notice of removal to federal court 5 14 cv 03084

Case5:14-cv-03084-HRL Document1 Filed07/08/14 Page1 of 6

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28 STRADLING YOCCA CARLSON & RAUTH

LAWYERS

NEWPORT BEACH

JEFFREY A. DINKIN, SBN 111422 idinkin@sycr. com ALLISON E. BURNS, SBN 198231 aburns@sycr. com DAVID C. PALMER, SBN 251609 dpalmer@sycr. com STRADLING YOCCA CARLSON & RAU1H A Professional Corporation 800 Anacapa Street, Suite A Santa Barbara, California 931 01 Telephone: (805) 730-6800 Facsimile: (805) 730-6801

Attorneys for Defendants City of Carmel-by-the Sea; Jason Stilwell; Susan Paul

Exempt from filing fee Government Code § 6103

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STEVEN MCINCHAK

Petitioner/Plaintiff,

v.

CITY OF CARMEL-BY-THE-SEA, JASON STILWELL, CITY ADMINISTRATOR OF THE CITY OF CARMEL-BY-THE-SEA, SUSAN PAUL, ADMINISTRATIVE SERVICES DIRECTOR OF THE CITY OF CARMEL-BY-THE-SEA; and DOES 1 through 50, inclusive,

Defendants.

CASE NO. Monterey County Superior Court

Case No. Ml28062

NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. SECTIONS 1441(b) AND 1367 (FEDERAL QUESTION AND SUPPLEMENTAL)

Action Filed: June 4, 2014 Discovery Cutoff: Not Set Trial Date: Not Set

NOTICE OF REMOVAL DOCSOC/1670471 vl/102910-0006


1 TO THE CLERK OF THE ABOVE-ENTITLED COURT:

2

3 PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1331, 1441 and

4 1446, Defendants City of Carmel-by-the-Sea; Jason Stilwell and Susan Paul, (the

5 "Defendants"), hereby remove the state court action described below to this Court.

6

7 1. On June 4, 2014, an action was commenced in the Superior Court of

8 the State of California for the County of Monterey entitled Steven Mclnchak v.

9 City of Carmel-by-the-Sea; Jason Stilwell, City Administrator of the City of

10 Carmel-by-the Sea; Susan Paul, Administrative Services Director of the City of

11 Carmel-by-the-Sea and does 1 through 50, inclusive, Case No. M128062. A true

12 and correct copy of the Summons, Complaint and the Superior Court's docket is

13 attached hereto as Exhibit "A."

14

15 2. Jurisdiction: This is a civil action of which this Court has original

16 jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C.

17 § 1367(a), and is one which may be removed to this Court by Defendants pursuant

18 to the provisions of28 U.S.C. § 144l(b) in that it is a civil action arising under the

19 Constitution, laws, or treaties of the United States and involves claims that are so

20 related to claims in the action within such original jurisdiction that they form part

21 of the same case or controversy under Article III of the United States Constitution.

22 The above Complaint in the above-referenced action alleges, among other things,

23 that Defendants' conduct is in violation of the laws and Constitution of the United

24 States.

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26 II

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28 II STRADLING YOCCA

CARLSON & RAUTH -1-

L.-'.WY.ERS

NEWl'ORT BE.\CII

DOCSOCII67047Ivl/l02910-0006

NOTICE OF REMOVAL


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L.-1.\\'YERS

NEWPORT BE:\CII

3. Pursuant to 28 U.S.C. § 1441(a), removal to the Northern District of

California is proper because said district embraces the place where the state court

action currently is pending.

4. Intradistrict Assignment: Pursuant to Local Rule 3-2( e), removal to

the San Jose Division of the Northern District of California is proper because said

division embraces the county where the state court action is pending and/or where

the civil action arose.

5. Pursuant to 28 U.S.C. § 1446(d), written notice of the filing of this

Notice of Removal to Federal Court ("Notice of Removal") will be provided to all

adverse parties, and a copy will be filed in the appropriate state court.

6. Pursuant to 28 U.S.C. § 1446(b), all named defendants in this case, in

both their individual and official capacities, to the extent both capacities are

alleged in the Complaint, hereby join in this Notice of RemovaL

7. In filing this Notice of Removal, Defendants preserve all of their

defenses, denials, and/or objections to the Complaint and each and every allegation

thereof.

II

II

II

II -2-

NOTICE OF REMOVAL DOCSOC/16704 71 vI 1102910-0006


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LAWYERS NE11'1'0RT BEACH

WHEREFORE, the above-described action now pending against Defendants

in the Superior Court of the State of California, County of Monterey, is properly

removed to this Court.

DATED: July 7, 2014

DOCSOC/16704 7l v 1/102910-0006

STRADLING YOCCA CARLSON & RAUTH A Profess·

Attomeys for Defendants City of Cannel-by-the Sea; Jason Stilwell; Susan Paul

NOTICE OF REMOVAL


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STRADLING YOCCA CARLSON & RAUTH

LAWYERS

NEWPORT BE,\CH

CERTIFICATE OF SERVICE

I certify that on July 8, 2014 the foregoing document was served on all parties

or their counsel of record through the CMIECF system if they are registered users

or, if they are not, I hereby certify that a true and correct copy was served in the

manner set forth below:

D BY EMAIL: by transmitting via electronic mail the document(s) listed above to the email address( es) set forth below. BY FACSIMILE: by transmitting via facsimile the document(s) listed above to the facsimile number(s) set forth below. I certify that said transmission was completed without error and that a report was generated by facsimile machine (949) 725-4100 which confirms said transmission.

0 BY OVERNIGHT DELIVERY: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, and delivering via overnight courier and addressed as set forth below, respectively.

~ BY MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States Mail in Newport Beach, California, addressed as set forth below.

0 BY PERSONAL DELIVERY: by causing personal delivery by Nationwide Legal, Inc. of the document(s) listed above to the person(s) at the address( es) set forth below

SEE ATTACHED SERVICE LIST

I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on July 8, 2014, at Newport Beach, California.

Is/ Karen M. Hardy Karen M. Hardy

CERTIFICATE OF SERVICE DOCSOC/1671877vl/102910-0006


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')Q

STRADLING YOCCA CARLSON & RAUTH

LAWYERS NEWPORT BI3.-\CI1

SERVICE LIST Steven Mclnchak v. City of Cannel-by-the-Sea, et Monterey County Superior Court Case No. M128062

Michelle A. Welsh Stoner, Welsh & Sclnnidt 413 Forest A venue Pacific Grove, CA 93950-4201 Telephone: (831) 373-1993 Facsimile: (831) 373-1492

DOCSOC/16704 71 vl/1 02910-0006

Attorney for Plaintiff/Petitioner Steven Mclnchak

SERVICE LIST

Case5:14-cv-03084-HRL Document1-1 Filed07/08/14 Page1 of 40

'


SUMMONS (CITJJ.CION JUDICIJJ.L)

NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): City of Carmel-by-the-Sea, Jason Stilwell, City Administrator of the City of Carmel -by-the-Sea, Susan Paul, Administrative Services Director of the City of Cannelby-the-Sea and Does 1 through 50, inclusive

YOU ARE BEING SUED BY PLAINTIFF:

(LO ESTA DEMANDANDO EL DEMANDANT£): Steven Mcinchak

SUM-100

NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below.

You have 30 CALENDAR DAYS after this summons and legal papers are servE;d on you to file a written response at this court and have a copy served on the plaintiff: A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/se/fhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken wttnout further warning from the court.

There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you rnay want to call an attorney referral service. If you cannot afford an altomey, you may be eligible for free legal services from a nonprOfit legal sel\lices program. You can locate these nonprofit groups at the California Legal Services Web site (www.Jawhelpcalifomia.org), the California Cou'rts Online Self-Help Center (www.courtinfo.ca.gov/se/fhefp), or by contacting your focal court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more In a civil case. The court's lien must be paid before the court will dismiss the case. jAVISO! Lo han demandado. Sino responde dentro de 30 dias, fa corte puede decidir en su contra sin escuchar su version. Lea Ia informacion a continuaci6n.

17ene 30 DiAS DE CALENDAR/0 despues de que te entreguen esta citaci6n y pape/es legales para presentar una respuesta por escrito en esla corte y hacer que se ehlregue una co pia a/ demand ante. Una carta o una flam ada telef6nica no Ia protegen. Su respuesta par escrito tiene que eslar en farmato legal correcto si desea que procesen su caso en Ja cotta. Es posible que haya un formutario que usted pueda usar para su respuesta. Puede encontrar esfos formularfos de Ia corte y mas informacion en e/ Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en fa bibffoteca de !eyes de su condado o en Ia corte que le que de mas cerca. Sino puede pager Ia cuota de presentaci6n, pida a/ secretarla de Ia corte que fe de un formulario de exenci6n de pago de cuotas. Sino presenta su respuesta a tiempo, puede perder e/ casa par /ncumplimienta y Ia corte Je podra quitar su sue/do, dinero y bienes sin mas advertencia.

Hay afro& requisites legates. Es recamendab/e que !fame a un abogado inmediatamente. Sino conooe a un abogado, puede /lamar a un seNicio de remisi6n a abogados. Sino puede pagar a un abogado, es posible que cumpla con los requisites para obtener seNicios legales gratuitos de un programa de seNicios legales sin tines de Iuera. PUede encontrar estes grupos sin fines de /ucro en e/ siiio web de California Legal SeNices, (www.lawhelpoalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.oa.gov) o poniendose en contacto con fa corte o e/ cofegio de abogados locales. AVISO: Por ley, Ia corte Iiane derecho a reclamar las cuotas y los costas exentos por imponer un gravamen sabre cualquier recuperaci6n de $10,000 6 mas de valor reciblda mediante un acuerdo o una concesi6n de· arbitraje en un caso de derecho civil. Ttene que pagar el gravamen de Ia corte antes de que {a corte pueda desechar e/ caso.

Tile name and address of the court is: iM12so62!N<imerodetcaso): (Ef nombre y direcci6n de Ia corte es): Monterey County Superior Court ·1200 Aguajito Road Monterey, CA 93940 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (EI nombre, Ia direcci6n y el numero de te/etono def abogado del demandante, o del demandante que no tiene aboga.do, es): Michelle A. Welsh, Esq. Stone; Welsh& Schmidt 413 EorestAvenue (831) .J73-1993 · Pacific Grove, CA 93950

JlJM fl [, ?fJ41 TERESA A, RJS~ Clerk, by (Fecha) · ~~ '1,; g e:.<J 6"1 (Secretario) DATE:

(For proof of service of this summons, use Proof of Service of Summons (form POS-010).} (Para prueba de entrega de esta citaci6n use ef formulario Proof of Service of Summons, (POS-01 0)).

[SEAL] NOTICE TO THE PERSON SERVED: You are served 1. ~ as an individual defendant. 2. 0 as the person sued under the fictitious name of (specify):

3. 0 on behalf of (specify):

, Deputy (Adjunto)

under: 0 CCP 416.10 (corporation)

§ CCP 416.20 (defunct corporation) CCP 416.40 (association or partnership) other (specify):

§ CCP 416.60 (minor) CCP 416.70 (conservatee) CCP 416.90 (authorized person)

4. D by personal delivery on (date):

SUll!lMONS Page 1 of1

Code of Civil Procedure §§ 412.20, 465

W!'I'W .col)f[info. ca.gov


Sro:NER, WEI.SB

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:MJCHELLE A. WELSH, State Bar No. 084127 STONER, WELSH & SCHMIDT 413 Forest Avenue Pacific Grove, CA .93.950-4201 Telephone: (831) 373-1.9.93 Facsimile: (831) 373-14.92

Attorneys for Petitioner/Plaintiff

JUN 0 4 2014

TEl=:jES.A fj,. R!Si · CLERK OF THE SUPERIOR COURT

______ DEPUTY

CARMEN B. OROZCO

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

Steven Mdn~hal,,

Petitioner/Plaintiff.

v.

City of Carmel-by-the-Sea, Jason Stilwell, City Administrator of the City of Carmel-by-the-Sea, Sus: an Paul, · Administrative Services Director of the City of Carmel-by-the-Sea and Does 1 tllrrough 50, inclusive,

) CaseNo. M 12806:2 ) ) VERIFIED PETIDON FOR WRIT OF ) MANDAMUS (CODE OF CIVIL ) PROCEDURE SECTION .1085) ) AND COMPLAINT FO~ ) DECLARATORY JUDGMENT, ) BREACH OF CONTRACT, ) DEFAMATION AND INTENTIONAL ) AND NEGLIGENT INFLICTION OF ) EMOTIONAL DISTRESS ) ) )_

Respondents/Defendants ) --------~~-------------

20 Petitioner/Plaintiff alleges:

21 PRELIMJNARY STATE~NT

22 Petitioner/Plaintiff Steven Mcinchak is a permanent employee of the City of Carmel-. -

23 by-the-Sea. He has been employed by the City since 1997 as its Information Systems Network

24 Manager, responsible for managing and supervising the City's entire computer system.

25 Throughout hls employment) Petitioner/Plaintiff Mcinchak has perfmmed his duties in an

26 exemplary manner and with the highest professionalism and integrity. This action is brought

27 to enforce the mandatory requirements of the Ordinances and Personnel System of the City of

28 Cannel-by-the-Sea, the Constitution and laws of the State of California, and the mandatory

duties ofthe City Council, the City Administrator and the City Human Resources Director

AND SC:HMIDT

ATIORNEYSATlAW i

Mdncl.H!.k v. Ci_ty o.f Carmel-by-tbe-Sea, et at Verified Petf_tlion fll}ir ~\Vu·H: oflVIandar:n:l'iS aEr.d CeJ.Jn1p!ah1J

P?:.ge]. cti 19


l arising under those laws. In addition to the Petition for Writ of Mandate, Petitioner/Plaintiff

2 also seeks a Declaratory Judgment of his rights and the City's duties, and Petitioner/Plaintiff

3 states claims for violations of his constitutional rights, breach of contract and defamation of

4 character.

5 On June 5, 2013 the City of Carmel-by-the Sea unilaterally placed Petitioner/Plaintiff

6 on administrative leave from his position as Infonriation Systems Network Manager without

7 cause, notice or hearing. The City has kept Petitioner/Plaintiff on administrative leave,

8 preventing him from pe1fonning his job duties or returning to work since Juue 6, 2013, a

9 period of nearly 12 months. The City's actions violated, and continue to violate,

10 Petitioner/Plaintiff's rights to due process oflaw secured by Article 1, Section 2 ofthe

11 Constitution of the State of California by depriving him of lil:Jerty and property without cause,

12 notice and hearing. Further, the City's actions violated Petitioner/Plaintiffs right to privacy .

13 and impaired Petitionet!Pl<;lintiffs vested contractual rights in violation of the Constitution of

14 the State of California at Article 1, Section 1 andSection9. TI1e City has also violated its

15 own Ordinances.

16 Petitioner/Plaintiff seeks a Writ of Mandate compelling" the City of Carmel-by-the-Sea,

17 through its City Council, City Adnrinistrator and Administrative Syrvices Director, to reinstate

18 PetitionerJJ;>laintiff to bis position as Information Systems Network Manager forthwith.

19 Petitioner/Plaintiff :fu:ttber seeks to recover damages for all economic and generiu damages.

20 and losses he has incurred as a result of the continuing failure and refusal of the City of

21 Carmel-by-the-Sea, its City Council, City Administrator and Administrative Services Director,

22 to perfonn their mandatory legal duties in violation of Petitioner/Plaintiffs Constitutional and

23 legal rights.

24 PARTIES

25 1. Petitioner/Plaintiff Steven Mclnchak has been employed by Respondent/

26 Defendant City of Carmel-by-the-Sea a·s its Information Systems Network Manager from July

27 1, 1997 to the present. Petitioner/Plaintiffis a resident of Monterey County, California.

28 2. Respondent/Defendant City of Carmel-by-the-Sea (hereinafter City of Cannel)

STONER, WEI.SB

AND SCHMIDT

ATTORNEYSATU\.W ~

1\1cfuchak v. Ciily of Carme!-by-the-Sea, et a!.. Verified JP\oti<tRon f<Jlt WrH: 'fr!fl'/[ruu.:ll2!m!ls :JD.o::i Cmr,pbint

r·age2 of!9


1 is, and at all times herein mentioned was, a General Law City duly organized and existing

2 under the laws of the State of Califomia and located in Monterey County, California.

3 3. Respondent/Defendant Jason Stilwell is, and at all relevant times was, the City

4 Administrator of the City of Cannel-by-the-Sea.

5 4. Respondent/Defendant Susan Paul is, and at all relevant times was, the

6. Administrative Services Director of the City of Cannel-by-the·-Sea.

7 5. Petitioner/Plaintiff is unaware of the true names and capacities of Respondents/

8 Defendants designated as Does 1 through 50, inclusive. Petitioner/Plaintiff is informed and

9 believes that each of the Respondents/Defendants designated as Does 1 through 50 is

IO responsible forthe acts, omissions and wrongful conduct alleged herein. Petitioner/Plaintiff

11 will seek leave to amend the Petition/Complaint to state the true names and capacities of Does

12 1 through 50 when they are ascertained.

13 CO:M:M:ON FACTS

14 6. Petitioner/Plaintiff Steven Mcinchak was employed by the City of Carmel-by-

15 the-Sea on July 1, 1997 in the position ofinforri:lation Systems Network Manager. The

16. position was created by the City Council of the City of Cannel in l997 as a management

11 position and Petitioner/Plaintiff was the :first employee hired as Infmmation Systems Network

18 Manager. Petitioner/Pla~tiffreported directly to the City Administratorunti12013 when he

19 was directed to report instead to the Adnrinistrative Services Director.

20 7. As Information Systems Network Manager, -Petitioner/Plaintiff was at all

21 relevant times responsible for managing the City's computer system development and

22 operations activities, providing professional assistance to City staff in information systems

23 development analysis, assistillg in management of all information systems activities

24 throughout the City by coordinating, planning and evaluating operations of the system,

25 including programming, computer operations, network administration and management of

26 equipment and software acquisitions, installation and repair. Petitioner/Plaintiff's duties

27 required him to serve as systems supervisor for managing the computer system including

28 network security, passwords, user configurations and changes to accommodate individual and

STONER, WELSH

Al.\'D SCHMIDT

ATTOmEYSATLAW 1 ~

Mcfucha~ v. City ofCmrmel-by-the-Sea, et at Verified Peiitian for 'iVJ:it of Mandamus all.d Comp]alin.t

J?:~g3 3 0f 191


1 departmental needs. A tme and correct copy of the position description of the Information

2 Systems Netvvork Manager is attached a~ Exhibit A and incorporated herein.

3 Petitioner/Plaintiff was required to be accessible to the City1 its Administrators, its elected

4 offiCials and employees twenty-four hours a day, seven days a week to solve problems or

5 answer questions about the City's computer system.

6 8. At all times dming the course of his employment Petitioner/Plaintiff performed

7 his job duties in an exemplary manner and with the highest degree of professionalism and

8 integrity. All of his perso:tmel evaluations were satisfactory or outstanding and he received

9 positive comments and commendations for his job performance. Prior to May 30, 2013

10 Petitioner/Plaintiff had never received any notice of dissatisfaction with his job perfonnance

11 or disciplinary action of any kind during the previous sixteen years of his employment with

12 the City of Carmel.

13 9. Petitioner/Plaintiff is a pen~anent, long-term employee of the City of Carmel.

14 As such, Petitioner/Plaintiff accrued a property :interest in hls employment as a public

15 employee under the Constitution of the State of California, including the right to retain his

16 employment in the absence of just cause for termination. Nevertheless, on or about July 1,

17 2005 then City Administrator of the City of Cannel presented to Petitioner/Plaintiff a

18 document titled "Employment Agreement .City of Cannel-by-the-Sea Information Systems

19 Network Manager". That Employment Agreement purports to change Petitioner/Plaintiff's

20 employment status from a permanent to "at-will employee'' ~ubjecttotennination by the City

21 Administrator without cause or right of appeal .. Petitioner/Plaintiff was informed that he was

22 required to sign that Agreement as a condition of remaining employed by the City of Carmel.

23 Petitioner/Plaintiff received no notice, hearing, or any conside~·ation or other benefit in

24 connection with the Employment Agreement. Petitioner/Plaintiff was compelled to sign, and

2s did sign the Employment Agreement, with no notice or intent to waive his vested rights and

26 under threat that if he did JIOt sign the Employment Agreement his employment would be

27 immediately te~ated without cause. A true and correct copy of the Employment Agreement

28 is attached as Exhibit B a:Q.d 'incorporated herein.

STONER, WELSH

AND SCHJ\IJIDT

. ATTORNEYS AT LAW ~

MdiD!chak v. City of CmrmeK-by-the-Sea, et al. ~l crified Petitio11. fe::: 'Nr.ftt of IVI~5,1illd~u:li1HS and C~vmpflailnt

1?age 4 cf 1~)


10. On June 5, 2013, without prior notice or warning, agents of the City ofCmmel

2 appeared at Petitioner/Plaintiff's home together with the Chief of Police and three law

3 enforcement officers from the City of Carmel and the Monterey County Sheriff's Dep~iment

4 who served upon Petitioner/Plaintiff a search warrant and proceeded to search his residence.

5 Agents for the City of Cannel, including Respondent/Defendant Susan Paul, entered

6 Petitioner/Plaintiff's home without his permission, with no legitimate need to be present, and

7 over his objections. Agents for the City of Cannel took possession of Petitioner/Plaintiff's

s home computer which he shared with his wife, Karen Mclnchak. Also taken were

9 Petitioner/Plaintiffs City laptop computer and multiple thumb drives and disks, including all

10 back-up disks. None of the property taken on June 5, 2013 has been returned to

11 Petitioner/Plaintiff and, to his knowledge, it remains in the possession of the City of Carmel. ·

12 11. Petitioner/Plaintiff, together with his wife, Karen Mcinchak, own and operate a

13 private business engaged in showing, breeding and sales of oriental shorthair cats. Karen

l4 Mcinchak is, and at all relevant times was~ an internationally-recognized expert certified by

15 the International Cat Association to serve as a judge at cat shows, a busines·s in which she is

16 regularly engaged. Karen Mcinchak is not now, and never has been, an employee of the City

17 of Carmel. Nevertheless, all of the business records, archived photographs, contacts and . .

18 documents necessary for their cat -showing and breeding business were stored on

19 Petitioner/Plaintiff's home computer and wer~ taken from their home by agents of the City of

20 Carmel on June 5, 2013. The home computer and business documents were neverreturned,

21 C<!using irreparable damage to the~ business and loss of irrepl~ceable archived photographs

22 and other busmess and personal data unrelated to the City of Cannel.

23 12. At the same time on June 5, 2013 agents of the City ofCannei including

24 Respondent/Defendant Susan Paul notiP,ed Petitioner/Plaintiff that he was placed on

25 administrative leave pendin? investigation of criniinal charges against him. No criminal or

26 other charges have ever been filed and, to Petitioner/Plaintiff's knowledge, neither the Cannel

27 Police Department nor any other law enforcement agency has requested the filing of any

28 criminal charges against Petitioner/Plaintiff, Steven Mcinchak.

STONER, WELSH AND SCHMIDT

ATTORNEYS AT LAW!

Mcfudw.k v. City of Carmel-by-the-Sea, et al. Verilled !'etitim:; foJr Vi?r.it of M:ai11d:am1..m ;omd ComphiR,;

P~g,~5 "f1?


13. The allegations against Petitioner/Plaintiff by the City of Carlllel an:i false. P1ior

2 to fue·June 5, 2013 search of his home and seizure of his property, Petitioner/Plaintiff had no

3 knowledge or notice of any allegations against him by the City of Cannel. To date,

4 Petitioner/Plaintiff has never received notice of charges from the City of Crumel.

5 Nevertheless, under threat of immediate discharge for insubordination he was directed to

6 appear at a mandatory investigative interview conducted by an attomey representing the City

7 of Crumel w~thout any opportunity to review, respond to or to rebut charges, or to review any

8 evidence of any of the allegations of 1vrongdoing made by the City of Cannel against him

9 which have been widely published and republished throughout the community.

10 14.. Agents of the City of Cannel made the false allegations of criminal conduct and

11 work-related inisconduct against Petitioner/Plaintiff and disclosed confidential personnel

12 :informatioJ+ of and concerning him to other employees of the City of Carmel, to elected

13 officials, to news media, to reporters and to the general public. Such false a11d defamatory

I4 allegations, including ·allegations of criminal conduct, irreparably damaged

15 Petitioner/Plainti:f:f's reputation in his profession, his employment and his com111unity, violated

16 bis piivacy, impaired his contract of employment, and violated his liberty interest in his

17 employment, all in violation of his right to due process of law under the Constitution of the

18 State of California, and in violation of California law.

19 · 15. Since Petitioner/Plaintiff was placed o:ri involuntary leave of absence on June 5,

20 2013 to the present time Petitioner/Plaintiff has" been prevented from performing hls job

21 duties, retrieving hls personal property, or accessing his home and office computers.

22 Petitioner/Plaintiff has been prevented from pursuing his professional occupation and

23 livelihood, all without cause, notice or hearing and in violation of his constitutional rights to .

24 due process oflaw, stigmatizing him to the point that he will be incapable of secur!llg

25 comparable future employment, all to his daiilage as alleged herein.

26 16. Petitioner/Plaintiff is 62 years of age. Petitioner/Plaintiffis informed and

27 believes and thereon alleges, that he is one of at least seven long-term employees over the age

28 of 40 years who have been terminated, placed on involuntary leave of absence pending an

STONER, WELSH II

AND SCHMIDT I ATTORNEYS AT lAW I

Mdnchak v. Ciky of CarmrcHJiy-t!le-Sea, et al. ';'erLfied P~~tfltioEK fu.Jt '~?VrrH: oafl\f~u1~21rrr~~s "2~1t1il Co,n1plaint


investigation of allegations of nrisc~mduet, placed Wlder disciplinary investigation by the City

2 of Carmel or forced to resign since on or about March 1, 2013. The City Administrator and

3 other agents of the City of Crumel have instituted a pattern and practice of discrimination

4 based on age causing a disparate impact on older employees which is continuing in violation

5 of California law. Petitioner/Plaintiff has also been subjected to dispru·ate treatment because oj

6 his age. He has never been convicted of any c1ime ofmQral turpitude. Yet, Petitioner/Plaintiff

7 is informed and believes that a female employee. who is more than twenty years younger than

8 himself was convicted of welfare fraud during her employment ·with the City of Carmel as its

9 Finance Specialist without suffering any discipline, discharge, involuntary leave of absence or

10 investigation of wrongdoing. On May 16,2014 Petitione1iPlaintifffiled a Complaint of

ll Di~c1imination with the California Department of Fair Employment and Housing against the

12 City of Carmel-by-the-Sea and responsible individuals based upon discrintination against him

13 because of his age in violation of the California Fair Employment and Housing Act at

14 Government Code Section 12900 et seq., which remains under investigation.

15 Petitioner/Plaintiff will seek leave to amend the Complaint upon ~eceipt of Notice of Case

16 Closure and Right to Sue from the California Department of Fair Employment and Housing.

17 17. On, or about December 4, 2013 Petitioner/Plaintiff duly subnlitted a Notice of

18 Government Claim to the. City Clerk of_ the City of C~nnel-by-the-Sea. On Janmuy 9, 2014

19 Respondents/Defendants City of Carmel-by-the-Sea rejected Petitioner/Plaintiffs <:Jovernment

20 Claim. A copy of the Notice of Rejection of Claim is attached as Exhibit C and incorporated

21 herein. Petitioner/Plaintiff has exhausted, or attempted to exhaust, all ava~abfe administrativ~

22 xemedies.

23 18. The actions and course of conduct of Respondents/Defendants and other agents

24 of the City of Carmel, as alleged herein, constitute arbitrary and capricious conduct within the

25 meaning of California Government Code Section 800, and intentional unlawful conduct in

26 yiolaiion of California and federal law, and the California and United States Constitutions.

27 Ill

28 Ill

STONER, WELSH

AND SCHMIDT ATTORNEYS AT rAW

Mcllil.cllak v. City of Carmd-by-tl~e-Se~, et al. ""if erilled PetlDolil f.n·14 \l/rit of l\1a!Jldllii11US 2ncl ~::;J·mpl:ah1l1:

J?'~ge 7 o:? 1~1


2

3

4

FIRST CAUSE OF ACTION Petition for '\11/:rit of Mandamus:

Performance of Ministerial Duty (CCP Section 1085) (Against An Respondents/Defendan-ts in their Official Capacities)

19. Petitioner/Plaintiff incorporates by reference each and every allegation of the

· 5 Common Facts in paragraphs 1 through 18 as though fully set forth.

6 20. At all times relevant herein Respondents/Defendants City of Cam1el and its

7 agents had a clear, present and ministerial duty under the Constihltion ofthe State of .. - '

8 California to refrain froni deptiving Petiiioner/Plaintiffofhis liberty interest in his . .

9 employment by threatening to institute disc~plinaty action based on false charges that impair

lO Petitioner/Plaintiff's reputation for honesty and morality and his standing and associations in

11 the community. These false allegations are denied by Petitioner/Plairitiff. The false

l2 allegations were publicly disclosed by the City of Cannel, which stigmatized and officially

13 branded Petitioner/Plaintiff to the point that he is n9t free to seek other employment, to pursue

14 bis professional occupation, or even to volUnteer his services in the coinmunity.

15 21. At all times relevant herein Respondents/Defendants City of Cannel and its

16 agents had a ministerial duty under the Constitution of the State of California to retain .

17 Petitioner/Plaintiff in his employment with the City of Cannel in the absence of good cause to

18 tenninate or suspend hi:m."involuntarily, and to-refrain from depriving Petitioner/Plaintiff of

19 Iris property and his property interest in his public employment without notice, a 'Statement of

20 reasons, a copy o:(the charges and ·of all materials on which the proposed action is based, and

21 the right to a hearing within a reasonable time. A year or more is not a reasonable time.

22 22. At all times relevant herein Respondents/Defendants City of Ca1mel and its

23 agents had a clear, present and ministerial duty under the PersolUlel System Ordinances of the

24 City of Cannel-by-the-Sea at Section 2.52 .375 to comply with the procedures described in the

25 Personnel Syste:i:n Ordinance at_ the eailiest time practicable and to refrain fi:om placing

26 Petitioner/Plaintiff on involuntary administrative leave of absence without good cause to

27 believe that he is guilty ·of extreme conduct which warrants disciplinary action and imminently

28 threatens to seriou~ly dis111pt the City service.· On June 5, 2013 agents of the City ofCam1el

STONER, WELSH

AND SCHMIDT ATTORNEYSAfLAW 1

t:)

li'fdncha!c v. City of Carmel-by-the-Sea, d a!. Verified Ji''etition fer '.V:rit of i\'Ia!nd::!imus mid Comphint

JP?.ge 3 of ):9


placed, and now continue to maintain, Petitioner/Plaintiff on administrative leave without

2 good cause, without investigation and without any evidence of grom1ds to believe that he is

3 guilty of conduct which warrants disciplinary action. A year or more is not the earliest

4 practicable time for the City to comply with its own Ordinances.

5 23. At all times relevant herein Respondents/Defendants City of Carmel and its

6 agents had a :ministerial duty under the Constitution of the State of Califomia to protect

7 Petitioner/Plaintiffs right to privacy, as specifically guaranteed by Axticle I Section 1 of the

8 Constitution of the State of Califomia.

9 24. At all relevant times the City of Cannel and its agents have been able to perform

10 their nrinisterial duty in accordance with the law. Petitioner/Plaintiff is infonned and believes,

11 and thereon alleges, that notwithstanding such ability and despite Petitioner/Plaintiffs

12 demand for performance, Respondents/Defendants have refused, and continued to refuse, to

13 reinstate Petitioner/Plaintiff or to pennit him to perform his duties as Information Systems

.14 NetWork Manag~r for the City of Cannel, resulting in the unlawful suspension from his

15 employment.

16 25. Petitioner/Plaintiff has exhausted or attempted to exhaust any and aU

17 . administrative remedies available to him. Petitioner/Plaintiff has no plain, speedy or adequate

18 remedy at law to red;ress the acts complained of herein, other than this Petition for Writ of

19 ·Mandate and other relief compelling Respondents/Defendants to reinstate Petitioner/Plaintiff

20 to his job duties as Infonnation Systems Ne~ork Manager, and to cease giving force and

21 effect to any policies, contracts, documents or actions which deprive Petitioner/Plaintiff of his

22 liberty and pr~perty, together with an award of damages and other relief to which

23 Petitioner/Plaintiff is entitled by law.

24 26. Petitioner/Plaintiff has incurred, and will continue to incur, attorneys fees and

25 costs. The acts of Respondents/Defendants City. of Carmel and its agents were discriminatOly,

26 arbitrary, capricious, taken in bad faith and contrary to the public interest. Petitioner/Plaintiff

27 is entitled to recover attomeys fees and costs under Governm:ent Code Section 800, Code. of

28

l STONER, WELSH I AND SCHJ\1IDT ~

ATTORi\'EYSATIAW ~~

Civil Procedure Section 1021.5 and other statutory or contractual basis.

Mcllichak v. City of C21nneH-by-the-l:ka, et at ·veJ.dJiedl2?-etitf.on for ~th:at of:f.>'lar~ii~r::lu:3 and Co~tcftplatr~[

l?&ge. gt ::rf 19-


2

3

4

5

6

7

-wHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.

SECOND CAUSE OF ACTION Petition For 'Vrit of Mandai-.e: Abuse of Discretion

(Against All Respondents/Defendants in their Official Capacities)

27. Petitioner/Plaintiff incorporates by reference each and every allegation

contained in paragraphs 1 through 26 as though fully set forth.

28. To the extent Respondents/Defendants retained any discretion concerning

Petitioner/Plaintiffs employment, Responde~ts/Defendants abused that discretion .by the 8

actions complained of herein, including but not limited to pla!)ing and maintaining 9

Petitioner/Plaintiff on involuntary leave of absence for approximately one year or more 10

without cause, notice or hearing, making false and defamatory allegations of and concerning 11

.Petitioner/Plaintiff, confiscating Petitioner/Plaintiff's property, discriminating against 12

Petitioner/Plaintiff because of his age and depriving Petitioner/Plaintiff ofhls liberty interest 13

in his employment, as alleged herein. The actions of the City of Cannel and its agents were 14

arbitrary, capricious, unreasonable and/or a prejudicial a~use of discretion. 15

16

17

18

19

20

21

22

Respondents/Defendants' abU;se of discretion has deprived Petitioner/Plaintiff of his

employment, his reputation and his future means of livelihood.

WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.

TEllRD CAUSE OF ACTION Breach of Written Contract of Employment

(Against Respondent/Defendant Employer Only)

· 29. Petitioner/Plaintiff incorporates by reference each and every allegation

23 contained in paragraphs 1 through 28 as though fully set forth.

24 30. Pmsuant to the Employment Agreement, Respondents/Defetidants City of

25 Carmel agreed that th~ City of Cannel could tenninate Petitioner/Plaintiff's employment for

26 cause without his consent only in the event that Petitioner/Plaintiff is convicted of a felony or

27 other crime involving moral turpitude or any offense involving a violation of his official

28 duties or if it is determined by the City Administrator that Petitioner/Plaintiff misappropriated

STONER, WELSH

AND SCHIVITDT

ATfORNEYSATLAW tl

Me!ncl:utk v. C.irty of CanJ;lel-by-the-Sea, et aL . \l,e;ti!1ed JP'et~ti;c.n for '.1f;1rit <L•flVKan.,,diaRlliHlS anif C4J.mphdnt

f's:ge :~0 ~uf 19'


1 public funds, comrillngled public fbnds with personal funds, engaged in willful corrupt

2 conduct in office, or conducted himself :in a manner to be detenllined as willful conduct that

3 constitutes misconduct according to the City's personnel rules. Petitioner/Plaintiffhas not

4 engaged in any such conduct, nor has he been charged or convicted of any crime, nor has the

5 City given notice or produced any evidence of such conduct.

6 · 31. ·Respondent/Defendant City of Carmel breached the Employment Agreement by

7 wrongfully placing and maintaining Petitioner/Plaintiff on involuntary leave of absence since

8 June 5, 2013, by making false charges against biro, by failing to notify him of charges against

9 him and by failing to conduct or: complete an investigation of its charges against

10 Petitioner/Plaintiff in a timely manner, by wrongfully failing and refusing to reinstate

11 Petitioner/Plaintiffto his employment as Information Systems Network Manager, and by

12 impairing Petitioner/Plaintiff's contract, as alleged herein.

13 32. As a direct and proXimate result of Respondent/Defendant's breach and

14 impahment of contract, Petitioner/Plaintiff has suffere9. and continues to suffer substantial

15 . losses in earnings, future earnings and employment benefits, all to Petitioner/Plaintiffs

16 damage in a sum not yet ascertained. Petitio:q.er/Plaintiff will seek leave to amend this

, 17 complaint to state the ammmt when jt is ascertained, or according to proof at trial.

18 WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.

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25

26

27

FOURTH CAUSE OF ACTION Defamation

(Against All Respondents/Defendants)



34. Petitioner/Plaintiff is informed and believes that Respondents!befendants, and

each of them, by the acts alleged herein, conspired to and did negligently, recklessly and

intentionally cause excessive and unsolicited mtemal and external publications of defamation

of and concerning Petitioner/Plaintiff to third persons and to the community. These false and ·

defamat01y statements included express and implied accusations that Petitioner/Plaintiff, 28

1 committed crimes, that he violated City policies,. that he ~as a poor p.~rf~1mer, that heM

STONER, WELSH h'l:cfuchak v. Cu:-_y m Carmel-!Jy-tb.e-c:>r:a, e6: al. AND SCHMIDT t' Verified I'etiti()ll fGl" Wlfit af fd2i1d:?m\].S 8T1Iii Comp Raint ATTORNEYS AT LAW Pa.ge H uJ l~'


1 deserved disciplinmy aci.ion, that he was incompetent, and that he was dishonest. All of these

2 statements are false.

3 35. The precise dates of these publications are not known to Petitioner/Plaintiff, but

4 were discovered within the past year. The_publications were false. Publication by

s Respondents/Defendants was outrageous, negligent, reckless, intentional and malicious.

6 Petitioner/Plaintiff is informed and believes that the intentional publications by

7 Respondents/Defendants, and each of them, were and continue to be foreseeably published . .

s and republished by Defendants/Respondents, their agents and employees, recipients, news

9 media and others in the community. Petitioner/Plaintiff hereby seeks damages for all these

10 publications and all foreseeable re-publications discovered to the time of triaL

11 36. At all times relevant, Respondents/Defendants, and each of them, conspired to

12 and did negligently and intentionally cause excessive and unsolicited publication of

13 defamation of and concerning Petitioner/Plaintiff to third persons who h(l.d no need or desire

I4 to know. Those third persoris to whom Respondents/Defendants published this defamation are

15 believed to include, but are not limited to, other agents and employees ofthe CityofCarinel

16 and persons in the co:mlnunity, all of whom are known to defendants, but unknown at this time

l7 to Petitioner/Plaintiff.

18 37. The defamat01y publications consisted of oral and written, knowingly false and

19 unprivileg~d communications, tending directly to injure Petitioner/Plaintiff, bis employment,

20 his personal business and his professio~al reputation. These publications included false and

21 defamatory statements in violation of California Civil Code Sectiqn45 and 46 (1), (3) and (5)

22 by expressly and impliedly asserting that Petitioner/Plaintiff should be charged with a crime,

23 that Petitionyr/Plaintiff engaged in violations of policy, was incompetent, a poor performer·

24 and other allegations as alleged above, all of which directly injure Petitioner/Plaintiff in

respect to his profession, trade and business, imputing to him general disqualification and 25

26 other allegations having a natural tendency to injure Petitioner/Pla:illtiff in his employment,

27 profession and business. The statements of and c·onceming Petitioner/Plaintiff are defamatory

28 per se.

STONER, WELSH

AND SCI-JMIDT ATTOlli'!EYSATLAW;

l

Ivfcfuchak v. City of Carmed-hy-ili.e-Sea, eli: al. 'Verified J?eth:ian fnr \7r;7.rrii ·:J!f .IV1al1ldam(!.S L'ld rCom.pRzjlJit

1C1Lt;6 12 e;;f ~~9


38. Petitioner/Plaintiff is informed and believes that these false and defamatory per

2 se statements will continue to be published by Respondent/Defendants, and each of them, and

3 will foreseeably be republished by the re.cipients, all to the ongoing hann and injury to

4 Petitioner/Plaintiffs employment, business, professional and personal reputations.

5 Petitioner/Plaintiff also seeks redress in this action for all foreseeable re-publications,

6 including his own compelled self publication ofthese defamatory statements.

7 39. None of Respondents/Defendants' defamatmy publications about

8 Petitioner/Plaintiff are true.

9 40. The defamatory meaning of all of the false and defamatory statements and the

10 reference to Petitioner/Plaintiff were understood by those third person recipients and other

11 members ofthe community, whose identities are known to Respondents/Defendants, but

12 unknown to Petitioner/Plaintiff at this time. The defamatmy statements were understood as

13 assertions of fact, and not as opinion.

14 41. None of the false defamatory per se pl,lblications as set forth herein were

15 pdvileged. Any alleged conditional privilege was abused because Respondent/Defendants

16 negligently, recklessly and intentiona11y published defamatory statements in a manner

17 constituting malice since the publications, and each of them were made with hatred, ill. will,

18 and an intent to vex, harass, annoy and injure Petitioner/Plaintiff, to justify the illegal actions

19 of Respondents/Defendants and to cause further damage to Petitioner/Plaintiff's professional

20 and personal reputation, to cause him to be fired~ and to justify his firing.

21 42. Each of the defamat01y publications by Respondent/Defyndants, and each of

22 them, were made with knowledge that no investigation or evidence supported the

23 unsubstantiated and obviously false statements. Resp~ndents/Defendants published the

24 statements knowing them to be false, and Respondent~/Defendants were negligent to such a

25 degree as to be reckless. Respondents/Defendants had no reasonable basis to believe the

26 statements to be true, they in fact knew the statements to be false, and they published them to

27 individuals with 110 need to know. No privilege existed to protect any of the

28 Respondents/Defendants from liability for the false and defamatmy publications andre-

STONER, WEISH AND SCI-llvHDT ij ATTORNEYS AT LAW r

.1

Mcinchak Y. City of Carmel-by-the-Sea, eta!. 1! ernfier[] p,,2[ititrn fur '~.~'Irit tJf 1Vi.3Dtd2ITI:liS ~rrd Complafat

P~~g,-:_ 13 of ~~3


I· publications.

2 43. As a proximate result of the publication and re-publication of defamatory

3 statements by Respondents/Defendants, and each of them, Petitioner/Plaintiff has suffered

4 injmy to his business and professional reputation, and has suffered embarrassment, retaliation,

5 severe emotional distress, shunning, anguish, fear, loss of employment and employability, and

6 significant economic loss, including loss of past and future wages, loss of health. insurance

7 and other benefits, all to Petitioner!P1aintif's economic, emotional and general damage in an

8 amo~t according to proof at trial.

9 44. Respondents/Defendants, and each of them, committed the acts alleged herein

10 recklessly, mal~ciously, fraudulently and oppressively, with the wrongful intention of injuring

11 Petitioner/Plaintiff, and .for the .it"Uproper and evil motive amounting to malice, as described

12 above. Respondents/Defendants' conduct abused and/or prevented the existence of any

13 conditional privilege, and was done with reckless and conscious disregard of

14 Petitioner/Plaintiffs rights. AU actions of Respondents/Defendants and agents and employees

15 of the City of Carmel were known, ratified and approved by Respondents/Defendants, and

16 each offuem. Petitioner/Plaintiff is entitled to recover punitive and exemplary damages from

17 individual Respondents/Defendants Stilwell, Paul and Does one-through 50, and each of them,

18 in an amount based on their wealth and ability to pay, according to proof at trial.


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27

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STONER, WELSH

AND SCHMIDT

.NrTORNEYS ATIAW!

FIFTH CAUSE OF ACTION Intentional Infliction of Emotional Distress

(Against All Respondents/Defendants)


contained in.paragraphs 1 through 44 as though fully set forth.

. 46. The conduct alleged above was extreme and outrageous and constituted an

abuse of the authority and position of Respondents/Defendants, and each offuem. In addition, . .

on or about June 5, 2013 agents of Respondents/Defendants City of Carmel, including

Respondent/Defendant Susan Paul, entered Petitioner/Plaintiffs home, refused to leave, and

par!.icipated in confiscating Petitioner/Plaintiff's property. In doing so Respondents/

Mdncbak y, City of Carmel-l'ily-t!J.e-Sea, et at. ·~'e:dfiedi .Petftinn lfor Vlrit o·f J:/Caxv12,IL-n.tlla 2J:Ild Cc-r&p.I.afnt

ltg~e 14 ~f l9'


1 Defendants acted outside of the course and scope of their employment with the City of

2 Cannel. Respondents/Defendants' conduct is intended to cause severe emotional distress, or

3 was done in conscious disregard of the possibility of causing distress to Petitioner/Plaintiff.

4 Respondents/Defendants' conduct exceeded the inherent risks of ell).ployment and is not the

s sort of conduct normally expected to occur in the workplace.

6 47. Respondents/Defendants, and each of them, abused their positions of authority . .

7 toward Petitioner/Plaintiff, and engaged in conduct intended to humiliate and demean

s Petitioner/Plaintiff and to convey the message that Petitioner/Plaintiff was powerless to

9 defend his rights.

10 48. Respondents/Defendants' conduct as ·alleged above did, in fact, cause . .

11 Petitioner/Plaintiff to suffer extrem~ emotional distress. As a proximate result of

12 Respondents/Defendants' conduct, Petitioner/Plaintiff suffered embarrassment, anxiety,

13 humiliation and emotional distress. Petitioner/Plaintiff will continue to suffer emotional

14 distress in the :future, causing physical and emotional injury and damages, as alleged above.


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21

22

SIXTH CAUSE OF ACTION . Negligent Infliction of Emotlonal Distress

(Against :All Respondents/Defendants)

49. Petitioner/Plaintiff incorporates }Jy reference each and every allegation


50. Respondents/Defendants, and each ofthem, owed a duty of care to

Petitioner/Plaintiff as ·an employee of the City of Crumel to provide Petitioner/Plaintiff a

workplace free from unfair treatment, discrimination, harassment, retaliation, defamation and 23

24

25

26

27

28

STONER, WEI.Sl:r

AND ScHMIDT II ATTOR:NEYSATLAW il

abuse of Respondents/Defendants' positions of authority toward him. Respondents/

Defendant's conduct exceeded the inherent risks of employment and wa~ not the sort of

conduct normally expected to occur in the workplace. If the conduct of Respondents/ .

Defendants, and each of them, as alleged above, and their agents and employees was not

intentional, it was negligent and Petitioner/Plaintiff is thereby entitled to general damages for . .

the negligent infliction of emotional distress.

lVIcfiD.chak v. City of Carmel.-!Jy-H!.e-Sea, et at 1lr;Jti .. Ced ]?',~litJi,D~ fot: '7lrit of IVfand&lJJ,lt& and C~D~mpEf~t.lt

J?:8 ge.15 of 19


1 5 I. Respondents/Defendants, and each of them, knew, or should have known, that

2 their conduct would cause Petitioner/Plaintiff extreme emotional distress. As a proximate

3 result of Respondents/Defendants' negligent conduct, Petitioner/Plaintiff suffered and will

4 continue to suffer extreme humiliatio~ embarrassment, mental anguish and emotional

5 distress, causmg injury and damages as alleged above.

6

7

8

9

WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.

SEVENTH CAUSE OF ACTION Declaratory Relief

(Against All Respondents/Defendants in their Official Capacities)

52. Petitioner/Plaintiff incorporates by reference each an~ every allegation

10 contained in paragraphs 1 through 51 as though fully set forth.

11 53. California Code of Civil Procedure Section 1060 authorizes this court to grant

12 any person interested under a written instrument or contract to bring an action in Superior

13 Court for declaration of his rights or duties, and· to seek other relief. There is an actual and

14 present controversy between Petitioner/Plaintiff Steven Mcinchak and Respondents/

15 Defendants City of Carmel, and its agents, which affects the rights and obligations of

16 Petitioner/Plaintiff.

17 54. Petitionei!Plaintiff contends that Respondents/Defendants, and each of them,

18 breached his contract of employment, violated their legal and constitutional duties, and - .

19 engaged in unlawful and unprivileg~d conduct which defamed Petitioner/Plaintiff and

20 irreparably damaged his reputation, his employment, and deplivedlrim of his liberty.

21 Petitioner/Plaintiff further contends that the acts of Respondents/Defendants were

22 discriminatory because of his age and violated his right to due process secured by the

23 California_ Constitution by placing and maintaining Petitioner/Plaintiff on involuntary leave of

24 absence without cause, notice or hearing, and that Respondents/Defendants' conduct also

25 resulted in an unconstitutional impairment of Petitioner/Plaintiff's contract of employment.

26 Respondents/Defendants, and each of them, deny these contentions.

27 55. Petitioner/Plaintiff requests the court to declare the rights and duties of the

28 parties in this action, and specifically to declare that Petitioner/Plaintiff has the right to

STONER, WELSH

AND SCHMIDT

ATTORNEYS AT LA·v.r :.,

l\1cinchak v. Cii:y of Carmel-by-the-Ses., et al. "i;lerri£ed. JPetitf~Jn fDl"' VVrft ~9fl~v1a::~u1:umus ~Ht,d CoBplafuft:

Page 15 ,Gf 19


reinstatement as the Information Systems Network Manager for the City of Carmel pursuant

2 to his contract of employment and pursuant to the Constitution and laws of the State of

3 California, together with all damages proximately caused by Respondents/Defendants'

4 conduct as alleged herein.

s ·WHEREFORE, Petitioner/Plaintiff prays judgment as follows:

6 PRAYERFORRELIEF

7 Petitioner/Plaintiff prays judgment as follows:

8 1. For a Writ of Mandate cor.npell:ing Respondents/Defendants City of Carmel and

9 each of them, their agents and employees, and all persons acting under them or on their behalf

1 o to do the following:

11 A. Reinstate Petitioner/Plaintiff to his employment with the City of Crun1el

12 as Infonnation Systems·NetworkManager;

13 B. Cease giving force and effect to any contract, rule, policy or other

14· documents or taking any actions which dep1ive Petitioner/Plaintiff of his liberty or property or

1s Ius rightto due process oflaw; ·

.16

· C. Return to Petit1oner/Plaintiffpossession all property.owned by him

17 and/or his family which is in the possession of the City of Carmel, its Administrators, agents

18 or anyone acting on their behalf;

19 2. For a money Judgment for loss of employability, mental pain and anguish and

20 en10tional distress according to proof;

21 3. For general, presumed and special damages based upon damage to

22 Petitioner/Pla:intiff's personal reputation:, his professional reputation, and his business;

23 4. For economic damages, including compensatory damages for lost past and

24 future wages and employment benefits, and any other economic injuiy according to proof;

25 5. For an award. of punitive damages against any and/or all individual

26 Respondents/Def~udants;

27

28

STONER, WELSH AND SCHMIDT

ATTORNEYS AT LAW ,!

6.

7.

For-reasonable attorneys fees .under any applicable statutory or contractual basis;

For an award of:i:Iiterest,.including prejudgment interest, at the legal rate;

lVl:cinchak v. City of Carmel-by-the-Sea, et al. ""-/erified Pefit!on for V\1rit ofiVIL~ndamus .and f~:tl'n1~p531int

JEr-"ge 17 c,f 19


l

2

8.

9.

For costs of suit; and

For such other and further relief as the court deems proper.

3 JURY TR.lAL DEMANDED

4 Plaintiff demands trial of all issues by jury.-

5

6 Dated: June 3, 2014

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STONER, WELSH AND SCHMIDT I ATTORNEYS AT LAw I

STONER, WELSH & SCHMIDT

MICHELLE A. WELSH Attorneys for Petitioner/Plaintiff, Steven Mcinchak

Mc!nclhak v. City of Carmel-by-the-Sea, et al. Verified Petition for Wr)t of Momd2mus and Compl2iint

Pag~~ IB of I9 1

. !


2

3

4

5

VERIFICATION BY PARTY

(Code of Civil Procedure section 2015.5)

STATE OF CALIFORNIA, COUNTY OF MONTEREY

6 I am the Petitioner/Plaintiff in the above entitled action or proceeding. I have read the

1 foregoing VERIFIED PETITION FOR WRIT OF MANDAMUS (CODE OF CML

s PROCEDURE SECTION 1 085) AND COMPLAINT FOR DECLARATORY JUDGMENT,

9 BREACH OF CONTRACT, DEFAMATION.AND INTENTIONAL AND NEGLIGENT

10 INFLICTION OF EMOTIONAL DISTRESS and know the contents thereof, and I certify that

11 the same is true of my own knowledge, except as to those matters which are therein stated

12 upon my information or belief, and as to those matters I believe it to be true.

l3 I declare under penalty of peljury under the laws of the State of California that the

14 foregoing is true and con·ect.

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SrmmR, WELSH AND SCHMIDT

ATTORNEYS AT LAW .I

Executed on_J;_'l.-1._..-ve..-___ "1 _ _, 20JI.4, at Pacific Grove, California.

· Steven Mcinchak P etitio:n er /Plain tiff

Mc!ndwk v. City of Cannel-loy-the-Sea, et :o>l. Verified Petitioll for Vhit ofl.\1al!d?,mt•~ and Compl::.int

J0 sg·~ 19 of 19


CITY OF CA_RN[EL-.llY-TI-IE-SEA

INFORlVlA'"fJ.ON SYSTEMS/NETWORK MANAGER

Definition

Under adininistrative direction, manage the City computer system development and operations activities; provide professional assistance to City staff in ]nfonnation systems development analysis. Assist in management of all information system activities throughout t11e City by coordinatDJg,plann:in.g, and evaluating operation of the system, to include systems anaJysis, progra:mmjng, computer operations, network administtatiM and management, and equipment and software acquisitioru, in~llation a11d repak

SupelrVision Received And Exercised

The Assistant City Admittistrato:r or hjs/her designee provides g~neral supervision.

Responsibilities include direct supen.riSion of any clerical positions assigned to help on an as· needed basis. This position will also coordinate technology tasks with the Library's Automated Systyms i echnidan.

Examples Of:Duties ..

Design> acquire~ instalJ, custonri.ze, document and maintain all hardware a:nd software.· Provide a point-of-contact for vendor support to departments. Maintain liaison with equipment manufacturers and vendors to ensure satisfactory support,

M~age and provide direct technical and administrative supportforthe oper.atkm of the area Novell networks Citywide. · ·

Receive. and prioritize requests for computer application deveJopment and assistance and oversee the implementation process.

Resolve service complaints and implement corrective action on a timely basis. Repair or retutn defective hardwate/softwar.e or coordination with vendors for replacement of defective equipment/sof.twate.

Evqluate and reconunend software for purchase and/or programmers who provide services to the City.


Cjly of Cannel-hy-tbe-Sea Jpfurmation System,/Network M anagcr (continued)

Examples Of Duties (continued)

Senre as liaison between the City and outside agencies in all matters pertaining to information systems incinding database administration, computer operating systems, networks, and Geo-graphical 'lnfonnation Systems.

Serve as system supervisor for managing the computer system including network security, passwords> new user configurations, and clmnges to accommodate individual and departmenta1 needs.

Develops, recomt11.ends,justifies a..1.d monitors the annupl budget f9tthe ciiywide infomiation servi~es program.

Drafts, recomme;nds, and implements policies and· p1·ocedures r¢1ated to tb,e use .of the citywide info:rmati_on system.

Insures proper maintenance, r~palr, and servicing of equipment.

. AB time pem:llts :rod as prioritized by management develops and programs softw.are systems for <:;:ity and departm6nta1 applications and ?vetsees implementation of these programs.

Provide 24 hour support to emergency services (Police and Fire) con1puter operations with tidle1y response (preferably 1 hom). Assist in coordination of use ofthe Computer System in _the event of an emergency ahd develop disaster preparedness p1~ns as they relate to the

··computer system,

Maintains and t."!Pdates detailed citywide computer inventory.

Confers with users to identifY training needs and coordina.tes ttaining schedule(s). May conduct traiping as needs are determined.

Serve. as. Chairperson for Citywide computer user~ group,

. Keeps infonued regardin,~ qevelopments in computer technology and techhiques affecting_ City operat;ions and distribute pertinent information to departments and users.

Attends outside organization meetings and tr.auling seniinars as related to qtyneeds.

Examples Of Dn:ties (continued)

2


Ci-ty of Carn1e)-hy-the-Sea Information Sy>Jems·Nctwork Managtr (continued)

Provide monthly written and/or oral reports to management concerning the status ·of the computer system, overall system performance, and status of cwrent computer projects.

Maintai1)s avaiJability via phone. and pager. Makes anangements fDr computer system coverage when unavailable, i.e. vacations, seminars. ·

Maintains .accurate and complete records.

Other Job Related Duties

Perform related duties and responsibilities as !equired.

Job Related And. Essential Qualifications

,Knowledge of:

Novell NetWare operating systems, architecture, and topologies.

LocaJ and Wide Atea networking systems design, integration and management

Ethernet. ARCNet and X.25 protocols,

Microcomputer hardware troubleshooting, maintenance and network integration.

Microcomputer co!,llmunicatipns t~chnology including Bulletin Board Systems, Internet connectivity and TC'P/IP coll11nunications pro.tocols.

MicroSoft Windows)nstaHation, maintenan~~and trouble shooting on a WideAre~J, 'Network

WordPerfeet installation~ maintenance and trouble shooting on a Wide.Atea Network

Micmsoftapp!ications i.e., Office, Access, Excel; Presentations, Project, and other software applications whlc.h may be installed on a Wide Area Network. Various progri11U1IIing languages, :including Basic and PVX.

Municipal financial systems a11d budget preparatkm.

f\bility to:

Trouble shoot errors and quickly identifY the source as bemg Network, DOS, application or

3


C)ly of CarmeJ..JJ:y-tbc-Sea lnfonn~lion Sysrems/NetWD!k Mllnagct (continued)

hardware.

Design, write, and debug computer programs in a variety of progrm:urning languages and database systems.

Manage multiple priorities.

Communicate effectlve1y with users who possess a wideiy djverse experience level in all matters of computer automation. · ·

Communicate effectively .in written documents and orally with city staff, users and outsjde agency representatives. ·

Condu<;t fon:nal and informal training sessions.

Prepare written documentation and user$ guides for internal systems.

Deal effectively with Department Managers, City Staff and outside vendors.

Experience a.11d Training Guidelines: Any combinati07! equivalent to experience and training that l-WJU!d pro1iide lhe required

. knowledge; skills, a:ndabilitieswoy/d be qualifying. A typical way to obtain. the knowledge, skills, aJid abilities would be.:..

Experience:

5 years experience with increasing responsible professional work in Noye11 network _ad.t;ninistration m1d Managemvnt Information Systems.

Education:

Equivalent to graduation· from an accredited 4-year educational institution with a major course work in Application Programmlng, Business Data Process.ing, C.ompu.tex Science, or Management Information Systems.

Note: At the sole cliscr~tion of the Cityi extensive, .applicable experience may be substituted for 2 years of requited edupation.

License ()l' Certificate:

Possession of, or ability to obtain, an appropriate, valid driver's liqense.

4


Ci?y of Carmel-&y-the-Sca fn fonnation Systems!Net\vork Man~gcr (continued.)

Possession of a certificate as a Certified Network Admnustrator, preferred.

Special Requirements~ Essential duties require the following physlcalskil!s a/14 work environment."

Ability to sit, stand, walk, kneel crouch, stoop, squat, and lift 50 lbs.; ability to travel to different facilities, availability for emergency on-call work durirlg non-worldng hours; abxlity to work in a staudard office environment

Effecth'e Dnte; Revisions E]feetiv""

March l!J97 July 1,1998

5


EMPLO'f1~~rl' Ji_G-:REE.MENT of CaxmeJ_-by-·the-Sea

Il~ORMATION SYSTEMS NETWORK !~{AGER

THIS AGREEMENT is between the CITY OF CARMEL-BY-THE-SEA (''CITY") and Steve Mcinchak ("EMPLOYEE") and is dated this 1st day of July 2005. '

1. EMPLOYEE has been employed as an Information Systems Netw·ork Manager for CITY since July 1_, l997.

2'. EMPLOYEE desires to accept the position of INFO~TION SYS,TEMS. NETWORK MANAGER and continue serving CITY in that capacity.

3 . The CITY ADMINISTRATOR, as appointing p01ver, apd Steve Mcinchak desire to agree in writing to the following terms and conditions for employment of Information Systems Network Manager.

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

. AGREEMENT

1. DUTIES

A. CITY agrees to employ Steve Mcinchak as Information Systems Network Manager of the City of Carmel-by-the-Sea to perform the functions and duties sp-ecified in the ordinances and resolutions· of the City, and to perform other legally permissible and proper duties and functions as the CITY ADMINISTRATOR may from time to time assign. · · ·

B. EMPLOYEE shall perform his duties to the best of his ab-ility in accordance with the highest protessional and ethical st~ndards of the profession and shall comply with all rules and regulations establ.ished by the City,

C. EMPLOYEE shall not , engage . in any _acti vi:ty r which is or · may become a conflict. of interest prohibited by the contract, or which may· create an incompatibility of. office as defined under california lal'>". Prior to perfonning any services under .this Agreement and a~nually thereafterr EMPLOYEE shall complete and file all disclosure forms required by la'v.

Page 1 of 7


El>iPLO~NT AGREEI~l'F.£'

c.i ty o£ C:ru..-mel ~by-the~sea

nwOBMAT!ON SYST.Elb-:{S 151ETiflORK M:A'NAGER

2. TEffi.l

A. This Agreement shall commence on July 1, 2005, and continue unless terminated by either party in accordance with the provisions set forth in Article D .. of this Agreement, or until terminated by death ox· permanent disabil'ity of EMPLOYEE.

B. EMPLOYEE agrees to remain in the exclusive employ of the CITY during the term of this agreement. However, EMPLOYEE may engage ln occasional teaching, writing, or consulting performed on ]i::MPLOYEW S time off so long as such activities do not either interfere with EMPLOYEE'S performance of his duties hereunder, or conflict with EMPLOYEE'S obligation to the CITY. _EMPLOYEE agrees that such activities are to be subject to prior appro~al of the CITY ADMINISTRATOR.

3 • !!Ot.JRS OF WORK

A. It is recognized that EMPLOYEE must devote a great deal of time outside normal pusiness hours to the business of the CITYr and to that ·end EMPLOYEE will be allowed to take reasonable leave time off as he ~hall deem appropriate during normal business hours. However, it is the intent of the CITY ADMINISTRATOR that EMPLOYEE maintain, whenever po~sible, normal CITY business hours.

4. RESIGNATION AND TERMINATION

A. EMPLOYEE may resign .<3,t any time upon providing CITY ADMINISTRATOR with at least thirty (30) days advance written notice of the effective date of re~ignation.

B. CITY ADMINISTR~:TOR may at ahy time terminate EMPLOYEE upon thirty (30} days a~vance written notice.

c. The parties recognize and a{firni that:

1) EMPLOYEE is an ~at will" employee whose employment may be tenninated by the CITY ADMINISTRATOR without cause or right of .appeal; and

2) There is no e.xprei3S or iiUplied p.romi.se made to EMPLOYEE for any form of conti:qued employment. ·T-his Agreement is the sole· and exclusive basis for an ernploymei'J.t relationship between EMPLOYEE and tha CITY.

5. SEVEAANCE PAY

Page 2 of 7


EMPLOYMENT AG:I:\El511E..¥\f'l' City of Carrn.el-by-the-See

Il~FO~ION SYSTEMS NElTWORK MANAG-ER

A. Except as provided in paragraph 5.B. of this Agreement, if EMPLOYEE is terminated by the CITY ADMINISTRATOR while still ·willing and able to perform the duties of Information Systems Network Manager, CITY agrees to pay EMPLOYEE a cash payment equal to four months o~ the then current, aggr~gate salary. Said cash payments may be paid, at the option of the EMPLOYEE in: 1) lump sum upon date of termination; 2) lump sum on January 1 of the calendar year following termination; or 3) fom;: equal monthly in~tallments. Such payment shall release the CITY from a~y further obligations under this Agreement.

B. In the event EMPLOYEE is tenainatect. because of his conviction of any felony, or any crime involving moral turpituder or any offense involving a violation of his official ctuties or if the CITY . ADMINISTRATOR determines that the EMPLOYEE has:· 1) misappropriated public funds; 2) comming~ed public funds with his personal funds; 3) engaged in willful corrupt conduct in office; or 4) conducted hi.:tnself in a manner to be determined as willful conduct that constitutes misconduct according to the CITY's personnel rules,.. the CITY shall have no obligation to continu·e employment of EMPLOYEE or to pay severance as set forth in paragraph 5.A. of this Agreement.

A. Effective July 1, 2005, the CITY agrees to pay EMPLOYEE $96,. 864.00 in salary per annum for his. services.

B. Salary is payable in installments at the same time as other ~p],oyees of the CITY are paid, and subject · to customary withholding.

C. The.reafte.J:;" .and subject to an evaluati·on of performance on the anniversary date hereofr the CITY ADMINISTRATOR may increase EM:PLOYEE'S compensation without the need to amend this Agreement.

1. AUTOMOBILE

A. The CIT¥ shall provide EMPLOYEE with a CITY vehicle or provide for a mileage allowance as needed per the cur·rent IRS mileage rate.

Page 3 Qf 7


~MPLOYMENT AGREID~~T

C~ty o£ Ca.r.mel~.by-the-Sea INFORMATION SYSTEMS NETflORK N:ANli.GE::R

0. SUPPLEMENTAL BE~F~~S

A. The CITY shall provide EMPLOYEE with the same type and extent of benefits a-s provided to the CITY' s other management employees as such benefits may be amend~d from time to time except for the following:

L The CITY shall contribute an amount not lE)ss th~m eighty-five percent (85%) of the full premium on behalf of the 8MPLOYEE and his qu_alified dependents for medical insurance available through the CalPERS CHOICE program for the term of this Agreement until and unless otherwise amel).ded between BMPLOYEE AND CITY.

2. The CITY shall continue t() provide dental and VJ.SJ.on coverage through the CITY'S current self-fund programs 1 until and unless otherwise amended between the EMPLOYEE and the CITY.

3. EMPLOYEE shall be entitled to accrue -vacation at a rate determined by his years of City service, subject to the City's M1,micipal Code se·ctions 2. 52. 625 th:cough 2. 52. p45, and 2. 52_. 655.

4. EMPLOYEE shall accrue eight ($) hours per month of sick leaver subject to the Carmel~by-the-Sea Municipa~ Code Sections 2.52.660 through 2.52.685.

5. EMRLOYEE shall receive 100 hours annual administrative leave per fiscal year.

B. With the above exceptions all other actions taken by the CITY ADMINISTRATOR relating to benefi·ts for executi ire management employees shal~ be considered actions granting the same benefits to EMP;LOY~E. As used herein, benefits may includ.e but are not limited to paid holidays, bereavement leave and general leave, · iife insurance, accidentai deat.h and disability insurance, vacation leave sell-hack optionr employer paid deferred compensation contributions, and participation in PERS w-ith employer paid contributions.

Page 4 of 7


E:t...n?LOThfENT lU~RE.EMJill':\IT

City of Car.me1-by-the~Sea !N'FORMJ!,.:t'ION Efi"Si'E.MS NE'l'WORR: ~.;;.ER

A. CITY ADMINISTRATORr or his designee, shall evaluate EMPLOYEE'S performance at least annually. As part of such annual performance evaluation the CITY ADMINISTRATORr or his designee, and EMPLOYEE shall set goals ant;l objectives for the ensuing year-

A. CITY ADMINISTRATOR agrees- to pay for reasonable CITYrelated business expenses incurred by EMPLOYEE in accordance with CITY policy.

A. CITY shall pa·y such pro"fessional dues 1 ;::llibscriJ?tions and memberships in such organi4ations necessary for EMPLOYEE to maintain professional relationsh:f.ps :(.n approp"riate national, regional, state and local associations desirable for continued professional growthr advancement and benefit to CITY.

12. liOTICES

A. 'Any notices requ~r~d by this Agreement shall· be in writing and either given in person or by first-class mail with the post<;:lge prepaid and addressed as follows:

TO CITY::

TO EMPLOYEE:

1.3. DJ:Sl?UTE RESOLUTIOlii

Rich Guillen City Administrator City of C.qrmel~by-the-sea city Hall J?.O. Dra'(ler CC Carmel-by-the-Sear CA ~3921 ·

Steve Mcinchak 27590 Via Sereno Carmel, CA 93923

~- Should either party to this Agreement bring legal action against the other (formal judicial procee:dings, ·mediation. or arbitration} the case $hall be handled in Monterey County, California, and the party prevailing in such action shall be entitled to a reasonable attorney's fee which shall be fixed by the

. Page 5 of 7


Eh!!?LOYJ:.m;l\rT AGREE'b!El{T Ci.ty of Ca:L'"11ttel~-by~the-Sea

INFORMATION SYSTEMS NET!ilOffii>: l~Jillt-GER

judge, mediator or arbitrator hearing the case·and such fee shall be included in the judgment together with all'costs.

A. This Agreement has been negotiated at arm's length anct between persons sophisticated and knowledgeable in the matters dealt with. in this Agreement. Accordingly, any rule of law (including Ca·lifornia Ci.vil Code §1654) or legal decision that would require interpretation of the ambiguities in this Agreement against the p-arty that has drafted it is not applicable and is hereby waived. The · provisions of this Agreement shall be interpreted in a reasonable manner to effect the'purposes of the parties in this Agreement. ·

A.. Upon request of EMPLOYEEr and subject to the provisions of California Government Code Sections 995.2 and 995.4, CITY shall defend EMPLOYEE in any civil action or proceeding brought aqainst him, tn his official or indiviqual. capacity or bothr on accoUnt of <'Pl. ac;t or omis;Sion .in the scope of his/her employment as an employee with CITY except for civil; criminal or administrative action initiated by EMPLOXEE.

16. ENTI!.U!: A~

A. Thi.s Agreement is the final expression of the complete agreement of the ·parties with respect to the matters specified herein and supersedes all prior oral or written understandings .. · Except as pre~;:cribed herein this Agreement cannot 'be modified · except by written mutual agreement signed by the parties.

A. This Agreement is not assignable by either the CITY or the EMPLOYEE.

A. In the even~ that any provision of this Agreement is held or determined to be illegal or V'oid by reason of final, nonappealable judgment, order or decision of a court having jurisdiction over parties, the remainder· o;f the Agreement shall

Pa,ge 6 of 7


El~LO'XJ~l,;rT AGBEEJY.lEl\'IT

City of Ca . .rme.l-by-the-Sea. . INFOru..ffi.TION" SYSTEMS 1.\'IETFifOR.:K MA.1ii11GE:R

remain in full force and effect unless the parts found to be void are vlholly inseparable from the remaining portion of the Agreement.

A. This. ~greement shall be executed simultaneously in tvto counterparts and each of which shall be de·emed an original~ but all of which together spall constitute one and the same instrument.

IN WITNESS WHEREOF this Agreement is signed and executed and duly held attested by the ·City Clerk; the CITY ADMINISTRATORr and EMPLOYEE.

ATTBST:

CITY/0! CARMEL-BY-THE-SEA

. J01Jc(!;wt!~ CITY OF CAfu~EL-BY-THE-SEA

~l!~~P~b CITY ADMINISTRATOR

Page 7 of 7


HIBIT C


January 9, 2014-

Steven Mclnchak · c/o Michelle Welsh Stoner, Welsh & Schmidt 413 Forest Avenue

CARL \VARPillN & COl\J:PANY

NOTICE OF REJECTION OF ClAIM

Pacific Grove, CA 939504201

Re: Insured Date of Loss Our File No.

: City of Carmel-by-the Sea · 6/5/13

: 1875773

Dear Mr. Mcfnchak,

Carl Warren & Company is the claims administrator for the City of Carmel-by-the Sea, relative to the above-captioned claim.

NOTICE IS HEREBY GIVEN that the claim which you presented to the City Council of the Carmel-By-the-Sea on December 4, 2013 was rejected on Janu(:lry 7, 2014.

WARNING

Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposrted in the mail to file a court action on this claim. See California Government Code Section 945.6. The six month time limit referred to in this notice applies only to cla!ms or causes of action which are governed by the California Tort Claims Act. Other causes of action, including those arising under federal law, may have different time limitations.

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.

AN EMPLOYEE-OWNED COMPANY

P. 0 .• svx 3975 1 \fila/nut Creek, CA 94598

?NN/.carlw<~rren.cor:; 1 T~:l: 925-674-4660 1 800-998-4763 1 Fax: 800-956-3999

C,". LicE:nse No. 26072~16


cc: Administrative Services Director ·


DECLARATION REGARDING MAILiNG

I, Jo Gelinas, DECLARE:

'1. I AM OVER 18 YEARS OF AGE;

2. I AM EMPlOYED BY CARL WARREN & COMPANY;

3. MY BUSINESS ADDRESS IS: PO Box 3975

· Walnut Creek, CA 94598

4. I AM NOT A PARTY TO THE WITHIN-MENTIONED PROCEEDING;

On .January 9, 20.14 I SERVE;D THE A IT ACHED NOTICE OF REJECTION OF CLAIM ON THE CLAIMANT BY PLACING THE NOTICE IN AN ENVELOPE, WITH US POSTAGE FULLY PREPAID, SEAlED, AND ADDRESSED AS FDlLOWS:

Steven Mclnchak c/o Michelle Welsh Stoner, Welsh & Schn)idt 413 Forest Avenue Pacific Grove, CA 93.950-4201

AND THEN BY DEPOSITING SAID ENVELO~E IN THE US MAIL ON THAT DATE.

l DECL E· NDER PENll.t~ PERJURY UNDER THE LAWS OF THE STA L. o. liFORDJW?-fHAi- THE FOREGOING IS TRUE AND CORRECT AN THA HIS CLARATION IS EXECUTED AT CONCORD·, CA ON J 14


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. Case Details

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i···:., NM128062; Mcinchak vs. City : ·Carmel-by-the-Sea et al

J,:,r.,.,J

Case Information

Case Number

GNM128062

Mclnchak vs. City of Case Caption Carmel-by-the-Sea et

a!

Filing Date

Case Type

Filing Type

Original Filing Date

Agency

Agency Number

6/4/2014

Civil (General)

Petition

6/4/2014

Name I AKA

Party Last Name First Type Name

DEF Administrative Services

by-the-Sea Director of

DEF City Administrator of the City of

DEF City of Carmel-by-the-Sea

PLF Mcinchak Steven

DEF Paul Susan

DEF Stilwell Jason

Attorney Information

Print Back

Middle Is Name AKA

AKA

AKA

Ai:li:omey Type last Name First Name Middle Name

PLF Welsh Michelle A.

https://yvvvvv.justicepminers.monterey .comis .ca.gov/Public/JPPublic ViewCase.aspx?id=t/k Y... 7/7/2014


JS 44 (Rev. 12/12) Cand rev (1115/13) CIVIL COVER SHEET The JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as reguired by law except as provided by local rules of court. This fonn, approved by the Judicial Conference of the United States in September 1974, is reqmred for the use of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

STEVEN MCINCHAK

DEFENDANTS CITY OF CARMEL-BY-THE-SEA, JASON STlL WELS fiTY ADMINISTRATOR OF THE CITY OF CARMEL-BY-1 rw-SEA, SUSAN PAUL, ADMINISTRATIVE SERVICES DIRECTOR OF THE CITY OF CARMEL-BY-TI-IE-SEA

(b) County of Residence of First Listed Plaintiff _,M'"'o.,.n,..t"er..,ccrv _______ _ County ofResidence of First Listed Defendant ~M~o~n~t~er~e_,_y ________ _ (EXCEPT !N U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LANP CONDEMNATION CASES, USE TilE LOCATION OF THE TRACT OF LANP INVOLVED.

(c) Altomeys (Firm Name, Address, and Telephone Numbe~) Michelle A Welsh (SBN 084127) Stoner, Welsh & Schmidt 413 Forest Ave. Pacific Grove, CA 93950-4201 T: 83l-373-l99:?; F:

Attorneys (!!Known) Jeffrey A Dinkin (SBN 111422) I Allison E. Bums (198231) Stradling Y occa Carlson & Rauth 800 Anacapa Street, Suite A Santa Barbara, CA 93101 T: 808-730-6800; F: 805-730-15801

II. BASIS OF JURISDIC'I!'ION (Place an "X" in one Box Only) III. CITIZENSHIP OF PRINCII' AL PARTIES (Place 011 "X" h1 One Box for Plaintiff

0 l U.S. Government 1:8:1 3 Federal Question (For Diversity Cases Only) and One Box for Defendant)

PTF DEF PTF DEF Plaintiff (U.S. Govemment Not a Pm1y) Citizen of This State 0 I 0 1 IncOiporated or Principal Place 0 4 0 4

ofBnsiness fn This State

02 U.S. Government 04 Divers icy Citizen of Another State 02 0 Incmporated and Principal Place os 05 Defendant (h1dicqte Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 03 0 Foreign Nation 06 06 Foreign Country

IV. NATUREOFSUIT (Placean"X"n,oneBoxOnl!~ fft~~~~~~€0NT.ffi\'1W~T~g~ft~9~~ !~~¥.~~~~~~~_;:!ff~~~t:<5Rt~w;~iif~~r~~~~~t~~"t~~i$&"~fii.e. f.~;FORFEITiJREJ.P.ENXEW-4~ ~)~B'XNKRUIIT~~~~~fg;)· ~~,~O.T.lmffiST~T.ti·tE'S~i~

0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal28 USC 158 0 375 False Claims Act 0120Marine 0 310Airplane 0 365Personalinjury- ofProperty2!USC881 0423Withdrawal 0 400StateReapportiomnent 0130 Miller Act 0 315 Airplane Product ProductLiabiliiy 0690 Other 28 USC 157 0 410 Antitrust 0140 Negotiable Instrument Liability D 367 Health Care/ 0 430 Banks and Banking 0150 Recovery ofOvBI]layment 0 320 Assault, Libel & Pltanuaceutical !ll~fP.ROFERif.Yd~i&Hfli"illiiliil' 0 450 Commerce

& Enforcement ofJudgment Slander Personal Injury 0 820 Copyrights 0 460 Deportation 0 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 470 Racketeer Influenced and 0 152 Recovery ofDefaulted Liability D 368 Asbestos Personal 0 840 Trademark Corrupt Organizations

StudentLoans 0 3~0Marine InjuryProduct 0 480ConsumerCredit (Excludes Veterans) D 345 Marine Product Liability ::r~~~~ii'i'£'\il!JlrnbR4wli,Ji'i!lil!\]il~ J!i!~i'SIJ~~'SEi!IJRI~J@'c'$' 0 490 Cable/Sat TV

0 153 Recovery of Oveipayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HfA (1395ff) 0 850 Securities(Commodities/ of Veteran's Benefits 0 350 Motor Vehicle D 370 Other Fraud Act 0 862Black Lung (923) Exchange

0 160 Stockltolders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management 0 863 D!WC/DIWW (405(g)) 0 890 Other Statutory Actions 0 190 Other Contract Product Liability 0 380 Oilier Personal Relations 0 864 SS!D Title XVI 0 891 Agricultural Acts 0 195 Contract Product Liability 0 360 Otlter Personal Propetiy Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 0 893 Environmental Matters 0 196 Franchise Injury 0 385 Property Damage 0751 Family and Medical 0 895 Freedom of Information

0 362 Personal Injury- Product Liability Leave Act Act Medical Malpractice 0 790 Other Labor Litigation 0 896 Arbitration

'!l"~if:-J;R!ii#nill).(~fJ)]RW;li~~ijjt, i!}:l]~~!U!~JI!l)S\iili~li'' ~Jiil;USQ~'ecB'IttiONS!i\' 0 791 Employee Retirement ~:mui:!'l@i!ii'li~$.!JlJ'S;(jjjli)l' 0 899 Administrative Procedure 0 210 Land Condemnation 0 440 Odter Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff Act/Review or Appeal of 0220Foreclosure 0 441 Voting 0 463AlienDetainee or Defendant) AgencyDecision 0230 Rent Lease & Ejectment iJ 442 Employment 0 510 Motions to Vacate 0 8711RS-Tbird Party 0 950 Constitutionality of 0 240 TortstoLand , jj 443 Housing/ Sentence 26 USC 7609 State Statutes 0 245 Tort Product Liability Accommodations 0 530 General 0 290 All Other Real Property 0 445 Amer, w/Disabuities 0 535 Death Penaliy

Employment . Other: 0 446 Amer. w/Disabilities 0 540 Mandamus & Other

Otl1er 0 550 Civil Rights 0 44& Education 0 555 Prison Condition

0 560 Civil De!llinee-Conditions of Confinement

V. ORIGIN (P/acea11 "X"mOneBoxOnly)

~~Jlil.IMli'U~m\UOl':!l\~~w~ 0 462 Naturalization Application 0 465 Other Immigration

Actions

U 1 Original 12!;1 2 Removed from U 3 Remanded from U 4 Reinstated or Reopened

U 5 Transferred from U 6 Multidistrict Proceeding State Court Appellate Court Another Dislrict Litigation

(specify)

VI. CAUSEOF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not citejnrisdictional stat11tes u11less diversiiJ'); 28U.S.C. §§1331, 1441, 1446AND 1367(a) Brief description of canse: Plaintiff alleges Defendants' conduct is in violation of the laws and Constitution of the United States.

VII. REQUESTED J[N

COMPLAINT: 0 CHECK IF THIS IS A CLASS ACTION DEl\•lAND $ CHECK YES only if demanded in complaint:

UNDER RULE 23, F.R.Cv.P. JURY DEMAND: iZJ Yes 0 No

VUI. RELATED CASE(S) IF ANY (See in~Mic/ions):

JUDGE

:nx. DIVISIONAL ASSIGNMENT (Civil L_R. 3-2) (Place an "X" in One Box Only) DATE

July 7, 2014

DOCKET NUMBER

NCISCO/OAKLAND SAN JOSE () EUREKA

notice of removal to federal court 5 14 cv 03084

Documents