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HomeMy WebLinkAboutERNESTO JAIDEN CANEPA GARCIA BY AND THROUGH GUARDIAN AD LITEM THERESA DEJESUS GARCIA - MMZ, ET. AL VS. CITY OF SANTA ANA-2016INSURANt,E NOT REQUIRED WORK MAY PROCEED Ci,ERK OF COUNCIL DOT- SETTLENIENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement') is made and entered into this _.L day of October, 2016, by and among: "Plaintiff' Ernesto Jaiden Canepa Garcia, by and through his guardian ad [item Theresa DeJesus Garcia "Defendant" City of Santa Ana RECITALS A -2016-306-B A. Plaintiff Ernesto Jaiden Canepa Garcia filed a complaint against City of Santa Ana and its police officers, in the United States District Court, Central, District of California, entitled ELC, eta, et al. v. City of Santa Arta, et al., which was consolidated with the case entitled MMZ, etc., et al. v. City of ~Santa Ana, et al., which bears case number SACV 15-0854 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, 20t5, which allegedly resulted in the death of Decedent Ernesto Canepa and related personal 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. AGREEMI ENT The parties agree as follows: 1.0 RELEASE AND DISCHARGE 1.1 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 aetion, 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 Plaintiff's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendant. it I is agreed that Plaintiffs and Defendants will each respectively bear their own attorneysfees 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 successors and employees, including, but not limited to Officer Christopher Shynn. 1.4 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 compromise 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: Ernesto Jaiden Canepa Garcia $2,500.00 Payable monthly, guaranteed for 84 payments only, commencing 3/26/2031 (age l8) through and including 2/26/2038; $30,000.00 Guaranteed lump sum, payable on 3/26/2038 (age 25); 21 $40,000.00 Guaranteed lump sum, payable 3/26/2043 (age 30); $50,000.00 Guaranteed lump sum, payable 3/26/2048 (age 35); $75,000.00 Guaranteed lump sum, payable 3/26/2053 (age 40); $383,000.00 Guaranteed lump sum, payable 3/26/2058 (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. 24. Plaintiff s Beneficiary. During the period of minority, Plaintiffs 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 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: 41 N 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 187 L2: 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 fines 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: 10\! � �� CA Theresa DeJesus Garcia, guardian ad litem for Plaintiff Ernesto Jaiden Canepa Garcia Dated: Arnoldo Casillas, Esq. Christian Periera, Esq. Attorney for Plaintiff Ernesto Jaiden Canepa Garcia Dated: ATTEST- APIA D HUI.ZAR (-,,I_F:i'F( OF THE COUNCIL Defendant City of Santa Ana By:— r° — David Cavazos, Title: City Manager 511 Qualified Assignment and Release Agreement In Accordance With Internal Revenue Code Section 130 "Claimant(s)": Ernesto Jaiden Canepa Garcia and Eli Landen Garcia, minors; b . Guardian ad Litem, Teresa DeJesus Garcia City of Santa Ana "Assignor": "Settlement Agreement": [Exact title of Settlement Agreement or Order] "Governing Law": "Assignee >3ac "Annuity Issuer": BERKSHIRE HATHAWAY LIFE INSURANCE COMPANY OF NEBRASKA "Effective Date": "Payee(s)' sho.r N, . vcsct ptzcn n lc)di.c Pvrtient-s Annuity Contract No: This Qualified Assignment and Release Agreement ("Agreement") is made and entered into as of the Effective Date by and among the undersigned parties with reference to the following facts: A. Claimant(s) and Assignor are parties to or are otherwise subject to the above - referenced Settlement Agreement under which Assignor has liability to make certain periodic payments to the designated Payee(s) as specified in Addendum No. 1 of this Agreement (the "Periodic Payments"). Where no Payee(s) other than Claimant(s) are shown in Addendum No. 1, it is understood that any references herein to Payee(s) shall apply to Claimant(s). B. Assignor and Assignee wish to effect a "qualified assignment" within the meaning and subject to the conditions of Section 130(c) of the Internal Revenue Code of 1986, as amended (the "Code"). C. This Agreement will be effective contingent upon Assignee's receipt of the full premium to fund the Periodic Payments contained herein. Now, therefore, in consideration of the foregoing and for other good and valuable consideration, the parties agree as follows: 1. Assignment and Assumption; Release of Assignor. Assignor hereby assigns to Assignee, and Assignee hereby accepts and assumes, all of Assignor's liability to make the Periodic Payments, Each Claimant hereby accepts and consents to such assignment by Assignor and assumption by Assignee. Effective on the Effective Date, each Claimant hereby releases and discharges Assignor from all liability to make the Periodic Payments, including the failure of Assignee to make any of the Periodic Payments and/or Annuity Issuer to fund any of the Periodic Payments for any reason whatsoever. 2. Nature of Periodic Payments. The Periodic Payments constitute: i. damages (other than punitive damages), whether by suit or agreement, or ii. compensation under a workers' compensation act, on account of personal injury or sickness in a case involving physical injury or physical sickness, within the meaning of Sections 130(c) and 104(a) of the Code. 3. Extent of Assignee's Liability. Assignee's liability to make the Periodic Payments shall be no greater than the liability of Assignor as SS -1000 (1212013) [S) Page 1 of 6 of the Effective Date. Assignee is not required to set aside specific assets to secure the Periodic Payments. Claimant(s), Payee(s) and Successor Payee(s) have no rights against Assignee greater than those of a general creditor. Assignee assumes no liability other, than the liability to make the Periodic Payments. Assignee's liability to make the Periodic Payments shall be unaffected by any bankruptcy, insolvency, liquidation or rehabilitation of Assignor. A. Qualified Funding Asset. Assignee will fund the Periodic Payments by purchasing from Annuity Issuer a "qualified funding asset," as defined in Section 130(d) of the Code, in the form of an annuity contract (the "Annuity") issued by Annuity Issuer and providing for payments corresponding to the Periodic Payments. Assignee shall be designated as the owner of the Annuity. All rights of legal ownership and control of the Annuity shall (subject to paragraph 9 of this Agreement) be and remain vested exclusively in Assignee: provided. however, that the Annuity shall be used by Assignee to fund the Periodic Payments and shall at all times be designated by Assignee on its records as being taken into aCCOUnt, under Section 130 of the Code, with respect to this Agreement. Notwithstanding anything to the contrary contained in this Agreement, neither any Claimant, any Payee, nor any Successor Payee (as defined in paragraph 8 of this Agreement) shall have any rights with respect to the Annuity or the payments thereunder that would cause any amount attributable to the Annuity to be currently includable in the recipient's income or would otherwise affect the determination of when any recipient is treated as having received any payment for income tax purposes, or would otherwise prevent this Agreement from satisfying all of the conditions for a "qualified assignment" within the meaning of Section 130(c) of the Code. 5. Delivery of Payments. Assignee may instruct Annuity Issuer to send payments directly to Payee or Successor Payee, or to deliver payments by electronic funds transfer ("EFT") to an FDIC -insured depository institution in the United States for credit (directly or indirectly) to an insured account in the name of such Payee or Successor Payee. Such direction of payments under the Annuity shall not be deemed to afford Claimant. Payee or any Successor Payee any rights of ownership or control of the Annuity. Each Claimant, Payee and any Successor Payee shall at all times keep Annuity Issue apprised of such Claimant's, Payee's or Successor Payee's current mailing address and telephone number and, if Payee or Successor Payee receives payments by EFT, the name, address, ABA routing number and telephone number of the applicable U.S. financial institution and the account name and account number to which the payments are to be credited. Such notices shall be in a form provided by Annuity issuer and must be received at least thirty (30) days prior to the date payment is due. 6. Discharge of Liability. Assignee's liability to make each Periodic Payment to any Payee or Successor Payee designated to receive such payment shall be fully discharged upon: i, the mailing of a valid check on or before the due date for such payment to the address of record specified by Payee or Successor Payee; or ii. the initiation of art EFT payment on or before the due date for such payment to the United Sates financial institution account designated by Payee or Successor Payee If Payee or Successor Payee does not receive a scheduled payment by check, Payee or Successor Payee shall notify Assignee. Upon receipt of such notification, Assignee shall initiate a stop payment action for such check and upon confirmation that such check was not previously negotiated shall promptly mail a replacement check; or If Payee or Successor Payee does not receive a scheduled EFT payment, Payee or Successor Payee shall notify Assignee. Upon receipt of such notification, Assignee shall initiate a trace for such payment and upon confirmation that such payment was not credited to the account shall promptly issue a replacement EFT payment. 7. Acceleration, Transfer of Payment Flights. None of the Periodic Payments and no rights to or interest in any of the Periodic Payments (all of the foregoing being hereinafter collectively referred to as "Payment Rights") can be i. Accelerated, deferred, increased or decreased by any recipient of any of the Periodic Payments; or ii. Sold, assigned, pledged, hypothecated or otherwise transferred or encumbered, either directly or indirectly, unless such sale, assignment, pledge, hypothecation or other transfer or encumbrance (any S3-1000 (12/2013) IS] Page 2 of 6 such transaction being hereinafter referred to as a "Transfer") has been approved in advance in a "Qualified Order" as defined in Section 5891(b)(2) of the Code (a "Qualified Order') and otherwise complies with applicable state law, including without limitation any applicable state structured settlement protection statute. No Claimant, Payee or Successor Payee shall have the power to effect any Transfer of Payment Rights except as provided in sub -paragraph (ii) above, and any other purported Transfer of Payment Rights shall be wholly void, invalid and unenforceable. If Payment Rights under this Agreement become the subject of a Transfer approved in accordance with sub -paragraph (ii) above the rights of any direct or indirect transferee of such Transfer shall be subject to the terms of this Agreement and any defense or claim in recoupment arising hereunder. 8 Contingent Beneficiaries, Any Periodic: Payments to be made after thedeath of any Claimant, Payee or Successor Payee shall be made to such party as shall have been designated in, or in 'accordance with, the Settlement Agreement or, if the Settlement Agreement does not provide for such designation, then to the party designated in conformity with this paragraph U. Any party so designated is referred to in this Agreement as a "Contingent Beneficiary." If no Contingent Beneficiary is living at the time of the death of a Claimant, Payee or Successor Payee, payment shall be made to the decedent's estate unless otherwise provided in the Settlement Agreement. As used in this Agreement the term "Successor Payee' refers to a Contingent Beneficiary or an estate that has become entitled to receive Periodic Payments following the death of a Claimant, Payee or a Successor Payee. Except where a designation has been made in the Settlement Agreement, no designation or change of designation of a Contingent Beneficiary shall be effective unless such designation or change (i) is requested in a written request submitted to Assignee in accordance with Assignee's customary procedures for processing such requests; and (ii) is confined by Assignee. However, Assignee will riot be liable for any payment made prior to receipt of the request or so soon thereafter that payment could not reasonably be stopped. Except for a designation that is expressly identified in the Settlement Agreement as irrevocable, any designation of a Contingent Beneficiary shall be deemed to be revocable; and no party that is designated as a Contingent Beneficiary (other than a party irrevocably designated as a Contingent Beneficiary in the Settlement Agreement) shall, solely by virtue of its designation as a Contingent Beneficiary, be deemed to have any cognizable interest in any Periodic Payments. 9. Termination of Settlement Agreement / Failure to Satisfy Section 130(c). if at any time prior to completion of the Periodic Payments, the Settlement Agreement is declared terminated in a final, non - appealable order of a court of competent jurisdiction(orin the case of a workers' compensation settlement, a final order of the applicable workers' compensation authority) or if it is determined in any final order or ruling that the requirements of Section 130(c) of the Code have not been satisfied in connection with this Agreement (i) the assignment by Assignor to Assignee of the liability to make the Periodic Payments and Assignee's acceptance of such assignment shall be of no force or effect; (ii) Assignee shall be conclusively deemed to be acting as the agent of Assignor; (iii) the Annuity shall be owned by Assignor; (iv) in the event the Settlement Agreement is not terminated, Assignor shall retain the liability to make the Periodic Payments; (v) Assignee shall have no liability to make any Periodic Payments; and (vi) the parties hereto agree to cooperate in taking such actions as may be necessary or appropriate to implement the foregoing. 10. Governing Law; Binding Effect. i. This Agreement shall be governed by and interpreted in accordance with the internal laws of the state identified as Governing Law above; provided, however, that any Transfer of Payment Rights under this Agreement may be subject to the laws of other states in addition to the state designated above. ii. This Agreement shall be binding upon the parties hereto and their respective successors, heirs, executors, administrators and permitted assigns, including without limitation any party asserting an interest in Payment Rights. 11. Advice, Comprehension of Agreement. In entering into this Agreement, each Claimant warrants, represents and agrees that Claimant is solely relying on the attorneys and advisors of such Claimant's own choosing, and not upon Assignor, Assignee or their advisors, for advice regarding the legal, government benefits and tax SS -1000 (12/2013) fSj Page 3 of 6 consequences of this Agreement. Each 12. Future Cooperation. All parties agree to Claimant further warrants, represents and cooperate fully and to execute any and all agrees that the terms of this Agreement supplementary documents and take all have been completely read by and additional actions, which are not inconsistent explained to such Claimant and are fully with its terms, which may be necessary or understood and voluntarily accepted by such appropriate to give full force and effect to the Claimant. Furthermore, each Claimant terms and intent of this Qualified hereby releases and discharges Assignor, Assignment and Release Agreement. Assignee, Annuity Issuer, their affiliates and Pursuant to its obligations under this their respective employees and advisors paragraph 12, and without limitation, ('Releasees') from any and all claims, Assignor shall promptly provide Assignee rights, damages, costs or expenses of any with copies of any required court approval nature whatsoever that such Claimant now with respect to the underlying settlement has or may have in the future against such and executed copies of all required Releasees (i) with respect to the present settlement documents. and future taxation of this Agreement or the 13. Description of Periodic Payments. The Periodic Payments; or (ii) the impact that Periodic Payments are as set forth in this Agreement or the Periodic Payments attached Addendum No. 1, which is hereby may have on Claimant's eligibility for, and incorporated in and made a part of this the quantum of, any governmental benefit Agreement. payments. SS -1000 (1212013) ISI Page 4 of 6 In the event of any conflict between this Agreement and the Settlement Agreement with respect to the Periodic Payments or the assignment made herein, the terms and conditions of this Agreement shall prevail. This Qualified Assignment and Release Agreement may be signed In one or more counterparts. Assignor: City of Santa Ana By: David Cavazos, Title: Citv M__-___- a �naaer -- Assignee: Buu Structured Settlements, Inc, By: Authorrzed nepresontative Claimant(s) or Payee(s): By:Itsvrve <n ���ttr i Ertdan Canepa Gardia and Ell Landen Garcia, minors; by and through their Guardlan rad Litern, Teresa DeJesus Garcia SS -1000 (1212013) ISI PagL 5 of 6 ATTEST. MARIA D. HUIZAW CLERIC of THE COUNCIL Addendum No. i Description of periodic Payments Payee: Ernesto Jaiden Canepa Garcia $2,500.00 payable monthly, guaranteed for 84 payments only, beginning March 26, 20:31; final guaranteed payment February 26, 2038 $ 30,000,00 Guaranteed Lump Sum Payable 3/26/2038 $ 40,000.00 Guaranteed Lump Sum Payable 3/26/2043 $ 50,000.00 Guaranteed Lump Sum Payable 3/2.6/2048 $ 75,000.00 Guaranteed Lump Sum Payable 3/26/2053 $383,000.00 Guaranteed Lump Sum Payable 3/26/2058 Payee: Eli Landen Garcia $2,800,00 payable monthly, guaranteed for 84 payments only, beginning February 18, 2033; final guaranteed payment on January 18, 2040 $ 30,000,00 Guaranteed Lump Sum Payable 2/18/2040 $ 40,000,00 Guaranteed Lump Sum Payable 2/18/2045 $ 50,000.00 Guaranteed Lump Sum Payable 2/18/2050 $ 75,000.00 Guaranteed Lump Sum Payable 2/18/2055 $401,000.00 Guaranteed Lump Sum Payable 2/18/2060 INITIALS Assignor; Assignee: Claimant or Payee; _ Attorney for Claimant S5-1000 (1212019) [S] Page, 6 of 6