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HomeMy WebLinkAboutMARK WALDO V CITY OF SANTA ANAINSURANCE NOT REQUIRED WORK MAY PROCEED A-2022-017 CLERK OF COUNCIL DATE: SETTLEMENT AGREEMENT AND RELEASE OF CLAIM FOR ATTORNEY FEES D.GA��SWZcgE Ua;r� iSAND �COSTS UNDER GOVERNMENT CODE SECTION 6259(d) This Settlement Agreement and Release of Claim for Attorney Fees and Costs Under Government Code section 6259(d) ("Agreement") is made and entered into solely by and between o BRIAN HEIDER ("Defendant," "Cross -Complainant," "Cross -Petitioner" or "HEIDER"), and CITY OF SANTA ANA ("Defendant/Respondent," "Cross -Defendant," "Cross -Respondent" or d' "CITY"). RECITALS: y WHEREAS, MARK WALDO ('Petitioner," 'Plaintiff," "Cross -Defendant" or "WALDO" herein) filed a Petition for Writ of Mandate ("Writ') and Complaint for Declaratory Relief against CITY and HEIDER in the Superior Court of the State of California, County of Orange, Central Justice Center District ("Court") known as MARK WALDO v. CITY OF SANTA ANA, BRIAN HEIDER, and DOES 1 to 50, inclusive, Case No. 30-2019-01120806-CU- WM-CJC (the "Action") seeking to prevent the City from disclosing certain records to HEIDER requested under the California Public Records Act. WHEREAS, HEIDER filed a Cross -Complaint for Declaratory Relief and Cross -Petition for Writ of Mandate against WALDO and CITY in the Action seeking a writ under Government Code section 6258 commanding CITY to disclose the certain records HEIDER requested. WHEREAS, on June 24, 2021, the Court granted Heider's cross -petition for a writ of mandate against CITY and ordered the City to produce certain records requested by HEIDER pursuant to his California Public Records Act request in the Action. WHEREAS, on or about October 8, 2021, HEIDER, through his attorney of record, brought a Motion for Attorney Fees in the Action against CITY under Government Code section 6259(d) and against WALDO under Code of Civil Procedure section 1021.5. WHEREAS, CITY and HEIDER (collectively, the "Parties"), desire to settle fully and finally HEIDER's claim in the Action only for attorney fees and costs under Government Code section 6259(d) against CITY. NOW, THEREFORE, it is hereby agreed by and between the Parties as follows: 1. Each party will exchange a fully signed executed copy or original of this Agreement. HEIDER's counsel, Robert Lucas Law PC, agrees to provide a W-9 to CITY for processing of settlement payment. CITY cannot proceed with processing payment without a fully executed copy of this Agreement and a W-9 from HEIDER's counsel, Robert Lucas Law PC. 2. The Parties agree to settle HEIDER's Motion for Attorney Fees under Government Code section 6259(d) against CITY on the following terms: a. Without taking HEIDER's pending Motion for Attorney Fees off -calendar or withdrawing the Motion entirely, HEIDER agrees to file with the Superior Court in this Action a Notice of Partial Withdrawal of Motion for Attorney Fees ("Withdrawal Page 1 of 4 Motion") as to CITY only, with prejudice prior to the date of the hearing on the Motion for Attorney Fees currently scheduled for February 24, 2022. HEIDER will add the Santa Ana City Attorney's Office to the Proof of Service and will serve the City Attorney's Office with a copy of the filed Withdrawal Motion. b. In exchange for receiving HEIDER's filed copy of the Notice of Partial Withdrawal of Motion for Attorney Fees as to CITY only, CITY will issue a check in the amount of Eighty -Seven Thousand Six Hundred Ninety -Three Dollars and Eighty -Four Cents ($87,693.84) made payable to "Robert Lucas Law PC Trust Account." This total sum is inclusive of HEIDER's (1) total attorney fees against CITY under Government Code section 6259(d) of $86,130.00 and (2) total costs of $1,563.94. c. HEIDER will also file a Request for Dismissal of his Cross -Complaint and Cross - Petition in the Action as to CITY only following receipt and bank clearance of the foregoing check by HEIDER's counsel. d. HEIDER's counsel shall provide CITY with an email update, following any rulings and/or orders by the Court in connection with HEIDER's Motion for Attorney Fees currently scheduled for February 24, 2022, if HEIDER proceeds on that Motion against WALDO only. e. The monetary amount, the filing and serving of the Notice of Partial Withdrawal of Motion for Attorney Fees as to CITY only, the reporting obligation and the dismissal of the Action as to CITY represents a full and complete settlement of HEIDER's fees and costs against CITY under Government Code section 6259(d) in this Action. 3. HEIDER agrees this Agreement constitutes full and complete settlement of his claims for attorney fees and costs under Government Code section 6259(d) made against CITY in this Action only. HEIDER will not seek any further compensation from CITY for any other claimed attorney's fees or costs in connection with this Action only. 4. CITY acknowledges and agrees that this Agreement only settles the amount of attorney fees HEIDER can receive under Government Code section 6259(d) in this Action. Nothing in this Agreement shall be interpreted to constitute any waiver of any claims, rights or remedies whatsoever by HEIDER, other than released in this Agreement, or any member of HEIDER's family against CITY now pending or in the future. 5. HEIDER acknowledges and agrees CITY has made no representations regarding the tax consequences of any amounts received pursuant to this Agreement. HEIDER represents and CITY agrees that all attorney fees paid under this Agreement belong to his attorney, 'Robert Lucas Law PC, and that Robert Lucas Law PC alone is liable for all taxes, if any, which are owed on any amount received hereunder including interest and penalties. Robert Lucas Law PC will hold CITY and HEIDER harmless from any and all claims made by federal, state, and/or local taxing authorities or lien holders against HEIDER or Robert Lucas Law PC on any amounts owed by them. Page 2 of 4 6. Each person signing below represents that he/she has reviewed all aspects of this Agreement, that the Agreement has been carefully read and fully explained to them and that they understand every provision of this Agreement, that they voluntarily agree to all the terms set forth in this Agreement, that they knowingly and willingly intend to be legally bound by the same, that they were given the opportunity to consider the terms of this Agreement and discussed them with legal counsel. Each party hereby warrants that they have the authority to enter into this Agreement and bind the party for whose benefit they execute this Agreement. 7. The Parties represent and acknowledge that in executing this Agreement, they do not rely and have not relied upon any representation or statement made by the other Party or by any of the other Patty's agents, attorneys, or representatives with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this Agreement. 8. The CITY reserves the right to seek apportionment and/or contribution of costs and/or fees against any other party in this Action under Civil Code section 1432, Code of Civil Procedure section 1032(a)(4), or any other provision of the law, including against WALDO or any other entity except HEIDER and Robert Lucas Law PC and their heirs, administrators, representatives, executors, predecessors, successors and/or assigns. 9. This Agreement shall be binding upon the Parties hereto and upon their heirs, administrators, representatives, executors, predecessors, successors, and/or assigns, and shall inure to the benefit of said Parties and each of them and to their heirs, administrates, representatives, executors, predecessors, successors, and/or assigns. 10. Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal, unenforceable, or invalid part, term, or provision shall be deemed not to be a part of this Agreement. 11, This Agreement sets forth the entire agreement between the Parties hereto and fully supersedes any and all prior agreements or understandings, written or oral, between the Parties hereto pertaining to the subject matter hereof. 12. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any of the Parties hereto. 13. The Parties agree that should a dispute arise concerning this Agreement, interpretation of this Agreement, or any other matter related to the Acton or this Agreement, the proper venue is Orange County Superior Court. The Parties further agree that this Agreement and its interpretation are governed by California law. 14. This Agreement may be executed in counterparts, secured via e-mail, facsimile transmission or otherwise, each of which shall be deemed to be an original. Photocopies of any executed counterpart shall have the same force and effect as an original. Page 3 of 4 PARTIES: Dated: February 7, 2022 Dated: Dated: ATTEST: Dated: APPROVED AS TO FORM: A-2022-017 BRIAN HEIDER Defendant, Cross -Complainant and Cross -Petitioner 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 Kristine Ridge, City Daisy Gomez, Clerk of the Council Dated: February 7, 2022 ROBERT LUCAS LAW PC By: Robert W. Lucas Attorneys for Defendant, Cross -Complaint and Cross -Petitioner Brian Heider February 8, 2022 SONIA R. CARVFIALLO, CITY ATTORNEY By: )"4� Tamara Bogosian Senior Assistant City Attorney for Defendant/Respondent, Cross - Defendant, Cross -Respondent City of Santa Ana Page 4 of 4