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HomeMy WebLinkAboutRITA MARIE GOMEZ, ET AL. V. CITY OF SANTA ANAIPJiI,'FiT�PJCr iv(ilfila+:'.1UiilLil� W011K i iAY­WOF COUNCIL F f til( Ei117 DEC 1 1 2018 p'. CAO CO, J tn,Nu�F�r. PKt�. 1. RELEASE AND SETTLEMENT AGREEMENT PARTIES A-2018.277 This Settlement Agreement and Release is made and entered into this �th day of September, 2018, by and between Rita Marie Gomez, Rita Dolores Gomez, and Rita Virginia Fox (hereinafter "Plaintiffs') and the City of Santa Ana, its council members, administrators, risk managers, insurers, employees, heirs, successors, assigns and attorneys, principals, employees, law enforcement officers and deputies, and agents (hereinafter "the City of Santa Ana"). 2. RECITALS A. Plaintiffs allege that on April 19, 2015, Adrisesue Gomez was struck by motorist Francisco Hernandez, as he was making a left hand turn out of the parking lot of a 99 Cents Store at or about Main Street and 16th Street in the City of Santa Ana, California. Ms. Gomez died as a result of her injuries. B. A civil lawsuit was then subsequently filed in the Superior Court for the County of Orange, entitled Rita Marie Gomez, et. al. vy City of Upland, et al„ bearing case number 30-2017-00898044-CU-PO-CJC against Defendant, City of Santa Ana. Plaintiffs' operative Second Amended Complaint for Damages contained a single cause of action against the City of Santa Ana for dangerous condition of public property, as well as negligence against unnamed "non-public entity defendants." Plaintiffs thereafter named 99 Cents Only Stores LLC, HKJ Gold, Inc., Howard Gold, Jeff Gold, Eric Schiffer, Karen Schiffer, and Francisco Hernandez as DOE defendants to this action. C. In order to avoid the substantial expense and inconvenience of further litigation, Plaintiffs and the City of Santa Ana now desire to finally settle all claims or potential claims arising from any transactions or occurrences between Plaintiffs and the City of Santa Ana, as well as to provide for certain payment in full settlement and discharge of any and all claims, which Plaintiffs have or may have had, by reason of the litigation between the parties, and based upon the terms and conditions set forth below. 3. RELEASE AND DISCHARGE A. It is understood and agreed by the parties that this Release completely releases and forever discharges the City of Santa Ana, its council members, administrators, risk managers, insurers, employees, heirs, successors, assigns and attorneys, principals, employees, law enforcement officers and deputies, and agents, from any and all claims, of any kind, nature and character, known or unknown, including any and all claims for punitive damages and attorneys' fees and costs which Plaintiffs may now have, or has ever had, against the City of Santa Ana, including, but not limited to, any other claims and causes of action, known or unknown, arising out of the events or incidents referred to in the pleadings in this action. B. In consideration of the payment set forth in Section 5 below, Plaintiffs unconditionally, irrevocably and absolutely release and discharge the City of Santa Ana as Page 1 of 6 well as any other present or former employees, officers, agents, attorneys, affiliates, successors, assigns and all other representatives of the City of Santa Ana (collectively, "Released Parties"), from any and all causes of action, judgments, liens of any kind (including from Medical or Medicare), indebtedness, damages, losses, claims (including attorney's fees and costs), liabilities and demands of whatsoever kind and character that Plaintiffs may now or hereafter have against the City of Santa Ana, prospective or otherwise, arising from incidents or events occurring on or before the Effective Date of this Agreement (hereafter collectively, "Released Claims"). C. To the extent permitted by law, this release is intended to be interpreted to apply to all transactions and occurrences between Plaintiffs and the City of Santa Ana, arising out of any and all claims related to Plaintiffs' and decedent Adriesue Gomez's injuries resulting from the April 19, 2015 incident, in which Adriesue Gomez was struck by motorist Francisco Hernandez, as he was making a left hand tum out of the parking lot of a 99 Cents Store at or about Main Street and 16th Street in the City of Santa Ana, California, thereby resulting in death to Ms. Gomez and injuries to plaintiffs, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising directly or indirectly out of or in any way connected with the Action and/or these transactions or occurrences. Released Claims include, without limitation, any claim based in tort, contract, common law, the state or federal Constitution, state or federal statutes, all claims for physical injuries, workers' compensation benefits, illness, damage or death, emotional distress, loss of wages or earnings (past, present or future) or back pay, punitive damages, and all other claims, including such claims as may arise under contract, state or federal law for attorneys' fees, costs and expenses. D. Plaintiffs acknowledge and agree that the Release and Discharge set forth above is a general release as it pertains to the City of Santa Ana. Plaintiffs expressly waive and assume the risk of any and all claims for damages, of whatever nature, which exist as of this date, but which Plaintiffs do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Plaintiffs' decision to enter into this Settlement and Release. E. . Plaintiffs further agree that they have accepted payment of the sum specified herein as a complete compromise of matters involving disputed issues of law and fact. Plaintiffs assume the risk that the facts or law may be other than what Plaintiffs believe, 4. NON -ADMISSION OF LIABILITY It is understood and agreed to by the parties that this settlement is a compromise of a doubtful and disputed claim, and the payment is not to be construed as an admission of liability on the part of the City of Santa Ana by whom liability is expressly denied. 5. CONSIDERATION Upon delivery and execution of a Request for Dismissal, with prejudice, as to the entire civil action as against Defendant, City of Santa Ana, Plaintiffs agree to the following payment terms: The City of Santa Ana agrees to pay Plaintiffs the sum of Seventy -Five Thousand Dollars ($75,000.00). Page 2 of 6 It is expressly acknowledged and understood that in light of the current pendency of various cross-complaints against the City of Santa Ana in this action that are still operative and pending, the City of Santa Ana's payment of the above entitled amount of $75,000.00, and the Plaintiffs' filing of a Request for Dismissal with prejudice, is contingent upon the Court granting a motion for good faith settlement pursuant to Code of Civil Procedure section 877.6 to be filed by the City of Santa Ana, 6. WAIVER OF UNKNOWN CLAIMS It is understood and agreed that this is a full and final Release by Plaintiffs covering all unknown, undisclosed, and unanticipated losses, wrongs, injuries, claims, debts, salaries or other damages to Plaintiffs which may have arisen, or may arise, from any act or omission prior to the date of execution of this Release, and which arise out of, or related to, directly or indirectly, the incident dated April 19, 2015, in which Adriesue Gomez was struck by motorist Francisco Hernandez, as he was making a left hand turn out of the parking lot of a 99 Cents Store at or about Main Street and 16th Street in the City of Santa Ana, California, thereby resulting in death to Ms. Gomez and injuries to plaintiffs, with respect to any of the matters referred to in paragraphs 2 and 3 above. 7. CALIFORNIA CIVIL CODE SECTION 1542 WAIVER Plaintiffs hereby waive any and all rights based upon the provisions of Californiaivil Qode section 1542, as against the City of Santa Ana, which provisions read as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Plaintiffs acknowledge that they have read all the terms of this Settlement and Release, including the above Civil Code section, and that they fully understand both the Agreement and the Civil Code section. Plaintiffs waive any benefits and rights granted to them pursuant to Civil Code § 1542. 8. COVENANT NOT TO SUE Plaintiffs agree, to the fullest extent permitted by law, that they will not initiate or file a lawsuit or administrative proceeding to assert any Released Claim. If any such action is brought, this Settlement and Release will constitute an Affirmative Defense thereto, and the City of Santa Ana shall be entitled to recover reasonable costs and reasonable attorney's fees incurred in defending against any Released Claim as set forth above and herein. N 9. DEFENSE AND INDEMNITY Page 3 of 6 Plaintiffs hereby agree that they will defend, indemnify and hold the City of Santa Ana harmless, from any and all statutory lions (medical, worker's compensation or otherwise) made in connection with incident(s) which serve as the basis for Plaintiffs' civil action, including all attorney's fees and costs incurred as a result of any liens. 10. TAX CONSEQUENCES The City of Santa Ana has made no representation about and takes no position on the tax consequences of this Settlement and Release. A dispute regarding the tax status of this Settlement and Release shall not affect the validity of this document. Plaintiffs have had an opportunity to discuss the potential tax consequences of this settlement with their own counsel, and/or financial advisors and insurance representatives, and agrees to indemnify and hold harmless the City of Santa Ana from any and all costs and assessments including, but not limited to delinquent taxes, penalties and/or assessments levied against the City of Santa Ana in connection with this Settlement and Release. 11. WARRANTY OF CAPACITY TO EXECUTE AGREEMENT Plaintiffs represent and warrant that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Settlement and Release, except as otherwise set forth herein; that Plaintiffs have the sole right and exclusive authority to execute this Settlement and Release and receive the sums specified in it; and that Plaintiffs have not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement and Release. 12. REPRESENTATION OF COMPREHENSION OF DOCUMENT In entering into this Settlement and Release, Plaintiffs represent that they have relied upon the advice of their attorney, who is the attorney of their own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement and Release have been completely read and explained to Plaintiffs by their attorney of record; and that the terms of this Settlement and Release are fully understood and voluntarily accepted by Plaintiffs. 13.. GOVERNING LAW This Settlement and Release shall be construed and interpreted in accordance with the laws of the State of California. 14. SEVERABILITY Should any provision of this Settlement and Release be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby. 15. ADDITIONAL DOCUMENTS Page 4 of 6 All parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement and Release. 16. ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST This Settlement and Release contains the entire agreement between the parties hereto with regard to the matters set forth in it and shall be binding upon and inure to the benefits of the executors, administrators, personal representatives, heir, successors and assigns of each. 17. AMENDMENT AND/OR MODIFICATION No amendment, modification, waiver or termination of this Settlement and Release shall be binding unless executed in writing by the parties to be bound thereby. No delay or omission on the part of either party in exercising any right under this Settlement Agreement and Release shall operate as a waiver of any such right or any other right. 18. REPRESENTATION The parties represent and warrant that they have consulted with their own attorneys concerning this Settlement and Release and participated in the drafting of each of the terms contained in this document. No inference, assumption, or presumption shall be drawn from the fact that one party or its attorney prepared this Settlement and Release, and it shall be conclusively presumed that each party participated in the preparation of this document. 19. COUNTERPARTS This Settlement and Release may be executed in counterparts. The execution of a signature page of this document shall constitute the execution of the Settlement and Release, and the document shall be binding on each party upon that party's signing of such a counterpart. 20. DISMISSAL OF THE ACTION Plaintiffs agree to take all actions necessary to dismiss the entire Action, with prejudice, as soon as possible after this Settlement and Release becomes effective, including, but not limited to, executing and filing a Request for Dismissal of the Action With Prejudice, with the Superior Court of San Bernardino. PLEASE READ CAREFULLY. THIS AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. WHEREFORE, PLAINTIFFS HAVE VOLUNTARILY EXECUTED THIS AGREEMENT ON THE DATE(S) SHOWN BELOW. Page 5 of 6 Dated: %)Z f By:µ Plai iff— Rita Marie Gomez Dated: By: Plaintiff— Rita Dolores Gomez Dated: By: Plaintiff— Rita Virginia Fox Dated: By: City of Santa Ana ATTEST: Dated: By: Maria D. Huizar Clerk of the Council City of Santa Ana Dated: By: Mark S. Algorri, Esq. Carolyn Tan, Esq. DeWitt, Algorri & Algorri Dated: By: Steven J. Rothans, Esq. Justin Reade Sarno, Esq. Carpenter, Rothans & Dumont LLP Page 6 of 6 Dated: By: ""Old Plaintiff — Rita Marie Gomez Bq.Dated: d F �r.�•k/ A laintiff— Rita Dolores Gomez Dated: By: Plaintiff—Rita Virginia Fox q Dated: By: RAUL GODINEZ II City Manager ATTEST: Dated:_._ t By: L19/1 44-4,4- Maria 4-4-4 �' f �✓A a . � Maria D. Huizar Clerk of the Council City of Santa Ana APPROVED AS TO FORM: Dated: iU 8 By: Mark S. Algorri, Esq. Carolyn Tan, Esq. DeWitt, Algorri & Algorri Dated: By: Steven J. Rothans, Esq. Justin Reade Samo, Esq. Carpenter, Rothans & Dumont LLP Page 6 of 6 Dated: By: Plaintiff—Rita Marie Gomez Dated: By: Pla=Gomez—� Dated: !� 1 f3 d By: I nti f — Rita Virginia Fox Dated: By: City of Santa Ana ATTEST: Dated: By: Maria D. Huizar Clerk of the Council City of Santa Ana APPROVED AS TO FORM: Dated,__By: Mark S. Algorri, Esq. Carolyn Tan, Esq. DeWitt, Algorri & Algorri Dated; By: Steven J. Rothans, Esq. Justin Reade Sarno, Esq. Carpenter, Rothans & Dumont LLP Page 6 of 6 Dated: /0 By.`99 4' T . ~) Plar ift- Rita Marie Gomez Dated: By: _ Plaintiff – Rita Dolores Gomez Dated: By: Plaintiff–Rita Virginia Fox Dated: By; — RAUL GODINEZ II City Manager �� ATTEST: Dated: LY/&/XVtp By: '-��c Maria D. Huizar Clerk of the Council City of Santa Ana APPROVE,E, D AS TO FORM: Dated: By: S. Dated;_J: /` By: J. Page 6 of 6 le Sarno, Esq. Rothans & Durno S LP > for City of S to Ana