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HomeMy WebLinkAboutJAZMIN ZARATE - MMZ, ET. AL VS. CITY OF SANTA ANA-2016SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement") is made and entered into this _tV day of October, 2016, by and among; "Plaintiff' Jazmin Zarate "Defendant" City of Santa Ana RECITALS A. Plaintiff Jazmin Zarate filed a complaint against City of Santa Ana and its police officers, in the United States District. Court, Central District of California, entitled MW,, eta, et al, v, City of5anta Ana, et al., which bears case number SAM 5-0851 JLS (DFlvlx) (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 toils 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, 2015, which allegedly resulted in the death of Decedent Ernesto Canopa and resulting personal injuries to PlaintiffJaznzin Zaratc, 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. AGREEMENT The parties agree as follows; 1.1 In consideration of the payments set forth in Section 2, which has a current cost of six hundred and twenty thousand dollars and no cents ($620,000.00), 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 action, 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 anyway 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 is agreed that Plaintiffs and Defendants will each respectively bear their own attorneys' fees and Costs. IIPage 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: $511,000.00 shall be in the form of a check made payable to "Guizar, Henderson & Carrazco, LLP and Jazmin Zarate" 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(x)(2) of the Internal Revenue Code of 1986, will be paid as follows: Payee: Jazmin Zarate $65,000.00 Guaranteed lump sum, payable on 8/27/2023 (age 35); $25,000.00 Guaranteed lamp sum, payable on 8/27/2028 (age 40); $25,000.00 Guaranteed lump sum, payable 8/27/2033 (age 45); and, $30,000.00 Guaranteed lump sum, payable 8/27/2038 (age 50). 21Page The periodic payment obligation set forth above will be funded by a payment [or at a cost ofJ of $109,000.00 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 12. 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 (1) 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 12. 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 her 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. 2.4. Beneficiary: Amanda Herrera, daughter (DOB: 2/6/2005) and Joshua Herrera, son (DOB: 9/22/2006), equally, if living, otherwise to their survivor, if living, otherwise to the Estate of Jazmin Zarate, 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 3[Page 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 her attorneys, who are the attorneys of their own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Plaintiff by her attorneys; 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 tinder and by virtue of the terms of section 1542 of the Civil Code of the State of California, which section reads as follows: 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 Trim must have materially affected his settlement with the debtor. Plaintiff is hereby advised that for her protection, California law requires the following to appear on this forrn, pursuant to California Insurance Code section 1571.2: 41Page 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: Wk IV Dated: 10 to 1/0 Dated: Defendant City of Santa Ana 51 Page SETTLEMENT AGREEMENT AND RELEASE This Setticu, nt Agreement and Release (the "Settlement Agreement") is made and entered into this - V day of October, 2016, by and among: "Plaintiff' Jazmin Zarate "Defendant" City of Santa Ana RECITALS A. Plaintiff Jazmin Zarate filed a complaint against City of Santa Ana and its police officers, in the United States District Court, Central District of California, entitled MW,, etc., et al, v, City of5anta Ana, et al., which bears case number SACV15-0851 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, 2015, which allegedly resulted in the death of Decedent Ernesto Canepa and resulting personal injuries to Plaintiff Jazmin Zarate, 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. AGREEMENT 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 six hundred and twenty thousand dollars and no cents ($620,000,00), 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 ail past, present or future claims, demands, obligations, actions, causes of action, 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 is agreed that Plaintiffs and Defendants will each respectively bear their own attorneys' fees and costs. 11Page 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 patties 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: $511,000.00 shall be in the form of a check made payable to "Guizar, Henderson & Carrazco, LLP and Jazmin Zarate" 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: Jazmin Zarate $65,000.00 Guaranteed lump sum, payable on 8/27/2023 (age 35); $25,000.00 Guaranteed lump sum, payable on 8/27/2028 (age 40); $25,000.00 Guaranteed lump sum, payable 8/27/2033 (age 45); and, $30,000.00 Guaranteed lump sum, payable 8/27/2038 (age 50). 21Page The periodic payment obligation set forth above will be funded by a payment for at a cost of] of $109,000.00 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 her 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. 2.4. Beneficiary; Amanda Herrera, daughter (DOB: 2/6/2005) and Joshua Herrera, son (DOB: 9/22/2006), equally, if living, otherwise to their survivor, if living, otherwise to the Estate of Jazmin Zarate, 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 31Page 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 br entering into this Settlement Agreement, the Plaintiff represents that Plaintiff has relied upon the advice of her attorneys, who are the attorneys of their own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Plaintiff by her attorneys; 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 tinder and by virtue of the terms of section 1542 of the Civil Code of the State of California, which section reads as follows: 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 hum must have materially affected his settlement with the debtor. Plaintiff is hereby advised that for her protection, California law requires the following to appear on this form, pursuant to California Insurance Code section 1871.2: 4 1 P a g e 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: / t 1 Dated: �D[it r 0 f Ange arr co,:Esq.,Attorney for Plaff Jazm n Zarate Defendant City of Santa Ana By: A — Gerardo Mouet, Title: Acting City Manager ATTEST. { MARIA D. HUIZARd Ci_ERK OF THE COUNCIL 51 Page