This case involves the City of San Clemente, its Building Division and official misuse of the power of the government to issue building permits to an individual who did not have the required contractor’s license or the skills to complete Plaintiffs’ construction project on what was their home in San Clemente. Once discovered, a web of lies and wrongdoing unfolded subjecting Plaintiffs to veiled and overt threats by City Building Division employees aimed at coercing Plaintiffs to keep quiet about improper governmental conduct.

Defendant City of San Clemente (“City”) is and was a municipal corporation organized and existing under the laws of the State of California which are equally charged with complying with their duties under the City of San Municipal Code, the laws of the State of California, and the laws of the United States of America.

Defendant John Hardesty (“Hardesty”) is an individual residing in the County of Orange, State of California and was an employee of the City, in particular the Building Division, holding the title and position of “Building Inspector”.

Defendant Willie Tullius (“Tullius”) is an individual residing in the County of Orange, State of California and was and is an employee of the City, in particular the Building Division, holding the title and position of “Senior Building Inspector.”

Defendant Michael Jorgenson (“Jorgensen”) is an individual residing in the County of Orange, State of California and was and is an employee of the City, in particular the Building Division, holding the title and position of “Building Official.”

The City is responsible for Plaintiffs’ injures under 42 U.S.C. § 1983 because its policies, customs, and/or practice caused Plaintiffs’ injuries and damages. The City is also responsible for the actions and omissions of its employees under a respondeat superior theory under California law. In addition, the City and/or the individual employees are liable as set forth in the Government Tort Claims Act as set forth in California Government Code Section 815.6 et seq.


BLEDSOE VS THE CITY OF SAN CLEMENTE

08-107486


1. DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION AS TO SECOND AND THIRD CAUSES OF ACTION


The motion by the City of San Clemente for summary adjudication of issues on causes of action 2 and 3 is denied.


As to cause of action 2, the moving party failed to meet its burden to show that it complied with its mandatory duty to ensure that there was compliance with B&P 7031.5 regarding the declaration. Although the declaration here was signed by the contractor and identified the license number, the declaration also identified a license classification that did not cover the work being permitted. Under the Attorney General opinion noted in the annotation to B&P 7031.5 that appears to be a violation of the mandatory duty.


As to cause of action 3, the moving party failed to meet its burden. The cause of action was based on two purported breaches of a mandatory duty, 1) “Approving” construction that failed to comply with the applicable building codes and 2) failure to stop construction after inspections revealed failures to comply with the applicable building codes. Defendant only addressed the latter, which would not have resolved the entire cause of action. CCP 437c(f)(1). To the extent City’s discussion as to cause of action 2 sufficiently addressed the immunity for discretionary decisions, the City failed to support the argument with facts in the separate statement, to establish that the decision was discretionary under these circumstances. City only had a conclusory fact that a permit was issued. [Defendant UFs 8 & 22]


1. DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT
2. DEFENDANTS’ MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT
3. DEFENDANTS’ MOTION TO CONSOLIDATE CASE NO. 30-2008-00107486 WITH CASE NO 30-2008-110249
4. CASE MANAGEMENT CONFERENCE

The demurrer to the 1st cause of action is overruled as to Defendant Tullius and sustained without leave as to Defendant Jorgensen. Fraud has been sufficiently pleaded as to Tullius but the allegations as to Jorgensen are mere conclusions.

The demurrer to the 3rd cause of action is overruled as to the City and Tullius. Defendant’s sole argument in moving papers is immunity but immunity does not apply where fraud has been alleged. Demurrer is sustained as to Jorgensen, there are insufficient facts to impose liability against him.

The demurrer to the 4th cause of action is overruled as to both Tullius and Jorgensen. It is a question of fact whether defendants intended to interfere with plaintiff’s assertion of their 1stAmendment rights.

The demurrer to the 5th cause of action is sustained without leave to amend. Plaintiffs still fails to plead adequately a violation of due process.

The demurrer to the 6th cause of action is overruled. Defendants fail to submit authority that plaintiffs’ allegations re custom, policy and practice are adequate for pleading purposes.

The motion to strike is denied.

The motion to consolidate is granted. There is no opposition to the motion. Actions # 08-00107486 and # 08-00110249 have common issues of law and fact.


Attorney Generals office


Case Violation Disclosure


License Number: 355363
Contractor Name: TOUSSIENG LANDSCAPE CONSTRUCTION INC
Case #: N 2009 000441
Date: 07/28/2010
Status: PENDING
Number of Complaints: 1

CODE VIOLATION DESCRIPTION
Business & Professions Code 7115 Failed to comply with Contractor's License Law
Business & Professions Code 7107 Abandonment without legal excuse of any construction project
Business & Professions Code 7109.A Departed from trade standards
Business & Professions Code 7113 Exceeded contract amount
Business & Professions Code 7117.6 Contracted out of classification
Business & Professions Code 7109.B Departed from plans or specifications
Business & Professions Code 7110 No right to cancel notice
Business & Professions Code 7159.C3A Starts buyer's rights as to right to cancel
Business & Professions Code 7159.C3BII Fail to give name & addr for mailing the notice of cancel
Business & Professions Code 7159.C5 No written change orders
Business & Professions Code 7159.C6 No notice re: obtaining a performance and pymnt bond
Business & Professions Code 7159.D4 Notice that docs are to be complete before work is started
Business & Professions Code 7159.D5 No contract price heading or amount
Business & Professions Code 7159.D7 No description of project, materials or equip to be used
Business & Professions Code 7159.D8A No heading for a down payment
Business & Professions Code 7159.D8C Excessive down payment
Business & Professions Code 7159.D9C No payment schedule: payment exceeds value of work
Business & Professions Code 7159.D10B No approximate start date heading
Business & Professions Code 7159.D11A No approximate completion date heading
Business & Professions Code 7159.D13 No notice as to the impact of work and change orders
Business & Professions Code 7159.E1 No notice regarding general liability insurance
Business & Professions Code 7159.E2 No notice re: workers compensation insurance doc
Business & Professions Code 7159.E3B No ntc: un-enforceability of chnge orders not complying
Business & Professions Code 7159.E3C No notice as to limitation of unjust enrichment
Business & Professions Code 7159.E4 No heading or notice as to the mechanic's lien
Business & Professions Code 7159.E5 No notice regarding the CSLB
Business & Professions Code 7159.5A4 Payment schedule not tied in to the value of work performed
Business & Professions Code 7159.E6A Did not provide a 3 day right to cancel notice
DOCUMENTS
N2009-441-20100728-Accusation.pdf