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HomeMy WebLinkAboutDANIELLE MARTINEZIt:'J'ANC` "' REQUIRED N-2020-219 ti%ANOR ;. DROCEED OUNGIL �2/IS/ZDZf� �'• 6A0(0)_%Mru 36)warzmlann �. lL • SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release is entered into between and among Plaintiff DANIELLE MARTINEZ (hereinafter RELEASOR") and Defendants, CITY OF SANTA ANA; Eppeldauer Family Trust; Robert Hwang; Ing-Wen Hwang; and Ling -Long Hwang; (hereinafter "RELEASEES"). RELEASOR and RELEASEES are referred to herein collectively as the "Parties". 1. Full Release of All Liability For and in full consideration of payment of $55,000 (Fifty Five Thousand Dollars and no/100 Cents), to RELEASOR ($50,000 on behalf of MERCURY CASUALTY COMPANY/ EPPELDAUER FAMILY TRUST; and $5,000 on behalf of the CITY OF SANTA ANA) and her attorneys on behalf of RELEASEES, RELEASOR, on behalf of herself, her heirs, agents, executors, administrators, successors and assigns, hereby release, acquit, and forever discharges the RELEASEES,CITY OF SANTA ANA; MERCURY CASUALTY COMPANY; EPPELDAUER FAMILY TRUST; ROBERT HWANG; ING-WEN HWANG; and LING -LONG HWANG, their agents, servants, representatives, employees, successors and assigns, from any and all past, present or future claims, demands, obligations, actions, causes of action, costs, expenses and compensation of any nature whatsoever, whether for compensatory or punitive damages which RELEASOR now has or which RELEASOR may hereafter acquire in any way arising out of the alleged trip and fall on January 2, 2017, and subsequent treatment, including but not limited to any and all claims, actions, causes of actions, demands, rights, damages, costs, attorney's fees, loss of service, expenses and compensation whatsoever which the undersigned now has or which may hereafter accrue or otherwise be acquired on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen injuries to RELEASOR or which may result in the future from the alleged acts or omissions of the RELEASEES prior to and including the events which occurred on or about January 2, 2017, as set forth in, but not limited to, the complaint filed in the Orange County Superior Court — Central District, entitled Danielle Martinez v. City of Santa Ana etal , Case No.: OCSC #30-2017-00957565 2. Prevailing Party/Costs The payment to RELEASOR is being made on account of personal injuries and sickness as defined by Revenue Code, Section 104(a)(2) as amended. The Parties acknowledge that by entering into this Settlement and Release, RELEASOR qualifies as a "prevailing party," pursuant to California Code of Civil Procedure Section 1032(a)(4), because RELEASOR has obtained a "net monetary recovery," entitling RELEASOR to an award of costs. Cal. Code Civ. P. § 1032(b); DeSaulles v. Cmty. Hosp. of the Monterey Peninsula, No. S219236, 2016 WL 903944, at *1, --- P.3d --- (Cal. Mar. 10, 2016). The Parties stipulate that the amount RELEASEES agree to pay pursuant to this Settlement and Release includes all sums that RELEASOR is entitled to recover as costs in this action. The Parties further stipulate that RELEASOR will not seek an award of costs from RELEASEES, and that RELEASOR 00219996.1 hereby forever releases and dismisses with prejudice any and all rights to and claims for the recovery of such costs, pursuant to the authority, set forth In DeSaulles, supra. 3. Waiver It Is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States are hereby EXPRESSLY WAIVED. Said section reads as follows: 1542. GENERAL RELEASE; EXTENT, A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR," RELEASOR hereby declares and represents that the injuries sustained are or may be permanent and/or progressive and that recovery therefrom is uncertain and indefinite. In making this Settlement Agreement and Release, it Is understood and agreed, that RELEASOR relies wholly upon her Judgment, belief and knowledge of the nature and extent and duration of said injuries and liability therefore. It is further understood and agreed that this Settlement Agreement and Release is made without reliance upon any statement or representation of the RELEASEES, Its attorneys, or any physician or other health care provider employed or affiliated with RELEASEES, RELEASOR further declares and represents that no promise, Inducement or agreement not herein expressed has been made to RELEASEES, and that this Settlement Agreement and Release contains the entire agreement between the RELEASOR and RELEASEES, and that its terms are contractual and not a mere recital. 4. Final Compromise; No Admissions The RELEASOR acknowledges that the RELEASEES disputes the allegations of the Complaint, and the subject of the claim, and they agree that neither the payment of the consideration provided for by this Agreement and the Release by or on behalf of the RELEASEES, nor the negotiations for the settlement (including all statements, admissions, or communications by the RELEASEES and its attorneys or representatives) by or on behalf of said RELEASEES shall be considered an admission by the RELEASEES of any wrongdoing on the part of the RELEASEES, and no admission shall be implied by such payment or negotiations. RELEASOR specifically waives and relinquishes any and all rights, actions, causes of action, claims, demands, damages, costs, losses, expenses, and compensation which are in any fashion based upon the principles set forth in the cases of Royal Globe Insurance Co v Superior Court Rodriquez v Fireman's Fund, and their progeny, and/or any law or statute of the State of California and/or United States of America. 00210006.1 5, Delivery of Dismissal with Prejudice Concurrently with the execution of this Settlement Agreement and Release, counsel for RELEASOR will deliver to counsel for RELEASEES, an executed Dismissal with Prejudice as to RELEASEES of the Superior Court action described above as to these RELEASEES. RELEASOR authorizes RELEASOR'S counsel to execute this Dismissal on her behalf and hereby authorize her counsel or counsel for RELEASEES to file said Dismissal with the court and enter it as a matter of record after payment of the settlement funds called for in this agreement. 6. Cooperation of the Parties All parties agree to cooperate fully and to 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 which are not inconsistent with Its terms. Advice of Counsel In entering Into this Settlement Agreement, RELEASOR represents that she has relied upon the advice of counsel, who is an attorney of her own choice, and that the terms of this Settlement Agreement and Release have been completely read and explained to her by her attorney and that these terms are fully understood and voluntarily accepted by her. 8. Warranty of Capacity to Execute Agreement RELEASOR represents and warrants 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 Agreement except as otherwise set forth herein, and that she has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in It; and that she has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action referred to In this Settlement Agreement, 9. Governing Law This Settlement Agreement shall be construed and Interpreted in accordance with the laws of the State of California. The use of the male pronoun in this release shall apply equally to the female; the use of the singular shall apply to the plural, and vice versa. 10. Attorneys' Fees and Costs Each party hereto shall bear hers/its own attorneys' fees and costs arising from the actions of its counsel in connection with this action, this Settlement Agreement and Release and the matters and documents referred to herein and all related matters. 00210996.1 11. Confidentiality The parties herein agree, represent, and warrant that all settlement discussions are strictly confidential and do not constitute and shall not be construed as an admission of any wrongdoing, violation of law, or breach of any agreement, duty, or obligation owed by any parties to this Agreement. 12. Entlre Agreement and Successors In Interest This Agreement contains the entire agreement between the RELEASOR and RELEASEES with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, family members, heirs, successors, assigns and Related Entitles of each, 13, Effectiveness All Parties have cooperated and agreed upon the drafting and preparation of this Agreement. Therefore, In any construction to be made of this Agreement, the same shall not be construed against any Party in favor of the other. This Agreement shall become effective Immediately following execution by the Parties or their representative. 14. Full integration This Agreement Is the final written expression and the complete and exclusive statement of all of the agreements, conditions, promises, representations, and covenants among the Parties and their respective Related Entities with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, negotiations, representations, understandings, and discussions between and among the Parties, their respective representatives, and any other person or entity, with respect to the subject matter covered hereby. Any amendment to this Agreement must be in writing, must specifically refer to this Agreement, and must be signed by duly authorized representatives of the Parties. 15, Severability If any provisions of this Agreement are found to be unlawful, void, unconstitutional, unconscionable, or for any reason unenforceable, such provisions shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement. 16. Survival of Representations and Warranties All representations and warranties contained in this Agreement shall survive its execution, effectiveness and delivery. 00219996.1 17. Hold Harmless for Subrogation and Lien Claims The undersigned RELEASOR acknowledges that all subrogation, lien and third party claims, arising out of contract or under state or federal law, Including but not limited to, any subrogation or lien claims of health care providers, Insurance carriers, the Department of Labor and Industries, the Department of Social and Health Services, and any federal agency or programs such as Medicare, Medicaid, Veteran's Administration or Federal Workmen's Compensation Program, are the sole and separate obligation of the undersigned RELEASOR which the undersigned RELEASOR agrees to pay or otherwise resolve. The undersigned RELEASOR further hereby covenants to defend, Indemnify and hold harmless the RELEASEES and their attorneys, agents, employees and assigns from and against all such subrogation, lien and third party claims, provided RELEASEES provide reasonable notice of said claims and tender and cooperate In the defense thereof. Indemnity provided includes all costs and attorney's fees incurred In the defense of such claims. RELEASEES retain the right to monitor the defense of any such claim or action. 18. Counterparts This Agreement shall be executed in counterparts, and when each Party hereto has signed and delivered at least one (1) such counterpart, each counterpart shall be deemed an original and one, taken together with other signed counterparts, shall constitute one (1) Agreement, which shall be binding upon all Parties and effective as to all Parties hereto. I HAVE READ THE FOREGOING RELEASE AND FULLY U DERSTAN AND ACCEPT Dated: MOO DANIELLE MARTINEZ, PLAINTIFF APPROVED AS TO FORM AND CONTENT: Dated: i Z I g (7, 0'�,O Dated: 00219996.1 :Tz SANDEEP G. AGARWAL, ESQ. Attorney for Plaintiff DANIELLE MARTINEZ Signed in counterpart. 17. Hold Harmless for Subrogation and Lien Claims The undersigned RELEASOR acknowledges that all subrogation, lien and third party claims, arising out of contract or under state or federal law, including but not limited to, any subrogation or lien claims of health care providers, insurance carriers, the Department of Labor and Industries, the Department of Social and Health Services, and any federal agency or programs such as Medicare, Medicaid, Veteran's Administration or Federal Workmen's Compensation Program, are the sole and separate obligation of the undersigned RELEASOR which the undersigned RELEASOR agrees to pay or otherwise resolve. The undersigned RELEASOR further hereby covenants to defend, indemnify and hold harmless the RELEASEES and their attorneys, agents, employees and assigns from and against all such subrogation, lien and third party claims, provided RELEASEES provide reasonable notice of said claims and tender and cooperate in the defense thereof. Indemnity provided includes all costs and attorney's fees incurred in the defense of such claims. RELEASEES retain the right to monitor the defense of any such claim or action. 18. Counterparts This Agreement shall be executed in counterparts, and when each Party hereto has signed and delivered at least one (1) such counterpart, each counterpart shall be deemed an original and one, taken together with other signed counterparts, shall constitute one (1) Agreement, which shall be binding upon all Parties and effective as to all Parties hereto. I HAVE READ THE FOREGOING RELEASE AND FULLY UNDERSTAND AND ACCEPT IT. Dated: Signed in counterpart. DANIELLE MARTINEZ, PLAINTIFF APPROVED AS TO FORM AND CONTENT: LAW OFFICES OF BOB KHAKSHOOY Dated: 1Signed in counterpart. SANDE P G. AGARWAL, ESQ. Attornef for Plaintiff DANIELLE MARTINEZ L Dated: 1 S VE P AM, Executive Director of Human Resourc for CITY OF SANTA ANA 00219996.1 N-2020-219 ATTEST: CITY OF SANTA ANA, a charter law, city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California Dated. W . 11 11 11101111•1111111111311 .Yto APPROVED AS TO FORM AND CONTENT: Dated: ic" Dated TAL%% Y & TALLEY LAW AAPC CRISTINA TALLEY, ESQ. Attorney for Defendant, CITY OF SANTA ANA Signed in counterpart. EPPELDAUER FAMILY TRUST, Defendant APPROVED AS TO FORM AND CONTENT: Dated: 00219996.1 WEST, BORGES & ROSA, LLP Signed in counterpart. STEPHAN A. ROSA, ESQ. ANDREW W. SALMOND, ESQ. ATTORNEY FOR Defendant EPPELDAUER FAMILY TRUST ATTEST: CITY OF SANTA ANA, a charter law, city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California Dated: Signed in counterpart. Daisy Gomez, Clerk of the Council APPROVED AS TO FORM AND CONTENT: TALLEY & TALLEY LAW, APC Signed in counterpart. Dated: CRISTINA TALLEY, ESQ. Attornev for Defendant, CITY OF SANTA ANA Dated: EPPEL FAMILY TRUST, Defendant APPROVED AS TO FORM AND CONTENT: WEST, BO GES ROSA, L J% � Dated: 11 l STEPHAN A. ROSA, ESQ. ANDREW W. SALMOND, ESQ. ATTORNEY FOR Defendant EPPELDAUER FAMILY TRUST 00219996.1