Preview
Thomas A.Cady
1 6901 East Almeria Road
Scottsdale,Az. 85257
2 239-595-5895)
Thomasrothschild8@gmail.com
3
4 Thomas Cady
5
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF SAN MATEO
9
10 Thomas A. Cady ) Case No.: 21CIV06777
)
11 Plaintiff(s), ) Third Amended Complaint
)
12 vs. )
) DATE: (8/3/2023)
13 City of Burlingame, ) TIME: (2:00 p.m.)
) DEPT: (department number 3)
14 )
) Judge: Honorable Susan L. Greenberg)
15 Defendant(s). ) Dept: (department 3)
) Action Filed: (8/3/23)
16 ) Trial Date: ( Unassigned)
)
17 ) THIRD AMENDED COMPLAINT
) WITH LEAVE TO FILE U.S. GOVERNMENT
18 ) DISTRICT COURT SAN FRANCISCO
) CIVIL RIGHTS VIOLATION OF 14TH
19 ) AMENDMENT
) STRICT LIABILITY
20 FRAUD
NEGLIGENCE AND NEGLIGENCE PER SE’
21 AMERICAN DISABILITIES ACT
VIOLATION
22 FAIR HOUSING
BREACH OF WARRANTY
23 CLASS ACTION MANDAMUS
NUISANCE AND PERSONAL INJURY
24 PUNITIVE DAMAGES
SOVEREIGN IMMUNITY
25
26 PLAINTIFF Thomas A. Cady hereby submits Third Amended
27 Complaint with the following allegations against the Defendant City of Burlingame.
28 A city owned project whereby construction was delegated and hired Pacific
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1 Companies and Clarum Companies.
2 The nature of the dispute arose when the parking garage was approved
3 by city council of Burlingame. Plaintiff met Caleb Roope of Pacific Companies and
4 decided to form a partnership. Plaintiff became involved in the approval of the
5 property next door on which he has standing. The noise and nuisance became so
6 unbearable that Plaintiff complained to city personnel and Clarum companies and
7 Pacific Companies for relief. Those cries for help were Plaintiff lived next door to a
8 Burlingame city owned parking lot located at 161 Highland Avenue, and plaintiff
9 resided next door at 128 Lorton Avenue # 4. Plaintiff established a relationship with
10 the Defendant planning and development as well as inspection. The dispute arose
11 when Plaintiff complained and became an obstacle for the Defendant and parties they
12 had hired for the construction. The Defendant failed to cure the excessive noise and
13 dust, as well as the dangerous methods of construction that was called out on several
14 occasions. Plaintiff suffered depression, anxiety, breathing difficulty, hearing
15 difficulty, and inability to focus and concentrate on his own business.
16 The actions and omissions of the Defendant are as follows:
17 A. Failure to manage and control contractors hired to perform the construction.
18 B. Turning a Deaf ear to Plaintiff’s complaints
19 C. Lack of supervision and oversight of a hired contractor.
20 The plaintiff was arrested in 2019 on his way to the hearing for
21 approval of Lorton Heights at the City of Burlingame offices, for DUI and taken to
22 Millbrae Hospital.
23 The city knew of this infraction due to a wreck on their grounds and
24 knocking down a street sign. Full knowledge of the Plaintiff’s addiction, decided to
25 side step and over compensate in their construction and ignore the Plaintiff’s demands
26 for proper construction methods within the appointed hours of operation. The
27 defendant and contractors decided to ignore demands and to continue the egregious
28 actions because of the Plaintiff’s impairment and addiction. The omissions occurred
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1 when safe construction methods were ignored and turning a deaf ear to Plaintiff’s
2 Plaintiff has a litany of emails and text messages to the Hired
3 contractors and letters to the City of Burlingame complaining of infractions. Plaintiff
4 made many calls to the supervisor, Ian Sutcliffe asking for the contractors after hours
5 with loud music and excessive noise from truck accelerating, skate boarding by
6 Contractors children and many more incidents where Supervisors had to step in and
7 manage their own contractors. The defendant ignored the many requests for his demands and they
8 were ignored completely.
9 Because of theses infractions and omissions the Plaintiff was subject to extreme
10 nuisance, breathing problems due to dust and debris blowing carelessly in Plaintiff’s
11 direction, Heart issues with high blood pressure, Diabetes, and emotional trauma that
12 required a mental health counselor for 4 years. that directly led to the harm you
13 experienced. The emotional and financial strain on the plaintiff was extreme with no
14 remedy in sight. The injuries suffered are fully documented in my medical records
15 for trial through the Palo Alto Medical Foundation. The plaintiff has suffered
16 extreme leg pain through neurologic pain and has received shots for headaches with
17 sterile injectable. The plaintiff has suffered a nervous breakdown over these events
18 that were a direct cause of these events described.
19
20 Causation: there is a clear link between the defendant's actions and
21 the injuries suffered. To Demonstrate how their actions directly caused the harm
22 Plaintiff is alleging in the complaint. Plaintiff finally moved from premises due to
23 inability to cope with the actions of the defendant. Therefore damages sought are $
24 265,000,000.00 This includes monetary damages sought: This equates to the
25 compensation or relief Plaintiff is seeking as a result of the injury. This includes
26 monetary damages, reimbursement for medical expenses, emotional distress, lostwages, or any
27 other relevant remedies.
28
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1 I. Strict liability
2 A legal concept that holds an individual or entity legally responsible
3 for certain actions or activities regardless of their intent or level of care. In strict
4 liability cases, fault or negligence is not a factor in determining liability. Instead,
5 liability is imposed simply because the action or activity involved has been deemed
6 Inherently dangerous or likely to cause harm. STRICT liability is commonly applied
7 in situations where public policy considerations warrant imposing responsibility on
8 the party engaging in the activity, even if they took all reasonable precautions to
9 prevent harm. The rationale behind strict liability is often to protect the public,
10 consumers or the environment. The City of Burlingame bears Strict Liability because
11 the product they owned and controlled was a parking garage 5 story adjacent to the
12 Plaintiff. This liability for injuries caused by those products, regardless of whether
13 they were negligent in their design or production.
14 1. Ultrahazardous Activities- Defendant operated hazardous
15 material facilities, are considered inherently dangerous, the defendant had operators
16 or large equipment directly overhead of Plaintiff causing harm to the Plaintiff. The
17 defendant had large scale concrete products with dust and debris causing harm to
18 Plaintiff.
19 2. Abnormally dangerous activities that are considered
20 abnormally dangerous due to their potential to cause significant harm may be subject
21 to strict liability.This includes chemicals used in construction, careless operators of
22 large equipment that caused harm to the. Plaintiff.
23 3. Strict liability is designed to ensure that parties engaged in
24 inherently dangerous activities bear the risk and responsibility for the harm they may
25 cause, regardless of fault. This approach is intended to provide an added layer of
26 protection to potential victims and promote public safety.
27
28 POINTS AND AUTHORITIES
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1 The California Health and Safety Code, Civil Code, Government Code, Business and
2 Professions Code, and Water Code all contain statutes that explicitly address strict
3 liability. For example, Cal. Health & Saf. Code § 25299.73 sets out the standard of liability as
4 "strict liability"for costs of corrective action recoverable under the chapter. Similarly, Cal. Civ.
5 Code§ 1714.45 addresses product liability actions in California, including the circumstances under
6 which a manufacturer or seller is not liable. Cal. Gov. Code § 840.2 establishes the
7 conditions for liability in California, and Cal. Bus. & Prof. Code § 7071.20 specifically addresses
8 strictliability in the context of contractors. Finally, Cal. Wat. Code § 13495 sets out the standard of
9 liability for costs recoverable under the Water Code as "strict liability.”
10 The case law in California also addresses strict liability in a variety of contexts. For
11 example, in Bolger v. Amazon.com, LLC, the California Court of Appeal held that Amazon could
12 be strictly liable for an allegedly defective battery manufactured by a third-party and sold on its
13 website. In Johnson v. Honeywell International Inc., the court discussed strict liability in the
14 context of a failure to warn, and specifically addressed the "sophisticated user defense" in
15 California law. In Finn v. G. D. Searle & Co., the court discussed strict liability in California,
16 specifically Addressing manufacturing and design defects, as well as the failure to warn. In Preston
17 v. Up-Right, Inc.,the court discussed the strict liability of a manufacturer in California, specifically
18 Referencing Greenman v. Yuba Power Products, Inc., which established the rule. In Johnson v.
19 Standard Brands Paint Co., the court discussed the application of the strict liability doctrine to
20 A bystander, and in Horn v. General Motors Corp., the court discussed the application
21 of the doctrine to a manufacturer of a motor vehicle.
22 II. NUISANCE AND PERSONAL INJURY
23 That both nuisance and personal injury claims are viable options, depending on the
24 Specific circumstances. The plaintiff establishes a nuisance claim, the plaintiff generally
25 must show that the defendant's conduct interfered with the plaintiff's use and enjoyment of their
26 property. For a personal injury claim, the plaintiff shall prove that he suffered an injury as a result
27 of the defendant's wrongful act or negligence.
28 Analysis
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1 The authorities provide guidance on both nuisance and personal injury claims. For
2 Nuisance claims, the Kentucky statute (Ky. Rev. Stat. § 411.560) outlines the different types of
3 Damages that may be awarded, and clarifies that personal injury claims should be handled
4 Separately from nuisance claims. The Wisconsin case (Metropolitan Sewerage Dis. v.
5 Milwaukee) provides further guidance, noting that in order to maintain an action for a private
6 nuisance, the plaintiff must prove that there was an invasion or interference with the private use and
7 enjoyment of land, the defendant's conduct was the legal cause of the invasion, and the
8 defendant's conduct is actionable under the rules relating to intentional or negligent conduct.
9 For personal injury claims, the Illinois statute (235 ILCS 5/6-21) addresses the issue
10 of liability for injuries caused by intoxicated persons, which may be relevant depending on the
11 specific circumstances. The Idaho statute (Idaho Code § 5-327) addresses the survival of an
12 action in the event of the death of the wrongdoer or the injured party. The Connecticut cases
13 (Shabazz v.Price and Patient v. Stokes) provide guidance on the legal sufficiency of a pleading in
14 A personal injury case, as well as the right to recover for loss of consortium. The Texas
15 cases (E-Z Mart Stores, Inc. v. Ronald Holland's A-Plus Transmission & Auto., Inc. and E-Z Mart
16 v. Ron.Holland's) discuss the elements of a negligence claim and the requirements for
17 Proximate cause. The Eleventh Circuit case (Johnson v. 3M Co.) is particularly relevant, as it
18 discusses Both nuisance and personal injury claims. The court in that case found that the plaintiff's
19 claims were not preempted by the Clean Water Act, and that the plaintiff could seek compensatory
20 and punitive damages as well as injunctive relief.
21 4. Defendant did create a nuisance where plaintiff was unable to conduct
22 Business and to enjoy quiet surroundings, thus resulting in having to vacate the premises.
23 5. Personal injury occurred when plaintiff developed COPD breathing
24 Problems from the dust, emotional and other related injuries due to the tremendous nuisance
25 the defendant created.
26 6. When a large-scale construction project causes harm or disruption to
27 Neighboring properties and individuals, it may give rise to legal claims related to nuisance and
28 Personal injury. Let's explore each concept separately
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1 7. Nuisance: Nuisance is a legal doctrine that addresses situation
2 where one person's use or enjoyment of their property interferes with the use and enjoyment of
3 another person's property. In the context of a large-scale construction project, neighboring
4 properties and individuals may be affected by several types of nuisances:
5 a. Noise Nuisance: Construction activities that involved loud noises from
6 machinery, tools, and
7 b. construction work, which did disturb plaintiff’s property and caused significant
8 c. inconvenience.
9 d. Dust and Pollution
10 Nuisance: Construction projects may generate dust, pollutants, or emissions that
11 affect air quality and potentially harm the health of nearby residents.
12 e. Vibration Nuisance: Intense construction activities, such as pile driving, can produce ground
13 vibrations that may cause damage to neighboring properties.
14 f. Light Nuisance: Construction work with bright lights during nighttime can disrupt neighboring
15 properties' peaceful enjoyment. Plaintiff establishes a claim of nuisance, and shall demonstrate that
16 the construction activities unreasonably and substantially interfere with their use and enjoyment of
17 their property.
18 9. Personal Injury:
19 The plaintiff sustained physical injuries or harm due to the construction project, and
20 Has grounds to pursue a personal injury claim against the responsible parties. Personal
21 injury claims may arise from accidents caused by construction-related activities, such as falling
22 objects, construction site accidents, or unsafe conditions., the injured party, Plaintiff shall
23 establish the following elements: Plaintiff will exhibit in trial the entire health profile and
24 treatment from Palo Alto Medical Foundation where plaintiff has received treatment
25 for the past 11 years.
26 a. Duty of Care:
27 b. The parties responsible for the construction project owed a duty of
28 care to ensure the safety of nearby individuals..
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1 c. Breach of Duty: Showing that the responsible parties failed to meet
2 the expected standard of care, leading to hazardous conditions or accidents.
3 d. Causation: Proving that the injuries sustained were directly caused by the
4 construction project or related activities.
5 e. Damages: Providing evidence of the actual harm, injuries, or losses suffered due TO THIS related
6 incident, the Plaintiff asks for $ 265,000,000.00 the Several of the cases reviewed address the need
7 for a plaintiff to provide evidence of injury in order to establish a claim. For example, in Goldstein
8 v. Islamic Republic of Iran, the court notes that a claimant must "establish[ ] his
9 claim or right to relief by evidence satisfactory to the court." Similarly, in
10 Bathiard v. Islamic Republic of Iran, the court emphasizes that a plaintiff must
11 establish her right to relief "by evidence satisfactory to the court" in order to
12 obtain a default judgment. Some cases provide more specific guidance on the type of evidence that
13 may be required. For example, in Barnette v. Grizzly Processing, LLC, the court discusses the
14 importance of medical evidence to support personal injury claims. In Graham v. Blissworld, LLC,
15 the court notes that the plaintiff must provide "medically documented proof of injury" in order to
16 recover for personal Injuries. Other cases emphasize the need to demonstrate a "distinct and
17 palpable" injury in order to establish standing to sue. For example, in Grimes, by and Through
18 Grimes v. Cavazos, The court finds that the plaintiff has "alleged a sufficiently distinct, palpable,
19 and concrete injury" to establish standing. Finally, some cases address the standard for determining
20 whether "serious personal injury" has been inflicted. For example, in State v. Herring, the
21 court notes that the determination must be made based on the "particular facts of each case." In
22 State v. Baker, the court similarly emphasizes that the question of whether there was "serious
23 personal injury" must be decided on the facts of each case.
24 III. FRAUD
25 10. False Representation: The first element of fraud alleged is the
26 Existence of a false representation or statement. This is a statement of fact, not an
27 opinion or a promise of future conduct. Defendant promised to do something about the
28 issues presented but did nothing but push the contractors to finish quickly and get
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1 out of the construction site.
2 11. The representation was objectively false, and it is related to a
3 Material fact, meaning a fact that is significant and important to the transaction.
4 12. Knowledge of Falsity: The parties Ken Gardener and Rubin
5 Hurin in making the false representation must have known that the statement was
6 false at the time it was made. Alternatively, they made the statement recklessly without
7 caring about its truth or falsity.
8 13. Intent to Deceive: The Defendant in making the false
9 representation had the intention to deceive or mislead the Plaintiff. This is often referred to as
10 "scienter" or "fraudulent intent."
11 14. Reliance: The Plaintiff who suffered harm due to the fraudulent
12 representation had reasonably relied on the false statement. Plaintiff believed
13 the statement to be true and based their decisions on that belief. Causation: The
14 false representation must have caused harm or damages to the party who relied on
15 it. There must be a direct link between the fraudulent statement and the losses suffered.
16 15. Damages: The Plaintiff alleging fraud has suffered actual
17 damages or losses as a result of relying on the false representation.
18 16. Materiality: The false representation was material to the
19 transaction and relationship between the parties. The false statement was significant enough
20 to influence the decision-making process. Proving fraud can be complex, as it
21 requires presenting strong evidence to support each of these elements.
22 Evidence can include the actions of the representation by Attorneys and their Infractions.
23 IV. BREACH OF WARRANTY
24 17. Breach of warranty is a legal claim that arises when a product or
25 Service fails to meet the promises or guarantees made by the seller or manufacturer
26 Warranties are assurances or representations about the quality, performance,
27 Or condition of a product or service, and when those promises are not fulfilled,
28 The consumer may have a right to seek remedies for the breach. There are
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1 several types of warranties that can apply in different situations:
2 18. Express Warranty: An express warranty is a specific and explicit Promise made by the seller or
3 manufacturer about the product or service. It can be in writing, such as a written warranty or a
4 statement on the product packaging, or it can be made orally.
5 19. Implied Warranty of Merchantability: This is an automatic warranty that applies by law to the
6 sale of goods. It implies that the goods sold are reasonably fit for their intended purpose and are of a
7 quality commonly acceptable in the trade.
8 20. Implied Warranty of Fitness for a Particular Purpose: This warranty arises when the seller
9 knows or has reason to know that the buyer is purchasing the product for a specific purpose. In such
10 cases, the seller implicitly assures that the product is suitable for that particular purpose. If a product
11 or service fails to meet the terms of the warranty, the consumer may have several remedies
12 available, depending on the type of warranty and the applicable laws. Common remedies for breach
13 of warranty include:
14 21. Repair or replacement of the product Refund or reimbursement of the purchase price Damages
15 for any harm caused by the defective product
16 22. The defendant did not abide by their own city codes for construction
17 And the assurances given at the
18 23. The Plaintiff establishes a breach of warranty for the city-owned
19 construction project, the plaintiff shall prove that the city provided a warranty, that the
20 project did not perform as promised, and that the plaintiff was harmed as a
21 result. California codes that may be violated in such a case include the California
22 Uniform Commercial Code and the Contractors License Law.
23 Analyisis
24 The cases reviewed suggest that a breach of warranty claim in the context of a
25 construction project generally requires the plaintiff to prove three elements:
26 (1) theexistence of a warranty, (2) the failure of the project to perform as promised,
27 and (3) harm to the plaintiff. For example, in 5th & LA v. W. Waterproofing Co., the
28 jury found that the company provided a warranty, the coating did not perform as
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1 promised, and the owner was harmed. Similarly, in Kelly v. Carriage Homes, the homeowners
2 alleged that the builder implicitly warranted that the homes were designed and
3 constructed in a skillful manner, and that the builder breached this warranty by failing to
4 prevent flooding and damage to their property.
5 The cases also suggest that the scope of the warranty is important. In City of Imperial v.
6 Ferguson Enters., Inc., the court found that the warranty exclusion in the Agreement was valid, and
7 that the buyer's sole warranty was that provided by the product's manufacturer. In C. Norman
8 Peterson Co. v. Container Corp. of America, the court found that the parties had abandoned the
9 original contract, and that the contractor was entitled to recover the reasonable value of the work
10 performed on a quantum merit basis.
11 The cases also suggest that the statute of limitations may be an issue in some cases. In Shakib v.
12 Namvar, the court found that the plaintiff's breach of oral contract claim was barred by the two-year
13 statute of limitations. In Cascade Gardens Homeowners v. McKellar Assoc, the court found that the
14 plaintiff's action was barred by the 10-year statute of limitations for damage actions against
15 developers of real property.
16 Finally, the cases suggest that there are a number of California codes that may be violated in a
17 breach of warranty case involving a city-owned construction project. For example, in West Bay
18 Builders, Inc. v. Kamran & Co., Inc., the court referenced California Business and Professions Code
19 § 7108.5, which requires contractors to pay subcontractors within 10 days of receiving a progress
20 payment. In Tellis v. Contractors' State License Bd., the court discussed California's Contractors
21 License Law and the requirements for disciplinary action against contractors. In City of Imperial v.
22 Ferguson Enters., Inc., the court referenced California Uniform Commercial Codesection 2719,
23 which allows parties to limit the remedies available in a breach of contract
24 case. meeting for approval of the parking garage
25 V. AMERICAN DISABILITIES VIOLATION TITLE II
26 24. The defendant knew of the alcohol and drug addiction of the Defendant and had full knowledge
27 of the extent due to the incident of arrest on the
28 grounds of the defendant before a hearing to approve his own property for development.
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1 23. With full knowledge of the addiction, the parties involved
2 decided to side step any demand by Plaintiff and continue the reckless method of
3 construction.
4 24. The defendant turned a deaf ear to Plaintiff’s demands and
5 conspired to continue without any regard to Plaintiff’s demands.
6 If a public entity is found to be in violation of Title II of the ADA regarding
7 alcohol and drug addiction, it means they have engaged in discriminatory practices or
8 failed to provide reasonable accommodations to individuals with substance use disorders.
9 VI. SOVEREIGN IMMUNITY
10 25. SOVEREIGN IMMUNITY should be denied
11 26. The plaintiff is Opposing sovereign immunity and challenges the legal doctrine that grants
12 immunity to certain government entities, such as cities and states, from certain lawsuits.
13 27. Sovereign immunity is a legal principle that historically protected governments from being sued
14 without their consent. However, many jurisdictions have waived or limited sovereign immunity to a
15 certain extent, allowing individuals to bring lawsuits against government entities in specific
16 circumstances.
17 28. To oppose sovereign immunity and proceed with a lawsuit against the City of Burlingame (or
18 any other government entity), you typically need to follow these steps:
19 29. Identify the Basis for the Lawsuit: Determine the specific legal
20 claims or causes of action you are pursuing against the city.
21 30. This includes claims for personal injury, property damage, breach of contract, civil rights
22 violations, or other legal theories.
23 31. Applicable Laws: The laws and regulations governing sovereign
24 immunity in this jurisdiction. California has specific laws that limit the scope of sovereign
25 immunity and outline exceptions where the government can be sued.
26 32. Identify Exceptions:
27 Identify any exceptions or waivers to sovereign immunity that may apply to
28 this case. There are existing jurisdictions may waive immunity for certain types of tort
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1 claims or contractual disputes.
2 33. Determine Jurisdiction: The Plaintiff has Determined which court
3 Or administrative agency has jurisdiction over your case. Government lawsuits
4 Often involve specific rules and procedures, and you must follow the proper
5 channels for initiating the lawsuit.
6 34. The plaintiff Filed a Complaint: Drafted and filed a complaint
7 with the City of Burlingame and is duly noticed as an exhibit given by defendants
8 attorneys. The complaint outlined the legal basis for your claims and the specific harm
9 you have suffered as a result of the city's actions or negligence. this hereby
10 refutes the testimony of Burlingame Witness that no complaint was filed. It was properly
11 filed and even documented the money amount was $ 299,000.00.
12 35. Serve the City: Plaintiff Served the complaint on the City of
13 Burlingame or its designated legal representative following the proper procedures for service
14 Of process.
15 Prepare Arguments: Plaintiff is prepared to argue your case, presenting evidence and legal
16 arguments supporting your position that sovereign immunity should
17 not apply in your specific situation.
18 36. The Plaintiff Attended Hearings and Proceedings: Participated in
19 hearings, conferences, or court proceedings as required by
20 the court or administrative agency.
21 37. The City of Burlingame had condemned the parking lot H located at 161 Highland avenue, and
22 recommended and adopted construction of a 5 story parking lot.
23 38. This structure is a proprietary or a business activity, in that the parking garage charges a fee for
24 profit to park cars for the downtown parking retail area.
25 39. This structure is a business activity as defined above.
26 40. Sovereign immunity for state and local governments under
27 U.S. law is not absolute, and whether it applies can depend on
28 the specific action involved. Sovereign immunity originates from the common law and prevents
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1 suits against the government without its consent.The Federal Tort Claims Act waives
2 federal sovereign immunity for torts committed by federal employees.
3 41. States have varying laws on waiving immunity for state/local governments, agencies,
4 employees. It varies by jurisdiction.
5 42. Generally, acts classified as "governmental functions"
6 receive broad immunity protection, while "proprietary acts" have narrower immunity.
7 43. Specific immunity statutes may expressly grant or limit
8 immunity for certain government activities.
9 44. Courts analyze the specific government conduct at issue to
10 determine if sovereign immunity applies or if it has been statutorily waived.
11 45. sovereign immunity does not automatically apply absent analysis of the specific government
12 action and whether immunity has been waived by statute in that jurisdiction.
13 46. The applicability of sovereign immunity depends on the specific activity and legal context.
14 Mere assumption is not enough - the analysis and ruling needs to be performed by courts.
15 47. In Maxon Industries, Inc. v. State Compensation Ins. Fund, the court held that the state fund was
16 not immune from suit under
17 48. The City of Burlingame never received sovereign immunity from the legislature.
18 49.. The violation of Federal Laws provides the ability to sue a municipality for
19 their actions and their hired attorneys transgressions. the California Tort Claims Act because the
20 legislature had not specifically granted immunity. This case clearly states that if the legislature has
21 not specifically granted immunity to the City of Burlingame, it may not be able to claim it.
22 48. Dropo v. City & County of S. F. discusses the applicability of municipal ordinances to a city
23 acting in its proprietary capacity, which could also be relevant to the question of whether the City of
24 Burlingame is immune from suit.
25 49. The cases of City of Bell v. Superior Court and Masters v. of Motor Vehicles both discuss the
26 circumstances under which a public entity may refuse to provide a defense for a public
27 employee, which could be relevant to the question of when sovereign immunity might not apply.
28
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1 50. Bettencourt v. State of California, the court discusses the distinction between governmental and
2 proprietary functions, and the circumstances under which sovereign immunity may be
3 waived. This case could also be relevant to the City of Burlingame, depending on the specific facts
4 of the case.
5
6 POINTS AND AUTHORITIES
7
8 • The case discusses the defense of governmental
9 • immunity from liability for tort, and concludes that it is
10 • not available to the state and the society in the particular
11 circumstances.
12 It also discusses the distinction between governmental and proprietary activities, which may be
13 relevant. "The trial court granted the motion of the state and the society for judgment on the
14 pleadings, on the ground that the state fair is operated in the state's governmental capacity and that
15 the state and society are therefore immune from suit. Plaintiff appeals from the ensuing judgment in
16 favor of the state and the society. We have concluded that the defense of governmental immunity
17 from liability for tort is not available to the state and the society, and that the judgment must
18 therefore be reversed." "Plaintiff alleged compliance with the claim statute. (Gov. Code, § 16044.)
19 [1] The state and its instrumentalities and subdivisions are not immune from liability for torts
20 committed while engaged in proprietary or business activities. (Gov. Code, § 16041; People v.
21 Superior Court, 29 Cal.2d 754, 761-762 [ 178 P.2d 1]; Muses v. Housing Authority, 83
22 Cal.App.2d 489, 502 [ 189 P.2d 305].)""The activities of defendants do not differ from those of
23 private enterprise in the entertainment industry
24 • Maxon Industries, Inc. v. State Compensation Ins. Fund, 16
25 Cal.App.4th 1387 (Cal. Ct. App. 1993)This case discusses theconditions under which a state fund is
26 not immune from suit under the California Tort Claims Act, which may be analogous to
27 the research request. "The subject of the Fund's immunity from tort liability is thoroughly
28
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1 treated in Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504 [ 11
2 Cal.Rptr.2d 161]. That decision reviews most of the arguments made here, as well as the legislative
3 history of Insurance Code section 11873 We agree with the reasoning and conclusions of the court
4 in Courtesy Ambulance relating to this issue." "The Courtesy Ambulance court concluded that
5 Insurance Code section 11873 excludes the Fund from the immunities in the Tort Claims Act. (8
6 Cal.App.4th at p. 1514.) The court pointed out that Insurance Code section 11873 is clear in this
7 regard and does not require construction or interpretation." "To the contrary, it places the Fund in
8 the same position as other insurers, a position the Fund itself was at pains to urge upon the
9 Legislature and others, and which finds support from the very beginning of the workers'
10 compensation system in this state. (See Courtesy Ambulance Service v. Superior Court, supra, 8
11 Cal.App.4th atpp. 1511-1513, 1515, fn. 8.)"
12 • Dropo v. City & County of S. F., 167 Cal.App.2d 453 (Cal. Ct. App. 1959)This case discusses the
13 applicability of municipal ordinances to a city acting in its proprietary capacity, which is
14 relevant to the research request's inquiry into conditions that would refute sovereign immunity.
15 "Admitted in evidence were sections 51 and 52 of the Municipal Code. Section 51 provides:
16 "Inexperienced platform men prohibited. It shall be unlawful for any person not having had
17 previous experience to act as motorman, gripman or conductor on street railroad cars within the
18 City and County of San Francisco, unless said person shall have had at least seven days' experience
19 in such capacity in this City. waiver: In some cases, a city may waive its sovereign immunity
20 explicitly. This means that the city agrees to be subject to lawsuits in certain situations. Waivers
21 could be found in contracts, agreements, or ordinances. It's crucial to review any relevant
22 documents to determine if a waiver exists.
23 • Government Claims Act: In California, the Government Claims Act (California Government
24 Code sections 810-996.6) outlines the procedure for filing claims against governmental entities,
25 including cities. Under this act, you generally need to file a claim with the city or municipality
26 before filing a lawsuit. If the city rejects your claim or doesn't respond within a specified period,
27 you may then proceed with a lawsuit.
28
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1 • Dangerous Condition of Public Property: There are exceptions to
2 sovereign immunity for cases involving dangerous conditions of public property (California
3 Government Code section 835). If you believe that the city's negligence or failure to maintain public
4 property caused your injuries, you might be able to sue under this exception. Tort Claims Act
5 Exceptions: The California Tort Claims Act (California Government Code sections 814-895.8)
6 includes various exceptions to sovereign immunity. For example, there are exceptions for injuries
7 caused by the negligent acts of government employees within
8 the scope of their employment.
9 • Federal Claims: In certain cases, federal laws may allow individuals to
10 sue cities for civil rights violations, discrimination, or other federal law
11 violations.
12 • Contractual Liability: The Plaintiff had a a valid oral contract with the city, be and Plaintiff is
13 sue(ing) for breach of contract, even if the city enjoys sovereign immunity for other claims. Inverse
14 Condemnation: Inverse condemnation may apply if the government takes private property for
15 public use without just compensation, and this includes actions by cities.
16
17 VII. PUNITIVE DAMAGES
18 Punitive damages, also known as exemplary damages, are a form of monetary compensation
19 awarded to a plaintiff in a civil lawsuit. Unlike compensatory damages, which aim to reimburse the
20 plaintiff for their losses and expenses, engaging in similar behavior. As a result, punitive damages
21 are typically awarded in cases where the defendant's actions were especially reckless, intentional, or
22 malicious. Punitive damages are commonly awarded in cases involving intentional wrongdoing,
23 fraud, gross negligence, and other acts of extreme misconduct. For example, they may be awarded
24 in cases of product liability, medical malpractice, or environmental pollution where the defendant's
25 actions were particularly reprehensible. State Laws Vary: The availability and limitations of
26 punitive damages vary by jurisdiction, as each state has its own laws and regulations governing
27 their use. PLAINTIFF MUST meet a higher standard of proof to be awarded punitive damages.
28 Typically, they need to show that the defendant's conduct was not just negligent but involved a
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1 willful or wanton disregard for the safety or rights of others. Compensation Limits: In cases where
2 punitive damages are awarded, the amount is often limited based on a multiple of the compensatory
3 damages. The exact limits can vary by state and case. Punitive damages are a controversial aspect of
4 civil litigation because of their potential to result in significant financial penalties for defendants.
5
6 PLAINTIFF respectfully requests to Dismiss this current Action with
7 leave to file in a Federal District Court. The reasons are as follows: 1. Todd Master, Jenni Li, and
8 Deputy District Attorney Joel McComb, Stephen Wagstaffe, and Christina Cerny, a high ranking
9 member of the Revenue Department of San Mateo County, have conspired to influence the outcome
10 of Civil Matter 21CIV06777.
11 2. Joel McComb is currently prosecuting a case 19SF014863A and has violated the Defendant’s
12 rights under the 8th Amendment of unjust and undue prosecution.
13 3. Upon information and belief, these individuals have met, spoken, and discussed the current civil
14 case 21CV06777.
15 4. It is a crime for a deputy district attorney prosecuting a felony misdemeanor to collude with a
16 defense attorney on another case with the same individual, suing the city of Burlingame.
17 5. This is a conflict of interest for the deputy district attorney to
18 be involved in both cases, as they could use information from one case to help their
19 case in the other.
20 6. The California Code of Judicial Ethics prohibits lawyers from engaging in Conduct that would “
21 CREATE AN APPEARANCE OF
22 IMPROPRIETY.” This includes colluding with opposing counsel in a civil matter that
23 could prejudice the outcome of a case.
24 7. Deputy District Attorney and the defense attorney colluded and shared information in order to
25 cause the person to be discredited or impugned, they should be charged with a number of crimes
26 including.
27 A. Conspiracy to commit a crime
28 B. Obstructing Justice
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1 C. Perjury
2 8. Deputy District Attorney hid behind the cloak of conspiracy by sending in Christina Cerny, who
3 worked for revenue services, and testified in my trial.
4 9. Both individuals were communicating, but the Department of Revenue hid behind noble causes
5 such as collecting money for the State of California.
6 10. This illegal purpose helped Deputy District Attorney Joel8.
7 TORTIOUS INTERFERENCE WITH CONTRACT
8 A. Tortious interference with contract is a legal term that refers to a civil
9 Wronging which one party intentionally and unjustifiably interferes with the performance of a
10 contract between two other parties. This interference typically causes harm to one of the contracting
11 parties, leading to financial lessor other damages.
12 B. CONTRACT: There is a contract between the Defendant and the plaintiff in a legal proceeding,
13 and that contracts is oral and in writing. There also exists a contract between the People of
14 California, and prosecutor Stephen Wagstaffe, Joel McComb.
15 C. INTERFERENCE: Tortious interference with contract applies when there is an an existing valid
16 contract between two parties. The interference is intentional and unjustified. It involves actions take
17 by the third party which is Christina Cerny, of California Department of Revenue that disrupts the
18 performance of the contract or prevents one of the parties from fulfilling their obligations under the
19 agreement.
20 D. DAMAGES: The interference has cost harm and financial loss to Plaintiff
21 One of the contracting parties.
22 E. LACK OF PRIVILEGE OR JUSTIFICATION: The Deputy
23 District Attorney, Joel McComb and Christina Cerny did not have a valid legal reason or privilege
24 to interfere with the contract.
25 F. CAUSATION: There is a direct link between the interference and the resulting damages. Plaintiff
26 can prove the interference caused the harm suffered by the Plaintiff.
27 G. Remedies for tortious interference with contract should include compensatory damages to cover
28 the financial losses incurred, as well as punitive damages, and because the interference was
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1 egregious and malicious. The defense attorneys and the Deputy District Attorney have tortiously
2 interfered with the Plaintiff by sharing confidential information about the case.
3 9. DEFAMATION Defamation of character, commonly known as defamation, is a legal term that
4 refers to making false statements about someone that harm their reputation. It involves the
5 communication of false information to a third party, which may result in damage to the person's
6 reputation, standing in the community, or even their business or personal relationships.
7 A. Defamation can take two main forms:
8 1. Libel: libel refers to written or printed defamatory statements, such as those published in
9 newspapers, magazines, books, online articles, social media posts, or other written forms.
10 2. Slander: Slander refers to spoken defamatory statements, including those made during
11 conversations, speeches, radio broadcasts, podcasts, or other oral communication.
12 3. A defamation claim has the following elements that Plaintiff can perfect and proven:
13 A. False Statements made about the Plaintiff are false. Truth is an absolute defense against
14 defamation. If the statements and allegations are true, it would not be defamatory.
15 B. Publication, the false statements must be communicated to a third party, and there should be
16 adequate written communications between the District Attorney’s Office, the Revenue Department,
17 and Defense Attorney’s office in the form of texts and emails.C. Identification is about specific
18 individuals, such as Joel McComb, Stephen Wagstaffe, Christina Cerny, Todd Master, Jenni li , and
19 Faith Hill.
20 D. Harm, the false statements have caused harm to the person’ reputation , with through tangible
21 damages ( e.g. financial losses) or non economic harm to the Plaintiff’’s
22 reputation .
23 10. NEGLIGENCE OR ACTUAL MALICE
24 Negligence or actual malice, Defense Attorney and all other individuals named in failure to exercise
25 reasonable care to verify the truth during Discovery of all emails and communication by and
26 between the parties.
27 B. The defense attorneys and the deputy District Attorney have defamed the plaintiff by making
28 false and defamatory statement about the plaintiff.
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1 10. MISREPRESENTATION
2 Misrepresentation is a legal term that refers to a false statement of fact made by one party to
3 another, with the intent to induce the other party into a contract or transaction. It is a form of
4 deception that can have significant legal consequences, particularly in contract law.
5 A. Misrepresentation occurred in various contexts, such as business transaction, sales of goods, real
6 estate deals, employment contracts, or any situation where one party relies on the information
7 provided by another. Real estate deals, employment contracts, or any situation where one party
8 relies on the information provided by another.
9 B. Negligent misrepresentation occurred when the parties making the
10 false statement does so without exercising reasonable carrot ensure its accuracy.
11 Although not intentionally deceptive, the party fails to verify the truth of the
12 statement before making it.
13 C. Fraudulent misrepresentation also known as deceit, this is the most
14 serious form of misrepresentation and is typically viewed as a deliberate act of
15 dishonesty. It involves knowingly false statement made with the intent to deceive
16 and induce the other party into a contract or transaction.
17 D. The Plaintiff will establish the misrepresentation to be legally
18 actionable, and certain elements will be established.
19 E. False statement of fact, the statement must be one of fact and not
20 just an opinion or mere puffery.
21 F. Materiality the false statement must be significant enough influence the decision making of the
22 party who relied on it.
23 G. Reliance the misled party must have relied on the false statement and entered in to the contract or
24 transaction based on that reliance.
25 H. Causation, the misrepresentation must have caused the misled party
26 to suffer harm or incur losses.
27 I. Remedies for the misrepresentation may include rescission of the
28 contract (voiding the agreement) damages to compensate for losses suffered, or
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1 specific performance. Defense attorneys and the Deputy District Attorney have misrepresented their
2 intentions to Plaintiff by concealing their collusion with the district attorney.
3 11. The California Code of Judicial Ethics prohibits lawyers from engaging in conduct that “would
4 create an appearance of impropriety." This includes colluding with opposing coun
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Thomas A.Cady 1 6901 East Almeria Road Scottsdale,Az. 85257 2 239-595-5895) Thomasrothschild8@gmail.com 3 4 Thomas Cady 5 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN MATEO 9 10 Thomas A. Cady ) Case No.: 21CIV06777 ) 11 Plaintiff(s), ) Third Amended Complaint ) 12 vs. ) ) DATE: (8/3/2023) 13 City of Burlingame, ) TIME: (2:00 p.m.) ) DEPT: (department number 3) 14 ) ) Judge: Honorable Susan L. Greenberg) 15 Defendant(s). ) Dept: (department 3) ) Action Filed: (8/3/23) 16 ) Trial Date: ( Unassigned) ) 17 ) THIRD AMENDED COMPLAINT ) WITH LEAVE TO FILE U.S. GOVERNMENT 18 ) DISTRICT COURT SAN FRANCISCO ) CIVIL RIGHTS VIOLATION OF 14TH 19 ) AMENDMENT ) STRICT LIABILITY 20 FRAUD NEGLIGENCE AND NEGLIGENCE PER SE’ 21 AMERICAN DISABILITIES ACT VIOLATION 22 FAIR HOUSING BREACH OF WARRANTY 23 CLASS ACTION MANDAMUS NUISANCE AND PERSONAL INJURY 24 PUNITIVE DAMAGES SOVEREIGN IMMUNITY 25 26 PLAINTIFF Thomas A. Cady hereby submits Third Amended 27 Complaint with the following allegations against the Defendant City of Burlingame. 28 A city owned project whereby construction was delegated and hired Pacific -1- THIRD AMENDED COMPLAINT 1 Companies and Clarum Companies. 2 The nature of the dispute arose when the parking garage was approved 3 by city council of Burlingame. Plaintiff met Caleb Roope of Pacific Companies and 4 decided to form a partnership. Plaintiff became involved in the approval of the 5 property next door on which he has standing. The noise and nuisance became so 6 unbearable that Plaintiff complained to city personnel and Clarum companies and 7 Pacific Companies for relief. Those cries for help were Plaintiff lived next door to a 8 Burlingame city owned parking lot located at 161 Highland Avenue, and plaintiff 9 resided next door at 128 Lorton Avenue # 4. Plaintiff established a relationship with 10 the Defendant planning and development as well as inspection. The dispute arose 11 when Plaintiff complained and became an obstacle for the Defendant and parties they 12 had hired for the construction. The Defendant failed to cure the excessive noise and 13 dust, as well as the dangerous methods of construction that was called out on several 14 occasions. Plaintiff suffered depression, anxiety, breathing difficulty, hearing 15 difficulty, and inability to focus and concentrate on his own business. 16 The actions and omissions of the Defendant are as follows: 17 A. Failure to manage and control contractors hired to perform the construction. 18 B. Turning a Deaf ear to Plaintiff’s complaints 19 C. Lack of supervision and oversight of a hired contractor. 20 The plaintiff was arrested in 2019 on his way to the hearing for 21 approval of Lorton Heights at the City of Burlingame offices, for DUI and taken to 22 Millbrae Hospital. 23 The city knew of this infraction due to a wreck on their grounds and 24 knocking down a street sign. Full knowledge of the Plaintiff’s addiction, decided to 25 side step and over compensate in their construction and ignore the Plaintiff’s demands 26 for proper construction methods within the appointed hours of operation. The 27 defendant and contractors decided to ignore demands and to continue the egregious 28 actions because of the Plaintiff’s impairment and addiction. The omissions occurred -2- THIRD AMENDED COMPLAINT 1 when safe construction methods were ignored and turning a deaf ear to Plaintiff’s 2 Plaintiff has a litany of emails and text messages to the Hired 3 contractors and letters to the City of Burlingame complaining of infractions. Plaintiff 4 made many calls to the supervisor, Ian Sutcliffe asking for the contractors after hours 5 with loud music and excessive noise from truck accelerating, skate boarding by 6 Contractors children and many more incidents where Supervisors had to step in and 7 manage their own contractors. The defendant ignored the many requests for his demands and they 8 were ignored completely. 9 Because of theses infractions and omissions the Plaintiff was subject to extreme 10 nuisance, breathing problems due to dust and debris blowing carelessly in Plaintiff’s 11 direction, Heart issues with high blood pressure, Diabetes, and emotional trauma that 12 required a mental health counselor for 4 years. that directly led to the harm you 13 experienced. The emotional and financial strain on the plaintiff was extreme with no 14 remedy in sight. The injuries suffered are fully documented in my medical records 15 for trial through the Palo Alto Medical Foundation. The plaintiff has suffered 16 extreme leg pain through neurologic pain and has received shots for headaches with 17 sterile injectable. The plaintiff has suffered a nervous breakdown over these events 18 that were a direct cause of these events described. 19 20 Causation: there is a clear link between the defendant's actions and 21 the injuries suffered. To Demonstrate how their actions directly caused the harm 22 Plaintiff is alleging in the complaint. Plaintiff finally moved from premises due to 23 inability to cope with the actions of the defendant. Therefore damages sought are $ 24 265,000,000.00 This includes monetary damages sought: This equates to the 25 compensation or relief Plaintiff is seeking as a result of the injury. This includes 26 monetary damages, reimbursement for medical expenses, emotional distress, lostwages, or any 27 other relevant remedies. 28 -3- THIRD AMENDED COMPLAINT 1 I. Strict liability 2 A legal concept that holds an individual or entity legally responsible 3 for certain actions or activities regardless of their intent or level of care. In strict 4 liability cases, fault or negligence is not a factor in determining liability. Instead, 5 liability is imposed simply because the action or activity involved has been deemed 6 Inherently dangerous or likely to cause harm. STRICT liability is commonly applied 7 in situations where public policy considerations warrant imposing responsibility on 8 the party engaging in the activity, even if they took all reasonable precautions to 9 prevent harm. The rationale behind strict liability is often to protect the public, 10 consumers or the environment. The City of Burlingame bears Strict Liability because 11 the product they owned and controlled was a parking garage 5 story adjacent to the 12 Plaintiff. This liability for injuries caused by those products, regardless of whether 13 they were negligent in their design or production. 14 1. Ultrahazardous Activities- Defendant operated hazardous 15 material facilities, are considered inherently dangerous, the defendant had operators 16 or large equipment directly overhead of Plaintiff causing harm to the Plaintiff. The 17 defendant had large scale concrete products with dust and debris causing harm to 18 Plaintiff. 19 2. Abnormally dangerous activities that are considered 20 abnormally dangerous due to their potential to cause significant harm may be subject 21 to strict liability.This includes chemicals used in construction, careless operators of 22 large equipment that caused harm to the. Plaintiff. 23 3. Strict liability is designed to ensure that parties engaged in 24 inherently dangerous activities bear the risk and responsibility for the harm they may 25 cause, regardless of fault. This approach is intended to provide an added layer of 26 protection to potential victims and promote public safety. 27 28 POINTS AND AUTHORITIES -4- THIRD AMENDED COMPLAINT 1 The California Health and Safety Code, Civil Code, Government Code, Business and 2 Professions Code, and Water Code all contain statutes that explicitly address strict 3 liability. For example, Cal. Health & Saf. Code § 25299.73 sets out the standard of liability as 4 "strict liability"for costs of corrective action recoverable under the chapter. Similarly, Cal. Civ. 5 Code§ 1714.45 addresses product liability actions in California, including the circumstances under 6 which a manufacturer or seller is not liable. Cal. Gov. Code § 840.2 establishes the 7 conditions for liability in California, and Cal. Bus. & Prof. Code § 7071.20 specifically addresses 8 strictliability in the context of contractors. Finally, Cal. Wat. Code § 13495 sets out the standard of 9 liability for costs recoverable under the Water Code as "strict liability.” 10 The case law in California also addresses strict liability in a variety of contexts. For 11 example, in Bolger v. Amazon.com, LLC, the California Court of Appeal held that Amazon could 12 be strictly liable for an allegedly defective battery manufactured by a third-party and sold on its 13 website. In Johnson v. Honeywell International Inc., the court discussed strict liability in the 14 context of a failure to warn, and specifically addressed the "sophisticated user defense" in 15 California law. In Finn v. G. D. Searle & Co., the court discussed strict liability in California, 16 specifically Addressing manufacturing and design defects, as well as the failure to warn. In Preston 17 v. Up-Right, Inc.,the court discussed the strict liability of a manufacturer in California, specifically 18 Referencing Greenman v. Yuba Power Products, Inc., which established the rule. In Johnson v. 19 Standard Brands Paint Co., the court discussed the application of the strict liability doctrine to 20 A bystander, and in Horn v. General Motors Corp., the court discussed the application 21 of the doctrine to a manufacturer of a motor vehicle. 22 II. NUISANCE AND PERSONAL INJURY 23 That both nuisance and personal injury claims are viable options, depending on the 24 Specific circumstances. The plaintiff establishes a nuisance claim, the plaintiff generally 25 must show that the defendant's conduct interfered with the plaintiff's use and enjoyment of their 26 property. For a personal injury claim, the plaintiff shall prove that he suffered an injury as a result 27 of the defendant's wrongful act or negligence. 28 Analysis -5- THIRD AMENDED COMPLAINT 1 The authorities provide guidance on both nuisance and personal injury claims. For 2 Nuisance claims, the Kentucky statute (Ky. Rev. Stat. § 411.560) outlines the different types of 3 Damages that may be awarded, and clarifies that personal injury claims should be handled 4 Separately from nuisance claims. The Wisconsin case (Metropolitan Sewerage Dis. v. 5 Milwaukee) provides further guidance, noting that in order to maintain an action for a private 6 nuisance, the plaintiff must prove that there was an invasion or interference with the private use and 7 enjoyment of land, the defendant's conduct was the legal cause of the invasion, and the 8 defendant's conduct is actionable under the rules relating to intentional or negligent conduct. 9 For personal injury claims, the Illinois statute (235 ILCS 5/6-21) addresses the issue 10 of liability for injuries caused by intoxicated persons, which may be relevant depending on the 11 specific circumstances. The Idaho statute (Idaho Code § 5-327) addresses the survival of an 12 action in the event of the death of the wrongdoer or the injured party. The Connecticut cases 13 (Shabazz v.Price and Patient v. Stokes) provide guidance on the legal sufficiency of a pleading in 14 A personal injury case, as well as the right to recover for loss of consortium. The Texas 15 cases (E-Z Mart Stores, Inc. v. Ronald Holland's A-Plus Transmission & Auto., Inc. and E-Z Mart 16 v. Ron.Holland's) discuss the elements of a negligence claim and the requirements for 17 Proximate cause. The Eleventh Circuit case (Johnson v. 3M Co.) is particularly relevant, as it 18 discusses Both nuisance and personal injury claims. The court in that case found that the plaintiff's 19 claims were not preempted by the Clean Water Act, and that the plaintiff could seek compensatory 20 and punitive damages as well as injunctive relief. 21 4. Defendant did create a nuisance where plaintiff was unable to conduct 22 Business and to enjoy quiet surroundings, thus resulting in having to vacate the premises. 23 5. Personal injury occurred when plaintiff developed COPD breathing 24 Problems from the dust, emotional and other related injuries due to the tremendous nuisance 25 the defendant created. 26 6. When a large-scale construction project causes harm or disruption to 27 Neighboring properties and individuals, it may give rise to legal claims related to nuisance and 28 Personal injury. Let's explore each concept separately -6- THIRD AMENDED COMPLAINT 1 7. Nuisance: Nuisance is a legal doctrine that addresses situation 2 where one person's use or enjoyment of their property interferes with the use and enjoyment of 3 another person's property. In the context of a large-scale construction project, neighboring 4 properties and individuals may be affected by several types of nuisances: 5 a. Noise Nuisance: Construction activities that involved loud noises from 6 machinery, tools, and 7 b. construction work, which did disturb plaintiff’s property and caused significant 8 c. inconvenience. 9 d. Dust and Pollution 10 Nuisance: Construction projects may generate dust, pollutants, or emissions that 11 affect air quality and potentially harm the health of nearby residents. 12 e. Vibration Nuisance: Intense construction activities, such as pile driving, can produce ground 13 vibrations that may cause damage to neighboring properties. 14 f. Light Nuisance: Construction work with bright lights during nighttime can disrupt neighboring 15 properties' peaceful enjoyment. Plaintiff establishes a claim of nuisance, and shall demonstrate that 16 the construction activities unreasonably and substantially interfere with their use and enjoyment of 17 their property. 18 9. Personal Injury: 19 The plaintiff sustained physical injuries or harm due to the construction project, and 20 Has grounds to pursue a personal injury claim against the responsible parties. Personal 21 injury claims may arise from accidents caused by construction-related activities, such as falling 22 objects, construction site accidents, or unsafe conditions., the injured party, Plaintiff shall 23 establish the following elements: Plaintiff will exhibit in trial the entire health profile and 24 treatment from Palo Alto Medical Foundation where plaintiff has received treatment 25 for the past 11 years. 26 a. Duty of Care: 27 b. The parties responsible for the construction project owed a duty of 28 care to ensure the safety of nearby individuals.. -7- THIRD AMENDED COMPLAINT 1 c. Breach of Duty: Showing that the responsible parties failed to meet 2 the expected standard of care, leading to hazardous conditions or accidents. 3 d. Causation: Proving that the injuries sustained were directly caused by the 4 construction project or related activities. 5 e. Damages: Providing evidence of the actual harm, injuries, or losses suffered due TO THIS related 6 incident, the Plaintiff asks for $ 265,000,000.00 the Several of the cases reviewed address the need 7 for a plaintiff to provide evidence of injury in order to establish a claim. For example, in Goldstein 8 v. Islamic Republic of Iran, the court notes that a claimant must "establish[ ] his 9 claim or right to relief by evidence satisfactory to the court." Similarly, in 10 Bathiard v. Islamic Republic of Iran, the court emphasizes that a plaintiff must 11 establish her right to relief "by evidence satisfactory to the court" in order to 12 obtain a default judgment. Some cases provide more specific guidance on the type of evidence that 13 may be required. For example, in Barnette v. Grizzly Processing, LLC, the court discusses the 14 importance of medical evidence to support personal injury claims. In Graham v. Blissworld, LLC, 15 the court notes that the plaintiff must provide "medically documented proof of injury" in order to 16 recover for personal Injuries. Other cases emphasize the need to demonstrate a "distinct and 17 palpable" injury in order to establish standing to sue. For example, in Grimes, by and Through 18 Grimes v. Cavazos, The court finds that the plaintiff has "alleged a sufficiently distinct, palpable, 19 and concrete injury" to establish standing. Finally, some cases address the standard for determining 20 whether "serious personal injury" has been inflicted. For example, in State v. Herring, the 21 court notes that the determination must be made based on the "particular facts of each case." In 22 State v. Baker, the court similarly emphasizes that the question of whether there was "serious 23 personal injury" must be decided on the facts of each case. 24 III. FRAUD 25 10. False Representation: The first element of fraud alleged is the 26 Existence of a false representation or statement. This is a statement of fact, not an 27 opinion or a promise of future conduct. Defendant promised to do something about the 28 issues presented but did nothing but push the contractors to finish quickly and get -8- THIRD AMENDED COMPLAINT 1 out of the construction site. 2 11. The representation was objectively false, and it is related to a 3 Material fact, meaning a fact that is significant and important to the transaction. 4 12. Knowledge of Falsity: The parties Ken Gardener and Rubin 5 Hurin in making the false representation must have known that the statement was 6 false at the time it was made. Alternatively, they made the statement recklessly without 7 caring about its truth or falsity. 8 13. Intent to Deceive: The Defendant in making the false 9 representation had the intention to deceive or mislead the Plaintiff. This is often referred to as 10 "scienter" or "fraudulent intent." 11 14. Reliance: The Plaintiff who suffered harm due to the fraudulent 12 representation had reasonably relied on the false statement. Plaintiff believed 13 the statement to be true and based their decisions on that belief. Causation: The 14 false representation must have caused harm or damages to the party who relied on 15 it. There must be a direct link between the fraudulent statement and the losses suffered. 16 15. Damages: The Plaintiff alleging fraud has suffered actual 17 damages or losses as a result of relying on the false representation. 18 16. Materiality: The false representation was material to the 19 transaction and relationship between the parties. The false statement was significant enough 20 to influence the decision-making process. Proving fraud can be complex, as it 21 requires presenting strong evidence to support each of these elements. 22 Evidence can include the actions of the representation by Attorneys and their Infractions. 23 IV. BREACH OF WARRANTY 24 17. Breach of warranty is a legal claim that arises when a product or 25 Service fails to meet the promises or guarantees made by the seller or manufacturer 26 Warranties are assurances or representations about the quality, performance, 27 Or condition of a product or service, and when those promises are not fulfilled, 28 The consumer may have a right to seek remedies for the breach. There are -9- THIRD AMENDED COMPLAINT 1 several types of warranties that can apply in different situations: 2 18. Express Warranty: An express warranty is a specific and explicit Promise made by the seller or 3 manufacturer about the product or service. It can be in writing, such as a written warranty or a 4 statement on the product packaging, or it can be made orally. 5 19. Implied Warranty of Merchantability: This is an automatic warranty that applies by law to the 6 sale of goods. It implies that the goods sold are reasonably fit for their intended purpose and are of a 7 quality commonly acceptable in the trade. 8 20. Implied Warranty of Fitness for a Particular Purpose: This warranty arises when the seller 9 knows or has reason to know that the buyer is purchasing the product for a specific purpose. In such 10 cases, the seller implicitly assures that the product is suitable for that particular purpose. If a product 11 or service fails to meet the terms of the warranty, the consumer may have several remedies 12 available, depending on the type of warranty and the applicable laws. Common remedies for breach 13 of warranty include: 14 21. Repair or replacement of the product Refund or reimbursement of the purchase price Damages 15 for any harm caused by the defective product 16 22. The defendant did not abide by their own city codes for construction 17 And the assurances given at the 18 23. The Plaintiff establishes a breach of warranty for the city-owned 19 construction project, the plaintiff shall prove that the city provided a warranty, that the 20 project did not perform as promised, and that the plaintiff was harmed as a 21 result. California codes that may be violated in such a case include the California 22 Uniform Commercial Code and the Contractors License Law. 23 Analyisis 24 The cases reviewed suggest that a breach of warranty claim in the context of a 25 construction project generally requires the plaintiff to prove three elements: 26 (1) theexistence of a warranty, (2) the failure of the project to perform as promised, 27 and (3) harm to the plaintiff. For example, in 5th & LA v. W. Waterproofing Co., the 28 jury found that the company provided a warranty, the coating did not perform as - 10 - THIRD AMENDED COMPLAINT 1 promised, and the owner was harmed. Similarly, in Kelly v. Carriage Homes, the homeowners 2 alleged that the builder implicitly warranted that the homes were designed and 3 constructed in a skillful manner, and that the builder breached this warranty by failing to 4 prevent flooding and damage to their property. 5 The cases also suggest that the scope of the warranty is important. In City of Imperial v. 6 Ferguson Enters., Inc., the court found that the warranty exclusion in the Agreement was valid, and 7 that the buyer's sole warranty was that provided by the product's manufacturer. In C. Norman 8 Peterson Co. v. Container Corp. of America, the court found that the parties had abandoned the 9 original contract, and that the contractor was entitled to recover the reasonable value of the work 10 performed on a quantum merit basis. 11 The cases also suggest that the statute of limitations may be an issue in some cases. In Shakib v. 12 Namvar, the court found that the plaintiff's breach of oral contract claim was barred by the two-year 13 statute of limitations. In Cascade Gardens Homeowners v. McKellar Assoc, the court found that the 14 plaintiff's action was barred by the 10-year statute of limitations for damage actions against 15 developers of real property. 16 Finally, the cases suggest that there are a number of California codes that may be violated in a 17 breach of warranty case involving a city-owned construction project. For example, in West Bay 18 Builders, Inc. v. Kamran & Co., Inc., the court referenced California Business and Professions Code 19 § 7108.5, which requires contractors to pay subcontractors within 10 days of receiving a progress 20 payment. In Tellis v. Contractors' State License Bd., the court discussed California's Contractors 21 License Law and the requirements for disciplinary action against contractors. In City of Imperial v. 22 Ferguson Enters., Inc., the court referenced California Uniform Commercial Codesection 2719, 23 which allows parties to limit the remedies available in a breach of contract 24 case. meeting for approval of the parking garage 25 V. AMERICAN DISABILITIES VIOLATION TITLE II 26 24. The defendant knew of the alcohol and drug addiction of the Defendant and had full knowledge 27 of the extent due to the incident of arrest on the 28 grounds of the defendant before a hearing to approve his own property for development. - 11 - THIRD AMENDED COMPLAINT 1 23. With full knowledge of the addiction, the parties involved 2 decided to side step any demand by Plaintiff and continue the reckless method of 3 construction. 4 24. The defendant turned a deaf ear to Plaintiff’s demands and 5 conspired to continue without any regard to Plaintiff’s demands. 6 If a public entity is found to be in violation of Title II of the ADA regarding 7 alcohol and drug addiction, it means they have engaged in discriminatory practices or 8 failed to provide reasonable accommodations to individuals with substance use disorders. 9 VI. SOVEREIGN IMMUNITY 10 25. SOVEREIGN IMMUNITY should be denied 11 26. The plaintiff is Opposing sovereign immunity and challenges the legal doctrine that grants 12 immunity to certain government entities, such as cities and states, from certain lawsuits. 13 27. Sovereign immunity is a legal principle that historically protected governments from being sued 14 without their consent. However, many jurisdictions have waived or limited sovereign immunity to a 15 certain extent, allowing individuals to bring lawsuits against government entities in specific 16 circumstances. 17 28. To oppose sovereign immunity and proceed with a lawsuit against the City of Burlingame (or 18 any other government entity), you typically need to follow these steps: 19 29. Identify the Basis for the Lawsuit: Determine the specific legal 20 claims or causes of action you are pursuing against the city. 21 30. This includes claims for personal injury, property damage, breach of contract, civil rights 22 violations, or other legal theories. 23 31. Applicable Laws: The laws and regulations governing sovereign 24 immunity in this jurisdiction. California has specific laws that limit the scope of sovereign 25 immunity and outline exceptions where the government can be sued. 26 32. Identify Exceptions: 27 Identify any exceptions or waivers to sovereign immunity that may apply to 28 this case. There are existing jurisdictions may waive immunity for certain types of tort - 12 - THIRD AMENDED COMPLAINT 1 claims or contractual disputes. 2 33. Determine Jurisdiction: The Plaintiff has Determined which court 3 Or administrative agency has jurisdiction over your case. Government lawsuits 4 Often involve specific rules and procedures, and you must follow the proper 5 channels for initiating the lawsuit. 6 34. The plaintiff Filed a Complaint: Drafted and filed a complaint 7 with the City of Burlingame and is duly noticed as an exhibit given by defendants 8 attorneys. The complaint outlined the legal basis for your claims and the specific harm 9 you have suffered as a result of the city's actions or negligence. this hereby 10 refutes the testimony of Burlingame Witness that no complaint was filed. It was properly 11 filed and even documented the money amount was $ 299,000.00. 12 35. Serve the City: Plaintiff Served the complaint on the City of 13 Burlingame or its designated legal representative following the proper procedures for service 14 Of process. 15 Prepare Arguments: Plaintiff is prepared to argue your case, presenting evidence and legal 16 arguments supporting your position that sovereign immunity should 17 not apply in your specific situation. 18 36. The Plaintiff Attended Hearings and Proceedings: Participated in 19 hearings, conferences, or court proceedings as required by 20 the court or administrative agency. 21 37. The City of Burlingame had condemned the parking lot H located at 161 Highland avenue, and 22 recommended and adopted construction of a 5 story parking lot. 23 38. This structure is a proprietary or a business activity, in that the parking garage charges a fee for 24 profit to park cars for the downtown parking retail area. 25 39. This structure is a business activity as defined above. 26 40. Sovereign immunity for state and local governments under 27 U.S. law is not absolute, and whether it applies can depend on 28 the specific action involved. Sovereign immunity originates from the common law and prevents - 13 - THIRD AMENDED COMPLAINT 1 suits against the government without its consent.The Federal Tort Claims Act waives 2 federal sovereign immunity for torts committed by federal employees. 3 41. States have varying laws on waiving immunity for state/local governments, agencies, 4 employees. It varies by jurisdiction. 5 42. Generally, acts classified as "governmental functions" 6 receive broad immunity protection, while "proprietary acts" have narrower immunity. 7 43. Specific immunity statutes may expressly grant or limit 8 immunity for certain government activities. 9 44. Courts analyze the specific government conduct at issue to 10 determine if sovereign immunity applies or if it has been statutorily waived. 11 45. sovereign immunity does not automatically apply absent analysis of the specific government 12 action and whether immunity has been waived by statute in that jurisdiction. 13 46. The applicability of sovereign immunity depends on the specific activity and legal context. 14 Mere assumption is not enough - the analysis and ruling needs to be performed by courts. 15 47. In Maxon Industries, Inc. v. State Compensation Ins. Fund, the court held that the state fund was 16 not immune from suit under 17 48. The City of Burlingame never received sovereign immunity from the legislature. 18 49.. The violation of Federal Laws provides the ability to sue a municipality for 19 their actions and their hired attorneys transgressions. the California Tort Claims Act because the 20 legislature had not specifically granted immunity. This case clearly states that if the legislature has 21 not specifically granted immunity to the City of Burlingame, it may not be able to claim it. 22 48. Dropo v. City & County of S. F. discusses the applicability of municipal ordinances to a city 23 acting in its proprietary capacity, which could also be relevant to the question of whether the City of 24 Burlingame is immune from suit. 25 49. The cases of City of Bell v. Superior Court and Masters v. of Motor Vehicles both discuss the 26 circumstances under which a public entity may refuse to provide a defense for a public 27 employee, which could be relevant to the question of when sovereign immunity might not apply. 28 - 14 - THIRD AMENDED COMPLAINT 1 50. Bettencourt v. State of California, the court discusses the distinction between governmental and 2 proprietary functions, and the circumstances under which sovereign immunity may be 3 waived. This case could also be relevant to the City of Burlingame, depending on the specific facts 4 of the case. 5 6 POINTS AND AUTHORITIES 7 8 • The case discusses the defense of governmental 9 • immunity from liability for tort, and concludes that it is 10 • not available to the state and the society in the particular 11 circumstances. 12 It also discusses the distinction between governmental and proprietary activities, which may be 13 relevant. "The trial court granted the motion of the state and the society for judgment on the 14 pleadings, on the ground that the state fair is operated in the state's governmental capacity and that 15 the state and society are therefore immune from suit. Plaintiff appeals from the ensuing judgment in 16 favor of the state and the society. We have concluded that the defense of governmental immunity 17 from liability for tort is not available to the state and the society, and that the judgment must 18 therefore be reversed." "Plaintiff alleged compliance with the claim statute. (Gov. Code, § 16044.) 19 [1] The state and its instrumentalities and subdivisions are not immune from liability for torts 20 committed while engaged in proprietary or business activities. (Gov. Code, § 16041; People v. 21 Superior Court, 29 Cal.2d 754, 761-762 [ 178 P.2d 1]; Muses v. Housing Authority, 83 22 Cal.App.2d 489, 502 [ 189 P.2d 305].)""The activities of defendants do not differ from those of 23 private enterprise in the entertainment industry 24 • Maxon Industries, Inc. v. State Compensation Ins. Fund, 16 25 Cal.App.4th 1387 (Cal. Ct. App. 1993)This case discusses theconditions under which a state fund is 26 not immune from suit under the California Tort Claims Act, which may be analogous to 27 the research request. "The subject of the Fund's immunity from tort liability is thoroughly 28 - 15 - THIRD AMENDED COMPLAINT 1 treated in Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504 [ 11 2 Cal.Rptr.2d 161]. That decision reviews most of the arguments made here, as well as the legislative 3 history of Insurance Code section 11873 We agree with the reasoning and conclusions of the court 4 in Courtesy Ambulance relating to this issue." "The Courtesy Ambulance court concluded that 5 Insurance Code section 11873 excludes the Fund from the immunities in the Tort Claims Act. (8 6 Cal.App.4th at p. 1514.) The court pointed out that Insurance Code section 11873 is clear in this 7 regard and does not require construction or interpretation." "To the contrary, it places the Fund in 8 the same position as other insurers, a position the Fund itself was at pains to urge upon the 9 Legislature and others, and which finds support from the very beginning of the workers' 10 compensation system in this state. (See Courtesy Ambulance Service v. Superior Court, supra, 8 11 Cal.App.4th atpp. 1511-1513, 1515, fn. 8.)" 12 • Dropo v. City & County of S. F., 167 Cal.App.2d 453 (Cal. Ct. App. 1959)This case discusses the 13 applicability of municipal ordinances to a city acting in its proprietary capacity, which is 14 relevant to the research request's inquiry into conditions that would refute sovereign immunity. 15 "Admitted in evidence were sections 51 and 52 of the Municipal Code. Section 51 provides: 16 "Inexperienced platform men prohibited. It shall be unlawful for any person not having had 17 previous experience to act as motorman, gripman or conductor on street railroad cars within the 18 City and County of San Francisco, unless said person shall have had at least seven days' experience 19 in such capacity in this City. waiver: In some cases, a city may waive its sovereign immunity 20 explicitly. This means that the city agrees to be subject to lawsuits in certain situations. Waivers 21 could be found in contracts, agreements, or ordinances. It's crucial to review any relevant 22 documents to determine if a waiver exists. 23 • Government Claims Act: In California, the Government Claims Act (California Government 24 Code sections 810-996.6) outlines the procedure for filing claims against governmental entities, 25 including cities. Under this act, you generally need to file a claim with the city or municipality 26 before filing a lawsuit. If the city rejects your claim or doesn't respond within a specified period, 27 you may then proceed with a lawsuit. 28 - 16 - THIRD AMENDED COMPLAINT 1 • Dangerous Condition of Public Property: There are exceptions to 2 sovereign immunity for cases involving dangerous conditions of public property (California 3 Government Code section 835). If you believe that the city's negligence or failure to maintain public 4 property caused your injuries, you might be able to sue under this exception. Tort Claims Act 5 Exceptions: The California Tort Claims Act (California Government Code sections 814-895.8) 6 includes various exceptions to sovereign immunity. For example, there are exceptions for injuries 7 caused by the negligent acts of government employees within 8 the scope of their employment. 9 • Federal Claims: In certain cases, federal laws may allow individuals to 10 sue cities for civil rights violations, discrimination, or other federal law 11 violations. 12 • Contractual Liability: The Plaintiff had a a valid oral contract with the city, be and Plaintiff is 13 sue(ing) for breach of contract, even if the city enjoys sovereign immunity for other claims. Inverse 14 Condemnation: Inverse condemnation may apply if the government takes private property for 15 public use without just compensation, and this includes actions by cities. 16 17 VII. PUNITIVE DAMAGES 18 Punitive damages, also known as exemplary damages, are a form of monetary compensation 19 awarded to a plaintiff in a civil lawsuit. Unlike compensatory damages, which aim to reimburse the 20 plaintiff for their losses and expenses, engaging in similar behavior. As a result, punitive damages 21 are typically awarded in cases where the defendant's actions were especially reckless, intentional, or 22 malicious. Punitive damages are commonly awarded in cases involving intentional wrongdoing, 23 fraud, gross negligence, and other acts of extreme misconduct. For example, they may be awarded 24 in cases of product liability, medical malpractice, or environmental pollution where the defendant's 25 actions were particularly reprehensible. State Laws Vary: The availability and limitations of 26 punitive damages vary by jurisdiction, as each state has its own laws and regulations governing 27 their use. PLAINTIFF MUST meet a higher standard of proof to be awarded punitive damages. 28 Typically, they need to show that the defendant's conduct was not just negligent but involved a - 17 - THIRD AMENDED COMPLAINT 1 willful or wanton disregard for the safety or rights of others. Compensation Limits: In cases where 2 punitive damages are awarded, the amount is often limited based on a multiple of the compensatory 3 damages. The exact limits can vary by state and case. Punitive damages are a controversial aspect of 4 civil litigation because of their potential to result in significant financial penalties for defendants. 5 6 PLAINTIFF respectfully requests to Dismiss this current Action with 7 leave to file in a Federal District Court. The reasons are as follows: 1. Todd Master, Jenni Li, and 8 Deputy District Attorney Joel McComb, Stephen Wagstaffe, and Christina Cerny, a high ranking 9 member of the Revenue Department of San Mateo County, have conspired to influence the outcome 10 of Civil Matter 21CIV06777. 11 2. Joel McComb is currently prosecuting a case 19SF014863A and has violated the Defendant’s 12 rights under the 8th Amendment of unjust and undue prosecution. 13 3. Upon information and belief, these individuals have met, spoken, and discussed the current civil 14 case 21CV06777. 15 4. It is a crime for a deputy district attorney prosecuting a felony misdemeanor to collude with a 16 defense attorney on another case with the same individual, suing the city of Burlingame. 17 5. This is a conflict of interest for the deputy district attorney to 18 be involved in both cases, as they could use information from one case to help their 19 case in the other. 20 6. The California Code of Judicial Ethics prohibits lawyers from engaging in Conduct that would “ 21 CREATE AN APPEARANCE OF 22 IMPROPRIETY.” This includes colluding with opposing counsel in a civil matter that 23 could prejudice the outcome of a case. 24 7. Deputy District Attorney and the defense attorney colluded and shared information in order to 25 cause the person to be discredited or impugned, they should be charged with a number of crimes 26 including. 27 A. Conspiracy to commit a crime 28 B. Obstructing Justice - 18 - THIRD AMENDED COMPLAINT 1 C. Perjury 2 8. Deputy District Attorney hid behind the cloak of conspiracy by sending in Christina Cerny, who 3 worked for revenue services, and testified in my trial. 4 9. Both individuals were communicating, but the Department of Revenue hid behind noble causes 5 such as collecting money for the State of California. 6 10. This illegal purpose helped Deputy District Attorney Joel8. 7 TORTIOUS INTERFERENCE WITH CONTRACT 8 A. Tortious interference with contract is a legal term that refers to a civil 9 Wronging which one party intentionally and unjustifiably interferes with the performance of a 10 contract between two other parties. This interference typically causes harm to one of the contracting 11 parties, leading to financial lessor other damages. 12 B. CONTRACT: There is a contract between the Defendant and the plaintiff in a legal proceeding, 13 and that contracts is oral and in writing. There also exists a contract between the People of 14 California, and prosecutor Stephen Wagstaffe, Joel McComb. 15 C. INTERFERENCE: Tortious interference with contract applies when there is an an existing valid 16 contract between two parties. The interference is intentional and unjustified. It involves actions take 17 by the third party which is Christina Cerny, of California Department of Revenue that disrupts the 18 performance of the contract or prevents one of the parties from fulfilling their obligations under the 19 agreement. 20 D. DAMAGES: The interference has cost harm and financial loss to Plaintiff 21 One of the contracting parties. 22 E. LACK OF PRIVILEGE OR JUSTIFICATION: The Deputy 23 District Attorney, Joel McComb and Christina Cerny did not have a valid legal reason or privilege 24 to interfere with the contract. 25 F. CAUSATION: There is a direct link between the interference and the resulting damages. Plaintiff 26 can prove the interference caused the harm suffered by the Plaintiff. 27 G. Remedies for tortious interference with contract should include compensatory damages to cover 28 the financial losses incurred, as well as punitive damages, and because the interference was - 19 - THIRD AMENDED COMPLAINT 1 egregious and malicious. The defense attorneys and the Deputy District Attorney have tortiously 2 interfered with the Plaintiff by sharing confidential information about the case. 3 9. DEFAMATION Defamation of character, commonly known as defamation, is a legal term that 4 refers to making false statements about someone that harm their reputation. It involves the 5 communication of false information to a third party, which may result in damage to the person's 6 reputation, standing in the community, or even their business or personal relationships. 7 A. Defamation can take two main forms: 8 1. Libel: libel refers to written or printed defamatory statements, such as those published in 9 newspapers, magazines, books, online articles, social media posts, or other written forms. 10 2. Slander: Slander refers to spoken defamatory statements, including those made during 11 conversations, speeches, radio broadcasts, podcasts, or other oral communication. 12 3. A defamation claim has the following elements that Plaintiff can perfect and proven: 13 A. False Statements made about the Plaintiff are false. Truth is an absolute defense against 14 defamation. If the statements and allegations are true, it would not be defamatory. 15 B. Publication, the false statements must be communicated to a third party, and there should be 16 adequate written communications between the District Attorney’s Office, the Revenue Department, 17 and Defense Attorney’s office in the form of texts and emails.C. Identification is about specific 18 individuals, such as Joel McComb, Stephen Wagstaffe, Christina Cerny, Todd Master, Jenni li , and 19 Faith Hill. 20 D. Harm, the false statements have caused harm to the person’ reputation , with through tangible 21 damages ( e.g. financial losses) or non economic harm to the Plaintiff’’s 22 reputation . 23 10. NEGLIGENCE OR ACTUAL MALICE 24 Negligence or actual malice, Defense Attorney and all other individuals named in failure to exercise 25 reasonable care to verify the truth during Discovery of all emails and communication by and 26 between the parties. 27 B. The defense attorneys and the deputy District Attorney have defamed the plaintiff by making 28 false and defamatory statement about the plaintiff. - 20 - THIRD AMENDED COMPLAINT 1 10. MISREPRESENTATION 2 Misrepresentation is a legal term that refers to a false statement of fact made by one party to 3 another, with the intent to induce the other party into a contract or transaction. It is a form of 4 deception that can have significant legal consequences, particularly in contract law. 5 A. Misrepresentation occurred in various contexts, such as business transaction, sales of goods, real 6 estate deals, employment contracts, or any situation where one party relies on the information 7 provided by another. Real estate deals, employment contracts, or any situation where one party 8 relies on the information provided by another. 9 B. Negligent misrepresentation occurred when the parties making the 10 false statement does so without exercising reasonable carrot ensure its accuracy. 11 Although not intentionally deceptive, the party fails to verify the truth of the 12 statement before making it. 13 C. Fraudulent misrepresentation also known as deceit, this is the most 14 serious form of misrepresentation and is typically viewed as a deliberate act of 15 dishonesty. It involves knowingly false statement made with the intent to deceive 16 and induce the other party into a contract or transaction. 17 D. The Plaintiff will establish the misrepresentation to be legally 18 actionable, and certain elements will be established. 19 E. False statement of fact, the statement must be one of fact and not 20 just an opinion or mere puffery. 21 F. Materiality the false statement must be significant enough influence the decision making of the 22 party who relied on it. 23 G. Reliance the misled party must have relied on the false statement and entered in to the contract or 24 transaction based on that reliance. 25 H. Causation, the misrepresentation must have caused the misled party 26 to suffer harm or incur losses. 27 I. Remedies for the misrepresentation may include rescission of the 28 contract (voiding the agreement) damages to compensate for losses suffered, or - 21 - THIRD AMENDED COMPLAINT 1 specific performance. Defense attorneys and the Deputy District Attorney have misrepresented their 2 intentions to Plaintiff by concealing their collusion with the district attorney. 3 11. The California Code of Judicial Ethics prohibits lawyers from engaging in conduct that “would 4 create an appearance of impropriety." This includes colluding with opposing coun