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HomeMy WebLinkAboutCASTREJON, GILBERT (2)SETTLEMENT AGREEMENT N-2018-129 This Settlement Agreement and Release ("Agreement") is made as of the date of the last signature below by and between GILBERT CASTREJON, an individual, ("Gilbert Castrejon" or "Plaintiff") on the one hand and the City of Santa Ana ("Santa Ana") and the City of Orange ("Orange") (collectively "Defendants") on the other hand. All parties are referred to collectively as the "Parties" and singularly as "Party." This Settlement is between Gilbert Castrejon, Santa Ana, Orange, and all unnamed/Doe Defendants in the Action identified hereinafter (jointly "Settling Parties"). RECITALS A. Plaintiff filed suit against Defendants on or about July 25, 2017 in the United States District Court, Central District of California, Southern Division, captioned Gilbert Castrejon v. City of Orange, et al. Case No. 8:17-cv-01283. B. Plaintiff alleged false arrest, excessive force, unreasonable search, substantive due process violations, negligence, battery, and false imprisonment arising out of a felony car stop by Defendants on or about August 12, 2016 (the "Incident") near the intersection of McFadden Ave. and Riverview Marketplace in the City of Santa Ana (the "Incident Location"). C. The Parties wanting to resolve all differences of any and all nature arising out of and/or pertaining to the Action and Incident as well as the various issues arising therefrom agree as set forth below. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, the Parties agree as follows: PAYMENTS AND CONSIDERATION. In consideration for the releases and waivers contained herein, the Settling Parties have agreed to resolve this matter as follows: (a) the payment by the City of Orange for the sum of $60,000.00 (Sixty Thousand Dollars and No Cents) (the "Settlement Funds"). Settlement Funds shall be made payable to "Gilbert Castrejon and MK Smith, APC"; and (b) Plaintiff acknowledges and agrees that the City of Santa Ana is paying zero dollars to the Plaintiff to resolve the action; and (c) the waiver of any and all attorneys' fees and costs of suit by each of the Parties against each of the Parties as provided in Paragraph 12 below. Plaintiff waives all rights that he or she has or may have under Section 6149.5 of the California Business and Professions Code, which requires a copy of the cover letter accompanying the Settlement Funds paid as described in this Agreement be sent to Plaintiff herein. , Plaintiff authorizes and directs that the Settlement Funds to be paid as described in this Agreement will be sent or delivered to Plaintiff's attorney within ten business days after Plaintiff gives notice to the Court that there has been a full and complete settlement reached by all parties in the case. 2. FULL SETTLEMENT. By his or her signature on this Agreement, Gilbert Castrejon, on behalf of him/herself and his or her Related Persons, as defined in Paragraph 3.1 below, agrees to accept such Settlement Funds without any further demand to Santa Ana and Orange or their Related Persons, as defined in Paragraph 3.2 and 3.3 below, respectively, for any financial or other consideration beyond that set forth in this Agreement. By his or her signature on this Agreement, Gilbert Castrejon agrees that the City of Santa Ana and the City of Orange and their Related Persons will have fulfilled their obligations under this Agreement once the agreed upon terms as provided in Paragraph 1 above have been performed. 3. RELEASES. 3.1 As used herein, "Related Persons" when used with respect to "Gilbert Castrejon" shall mean all partners, employees, agents, servants, trustees, attorneys, brokers, third -party administrators, sureties, predecessors, lien holders, judgment creditors, successors, assigns, and all other affiliated, related and involved persons and entities past, present and future. 3.2 As used herein, "Related Persons" when used with respect to the "City of Santa Ana" shall mean all officers, board members, council members, .directors, partners, employees, agents, servants, trustees, attorneys, parent companies, subsidiaries, subcontractors, insurers, reinsurers, brokers, third party administrators, sureties, predecessors, lien holders, judgment creditors, successors, assigns, and all other affiliated, related and involved persons and entities past, present and future. 3.3 As used herein, "Related Persons" when used with respect to the "City of Orange" shall mean all officers, board members, council members, directors, partners, employees, agents, servants, trustees, attorneys, parent companies, subsidiaries, subcontractors, insurers, reinsurers, brokers, third party administrators, sureties, predecessors, lien holders, judgment creditors, successors, assigns, and all other affiliated, related and involved persons and entities past, present and future. 3.4 As used herein, "Claims" shall mean any and all past, present and future claims, demands, obligations, liabilities, costs, expenses, attorney's fees, damages, suits, actions, causes of actions, judgments, liens, applications, and disputes of any nature whatsoever whether actually asserted or which could have been asserted, whether known or unknown, suspected or unsuspected, actual or potential, absolute or contingent, pending or anticipated, in law and/or equity arising from or related to the Incident and the Incident Location. -2- 3.5 Release by Plaintiff — Plaintiff and his or her Related Persons, and each of them, each hereby forever release and discharge Defendants and their Related Persons, and each of them, from and against any and all Claims arising out of or in any way pertaining to: (1) the Action; (2) the Incident; and (3) the Incident Location, 3.6 Release by the City of Santa Ana — The City of Santa Ana and its Related Persons, and each of them, each hereby forever release and discharge The City of Orange and its Related Persons, and each of them, from and against any and all Claims arising out of or in any way pertaining to: (1) the Action; and (2) the Incident. 3.7 Release by The City of Orange — The City of Orange and its Related Persons, and each of them, each hereby forever release and discharge the City of Santa Ana and its Related Persons, and each of them, from and against any and all Claims arising out of or in any way pertaining to: (1) the Action; and (2) the Incident. 4. WAIVER. It is understood and agreed by Plaintiff, his or her Related Persons and each of them, that all rights or benefits under Section 1542 of the California Civil Code are hereby expressly waived, including those relating to waiving and releasing all claims, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which in any way relate to the Action, or the Incident and the matters released in this Agreement. 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. Plaintiff and his or her Related Persons, and each of them, acknowledge that they may hereafter discover claims or facts in addition to or different from those which they now know or believe to exist with respect to the subject matter of this Agreement and which, if known or suspected at the time of executing this Agreement, may have materially affected this settlement. Nevertheless, Plaintiff and his or her Related Persons, and each of them, hereby waive any rights, Claims or causes of action that might arise as a result of such different or additional claims or facts. Plaintiff and his or her Related Persons acknowledge that they understand the significance and consequence of such release and such specific waiver of Section 1542. 5. REPRESENTATIONS, WARRANTIES.AND COVENANTS NOT TO SUE. The Parties on behalf of themselves and their Related Persons covenant and agree never to commence and/or prosecute against each other or their Related Persons, any legal action and/or other proceeding based in whole or in part upon the Claims, demands, cause of action, obligations, damages and/or liabilities release in this Agreement (except as necessary to enforce this Agreement). This Agreement may be pled as a full and complete defense to any action or other proceeding, as a basis for abatement of, or injunction against, such action. NI 6. 'WORKERS' COMPENSATION AND OTHER LIENS. Plaintiff and his or her attorney(s) of record herein agree and hold sufficient Settlement Funds in escrow (without distribution to Plaintiff) until all liens, if any, including but not limited to Medicare, Social Security, Medicaid, Medi -Cal, medical and/or Workers' Compensation liens are satisfied, discharged and/or fully and finally resolved. By distributing the Settlement Funds to Plaintiff, Plaintiff's legal counsel represents and warrants to the other Parties, and by accepting such Settlement Funds, Plaintiff represents and warrants to Defendants and their Related Persons, and each of them, that all such liens have been satisfied, discharged and/or fully and finally resolved. Plaintiff herein further agrees to fully defend, indemnify and hold harmless Defendants and their Related Persons and each of them in the event any Claim is ever made against any of them by alien holder or judgment creditor related to the Action, or the Incident. Specifically, Plaintiff will defend, indemnify and hold harmless Defendants and their Related Persons and each of them from any fees, costs, damages, losses or Claims, including, but not limited to, those created by: (a) Section 708.410, et seq. of the California Code of Civil Procedure (relating to Liens of Judgment Creditors); (b) Section 14124.70 of the California Welfare and Institutions Code (relating to Medi - Cal Liens and Liabilities) and/or any other state or federal statutory lien or liability rights relating to or arising from Claims against, or benefits advanced to or for the benefit of Plaintiff; (c) Section 3045.1, et seq. of the California Civil Code (relating to Hospital Liens) and/or any other state or federal statutory lien or liability, or any contractual or common law lien or liability, with particular. but not exclusive reference to liens pertaining to or arising from Medicare or Social Security (including, but not limited to, disability insurance benefits) laws or pertaining to physicians, hospitals, or healing arts, persons or institutions, relating to, or arising from Claims against, or benefits provided to or on behalf of Plaintiff, (d) Any action or claim by Medicare, Medicaid, or other governmental entity under the MediCare, Medi -Cal, MediCaid and SCHIP Expansion Act (see 42 U.S.C. §1395y(b)(2), 42 C.F.R. §§411.24(e) and 411.26) seeking payment of past, current or future medical expenses of Plaintiff as well as any and all adverse consequences, penalties or fines under the MMSEA in the event this Agreement results in the loss of his or her right to Social Security and/or Medicare benefits, to the extent Plaintiff would have been entitled to those benefits in the absence of this Agreement; and (e) Any workers' compensation laws. 7. MEDICAL BILLS AND MEDICARE LIENS. Plaintiff acknowledges and agrees that he or she will pay or otherwise resolve all of the current, past due and/or future liens, debts and dues arising out of the Incident and/or Action, if any, to the extent not covered by insurance, Medicare, Medicaid, Medi -cal, SSRI, Social Security, or Workers' Compensation. M a Each signatory to this Agreement warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the Party or Parties for whom they purport to sign. Plaintiff represents that no assignment of any Claim or right (in whole or in part) has been made by Plaintiff to any other person or entity. 91 This Agreement is the result of a compromise among the Parties and shall never be considered at any time or for any purpose as an admission of liability and/or responsibility on the part of any Party herein released. The payment of any sum of money in consideration for the execution of this Agreement or the absence of any payment shall not constitute, nor be construed as, an admission of any liability whatsoever by any Party herein released. 10. EXECUTION AND FILING OF REQUESTS FOR DISMISSALS. Plaintiff shall execute and file with the appropriate court a Request for Dismissal with Prejudice of the entire Action consistent with this Agreement within one (1) week after receipt by his or her counsel of the Settlement Funds described in paragraph "1" above. A conformed copy shall thereafter be provided forthwith to Defendants through their counsel. 11. ADDITIONAL DQCUMENTS. Each Party to this Agreement hereby agrees to cooperate fully and to execute any and all supplementary documents and to take all additional actions, which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement. 12. ATTORNEYS' FEES. The Parties acknowledge and agree that each will bear its own costs, expenses and attorneys' fees arising out of and/or connected with the Action, the negotiation, drafting and execution of this Agreement, and all matters arising out of or connected herewith. 13. CONSTRUCTION OF AGREEMENT. This Agreement is the product of negotiation and preparation by and among the Parties and their respective attorneys. The Parties, therefore, expressly acknowledge and agree that this Agreement shall not be deemed prepared or drafted by one Party or another, or its attorneys, and this Agreement will be construed accordingly.. 14. GOVERNING LAW. This Agreement shall be interpreted in accordance with and governed in all respects by the laws of the State of California. Any action brought to enforce this Agreement shall be brought in the appropriate California State Court having proper jurisdiction and venue. -5- The Parties request that the Court retain jurisdiction over the Parties to enforce the Agreement until performance of the Agreement has been completed by each Party hereto pursuant to Section 664.6 of the California Code of Civil Procedure. Pursuant to Section 1122 of the California Evidence Code, this Agreement shall be admissible for enforcement purposes. 15. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective Related Persons. 16. SEYERABILIT'Y. If any provision of this Agreement is held by a Court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, provided that the Parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. The agreement to substitute shall not be unreasonably withheld by any of the Parties, 17. COUNTERPARTS. This Agreement may be executed in counterparts. All executed counterparts shall constitute an Agreement, which shall be binding upon all Parties, notwithstanding that the signatures of all the Parties' designated representatives do not appear on the same page. A facsimile, scan or copy of any signature herein shall be deemed an original. 18. BENEFIT OF COUNSEL. In entering this Agreement, the Parties expressly acknowledge and represent that they have obtained legal counsel from an attorney of their own choice concerning the legal consequences of this Agreement, that the terms of this Agreement have been completely read and explained to them by their attorney(s), and that the terms of this Agreement are fully understood and voluntarily accepted. 19. TAX CONSEQUENCES. It is understood by Plaintiff that he or she is to obtain his or her own advice regarding any potential tax consequences of this Agreement and that Defendants are not responsible, in any way, for explaining the tax consequences of this Agreement to Plaintiff or any of his or her Related Persons. 20. GOOD FAITH SETTLEMENT. The Parties hereto stipulate and agree that the settlement set forth herein as to Defendants and their Related Persons and entities Is a good faith settlement as that term is defined in Sections 877 and 877.6 of the California Code of Civil Procedure. so N-2018-129 21. CONFIDENTIALITY The terms and conditions of this Agreement are confidential between the parties and shall not be disclosed to anyone else, except as may be necessary to effectuate its terms, or as required by law. 22. INTEGRATED AND ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between the Parties and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied, between the Parties concerning the Incident, the Action, and the matters released herein. The Parties each acknowledge that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by them, or anyone action on their behalf, which are not embodied in this Agreement and that they have not executed this Agreement in reliance on any such representations, inducements, promises, agreements or warranties. No modification, waiver, or termination of this Agreement shall be valid or binding unless executed in writing and signed by each Party. There are no representations, warranties, agreements, arrangements, undertaking, oral or written, between or among the Parties relating to the subject matter of this Agreement which are not fully expressed herein. This Agreement is executed on the dates set forth below. THE UNDERSIGNED SETTLING PARTIES HAVE READ THE FOREGOING SETTLEMENT AGREEMENT AND GENERAL RELEASE AND FULLY UNDERSTAND THE CONTENTS AND ALL OF THE TERMS CONTAINED MRI l`W.1 Dated: 07 r/,, -2el// Plaintiff, Dated: UL Raul ME= II, Sato Ana City Manager Dated: 13 I (% A_ Ryan E. LuMm, Persistant City Attorney for Defendant City of Orange ATT . I' � Y t MARIA D. HUIZAR Signatures continued on following page 'JERK OF THE COUNCIL -7- N-2018-129 APPROVED AS TO FORM AND CONTENT: M. Sq'�w ann Ryan E. Lumm -8- Counsel for Plaintiff Counsel for City of Santa Ana Counsel for City of Orange