amended verified petition and complaint mcinchak v. city of carmel

8/9/2019 Amended Verified Petition and Complaint Mcinchak v. City of Carmel

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MICHELLE A. WELSH State Bar No. 084127STONER WELSH SCHMIDT413 Forest AvenuePacific Grove, CA 93950-4201

Telephone: (831) 373-1993Facsimile: (831) 373-1492

Attorneys for Petitioner/Plaintiff

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

Steven Mclnchak

Petitioner/Plaintiff

v

City of Carmel-by-the-Sea, JasonStilwell, City Administrator of the Cityof Carmel-by-the-Sea, Susan Paul,Administrative Services Director of theCity of Carmel-by-the-Sea and Does 1through 50, inclusive,

) Case No. M128062

) AMENDED VERIFIED PETITION) FOR WRIT OF MANDAMUS) (CODE OF CIVIL PROCEDURE) SECTION 1085)) AND COMPLAINT FOR) DECLARATORY JUDGMENT) BREACH OF CONTRACT,) DEFAMATION AND INTENTIONAL) AND NEGLIGENT INFLICTION O) EMOTIONAL DISTRESS

_e_s :: p_o : B;l_d_en_t_s_ID_e_{i_en_d_a_n_t_s_)

20 Petitioner/Plaintiff alleges:

21 PRELIMINARY STATEMENT

22 Petitioner/Plaintiff Steven Mclnchak is a permanent employee of the City of Carme

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

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

25 Throughout his employment, Petitioner/Plaintiff Mclnchak has performed 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

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

STONER WELSH

AND SCHMIDT

ATTORNEYS AT LAW

duties of the City Council, the City Administrator and the City Human Resources DirectorMclnchak v. City of Carmel-by-the-Sea,

Verified Petition for Writ of Mandamus and ComplPage 1 o


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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

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 Information Systems Network Manager without

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

8 preventing him from perfonning his job duties or returning to work since June 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 of law secured by Article 1 Section 2 of the11 Constitution of the State of California by depriving him of liberty and property without cause

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

13 and impaired Petitioner/Plaintiff s vested contractual rights in violation of the Constitution

14 the State of California at Article 1 Section 1 and Sect ion 9. The City has also violated its

15 ownOrdinances.

16 Petitioner/Plaintiff seeks a Writ of Mandate compelling h City of Carmel-by-the-S

17 through its City Council, City Administrator and Administrative Services Director, to reinstate

18 Petitioner/Plaint iff to his position as Information Systems Network Manager forthwith.

19 Petitioner/Plaintiff further seeks to recover damages for all economic and general damages

2 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 perform their mandatory legal duties in violation of Petitioner/Plaintiff s 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 as its Information Systems Network Manager from July

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

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STONER, WELSH

AND SCHMIDTATTORNEYS AT LAW

2. Respondent/Defendant City of Carmel-by-the-Sea (hereinafter City of Carme

Mclnchak v. City of Carmel-by-the-Sea,

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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 California 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 Carmel-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 Carmel-by-the-Sea.

7 5. Petitioner/Plaintif f is unaware of the true names and capacities of Responden

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

10 responsible for the acts omissions and wrongful conduct alleged herein. Petitioner/Plaintiffwill seek leave to amend the Petition/Complaint to state the true names and capacities of D

12 1 through 50 when they are ascertained.

13 COMMON FACTS

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

15 the-Sea on July 1 1997 in the position oflnformation Systems Network Manager. The

16 position was created by the City Council of the City of Carmel in 1997 as a management

17 position and Petitioner/Plaintiff was the first employee hired as Information Systems Network

18 Manager. Petitioner/Plainti ff reported directly to the City Administrator until20 13 when he

19 was directed to report instead to the Administrative 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 assisting 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. Petit ioner/Plaintiffs 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


Mclnchak v. City of Carmel-by-the-Sea



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

2 Systems Network Manager is attached as Exhibit A and incorporated herein.

3 Petit ioner/Plaintiff was required to be accessible to the City, its Administrators, its elected

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 during 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 personnel 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 performanc11 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 permanent, long-term employee of the City of Carmel

14 As such, Petitioner/Plaintiff accrued a property interest in his 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 ust cause for termination. Nevertheless, on or about July 1

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

18 document titled Employment Agreement City of Carmel-by-the-Sea Information Systems

19 Network Manager . That Employment Agreement purports to change Petitioner/Plaint iffs

20 employment status :from a permanent to at-will employee subject to termination by the City

2 Administrator without cause or right of appeal. Pet itioner/Plaint iff was informed that he was

required to sign that Agreement as a condition of remaining employed by the City of Carm

23 Petitioner/Plaintiff received no notice, hearing, or any consideration or other benefit in

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

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

26 under threat that if he did not sign the Employment Agreement his employment would be

27 immediately terminated without cause. A true and correct copy of the Employment Agreeme

28 is attached as Exhibit B and incorporated herein.

STONER, WELSH





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1 10. On June 5 2013 without prior notice or warning agents of the City of Cann

2 appeared at Petitioner/Plaintiffs home together with the Chief of Police and three law

3 enforcement officers from the City of Cannel and the Monterey County Sheriffs Department

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/Plaintiffs home without his pennission with no legitimate need to be present and

7 over his objections. Agents for the City of Cannel took possession of Petitioner/Plaintiffs

8 home computer which he shared with his wife Karen Mcinchak. Also taken were

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

10back-up disks. None

ofthe

property taken on June5

2013 has been returned to11 Petitioner/Plaintiff and to his knowledge it remains in the possession of the City of Canne

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

14 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 business in which she

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

17 of Cannel. 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/Plaintiffs home computer and were taken from their home by agents of the City

2 Cannel on June 5 2013. The home computer and business documents were never returned

21 causing i r r ~ p r b l edamage to their business and loss of irreplaceable archived photographs

22 and other business and personal data unrelated to the City o f Cannel.

23 12. t the same time on June 5 2013 agents of the City of Cannel including

24 Respondent/Defendant Susan Paul notified Petitioner/Plaintiff that he was placed on

25 administrative leave pending investigation of criminal charges against him. No criminal or

26 other charges have ever been filed and to Petit ioner/Plaintiffs knowledge neither the Cannel

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

28 criminal charges against Petitioner/Plaintiff Steven Mcinchak.

STONER WELSH

AND SCHMIDTATTORNEYS T LAW

Mcinchak v. City o f Carmel-by-the-Sea



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1 13 The allegations against Petitioner/Plaintiff by the City of Carmel are false. Pr

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

3 knowledge or notice of any allegations against im by the City of Carmel. To date,

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

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

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

7 of Carmel without any opportunity to review, respond to or to rebut charges, or to review any

8 evidence of any of the allegations of wrongdoing made by the City of Carmel against im

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

1o 14. Agents of the City of Carmel made the false allegations of criminal conduct a

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

12 information of and concerning im to other employees of the City of Carmel, to elected

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

14 allegations, including allegations of criminal conduct, irreparably damaged

15 Petitioner/Plaintiff s reputation in his profession, his employment and his community, violated

16 his privacy, 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 th

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

19 15. Since Petitioner/Plaintiff was placed on involuntary leave of absence on June

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

21 duties, retrieving his 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 of law, stigmatizing im to the point that he will be incapable of securing

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

2616 Petitioner/Plaintiff is 62 years of age. Petitioner/Plaintiff is 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


Mclnchak v City of Carmel-by-the-Sea, et



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FIRST CAUSE OF ACTIONPetition for Writ of Mandamus:

Performance of Ministerial Duty CCP Section 1085)Against All Respondents/Defendants in Official Capacities)

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

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

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

agents had a clear, present and ministerial duty under the Constitution of the State of8 California to refrain from depriving Petitioner/Plaintiff of his liberty interest in his9 employment by threatening to institute disciplinary action based on false charges that impair

10Petitioner/Plaintiffs reputation for honesty and morality and his standing and associations in

11 the community. These false allegations are denied by Petitioner/Plaintiff. The false12 allegations were publicly disclosed by the City of Carmel, which stigmatized and officially

3 branded Petitioner/Plaintiff to the point that he is not free to seek other employment, to pursue14 his professional occupation, or even to volunteer his services in the community.15 21. At all times relevant herein Respondents/Defendants City of Carmel 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 Carmel in the absence of good cause

18 terminate or suspend him involuntarily, and to refrain from depriving Petitioner/Plaintiff o

19 his property and his property interest in his public employment without notice, a statement

20 reasons, a copy of 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 Carmel and its

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

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

25 Personnel System Ordinance at the earliest time practicable and to refrain from 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 seriously disrupt the City service. On June 5, 2013 agents of the City of Carm

STONER, WELSH

AND SCHMIDTATTORNEYS AT lAW


Verified Petition for Writ of Mandamus and ComplaPage 8


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

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

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

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

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

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

7 Peti tioner/Plaintif fs right to privacy as specifically guaranteed by Article I Section 1 ofthe

8 Constitution of the State of California.

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

1 their ministerial duty in accordance with the law. Petitioner/Plaintiff is informed and believes

11 and thereon alleges that notwithstanding such ability and despite Petit ioner /Plaintiffs

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

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

14 Network Manager for the City of Carmel resulting in the unlawful suspension from his

15 employment.

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

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

18 remedy at law to redress 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 Information Systems Network Manager and to cease giving force and

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

22 liberty and property together with an award of damages and other relief to which

23 Petitioner/Plaintiff is entitled by law.

24 26. Petitioner/Plainti ff has incurred and will continue to incur attorneys fees and

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

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

27 is ent itled to recover attorneys fees and costs under Government Code Section 800 Code o

28 Civil Procedure Section 1021.5 and other statutory or contractual basis.

STONER WELSH


Mclnchak v. City of Carmel-by-the-Sea

Verified Petition for Writ of Mandamns and ComplaPage 9 o


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

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3Petition Writ Mandate: Abuse of Discretion

(Against Respondents/Defendants in their Official Capacities)

27 Petitioner/Plaintiff incorporates by reference each and every allegation5

contained in paragraphs 1 through 26 as though fully set forth.6

28. To the extent Respondents/Defendants retained any discretion concerning7

Petitioner/Plaintiff s employment, Respondents/Defendants abused that discretion by the8

actions complained of herein, including but not limited to placing and maintaining9

Petitioner/Plaintiff on involuntary leave of absence for approximately one year or more10

without cause, notice or hearing, making false and defamatory allegations of and concernin11

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Petitioner/Plaintiff, confiscating Petitioner/Plaintiffs property, discriminating against

Petitioner/Plaintiff because of his age and depriving Petitioner/Plaintiff of his liberty intere

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

arbitrary, capricious, unreasonable and/or a prejudicial abuse of discretion.

Respondents/Defendants abuse of discretion has deprived Petitioner/Plaintiff of his

employment, his reputation and his future means of livelihood.


29.

THIRD CAUSE OF ACTIONBreach of Written Contract of Employment

(Against Respondent/Defendant Employer Only)

Petitioner/Plaintiff incorporates by reference each and every allegation

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

24 30. Pursuant to the Employment Agreement, Respondents/Defendants City of

25Carmel agreed that the City of Carmel could terminate Petitioner/Plaintiffs employment for

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

other crime involving moral turpitude or any offense involving a violation of his official27

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

STONER, WELSH

AND SCHMIDTATTORNEYS AT lAW


Verified Petition for Writ of Mandamus and CompPage 10


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public funds, commingled public funds with personal funds, engaged in willful corrupt

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

3 constitutes misconduct according to the City s personnel rules. Petitioner/Plaintiff has 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

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

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

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

o Petitioner/Plaintiff in a timely manner, by wrongfully failing and refusing to reinstatePetitioner/Plaintiff to 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 impairment of contract, Petitioner/Plaintiff has suffered and continues to suffer substantial

15 losses in earnings, future earnings and employment benefits, all to Petitioner/Plaintiff s

16 damage in a sum not yet ascertained. Petitioner/Plaintiff will seek leave to amend this

17 complaint to state the amount when it is ascertained, or according to proof at trial.

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FOURTH C USE OF CTIONDefamation

(Against All Respondents/Defendants)

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

contained in paragraphs 1 through 32 as though fully set forth.

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

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

intentionally cause excessive and unsolicited internal and external publications of defamati26

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

defamatory statements included express and implied accusations that Petitioner/Plaintiff

committed crimes, that he violated City policies, that he was a poor performer, that he

Mdnchak v. City of Carmel-by-the-Sea,

Verified Petition for Writ of Mandamus and ComplPage


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1 deserved disciplinary action, that he was incompetent, and that he was dishonest. All of th

2 statements are false.

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

were discovered within the past year. The publications were false. Publication by .

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

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

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

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

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

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

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

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

3 defamation of and concerning Petitioner/Plaintiff to third persons who had no need or desire

14 to know. Those third persons to whom Respondents/Defendants published this defamation are

5 believed to include, but are not limited to, other agents and employees of the City of Carm

16 and persons in the community, all of whom are known to defendants, but unknown at this tim

7 to Petitioner/Plaintiff.

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

19 unprivileged communications, tending directly to injure Petitioner/Plaintiff, his employment,

2 his personal business and his professional reputation. These publications included false and

21 defamatory statements in violation of California Civil Code Section 45 nd 46 1), 3) and

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

23 that Petitioner/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

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

26other allegations having a natural tendency to inJure Petitioner/Plainti ff in his employment,

27 profession and business. The statements of and concerning Peti tioner/Plaintif f are defamatory

28per se.

STONER, WELSH


Mclnchak v. City of Carmel-by-the-Sea, et

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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,

3 will foreseeably be republished by the recipients, all to the ongoing harm and injury to

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

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

6 including his own compelled self publication of these defamatory statements.

7 39. None of Respondents/Defendants defamatory publications about

8 Petitioner/Plaintif f 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 othermembers of the community, whose identities are known to Respondents/Defendants, but

2 unknown to Pet itioner/Plaintiff at this time. The defamatory statements were understood as

3 assertions of fact, and not as opinion.

4 41. None of the false defamatory per se publications as set forth herein were

5 privileged. Any alleged conditional privilege was abused because Respondent/Defendants

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

17 const ituting 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 justi fy the illegal actions

19 of Respondents/Defendants and to cause further damage to Petitioner/Plaintiffs professional

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

2 42. Each of the defamatory publications by Respondent/Defendants, and each o

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

23 unsubstantiated and obviously false statements. Respondents/Defendants published the

24 statements knowing them to be false, and Respondents/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 no need to know. No privilege existed to protect any of the

28Respondents/Defendants from liability for the false and defamatory publications and re-

STONER, WELSH





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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 injury to his business and professional reputation, and has suffered e m b a r r a s s ~ n e nretaliat

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

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

7 and other benefits, all to Petitioner/Plaintif s economic, emotional and general damage in an

8 amount according to proof at trial.

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

10 recklessly, maliciously, fraudulently and oppressively, with the wrongful intention of injur

11 Petitioner/Plaintiff, and for the improper 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 Petit ioner/Plaintiffs rights. All 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 of them. Petitioner/Plaintiff is entitled to recover punitive and exemplary damagesfrom

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

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

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FIFTH CAUSE OF ACTIONIntentional Infliction of Emotional Distress

(Against All Respondents/Defendants)



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

abuse of the authority and position of Respondents/Defendants, and each of them. In addit26

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STONER, WELSH


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

Respondent/Defendant Susan Paul, entered Petitioner/Plaintiff's home, refused to leave, and

participated in confiscating Petitioner/Plaintiff's property. In doing so Respondents/


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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.

Respondents/Defendants conduct exceeded the inherent risks o f employment and is not th

5 sort of conduct nonnally expected to occur in the workplace.

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

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

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

9 defend his rights.

1048. Respondents/Defendants conduct as alleged above did, in fact, cause

11 Petitioner/Plaintiff to suffer extreme 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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STONER, WELSH



SIXTH CAUSE OF CTION

Negligent Inflictionof Emotional

Distress(Against AU Respondents/Defendants)



50. Respondents/Defendants, and each o f them, owed a duty of care to

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

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

abuse of Respondents/Defendants positions o f authority toward him. Respondents/

Defendant s conduct exceeded the inherent risks of employment and was not the sort of

conduct nonnally 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.Mclnchak v. City of Carmel-by-the-Sea,

Verified Petition for Writ of Mandamus and ComplPage 15


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51. 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 humiliation, embarrassment, mental anguish and emotional

5 distress, causing injury and damages as alleged above.

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SEVENTH CAUSE OF ACTIONDeclaratory Relief

(Against All Respondents/Defendants in their Official Capacities)


10 contained in paragraphs 1 through 5 as though fully set forth.

53. California Code of Civil Procedure Section 1060 authorizes this court to grant2

any person interested under a written instrument or contract to bring an action in Superior3 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 Mclnchak and Respondents/5 Defendants City of Carmel, and its agents, which affects the rights and obligations of

l6 Petitioner/Plaintiff.7 54. Petitioner/Plaintiff contends that Respondents/Defendants, and each of them8 breached his contract of employment, violated their legal and constitutional duties, and

19 engaged in unlawful and unprivileged conduct which defamed Petitioner/Plaintiff and

20 irreparably damaged his reputation, his employment, and deprived him of his liberty.

2 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 leave24 absence without cause, notice or hearing, and that Respondents/Defendants conduct also

25 resulted in an unconstitutional impairment of Petitioner/Plaintiffs 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





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For costs of suit; and

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

3 JURY TRIAL DEMANDED

4 Plaintif f demands trial of all issues by jury.

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6 Dated: September . JL, 2014

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STONER, WELSH

AND SCHMIDT

ATTORNEYS AT LAW

STONER, WELSH SCHMIDT

MICHELLE A. WELSHAttorneys for Petitioner/Plaintiff,Steven Mclnchak

Mclnchak v City of Carmel-by-the-Sea, eVerified Petition for Writ of Mandamus and Complai

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VERIFICATION PARTY

2 466, 2015.5 C.C.P.)

3

STATE OF CALIFORNIA, COUNTY OF MONTEREY

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

7 foregoing AMENDED VERIFIED PETITION FOR WRIT OF MANDAMUS CODE OF

8 CIVIL PROCEDURE SECTION 1085) AND COMPLAINT FOR DECLARATORY

9 JUDGMENT, BREACH OF CONTRACT, DEFAMATION AND INTENTIONAL AND

10 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS and know the contents thereof,

and I certify that the same is true of my own knowledge, except as to those matters which are

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

13 I declare under penalty of perjury under the laws of the State of California that the

14 foregoing is true and correct.

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STONER, WELSHAND SCHMIDT

ATTORNEYS AT LAW

Executed on September 10,2014, at Pacific Grove, California.

Steven MclnchPetitioner/Plaint

Mclnchak v City of Carmel-by-the-Sea, et Verified Petition for Writ of Mandamus and Compla

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ITY OF CARMEL-BY- THE-SEA

INFORMATION SYSTEMS/NETWORK MANAGER

Definition

Under administrative direction manage the ity computer system development andoperations activities; provide professional assistance to City staff in information systemsdevelopmentanalysis. Assist in managementof all information system activities throughoutthe City by coordinating, planning,and evaluatingoperation of he system, to include systemsanalysis, programming,computeroperations, networkadministration and management,andequipment and softwareacquisitions installation and repair.

Supervision Received And Exercised

The Assistant City Administrator or his/her designee provides general supervision.

Responsibilities include direct supervision of any clerical positions assigned to help on an asneeded basis. This position will also coordinate technology tasks with the Library sAutomated Systems Technician.

Examples Of Duties

Design, acquire, instaU, customize, document and maintain an hardware and software.Provide a p o i n t o f ~ c o n t a c tfor vendor support to departments. Maintain liaison withequipment manufacturers and vendors to ensure satisfactory support.

Manageand provide direct technical and administrative support for the operation of he areaNovell networks Citywide.

Receive and prioritize requests for computer application development and assistance andoversee the implementation process.

Resolve service complaints and implement corrective action on a timely basis. Repair orreturn defectivehardware/softwareor coordinationwith vendors for replacementof defectiveequipment/software

Evaluate and recommendsoftware for purchaseand/or programmerswho provide services tothe City.


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City of Cannel-by-tbe-SeaInfQrmation Systems/NetworkManager continued)

Serve as liaison between theinformation systems including databasenetworks, and e o ~ g r a p h i c a l l n f o n n a t i o nSystems.

in all matters tcornot1ter operating systems,

Serve as system supervisor for managing the computer system including security)passwords, new user configurations, and d1anges to accommodate individualdepartmental needs.

Develops, recommends,justifies and monitors theannual budget f9rthe citywide infonnationservices program.

Drafts, recommends, and implements policies and procedures related to the use of thecitywide information system.

Insures proper maintenance, repair, and servicing of equipment.

As time permits and as prioritized by management develops andprograms software systemsfor City and departmental applications and oversees implementation of these programs.

Provide 24 hour support to emergency services Police and Fire) computer operations withtimely response preferably 1 hour). Assist in coordination of use of he ComputerSystem inthe event of an emergency and develop disaster preparedness plans as th y relate to thcomputer system.

Maintains and updates detailed citywide computer inventory.

Confers with users to identifY training needs and coordina.tes training schedule s). Mayconduct training as needs are detennined.

Serve as Chairperson for Citywide computer users group.

Keeps infom1ed regarding developments in computer technology and techniques affectingCity operations and distribute pertinent information to departments and users.

Attends outside organization meetings and training seminars as related to City needs.

xamples Of Duties continued)

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City of Cannel-by-the-St;aInformation Systems Network Manager(continued)

Provide monthly written and/or oral reports to management concerning the status of thecomputer system, overall system perfonnance, and status of current computerprojects.

Maintains availability via phone and pager. Makes arrangements for computer systemcoverage when unavailable, i.e, vacations, seminars.

Maintains accurate and complete records.

Other Job Related Duties

Perform related duties and responsibilities as equired.

Job Related nd Essential Qualifications

Knowledge of:

Novell NetWare operating systems, architecture, and topologies.

Local and Wide Area networking systems design, integration and management.

Ethernet, ARCNet and X 25 protocols.

Microcomputer hardware troubleshooting, maintenance and network integration.

Microcomputer communications technology including Bulletin Board Systems, Internetconnectivity and TCP/IP communications protocols.

MicroSoft Windows installation, maintenance and trouble shooting ona Wide AreaNetwork.

WordPerfect installation, maintenance and trouble shooting on a Wide Area Network

Microsoft applications i.e., Office, Access, Excel; Presentations, Project, and othersoftwareapplications which may be installed on a Wide Area Network.Various programming languages, :including Basic and PVX.

Municipal financial systems and budget preparation.

Ability to:

Trouble shoot errors nd quickly identify the source as being Network, DOS, application or

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City of Carmel-by-the-SeaJnfonnation SysremsiNetwork Manager(continued)

hardware.

Design, write, and debug computer programs in a variety o programming languages anddatabase systems.

Manage multiplepriorities.

Communicate effectively with users who possess a widely diverse experience level in aUmatters of computer automation.

Communicate effectively in written documents and oraUy with city staff, users and outsideagency representatives.

Conduct formal and infonnai training sessions.

Prepare written documentationand user guides for internal systems.

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

Experience and Training Guidelines:ny combination equivalent to experience and training that would provide the required

. knowledge skills and abilities would be qualifying. A typical w y to obtain the knowledgeskills and abilities would e ~

Experieuce:

5 years experience with increasing responsible professional work in No:ven networkadministration and Management Information Systems.

Education:

Equivalent to graduation from an accredited 4-year educational institution with a majorcourse work in Application Programming,Business Data Processing, Computer Science,orManagement Infmmation Systems.

Note: At the sole discretion of he i t y ~extensive, applicable experience may be substitutedfor 2 years of requited education.

License o r Certificate:

Possession of, or ability to obtain, anappropriate, valid driver s license.


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City of Cannel-by-the-Sealnfonnation SystemstNetwork Manager continued)

Possession of a certificate as a Certified Network Administrator) preferred.

Special Requirements:Essential duties require the following physical skills nd work environment:

Ability to sit, stand, walk, kneel crouch, stoop, squat, and lift 50 Jbs.; ability to travel todifferent facilities, availability for emergencyon-call workdming nonworking hours; abilityto work in a standard office environment

Eff l


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XHI IT


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THIS AGREEMENT i s between the CITY OF CARMEL-BY-THE-SEA( CITY ) and Steve Mcinchak ("EMPLOYEE") and i s dated t h i s 1s t day

o f J u l y 2005.

RECITALS

1. EMPLOYEE has been employed as an Information Systems NetworkManager f o r CITY s ince Ju ly 1 1997.

2 . EMPLOYEE des i res to accept the pos i t ion o f INFORMATION SYSTEMSNETWORK MANAGER and cont inue se rv ing CITY in t h a t capac i ty.

3. The CITY ADMINISTRATOR, as appoint ing power and SteveMcinchak des i re to agree in wri t ing to the following terms andcondi t ions f o r employment o f Informat ion Systems NetworkManager.

OW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

. AGREEMENT

1 . DUTIES

A. CITY agrees to employ Steve Mcinchak as Informat ionSystems Network Manager o f the City o f Carmel-by-the-Sea to performt h e . funct ions and du t i e s s pec i f i ed in the ordinances andr e s o l u t i ons o f the Ci ty and to perform o t h e r l eg a l l y permiss ib leand proper d u t i e s and funct ions as the CITY ADMINI ?TRATOR may fromt ime to t ime ass ign .

B. EMPLOYEE s h a l l perform h i s du t i e s t o the bes t o f h i sa b i l i t y in accordance with t h e highes t profess iona l and e t h i c a ls tandards o f t h e profess ion and s h a l l comply with a l l r u l e s andr eg u l a t i ons e s t ab l i shed by t h e City.

C. EMPLOYEE s h a l l not engage i n any a c t i v i t y which i s o rmay become a c o n f l i c t o f i n t e r e s t p ro h ib i t e d by the cont rac t o rwhich may c rea t e an i n c o m p a t i b i l i t y o f o f f i c e as def ined underC a l i f o r n i a law. P r i o r t o performing any se rv ices under . th i sAgreement and annual ly t h e r e a f t e r EMPLOYEE s h a l l complete and f i l ea l l d i s c lo su re forms requ i red by law.

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2 TERM

A. This Agreement s h a l l commence on Ju ly 1, 2005, andcont inue unless te rminated by e i t h e r par ty in accordance with theprovis ions s e t f o r t h in A r t i c l e D. 6 t h i s Agreement, or u n t i lte rminated by death or permanent d i s a b i l i t y o f EMPLOYEE.

B. EMPLOYEE agrees to remain in the exclus ive employ of theCITY during the term of t h i s agreement. However, EMPLOYEE mayengage in occas ional teaching, wri t ing, o r consul t ing performed onEMPLOYEE S time o f f so long as such a c t i v i t i e s do not e i t h e ri n t e r f e r e with EMPLOYEE S performance o f his d u t i e s hereunder, orc o n f l i c t with EMPLOYEE S obl iga t ion to the CITY . . EMPLOYEE agreest h a t such a c t i v i t i e s a r e t o be sub jec t to p r i o r approval o f t heCITY ADMINISTRATOR.

3 OURS OF WORK

A. I t i s recognized t h a t EMPLOYEE must devote a grea t dealo f t ime outs ide normal business hours to the business, of the CITY,and to t h a t end EMPLOYEE w i l l be al lowed to take reasonable leavet ime o f f as he sha l l deem appropr ia te during normal business hours.However, t i s the i n t e n t of the CITY ADMINISTRATOR t h a t EMPLOYEEmainta in , whenever p o s s i b l e , normal CITY business hours .

4 . RESIGNATION AND TERMINATION

A. EMPLOYEE may r e s ign a t any t ime upon providing CITYADMINISTRATOR with a t l e a s t t h i r t y 30) days advance wri t ten not iceo f t h e e f f e c t i v e da te of r e s i g n a t i o n .

B. CITY ADMINISTRA .I OR may a t any t ime te rminate EMPLOYEEupon t h i r t y 30} days advance w r i t t e n no t i ce .

C. The p a r t i e s recognize and a ff i rm t h a t :

1) EMPLOYEE i s an a t w i l l employee whose employmentmay be te rminated by t he CITY ADMINISTRATOR without cause or r igh to f appeal ; and

2) There i s no express or impl ied promise made toEMPLOYEE fo r any form of cont inued employment. This Agreement i st he so le and exclus ive basis fo r an employment r e l a t ionsh ip betweenEMPLOYEE and the CITY.

5 SEVER NCE PAY

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A. Except as prov ided i n parag raph 5.B. of t h i s Agreement ,i EMPLOYEE i s t e rmina ted by t h e CITY DMINISTR TOR while s t i l lw i l l i n g and a b l e t o perform t he dut i .es o f In fo rma t ion SystemsNetwork Manager, CITY agrees t o pay EMPLOYEE a cash payment equa lt o four months o f t h e t hen c u r r e n t aggrega te s a l a r y. Sa id cashpayments may be pa id , a t t h e o p t i o n o f t h e EMPLOYEE i n : 1) lumpsum upon d a t e o f t e r m i n a t i o n ; 2) lump sum on January 1 o f t hec a l e n d a r year fo l lowing t e r m i n a t i o n ; o r 3) fou r equal monthlyi n s t a l l m e n t s . Such payment s h a l l r e l e a s e t he CITY from any f u r t h e ro b l i g a t i o n s under t h i s Agreement .

B. In t h e even t EMPLOYEE i s t e rmina ted . because o f h i sc o n v i c t i o n o f any f e lony, o r any cr ime i nvo lv ing moral t u r p i t u d e6 r any o f f e n s e i nvo lv ing a v i o l a t i o n o f h i s o f f i c i a l d u t i e s o r it h e CITY ADMINISTRATOR de te rmines t h a t t h e EMPLOYEE has : 1)misappropr ia t ed p u b l i c funds ; 2) commingled p u b l i c funds with h i spersona l funds ; 3) engaged i n w i l l f u l cor rup t conduct i n o f f i c e ; or4) conducted h imse l f i n a manner t o be determined as w i l l f u lconduct t h a t c o n s t i t u t e s misconduct accord ing t o t he CITY'Sp e r s o n n e l r u l e s t he CITY s h a l l have no o b l i g a t i o n t o con t inueemployment o f EMPLOYEE o r t o pay seve rance a s s e t f o r t h i nparagraph S.A. o f t h i s Agreement .

6. S L RY

A. E f f e c t i v e J u l y 1, 2005, t h e CITY agrees t o pay EMPLOYEE96,864.00 i n s a l a r y p e r annum f o r h i s s e r v i c e s .

B. Sa la ry i s payable i n i n s t a l l m e n t s a t the same t ime as o the remployees o f t h e CITY a r e p a i d and s u b j e c t t o cus tomarywi thho ld ing .

c. Therea f t e r and sub jec t t o an eva lua t ion o f performance ont he a n n i v e r s a r y da te h e r e o f t h e CITY DMINISTR TOR may i n c r e a s eEMPLOYEE S compensa t ion wi thou t t h e need t o amend t h i s Agreement .

7 . AUTOMOBILE

A. The CITY s h a l l prov ide EMPLOYEE wi th a CITY v e h i c l e orp r o v i d e f o r a mileage al lowance as needed p e r t h e c u r r e n t IRSmileage r a t e .

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8 . SUPPLEMENTAL BE:NE:I?ITS

A The CITY s h a l l prov ide EMPLOYEE wi th t he same t ype ande x t e n t o f b e n e f i t s as p ro v ided t o t he CITY S o t h e rmanagement employees as such b e n e f i t s may be amended fromt ime t o t ime except f o r t he fo l lowing:

1 . The CITY s h a l l c o n t r i b u t e an amount no t l e s s t hane i g h t y - f i v e p e r c e n t (85 ) o f t he f u l l premium onb e h a l f of t he EMPLOYEE and h i s q u a l i f i e d dependentsf o r medica l i n su rance a v a i l a b l e th rough t he CalPERSCHOICE program f o r t h e t e rm o f t h i s Agreement u n t i land un le s s o the rwi se amended between EMPLOYEE ANDCITY.

2. The CITY s h a l l con t inue t o prov ide d e n t a l and v1s1oncove rage t h r o u g h t h e CITY S c u r r e n t s e l f - f u n dprograms , u n t i l and un le s s otherwise amended betweent h e EMPLOYEE and t h e CITY.

3. EMPLOYEE s h a l l be e n t i t l e d t o a cc r u e vaca t i on a t ar a t e de te rmined by h i s yea r s o f Ci ty s e r v i c e , s u b j e c tt o t h e C i t y s Municipal Code S ec t i ons 2.52.625 through2 . 5 2 . ~ 4 5and 2.52.655.

4. EMPLOYEE s h a l l acc rue e i g h t (8) hours p e r month ofs i c k l e ave , s u b j e c t t o t he Carmel...:by-the-Sea MunicipalCode Sec t ions 2.52.660 t h ro u g h 2 .5 2 . 6 85 .

5 . EMPLO): EE s h a l l r ece ive 100 hours annual admin i s t r a t i vel e a v e p e r f i s c a l yea r.

B. With t h e above ex cep t i on s a l l o t h e r ac t ions t aken by t heCITY ADMINISTRATOR r e l a t i n g t o b e n e f i t s f o r execut ive managementemployees s h a l l be cons idered ac t ions g ran t ing the same b e n e f i t s t oEMPLOYEE. As used he re in , b e n e f i t s may i nc lude b u t a r e not l i m i t e dt o p a i d h o l i d a y s , bereavement l e ave and gene ra l l e ave , l i f e

i n su rance , a c c i d e n t a i dea th and d i s a b i l i t y i n su rance , vaca t ionl e a v e s e l l - b a c k op t ion , employer p a i d d e f e r r e d compensat ionc o n t r i b u t i o n s , and p a r t i c i p a t i o n i n PERS wi th employer pa idc o n t r i b u t i o n s .

9 . PERFORMANCE EVALUATION

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A. CITY ADMINISTRATOR, o r h i s d e s i g n e e , s h a l l e v a l u a t eEMPLOYEE S per formance a t l e a s t a n n u a l l y. As p a r t o f such annua lper fo rmance e v a l u a t i o n t h e CITY ADMINISTRATOR, o r h i s des ignee , andEMPLOYEE s h a l l s e t g o a l s and o b j e c t i v e s f o r t h e e n s u i n g y e a r.

10 . BUSINESS

A. CITY ADMINISTRATOR agrees - t o p a y f o r r e a s o n a b l e CITYr e l a t e d b u s i n e s s e x p e n s e s i n c u r r e d by EMPLOYEE i n accordance w i t hCITY p o l i c y.

11 . DUES SUBSCRIPTIONS

A. CITY s h a l l pay such p r o f e s s i o n a l d u e s , s u b s c r i p t i o n s andmemberships i n s u c h o r g a n i z a t i o n s n e c e s s a r y f o r EMPLOYEE t om a i n t a i n p r o f e s s i o n a l r e l a t i o n s h i p s i n a p p r o p r i a t e n a t i o n a l ,r e g i o n a l , s t a t e and l o c a l a s s o c i a t i o n s d e s i r a b l e f o r c o n t i n u e dp r o f e s s i o n a l growth , advancement and b e n e f i t t o CITY.

1 2 . NOTICES

A. ny n o t i c e s r e q u i r e d by t h i s Agreement s h a l l b e i nw r i t i n g and e i t h e r g i v e n i n p e r s o n o r by f i r s t - c l a s s m.ail w i t h t h ep o s t a g e p r e p a i d and a d d r e s s e d a s f o l l o ws :

TO CITY:

TO EMPLOYEE:

1 3 . DISPUTE RESOLUTION

R i c h G u i l l e nC i t y A d m i n i s t r a t o rC i t y o f Ca:r :mel-by- the-Sea C i t y Hal lP.O. Drawer CCCarmel -by- the-Sea , CA 93921

t e v e Mcinchak27590 Via SerenoCarmel , CA 93 923

A. Should e i t h e r p a r t y t o t h i s Agreement b r i n g l e g a l a c t i o na g a i n s t t h e o t h e r f o r m a l j u d i c i a l p r o c e e d i n g s , m e d i a t i o n o ra r b i t r a t i o n } t h e c a s e s h a l l be h a n d l e d i n Monterey County,C a l i f o r n i a , a n d t h e p a r t y p r e v a i l i n g i n s u c h a c t i o n s h a l l bee n t i t l e d t o a r e a s o n a b l e a t t o r n e y s f e e which s h a l l be i x e d by t h e

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j udge , med ia to r o r a r b i t r a t o r hea r ing t h e ca s e and such f e e s h a l lbe i n c l u d e d i n t he judgment t o g e t h e r wi th a l l c o s t s .

ARM S LENGTH NEGOTIATIONS

A This Agreement h a s been n e g o t i a t e d a t a rm s l eng th andbe tween pe r sons s o p h i s t i c a t e d and knowledgeable i n t h e m a t t e r sd e a l t with i n t h i s Agreement . Accord ing ly, any r u l e o f law( i nc lud ing C a l i f o r n i a C i v i l Code 1654) o r l e g a l dec i s ion t h a t

would r e q u i r e i n t e r p r e t a t i o n o f t he amb igu i t i e s i n t h i s Agreementa g a i n s t t he p a r t y t h a t has d r a f t e d t i s n o t a p p l i c a b l e and i she reby waived. The p r o v l s l o n s o f t h i s Agreement s h a l l bei n t e r p r e t e d i n a r ea sonab le manner t o e f f e c t t he pu r p o se s o f t h ep a r t i e s i n t h i s Agreement .

15 UTY T EFEN

A.. Upon r eques t o f EMPLOYEE, and s u b j e c t t o t h e prov i s ionso f C a l i f o r n i a Government Code Sec t i ons 995.2 and 995 .4 , CITY s h a l lde fend EMPLOYEE i n any c i v i l a c t i o n o r p r oc e e d ing b ro u g h t a g a i n s thim, ~ h i s o f f i c i a l o r i n d i v i d u a l capac i t y o r b o th , on account o fan a c t o r omiss ion i n t h e scope o f h i s / h e r employment as anemployee wi th CITY excep t f o r c i v i l c r i m i n a l o r a d m i n i s t r a t i v ea c t i o n i n i t i a t e d by EMPLOYEE.

16. ENTIRE AGREEMENT

A. This Agreement i s t h e f i n a l exp re s s ion o f t h e comple teagreement o f t h e p a r t i e s w i t h r e s p e c t t o t he m a t t e r s s p e c i f i e dh e r e i n and supe r sedes a l l p r i o r o r a l o r w r i t t e n unde r s t a nd i n gs .Except as p r e s c r i b e d h e r e i n t h i s Agreement cann o t be m o d i f i e dexcep t by w r i t t e n mutua l agreement s ig n e d by t h e p a r t i e s .

17 ASSIGNMENT

A. Th i s Agreement i s n o t a s s i g n a b l e b y e i t h e r t h e CITY o rt h e EMPLOYEE.

18. SEVERABILITY

A. In t he event t h a t any provis ion o f t h i s Agreement i s he ldo r de t e rmined t o be i l l e g a l o r v o i d by r ea son o f f i n a l non-a p p e a l a b l e judgment , orde r o r dec i s ion o f a c o u r t havingj u r i s d i c t i o n over p a r t i e s t h e remainder o f t h e Agreement s h a l l

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remain in f u l l force and e f f e c t un les s t he p a r t s found to be voida re wholly inseparable from the remaining por t ion of the Agreement,

19. COUNTERPARTS

A This Agreement s h l l be executed s imul taneous ly in twocoun te rpa r t s and each of which s h a l l be deemed an o r i g i n a l ~but l lo f which togethe.r s h l l c o n s t i t u t e one and the same ins t rument .

IN WITNESS WHEREOF t h i s Agreement i s signed and executed anddu ly he ld a t t e s t e d by t he City Clerk, the CITY ADMINISTRATOR andEMPLOYEE.

ATTEST:

CITY OF CARMEL-BY-THE-SEA

~ ~ITY/0 CARMEL-BY-THE-SEA

~ U J J ~CITY ADMINISTRATOR

.r.a }jtg__AJ~ O Y

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January 9 2014

Steven Mclnchakc/o Michelle WelshStoner, Welsh Schmidt413 Forest Avenue

CAHL \VARREN COlVJP NY

NOTICE OFOF

Pacific Grove, CA 93950-4201

Re: InsuredDate of LossOur File No.

City of Carmel-by-the Sea6/5/131875773

Dear Mr. Mclnchak,

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 ofthe Carmel-By-the-Sea on December 4, 2013 was rejected on January 7 2014.

WARNING

Subject to certain exceptions, you have only six (6) months from the date this noticewas personally delivered or deposited in the mail to file a court action on this claim. SeeCalifornia Government Code Section 945.6. The six month time limit referred to in thisnotice applies only to claims or causes of action which are governed by the CaliforniaTort Claims Act. Other causes of action, including those arising under federal law, mayhave different time limitations.

You may seek the advice of an attorney of your choice in connection with this matter. Ifyou desire to consult an attorney, you should do so immediately.

AN EMPLOYEE-OWNED COMPANY

P 0 Box 3975 1 Walnut Creek, CJ\ 94598

www.carlwarren.corn 1 Tel: 925-674-4660 1 800-998-4763 1 Fax: 800-956-3999

CP License No, 2607296


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cc dministrative Services Director


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I Jo Gelinas, DECLARE:

1. I M OVER 18 YEARS OF AGE;

I M EMPLOYED BY CARL WARREN COMPANY;

3 MY BUSINESS ADDRESS IS:PO Box 3975

Walnut Creek, CA 94598

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

On .January 9 2014 I SERVED THE ATTACHED NOTICE OF REJECTION OFCLAIM ON THE CLAIMANT BY PLACING THE NOTICE IN AN ENVELOPE,WITH US POSTAGE FULLY PREPAID, SEALED, AND ADDRESSED ASFOLLOWS:

Steven Mclnchakc/o Michelle WelshStoner, Welsh Schmidt413 Forest AvenuePacific Grove, C 93950-4201

AND THEN BY DEPOSITING SAID ENVELOPE IN THE US MAIL ON THATDATE.


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amended verified petition and complaint mcinchak v. city of carmel

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