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Home My WebLink AboutSUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGEQ ". C A0 M N-2016-040 n�� -a, ��,,pp SETTLEMENT AGREEMENT k4 kl1c��Cf 7 AND RELEASE OF ALL CLAIMS 4 4 20v This Settlement Agreement and Release of All Claims (hereinafter "Agreement") is made and entered into by and between SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE (hereinafter referred to as "Plaintiff"), and the CITY OF SANTA ANA, (hereinafter "Defendant"). WITNESSETH: WHEREAS, Plaintiff filed an action against Defendant in the Superior Court of the State of California, County of Orange, Central Justice Center District, case number 30-2009-99123214. Venue was transferred to the Los Angeles County Superior Court West District Santa Monica, CA known as SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE v. CITY OF SANTA ANA, et al. Case No. 123214 (the "Action") WHEREAS, Plaintiff and the Defendant desire to settle fully and finally all differences between them, including, but in no way limited to, those differences described above. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, and to avoid unnecessary litigation, it is hereby agreed by and between the parties as follows: FIRST: This Agreement and compliance with this Agreement shall not be construed as an admission of liability by the Defendant whatsoever, or as an admission by the Defendant of any violation of the rights of Plaintiff or any person, or a violation of any order, law, statute, duty, or contract whatsoever against Plaintiff or any person. The Defendant specifically disclaims any liability to Plaintiff or any other person for any alleged violation of the rights of Plaintiff or any person, or for any alleged violation of any order, law, statute, duty, or contract on the part of any employees or agents of the City of Santa Ana. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by Plaintiff of any liability, misconduct, or wrongdoing whatsoever. SECOND: (a) Plaintiff's attorney will sign a Request for Dismissal form dismissing with prejudice, Defendant, CITY OF SANTA ANA only. 1 (b) Defendant will notify Plaintiff's attorney when the settlement check is ready. Thereafter, Plaintiff s attorney will send. Defendant a fully signed copy of this Agreement, and an executed original Request for Dismissal form as to this Defendant only. In turn, the Defendant will send via overnight mail to Plaintiffs counsel, a check in the amount of TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00) in full and complete settlement of all claims made against the City of Santa Ana in this litigation. Alternatively, Plaintiff's attorney can pick up the check in person. The check will be made payable to "Judicial Council of California c/o AIMS and Law Offices of Lily Chow." This amount is in full and complete settlement for Plaintiff's claims for all damages alleged in the above -entitled action against this Defendant. (c) Plaintiff hereby acknowledges that the settlement check is made payable to an entity not specifically identified as a Plaintiff in the Action. (d) Plaintiff agrees that the foregoing dismissal constitutes full and complete settlement of all claims made by Plaintiff as to this Defendant related to or arising from this litigation. Plaintiff will not seek any further compensation for any other claimed damage, costs, or attorney's fees in connection with the matters encompassed in this Agreement from this Defendant. (e) Plaintiff acknowledges and agrees that the Defendant has made no representations regarding tax consequences of any amounts received pursuant to this Agreement. Plaintiff agrees that it is liable for all taxes, if any, which are owed by it on any amount received hereunder including interest and penalties. Plaintiff will hold the Defendant harmless from any and all claims made by federal, state, or local taxing authorities or lien holders against Plaintiff on amounts owed by it. THIRD: Plaintiff represents that, with the exception of Case No. 123214 it has not filed any complaints, claims, or actions against Defendant including any of its officers, agents, directors, supervisors, employees, or representatives of the City of Santa Ana with any state, federal, or local agency or court and that she will not do so at any time hereafter as it relates to this action and that if any agency or court assumes jurisdiction of any complaint, claim, or action against the Defendant on Plaintiffs behalf, Plaintiff will direct that agency or court to withdraw and dismiss with prejudice the matter. FOURTH: Plaintiff represents and warrants that no portion of any claim, right, demand, action or cause of action against Defendant and any officers, agents, directors, supervisors, employees, or representatives of the City of Santa Ana or any portion of any recovery or settlement to which she may be entitled from Defendant, has been assigned or transferred to any person, entity or corporation in any manner, including 2 by way of subrogation, transfer or operation of law. In the event that any claim, demand, suit or lien has or should have been made were instituted against the Defendant including its officers, agents, directors, supervisors, employees, or representatives because of any such purported assignment, subrogation, transfer or lien, Plaintiff agrees to indemnify and hold harmless the Defendant and the officers, agents, directors, supervisors, employees, or representatives of the City of Santa Ana against any such claim, suit, demand, and to pay and satisfy any such claim, suit, demand or lien, including expenses of investigation, attorney's fees and costs. FIFTH: The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code Section 1542 provides 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." SIXTH: Notwithstanding the provisions of Civil Code section 1542, each party hereby irrevocably and unconditionally releases and forever discharges each other party and each and all of its officers, agents, directors, supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with each other party from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which each releasing party at any time heretofore had or claimed to have or which each releasing party at any time hereafter may have or claim to have, incidental to the incident(s) which form the basis of this lawsuit. SEVENTH: Each person signing below represents that they have reviewed all aspects of this Agreement, that the Agreement has been carefully read and fully explained to them and they understand all the provisions of this Agreement, that they understand that in agreeing to this document they are releasing each party hereby from any and all claims against each party released, 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 discuss them with legal counsel. EIGHTH: The Parties hereto represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any representation or statement made by any of the parties or by any of the parties' agents, attorneys, or representatives 3 with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than those specifically stated in this Agreement. NINTH. This Agreement shall be binding upon the parties hereto and upon their heirs, administrators, representatives, exeeutors, predecessors, successors, and _ assigiita, grad slitiliu3uie to�iieoili'of e�'pac#iea autiescli oi"ilieni an�tti #fieu heirs, _.__._.._._.. administrators, representatives, executors, predecessors, successors, and assigns. shall be F"lamed not to be a part of Us Agreement. TWELi''fli: 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. TljST- �ENTH! This Agreement shall in all respects be interprul:4 enforced, and governed by the laws of the State of California. 1! f 1W—EENTH: This !-agreement may be signed separately by the City and Plaintiff, such that the page signed by Plaintiff and the page signed by the City, although signed separately on different pages, together form on complete Agreement, Signature pages sent by e-mail or by facsimile are the equivalent of original signatures for all purposes. Dated; ` , ✓U"r Superior Court for the State of California County of Orange Plaintiff APR 4 2016 Dated: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing tinder the Constitution and laws of the State of California David �Ca. aZ09,'I Ity Mans �f 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: —�4291—v By: Maria D. Huizar, Cleric Wt—he Coiin61 APPROVED AS TO FORM: Law Offices of Lily Chow Dared: 3 29/4,L 7 — �111 Tax A-0w,q. -,S-- Attorney for Plaintiff Superior Court ofthe State of California, County of Orange Sonia R. Carvalho City Attorney City of "Ginta Ana Dated: Z� SA M. SCHWARZMANN V Sex r Assistant City Attorney el (n 2orney for Defendant City of Santa Ana AUTHORIZATION TO SETTLE CLAIM CLAIM NO.: CLAIMANT: NATURE OF CLAIM: Superior Court of California Dangerous Condition N-2016-040 I recommend settlement of this entire claim in the amount of $25,000.00 APPROVED: (Not to exceed $5,000) APPROVED: ($5,001-$10,000) APPROVED: ($10,001-$25,000) Director of Personnel Services �I2(21 Date V r� ktt,oKnev Date ATTEST. MARIA D. HUICAR CLERK OF THE COUNCIL City Manager