McInchak v. City of Carmel-By-The-Sea (M128062) 06-04-14

8/12/2019 McInchak v. City of Carmel-By-The-Sea (M128062) 06-04-14

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MICHELLE A WELSH, State ar No 084127STONER, WELSH SCHMIDT FILE13 Forest AvenuePacific Grove, CA 93950-4201Telephone: (831) 373-1993Facsimile: (831) 373-1492Attorneys for Petitioner/Plaintiff

UN 0 4 2 14

SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY

Steven Mclnchak,Petitioner/Plaintiff

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

) Case No. M 12 8 6;) VERIFIED PETITION FORWRIT OF) MANDAMUS (CODE OF CIVIL) PROCEDURE SECTION 1085)) AND COMPLAINT FOR) DECLARATORY JUDGMENT,) BREACH OF CONTRACT,) DEFAMATION AND INTENTIONAL) AND NEGLIGENT INFLICTION OF) EMOTIONAL DISTRESS

Respondents/Defendants )20 Petitioner/Plaintiff alleges:21 PRELIMINARY STATEMENT22 Petitioner/Plaintiff Steven Mclnchak is a permanent employee of the City ofCarmel-23 by-the-Sea. He has been employed by the City since 1997 as its Information Systems Netwo24 Manager, responsible for managing and supervising the City's entire computer system.25 Throughout his employment, Petitioner/Plaintiff Mclnchak has performed his duties in an26 exemplary manner and with the highest professionalism and integrity. This action is brough27 to enforce the mandatory requirements of the Ordinances and Personnel System of the City28 Carmel-by-the-Sea, the Constitution and laws of the State ofCalifornia, and the mandatory

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1 arising under those laws. In addition to the Petition for Writ of Mandate, Petitioner/Plaintiff2 also seeks a Declaratory Judgment of his rights and the City s duties, and Petitioner/Plaintiff3 states claims for violations of his constitutional rights, breach of contract and defamation of4 character.5 On June 5 2013 the City of Carmel-by-the Sea unilaterally placed Petitioner/Plaintiff6 on administrative leave from his position as Information Systems Network Manager without7 cause, notice or hearing. The City has kept Petitioner/Plaintiff on administrative leave,8 preventing him from performing his job duties or returning to work since June 6 2013, a9 period of nearly 12 months. The City s actions violated, and continue to violate,1o Petitioner/Plaintiffs rights to due process of law secured by Article 1 Section 2 of the11 Constitution of the State of California by depriving him of liberty and property without caus12 notice and hearing. Further, the City s actions violated Petitioner/Plaintiffs right to privacy13 and impaired Petitioner/Plaintiffs vested contractual rights in violation ofthe Constitution o14 the State of California at Article 1 Section 1 and Section 9. The City has also violated its15 own Ordinances.16 Petitioner/Plaintiff seeks a Writ of Mandate compelling the City of Carmel-by-the-Se17 through its City Council, City Administrator and Administrative Services Director, to reinsta18 Petitioner/Plaintiff to his position as Information Systems Network Manager forthwith.19 Petitioner/Plaintiff further seeks to recover damages for all economic and general damages20 and losses he has incurred as a result of the continuing failure and refusal of the City of21 Carmel-by-the-Sea, its City Council, City Administrator and Administrative Services Directo22 to perform their mandatory legal duties in violation of Petitioner/Plaintiffs Constitutional an23 legal rights.24 P RTIES25 1 Petitioner/Plaintiff Steven Mclnchak has been employed by Respondent/26 Defendant City of Carmel-by-the-Sea as its Information Systems Network Manager from Ju27 1 1997 to the present. Petitioner/Plaintiff is a resident of Monterey County, California.28

AT LAW

2. Respondent/Defendant City of Carmel-by-the-Sea (hereinafter City of Carmelclnchak v. City of Carmel-by-the-Sea, etVerified Petition for Writ of Mandamus and Complai

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is and at all times herein mentioned was a General Law City duly organized and existing2 under the laws of the State of California and located in Monterey County California.3 3. Respondent/Defendant Jason Stilwell is and at all relevant times was the City4 Administrator of the City of Carmel-by-the-Sea.

4. Respondent/Defendant Susan Paul is and at all relevant times was the6 Administrative Services Director of the City of Carmel-by-the-Sea.7 5. Petitioner/Plaintiff is unaware of the true names and capacities of Respondent8 Defendants designated as Does 1 through 50 inclusive. Petitioner/Plaintiff is informed and9 believes that each of the Respondents/Defendants designated as Does 1 through 50 is

IO responsible for the acts omissions and wrongful conduct alleged herein. Petitioner/PlaintifII will seek leave to amend the Petition/Complaint to state the true names and capacities of Do12 1 through 50 when they are ascertained.13 COMMON FACTS4 6. Petitioner/Plaintiff Steven Mclnchak was employed by the City of Carmel-by-

15 the-Sea on July I 1997 in the position ofinformation Systems Network Manager. The16 position was created by the City Council of the City of Carmel in 1997 as a management17 position and Petitioner/Plaintiff was the first employee hired as Information Systems Netwo18 Manager. Petitioner/Plaintiff reported directly to the City Administrator until 2013 when he19 was directed to report instead to the Administrative Services Director.20 7. As Information Systems Network Manager Petitioner/Plaintiff was at all21 relevant times responsible for managing the City s computer system development and22 operations activities providing professional assistance to City staff in information systems23 development analysis assisting in management of all information systems activities24 throughout the City by coordinating planning and evaluating operations of the system25 including programming computer operations network administration and management of26 equipment and software acquisitions installation and repair. Peti tioner/Plaintiffs duties27 required him to serve as systems supervisor for managing the computer system including28 network security passwords user configurations and changes to accommodate individual a

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1 departmental needs. A true and correct copy of the position description of the Information2 Systems Network Manager is attached as Exhibit A and incorporated herein.3 Petitioner/Plaintiff was required to be accessible to the City, its Administrators, its elected4 officials and employees twenty-four hours a day, seven days a week to solve problems or5 answer questions about the City's computer system.6 8. At all times during the course of his employment Petitioner/Plaintiff performe7 his job duties in an exemplary manner and with the highest degree of professionalism and8 integrity. All of his personnel evaluations were satisfactory or outstanding and he received9 positive comments and commendations for his job performance. Prior to May 30, 2013

10 Petitioner/Plaintiff had never received any notice of dissatisfaction with his job performanceor disciplinary action of any kind during the previous sixteen years of his employment with

12 the City of Carmel.13 9. Petitioner/Plaintiff is a permanent, long-term employee of the City of Carmel.14 As such, Petitioner/Plaintiff accrued a property interest in his employment as a public15 employee under the Constitution of the State of California, including the right to retain his16 employment in the absence of just cause for termination. Nevertheless, on or about July 1,17 2005 then City Administrator of the City of Carmel presented to Petitioner/Plaintiff a18 document titled Employment Agreement City of Carmel-by-the-Sea Information Systems19 Network Manager . That Employment Agreement purports to change Peti tioner/Plaintiffs20 employment status from a permanent to at-will employee subject to termination by the Cit21 Administrator without cause or right of appeal. Petitioner/Plaintiff was informed that he was22 required to sign that Agreement as a condition of remaining employed by the City of Carme23 Petitioner/Plaintiff received no notice, hearing, or any consideration or other benefit in24 connection with the Employment Agreement. Petitioner/Plaintiff was compelled to sign, an25 did sign the Employment Agreement, with no notice or intent to waive his vested rights and26 under threat that if he did not sign the Employment Agreement his employment would be27 immediately terminated without cause. A true and correct copy of the Employment Agreem28 is attached as Exhibit B al .d incorporated herein.

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10. On June 5 2013 without prior notice or warning agents of the City of Carme2 appeared at Petitioner/Plaintiffs home together with the Chief of Police and three law3 enforcement officers from the City of Carmel and the Monterey County Sheriffs Departmen4 who served upon Petitioner/Plaintiff a search warrant and proceeded to search his residence.5 Agents for the City of Carmel including Respondent/Defendant Susan Paul entered6 Petitioner/Plaintiffs home without his permission with no legitimate need to be present an7 over his objections. Agents for the City of Carmel took possession of Petitioner/Plaintiffs8 home computer which he shared with his wife Karen Mclnchak. Also taken were9 Petitioner/Plaintiffs City laptop computer and multiple thumb drives and disks including al1 back-up disks. None of the property taken on June 5 2013 has been returned to11 Petitioner/Plaintiff and to his knowledge it remains in the possession of the City of Carmel12 11. Petitioner/Plaintiff together with his wife Karen Mclnchak own and operate 13 private business engaged in showing breeding and sales of oriental shorthair cats. Karen14 Mclnchak is and at all relevant times was an internationally-recognized expert certified by15 the International Cat Association to serve as a judge at cat shows a business in which she is16 regularly engaged. Karen Mclnchak is not now and never has been an employee of the Cit17 of Carmel. Nevertheless all of the business records archived photographs contacts and18 documents necessary for their cat showing and breeding business were stored on19 Petitioner/Plaintiffs home computer and were taken from their home by agents of the City o20 Carmel on June 5 2013. The home computer and business documents were never returned21 causing irreparable damage to their business and loss of irreplaceable archived photographs22 and other business and personal data unrelated to the City of Carmel.23 12. At the same time on June 5 2013 agents of the City of Carmel including24 Respondent/Defendant Susan Paul notified Petitioner/Plaintiff that he was placed on25 administrative leave pending investigation of criminal charges against him. No criminal or26 other charges have ever been filed and to Petitioner/Plaintiffs knowledge neither the Carm27 Police Department nor any other law enforcement agency has requested the filing of any28 criminal charges against Petitioner/Plaintiff Steven Mclnchak.

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13. The allegations against Petitioner/Plaintiff by the City of Carmel are false. Pri2 to the June 5 2013 search of his home and seizure of his property Petitioner/Plaintiff had n3 knowledge or notice of any allegations against him by the City ofCarmel. To date4 Petitioner/Plaintiffhas never received notice of charges from the City of Carmel.5 Nevertheless under threat of immediate discharge for insubordination he was directed to6 appear at a mandatory investigative interview conducted by an attorney representing the City7 of Carmel without any opportunity to review respond to or to rebut charges or to review an8 evidence of any of the allegations of wrongdoing made by the City of Carmel against him9 which have been widely published and republished throughout the community.

1o 14. Agents of the City of Carmel made the false allegations of criminal conduct an11 work-related misconduct against Petitioner/Plaintiff and disclosed confidential personnel12 information of and concerning him to other employees of the City ofCarmel to elected3 officials to news media to reporters and to the general public. Such false and defamatory

14 allegations including allegations of criminal conduct irreparably damaged15 Petitioner/Plaintiffs reputation in his profession his employment and his community violat16 his privacy impaired his contract of employment and violated his liberty interest in his17 employment all in violation of his right to due process of law under the Constitution of the18 State of California and in violation ofCalifornia law.19 15. Since Petitioner/Plaintiff was placed on involuntary leave of absence on June 20 2013 to the present time Petitioner/Plaintiff has been prevented from performing his job21 duties retrieving his personal property or accessing his home and office computers.22 Petitioner/Plaintiff has been prevented from pursuing his professional occupation and23 livelihood all without cause notice or hearing and in violation of his constitutional rights to24 due process of law stigmatizing him to the point that he will be incapable of securing25 comparable future employment all to his damage as alleged herein.26 16. Petitioner/Plaintiff is 62 years of age. Petitioner/Plaintiff is informed and27 believes and thereon alleges that he is one of at least seven long-term employees over the a28 of 40 years who have been terminated placed on involuntary leave of absence pending an

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investigation of allegations of misconduct placed under disciplinary investigation by the Cit2 of Cannel or forced to resign since on or about March 1 2013. The City Administrator and3 other agents of the City of Cannel have instituted a pattern and practice of discrimination4 based on age causing a disparate impact on older employees which is continuing in violation

of California law. Petitioner/Plaintiff has also been subjected to disparate treatment because6 his age. He has never been convicted of any crime of moral turpitude. Yet Petitioner/Plainti7 is informed and believes that a female employee who is more than twenty years younger than8 himself was convicted of welfare fraud during her employment with the City of Cannel as it9 Finance Specialist without suffering any discipline discharge involuntary leave of absence o investigation of wrongdoing. On May 16 2014 Petitioner/Plaintiff filed a Complaint of

Discrimination with the California Department of Fair Employment and Housing against the2 City of Cannel-by-the-Sea and responsible individuals based upon discrimination against him

13 because of his age in violation of the California Fair Employment and Housing Act at14 Government Code Section 12900 et seq. which remains under investigation.15 Petitioner/Plaintiff will seek leave to amend the Complaint upon receipt of Notice of Case16 Closure and Right to Sue from the California Department of Fair Employment and Housing.17 17. On or about December 4 2013 Petitioner/Plaintiff duly submitted a Notice of18 Government Claim to the City Clerk of the City of Cannel-by-the-Sea. On January 9 201419 Respondents/Defendants City of Cannel-by-the-Sea rejected Petitioner/Plaintiffs Governme20 Claim. A copy of the Notice of Rejection of Claim is attached as Exhibit C and incorporated2 herein. Petitioner/Plaintiff has exhausted or attempted to exhaust all available administrati22 remedies.23 18. The actions and course of conduct of Respondents/Defendants and other agen24 of the City of Cannel as alleged herein constitute arbitrary and capricious conduct within th25 meaning of California Government Code Section 800 and intentional unlawful conduct in26 violation of California and federal law and the California and United States Constitutions.

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FIRST CAUSE O ACTIONPetition for Writ ofMandamus:

Performance ofMinisterial Duty CCP Section 1085)Against All Respondents/Defendants in their Official Capacities)

Petitioner/Plaintiff incorporates by reference each and every allegation of theCommon Facts in paragraphs 1 through 18 as though fully set forth.20. At all times relevant herein Respondents/Defendants City ofCarmel and its

agents had a clear present and ministerial duty under the Constitution of the State of8 California to refrain from depriving Petitioner/Plaintiff of his liberty interest in his9 employment by threatening to institute disciplinary action based on false charges that impair1 Petitioner/Plaintiffs reputation for honesty and morality and his standing and associations in11 the community. These false allegations are denied by Petitioner/Plaintiff. The false12 allegations were publicly disclosed by the City of Carmel which stigmatized and officially13 branded Petitioner/Plaintiff to the point that he is not free to seek other employment to pursu[4 his professional occupation or even to volunteer his services in the community.15 21. At all times relevant herein Respondents/Defendants City ofCarmel and its16 agents had a ministerial duty under the Constitution of the State of California to retain17 f detitioner/Plaintiff in his employment with the City of Carmel in the absence o goo cause 18 terminate or suspend him involuntarily and to refrain from depriving Petitioner/Plaintiff of19 his property and his property interest in his public employment without notice a statement o20 reasons a copy of the charges and of all materials on which the proposed action is based an21 the right to a hearing within a reasonable time. A year or more is not a reasonable time.22 22. At all times relevant herein Respondents/Defendants City of annel and its23 agents had a clear present and ministerial duty under the Personnel System Ordinances of th24 City of Carmel-by-the-Sea at Section 2.52 .375 to comply with the procedures described in t25 Personnel System Ordinance at the earliest time practicable and to refrain from placing26 Petitioner/Plaintiff on involuntary administrative leave of absence without good cause to27 believe that he is guilty of extreme conduct which warrants disciplinary action and imminent28 threatens to seriously disrupt the City service. On June 5 2013 agents of the City ofCarmel

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1 placed and now continue to maintain Petitioner/Plaintiff on administrative leave without2 good cause without investigation and without any evidence of grounds to believe that he is3 guilty of conduct which warrants disciplinary action. A year or more is not the earliest4 practicable time for the City to comply with its own Ordinances.5 23. At all times relevant herein Respondents/Defendants City of Carmel and its6 agents had a ministerial duty under the Constitution of the State of California to protect7 Petitioner/Plaintiffs right to privacy as specifically guaranteed by Article I Section 1 of the8 Constitution of the State of California.9 24. At all relevant times the City of Carmel and its agents have been able to perfor

10 their ministerial duty in accordance with the law. Petitioner/Plaintiff is informed and believ11 and thereon alleges that notwithstanding such ability and despite Petitioner/Plaintiffs12 demand for performance Respondents/Defendants have refused and continued to refuse to13 reinstate Petitioner/Plaintiff or to permit him to perform his duties as Information Systems14 Network Manager for the City of Carmel resulting in the unlawful suspension from his15 employment.16 25. Petitioner/Plaintiff has exhausted or attempted to exhaust any and all17 administrative remedies available to him. Petitioner/Plaintiff has no plain speedy or adequa18 remedy at law to redress the acts complained of herein other than this Petition for Writ of19 Mandate and other relief compelling Respondents/Defendants to reinstate Petitioner/Plainti20 to his job duties as Information Systems Network Manager and to cease giving force and21 effect to any policies contracts documents or actions which deprive Petitioner/Plaintiff of h22 liberty and property together with an award of damages and other relief to which23 Petitioner/Plaintiff is entitled by law.24 26. Petitioner/Plaintiff has incurred and will continue to incur attorneys fees and25 costs. The acts of Respondents/Defendants City of Carmel and its agents were discriminator26 arbitrary capricious taken in bad faith and contrary to the public interest. Petitioner/Plainti27 is entitled to recover attorneys fees and costs under Government Code Section 800 Code of28 Civil Procedure Section 1021.5 and other statutory or contractual basis.

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WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.SECOND CAUSE OF ACTIONPetition For Writ of Mandate: Abuse of Discretion(Against All Respondents/Defendants in their Official Capacities)

27. Petitioner/Plaintiff incorporates by reference each and every allegationcontained n paragraphs 1 through 26 as though fully set forth.

28. To the extent Respondents/Defendants retained any discretion concerningPetitioner/Plaintiffs employment, Respondents/Defendants abused that discretion by theactions complained of herein, including but not limited to plaGing and maintainingPetitioner/Plaintiff on involuntary leave of absence for approximately one year or morewithout cause, notice or hearing, making false and defamatory allegations of and concerningPetitioner/Plaintiff, confiscating Petitioner/Plaintiff s property, discriminating againstPetitioner/Plaintiff because of his age and depriving Petitioner/Plaintiff of his liberty interesin his employment, as alleged herein. The actions of the City of Carmel and its agents werearbitrary, capricious, unreasonable and/or a prejudicial abuse of discretion.Respondents/Defendants abuse of discretion has deprived Petitioner/Plaintiff of hisemployment, his reputation and his future means of livelihood.

WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.THIRD CAUSE OF ACTIONBreach of Written ontract of Employment(Against Respondent/Defendant Employer Only)

29. Petitioner/Plaintiff incorporates by reference each and every allegationcontained in paragraphs 1 through 28 as though fully set forth.

30 Pursuant to the Employment Agreement, Respondents/Defendants City ofCarmel agreed that the City of Carmel could terminate Petitioner/Plaintiffs employment forcause without his consent only in the event that Petitioner/Plaintiff is convicted of a felony other crime involving moral turpitude or any offense involving a violation of his officialduties or if it is determined by the City Administrator that Petitioner/Plaintiff misappropriat

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1 public funds, commingled public funds with personal funds, engaged in willful corruptconduct in office, or conducted himself in a manner to be determined as willful conduct that

3 constitutes misconduct according to the City s personnel rules. Petitioner/Plaintiff has not4 engaged in any such conduct, nor has he been charged or convicted of any crime, nor has the5 City given notice or produced any evidence of such conduct.6 31. Respondent/Defendant City of Carmel breached the Employment Agreement b7 wrongfully placing and maintaining Petitioner/Plaintiff on involuntary leave of absence sinc8 June 5 2013, by making false charges against him, by failing to notify him of charges again9 him and by failing to conduct or complete an investigation of its charges against

10 Petitioner/Plaintiff in a timely manner, by wrongfully failing and refusing to reinstate11 Petitioner/Plaintiff to his employment as Information Systems Network Manager, and by12 impairing Petitioner/Plaintiffs contract, as alleged herein.13 32. As a direct and proximate result of Respondent/Defendant s breach and14 impairment of contract, Petitioner/Plaintiff has suffered and continues to suffer substantial15 losses in earnings, future earnings and employment benefits, all to Petitioner/Plaintiffs16 damage in a sum not yet ascertained. Petitioner/Plaintiff will seek leave to amend this17 complaint to state the amount when it is ascertained, or according to proof at trial.189

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WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.FOURTH CAUSE O ACTION

DefamationAgainst All Respondents/Defendants)


34. Petitioner/Plaintiff is informed and believes that Respondents/Defendants, andeach of them, by the acts alleged herein, conspired to and did negligently, recklessly andintentionally cause excessive and unsolicited internal and external publications of defamatioof and concerning Petitioner/Plaintiff to third persons and to the community. These false andefamatory statements included express and implied accusations that Petitioner/Plaintiffcommitted crimes, that he violated City policies, that he was a poor performer, that he

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1 deserved disciplinary action, that he was incompetent, and that he was dishonest. All of thes2 statements are false.3 35. The precise dates of these publications are not known to Petitioner/Plaintiff, b4 were discovered within the past year. The publications were false. Publication by5 Respondents/Defendants was outrageous, negligent, reckless, intentional and malicious.6 Petitioner/Plaintiff is informed and believes that the intentional publications by7 Respondents/Defendants, and each of them, were and continue to be foreseeably published8 and republished by Defendants/Respondents, their agents and employees, recipients, news9 media and others in the community. Petitioner/Plaintiff hereby seeks damages for all these

10 publications and all foreseeable re-publications discovered to the time of trial.11 36 At all times relevant, Respondents/Defendants, and each of them, conspired to12 and did negligently and intentionally cause excessive and unsolicited publication of13 defamation of and concerning Petitioner/Plaintiff to third persons who had no need or desire14 to know. Those third persons to whom Respondents/Defendants published this defamation a15 believed to include, but are not limited to, other agents and employees of the City of Carmel16 and persons in the community, all ofwhom are known to defendants, but unknown at this tim17 to Petitioner/Plaintiff.18 37 The defamatory publications consisted of oral and written, knowingly false an19 unprivileged communications, tending directly to injure Petitioner/Plaintiff, his employment20 his personal business and his professional reputation. These publications included false and21 defamatory statements in violation of California Civil Code Section 45 and 6 1), 3) and 22 by expressly and impliedly asserting that Petitioner/Plaintiff should be charged with a crime23 that Petitioner/Plaintiff engaged in violations of policy, was incompetent, a poor performer24 and other allegations as alleged above, all ofwhich directly injure Petitioner/Plaintiff in25 respect to his profession, trade and business, imputing to him general disqualification and26 other allegations having a natural tendency to injure Petitioner/Plaintiff in his employment,27 profession and business. The statements of and concerning Petitioner/Plaintiff are defamato28 per se.

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38. Petitioner/Plaintiff is informed and believes that these false and defamatory pe2 se statements will continue to be published by Respondent/Defendants, and each of them, an3 will foreseeably be republished by the recipients, all to the ongoing harm and injury to4 Petitioner/Plaintiffs employment, business, professional and personal reputations.5 Petitioner/Plaintiff also seeks redress in this action for all foreseeable re-publications,6 including his own compelled self publication of these defamatory statements.7 39. None of Respondents/Defendants defamatory publications about8 Petitioner/Plaintiff are true.9 40. The defamatory meaning of all of the false and defamatory statements and theo reference to Petitioner/Plaintiff were understood by those third person recipients and other

members of the community, whose identities are known to Respondents/Defendants, but12 unknown to Petitioner/Plaintiff at this time. The defamatory statements were understood as13 assertions of fact, and not as opinion.14 41. None of the false defamatory per se publications as set forth herein were15 privileged. Any alleged conditional privilege was abused because Respondent/Defendants16 negligently, recklessly and intentionally published defamatory statements in a manner17 constituting malice since the publications, and each of them were made with hatred, ll will,18 and an intent to vex, harass, annoy and injure Petitioner/Plaintiff, to justify the illegal actions19 of Respondents/Defendants and to cause further damage to Petitioner/Plaintiffs professional20 and personal reputation, to cause him to be fired, and to justify his firing.21 42. Each of the defamatory publications by Respondent/Defendants, and each of22 them, were made with knowledge that no investigation or evidence supported the23 unsubstantiated and obviously false statements. Respondents/Defendants published the24 statements knowing them to be false, and Respondents/Defendants were negligent to such a25 degree as to be reckless. Respondents/Defendants had no reasonable basis to believe the26 statements to be true, they in fact knew the statements to be false, and they published them to27 individuals with no need to know. No privilege existed to protect any of the28 Respondents/Defendants from liability for the false and defamatory publications and re-

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1 publications.2 43. As a proximate result of the publication and re-publication of defamatory3 statements by Respondents/Defendants, and each of them, Petitioner/Plaintiff has suffered4 injury to his business and professional reputation, and has suffered embarrassment, retaliatio5 severe emotional distress, shunning, anguish, fear, loss of employment and employability, an6 significant economic loss, including loss of past and future wages, loss of health insurance7 and other benefits, all to Petitioner/Plaintif s economic, emotional and general damage in an8 amount according to proof at trial.9 44. Respondents/Defendants, and each of them, committed the acts alleged herein

10 recklessly, maliciously, fraudulently and oppressively, with the wrongful intention of injurin11 Petitioner/Plaintiff, and for the improper and evil motive amounting to malice, as described12 above. Respondents/Defendants conduct abused and/or prevented the existence of any13 conditional privilege, and was done with reckless and conscious disregard of14 Petitioner/Plaintiffs rights. All actions of Respondents/Defendants and agents and employe15 of the City of Carmel were known, ratified and approved by Respondents/Defendants, and16 each of them. Petitioner/Plaintiff is entitled to recover punitive and exemplary damages from17 individual Respondents/Defendants Stilwell, Paul and Does one through 50, and each of the18 in an amount based on their wealth and ability to pay, according to proof at trial.19202122234

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WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.I TH CAUSE O ACTIONIntentional Infliction of Emotional Distress(Against All Respondents/Defendants)


46. The conduct alleged above was extreme and outrageous and constituted anabuse of the authority and position of Respondents/Defendants, and each of them. In additioon or about June 5 2013 agents of Respondents/Defendants City of Carmel, includingRespondent/Defendant Susan Paul, entered Petitioner/Plaintiffs home, refused to leave, andparticipated in confiscating Petitioner/Plaintiffs property. In doing so Respondents/

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1 Defendants acted outside of the course and scope of their employment with the City of2 Carmel. Respondents/Defendants conduct is intended to cause severe emotional distress, or3 was done in conscious disregard of the possibility of causing distress to Petitioner/Plaintiff.4 Respondents/Defendants conduct exceeded the inherent risks of employment and is not the5 sort of conduct normally expected to occur in the workplace.6 47 Respondents/Defendants, and each of them, abused their positions of authority7 toward Petitioner/Plaintiff, and engaged in conduct intended to humiliate and demean8 Petitioner/Plaintiff and to convey the message that Petitioner/Plaintiff was powerless to9 defend his rights.

10 48. Respondents/Defendants conduct as alleged above did, in fact, cause11 Petitioner/Plaintiff to suffer extreme emotional distress. As a proximate result of12 Respondents/Defendants conduct, Petitioner/Plaintiff suffered embarrassment, anxiety,13 humiliation and emotional distress. Petitioner/Plaintiff will continue to suffer emotional14 distress in the future, causing physical and emotional injury and damages, as alleged above.15

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WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.SIXTH CAUSE OF ACTION

Negligent Infliction of Emotional Distress(Against All Respondents/Defendants)


50 Respondents/Defendants, and each of them, owed a duty of care toPetitioner/Plaintiffas an employee of the City of Carmel to provide Petitioner/Plaintiff aworkplace free from unfair treatment, discrimination, harassment, retaliation, defamation anabuse of Respondents/Defendants positions of authority toward him. Respondents/Defendant s conduct exceeded the inherent risks of employment and was not the sort ofconduct normally expected to occur in the workplace. If the conduct of Respondents/Defendants, and each of them, as alleged above, and their agents and employees was notintentional, it was negligent and Petitioner/Plaintiff is thereby entitled to general damages fothe negligent infliction of emotional distress.

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STONER WELSHAND SCHMIDT

51. Respondents/Defendants, and each of them, knew, or should have known, that2 their conduct would cause Petitioner/Plaintiff extreme emotional distress. As a proximate3 result of Respondents/Defendants negligent conduct, Petitioner/Plaintiff suffered and will4 continue to suffer extreme humiliation, embarrassment, mental anguish and emotional5 distress, causing injury and damages as alleged above.6

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WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.SEVENTH CAUSE OF ACTION

Declaratory Relief(Against All Respondents/Defendants in their Official Capacities)52. Petitioner/Plaintiff incorporates by reference each and every allegation

contained in paragraphs 1 through 51 as though fully set forth.53. California Code of Civil Procedure Section 1060 authorizes this court to grant

any person interested under a written instrument or contract to bring an action in Superior13 Court for declaration of his rights or duties, and to seek other relief. There is an actual and4 present controversy between Petitioner/Plaintiff Steven Mclnchak and Respondents/

15 Defendants City of Carmel, and its agents, which affects the rights and obligations of16 Petitioner/Plaintiff.17 54. Petitioner/Plaintiff contends that Respondents/Defendants, and each of them,18 breached his contract of employment, violated their legal and constitutional duties, and19 engaged in unlawful and unprivileged conduct which defamed Petitioner/Plaintiff and20 irreparably damaged his reputation, his employment, and deprived him of his liberty.21 Petitioner/Plaintiff further contends that the acts of Respondents/Defendants were22 discriminatory because of his age and violated his right to due process secured by the23 California Constitution by placing and maintaining Petitioner/Plaintiff on involuntary leave24 absence without cause, notice or hearing, and that Respondents/Defendants conduct also25 resulted in an unconstitutional impairment of Petitioner/Plainti ffs contract of employment.26 Respondents/Defendants, and each of them, deny these contentions.27 55. Petitioner/Plaintiff requests the court to declare the rights and duties of the28 parties in this action, and specifically to declare that Petitioner/Plaintiff has the right to

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reinstatement as the Information Systems Network Manager for the City of Carmel pursuant2 to his contract of employment and pursuant to the Constitution and laws of the State of3 California together with all damages proximately caused by Respondents/Defendants4 conduct as alleged herein.5 WHEREFORE, Petitioner/Plaintiff prays judgment as follows:6 PR YER FOR RELIEF7 Petitioner/Plaintiff prays judgment as follows:8 1 For a Writ of Mandate compelling Respondents/Defendants City of Carmel an9 each of them their agents and employees and all persons acting under them or on their beha

10 to do the following:1 1 A Reinstate Petitioner/Plaintiffto his employment with the City of Carmel12 as Infonnation Systems Network Manager;13 B Cease giving force and effect to any contract rule policy or other14 documents or taking any actions which deprive Petitioner/Plaintiff of his liberty or property15 his right to due process of law;16 C Return to Pet itioner/Plaintiff possession all property owned by him17 and/ or his family which is in the possession of the City of Carmel its Administrators agents18 or anyone acting on their behalf;19 2 For a money Judgment for loss of employability mental pain and anguish and20 emotional distress according to proof;21 3. For general presumed and special damages based upon damage to22 Petit ioner/P lainti ffs personal reputation his professional reputation and his business;23 4. For economic damages including compensatory damages for lost past and24 future wages and employment benefits and any other economic injury according to proof;25 5 For an award of punitive damages against any and/or all individual26 Respondents/Defendants;2728

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For reasonable attorneys fees under any applicable statutory or contractual basFor an award of interest including prejudgment interest at the legal rate;

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8 For costs of suit: and2 9 For such other and further relief as the court deems proper.3 JURY TRI L DEM NDED4 Plaintiff demands trial of all issues by jury.56 Dated: June 3 201478910

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STONER WELSH SCHMIDT

MICHELLE A. WELSHAttorneys for Petitioner/PlaintiffSteven Mclnchak

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VERIFICATION BY PARTY2 (Code of Civil Procedure section 2015.5)34 STATE OF CALIFORNIA, COUNTY OF MONTEREY56 I am the Petitioner/Plaintiff in the above entitled action or proceeding. I have read the7 foregoing VERIFIED PETITION FOR WRIT OF MANDAMUS (CODE OF CIVIL8 PROCEDURE SECTION 1085) AND COMPLAINT FOR DECLARATORY JUDGMENT9 BREACH OF CONTRACT, DEFAMATION AND INTENTIONAL AND NEGLIGENT10 INFLICTION OF EMOTIONAL DISTRESS and know the contents thereof, and I certifY tha

the same is true ofmy own knowledge, except as to those matters which are therein stated12 upon my information or belief, and as to those matters I believe it to be true.13 I declare under penalty ofperjury under the laws of the State of California that the14 foregoing is true and correct.15

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Executed on :r.,._,v l... , 2014, at Pacific Grove, California.

Steven MclnchaPetitioner/Plaint

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

Documents

McInchak v. City of Carmel-By-The-Sea (M128062) 06-04-14