HomeMy WebLinkAboutCOLBY MORIAN0j,
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GENERAL RELEASE AND SETTLEMENT AGREE ME, NT
N-2021-013
This general release and settlement agreement (the "Agreement") is entered into by
Plaintiff COLBY MORAIN (hereinafterMORAiN or RELEASOR), and Defendants, CITY OF
MURRIETA, MURRIETA VALLEY UNIFIED SCHOOL DISTRICT; and CITY OF SANTA
ANA (hereinafter "RELEASEES"). MORAIN, CITY OF MURRIETA, MURRIETA VALLEY
UNIFIED SCHOOL DISTRICT and CITY OF SANTA ANA, are collectivelyreferred to as the
parties.
RECITALS
A. MORAIN claims personal injuries as a result ofa K9 dog bite incident that
occurred on February'15, 2020 while attending the Murrieta Police DepartmentK9 Trials at
Murrieta Mesa High School located at24801 Monroe Avenue, Murrieta, California (hereinafter,
the "INCIDENT").
B. As a consequence of said alleged INCIDENT, a Claim for Personal Injuries and
Damages Pursuant to Government Code §910, et seq. was filed on MORAIN's behalf on June
30, 2020 entitIed.COGBYM0AL4N[sic] Y. CITYOF.MURR1%TA (hereinafter the "CIVIL
ACTION").
C_ On or about August L4, 2020, a. Claim Against the City of Santa Ana for Damages
to Person or Personal Property for indemnity, contribution and declaratory relief was filed by
CITY OF MURRIETA against CITY OF SANTA ANA.
D. The parties understand, acknowledge and intend that this Agreement represents a
compromise of disputed claims and is not to be construed as an admission of liability on. the.part
of any party referred to herein.
AGREEMENT
THEREFORE, the parties to this Agreement hereby agree, settle, and acknowledge as follows:
1. RELEASOR TO RECEIVE A TOTAL SUM OF FIFTY THOUSAND
DOLLARS AND NO CENTS ($50,000.00), (the receipt and adequacy of such consideration is
hereby expressly acknowledged by MORATN) to be paid as follows;
A. TWENTY-FIVE THOUSAND DOLLARS AND NO CENTS ($25,000.00) to be
paid by CITY OF MURRIETA.and MURRIETA VALLEY UNIFIED SCHOOL DISTRICT to
RELEASQR.
1of8
Plaintiff initial
General Release and Settlement Agreement
COLBYhJORAljVV CITY OF MUMAMA
Pettit Kohn File No. 323-7137
ClientHeNo.; L-099-1023557
B; TWENTY-FIVE THOUSAND DOLLARS AND NO CENTS ($25;000.00) to be
paid by CITY OF OF SANTA, ANA to RELEASOR,
C. No IMLEASEE shall be obligated to pay, in whole or in part, any other
RELEAS.EE'S settlement sum.
2. RELEASOR on behalf of himself, his heirs, executors, administrators, successors,
attorneys, agents, and/or assigns, HEREDY SETTLES WITH, RELEASES AND FOREVER
DISCHARGES RELEASEES along with RELEASEES' respective heirs, executors,
administrators, successors, assigns, agents, insurers and all other persons, firms, parent
corporations, subsidiaries, affiliates, officers, directors, employees, shareholders, attorneys, and.
representatives of any of them (hereinafter collectively referred to as RELEASEES) from any, all
and every claim, action, cause of action, or administrative or other proceeding of whatever kind
or nature, including, but not limited to; anyclaims for damages,. personal injuries, KNOWN OR
UNKNOWN, which RELEASERS now have or may hereaftcr have or later discover, arising
from or in any way related to the INCIDENT which gave rise to the CIVIL ACTION.
3,. IT IS EXPRESSLY UNDERsTO.OD By RELEASOR that the total sum of
FIFTY THOUSAND DOLLARS AND NO CENTS ($50,000.00), is the entire amount of
monetary consideration to be paid by or on behalf of RELEASEES.' as a. result of ibis Agreement.
iRE' PRESENTATIONS AND WARRANTIES
IN FURTHER CONSIDERATION for the above -mentioned value and consideration
provided by said RELEASEES and in settlement in the above referenced claim, RELEASOR
agrees, represents and warrants as follows:
t. RELEASOR understands that llabilityfor THE MCIDENT and the CIVIL
ACTION are disputed by RELEASEES and that this Agreement constitutes the compromise of
disputed claims and shall not be construed as an admission of liability whatsoever by any party to
this agreement. The parties to this Agreement intend hereby solely to avoid further litigation.
2. REUASOR has not heretofore assigned, transferred,or granted,, or purported to
assign, transfer, or grant, any of the claims, demands, or cause or causes of action disposed of by
this Agreement.
3. RELEASOA expressly acknowledges that he is.aware that he may hereafter
discover claims or facts in addition to or different from.those now known or believed to be true
with respect to any matter disposed of by this Agreement. Nevertheless, it is the intention of all
2 of &
Plaintiff Initial
CPeneral Release and Settlement Agreement
COLBYMOP,AIN'r.. CITY OP MU1tMlETA
Pettit Kohn File No. 323-7137
Client Fila No.: 1L09940235.57
the parties to this Agreement to fully, finally and forever settle and mutually release all matters,
and all claims relative thereto, which do now exist, tnay'exist, or heretofore have existed between
them specifically related to the INCIDENT and/or CIVIL: ACTION more fullydescribed; above,
as well as any other claims which tnayarise out of said INCIDENT or CIVIL ACTION
including, but not limited to malicious prosecution, In Wrtheranceof this express intention, the
releases given herein shall be and remain. in effect as full and.complete mutual releases of all
such matters notwithstanding the discovery or existence of any additional or different claims or
facts relative thereto,
4. This Agreement is a FULL AND FINAL RELEASE applying to all known,
unknown And unanticipated injuries, claims or damages arising out of or in any way connected
with or resulting £rorri TIE INCIbPNT and/or the CIVIL ACTION more fully described above,
All parties to this Agreement EXPRESSLY AND INTENTIONALLY WAIVE all rights and
benefits which they now have or in the future may have under the terms of Section 1542 of
California's Civil Code and any similar law of any state or territory of the United States as
related to matters specifically arising from T1IE INCIDENT and/or the CI',M ACTION more
fully described above,
California Civil Code section 1542provides;
A general release does not extend to claims that the creditor or
releasing party does'not know or suspect to exist in his or her favor
at the time of executing the release and that, ifknown by him or
her, would have materially affected his or her settlement with the
debtor or released party.
5. RELEASOR agrees to waive and forego his rights to commence, and/or engage in
further proceedings including, without limitation, filing administrative, and/or legal claims
against RELEASEES in or arising out of the CIVIL, ACTION.
6, RELEASOR further represents and warrants that he is responsible for any and all
outstanding liens from any lien holders or other interested third parties who have perfected and/or
asserted any interest in any of the sums contemplated to be paid by the tennis of this Agreement.
Should such claims be made by any attorney, healthcare provider, or any other interested third
party as against RELEASEES and/or PETTIT KOHN INGRASSIA LUTZ & DOLIN PC and
CITY OF SANTA ANA as a result of monies.pold pursuant to this Agreement, RELEASOR
represents and warrants that he will fully defend, fully indemnify, and fully hold harmless
RELEASEES and/or PETTIT KOEN INGRASSIA LUTZ & DOLIN PC and CITY OF SANTA
ANA as against any such claims made as a result of the INCIDENT and/or this Settlement
Agreement and Release. RELEASEES and/or PETTIT KOI3N INGRASSIA LUTZ & DOLIN
PC and CITY OF SANTA ANA, shall be entitled to select counsel of choice to defend any such
action contemplated by this provision. Attorneys' fees and costs incurred by any counsel of
�of9
Plaintiff Initial General Releawand Settlement Agreement
COLQYMOIWN V. CITY OFMURRIETA
Pettit kohn RoNo, 323-7137
ClientReNo,: L•099-1023537
choice so retained pursuant to this provision to defend actions described in this paragraph shall
be bonze solely and exclusively by RELEASOR.
7. This Agreement contains the entire agreement between the parties hereto. This
Agreement supersedes any and all prior negotiations and is the final expression of the terms of
settlement as set forth herein. The terms of this Release are contractual acid not a mere recital.
This Release is executed by the parties hereto without reliance upon any representation by other
parties concerning the nature and extent of damages or legal liability therefor. If any provision
or portion of this Agreement is later voided or is bold, to be illegal or invalid by a court of
competent jurisdiction, said provision shall be deemed severed and deleted, and the remainder of
this Agreement shall continue to be valid and enforceable.
&. The parties to this Agreement agree to bear their own attorneys' fees. and costs,
and any other expenses for all matters related to or arising from THE INCIDENT and/or die
CIVIL ACTION..
9. The terms and provisions of this Agreement are the product of negotiation by
counsel for all parties therefore the parties further agree that the language of.this Agreement,
shall not be construed against any party. The parties further warrant and represent that in
executing this Agreement they have each had the opportunity to seek legal advice from the
attorney and/or attorneys of his/her/its/their choice, and that the terms of this Agreement and its
consequences have, been completely read and explained to any such partyby such attorney.
However, irrespective of wbether the parties have availed himself/herself/itself/themselves of
the opportunity to have an attomey review this Agreement and obtain advice regarding the
propriety of entering this Agreement, each party represents and expressly warrants that
he/she/hUthey fully understands both the terms and consequences of executing this Release, and
executes it and agrees to be bound by the set forth herein knowingly, intelligently, and
voluntarily,
10.. Each party further acknowledges and represents that helglicht/they hasMave been
apprised, of all relevant information and data furnished by his/her/itshheir attorneys of record
and all other information rolevant to this claim and this release including, but not limited to,
Mum risks, complications and costs, Each party further acknowledges and represents that, in
executing this Release, he/she/it/they hos/have not relied upon any inducements, promises, or
representations, other than those specifically provided and set forth within this Agreement.
11. l3ach party agrees to execute and deliver to any other party any and all. such
additional documents and to perform any and all acts necessary, convenient or desirable, as may
be reasonably required to fully carry out and affect the intent of this Agreement.
12, C NPIDENTIALITY
A4— 4of8
Plaintiff Initial
General Release and Settlement Agreement
COGBY.WORAINY.: CITY OFMURRI&TA
Pettit Kahn rite No. 323.7,157
Client File No.: L-099-1023557
a. The Parties to this Agreement Agree not todisclose or cause to be
disclosed, either directly or indirectly; to any person or entity, the monetary or other
material terms ofthis Agreement,
b, As necessary, however, the Parties may disclose the monetary terms ofthis
Settlement Agreement to.: (1) the court as necessary to obtain approval of a dismissal of
the Lawsuit or to enforce the Judgment for Possession, so long -as the material terms of
the Agreement are not disclosed in any public document, record, or filo; (it) their legal
counsel, spotises.andlor accountants to the extent.necassary for the provision of legal
and/or tax advice; (ill) any state or federal tax authorities, and/or (iv) any court with
jurisdiction over a party, which court orders the disclosure of this information. However,
as to any of these permissible disclosures identified herein, the party or entity to whom
the information is.disclosed shall be advised of the confidential nature of this settlement
and the party shall request that they abide by this confidentiality term.
Agreed as to revised C. Except as,provided in subpart (b), if asked by any person or entity about
versi para. 12.c.: this litigation, the Parties may respond and disclose 9&. that the Lawsuit was settled on a
lalntiff confidential basis and that they cannot comment.on this settlement. Subparts a., b., c.. do not
29
apply to public record requests received by any of the public entities involved In this litigation.
City of Murrieta d. The Parties represent, covenant, warrant and agree that, prior to the
&& N1 VUSD execution of this Settlement Agreement, they have not disclosed any atateriat terms of
City of Santa this Agreemeaito abybther parson or entity, except as allowed by Paragraph 4.
Ana
q. The Parties represent, acknowledge, agree and covenant that, but for this.
Confidentiality provision,, the other parties to this Agreement would not have entered into
a settlement and that this confidentiality provision Was highly material to the settlerrient.
The Parties, and cach.of them, Anther. represent, acknowledge, waniant and agree that, if
there is any violation of this confidentiality provision by any party, it shall constitute an.
incurable breach of this agaeetnont and shall entitle the other party to one for damages,
including but not limited to return Of all settlement monies received by the breaching
party(ies).
13, This Agreement is the result of negotiation betwcon the parties hereto and is the
fully integrated and final expression of the settlement described herein, This Agreement may not
he altered, changed, or amended without a written document signed'by all of the following
entities. MORAIN and authorized representatives of CITY OF MURRMTA, MURRIETA
VALLEY UNIFIED SCHOOL 1)iSTRICT and CITY OF SANTA ANA.
14. 9y executing this Release, each party atknowlodges that hq/sho/it/they has/have
read and understands each slid every provision of this Release, and by placing his/her/its/their
signature at the end of this Agreementrepresents that helsbe/itlthoy has/have voluntarily assumed
5 of 8 — ---
Plaintiff Initial Gweral Release and 9edl anentAgreement
COLBYniOR&OY. CITY OfMUMETA
Pettit XchaPile Wo..323-7197
Ctient.Tiie.Nc.- 1.099-1023557
a. The Parties to this Agreement agree not to disclose or cause to be
disclosed, either directly or indirectly, to any person or entity, the monetary or other
material terms of this Agreement.
b. As necessary, however, the Parties may disclose the monetary terms of this
Settlement Agreement to: (i) the court as necessary to obtain approval of a dismissal of
the Lawsuit or to enforce the Judgment for Possession, so long as the material terms of
the Agreement are not disclosed in any public document, record, or file; (ii) their legal
counsel, spouses and/or accountants to the extent necessary for the provision of legal
and/or tax advice; (lii) any state or federal tax authorities, and/or (iv) any court with
jurisdiction over a party, which court orders the disclosure of this information. However_,
as to any of these permissible disclosures identified herein, the party or entity to whom
the information is disclosed shall be advised of the confidential nature of this settlement
and the parry shall request that they abide by this confidentiality term.
Agreed as to revised C. Except as provided in subpart (b), if asked by any person or entity about
version of para. 12.c.: this litigation, the Parties may respond and disclose only that the Lawsuit was settled on a
Plaintiff confidential basis and that they cannot comment on this settlement. Subparts a., b., c., do not
apply to public record requests received by any of the public entities involved in this litigation.
USEty D of Murrieta d. The Parties represent, covenant, warrant and agree that, prior to the
execution of this Settlement Agreement, they have not disclosed any material terms of
City of Santa this Agreement to any other person or entity, except as allowed by Paragraph 4.
Ana
e. The Parties represent, acknowledge, agree and covenant that, but for this
Confidentiality provision, the other parties to this Agreement would not have entered into
a settlement and that this confidentiality provision was highly material to the settlement.
The Parties, and each of them, further represent, acknowledge, warrant and agree that, if
there is any violation of this ton fidentiality provision by any party, it shall constitute an
incurable breach of this agreement and shall entitle the other party to sue for damages,
including but not limited to return of all settlement monies received by the breaching
party(ics).
13, This Agreement is the result of negotiation between the parties hereto and is the
fully integrated and final expression of the settlement described herein. This Agreement may not
be altered, changed, or amended without a written document signed by all of the following
entities: MORAIN and authorized representatives of CITY OF MURRIETA, MURRIETA
VALLEY UNIFIED SCHOOL DISTRICT and CITY OF SANTA ANA.
14_ By executing this Release, each party acknowledges that he/she/it/they has/have
read and understands each and every provision of this Release, and by placing his/her/its/their
signature at the end of this Agreement represents that he/she/it/they has/have voluntarily assumed
,A 5of8
Plaintiff Initial
General Release and Settlement Agreement
COLBYMORA/NY. C/TYOFMURRIETA
Pettit Kohn File No. 323-7137
Client File No.: 1.099-1023557
the obligations contained herein, and has intentionally waived and released any and all rights
stated herein of his/herlitsltheir own ikee will and volition..
15.. This Agreement shall be deemed to have been executed and delivered within the
State of California, and the rights and obligations of the parties hereto shall be construed and
enforced in accordance with, and governed by, the laws of the State of California, without. regard
to choice of law rules.
16; In the event of litigation or arbitration relating to this Agreement, the prevailing
party or parties shall be entitled to recover reasonable attorneys' fees and costs.
17. In the event that any one provision or portion of this Agreement is later
detennined by a court of competent jurisdiction to be void or voidable, the parties agree that any
such language or provisions shall be severable, and that any such provisions so severed shall not
a fTect the validity of the remainder of the Agreement subsequent to such severance.
18. Any party signing this Agreement on behalf of a corporation or.other business
entity hereby expressly warrants and represents that he or she has actual authority to bind the
corporation or other business entity.
19. This Agreement may be executed in counterparts, and, when all executed
signature pages are taken together, shall constitute a complete Settlement Agreement and
Release. A signature by fax has the same force and effect as an original signature.
20. This Agreement consists of eight (8) pages and is executed on the dates set forth
below;
I HEREBY CERTIFY THAT I HAVE READ THIS ENTIRE RELEASE AGREEMENT,
KNOW THE CONTENTS THEREOF, FULLY UNDERSTAND TIC, SAME AND INTEND
AND AGREE TO BE LEGALLY HOUND THEREBY, AND IN AGREEMENT OF THE
FOREGOING, I HAVE EXECUTED THIS RELEASE ON THE DATE PLACED NEXT TO
MY SIGNATURE SET FORTH BELOW 1N THE YEAR OF =0 IN THE STATE OF
CALIFORNIA BY MY OWN FREE HAND.
Dated: ( , 11? 0
For Plaintiff COLBY MORAIN
By,
COLBY RA1.N, Plaintiff
6 of S
Plaintiff Initial
GeneratRelease and Settlement Agreement
CGLBYMORAINY CITYOFMURNETA
Pettit Mai File No. 323-7137
Client File Na.: L-099-1023557
[signatures continue on page 71
Dated:
Dated:
For Defendant CITY OF MURRIETA,
MURRIETA VALLEY UNIFIED SCHOOL
DISTRICT
By. Signed in counterpart.
Name: Yumi Augustus, MPA, PERMA
Title: Claims Manager
For Defendant CITY OF SANTA ANA
0
Signed in counterpart.
Name: Miehael Hedtke, AdminSure
Title:
Approved as to form & content, and acceptance/acknowledgment by counsel for Plaintiff of
his/her separate obligation to maintain the coniidentiali4, of settlement terns and conditions set
forth in paragraph 12 above.
HIGUERA LAW OFFICES APLC
Dated: 12/22/2020 By:
Joscp G. Mguera, Eq.
Attorney for Plaintiff
COLBY MORAIN
PETTIT KOHN iNGRASSIA LUTZ & DOLIN PC
Dated: By; Signed in counterpart.
Grant D. Waterkotte, Esq.
7 of
Plaintifflnitial
General Release and Settlement Agreement
COLBYHO"NV,, CITY0F1LfURRIETr1
Pettit Kohn File No. 323.7137
ClieMFileNo.: L-099-10235S7
N-2021-013
Dated:
Dated: -T I Zo ZI
ATTEST:
1 �I'10%'' ,i..
For Defendant CITY OF MURRIETA,
MURRIETA VALLEY UNIFIED SCHOOL
DISTRICT
By: Signed in counterpart.
Name: Yumi Augustus, MPA, PERMA
Title: Claims Manager
For IpelreWadt, QUY Or SANTA ANA
FT-LEISTRA
Director of Human Resources
City of Santa Ana
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
B �dl 6.L
Daisy Gomez, Clerk of the Council
Approved as to form & content, and acceptance/acknowledgment by counsel for Plaintiff of
his/her separate obligation to maintain the confidentiality of settlement terms and conditions set
forth in paragraph 12 above.
Dated:
[signatures continue on page 8]
Plaintiff Initial
HIGUERA LAW OFFICES APLC
Signed in counterpart.
Joseph G. Higuera, Esq.
Attorney for Plaintiff
COLBY MORAIN
7 of 8
General Release and Settlement Agreement
COLBY MORAIN V. CITY OF AIIURRIETA
Pettit Kohn File No. 323-7137
Client File No.: L-099-1023557
Dated:
Dated:
For Defendant CITY OF MURRIETA,
MURRIETA VALLEY UNIFIED SCHOOL
DISTRICT
0
�oNat;ecnly°uml Augu uml A"u EM
°Yumi Augustusm'-gepemlkyaugust erma.tln.m.u% c=S
202o.12zvn31 OWN'
Name: Yumi Augustus, MPA, PERMA
Title: Claims Manager
For Defendant CITY OF SANTA ANA
Signed in counterpart.
Name:1Q3H)dQ1JQX�(�QD(DC�C
X: Deborah Scott-Leistra
Acting Executive-D irector of Human Resources
Approved as to form & content, and acceptance/acknowledgment by counsel for Plaintiff of
his/her separate obligation to maintain the confidentiality of settlement terms and conditions set
forth in paragraph 12 above.
Dated:
Dated: 12/23/20
[signatures continue on page 81
Plaintiff Initial
HIGUERA LAW OFFICES APLC
By: Signed in counterpart.
Joseph G. Higuera, Esq.
Attorney for Plaintiff
COLBY MORAIN
PETTIT KOHN INGRASSIA LUTZ & DOLIN PC
By:
Grant D. Waterkotte, Esq.
Sevada Hakopian, Esq.
Attorneys for Defendants
CITY OF MURRIETA and MURRIETA
VALLEY UNIFIED SCHOOL DISTRICT
7of8
General Release and Settlement Agreement
COLBYMORAINV.. CITY OF MURRIETA
Pettit Kohn File No. 323-7137
Client File No.: L-099-1023557
Sevada Hakopian, Esq.
Attorneys for Defendants
CITY OF MURRIETA and MURRIETA
V
[signatures continue on page 81 ALLEY UNIFIED SCI400L DISTRICT
)WOMMM
Dated: _ By:
xA rzmann
)PPv4*."txeMM4wefendant
CITY OF SANTA ANA
Senior Assistant City Attorney
8 of 8
-ZZ-*
Plaintiff Initial General Release and Seulement Agreement
COLBYMORAINV. CITY OFMURRIETA
Pettit Kahn File No. 323-7137
ClientFlleNn.' L•099-1023537