CITY OF CARMEL-BY-THE-SEA

Council Report
March 3, 2015
To:

Honorable Mayor and Members of the City Council

Douglas J. Schmitz, City Administrator

From:

City Attorney Don Freeman

Subject:

Leslie Ann Schratz v. Classic Art Gallery, et al.

(Monterey Superior Court, Case No. M127145)

RECOMMENDATION(S):
Deny Classic Art Gallerys Application for Late-Claim Relief to File a Claim against the
City
ATTACHMENT:
1.

City Attorney Don Freemans Memorandum dated February 24, 2015

APPROVED:
____________________________________
Douglas J. Schmitz, City Administrator

Council Agenda Packet for 3/3/15

Page 47

Date: __________________

Council Meeting 3/3/15

Agenda Item: 7.D

City of Carmel-by-the-Sea
Office of the City Attorney
MEMORANDUM
To:

Mayor and City Councilmembers

From:

Donald G. Freeman, City Attorney

Vincent P. Hurley, Special Counsel

Date:

February 24, 2015

Re:

Leslie Ann Schratz v. Classic Art Gallery, et al.

(Monterey Superior Court, Case No. M127145)

This is to update you on the above captioned case. Plaintiff apparently was injured in a
fall on a City sidewalk, but Plaintiff never sued the City, making the potential liability exposure
of the City complicated.
Incident
Leslie Ann Schratz (age 53 at the time) has alleged that on the afternoon of May 5, 2012, she
fell when her foot rolled on an elevation difference between a brick sidewalk and a tree planter on the
sidewalk of N/6th Avenue just west of San Carlos St. According to the police report prepared
immediately after the fall, the sidewalk consisted of brick pavers that were two inches higher than the
dirt surface.
Schratz suffered a broken left ankle, sprained wrist, and bruised knee. Schratz underwent
surgery to repair her broken ankle and obtained follow-up physical therapy. Schratz alleges that
she still experiences daily pain. Her adjusted medical bills are approximately $5,000.
Procedural History
Ms. Schratz did not file a lawsuit for almost two years, and then only sued the adjacent
business, Classic Art Gallery (CAG), for premises liability. Her complaint was served on CAG
March 21, 2014.
On August 1, 2014, CAG filed a cross-complaint against the City for equitable indemnity,
contribution and declaratory relief. CAG improperly served Mayor Jason Burnett, not the City Clerk.
We demurred to CAGs cross-complaint on the grounds that the statute of limitations for a
claim and complaint against the City had expired under the Tort Claims Act (CTCA). We also filed
a motion to strike that portion of CAGs amended cross-complaint alleging that the Plaintiff alleged
she tripped and fell on a City sidewalk. Judge Susan Matcham ruled in the Citys favor, but granted

Council Agenda Packet for 3/3/15

Page 48

Council Meeting 3/3/15

Agenda Item: 7.D

Memorandum to City of Carmel-by-the-Sea Mayor and City Councilmembers

February 24, 2015
Page 2
leave to amend. On February 5, 2015, CAG sent the City an application for leave to file a late-claim
pursuant to California Government Code section 911.4(a).
On August 14, 2014, CAG filed an amended cross-complaint to add as a defendant Sigmund
LeTowt, the owner of CAG building. On September 14, 2014, Plaintiff Schratz added LeTowt as
a defendant and served LeTowt with the amended complaint. On February 4, 2015, LeTowt
filed a claim against the City, which was rejected as untimely.
Issue
Shall the Council deny Classic Art Gallerys application for late-claim relief to file a
claim against the City?
Recommendation
Yes, we recommend denying CAGs application for late-claim relief. California Government
Code section 911.6(b) provides that [t]he board shall grant the application [for late-claim relief]
where . . . (1) The failure to present the claim was through mistake, inadvertence, surprise or
excusable neglect and the public entity was not prejudiced in its defense of the claim by the
failure to present the claim. . .
In CAGs application for late-claim relief, CAGs attorney, Randy Moss, concedes that
[m]y clients did not timely file their Government Tort Claim in this matter because of my
mistake in not realizing that such a claim was required even in instances where the claim is not
for money or damages, but simply for equitable indemnity and contribution in a third party
action. We cannot say what Judge Matcham will rule about such an excuse, but Mr. Mosss
admission does not seem to be excusable neglect.
If the Council does indeed deny CAGs application for late-claim relief, Mr. Moss would
then likely file a petition with the Court for late-claim relief. It is unclear whether the Court
would grant such a motion.
RMT/ecp

Council Agenda Packet for 3/3/15

Page 49

Council Meeting 3/3/15

Agenda Item: 7.D