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HomeMy WebLinkAbout2003-06-03; City Council; 17185; Settlement with MendesCITY OF CARLSBAD - AGENDA BILL 17,185 AB# MTG. 6/3/03 DEPT. CA TITLE: REPORTING OUT THE TERMS AND CONDITIONS OF THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN MENDES V. CITY OF CARLSBAD. ET.AL. CASE NO 02 CV 1030 JM (LSP) (CIVIL RIGHTS ACTION) RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: DEPT. HD. I CITY ATTY. CITY MGR. At the closed session hearing of March 1 I, 2003, the City Council discussed and approved a proposed settlement of the above referenced case subject to court approval, which has now been obtained. The case was settled before Magistrate Judge Leo Papas in Federal District Court in the amount of $35,000. Attached is a copy of the Stipulation and Order of Dismissal and Order Thereon provided for public review. This item satisfies the Brown Act requirement to report the fact of a settlement of litigation approved in a prior closed session. FISCAL IMPACT: The cost of the settlement is $35,000. EXHIBITS: 1. Stipulation and Order of Dismissal and Order Thereon ( I ! 1( li 1; 1: 14 If 16 17 18 19 20 21 22 23 24 25 26 27 28 0 DALEY & HEFT, ATTORNEYS AT LAW MITCHELL D. DEAN, ESQ. (SBN 128~ CARRIE L. MITCHELL, ESQ. (SBN 8 462 STEVENS AVENUE, SUITE 201 SOLANA BEACH, CA 92075 TEL: (858) 755-5666 FAX: (858) 755-7870 'r Associated with: RONALD R. BALL, ESQ. CITY ATTORNEY CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAE, C-q 92 0 0 8 TEL: (760) 434-2891 FAX: (760) 434-8367 Attorneys for Defendants, CITY OF CARLSBAD and G. ELLSWORTH UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CASE NO. 02 CV 1030 JM (LSP) 1 D LEROY MENDES, 1 1 DISMISSAL V. 1 1 ZITY OF CARLSBAD, 1 3. ELLSWORTH and DOES 1-20, Inclusive, Plaintiff, 1 STIPULATION AND ORDER OF 1 Defendants. ) 1 IT IS HEREBY STIPULATED by and between the parties to this 3ction through their designabed..c,,a.y,n-el that the above- /// /// - -.. - . . ..-. .. .'I -I-, , f '~;*~~~ ,r. , . -. *. r .. I ; I 1 I MAY 7 2003' JNIERED ON >' 62- CASE NO. 02 CV JM (LSP -. '// 'I/ 1 2 3 4 5 G 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2s captioned action be and hereby is dismissed with prejudice pursuant to Federal Rules of Civil Procedure 41(a) (1). ’ IT IS SO STIPULATED. DATED : y- a- 05 LAW OFFICES OF MICHAEL R. MARRINAN MI’CHAEL R. MARRINAN Attorneys for Plaintiff, LEROY MENDES DATED : #-23a;s I BY DATED : THOMAS WILLIAM SMITH . Attorney for Plaintiff LEROY MENDES Attorneys for Defendants, CITY OF CARLSBAD and G. ELLSWORTH . I H&&A BLE J&FREY MILLER J~GE OF THIE DISTRICT COURT a CASE NO. 02 CV 1030 JM (LSP) . GENERAL RELEASE AND SETTLEMENT OF CLAIMS Re: Leroy Mendes v. City of Carlsbad, et al. USDC Case No. 02 CV 1030 JM (LSP) Judge: Leo S. Papas For the sole consideration of THIRTY FIVE THOUSAND DOLLARS and no/100 ($35,000.00), the undersigned hereby releases and ftirthzr discharges the CITY OF CARLSBAD and OFFICER G. ELLSWORTH, and all other CITY OF CARLSBAD employees, its attorneys and agents and all other persons, firms and corporations from all claims and demands, rights and causes of action of any kind the undersigned now has or hereafter may have on account of or in any way growing out of the damages resulting or to result from the incident occurring on or about June 27, 2002, which is the subject of United States District Court, Southern District, Case No. 02 CV 1030 JM (LSP). Further, the undersigned hereby agrees to release any and all claims and demands, rights and causes of action of any kind that may now have arisen or hereafter may arise as a result of the above incident, and further agree to hold the CITY OF CARLSBAD and OFFICER G. ELLSWORTH, harmless, and to indemnify them for and against any claim, lien or debt which has arisen or may arise from the incident described herein, including but not limited to Worker's Compensation liens, attorneys' liens, and medical liens of any type whatsoever. This release expresses a full and complete settlement of a liability claimed and denied on the part of all parties, . >> >< ; 1 3 ,j,j$!& b regardless of the adequacy of the above consideration, and the acceptance of this release shall not operate as an admission of liability or wrongdoing on the part of any party hereto. Specifically, all defendants have contested liability and continue to contest liability and all defendants deny any wrongdoing whatsoever. The above-mentioned consideration expressly includes all attorneys' fees and costs whatsoever. Any additional claim for attorneys' fees pursuant to 42 U.S.C. Sections 1983 and 1988 are hereby waived by the undersigned and their attorneys. All rights given by Section 1542 of the Civil Code of California or any equivalent Federal statute or law, which is quoted below, are waived by the undersigned. CIVIL CODE SECTION 1542: "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." This agreement may be executed in counterparts with the same effect as if all original signatures were placed on one document, and all of which together shall be one and the same agreement. By signing this General Release, I intend to give up and discharge all rights and claims to damages to persons and/or property, even though some of such damages may not have shown themselves at the time of acceptance settlement. DATED : LEROY MENDEQ, Plaintiff 2 APPROVED AS TO FORM AND CONTENT: DATED : Y- 7- 09 ATTORNEY AT LAW MICHAEL R. MARRINAN, Attorney for Plaintiff, LEROY MENDES ATTORNEY AT LAW BY : for Plaintiff, LEROY MENDES 3