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Home My WebLink About1997-04-22; City Council; 14149; SETTLEMENT OF LAWSUIT ENTITLED WILLIAM EARL WARREN V. CITY CASE NO. 92-326 E (CM)1 CITY OF CARL 3 BAD -AGENDA BILL 0 7p 5 1 1 I AB# jy! I?? CITY MGR DEPT. CA CITY Am CASE NO. 92-326 E (CM) MTG. 4/22/97 DEPT. ID, - TITLE: SETTLEMENT OF LAWSUIT ENTITLED WILLIAM EARL WARREN V. CITY - i RECOMMENDED ACTION: That Council authorize settlement of this case by adopting Resolution No. 93- ' and authorize the Risk Manager to make payment of the settlement amount. ITEM EXPLANATION: This case arises from a complaint of racial discrimination filed on March 2, 1992 employee. The City Attorney recommends settlement of this case in the amount of 9 FISCAL IMPACT: I There are sufficient funds in the liability account to cover the settlement. EXHIBITS: 1 a LBd > 0 fx 2 S 0 .- 2 6 c, - .- 0 S 3 1. Resolution No. 93- 4 5/ 2. Settlement and Release Agreement ~ I I I I ,a I e 0 EXHIBIT : RESOLUTION NO.97-451 1 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SElTLEMENT OF THE LAWSUIT ENTITLED 3 WHEREAS, on recommendation of the City Attorney, the City Counc 4 WARREN V. CITY OF CARLSBAD, CASE NO. 92-0326 E (CM) 5 6 City of Carlsbad, California has determined that a settlement in the case entitled !! 7 Warren v. City of Carlsbad, is in the public interest; and 8 11 WHEREAS, there are sufficient funds available in the liability self-ins reserve account to pay the settlement, 9 10 NOW, THEREFORE, BE IT RESOLVED by the City Council of the C 11 12 Carlsbad, California, as follows: om a08 2. That the City Council approves the settlement and authorizes dis I. That the above recitations are true and correct. m> SU~ .JH& 13 d;$% SO35 14 egg: of $1 5,000 from the liability self-insurance reserve account for Warren v . Citv of ’ zwv) 3. That the Settlement and Release Agreement is hereby approvec guo9 15 a<Ss uuuo oz”? 16 p$ 40-1 17 c> 0 Mayor is authorized to execute the Agreement and its attachment. pz - - 18 19 20 21 22 23 24 ‘ 25 26 PASSED, APPROVED AND ADOPTED at a Regular,Meeting of the Council of the City of Carlsbad’on the 22nd day of April , 1997, by following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaard, Kulchin, i NOES: None ABSENT: None 27 28 ATTEST: ALETHA L. WUTEN 1 0 0 SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release (hereafter "Agreement") is mi by and between William Earl Warren, Ill ("Plaintiff") and the City of Carlsbad ("City": WHEREAS, Plaintiff filed a complaint entitled William Earl Warren. Ill v. Cit) Carlsbad, Case No. C 92-362 BTM (CM), in the U.S. District Court for the Southl District of California on or about March 9, 1992 ("lawsuit") against the City alleging: breach of contract; 2) intentional infliction of emotional distress; 3) negligent inflictior emotional distress; 4) interference with economic relations; 5) conspiracy; 6) violatiorl California Labor Code section 201; 7) Title VIL- racialhational origin discrimination; a 8) discrimination in violation of public policy; WHEREAS, U.S. District Court Judge William B. Enright granted the City's mot for summary adjudication of Plaintiff's Title VI1 cause of action on April 21, 1993, a dismissed the supplemental state law claims; 5 WHEREAS, Plaintiff appealed Judge Enright's decision to grant summ: adjudication of the Title VI1 claim as to Defendant City of Carlsbad only to the Nit Circuit Court of Appeals, refiled his supplemental state law claims in the Superior Co of California in and for the County of San Diego (Case No. N59673), and ultimatc dismissed those state law claims with prejudice on April 26, 1994; WHEREAS, the Ninth Circuit Court of Appeals reversed and remanded Jud! Enright's order granting summary adjudication of the Title VI1 claim in an opinion issul 1 178-03se 0 0 on June 22, 1995 and published at 58 F.3d 439; WHEREAS, the City and Plaintiff met andlor discussed settlement on sew occasions and finally agreed on the record at the close of a March 24, 1997 settlem, conference before U.S. Magistrate Roger C. McKee to settle this matter based upon 1 terms stated herein; WHEREAS, the City disputes that there is any basis for liability; WHEREAS, both parties desire to fully resolve this matter and to avoid incurr further costs and expenses to litigate this matter; WHEREAS, the parties agree that this settlement is a resolution of disput matters and is not, in any way, an admission of liability, fault or wrongdoing on the p of any party; THEREFORE, as a compromise and settlement of the above-mentioned matte the parties hereby agree, warrant and represent as follows: 1. All of the recitals set forth above are incorporated herein as mater ' agreements of the parties. 2. Plaintiff agrees to dismiss with prejudice the lawsuit entitled Warren v. C. of Carlsbad, US. District Court Case No. C 92-362 BTM (CM). In order to effectuate tl dismissal with prejudice, Plaintiff agrees to execute the document entitled "Stipulation f Dismissal With Prejudice; Order Approving Stipulation For Dismissal With Prejudice" th is attached hereto as Exhibit 1. 3. In consideration for Plaintiffs dismissal of this lawsuit and waiver of i claims as described herein, the City agrees to pay Plaintiff a lump sum of $15,000 I 2 178-03se ' 0 0 compensate him for any and all emotional injuries he may have incurred. Plaintiff agrc and understands that the City will not be withholding any federal or state income tal from this lump sum in light of the fact that it is for the settlement of personal injury 2 not fur any back wages owed. Plaintiff agrees to hold the City harmless and to indeml the City for any liability for any taxes that might be found to be due on account of 1 payment of this sum. The City agrees to issue a check to Plaintiff for this sum within 1 days after the City receives the originals of: 1) this Agreement bearing the signatures Plaintiff and his attorney, Thomas R. Gill; and 2) the "Stipulation For Dismissal M Prejudice; Order Approving Stipulation For Dismissal With Prejudice" that is attact hereto as Exhibit 1 and that bears the signature of Plaintiff. 4. Plaintiff and his attorney, Thomas R. Gill, agree not to object to the Cit effort to have the Ninth Circuit Court of Appeals withdraw its published opinion in Warr v. City of Carlsbad (9th Cir. 1995) 58 F.3d 439. 5. Each party to this Agreement agrees to bear hidits own attorneys' fees a ! costs. 6. Plaintiff further agrees that this Agreement completely settles all litigatic tort claims, administrative charges of discrimination, and any other charges or complair Plaintiff has filed to date regarding his employment. Plaintiff and his attorney, Thom R. Gill, agree to prepare, execute, and file any documents necessary to dismiss any su charges and complaints. 7. In consideration and inducement for this Agreement, Plaintiff, on behalf himself, his successors and assigns, does fully release and discharge the City, its pz 3 178-03se 0 0 and present City Councilmembers, officers, agents, employees, attorneys, successo and assigns from all actions, damages, liabilities of whatsoever kind and charactl including but not limited to any common law contract or tort cause of action, claims attorneys' fees, unemployment insurance claims, employment discrimination of any kir or violation any other federal, state, local or City ordinance, regulation, rule or order tt arise out of his employment with the City, any claims alleged in U.S. District Court Ca No. C 92-362 BTM (CM), or the terms of this Agreement. The waiver and release claims specified in this Agreement does not apply to workers' compensation proceedin! 8. Plaintiff represents and warrants that he has not assigned or transferred any other person or entity any of the claims arising from his employment or U.S. Distl Court Case No. C 92-362 BTM (CM). Plaintiff will indemnify and hold the City harmk from and against any claim, demand, damage, debt, obligation, liability, action or caL of action (including payment of attorneys' fees and costs actually incurred whether or I litigation is commenced) based on, in connection with, or arising out of any assignmc or transfer or purported or claimed assignment or transfer, of all or any part or portion the claims described herein. 4 9. As a further consideration and inducement for this Agreement, Plair agrees that this Agreement shall apply to all unknown and unanticipated injuries E damages resulting from his employment with the City, the claims alleged in U.S. Dist Court Case No. C 92-362 BTM (CM), or the terms of this Agreement, and her€ expressly waives the provisions of California Civil Code section 1542, which states follows: 4 178-03: 0 e 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. Plaintiff acknowledges that in the future he may discover claims or facts in addition to different from those that he now knows or believes to exist with respect to his employmc with the City, U.S. District Court Case No. C 92-362 BTM (CM), or the subject matter this Agreement, and that he intends to fully, finally, and forever settle all such claims tt may arise up to and including the date that this Agreement is fully executed. TI Agreement will remain in effect as a release, notwithstanding the discovery or existen of any additional claims or facts. IO. This Agreement, and the "Stipulation for Dismissal With Prejudice; Orc Approving Stipulation For Dismissal With Prejudice" that is attached as Exhibit 1, cont: the entire understanding between Plaintiff and the City. The terms of this Agreement 2 contractual and not a mere recital. 11. This Agreement shall be construed and enforced pursuant to the laws oft State of California. All executed copies are duplicate originals and are equally admissit in evidence. 12. Plaintiff hereby represents and warrants to the City that he has adequ: information concerning the claims and defenses of the parties in connection with tl lawsuit to make an informed decision and has, independently and without reliance on t City, and based upon such information that he has deemed appropriate, made his 0' analysis and decision to enter into this Agreement. 13. Plaintiff warrants that no promise, inducement, or agreement not express 5 178-03~8 a 0 herein has been made to him in connection with this Agreement. Plaintiff acknowledh and agrees that he has been represented by legal counsel with respect to matters wh are the subject of this Agreement and that his legal counsel has discussed 1 Agreement with him and has fully advised him with respect to the rights and obligatic he assumes by executing this Agreement. Plaintiff acknowledges that he has entered i this Agreement voluntarily. 14. If any provision contained in this Agreement, or portion thereof, is h unconstitutional, invalid, or unenforceable, the remainder of this Agreement shall deemed severable, shall not be affected, and shall remain in full force and effect. ///I April 23, 1997 Date Mayor of the City of Carlsbad on behalf of the City of Carlsbad 6 APPROVED AS TO FORM: 'Dwd 744 $ m77 J C nthia O'Neill Date Attorneys for Defendant City of Carlsbad hitmore, Johnson & Bolanos 6 178-03s, ', 0 e FOR THE PLAINTIFF: ZJ" r. "2 - Q-tI-97 William E. Warren, Ill Date P-% AS TO FORM: Thorn s . Gill, Esq. Attorne $1 6 or Plaintiff \ 1 LC 111 47 Date i 6 7 17803s I. 4 * - d 1 2 3j 4 5 6 7 8 0 RICHARD S. WHITMORE (S.B. #041183) CYNTHIA O'NEILL (S.B. #132334) JACK W. HUGHES (S.B. #184049) WHITMORE. JOHNSON & BOLANOS 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 Telephone: (415) 941-9333 Anurneys for Defendant CITY OF CARLSBAD UNITED STATES 0 "" . L' i 2,*:. ., , F!!,.E 0 I I"? kF8 :: r: I997 i t "".. _. . : i DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORMA 10 1 11 12 WILLIAM EARL WAEtREN, III, Ca~e NO. C-92-362 BTM w 1 v. 13 1 WITH PREJUDICE; ORDER 1 14 CRY OF CARtSBAD, 1 mCP 4l(a); Local Rule 7.4J 1 DISMISSAL WITH PREIUDICE 1 APPROVING STIPULATION FOR Defendant. 1 15 AS Plaintiff, 1 STIPULATION FOR DISMISSAL 16 I 1 IT IS STIPULATED by and benveen William Ear1 Warren m, PIaintiff, and the C Carlsbad, Defendant: (1) that the parties have entered into a settlement agreement and that the a entitled case may be dismissed with prejudice, with each party to kat its own attorneys' fees and and (2) that the parries request rhe Court to enter final judgment dismissing this action with prej 22 in its entirety. 22 Dated: C/ - I/- 7 7 t 23 1 y/ 4/23/97 y/ 4/23/97 CP 28 271 *'kam.;r*rram Z!eW W 8 iurrtna Ped. Sudr W YO~I Lm VIC.. Cdiiunv No10 ._. a& ~~-a--.L" LLIAM W WARRE3 mPlaintiff ClTY OF C, WBAf), hfendant SnPUUT#IN FOB DlSMLSSAt C~N0.92.M5wM(~ -ON 52 97 IO I 1 // 3' ' 0 0 1 The above-entitied cast is dismissed with prejudice in its entirety as to all parties pursua 2 ORnERVTNG Si '. 3 Each party is to bear its own attorneys' fees and costs. The Clerk shall enter fiil judgment dsmi, 4 1 Federal Rule of CiviI Procedure 41(a), and based upon the terms of the parties' settlement agreer I I 51 1 this action with Preiudice in its entiretv. A fi I .. Dated: 4Aqq ~ DisGict Court ' -- " - 1 mGhhmbW.r 870 1. U haw Rcd. Swk 6od Ysunhm kr. Glifom 94044 ~UUTIOH WR DfSMISSG 2 CSE NO. 92-362 BTM (CM) L78-0 e e MAY 12,1997 TO: RISK MANAGER FROM: City Attorney WARREN V. CITY Attached to this memorandum, please find executed copies of the Settlemer Agreement and General Release, Stipulation for Dismissal and Order Approvin! Dismissal for your files. The original of the Settlement Agreement and Gener: Release is on file with the City Clerk. Since this case is now concluded and there is no possibility of appeal, I will now clos. my file. Should you have any questions regarding the above, please do not hesitate to contac me. P- RONALD R. BALL City Attorney afs attachment c: City Manager r H an Resources Director City Clerk e 0 RONALD R. BALL CITY ATTORNEY D. RICHARD RUDOLF ASSISTANT CITY ATTORNEY JANE MOBALDI DEPUTY CITY ATTORNEY CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008-1989 (61 9) 434-2891 FAX: (61 9) 434-8367 4 April 23, 1997 Cynthia O’Neill, Esq. Whitmore, Johnson & Bolanos 2570 W. El Camino Real, Suite 600 Mountain View, California 94040 RE: WARREN V. CITY OF CARLSBAD Dear Ms. O’Neill: The Council approved settlement of this case by the adoption of Resolution No. 9i 451 at its meeting of Tuesday, April 22, 1997. Enclosed, please find the origin: Stipulation for Dismissal with Prejudice to submit to the Court for its signature an copies of Resolution No. 97-451 and the Settlement Agreement and General Releas copy of the Order Dismissing this Case with Prejudice. It has been a pleasure working with you on this case, but I am glad to see it finall concluded after these many years of litigation. Should you have any questions regarding the above, please do not hesitate to contal me. for your files. Once it is approved by the Court, please’send me an endorsed file t &iZk ruly yours, RO ALD R. BALL City Attorney afs enclosures CI Raymond R. Patchett, City Manager Dennis VanderMaaten, Fire Chief &e Rautenkranz, City Clerk