2

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
MICHELLE A. WELSH, State Bar No. 084127
STONER, WELSH & SCHMIDT
FILED
413 Forest Avenue
Pacific Grove, CA 93950-4201
Telephone: (831) 373-1993
Facsimile: (831) 373-1492
Attorneys for Petitioner/Plaintiff
JUN 0 4 2014
SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
Steven Mclnchak,
Petitioner/Plaintiff
v.
City of Carmel-by-the-Sea, Jason
Stilwell, City Administrator of the City
of Carmel-by-the-Sea, Susan Paul,
Administrative Services Director of the
City of Carmel-by-the-Sea and Does 1
through 50, inclusive,
) Case No. M 12 80 6;·2
)
) VERIFIED PETITION FOR WRIT OF
) MANDAMUS (CODE OF CIVIL
) PROCEDURE SECTION 1085)
) AND COMPLAINT FOR
) DECLARATORY JUDGMENT,
) BREACH OF CONTRACT,
) DEFAMATION AND INTENTIONAL
) AND NEGLIGENT INFLICTION OF
) EMOTIONAL DISTRESS
)
)
)
Respondents/Defendants )
 
20 Petitioner/Plaintiff alleges:
21 PRELIMINARY STATEMENT
22
Petitioner/Plaintiff Steven Mclnchak is a permanent employee of the City of Carmel-
23 by-the-Sea. He has been employed by the City since 1997 as its Information Systems Network
24
Manager, responsible for managing and supervising the City's entire computer system.
25
Throughout his employment, Petitioner/Plaintiff Mclnchak has performed his duties in an
26
exemplary manner and with the highest professionalism and integrity. This action is brought
27
to enforce the mandatory requirements of the Ordinances and Personnel System of the City of
28
Carmel-by-the-Sea, the Constitution and laws of the State of California, and the mandatory
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
duties of the City Council, the City Administrator and the City Human Resources Director
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 1 of 19
1
arising under those laws. In addition to the Petition for Writ of Mandate, Petitioner/Plaintiff
2
also seeks a Declaratory Judgment of his rights and the City's duties, and Petitioner/Plaintiff
3
states claims for violations of his constitutional rights, breach of contract and defamation of
4 character.
5 On June 5, 2013 the City of Carmel-by-the Sea unilaterally placed Petitioner/Plaintiff
6 on administrative leave from his position as Information Systems Network Manager without
7 cause, notice or hearing. The City has kept Petitioner/Plaintiff on administrative leave,
8 preventing him from performing his job duties or returning to work since June 6, 2013, a
9 period of nearly 12 months. The City's actions violated, and continue to violate,
1 o Petitioner/Plaintiffs rights to due process of law secured by Article 1, Section 2 of the
11 Constitution of the State of California by depriving him of liberty and property without cause,
12 notice and hearing. Further, the City's actions violated Petitioner/Plaintiffs right to privacy
13 and impaired Petitioner/Plaintiffs vested contractual rights in violation ofthe Constitution of
14 the State of California at Article 1, Section 1 and Section 9. The City has also violated its
15 own Ordinances.
16 Petitioner/Plaintiff seeks a Writ of Mandate compelling the City of Carmel-by-the-Sea,
17 through its City Council, City Administrator and Administrative Services Director, to reinstate
18 Petitioner/Plaintiff to his position as Information Systems Network Manager forthwith.
19 Petitioner/Plaintiff further seeks to recover damages for all economic and general damages
20 and losses he has incurred as a result of the continuing failure and refusal of the City of
21 Carmel-by-the-Sea, its City Council, City Administrator and Administrative Services Director,
22 to perform their mandatory legal duties in violation of Petitioner/Plaintiffs Constitutional and
23 legal rights.
24 PARTIES
25
1. Petitioner/Plaintiff Steven Mclnchak has been employed by Respondent/
26 Defendant City of Carmel-by-the-Sea as its Information Systems Network Manager from July
27
1, 1997 to the present. Petitioner/Plaintiff is a resident of Monterey County, California.
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
2. Respondent/Defendant City of Carmel-by-the-Sea (hereinafter City of Carmel)
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 2 of 19
1
is, and at all times herein mentioned was, a General Law City duly organized and existing
2
under the laws of the State of California and located in Monterey County, California.
3
3. Respondent/Defendant Jason Stilwell is, and at all relevant times was, the City
4 Administrator of the City of Carmel-by-the-Sea.
5
4. Respondent/Defendant Susan Paul is, and at all relevant times was, the
6 Administrative Services Director of the City of Carmel-by-the-Sea.
7
5. Petitioner/Plaintiff is unaware of the true names and capacities of Respondents/
8 Defendants designated as Does 1 through 50, inclusive. Petitioner/Plaintiff is informed and
9 believes that each of the Respondents/Defendants designated as Does 1 through 50 is
IO responsible for the acts, omissions and wrongful conduct alleged herein. Petitioner/Plaintiff
II will seek leave to amend the Petition/Complaint to state the true names and capacities of Does
12 1 through 50 when they are ascertained.
13 COMMON FACTS
14 6. Petitioner/Plaintiff Steven Mclnchak was employed by the City of Carmel-by-
15 the-Sea on July I, 1997 in the position ofinformation Systems Network Manager. The
16 position was created by the City Council of the City of Carmel in 1997 as a management
17 position and Petitioner/Plaintiff was the first employee hired as Information Systems Network
18 Manager. Petitioner/Plaintiff reported directly to the City Administrator until 2013 when he
19 was directed to report instead to the Administrative Services Director.
20 7. As Information Systems Network Manager, Petitioner/Plaintiff was at all
21 relevant times responsible for managing the City's computer system development and
22 operations activities, providing professional assistance to City staff in information systems
23 development analysis, assisting in management of all information systems activities
24 throughout the City by coordinating, planning and evaluating operations of the system,
25 including programming, computer operations, network administration and management of
26 equipment and software acquisitions, installation and repair. Petitioner/Plaintiffs duties
27
required him to serve as systems supervisor for managing the computer system including
28
network security, passwords, user configurations and changes to accommodate individual and
STO:-·rER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 3 of 19
1
departmental needs. A true and correct copy of the position description of the Information
2
Systems Network Manager is attached as Exhibit A and incorporated herein.
3
Petitioner/Plaintiff was required to be accessible to the City, its Administrators, its elected
4
officials and employees twenty-four hours a day, seven days a week to solve problems or
5 answer questions about the City's computer system.
6
8. At all times during the course of his employment Petitioner/Plaintiff performed
7 his job duties in an exemplary manner and with the highest degree of professionalism and
8 integrity. All of his personnel evaluations were satisfactory or outstanding and he received
9 positive comments and commendations for his job performance. Prior to May 30, 2013
10 Petitioner/Plaintiff had never received any notice of dissatisfaction with his job performance
11 or disciplinary action of any kind during the previous sixteen years of his employment with
12 the City of Carmel.
13
9. Petitioner/Plaintiff is a permanent, long-term employee of the City of Carmel.
14 As such, Petitioner/Plaintiff accrued a property interest in his employment as a public
15 employee under the Constitution of the State of California, including the right to retain his
16 employment in the absence of just cause for termination. Nevertheless, on or about July 1,
17 2005 then City Administrator of the City of Carmel presented to Petitioner/Plaintiff a
18 document titled "Employment Agreement City of Carmel-by-the-Sea Information Systems
19 Network Manager". That Employment Agreement purports to change Petitioner/Plaintiffs
20 employment status from a permanent to "at-will employee" subject to termination by the City
21 Administrator without cause or right of appeal. Petitioner/Plaintiff was informed that he was
22 required to sign that Agreement as a condition of remaining employed by the City of Carmel.
23 Petitioner/Plaintiff received no notice, hearing, or any consideration or other benefit in
24 connection with the Employment Agreement. Petitioner/Plaintiff was compelled to sign, and
25 did sign the Employment Agreement, with no notice or intent to waive his vested rights and
26 under threat that if he did not sign the Employment Agreement his employment would be
27 immediately terminated without cause. A true and correct copy of the Employment Agreement
28
is attached as Exhibit B al).d incorporated herein.
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 4 of19
10. On June 5, 2013, without prior notice or warning, agents of the City of Carmel
2 appeared at Petitioner/Plaintiffs home together with the Chief of Police and three law
3 enforcement officers from the City of Carmel and the Monterey County Sheriffs Department
4 who served upon Petitioner/Plaintiff a search warrant and proceeded to search his residence.
5 Agents for the City of Carmel, including Respondent/Defendant Susan Paul, entered
6 Petitioner/Plaintiffs home without his permission, with no legitimate need to be present, and
7 over his objections. Agents for the City of Carmel took possession of Petitioner/Plaintiffs
8 home computer which he shared with his wife, Karen Mclnchak. Also taken were
9 Petitioner/Plaintiffs City laptop computer and multiple thumb drives and disks, including all
10 back-up disks. None of the property taken on June 5, 2013 has been returned to
11 Petitioner/Plaintiff and, to his knowledge, it remains in the possession of the City of Carmel.
12 11. Petitioner/Plaintiff, together with his wife, Karen Mclnchak, own and operate a
13 private business engaged in showing, breeding and sales of oriental shorthair cats. Karen
14 Mclnchak is, and at all relevant times was, an internationally-recognized expert certified by
15 the International Cat Association to serve as a judge at cat shows, a business in which she is
16 regularly engaged. Karen Mclnchak is not now, and never has been, an employee of the City
17
of Carmel. Nevertheless, all of the business records, archived photographs, contacts and
18
documents necessary for their cat showing and breeding business were stored on
19
Petitioner/Plaintiffs home computer and were taken from their home by agents of the City of
20
Carmel on June 5, 2013. The home computer and business documents were never returned,
21
causing irreparable damage to their business and loss of irreplaceable archived photographs
22
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 including
24
Respondent/Defendant Susan Paul notified Petitioner/Plaintiff that he was placed on
25
administrative leave pending investigation of criminal charges against him. No criminal or
26
other charges have ever been filed and, to Petitioner/Plaintiffs knowledge, neither the Carmel
27
Police Department nor any other law enforcement agency has requested the filing of any
28
criminal charges against Petitioner/Plaintiff, Steven Mclnchak.
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 5 of 19
13. The allegations against Petitioner/Plaintiff by the City of Carmel are false. Prior
2 to the June 5, 2013 search of his home and seizure of his property, Petitioner/Plaintiff had no
3 knowledge or notice of any allegations against him by the City of Carmel. To date,
4 Petitioner/Plaintiffhas never received notice of charges from the City of Carmel.
5 Nevertheless, under threat of immediate discharge for insubordination he was directed to
6 appear at a mandatory investigative interview conducted by an attorney representing the City
7 of Carmel without any opportunity to review, respond to or to rebut charges, or to review any
8 evidence of any of the allegations of wrongdoing made by the City of Carmel against him
9 which have been widely published and republished throughout the community.
1 o 14. Agents of the City of Carmel made the false allegations of criminal conduct and
11 work-related misconduct against Petitioner/Plaintiff and disclosed confidential personnel
12 information of and concerning him to other employees of the City of Carmel, to elected
13 officials, to news media, to reporters and to the general public. Such false and defamatory
14 allegations, including allegations of criminal conduct, irreparably damaged
15 Petitioner/Plaintiffs reputation in his profession, his employment and his community, violated
16
his privacy, impaired his contract of employment, and violated his liberty interest in his
17 employment, all in violation of his right to due process of law under the Constitution of the
18
State of California, and in violation of California law.
19
15. Since Petitioner/Plaintiff was placed on involuntary leave of absence on June 5,
20
2013 to the present time Petitioner/Plaintiff has been prevented from performing his job
21
duties, retrieving his personal property, or accessing his home and office computers.
22
Petitioner/Plaintiff has been prevented from pursuing his professional occupation and
23
livelihood, all without cause, notice or hearing and in violation of his constitutional rights to
24
due process of law, stigmatizing him to the point that he will be incapable of securing
25
comparable future employment, all to his damage as alleged herein.
26
16. Petitioner/Plaintiff is 62 years of age. Petitioner/Plaintiff is informed and
27
believes and thereon alleges, that he is one of at least seven long-term employees over the age
28
of 40 years who have been terminated, placed on involuntary leave of absence pending an
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 6 of 19
investigation of allegations of misconduct, placed under disciplinary investigation by the City
2 of Cannel or forced to resign since on or about March 1, 2013. The City Administrator and
3 other agents of the City of Cannel have instituted a pattern and practice of discrimination
4 based on age causing a disparate impact on older employees which is continuing in violation
5 of California law. Petitioner/Plaintiff has also been subjected to disparate treatment because of
6 his age. He has never been convicted of any crime of moral turpitude. Yet, Petitioner/Plaintiff
7 is informed and believes that a female employee who is more than twenty years younger than
8 himself was convicted of welfare fraud during her employment with the City of Cannel as its
9 Finance Specialist without suffering any discipline, discharge, involuntary leave of absence or
1 o investigation of wrongdoing. On May 16, 2014 Petitioner/Plaintiff filed a Complaint of
11 Discrimination with the California Department of Fair Employment and Housing against the
12 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 at
14 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 Case
16
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 of
18
Government Claim to the City Clerk of the City of Cannel-by-the-Sea. On January 9, 2014
19
Respondents/Defendants City of Cannel-by-the-Sea rejected Petitioner/Plaintiffs Government
20
Claim. A copy of the Notice of Rejection of Claim is attached as Exhibit C and incorporated
21
herein. Petitioner/Plaintiff has exhausted, or attempted to exhaust, all available administrative
22
remedies.
23
18. The actions and course of conduct of Respondents/Defendants and other agents
24
of the City of Cannel, as alleged herein, constitute arbitrary and capricious conduct within the
25
meaning of California Government Code Section 800, and intentional unlawful conduct in
26
violation of California and federal law, and the California and United States Constitutions.
Ill
27
28 ///
STONER, WELSH
AND SCHMIDT
    AT LAW
l\1clnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 7 of 19
2
3
4
5
6
7
19.
FIRST CAUSE OF ACTION
Petition for Writ of Mandamus:
Performance of Ministerial Duty (CCP Section 1085)
(Against All Respondents/Defendants in their Official Capacities)
Petitioner/Plaintiff incorporates by reference each and every allegation of the
Common Facts in paragraphs 1 through 18 as though fully set forth.
20. At all times relevant herein Respondents/Defendants City of Carmel and its
agents had a clear, present and ministerial duty under the Constitution of the State of
8
California to refrain from depriving Petitioner/Plaintiff of his liberty interest in his
9
employment by threatening to institute disciplinary action based on false charges that impair
10
Petitioner/Plaintiffs reputation for honesty and morality and his standing and associations in
11
the community. These false allegations are denied by Petitioner/Plaintiff. The false
12
allegations were publicly disclosed by the City of Carmel, which stigmatized and officially
13
branded Petitioner/Plaintiff to the point that he is not free to seek other employment, to pursue
[4
his professional occupation, or even to volunteer his services in the community.
15
21. At all times relevant herein Respondents/Defendants City of Carmel and its
16
agents had a ministerial duty under the Constitution of the State of California to retain
17 f d
Petitioner/Plaintiff in his employment with the City of Carmel in the absence o goo cause to
18
terminate or suspend him involuntarily, and to refrain from depriving Petitioner/Plaintiff of
19
his property and his property interest in his public employment without notice, a statement of
20
reasons, a copy of the charges and of all materials on which the proposed action is based, and
21 the right to a hearing within a reasonable time. A year or more is not a reasonable time.
22 22. At all times relevant herein Respondents/Defendants City of Cannel and its
2
3 agents had a clear, present and ministerial duty under the Personnel System Ordinances of the
24 City of Carmel-by-the-Sea at Section 2.52 .375 to comply with the procedures described in the
25 Personnel System Ordinance at the earliest time practicable and to refrain from placing
26 Petitioner/Plaintiff on involuntary administrative leave of absence without good cause to
27 believe that he is guilty of extreme conduct which warrants disciplinary action and imminently
28 threatens to seriously disrupt the City service. On June 5, 2013 agents of the City of Carmel
S T O ~ E R   WELSH
AND SCHMIDT
ATTOR:'\JEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et at.
Verified Petition for Writ of Mandamus and Complaint
Page 8 of 19
1 placed, and now continue to maintain, Petitioner/Plaintiff on administrative leave without
2 good cause, without investigation and without any evidence of grounds to believe that he is
3 guilty of conduct which warrants disciplinary action. A year or more is not the earliest
4 practicable time for the City to comply with its own Ordinances.
5 23. At all times relevant herein Respondents/Defendants City of Carmel and its
6 agents had a ministerial duty under the Constitution of the State of California to protect
7 Petitioner/Plaintiffs right to privacy, as specifically guaranteed by Article I Section 1 of the
8 Constitution of the State of California.
9 24. At all relevant times the City of Carmel and its agents have been able to perform
10 their ministerial duty in accordance with the law. Petitioner/Plaintiff is informed and believes,
11 and thereon alleges, that notwithstanding such ability and despite Petitioner/Plaintiffs
12 demand for performance, Respondents/Defendants have refused, and continued to refuse, to
13 reinstate Petitioner/Plaintiff or to permit him to perform his duties as Information Systems
14 Network Manager for the City of Carmel, resulting in the unlawful suspension from his
15 employment.
16
25. Petitioner/Plaintiff has exhausted or attempted to exhaust any and all
17
administrative remedies available to him. Petitioner/Plaintiff has no plain, speedy or adequate
18
remedy at law to redress the acts complained of herein, other than this Petition for Writ of
19
Mandate and other relief compelling Respondents/Defendants to reinstate Petitioner/Plaintiff
20
to his job duties as Information Systems Network Manager, and to cease giving force and
21
effect to any policies, contracts, documents or actions which deprive Petitioner/Plaintiff of his
22
liberty and property, together with an award of damages and other relief to which
23
Petitioner/Plaintiff is entitled by law.
24
26. Petitioner/Plaintiff has incurred, and will continue to incur, attorneys fees and
25
costs. The acts of Respondents/Defendants City of Carmel and its agents were discriminatory,
26
arbitrary, capricious, taken in bad faith and contrary to the public interest. Petitioner/Plaintiff
27
is entitled to recover attorneys fees and costs under Government Code Section 800, Code of
28
Civil Procedure Section 1021.5 and other statutory or contractual basis.
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT lAW
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 9 of 19
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.
SECOND CAUSE OF ACTION
Petition For Writ of Mandate: Abuse of Discretion
(Against All Respondents/Defendants in their Official Capacities)
27. Petitioner/Plaintiff incorporates by reference each and every allegation
contained in paragraphs 1 through 26 as though fully set forth.
28. To the extent Respondents/Defendants retained any discretion concerning
Petitioner/Plaintiffs employment, Respondents/Defendants abused that discretion by the
actions complained of herein, including but not limited to plaGing and maintaining
Petitioner/Plaintiff on involuntary leave of absence for approximately one year or more
without cause, notice or hearing, making false and defamatory allegations of and concerning
Petitioner/Plaintiff, confiscating Petitioner/Plaintiff's property, discriminating against
Petitioner/Plaintiff because of his age and depriving Petitioner/Plaintiff of his liberty interest
in his employment, as alleged herein. The actions of the City of Carmel and its agents were
arbitrary, capricious, unreasonable and/or a prejudicial abuse of discretion.
Respondents/Defendants' abuse of discretion has deprived Petitioner/Plaintiff of his
employment, his reputation and his future means of livelihood.
WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.
THIRD CAUSE OF ACTION
Breach of Written Contract of Employment
(Against Respondent/Defendant Employer Only)
29. Petitioner/Plaintiff incorporates by reference each and every allegation
contained in paragraphs 1 through 28 as though fully set forth.
30. Pursuant to the Employment Agreement, Respondents/Defendants City of
Carmel agreed that the City of Carmel could terminate Petitioner/Plaintiffs employment for
cause without his consent only in the event that Petitioner/Plaintiff is convicted of a felony or
other crime involving moral turpitude or any offense involving a violation of his official
duties or if it is determined by the City Administrator that Petitioner/Plaintiff misappropriated
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 10 of 19
1 public funds, commingled public funds with personal funds, engaged in willful corrupt
2 conduct in office, or conducted himself in a manner to be determined as willful conduct that
3 constitutes misconduct according to the City's personnel rules. Petitioner/Plaintiff has not
4 engaged in any such conduct, nor has he been charged or convicted of any crime, nor has the
5 City given notice or produced any evidence of such conduct.
6 31. Respondent/Defendant City of Carmel breached the Employment Agreement by
7 wrongfully placing and maintaining Petitioner/Plaintiff on involuntary leave of absence since
8 June 5, 2013, by making false charges against him, by failing to notify him of charges against
9 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 reinstate
11 Petitioner/Plaintiff to his employment as Information Systems Network Manager, and by
12 impairing Petitioner/Plaintiffs contract, as alleged herein.
13 32. As a direct and proximate result of Respondent/Defendant's breach and
14 impairment of contract, Petitioner/Plaintiff has suffered and continues to suffer substantial
15 losses in earnings, future earnings and employment benefits, all to Petitioner/Plaintiffs
16
damage in a sum not yet ascertained. Petitioner/Plaintiff will seek leave to amend this
17
complaint to state the amount when it is ascertained, or according to proof at trial.
18
19
20
21
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.
FOURTH CAUSE OF ACTION
Defamation
(Against All Respondents/Defendants)
33. Petitioner/Plaintiff incorporates by reference each and every allegation
contained in paragraphs 1 through 32 as though fully set forth.
34. Petitioner/Plaintiff is informed and believes that Respondents/Defendants, and
each of them, by the acts alleged herein, conspired to and did negligently, recklessly and
intentionally cause excessive and unsolicited internal and external publications of defamation
of and concerning Petitioner/Plaintiff to third persons and to the community. These false and
defamatory statements included express and implied accusations that Petitioner/Plaintiff
committed crimes, that he violated City policies, that he was a poor performer, that he
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 11 of 19
1 deserved disciplinary action, that he was incompetent, and that he was dishonest. All of these
2 statements are false.
3 35. The precise dates of these publications are not known to Petitioner/Plaintiff, but
4 were discovered within the past year. The publications were false. Publication by
5 Respondents/Defendants was outrageous, negligent, reckless, intentional and malicious.
6 Petitioner/Plaintiff is informed and believes that the intentional publications by
7 Respondents/Defendants, and each of them, were and continue to be foreseeably published
8 and republished by Defendants/Respondents, their agents and employees, recipients, news
9 media and others in the community. Petitioner/Plaintiff hereby seeks damages for all these
10 publications and all foreseeable re-publications discovered to the time of trial.
11 3 6. At all times relevant, Respondents/Defendants, and each of them, conspired to
12 and did negligently and intentionally cause excessive and unsolicited publication of
13 defamation of and concerning Petitioner/Plaintiff to third persons who had no need or desire
14 to know. Those third persons to whom Respondents/Defendants published this defamation are
15
believed to include, but are not limited to, other agents and employees of the City of Carmel
16 and persons in the community, all of whom are known to defendants, but unknown at this time
17
to Petitioner/Plaintiff.
18
3 7. The defamatory publications consisted of oral and written, knowingly false and
19
unprivileged communications, tending directly to injure Petitioner/Plaintiff, his employment,
20
his personal business and his professional reputation. These publications included false and
21
defamatory statements in violation of California Civil Code Section 45 and 46 (1), (3) and (5)
22
by expressly and impliedly asserting that Petitioner/Plaintiff should be charged with a crime,
23
that Petitioner/Plaintiff engaged in violations of policy, was incompetent, a poor performer
24
and other allegations as alleged above, all of which directly injure Petitioner/Plaintiff in
25
respect to his profession, trade and business, imputing to him general disqualification and
26
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 defamatory
28
per se.
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 12 of 19
38. Petitioner/Plaintiff is informed and believes that these false and defamatory per
2 se statements will continue to be published by Respondent/Defendants, and each of them, and
3 will foreseeably be republished by the recipients, all to the ongoing harm and injury to
4 Petitioner/Plaintiffs employment, business, professional and personal reputations.
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 about
8 Petitioner/Plaintiff are true.
9 40. The defamatory meaning of all of the false and defamatory statements and the
1 o reference to Petitioner/Plaintiff were understood by those third person recipients and other
11 members of the community, whose identities are known to Respondents/Defendants, but
12 unknown to Petitioner/Plaintiff at this time. The defamatory statements were understood as
13 assertions of fact, and not as opinion.
14 41. None of the false defamatory per se publications as set forth herein were
15 privileged. Any alleged conditional privilege was abused because Respondent/Defendants
16
negligently, recklessly and intentionally published defamatory statements in a manner
17
constituting malice since the publications, and each of them were made with hatred, ill will,
18
and an intent to vex, harass, annoy and injure Petitioner/Plaintiff, to justify the illegal actions
19
of Respondents/Defendants and to cause further damage to Petitioner/Plaintiffs professional
20
and personal reputation, to cause him to be fired, and to justify his firing.
21
42. Each of the defamatory publications by Respondent/Defendants, and each of
22
them, were made with knowledge that no investigation or evidence supported the
23
unsubstantiated and obviously false statements. Respondents/Defendants published the
24
statements knowing them to be false, and Respondents/Defendants were negligent to such a
25
degree as to be reckless. Respondents/Defendants had no reasonable basis to believe the
26
statements to be true, they in fact knew the statements to be false, and they published them to
27
individuals with no need to know. No privilege existed to protect any of the
28
Respondents/Defendants from liability for the false and defamatory publications and re-
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 13 of 19
1 publications.
2 43. As a proximate result of the publication and re-publication of defamatory
3 statements by Respondents/Defendants, and each of them, Petitioner/Plaintiff has suffered
4 injury to his business and professional reputation, and has suffered embarrassment, retaliation,
5 severe emotional distress, shunning, anguish, fear, loss of employment and employability, and
6 significant economic loss, including loss of past and future wages, loss of health insurance
7 and other benefits, all to Petitioner/Plaintif's economic, emotional and general damage in an
8 amount according to proof at trial.
9 44. Respondents/Defendants, and each of them, committed the acts alleged herein
10 recklessly, maliciously, fraudulently and oppressively, with the wrongful intention of injuring
11 Petitioner/Plaintiff, and for the improper and evil motive amounting to malice, as described
12 above. Respondents/Defendants' conduct abused and/or prevented the existence of any
13 conditional privilege, and was done with reckless and conscious disregard of
14
Petitioner/Plaintiffs rights. All actions of Respondents/Defendants and agents and employees
15 of the City of Carmel were known, ratified and approved by Respondents/Defendants, and
16
each of them. Petitioner/Plaintiff is entitled to recover punitive and exemplary damages from
17
individual Respondents/Defendants Stilwell, Paul and Does one through 50, and each of them,
18
in an amount based on their wealth and ability to pay, according to proof at trial.
19
20
21
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.
FIFTH CAUSE OF ACTION
Intentional Infliction of Emotional Distress
(Against All Respondents/Defendants)
45. Petitioner/Plaintiff incorporates by reference each and every allegation
contained in paragraphs 1 through 44 as though fully set forth.
46. The conduct alleged above was extreme and outrageous and constituted an
abuse of the authority and position of Respondents/Defendants, and each of them. In addition,
on or about June 5, 2013 agents of Respondents/Defendants City of Carmel, including
Respondent/Defendant Susan Paul, entered Petitioner/Plaintiffs home, refused to leave, and
participated in confiscating Petitioner/Plaintiffs property. In doing so Respondents/
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 14 of 19
1 Defendants acted outside of the course and scope of their employment with the City of
2 Carmel. Respondents/Defendants' conduct is intended to cause severe emotional distress, or
3 was done in conscious disregard of the possibility of causing distress to Petitioner/Plaintiff.
4 Respondents/Defendants' conduct exceeded the inherent risks of employment and is not the
5 sort of conduct normally expected to occur in the workplace.
6 4 7. Respondents/Defendants, and each of them, abused their positions of authority
7 toward Petitioner/Plaintiff, and engaged in conduct intended to humiliate and demean
8 Petitioner/Plaintiff and to convey the message that Petitioner/Plaintiff was powerless to
9 defend his rights.
10 48. Respondents/Defendants' conduct as alleged above did, in fact, cause
11 Petitioner/Plaintiff to suffer extreme emotional distress. As a proximate result of
12 Respondents/Defendants' conduct, Petitioner/Plaintiff suffered embarrassment, anxiety,
13 humiliation and emotional distress. Petitioner/Plaintiff will continue to suffer emotional
14 distress in the future, causing physical and emotional injury and damages, as alleged above.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW
WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.
SIXTH CAUSE OF ACTION
Negligent Infliction of Emotional Distress
(Against All Respondents/Defendants)
49. Petitioner/Plaintiff incorporates by reference each and every allegation
contained in paragraphs 1 through 48 as though fully set forth.
50. Respondents/Defendants, and each of them, owed a duty of care to
Petitioner/Plaintiff as an employee of the City of Carmel to provide Petitioner/Plaintiff a
workplace free from unfair treatment, discrimination, harassment, retaliation, defamation and
abuse of Respondents/Defendants' positions of authority toward him. Respondents/
Defendant's conduct exceeded the inherent risks of employment and was not the sort of
conduct 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 not
intentional, it was negligent and Petitioner/Plaintiff is thereby entitled to general damages for
the negligent infliction of emotional distress.
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 15 of 19
STONER, WELSH
AND SCHMIDT
51. Respondents/Defendants, and each of them, knew, or should have known, that
2 their conduct would cause Petitioner/Plaintiff extreme emotional distress. As a proximate
3 result of Respondents/Defendants' negligent conduct, Petitioner/Plaintiff suffered and will
4 continue to suffer extreme humiliation, embarrassment, mental anguish and emotional
5 distress, causing injury and damages as alleged above.
6
7
8
9
10
11
12
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 Superior
13
Court for declaration of his rights or duties, and to seek other relief. There is an actual and
14
present controversy between Petitioner/Plaintiff Steven Mclnchak and Respondents/
15
Defendants City of Carmel, and its agents, which affects the rights and obligations of
16
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, and
19
engaged in unlawful and unprivileged conduct which defamed Petitioner/Plaintiff and
20
irreparably damaged his reputation, his employment, and deprived him of his liberty.
2
1 Petitioner/Plaintiff further contends that the acts of Respondents/Defendants were
22 discriminatory because of his age and violated his right to due process secured by the
23 California Constitution by placing and maintaining Petitioner/Plaintiff on involuntary leave of
24 absence without cause, notice or hearing, and that Respondents/Defendants' conduct also
25 resulted in an unconstitutional impairment of Petitioner/Plaintiffs contract of employment.
26 Respondents/Defendants, and each of them, deny these contentions.
27 55. Petitioner/Plaintiff requests the court to declare the rights and duties of the
28 parties in this action, and specifically to declare that Petitioner/Plaintiff has the right to
Mclnchak v. City of Carmel-by-the-Sea, et al.
A TTOR.NEYS AT LAW
Verified Petition for Writ of Mandamus and Complaint
Page 16 of 19
reinstatement as the Information Systems Network Manager for the City of Carmel pursuant
2 to his contract of employment and pursuant to the Constitution and laws of the State of
3 California, together with all damages proximately caused by Respondents/Defendants'
4 conduct as alleged herein.
5 WHEREFORE, Petitioner/Plaintiff prays judgment as follows:
6 PRAYER FOR RELIEF
7 Petitioner/Plaintiff prays judgment as follows:
8 1. For a Writ of Mandate compelling Respondents/Defendants City of Carmel and
9 each of them, their agents and employees, and all persons acting under them or on their behalf
10 to do the following:
1 1
A. Reinstate Petitioner/Plaintiffto his employment with the City of Carmel
12 as Infonnation Systems Network Manager;
13
B. Cease giving force and effect to any contract, rule, policy or other
14 documents or taking any actions which deprive Petitioner/Plaintiff of his liberty or property or
15 his right to due process of law;
16
C. Return to Petitioner/Plaintiff possession all property owned by him
17
and/ or his family which is in the possession of the City of Carmel, its Administrators, agents
18 or anyone acting on their behalf;
19
2. For a money Judgment for loss of employability, mental pain and anguish and
20
emotional distress according to proof;
21
3. For general, presumed and special damages based upon damage to
22
Petitioner/Plaintiffs personal reputation, his professional reputation, and his business;
23
4. For economic damages, including compensatory damages for lost past and
24
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 individual
26
Respondents/Defendants;
27
28
STONER, WELSH
MD SCHMIDT
ATTORNEYS AT LAW
6.
7.
For reasonable attorneys fees under any applicable statutory or contractual basis;
For an award of interest, including prejudgment interest, at the legal rate;
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Page 17 of 19
8. For costs of suit: and
2 9. For such other and further relief as the court deems proper.
3 JURY TRIAL DEMANDED
4 Plaintiff demands trial of all issues by jury.
5
6 Dated: June 3, 2014
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
STONER, WELSH
AND SCHMIDT
27
28
A TTORNFYS AT LAW
STONER, WELSH & SCHMIDT
MICHELLE A. WELSH
Attorneys for Petitioner/Plaintiff,
Steven Mclnchak
Mclnchak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Writ of Mandamus and Complaint
Pagel8ofl9
VERIFICATION BY PARTY
2
(Code of Civil Procedure section 2015.5)
3
4 STATE OF CALIFORNIA, COUNTY OF MONTEREY
5
6 I am the Petitioner/Plaintiff in the above entitled action or proceeding. I have read the
7 foregoing VERIFIED PETITION FOR WRIT OF MANDAMUS (CODE OF CIVIL
8 PROCEDURE SECTION 1085) AND COMPLAINT FOR DECLARATORY JUDGMENT,
9 BREACH OF CONTRACT, DEFAMATION AND INTENTIONAL AND NEGLIGENT
10 INFLICTION OF EMOTIONAL DISTRESS and know the contents thereof, and I certifY that
11 the same is true of my own knowledge, except as to those matters which are therein stated
12 upon my information or belief, and as to those matters I believe it to be true.
13 I declare under penalty of perjury under the laws of the State of California that the
1
4 foregoing is true and correct.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STO.NER, WELSH
Al'IDSCHMJDT
ATTORNEYS AT LAW
Executed on :r.,._,v"l... 5 , 2014, at Pacific Grove, California.
------
Steven Mclnchak
Petitioner/Plaintiff
Mclnchak v. City of Carmel-by-the-Sea, eta!.
Verified Petition for Writ of Mandamus and Complaint
Page 19 ofl9

Sign up to vote on this title
UsefulNot useful