATTORNEY - CLIENT
COMMUNICATION
Attachments:2022-03-21 CLAIM AGAINST THE CITY 870-RV MANAGEMENT CO-c1.pdf
Yesterday (3/21/22), the City received the attached government claim for indemnity and contribution from co-
defendant RV Management, along with a Gov. Code §911.4 request for leave to present the untimely claim (plaintiffs’
complaint was served on RV Management by July 12, 2021, and RV Management then had six months to submit a
government claim).
The only applicable basis for relief under Gov. Code §911.6 would be subsection (b), which requires that the failure to
present a timely government claim was a result of mistake, inadvertence, surprise or excusable neglect and also requires
no prejudice to the City. RV did not make any showing of mistake, inadvertence, surprise or excusable neglect; RV
declared the City would not be prejudiced and cryptically asserted: “Within the two months, it has been made clear to
the attorney on behalf of Claimant RV Management that in order to preserve its interests, it must file this Government
Tort Claim for indemnity and contribution against the City.”
I do not think there was “mistake, inadvertence, surprise or excusable neglect” within the meaning of §911.6 that
precluded a timely claim. RV’s 10/14/2021 discovery responses asserted the City was responsible for the parking lot and
that RV was not, and I believe that had been RV’s position from the outset. With those discovery responses, RV
produced documents regarding the Business Improvement District (“BID”)that RV believes obligated the City to
maintain the parking lot.
Turning to the substance of the proposed government claim, I do not think anything about the BID proceedings supports
an RV claim for indemnity or contribution in this Mesa lawsuit. I do not see how the law authorizing and governing BIDs
could reasonably be interpreted as transferring premises liability from private owners to a public entity. The point of
BID special assessments is that the general public should not be required to fund benefits for a few private owners.
RECOMMENDATION
Mike Gibbs and I recommend that, pursuant to Government Code §911.6, the City deny RV Management Co.’s
application for leave to present a government claim.
GIBBS & FUERST LLP
Kevin Borgen, Esq.
2247 SAN DIEGO AVE., SUITE 137
SAN DIEGO, CALIFORNIA 92110
TELEPHONE (619) 702-3505
FACSIMILE (619) 702-1547
2
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!
PO Box 2411, Tustin, CA 92781
T: 657-622-4200 | F: 866-254-4423 | www.carlwarren.com
CA License #2607296
March 23, 2022
Law Offices of John A. Hauser
Attn: Suzanne Norris, Esq.
P.O. Box 2282
Brea, CA 92822-2282
REJECTION OF APPLICATION FOR LEAVE TO PRESENT A LATE CLAIM
RE: Claim : RV Management Co.vs. Palm Desert
Claimant : RV Management Co.
Member : City of Palm Desert
Date of Event : 3/25/21 (served on 7/12/21)
CW File Number : 3012624 TV
Dear Ms. Norris:
Notice is hereby given that the Application for Leave to Present a Late Claim which you presented
to the City of Palm Desert on March 21, 2022 was rejected on March 23, 2022.
WARNING
If you wish to file a court action on this matter, you must first petition the appropriate court for
an order relieving you from the provisions of Government Code Section 945.4 (claims
presentation requirement). See Government Code Section 946.6. Such petition must be filed with
the court within six (6) months from the date your application for leave to present a late claim
was denied.
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.
Very Truly Yours,
CARL WARREN & CO.
Timothy M. Varon
Timothy M. Varon
Claims Supervisor
Page 2 of 2 PO Box 2411, Tustin, CA 92781
T: 657-622-4200 | F: 866-254-4423 | www.carlwarren.com
CA License #2607296
cc: Member Agency: City of Palm Desert, attn:Mariana Rios
PO Box 2411, Tustin, CA 92781
Tel: 657-622-4200 | Fax: 866-254-4423 | www.carlwarren.com
CA License #2607296
March 10, 2022
Law Offices of John A. Hauser
Attn: Suzanne Norris, Esq.
P.O. Box 2282
Brea, CA 92822-2282
LATE CLAIM NOTICE
RE: Claimant : RV Management Co.
Member : City of Palm Desert
Date of Event : 3/25/21 (served on 7/12/21)
CW File Number : 3012624 TV
Dear Ms. Norris:
Carl Warren & Company is the claims management company for the City of Palm Desert.
Notice is hereby given that the claim which you presented to the City on March 21, 2022 is being
returned to you because it was not presented within six months after the event or occurrence, as
required by law. See Sections 901 and 911.2 of the Government Code. Because the claim was not
presented within the time allowed by law, no action has been taken on the claim.
Your only recourse at this time is to apply without delay to the City Clerk for leave to present a
late claim. See Sec. 911.4 – 912.2 inclusive and Sec. 946.6 of the Government Code. Under
some circumstances leave to present a Late Claim will be granted. See Sec. 911.6 of the
Government Code.
You may seek the advice of an attorney of your choice in connecting with this matter. If you
desire to consult an attorney, you should do so immediately.
Very Truly Yours,
CARL WARREN & CO.
Timothy M. Varon
Timothy M. Varon
Claims Supervisor
CITY OF PALM DESERT
73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346-0611
INFO@PALM-DESERT.ORG
TO: CJPIA (c/o CARL WARREN & CO.), CITY MANAGER, CITY ATTORNEY,
COPY: ASSISTANT CITY MANAGER, HUMAN RESOURCES MANAGER, AND
CITY CLERK.
FROM: MARIANA RIOS, MANAGEMENT SPECIALIST II
DATE: 03/21/2022
SUBJECT: CLAIM NO. – 870 – RV MANAGEMENT CO
The attached Claim No. is being transmitted to you for the following:
Information only.
or
Please review and provide any recommendation you may have to the Risk
Manager, concerning any action required by the City of Palm Desert.
We would appreciate your report, if requested, by May 5, 2022, 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.
___________________
MARIANA RIOS
MANAGEMENT SPECIALIST
Attachment (as noted)
X