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HomeMy WebLinkAboutELI LANDEN GARCIA BY AND THROUGH HIS GUARDIAN AD LITEM THERESA DEJESUS GARCIA - MMZ, ET. AL VS. CITY OF SANTA ANA-2016IN,SUEANC;E NOT SEQUIRIM WOR (;EF) Cl.EF1K OF COUNCIL. SETTLEMENT AGREEMENT AND RELEASE 'T'his Settlement Agreement and Release (the "Settlement Agreement") ) is made and entered into this .L day of (October, 2016, by and among: "Plaintiff' Eli Landen Garcia, by and through his guardian ad Tatem Theresa DeJesus Garcia "Defendant" City of Santa Ana RECITALS A. Plaintiff Eli Landen Garcia filed a complaint against City of Santa Ana and its police officers, in the United States District Court, Central District of California, entitled EI.C, etc., et al. v. City of Santa Arca, et at, which was consolidated with the case entitled MMI, etc., et al, v. City of Santa Acta, et al., which bears case number SACV 15-0851 JLS (DFMx) (hereinafter "Action"). This Action arose out of the events surrounding the shooting of Ernesto Canepa on February 27, 2015 and alleged civil rights violations and various state torts and negligent acts or omissions by the City and its police officers. In the Action, Plaintiff sought to recover monetary damages as a result of that certain occurrence on February 27, 2015, which allegedly resulted in the death of Decedent Ernesto Canepa and related physical injuries to Plaintiff. B. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which are, or might have been, the subject matter of the Complaint, upon the terms and conditions set forth below. AGREEMENT The parties agree as follows: 1.0 RELEASE AND DISCHARGE 1, l In consideration of the payments set forth in Section 2, which has a current cost of four hundred and sixty-five thousand dollars and no cents ($465,000.00), including up -front cash and the promise of future periodic payments, Plaintiff hereby completely releases and forever discharges any named defendant, in the Action, including but not limited to the City of Santa Ana and Officer Christopher Shynn from any and all past,, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of, or which are the subject of the Action including, without limitation, any and all known or unknown claims for bodily and personal injuries to Plaintiff, or any future wrongful death claim of PIaintiff's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendant. It is agreed that Plaintiffs and Defendants will.each respectively bear their own attorneys' fees and costs. 1.2 This release and discharge shall apply to the past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated of the City of Santa Ana, including but not limited to Officer Christopher Shynn. 1.3 This release, on the part of the Plaintiff, shall be a fully binding and complete settlement among the Plaintiff and the Defendant, and their heirs, assigns and successes and employees, including, but not limited to Officer Christopher Shynn. t.4 The Plaintiff acknowledges and agrees that the release and discharge set forth above is a general release. Plaintiff expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Plaintiff does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Plaintiff's decision to enter into this Settlement Agreement. The Plaintiff further agrees that Plaintiff has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Plaintiff assumes the risk that the facts or law may be other than Plaintiff believes. It is understood and agreed to by the parties that this settlement is a compronvse of a doubtful and disputed claim, and the payments are not to be construed as an admission of liability on the part of the Defendant, by whom liability is expressly denied. 2.0 PAYMENTS In consideration of the release set forth above, the Defendant agrees to pay the payments outlined in Sections 2.1 and 2.2 below: 2.1 Payments due at the time of settlement as follows: $157,307.96 shall be in the form of a check made payable to "Casillas & Associates" 2.2 The Periodic Payments which constitutes damages (other than punitive damages) received on account of Plaintiff s alleged personal physical injuries or sickness within the meaning of section 104(a)(2) of the Internal Revenue Code of 1986, will be paid as follows: Payee: Eli Landen Garcia $2,800.00 Payable monthly, guaranteed for 84 payments only, commencing 2/18/2033 (age 18) through and including 2/18/40; $30,000.00 Guaranteed lump sum, payable on 2/18/2040 (age 25); $40,000.00 Guaranteed lump sum, payable 2/18/2045 (age 30); 2 _' $50,000.00 Guaranteed lump sum, payable 2/18/2050 (age 35); $75,000.00 Guaranteed lump sum, payable 2/18/2055 (age 40); $401,000.00 Guaranteed lump sum, payable 2/18/2060 (age 45). The periodic payment obligation set forth above will be funded by a payment [or at a cost on of $307,692.04 in a check made payable to BHG Structured Settlements, Inc. The Parties agree that the Defendant may make a qualified assignment as defined in section 130(c) of the Internal Revenue Code to BHG Structured Settlements, Inc. (the "Assignee") of the Defendant's liability to make the periodic payments set forth in section 2.2. Any such assignment, if made, shall be accepted by either Plaintiff without right of rejection and shall completely release and discharge the Defendant from the liability that is assigned to the Assignee. Plaintiff recognizes that, in the event of such an assignment, the Assignee shall be the sole obligor with respect to the liability assigned, and that all other releases of the Defendant shall thereupon become final, irrevocable and absolute. If the liability to make the periodic payments is assigned, then Plaintiff understands and agrees that (i) the periodic payments set forth in section 2.2 cannot be accelerated, deferred, increased or decreased by the recipient of such payments, (ii) the Assignee's obligation on account of the periodic payments set forth in section 2.2 is no greater than the obligation of the Defendant or insurer of the Defendant that are assigning the liability, and (iii) the rights of Plaintiff against the Assignee are solely the rights of a secured creditor of the Assignee. The Defendant and/or the Assignee shall not segregate or set aside any assets to fund the periodic payments set forth in section 2.2. Execution by the Parties of the assignment will absolutely and completely discharge Defendant from any further payment obligation. If the Assignee, and/or Annuity Issuer of the contract purchased by Assignee to make the payment obligation specified in section 2.2, fails to make payments or becomes insolvent or bankrupt, the sole remedy of Plaintiff or his beneficiary, heirs or representatives to enforce payment obligations assigned shall be against Assignee, guarantor and/or responsible party other than Defendant. Defendant will have no further obligations upon payment to the designated Assignee and/or Annuity Issuer and full execution of the Qualified Assignment and Release document. 2.3 The Defendant or Assignee reserves the right to provide for the periodic payments set forth in section 2.2 of this agreement by purchasing an annuity policy from Berkshire Hathaway Life Insurance Company of Nebraska ("Annuity Issuer"). The Assignee shall be the owner of any such annuity policy. Neither the Plaintiff nor any payee set forth in this agreement shall have any incidents of ownership of that annuity. The Assignee may, for its convenience, direct the annuity issuer to mail periodic payments directly to the Plaintiff. While the periodic payments are being made, the Plaintiff shall provide to and maintain for the Assignee a current mailing address. 2.4. Plaintiff's Beneficiary. During the period of minority, Plaintiff's estate shall be the sole beneficiary. At the age of majority, Plaintiff may designate, in writing, his beneficiary. Neither such designation, nor any revocation thereof, shall be effective unless it is in writing and 31 delivered to the Insurer or the Insurer's Assignee. The designation must be in a form acceptable to the Insurer or the Insurer's Assignee before such payments are made. 2.5 Discharge of Liability. The obligation assumed by the Assignee to make each Periodic Payment shall be fully discharged upon the mailing of a valid check or electronic funds transfer in the amount of such payment on or before the due date to the last address on record for the Payee or Beneficiary with the Annuity Issuer. If the Payee or Beneficiary notifies the Assignee that any check or electronic funds transfer was not received, the Assignee shall direct the Annuity Issuer to initiate a stop payment action and, upon confirmation that such check was not previously negotiated or electronic funds transfer deposited, shall have the Annuity Issuer process a replacement payment. 3.0 DELIVERY OF STIPULATION TO DISMISS Concurrent with the execution of this Settlement Agreement, counsel for the Plaintiff shall deliver to counsel for the Defendant an executed Stipulation to Dismiss. Plaintiff hereby authorizes counsel for the Defendant to file said Stipulation with the Court and enter it as a matter of record. 4.0 REPRESENTATION OF COMPREHENSION OF DOCUMENT In entering into this Settlement Agreement, the Plaintiff represents that Plaintiff has relied upon the advice of his attorneys, who are the attorneys of their own choice, concerning the language of this Settlement Agreement and the legal and income tax consequences of this Settlement Agreement; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Plaintiff. 5.0 WARRANTY OF CAPACITY TO EXECUTE AGREEMENT Plaintiff 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; that Plaintiff has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Plaintiff 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. 6.0 GOVERNING LAW This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California. In executing this release Plaintiff does hereby waive all rights and benefits, which she has or in the future may have under and by virtue of the terms of section 1542 of the Civil Code of the State of California, which section reads as follows: M 41' A general release does not extend to the 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. Plaintiff is hereby advised that for his protection, California law requires the following to appear on this form, pursuant to California Insurance Code section [871.2: Any person who knowingly presents false or fraudulent claim for the payment of a loss is guilty of a crime and may be subject to tines and confinement in state prison. 7.0 ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST This Settlement Agreement contains the entire agreement between the Plaintiff and the Defendant 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, heirs, successors and assigns of each. 8.0 EFFECTIVENESS This Settlement Agreement shall become effective immediately following execution by each of the parties. Dated: Theresa DeJesus Garcia, guardian ad litem for Plaintiff Eh Landen Garcia Arnoldo Casillas, Esq. Christian Periera, Esq. Attorney for Plaintiff Eli Landen Garcia Defendant City of Santa Ana Dated;—_— By:��— Zr David Cavazos, Title: City Manager ATTEST MAF IA D HUIZAf2 5 CLERK; OF -FHE COUNCIL