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February 24, 2020

Garlic Fest victims file claims against Gilroy

Notices of claim filed by 11 survivors

The city of Gilroy likely will be sued for damages by 11 surviving gunshot victims of the Gilroy Garlic Festival mass shooting, as well as the parents of 6-year-old Stephen Romero, who was killed in the July 28 incident, based on recent court filings.

The 12 notices of claims—required first steps before lawsuits can be filed against a city—were filed Jan. 24 by Randall Scarlett, a San Francisco lawyer representing all 12 individuals. The claims had to be filed by Jan. 28, the six-month anniversary of the deadly attack by a lone shooter at Christmas Hill Park in the last hour of the annual festival, before any lawsuit could proceed.

The notices provide grim details of the wounds, pain, rehabilitation, scars and emotional trauma that continue to affect the lives of each of the shooting victims, ages 13 to 69, as the ensuing lawsuits are likely to rekindle the memories of hundreds who fled gunfire six months ago.

It is anticipated the city will be added as a defendant to the lawsuit filed Nov. 12 against the Gilroy Garlic Festival Association and First Alarm Security & Patrol by five of the shooting victims. Those plaintiffs were among the notices of claim filed Jan. 24. No dollar amounts of damages have been filed.

As of the afternoon of Jan. 27, no notices of claim had been filed by families of the two other young people killed or by the three others wounded by shooter Santino Legan.

The claims filed this month repeated much of the language in the lawsuit, which cited lax security, especially an “inadequate, flimsy, low-height, unsupported chain link fence” that allowed Legan to gain easy and undetected entrance to the festival while carrying an automatic rifle and hundreds of rounds of ammunition.

He was shot by Gilroy police, then killed himself less than two minutes after opening fire on the festival crowd.

5:39pm, July 28

Each of the notices of claim reported that the incident occurred at 5:39pm July 28.

City Attorney Andrew Faber said the city could make no comments on the pending litigation, except to acknowledge receipt of the notice of claims. For weeks, city officials have refused to answer questions about festival security. Even though notices filed Jan. 24 are public documents, the city as of Jan. 28 was refusing to release them.

This newspaper obtained copies from the Scarlett Law Group.

Scarlett had warned in November that he was preparing government claims against the city of Gilroy on behalf of his clients and said he would likely be adding more claimants. State law requires that government claims be filed as a prerequisite to filing a lawsuit against a government entity; all government claims have a six-month filing deadline, which was Tuesday, Jan. 28. 

Scarlett said that the additional seven individuals will be added as plaintiffs either by way of a new complaint filed with notice of a related claim or through an amendment to the November complaint. 

“Next, there will likely be a lawsuit filed against the city,” he said. 

No lawsuit can be filed until the city issues a formal denial of the claims filed Jan 24. 

In the contract between the Gilroy Garlic Festival Association and the City of Gilroy, there are no specific security provisions, other than to identify the festival association as responsible for security.

City’s joint venture

In his court filings this month, Scarlett said the city is jointly liable with the Garlic Festival Association because it operated the festival as a joint venture with the non-profit.

Each claim was a two-page notice of claim form, followed by up to eight pages of description of the claim. A copy of the 31-page lawsuit filed Nov. 12 on behalf of five victims, all recovering from gunshot wounds, was attached to each notice.

In the notices, Scarlett contends that the city is liable under state law for “dangerous condition of its property.”

The city, “by holding the 2019 Garlic Festival had a duty of reasonable care to the attendees.”

Because the city had a “joint venture with the Gilroy Garlic Festival Association Inc. for the 2019 Gilroy Garlic Festival, the city of Gilroy is therefore responsible for the Gilroy Garlic Festival Association’s tortious conduct.”

The city also is responsible because of its “promises, advertisements and warranties that this would be a safe event.”

Here are the claimants:

Alberto Romero, 33, San Jose

For the loss of his son, 6-year-old Stephen Romero, killed when he was shot in the back at the festival. Romero “has been deprived of the love, companionship, comfort, care, assistance, protection, affection, society, advice, counsel, moral support and the loss of future services” of his son, the claim stated.

Barbara V. Aquirre, 69, San Jose

For the loss of her grandson, Stephen Romero, and for injuries from a gunshot wound to her right foot, resulting in permanent injuries and difficulty walking.

Barbara J. Aguirre, 37, of San Jose

For the loss of her son, Stephen Romero, and for serious injuries from a gunshot that shattered her left hand, with permanent disfigurement, nerve damage, scarring and chronic pain.

Wendy Towner, 40, of Morgan Hill

“One of the first victims shot by the gunman,” her left calf muscle “was torn apart by the bullets from the shooter’s rifle,” which broke her leg, leaving behind permanent damage, a limp and shrapnel.

Francisco Aguilera, 41, her partner, also of San Jose

Standing near Towner when the gunman fired at him, he “suffered four severe gunshot wounds and his femoral artery was perforated.” One bullet went through his upper right arm, and after numerous surgeries, he can’t bend one knee.

Brynn Ota-Matthews, 23, of Santa Cruz

As she ran away from the shooter, a bullet struck her back, went through her liver and lodged behind her ribs, where it remains. She has ongoing back pain, rib pain and hip pain, “struggles to walk, stand and lift items due to the pain.”

Nick McFarland, 26, of Gilroy

He was hit by bullet fragments in his right calf as he ran away from the shooter. There is still shrapnel lodged in his left leg and hip.

Justin Bates, 25, of Gilroy

Bates and McFarland were friends and were attending the festival together. He sustained “gunshot wounds to his lower legs,” including a “deep bullet graze” to his right leg. His left leg still has shrapnel in it from the gunshot, and he also was shot in the back and has shrapnel in his left upper arm.

Leslie Andres, 13, Campbell

She was struck by a bullet as she ran away from the shooter, suffering a gunshot wound to her right leg above the knee, where a bullet passed through soft tissue.

Gabriella Gaus, 26, Scotts Valley

She was struck by a bullet in her left shoulder and another grazed her back, as she fled the shooter. She needed surgery to remove the bullet from her left shoulder and bullet fragments remain permanently in her body.

Lesley Sanchez, 16, of Gilroy

The Gilroy High School cheer team member was volunteering at the team’s fundraising booth when a bullet hit her stomach, went into her abdomen and struck her hip as it passed through her. She still has bullet fragments inside of her.

Harry de la Vega, 39, San Jose

Bullets fractured his right femur bone, where surgery later inserted a metal rod. He was hospitalized for more than a month, and still has shrapnel in his leg. He has serious difficulty walking, sitting and moving as a result of his injuries.

All victims “suffered and continue to suffer extreme shock, severe emotional distress and pain and suffering, including PTSD, suffering, anguish, fright, horror, nervousness, grief, anxiety, depression, worry, shock, humiliation and shame, trouble sleeping, nightmares and ongoing fear rising to the level that a reasonable person would be unable to cope,” said the notices.

In December, the Garlic Festival Association in a statement declined to answer questions about the festival’s security plan.

“The July shooting was sudden, unanticipated, unforeseeable and immediately contained by heroic Gilroy Police Department officers,” festival executive director Brian Bowe said in a statement. “We look forward to a safe and successful #Gilroy42 next July.”

Bowe announced his resignation in December.

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