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Home My WebLink About2003-08-12; City Council; 17278; Reporting terms and conditions: Orlik v. CityCITY OF CARLSBAD - AGENDA BILL 0 AB# 17,278 MTG. 811 2/03 DEPT. CA TITLE: REPORTING OUT THE TERMS AND CONDITIONS OF DEPT. HD. THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN ORLlK V. CITY OF CARLSBAD. ET.AL. CASE NO. GIN025557 CITY ATTY. CITYMGR. % RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: At the closed session hearing of April 15, 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 retired Judge Hoffman and approved by Judge Mike Anello in San Diego Superior Court for a total of $1.35 million. Carlsbad’s share was $500,000. Attached is a copy of the Request for Dismissal and Uniform Qualified Assignment and Release 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 $500,000. EXHIBITS: 1. Request for Dismissal 2. Uniform Qualified Assignment and Release .c.- -- ATTORNN OR PARTY WITHOUT ATTORNFf fNme and AddreJsl: DALEY & HEFT MITCHELL D. DEAN, ESQ. (BAR #128926) DALEY & HEFT 462 STEVENS AVENUE, SUITE 201 SOLANA BEACH, CA 92075 ATTORNNFOR(Name): Def. CITY OF CARLsBm Insert name of court and name of judldal district and branch court, If any: SUPERIOR COURT OF THE STATE OF CALIFORNIA, 325 SOUTH MELROSE DRIVE, VISTA CA 92083 PLAINTIFF/PETITIONER: MICHAEL OWIK I DEFENDANT/RESPONDENT CITY OF CARLSBAD, ET AL . REQUEST FOR DISMISSAL a Personal Injury, Property Damage, or Wrongful Death 0 Family Law 0 Eminent Domain 0 Motor Vehicle mother CASE NUMBER: GIN02 5 5 57 Other (specify) I - A conformed copywlll not be returned bythe clerk unless a method of return is provided with the document. - 1. TO THE CLERK Please dismiss this action as follows: a. (1) With prejudice (2) Without prejudice b. (1) D Complaint (2) 0 Petition (3) D Cross-complaint filed by (name): (4) 0 Cross-complaint filed by (name): (5) (6) Other (specifyl:* Entire action of all parties and all causes of action on (date): on (date): Plaintiff/Petitioner D DefendantlRespondent * If dismissal requested is of specified patties only, of tpecified causes of action only, or of specified crosscornplaints only, so state and identify the parties, causes of action, or cross-complaints to be dismissed. 0 Cross-comp tainant 2. TO THE CLERK Consent to the above dismissal is hereby given.** Date: (SIGNATURE) t (TYPE OR PRINT NAME OF nATTORNN UPARTY WITHOUT ATTORNEY) Attorney or party without attorney for: **if a cross-complaint - or Response (Family Law) seeking affirmative relief - is on file, the attorney for cross-complainant (respondent) must sign this consent if required by Code of Civil Procedure section 581(i) or 0). IxI Cross-complainant 0 Plaintiff/Petitioner 0 DefendanVRespondent (T b completed by clerk) jui 0 9 2003 Dismissal entered as requested on (date): 4. 3*R Dismissal entered on (date): as to only (name): 5. 0 bismissai not entered as requested for the following reasons (speciw): Attorney or party without attorney notified on (date): 3 u !. 1 1 2003 , Attorney or party without attorney not notified. Filing party failed to provide 0 a copy to conform 0 means to return conformed copy I Deputy T, BUTACAN Clerk, by Date: JUL 1 t 2003 Code of Civll Procedure, 5 581 81 seq Cal. Ruleb of Coun, NI~S 383, 1233 Form Adopted by the Judicial Coundl Ot California 982(a)(5) [Rev. January 1.1997) Mandatory Form REQUEST FOR DISMISSAL Attorney or party withouf attorney (Name and Address): MITCHELL D. DEAN, ESQ. LISA M. LASSO, ESQ. DALEY & HEFT, Attorneys at Law 462 Stevens Avenue, Suite 201 Solana Beach, CA 92075 ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO TELEPHONE NO: (858) 755-7870 BAR NO:128926 Defendant CITY OF CmLSBAD - X CENTRAL COURT, 220 W. BROADWAY, SAN DEGO, CA 92101-3409 FAMKY COURT, 1501-55 SIXTH, SAN DEGO, CA 92101-1946 EAST COUNTY COURT, 250 E. MAIN ST., EL CAJON, CA 92020-3913 SOUTH BAY COURT, 500 THIRD, MULA VISTA, CA 91910-5694 1 - - NORTH COUNTY BRANCH, 325 S. MELROSE DR., VISTA, CA 92083-6627 - - I , PLAINTIFF(S)/PETlTIONER(S): MICHAEL ORLIK YL.I I. Lv DEFENDANT(S)/RESPONDENT(S): DORA ALvARADo DATE: at I JUDGE: Michael T. Anello nmm. TQ PROOF OF SERVICE BY U.S. MAIL (CCP 1013(a)(l) & (3) & Local Rules, division 11, Rule 5.2C) 1 I, the undersimed, declare that: I pf, the County of San Diego, California Lrl, Solana Beach, California. CASE NUMBER GIN02 5 557 I .. am over the age of 18 years and not a party to the case; I am employed in, or am a resident where the mailing occurs; and my business/residence address is: 462 Stevens Avenue, Suite 'a I further declare that I am readily familiar with the business' practice for collection and processing of correspondence for mailing with the United States Postal Service; and that the correspondence shall be deposited with the United States Postal Service this same day in the ordinary course of business. I caused to be served the following document(s): (SET FORTH THE EXACT TITLE OF THE DOCUMENT(S) SERVED AND FILED): 1. Conformed Copy of Request for Dismissal (Entire Action). by placing a true copy of each document in a separate envelope addressed to each addressee, respective1 specify the name of the tlarty so served, the nature and status of the party's involvement in the case, i.e. plaintiff; cle&i&, cross-complainant, etc.; and the name, address and phone number of the party's counsel of record, ifany.} follows: (For civil cases, SEE ATTACHED MAILING LIST I then sealed each envelope and, with postage thereon fully prepaid, I deposited each in the United States Postal Service at Solana Beach, California. I placed each for deposit in the United States Postal Service, this same day, at my business address shown above, following I t,: , ordinary business practices. f.. erjury under the laws of the SUPCT 9Aw.l-98) PROOF OF SERVICE BY MAIL, -I.,-. - Uniform Qualified Assign'ment and Release 'mClairnant" Michael Otiik "Assignor" City of Carlsbad and Kempes "Assignee" Travelers Life and Annuity "Annuity Issuer" Travelers Insurance Company "Effective Date" This Agreement is made and entered into by and between the parties hereto as of the Effective Date with reference to the following facts: A. Claimant has executed a settlement agreement or 4. The obligation assumed by Assignee with respect to any required payment shall be discharged upon the mailing on or before the due date of a valid check in the amount specified to the address of record. release dated ,2003 (the "Settlement Agreement") that provides for the 5. This Agreement shall be governed by and Assignor to make certain periodic payments to or for the benefit of the Claimant as stated in State of California. Addendum No. 1 (the "Periodic Payments"); and interpreted in accordance with the laws of the B. The parties desire to effect a "qualified assignment" within the meaning and subject to the conditions of Section 130(c) of the Internal Revenue Code of 1986 (the "Code"). NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the parties agree as follows: . 1. 2. 3. The Assignor hereby assigns and the Assignee hereby assumes all of the Assignor's liability to make the Periodic Payments. The Assignee assumes no liability to make any payment not specified in Addendum No. 1. The Periodic Payments constitute damages on account of personal injury or sickness in a case involving physical injury or physical sickness within the meaning of Sections 104(a)(2) and 130(c) of the Code. The Assignee's liability to make the Periodic Payments is no greater than that of the Assignor immediately preceding this Agreement. Assignee is not required to set aside specific assets to secure the Periodic Payments. The Claimant has no rights against the Assignee greater than a general creditor. None of the Periodic Payments may be accelerated, deferred, increased or decreased and may not be anticipated, sold, assigned or encumbered. 6. The Assignee may fund the Periodic Payments by purchasing a "qualified funding asset" within the meaning of Section 130(d) of the Code in the form of an annuity contract issued by the Annuity Issuer. All rights of ownership and control of such annulty contract shall be and remain vested in the Assignee exclusively. 7. The Assignee may have the Annuity Issuer send payments under any "qualified funding asset" purchased hereunder directly to the payee($) specified in Addendum No. 1. Such direction of payments shall be solely for the Assignee's convenience and shall not provide the Claimant or any payee with any rights of ownership or control over the "qualified funding asset" or against the Annuity Issuer. 8. Assignee's liability to make the Periodic Payments shall continue without diminution regardless of any bankruptcy or insolvency of the Assignor. 9. In the event the Settlement Agreement is declared terminated by a court of law or in the event that Section 130(c) of the Code has not been satisfied, this Agreement shall terminate. The Assignee shall then assign ownership of any "qualified funding asset" purchased hereunder to Assignor, and Assignee's liability for the Periodic Payments shall terminate. 20. This Agreement shall be binding upon the 11. The Claimant hereby accepts Assignee's respective representatives, heirs, successors assumption of all liability for the Periodic and assigns of the Claimant, the Assignor and Payments and hereby releases the Assignor the Assignee and upon any person or entity that from all liability for the Periodic Payments. may assert any right hereunder or to any of the Periodic Payments. Assinnor:lenPIo f Carlsbad By: LaG5-2- Authorized Representative 51.3 3/0 3. Title c 17'1 C)TTORNE)r Assignor: Kempes Assianee: Travelers Life and Annuitv By: Authorized Represen Authorized Representative Title fitle L Claimant: \wi J& 1 Michaelbrlik Claimant's Attorney Dennis Schoville