1 DARREN M. HARRIS, Bar No. 190399 CITY OF RIALTO
HARRIS GROMBCHEVSKY LLP 2022 MAR 17 PM12:33
2 2070 Business Center Drive, Suite 285
3 Irvine, California 92612 CITY RECEIVED
(949) 387-4444 Telephone CLERK
4 (949) 387-4544 Facsimile
[email protected]
5 6 Attorneys for Claimant, GERALD ROBERT THOMAS
CLAIM AGAINST GOVERNMENTAL ENTITY
8 9
GERALD ROBERT THOMAS -
10 Claimant,
11 APPLICATION FOR PERMISSION TO
12 VS. ) PRESENT LATE CLAIM
13 CITY OF RIALTO, et al. ) [Gov. C. §911.4]
14 Respondents.
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TO CITY OF RIALTO:
17 18 Application is hereby made for permission to present the attached claim after 19 purported expiration of the time limit provided in Government Code §911.2. (1) Claimant Gerald Thomas filed a claim for damages with the City of Rialto 20 (Rialto") on January 13, 2022. Rialto returned the claim on March 4, 2022, 21 asserting that the claim was presented late. (See attached documents). 22 (2) As stated in the attached claim, Claimant Gerald Thomas was incarcerated for 23 over 9 months. He was released from incarceration on August 11, 2021. 24 (3) San Bernardino County Superior Court Judge Mary E. Fuller granted a Petition 25 under Penal Code §851.8 with a factual finding of innocence of Claimant 26 Gerald Thomas on September 30, 2021.
27 (4) Government Code §911.2 requires claims relating to a cause of action for 28 APPLICATION FOR PERMISSION TO PRESENT LATE CLAIM (GOV. CODE §911.4) 1 death or injury to a person to be presented within 6 months following the 2 accrual of an action.
3 Accrual of Mr. Thomas's causes of action:
4 (5) "For purposes of calculating these time limits [under the Government Tort 5 Claims Act], the date of accrual is the same date that governs in the statute of 6 limitations context." (Loehr v. Ventura Cnty. Community College District 7 (1983) 147 Cal.App.3d 1071, 1078). "[A] cause of action accrues and a statute 8 of limitations begins to run when a controversy is ripe - that is, when all of the 9 elements of a cause of action have occurred and suit may be maintained." 10 (Armstrong Petroleum v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 11 1388).
12 (A) Accrual of Malicious Prosecution Claims:
13 "The first element of a malicious prosecution cause of action is that the 14 underlying case must have been terminated in favor of the malicious 15 prosecution plaintiff. The basis of the favorable termination element is that the 16 resolution of the underlying case must have been tended to indicate the 17 malicious prosecution of plaintiff's innocence." (Daniels v. Robbins (2010) 182 18 Cal.App.4' 204, 217).
19 "A cause of action for malicious prosecution accrues, and the statute of 20 limitations begins to run, upon entry of judgment in the underlying action." 21 Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 458. 22 Here, the criminal case was terminated in Claimant's favor on September 30, 23 2021, when Judge Fuller ordered a factual finding of innocence under Penal 24 Code §851.8. Claimant's cause of action for malicious prosecution 25 accrued on September 30, 2021. Claimant filed a claim for damages with the 26 City of Rialto on January 13, 2022 - within 6 months of accrual. 27 (B) Accrual of False Arrest/False Imprisonment Claims:
28 False imprisonment claim accrues on termination of imprisonment. (Collins v. 2 APPLICATION FOR PERMISSION TO PRESENT LATE CLAIM (GOV. CODE §911.4) 1 Los Angeles County (1966) 241 Cal. App. 2d 451, 457. "It is settled that a 2 cause of action for false imprisonment accrues on the person's release from 3 incarceration." (Torres v. Dept. of Corrections and Rehabilitation (2013) 217 4 Cal.App. 4th 844, 848, citing Scannell v. County of Riverside (1984) 152 5 Cal.App.3d 596, 606).
6 Here, Claimant was released from incarceration on August 11, 2021. 7 Claimant's cause of action for false arrest/false imprisonment accrued on 8 August 11, 2021. Claimant filed a claim for damages with the City of Rialto on 9 January 13, 2022 - within 6 months of accrual.
10 (C) Accrual of Negligence and Other Claims:
11 Claimant's cause of action for negligence and other claims accrued on 12 September 30, 2021.
13 See Yount v. City of Sacramento (2008) 43 Cal.4th 885, 893, 902 (finding that 14 similar considerations under Heck v. Humphrey in federal court also apply in 15 state court, including that a civil rights claim "is not cognizable... if 'a judgment 16 in favor of the plaintiff would necessarily imply the invalidity of his conviction or 17 sentence,' unless the prisoner can demonstrate that the conviction or sentence 18 has previously been invalidated. '") (quoting Heck v. Humphrey, 512 U.S. 477, 19 487 (1994)); see also e.g., Clarke v. Larry, No. CV-10-6066-GW (JEM), 20 2010 WL 3418924, at *4 (C.D. Cal. Aug. 26, 2010).
21 Claimant filed a claim for damages with the City of Rialto on January 13, 2022 - 22 within 6 months of accrual.
23 (6) This application is presented within a reasonable time after the accrual of the 24 cause of action. Wherefore, it is respectfully requested, that this application be 25 111
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3 APPLICATION FOR PERMISSION TO PRESENT LATE CLAIM (GOV. CODE §911.4) 1 granted and that the attached claim be received and acted on in accordance 2 with Government Code §912.4 through §912.8.
3 4 I certify and declare under penalty of perjury under the laws of the State of 5 California that the foregoing is true and correct.
6 7 March 14, 2022 HARRIS GROMBCHEVSKY LLP
8 Janettar
9 DARREN M. HARRIS
10 Attorneys for Claimant
GERALD ROBERT THOMAS
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4 APPLICATION FOR PERMISSION TO PRESENT LATE CLAIM (GOV. CODE §911.4) CHI
GEORGE HILLS
Our minds over your malte s
March 4, 2022
Darren M. Harris
Harris Grombchevsky LLP
2070 Business Center Dr. Suite 285
Irvine CA 92612
RE: Our Client: City of Rialto
Our Claim Number: GHC0040998
Date of Loss: August 11, 2021 (actual date of loss October 1, 2020) Your Client: Gerald Robert Thomas
RETURN OF LATE CLAIM
Notice is hereby given that the claim you presented to the City of Rialto on or about January 18, 2022, on behalf of your client, is being returned on behalf of the City of Rialto because it was not presented within six (6) months after the date of occurrence, or other date of accrual of your cause of action 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 was taken on the claim.
WARNING
Your only recourse at this time is to apply without delay to the City of Rialto for Leave to Present a Late Claim, as required by law. See sections 911.4-912.2 inclusive and section 946.6 of the Government Code.
Under some circumstances Leave to Present a Late Claim will be granted. See section 911.6 of the Government Code.
You may seek the advice of an attorney of your choice in connection with your application. If you desire to consult an attorney, you should do so immediately.
If you have any questions, please contact the undersigned.
Kindest Regards,
George Hills Company
Yolanda Ballesteros
Senior Claims Adjuster
Phone: (909) 453-4410
Email: [email protected]
Enclosures: Claim Form, Proof of Mailing
CC: Risk Management, City of Rialto
P.O. BOX 278, RANCHO CORDOVA, CA 95741
CITY OF RIALTO CITY CLERK'S DATE STAMP
LIABILITY CITY OF RIALTO
CLAIM FOR DAMAGES 2022 JAN 18 PM 3: 55
TO PERSON OR PROPERTY
RECEIVED
CITY CLERK
1. Claims for death, injury to person, or lo personal property must be filed not later than six (6) months after the occurrence (Gov. Code §911.2).
2. Claims for damages to real property must be filed not later than one (1) year after the occurrence (Gov. Code §911.2). RETURN TO:
3. READ ENTIRE CLAIM FOR BEFORE FILING
Rialto City Clerk's Office
4. ATTACH SEPARATE SHEETS, IF NECESSARY, TO GIVE FULL DETAILS Mail: 150 S. Paim Ave., Rialto, CA 92376 Address: 290 W. Rialto Ave., Rialto, CA 92376
CLAIMANT INFORMATION:
Gerald Robert Thomas 3/25/2002
FULL NAME DATE OF BIRTH
c/o Harris Grombchevsky LLP
HOME ADDRESS INCLUDING CITY, STATE & ZIP HOME TELEPHONE NO. 2070 Business Center Dr., Suite 285, Irvine, CA 92612 1949 1 387-4444 BUSINESS ADDRESS INCLUDING CITY, STATE & ZIP BUSINESS TELEPHONE NO.
ADDRESS AT WHICH CLAIMANT DESIRES TO RECEIVE Harris Grombchevsky LLP (address above)
NOTICES OR COMMUNICATIONS REGARDING THIS CLAIM
(if different from home address provided above):
1. WHEN DID DAMAGE OR INJURY OCCUR? DATE: 8/11/2021 and prior thereto TIME:
2. PLACE OF ACCIDENT (OCCURRENCE) BE SPECIFIC - Describe fully and (if applicable) iocate on diagram on reverse side of this sheet.
Where appropriate, give street names and addresses. measurements and landmarks.
See attached sheets.
3. HOW DID DAMAGE OR INJURY OCCUR?
See attached sheets
4. WERE POLICE AT THE SCENE? * YES D NO WERE PARAMEDICS AT THE SCENE? YES NO
5. WHAT PARTICULAR ACT OR OMISSION DO YOU CLAIM CAUSED THE INJURY OR DAMAGES? Give the name of the city/town employee causing the injury or damage, if known.
See attached sheets
6. GIVE TOTAL AMOUNT OF CLAIM Incide estimate of amount of any prospective injury or damage $1,000,000 + HOW WAS THE ABOVE AMOUNT COMPUTED? Be specific, list doctor bills, repair estimates, etc. Please attach 2 estimates.
DAMAGES INCURRED TO DATE:
Item/Date: Emotional distress/injuries/damages Amount: $ Item/Date: Amount: $
TOTAL AMOUNT CLAIMED AS OF PRESENTATION OF THIS CLAIM: $ ESTIMATED PROSPECTIVE DAMAGES, AS FAR AS KNOWN:
Item/Date:
Amount: $_
Item/Date: Amount: $
TOTAL ESTIMATED AMOUNT PROSPECTIVE DAMAGES:
7. WITNESSES TO DAMAGE OR INJURY List all persons known to have information (attach additional pages, if necessary) NAME: See attached sheets NAME:
ADDRESS:
ADDRESS:
TELEPHONE: [ TELEPHONE: (
8. IF INJURED, PROVIDE NAME, CONTACT INFORMATION AND DATE/TIME DOCTORS) OR HOSPITALS) VISITED:
NAME: _ NAME:
ADDRESS: ADDRESS:
TELEPHONE: (
TELEPHONE: L
DATE: TIME: •AM 0 PM
DATE: TIME: CAM 0 PM
9. PLEASE READ THE FOLLOWING CAREFULLY:
For all vehicle accident claims, place on the following diagram, the names of streets, including NORTH, EAST, SOUTH AND WEST directions. Indicate place of accident by "X and by showing house numbers or distances to street corners.
If a cityitown vehicle was involved, designate by letter "A" location of the City/Town vehicle when you first saw it, and by "B" location of yourself or your vehicle when you first saw City/Town vehicle; location of City/Town vehicle at time of accident by "A-1" and location of yourself or your vehicle at the time of the accident by "B-1" and the point of impact by X
• NOTE IF THE DIAGRAM BELOW COES NOT FIT THE SITUATION, LEASE ATTACH A PROPER UNAGRAM SIGNED BY THE GIANANT.
JAN
CITY CLERK
CURB PH
13:
PARKWAY
SIDEWALK
I HAVE READ ERE FOREHAN CAN AND YED THE ONE TIEN AND BE AND AS TO THOSE MA STAS BEVE THENTO BE TRUE EXCEPT ASTO OM SERENIOR DEGLARE) UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.
SIGNATURE OF CLAKIANT OR AGENT
Darren M. Harris 1/13/2022
TYPE OR PRINT NAME DATE
Attorney
RELATIONSHIP TO CLAIMANT
NOTE: PRESENTATION OF A FALSE CLAIM IS A FELONY (CA PENAL CODE 72) RETURN CLAIM TO: RIALTO CITY CLERK'S OFFICE - 150 S. PALM AVE., RIALTO, CA 92376
CITY OF RIALTO LIABILITY CLAIM FOR DAMAGES TO PERSON OR PROPERTE (ATTACHMENT SHEETS) JAN
Gerald Thomas was arrested on October 1, 2020 by members of the City of Rialty CITY OF RIALTO PM
Police Department. From October 1, 2020 until August 11, 2021, Mr. Thomas was w At all relevant times, the City of Rialto was the employer of City of Rialto Police Department Detective ANTHONY GLASS (GLASS"). In his capacity as a City of Rialto Police Detective, he was one of the detectives in charge of investigating the April 23, 2020 shooting of Jose Andres Lira and Terrance Redic. On information and belief, at all relevant times herein, GLASS was acting under the color of law within the course and scope of his duties as an officer for the City of Rialto Police Department.
Other City of Rialto employees with knowledge of this incident include City of Rialto Police Department employees Matthew Lopez, Richard Royce, Edgar Villareal, Johnny Partida, Jorge Brambila, Nicholas Parcher, Angelessa Flores, Martin Deschepper, Michael Martinez, Victoria Hintz, Travon Ricks, James Mills, and Mike Morales. County of San Bernardino Deputy District Attorney Evan Acker and Attorney Rajan Maline also have knowledge of this incident.
Gerald Thomas was incarcerated for over 9 months for attempted murder and other serious charges but was factually innocent. Mr. Thomas maintained his innocence the entire time he was incarcerated. City of Rialto employees, including but not limited to Detective GLASS acted with a deliberate indifference to or reckless disregard for Mr.
Thomas's rights for the truth in withholding evidence from prosecutors, and/or for the right to an eyewitness identification free from improper suggestion, for an investigation free of active concealment of material facts, and/or for the right to due process of law.
Tammerion High was the actual shooter. There was no murder weapon or other physical evidence implicating Gerald Thomas. City of Rialto employees, including but not limited to Detective GLASS, deliberately failed to investigate cell phone placement and DNA identification. (Subsequent cell phone data location and DNA actually supported Mr. Thomas's factual innocence).
On September 30, 2021, San Bernardino County Superior Court Judge Mary E. Fuller granted a Petition to Seal and Destroy Arrest Records relating to Mr. Thomas under enal Code §851.8, finding that Mr. Thomas was factually innocent of the crimes charged. New charges were filed against Tammerion High. On information and belief High has since pled guilty to attempted murder and is in custody.
As a direct and proximate result of the aforesaid acts, omissions, customs, practices, policies and decisions of City of Rialto employees, Thomas has suffered great mental and physical pain, suffering, anguish, fright, nervousness, anxiety, shock, humiliation, indignity, embarrassment, harm to reputation, and apprehension, which have caused him to sustain damages in a sum to be determined.
Mr. Thomas' claims for damages include but are not limited to: Deprivation of Civil Rights - Arrest without Probable Cause (42 U.S.C. § 1983); Conspiracy to Interfere with Civil Rights - Arrest without Probable Cause (42 U.S.C. § 1983); Deprivation of Civil Rights - False Evidence Violations (42 U.S.C. § 1983); Conspiracy to Interfere with Civil Rights - False Evidence Violations (42 U.S.C. § 1983); Deprivation of Civil Rights - Fabrication of Evidence (42 U.S.C. § 1983); Deprivation of Civil Rights - Violation of and Deliberate Indifference to Constitutional Rights in Refusal to Investigate Evidence Demonstrating Mr. Thomas' Innocence (42 U.S.C. § 1983); Conspiracy to Interfere with Civil Rights - Refusal to Investigate Evidence Demonstrating Mr. Thomas' Innocence (42 U.S.C. § 1983); Deprivation of Civil Rights - Monel/ Violations (42 U.S.C. § 1983); Malicious Prosecution (California Common Law and 42 U.S.C. § 1983); False Arrest/False Imprisonment; and Negligence.
LAN FiRM SANTA CA. C. $0.53
HARFIS- FIRST-CLASS
IAN 13-2022
HG G GROMBCHEVSKY 14 m5 2022 Pli ? Mailed-icon ZIP 92612
CITY OF RIALTO
2022 JAN 18 PM 3:55
stamps •Ă: 00000002
2070 BUSNESS CENTER DRIVE, SUITE 285
IRVINE, CALIFORNIA 92612 RECEIVED
CITY CLERA
Rialto City Clerk's Office
150 S PALM AVE
Rialto CA 92376-6406
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO, CITY OF ONTARIO I am employed in the County of San Bernardino, State of California. I am citizen of the United States and over the age of eighteen years. My business address is George Hills Company, 2920 Inland Empire Bivd. Suite 104, Ontario, CA 91764
On, March 4, 2022, I served the Notice of Late Claim on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:
Gerald Robert Thomas
c/o Darren M. Harris
Harris Grombchevsky LLP
2070 Business Center Dr. Suite 285
Irvine CA 92612
I caused such envelope with postage thereon fully prepaid, in the United States mail in Ontario, California. I declare under penalty of perjury that the foregoing is true, correct and executed on March 4, 2022
Jem pim
Jessica Pickering, Claims Supervisor
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to this action. My business address is 2070 Business Center Drive, Suite 285, Irvine, California 92612.
5 On March 14, 2022, I served the original document, or a true copy thereof, described as 6 APPLICATION FOR PERMISSION TO PRESENT LATE CLAIM on the parties in this action as Rialto City Clerk's Office George Hills
8 150 S. Palm Avenue Attn: Yolanda Ballesteros
Rialto, CA 92376-6406 P.O. Box 278
Rancho Cordova, CA 95741
10 [email protected]
11 By United States mail. | placed the document in a sealed envelope or package 12 addressed to the parties listed above. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practices for collecting 13 and processing correspondence for mailing. On the same day that correspondence is placed for collection in mailing, it is deposited in the ordinary course of business with the United States Postal 14 Service, in a sealed envelope with postage fully prepaid. 15 • By fax transmission. I faxed the documents to the parties at the fax numbers listed above. No error was reported by the fax machine that I used. 16 17 By overnight delivery. I placed the envelope in an envelope or package provided by an overnight delivery carrier and addressed to the parties listed above. I placed the envelope or 18 package for collection an overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
19 • By messenger service. I enclosed the documents in a sealed envelope or package and 20 provided them to a professional messenger service.
21 By E-mail service. I enclosed the documents in an email to the above-referenced recipients.
22 I declare under penalty of perjury under the laws of the State of California that the foregoing 23 is true and correct. Executed on March 14, 2022, at Irvine, California. 24 25 SHIRLEYM. TAFOYA
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APPLICATION FOR PERMISSION TO PRESENT LATE CLAIM (GOV. CODE §911.4) $0.93 US POSTAGE
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MAR 14 2022
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