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HomeMy WebLinkAboutJALOMO, CANDELARIO Docusign,Envelope ID:0CF3954D-0089-4C2A-B2C7-6EF99C030D33 N_2024-374 NOV 2 6 2024 D (:pto(0 Lash 1204(i '1(tc) SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is entered into by and between CANDELARIO JALOMO (hereinafter referred to as "Plaintiff"), RAGER & YOON — EMPLOYMENT LAWYERS and MIZRAHI LAW, APC (collectively "Plaintiff & His Counsel"), on the one hand, and the CITY OF SANTA ANA (referred to as the "Defendant"), on the other(all collectively"the Parties"). RECITALS Plaintiff Candelario Jalomo filed this lawsuit on December 13, 2019. The Complaint alleged the following causes of action: 1) Violation of USERRA; 2) Violation of Military and Veterans Code section 394; 3) Military/Veteran Discrimination (FEHA); 4) Hostile Work Environment; and 5) Failure to Prevent Harassment, Discrimination, and/or Retaliation. On February 21, 2024, this matter went to verdict, and Plaintiff prevailed on his first and second causes of action for Violation of USERRA and Violation of Military & Veterans Code, § 394 et seq., and his third cause of action for Discrimination Based upon Military or Veteran Status. This entitled Plaintiff to seek attorney's fees and costs. By virtue of this Agreement, the Parties desire to settle fully and finally all controversies and differences arising out of or related to the Lawsuit and incidents described therein. The purpose of this Agreement is to globally settle and compromise Plaintiff's requests for attorney's fees and costs, which are the only remaining issues in the Lawsuit. This Agreement is to be signed by a duly authorized representative of the City of Santa Ana no later than December 3, 2024 at 12 p.m. 1 52001888.1/006085.00028 • • bocusign'Envelope ID:0CF3954D-0089-4C2A-B2C7-6EF99C030D33 AGREEMENT In consideration of the mutual promises herein contained, the Parties agree as follows: 1.0 Release and Discharge 1.1 In consideration of the terms set forth in Section 2 of this Agreement, Plaintiff& His Counsel, on behalf of themselves and their agents, heirs, representatives, successors, and assigns,hereby completely release and forever discharge Defendant, and each of their present and former agents, directors, officers, public officials, employees, representatives, departments, attorneys, and all persons acting by, through, under, or in concert with any of them (collectively, the "Released Parties"), from any and all past or present claims, demands, obligations, actions, causes of action,rights, damages,costs,losses of services, expenses(including attorneys'fees and costs actually incurred), known or unknown, suspected or unsuspected, including any tort, or any federal, state or other governmental statute, regulation, or ordinance, arising out of, or connected to, any claims, which Plaintiff at any time had, owned or held, or claims to have owned or held against the Released Parties, which accrued up to and including the date of the execution of this Agreement and which are based upon the allegations in the Lawsuit. 1.2 Plaintiff & His Counsel expressly waive and relinquish all rights and benefits afforded by section 1542 of the California Civil Code and do so understanding and acknowledging the significance and consequences of such specific waiver of section 1542. Section 1542 of the California Civil Code states as follows: 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, if known by him or her,would have materially affected his or her settlement with the debtor or released party. Thus, notwithstanding the provisions of section '.I 542, and for the purpose of implementing a full and complete release and discharge, the Parties expressly acknowledge that this Agreement is intended to include in its effect, without limitation, all claims identified in section 1.1, whether known or unknown at the time of the execution hereof, and that this Agreement contemplates the extinguishment of any and all such claims or causes of action up to and including the date of execution of this Agreement based upon the allegations of the Lawsuit. 2 Docusigro Envelope ID:0CF3954D-0089-4C2A-a2C7-6EF99C030D33 • 1.3 Plaintiff agrees to take its Motion for Attorney's Fees off calendar and Defendant agrees to take its Motion to Strike and/or Tax Costs off calendar. A Notice of Settlement shall be filed with the Orange County Superior Court by Plaintiffs counsel as set forth infra in section 2.2. 2.0 Benefits and Obligations In consideration of the release and discharge set forth above, the Parties will agree to the following: 2.1 Payment The City of Santa Ana or its joint liability pool and/or its excess carrier will pay Plaintiffs counsel $1,325,000.00 for attorney's fees and $50,000.00 for costs ("Settlement Amount") in checks made payable to "gager & Yoon — Employment Lawyers Client Trust Account." This payment will be made no later than January 17, 2025, This Settlement Amount paid resolves the Lawsuit. Plaintiffs Counsel agrees to provide a W-9 as a condition of payment. In the event a taxing authority, local State,Federal or otherwise, deems the payment to Plaintiffs attorneys to be a taxable transaction, Plaintiff's counsel agrees to fully indemnify Defendant for failure to pay taxes owed by them as a result of the payments made pursuant to this Agreement. 2.2 Acknowledgment of Satisfaction of Judgment Plaintiffs counsel shall file a Notice of Settlement upon receipt of this fully executed agreement and shall file anAcknowledgment of Satisfaction of Judgment within live (5) business days of receipt of the settlement payment under Section 2.1. 3.0 Admissibility of Agreement The Parties hereby stipulate and agree that the Orange Superior Court may retain jurisdiction for purposes of entering judgments based on the terms of the Agreement, should that • be necessary, and further, that this Agreement is admissible for the purposes of proving up and or enforcing the terms of the Parties' Agreement, as set forth herein,pursuant to California Evidence Code Section 1123 and California Civil Code Section 664.6. The prevailing party in a motion to enforce the Agreement is entitled to recover reasonable attorneys' fees and costs. 4.0 Consultation with Counsel The Parties, and each of them, acknowledge that they have been represented in the preparation and execution of this Agreement by independent legal counsel of their own choice, 3 docusign Envelope ID:0CF3954D-0089-4C2A-B2C7-6EF99C030D33 that they have read the entire Agreement, and that they have had its contents and legal consequences fully explained to them by such counsel.The Parties represent and acknowledge that they have discussed this Agreement with their attorneys of record and choice, that they have carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily entering into this Agreement. The Parties also each acknowledge that they are fully aware that by their signatures to this Agreement they will be forever prevented from seeking enforcement of any and all known and unknown claims, debts, liabilities, demands, damages, obligations, costs, expenses, actions, causes of action herein released that are identified in section 1.1. 5.0 Warranty of Capacity to Execute Agreement The Parties represent and warrant that no other person(s) or entity, has or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Agreement, except as otherwise set forth herein; that Plaintiff has the sole right and exclusive authority to execute this Agreement; and that the Parties have not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Agreement. 6.0 Severability The provisions of this Agreement are severable, and if any part of it is found to be unenforceable, void, or invalid by a court of competent jurisdiction, the other paragraphs shall remain in lull force and effect. This Agreement shall survive the termination of any arrangements contained herein. 7.0 Integration This Agreement constitutes a single, integrated written contract expressing the entire agreement of the Parties. No covenants, agreements, representations, or warranties of any kind whatsoever, whether express or implied in law or fact, have been made by any party hereto,except as specifically set forth in this Agreement. All prior and contemporaneous discussions and negotiations have been and are merged and integrated into, and are superseded by,this Agreement. This Agreement cannot be modified except by a writing executed by all Parties hereto. 4 Docusign Envelope ID:0CF3954D-0069-4C2A-82C7-6EF99C030033 8.0 Non-Assignment of Claims Plaintiff acknowledges,represents and warrants that she has not assigned or transferred or purported to assign or transfer to any individual, firm, corporation, or other entity, any part or portion of the Lawsuit that has been released by this Agreement, and that no other individual, lira, corporation or other entity has any lien, claim or interest in any such claims, including, but not limited to, any claim or interest arising out of or relation to the Lawsuit. 9.0 Responsibilities of Parties Each Party to this Agreement agrees to execute and to deliver such additional documents and instruments and to perform such additional acts, as may be necessary to effectuate, consummate or perform any of the terms, provisions or conditions of this Agreement. The Parties agree that this Agreement is a valid and binding obligation on each Party, enforceable against each Party in accordance with the terms of this Agreement. 10.0 Governing Law This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 11.0 Drafting The Parties agree that this Agreement is the result of joint drafting, and should any of its terms be deemed ambiguous, such term shall not be strictly construed against any Party thereto. 12.0 Counterparts The Parties may execute and deliver this Agreement in any number of counterparts or copies ("Counterparts") with electronic or original signatures. The Parties hereto, and each of them, further agree that this Agreement may be executed in duplicate and in counterparts. e—Oocu5lgned Dated: 11/22/2024 r�'lLff// Cori tWaFt °LL]/niM8 • bocusign'Envelope ID:0CF3954D-0089-4C2A-B2C7-6EF99C030D33 Dated: /1 /U- -/ Rager& oo —Employment Lawyers Do Signed by: Dated: 11/22/2024 y Mizr'ah 0A0N65B146F... On Behalf f the City nta Ana Dated: u(3.-7/I Z + Alvaro Nunez City Manager City of Santa Ana Dated: `\ 7 v ATTEST: ennifer L. H` City Clerk 6