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HomeMy WebLinkAboutVARGAS, LAURA SAUCEDAF-13 14 SETUEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (hereinafter "Agreement ") is made and entered into by and between LAURA SAUCEDA VARGAS, JOSEFINA VARGAS, OSCAR MORENO, A Minor by and through his Guardian Ad Litem, LAURA SAUCEDA VARGAS, JASMINE MORENO, A Minor by and through her Guardian Ad Litem, LAURA SAUCEDA VARGAS (hereinafter referred to as "Plaintiffs "), and the CITY OF SANTA ANA, (hereinafter "Defendant "). WITNESSETH: WHEREAS, Plaintiffs filed an action against Defendant in the Superior Court of the State of California, County of Orange, Central Justice Center District known as LAURA SAUCEDA VARGAS, et al. v. CITY OF SANTA ANA, or aL Case No. 30- 2014 - 00697500 -CU- PA-CJC (the "Action "). WHEREAS, Plaintiffs 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 by the Defendant and of any liability whatsoever, or as an admission by the Defendant of any violation of the rights of Plaintiffs or any person, violation of any order, law, statute, duty, or contract whatsoever against Plaintiffs or any person. The Defendant specifically disclaims any liability to Plaintiffs or any other person for any alleged violation of the rights of Plaintiffs or any person, or for any alleged violation of any order, law, statute, duty, or contract on the part of any employees, agents of the CITY OF SANTA ANA. Likewise, this Agreement and compliance with this Agreement shall not be construed as an admission by Plaintiffs of any liability, misconduct, or wrongdoing whatsoever. SECOND: (a) Defendant will deliver to Plaintiffs'counsel, the following settlement checks in the amormts stated below for a total amount of TWELVE THOUSAND DOLLARS AND ZERO CENTS ($12,000,00) in full and complete settlement of all claims made against the City of Santa Ana in this litigation, The check is to be made out to "RKR LEGAL AND LAURA. SAUCEDA VARGAS AND JOS.EFNA VARGAS." This amount is in full and complete settlement for Plaintiffs' claims for all damages alleged in the above- referenced Complaint. The break-down of the settlement is as follow: Fiom: Mash Kazeiouni Fax: (949) 407 -6721 To Fax: +1 (714) 6693033 Page 6 of '120212712014 1047 1. Laura Sauceda: $2000,00 for property damage portion and $3000.00 for PI Portion: Total $5000.00 2. Josefina Vargas: $3000.00 for PI Portion: Total $3000.00 3. Oscar Moreno, a minor by and through his guardian ad litem, Laura Sauceda Vargas: $2000 for PI Portion: Total $2000,00- 4. Jasmine Moreno, a minor by and through her guardian ad litem, Laura Sauceda: $2000 for PI Portion: Total $2000.00 (b) Plaintiffs will sign a Request for Dismissal of the Entire Action with Prejudice form dismissing Case No. 30- 2014- 00697500 -CU -PA -CJC as to Defendant, CITY OF SANTA ANA, in its entirety, (c) Plaintiffs and Defendant CITY OF SANTA ANA agree that the foregoing mutual dismissals constitute full and complete settlement of all claims made against all parties in this litigation. Plaintiffs will not seek any father compensation for any other claimed damage, costs, or attorney's fees in connection with the matters encompassed in this Agreement. (d) Plaintiffs acknowledge and agree that the Defendant has made no representations to them regarding the tax consequences of any amounts received by them pursuant to this Agreement. Plaintiffs agree that they and they alone are liable for all taxes, if any, which are owed by them on any amount received hereunder including interest and penalties. Plaintiffs will hold the Defendant harmless from any and all claims made by federal, state, or local taxing authorities or lien holders against Plaintiffs on amounts owed by tbcm. (e) Plaintiff, Laura Sauceda Vargas as Guardian ad Litem for Plaintiffs Oscar Moreno, a minor and Jasmine Moreno, a minor, will provide a Release to the City of Santa Ana pursuant to Probate Code §3401( c)(2) for the mhrors, THIRD: Plaintiffs represent that, with the exception of Case No. 30-2014 - 00697500-CU-PA- CJC they have not filed any complaints, claims, or actions against Defendant including any of its officers, agents, directors, supervisors, employees, or representatives of 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, Plaintiffs will direct that agency or court to withdraw and dismiss with prejudice the matter. FOURTH: Plaintiffs represent and warrants that no portion of any claim, right, demand, action or cause of action that they have or might have against Defendant and any From: Mash Kazarouni Fax: (849) 407 -8721 To: Fax: +1 (714) 589.3033 Page 3 of 12 0212712014 10,47 officers, agents, directors, supervisors, employees, or representatives of the City of Santa Ana or any portion of any recovery or settlement to which they may be entitled from Defendant, has been assigned or transferred to any person, entity or corporation in any manner, including 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 the officers, agents, directors, supervisors, employees, or representatives because of any such purported assignment, subrogation, transfer or lien, PIaintiffs agree 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 favor at the time of executing the release, which if larown by him must have materially affected his 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 thne 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 he /she has reviewed all aspects of this Agreement, that the Agreement has been carefully read and fiully explained to he /she and that he /she understands all the provisions of this Agreement, that he /she understaads that in agreeing to this document be /she is releasing each party hereby from any and all claims he /she may have against each party released, that he /she voluntarily agrees to all the terms act forth in this Agreement, that he/she knowingly and willingly intends to be legally bound by the same, that he /she was given the opportunity to consider the terns of this Agreement and discussed 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 with regard to the From: Mash Kazerouni Fax: (949) 4078721 To Fax: +1 (714) 569 -3033 Page 4 of 12 02127120 14 10:47 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, executors, predecessors, successors, and assigns, and shall inure to the benefit of said parties and each of them and to their heirs, administrators, representatives, executors, predecessors, successors, and assigns. TENTH: Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal, unenforceable, or invalid part, term, or provision shall be deemed not to be a part of this Agreement. ELEVENTH: This Agreement sets forth the entire agreement between the parties hereto and filly supersedes any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject matter hereof. TWELVTH: 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. Dated: -�� Wa 00c-e , 0 LA RA SAUCEDA VARGAS Plaintiff Dated:0 a� ,y J0SelY\N ,/arQ,eth JOSEPINA VARGAS Plaintiff Dated: a J_a U V 0 AR MORENO, A Minor by and through his Guardian Ad Litem, LAURA SAUCEDA VARGAS Plaintiff Dated: - `�`� y J rem 0. U CP t J MINE MORENO, A Minor by and through he ardian Ad Litem, LAURA SAUCEDA VARGAS Plaintiff From: Mash Kazerouni Fax: (949) 407 -8721 To: Fax: +1 (714) 569 -3033 Page 5 of 12 0212712014 1047 Dated: 'A" 7 2014 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 By: David Cavazos, City Manag r ATTEST: CITY OF SANTA ANA, a charter law city and municipal corporation, drily organized and existing raider the Constitution and laws of the State of California Dated: By: Maria D. Huizar, Cleric f the Council APPROVED AS TO FORM: RKR LEGAL Dated: S "'" VANPOL R, Esq. Attorney or Plaintiffs CITY OF SANTA ANA OFF E OF T E Tr ATTO. NEY Dated: °2 ��z% ��,_�__ ( SEPK STRAKA Assistant City Attorney Attorncy for Defendant CITY OF SANTA ANA Fioml Masih Kazerouni Fax: (949) 4074721 To Fax: +1 17 141 669-3033 Page 2 of 6 212712014 12:39 RELEASE FOR AND IN CONSIDERATION of the sum of Two - Thousand Dollars ($2000.00) in the form of drafts or checks payable as follows: JASMINE MORENO, a Minor, by and through his Guardian, LAURA SAUCEDA VARGAS, and their attorney RKR LEGAL as payees, which sum shall be deemed to have been paid upon the delivery of such drafts or checks to the attorney for the undersigned, the undersigned on behalf of themselves and on behalf of all and each of their heirs, executors, administrators, successors, and assigns, hereby release and forever discharge THE CITY OF SANTA ANA and SANTA ANA POLICE DEPARTMENT. and any and all other persons including, but not limited to, representatives, heirs, executors, administrators, trustees, successors, affiliates, subrogors, subrogees, lessors, lessees, grantors, grantees, assignors, assignees, subsidiaries, parent corporations, agents, employees, servants, officers, directors, members, shareholders, owners, alter egos, attorneys, council members, ferns, associations, corporations, general partners, limited partners and insurers who are or may ever become liable to the undersigned, of and from any and all claims, demands, damages, actions and causes of action of every kind, known or unknown, arising out of or in any way connected with the occurrence out of which it is claimed that the undersigned suffered damage to person and property and which took place on or about December 27, 2012, and which is the subject matter of the lawsuit entitled LAURA SAUCEDAVARGAS, ETAL. v. CITYOFSANTAANA, ET AL, venued in Orange County Superior Court, action number: 3 0-2014- 0069 7500-C U-PA -CIC IN FURTHER CONSIDERATION of the above - mentioned sum, the undersigned agrees as follows: 1. There is a risk that subsequent to the execution of this Release, the undersigned will incur or suffer personal or bodily discomfort, loss, death, damage, or any of these which are in some way caused by the occurrence referred to above, but which are unknown and unanticipated at the time this Release is signed; and further, there is a risk that damages presently known may be or may become more serious than the undersigned now expects or anticipates. 2. The undersigned shall assume the above - mentioned risks and this Release shall apply to all unknown or unanticipated results of the occurrence described above as well as those known and anticipated. On behalf of the undersigned, and on behalf of all and each of the heirs, executors, administrators, successors, and assigns of the undersigned, the undersigned hereby waive all rights under California Civil Code §1542, which states: Minor Release under $5000 From: Mosih Kazerouni Fax: (949) 407 -8721 To: Fax: +1 (7 14) 569-3033 Page 11 of '12 0212712014 10:47 "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if lmown by him must have materially affected his settlement with the debtor." 3. The above - mentioned sum is the entire and only consideration for this Release and the undersigned shall be responsible for the payment of the attorneys' fees and legal expenses of the undersigned. 4. This Release is the result of a compromise and shall never at any time for any purpose be considered as an admission of liability or responsibility on the part of the party herein released, who continues to deny such liability and to disclaim such responsibility. 5. The advice of legal counsel has been obtained by the undersigned prior to signing this Release and that a dismissal with prejudice in favor of the party hereby released shall be entered by the attorneys for the undersigned in all actions now pending, which involve the occurrence referred to above. 6. A division, if any, of the above - mentioned sum between the undersigned and anyone else shall in no way affect the validity of this Release. 7. LAURA SAUCEDA VARGAS is the Guardian ad Litem for the Minor plaintiff OSCAR MORENO, and receives payment of the above - mentioned consideration pursuant to Probate Code §3401(b). The total estate of each of the Minors, including the money and other property to be paid or delivered to LAURA SAUCEDA VARGAS, in her capacity as guardian of their respective estates, does not exceed five thousand dollars ($5,000.00) in value, satisfying the requirement set forth by Probate Code §3401(c)(1). It is the intent of LAURA SAUCEDA VARGAS, as guardian of the Minors' respective estates, that this Release also serve as the written assurance, verified by oath that the total estate of the Minor, referenced in this paragraph, including the money or other property to be paid or delivered to LAURA SAUCEDA VARGAS, in her capacity as guardian of their respective estates, does not exceed five thousand dollars ($5,000.00) in value, as required by Probate Code §3401(c)(2). S. This settlement is intended to, and the undersigned warrants that it will, dispose of all liability of the party released to the undersigned and to all and each of the heirs, executors, administrators, and assigns of the undersigned and to any other person or entity that might now or in the future have a claim against the party released, or his attorneys, or the undersigned's attorneys, as a result of the injuries claimed by the undersigned involving the occurrence referred to above. Should any further claim be made by any person or entity to which the party released might be liable, directly or indirectly, as a result of the injuries claimed by the undersigned involving the occurrence referred to above, including but not limited to the health care practitioners who allegedly have treated the plaintiffs for bodily discomfort, loss, death, damage, or any of these which are in some way caused by the occurrence referred to above, and related business entities, or the Minor plaintiffs themselves, the undersigned on behalf of the heirs, executors, administrators, and assigns of the undersigned, agree to and will hold harmless Miam Relous under $5000 R'om: hl ash Ka28rOUN Fax: (949) 407 -8721 To: Fax: +1 (714) 569 -3033 Page 4 of 6 2/2712914 12:39 and indemnify the party released, his attorneys and the undersigned's attorneys, of and from any and all liability for such claim, including all costs, expenses and attorneys' fees in defending such claim. 9. The terms and conditions of this Release are understood to be confidential and are not to be disclosed to, or discussed with, any third parties or persons, absent prior court order, or as required by law. I, the undersigned, have read the foregoing Release and acknowledge our understanding and agreement of the contents thereof, and hereby sign under the penalty of perjury to the truth of its contents as relating to PARAGRAPH 7. DATED: - `y S G ALY URA SAUCEDA VARGAS GUARDIAN FOR JASMINE MORENO DECLARATION OF COUNSEL I am an attorney licensed to practice law in this State, and I hereby represent and declare that I have fully explained the foregoing Release to the signing parties, who in turn acknowledged to me an understanding of said Release and the legal effect thereof, and the signatures on the Release were personally made by the persons whose names they are. DATED: - - 2- Minor Release ..de, $5000 �-c MASIH KAZEROUNI, ESQ. Of Counsel RKR LEGAL Froln: Maslh Kazerouni Fax: (049) 407 -6721 To: Fax: +1 (714) 66MOn Page 10of 1 2 0212712014 10 47 RELEASE FOR AND IN CONSIDERATION of the sum of Two - Thousand Dollars ($2000.00) in the form of drafts or checks payable as follows: OSCAR MORENO, a Minor, by and through his Guardian, LAURA SAUCEDA VARGAS, and their attorney RKR LEGAL as payees, which sum shall be deemed to have been paid upon the delivery of such drafts or checks to the attorney for the undersigned, the undersigned on behalf of themselves and on behalf of all and each of their heirs, executors, administrators, successors, and assigns, hereby release and forever discharge THE CITY OF SANTA ANA and SANTA ANA POLICE DEPARTMENT. and any and all other persons including, but not limited to, representatives, heirs, executors, administrators, trustees, successors, affiliates, subrogors, subrogees, lessors, lessees, grantors, grantees, assignors, assignees, subsidiaries, parent corporations, agents, employees, servants, officers, directors, members, shareholders, owners, alter egos, attorneys, council members, firms, associations, corporations, general partners, limited partners and insurers who are or may ever becorne liable to the undersigned, of and from any and all claims, demands, damages, actions and causes of action of every kind, known or unknown, arising out of or in any way connected with the occurrence out of which it is claimed that the undersigned suffered damage to person and property and which took place on or about December 27, 2012, and which is the subject matter of the lawsuit entitled LAURA SAUCEDA MGRS, ETAL. v. CITYOFSANTAANA, ET AL, venued in Orange County Superior Court, action number: 30- 2014 - 00697500 -C U- PA -CJC IN FURTHER CONSIDERATION of the above - mentioned sum, the undersigned agrees as follows: 1. There is a risk that subsequent to the execution of this Release, the undersigned will incur or suffer personal or bodily discomfort, loss, death, damage, or any of these which are in some way caused by the occurrence referred to above, but which are unknown and unanticipated at the time this Release is signed; and further, there is a risk that damages presently known may be or may become more serious than the undersigned now expects or anticipates. 2. The undersigned shall assume the above - mentioned risks and this Release shall apply to all unknown or unanticipated results of the occurrence described above as well as those known and anticipated. On behalf of the undersigned, and on behalf of all and each of the heirs, executors, administrators, successors, and assigns of the undersigned, the undersigned hereby waive all rights under California Civil Code §1542, which states: Mina, 2o1aaee uuder $5000 From Mash Kazarouni Fax: (949) 407 -9721 To Fax: +1 (714) 569 -3033 Page 3 of 6 2/2712014 12:39 "A general release does not extend to 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." 3. The above - mentioned sum is the entire and only consideration for this Release and the undersigned shall be responsible for the payment of the attorneys' fees and legal expenses of the undersigned. 4. This Release is the result of a compromise and shall never at any time for any purpose be considered as an admission of liability or responsibility on the part of the party herein released, who continues to deny such liability and to disclaim such responsibility. 5. The advice of legal counsel has been obtained by the undersigned prior to signing this Release and that a dismissal with prejudice in favor of the party hereby released shall be entered by the attorneys for the undersigned in all actions now pending, which involve the occurrence referred to above. 6. A division, if any, of the above - mentioned sum between the undersigned and anyone also shall in no way affect the validity of this Release. 7. LAURA SAUCEDA VARGAS is the Guardian ad Litem for the Minor plaintiff JASMINE MORENO, and receives payment of the above- mentioned consideration pursuant to Probate Code §3401(b). The total estate of each of the Minors, including the money and other property to be paid or delivered to LAURA SAUCEDA VARGAS, in her capacity as guardian of their respective estates, does not exceed five thousand dollars ($5,000.00) in value, satisfying the requirement set forth by Probate Code §3401(c)(1). It is the intent of LAURA SAUCEDA VARGAS, as guardian of the Minors' respective estates, that this Release also serve as the written assurance, verified by oath that the total estate of the Minor, referenced in this paragraph, including the money or other property to be paid or delivered to LAURA SAUCEDA VARGAS, in her capacity as guardian of their respective estates, does not exceed five thousand dollars ($5,000.00) in value, as required by Probate Code §3401(c)(2). 8. This settlement is intended to, and the undersigned warrants that it will, dispose of all liability of the party released to the undersigned and to all and each of the heirs, executors, administrators, and assigns of the undersigned and to any other person or entity that might now or in the future have a claim against the party released, or his attorneys, or the undersigned's attorneys, as a result of the injuries claimed by the undersigned involving the occurrence referred to above. Should any further claim be made by any person or entity to which the party released might be liable, directly or indirectly, as a result of the injuries claimed by the undersigned involving the occurrence referred to above, including but not limited to the health care practitioners who allegedly have treated the plaintiffs for bodily discomfort, loss, death, damage, or any of these which are in some way caused by the occurrence referred to above, and related business entities, or the Minor plaintiffs themselves, the undersigned on behalf of the heirs, executors, administrators, and assigns of the undersigned, agree to and will hold harmless Minor Release nnder$5000 From: Mash Kazerounl Fax: (949) 407 -8721 To Fax'. +1 (714) 569.3033 Page 12of '120212712014 1047 and indemnify the party released, his attorneys and the undersigned's attorneys, of and from any and all liability for such claim, including all costs, expenses and attorneys' fees in defending such claim. 9. The terms and conditions of this Release are understood to be confidential and are not to be disclosed to, or discussed with, any third parties or persons, absent prior court order, or as required by law. I, the undersigned, have read the foregoing Release and acknowledge our understanding and agreement of the contents thereof, and hereby sign under the penalty of perjury to the truth of its contents as relating to PARAGRAPH 7. DATED: &- 9-1 t _ ll..' CkMCQ� QAIR SAUCEDA VARGAS GUARDIAN FOR OSCAR MORENO DECLARATION OF COUNSEL I am an attorney licensed to practice law in this State, and I hereby represent and declare that I have fully explained the foregoing Release to the signing parties, who in turn acknowledged to me an understanding of said Release and the legal effect thereof, and the signatures on the Release were personally made by the persons whose names they are. DATED: 2 Maur Release under 55000 20 A/ MASIHKAZEROUNI, ESQ. Of Counsel RKR LEGAL