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Home My WebLink About2006-07-11; City Council; 18639; Pilot v CIF et all SettlementCITY OF CARLSBAD - AGENDA BILL 11 AB# 18,639 MTG. 7/11/06 DEPT. CA Title REPORTING OUT THE TERMS AND POKirtlTinMQ OP TUP QPTTI PMPKIT A55\s\jnui i luno \jr i nc oc i i L.CHICN i MO REQUIRED BY THE BROWN ACT IN PILOT V. GIF. ETAL. DEPT. HEAD CITYATTY. /fz?V? CITYMGR.^-^ RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: Mr. Pilot sued the California Interscholastic Federation and Carlsbad Police Officer Stephen J. Seapker for an altercation during a GIF wrestling match in which plaintiff claimed Officer Seapker defamed him. After some discovery the case was concluded when the Plaintiff decided to dismiss his daim against Officer Seapker. A copy of the release and settlement is attached. FISCAL IMPACT: There is no fiscal impact other than costs of defense. EXHIBITS: 1 -General Release and Settlement Agreement 2.Dismissal as to Defendant Seapker only. DEPARTMENT CONTACT: Ronald R. Ball, (760) 434-2891 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED Daaa CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D GENERAL RELEASE AND SETTLEMENT AGREEMENT Re: William Hamilton-Scott Pilot. Ill v. California Interscholastic Federation - San Diego Section, et al. Case No. GIC856581 This general release and settlement agreement [hereinafter "Agreement"] is entered into by William Hamilton-Scott Pilot, El and his agents, attorneys, servants, employees, representatives, and successors in interest [hereinafter "PLAINTIFF"], and inures to the benefit of Steven Seapker, his agents, officers, directors, attorneys, servants, representatives, employees, employer, predecessors, successors in interest, assignees, [hereinafter collectively referred to as "DEFENDANT"] concerning the subject of San Diego County Superior Court Case No. GIC856581 [hereinafter referred to as the "Incident"]. The above-named individuals and entities are hereinafter collectively referred to as the "Parties," with respect to the litigation and claims described below. PLAINTIFF Represents as Follows; (a) That William Hamilton-Scott Pilot, HI expressly has the authority to execute this Agreement, and that this Agreement as so executed will be binding upon the PLAINTIFF; and (b) That the representations set forth above shall endure forever and shall survive the execution of this Agreement and the settlement and dismissals of the action. 1. INTRODUCTION PLAINTIFF desires to enter into this Agreement in order to provide for full settlement and discharge of all claims between the Parties which have arisen, may arise and/or could arise, out of the subject Incident, upon the terms and conditions set forth herein. The provisions of Code of Civil Procedure Section 664.6 shall apply to this Agreement. 2. CONSIDERATION BETWEEN PARTIES a) DEFENDANT STEVEN SEAPKER will agree to waive recovery of all fees and costs associated with the defense of this action. PLAINTIFF William Hamilton-Scott Pilot, IE will dismiss with prejudice the Complaint filed against DEFENDANT and will execute, and have his attorney execute, this Agreement. Page 1 of 6 *. 3. PLAINTIFFS' RELEASE a) PLAINTIFF William Hamilton-Scott Pilot, m hereby fully and forever completely releases, acquits and discharges DEFENDANT from any and all claims, costs, demands, damages, attorneys' fees, and rights which arise from, or are directly or indirectly related to, or are connected with, or caused by, the Incident. b) PLAINTIFF by his signature on this Agreement, specifically represents and authorizes DEFENDANT to rely on said representation, that no attorneys fee lien(s) have been, or will be, placed upon this settlement. PLAINTIFF further represents and warrants that this Agreement shall expressly constitute a waiver and release of any lien claim for services rendered and costs advanced by Robert Winkler on his behalf. This provision inures only to the benefit of STEVEN SEAPKER and does not constitute any waiver of fees, costs or lien on behalf of Robert Winkler. 4. DISMISSAL PLAINTIFF shall cause his attorney to execute a Request for Dismissal, with prejudice, dismissing Case No. GIC856581 in its entirety. 5. WAIVER OF SECTION 1542 There is a risk that, after the execution of this Agreement, PLAINTIFF will manifest new damage, the scope, location, and character of which is unknown and/or not discovered at the time this Agreement is signed. There is a risk that the damage of which PLAINTIFF and his attorney presently are aware may become more serious, or otherwise increase in magnitude (qualitatively and/or quantitatively). PLAINTIFF shall, and hereby does, assume the above-mentioned risks. This release is expressly intended to cover and include all future damages, defects and discoveries, including all rights and causes of action arising against the DEFENDANT therefrom. PLAINTIFF is aware, and has been advised by his attorney, of the provisions of California Civil Code section 1542, which provides: 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. Page 2 of 6 PLAINTIFF hereby expressly waives the provisions of said Section 1542 as to all matters within the scope of the claims released hereby. PLAINTIFF hereby warrants and guarantees that he has full and complete authority to release all such claims on behalf of himself, his heirs, assigns and successors in interest. 6. ASSUMPTION OF RISK PLAINTIFF fully understands and declares that if the facts with respect to which this Agreement is executed are found hereafter to be different from the facts now believed to be true, PLAINTIFF assumes the risk of such possible difference in facts and hereby agrees this Agreement shall be in effect and shall remain in effect notwithstanding such difference in facts. PLAINTIFF represents and covenants that he is fully informed regarding all facts related to this Agreement and will not seek to void, rescind, set aside or alter this Agreement on an assertion of mistake of fact or law. 7. NO ADMISSION OF LIABILITY It is expressly understood, acknowledged and agreed to by the Parties, that by reason of entering into this Agreement, no party admits, expressly or impliedly, any fact or liabili ty of any type or nature with respect to any matter, whether or not referred to herein, or the sufficiency of any claims, allegations, assertions, or positions of any party; no party has made any such admissions; and this Agreement is entered into solely by way of compromise and settlement only. 8. NO PRIOR ASSIGNMENT OR TRANSFER Each party to this Agreement represents and warrants there has been no assignment or other transfer or any claims or causes of action which they are releasing pursuant to the terms of this Agreement. Page 3 of 6 .. •„) 9. MISCELLANEOUS PROVISIONS 9.1 Entire Agreement: This Agreement constitutes the full and entire Agreement between the Parties hereto and such Parties acknowledge that there is no other Agreement, oral and/or written, between the Parties hereto. 9.2 Authority to Enter Agreement : This Agreement is the result of arms-length negotiations. 9.3 Final Agreement PLAINTIFF acknowledges that (1) this Agreement and its reduction to final form is the result of extensive good faith negotiations between the Parties through their respective counsel; (2) said counsel has carefully reviewed and examined this Agreement for execution by the Parties; and, (3) any statute or rule of construction that ambiguities are to be resolved against the drafting party should not be employed in the interpretation of this Agreement. 9.4 Binding Agreement: This Agreement is and shall be binding upon and shall inure to the benefit of the predecessors, subsidiaries, successors, assigns, parties, agents officers, employees, employer, associates, legal representatives, heirs, executives and/or administrators of each of the Parties hereto. 9.5 Interpretative Law: This Agreement is made and entered into the State of California and shall, in all respects be interpreted, enforced and governed by and under the laws of the State of California. 9.6 Modifications: This Agreement may be amended or modified only by a writing signed by all Parties to this Agreement. 9.7 Paragraph Headings: Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. Page 4 of 6 5 9.8 No Inducement: PLAINTIFF warrants that no promise or inducement has been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of any of the Parties or their representatives, concerning the nature and extent of the injuries, damages or legal liability thereof. PLAINTIFF further represent that they have been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement, and they have been advised by legal counsel with respect to the meaning of this Agreement and its legal effect. 9.9 Attorneys Fees and Costs in this Action: PLAINTIFF will bear their own attorney's his own costs incurred in connection with the prosecution and defense of the subject Action. PLAINTIFF specifically release DEFENDANT from attorneys' fees and costs, including costs of investigation. Should any action be necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys fees. 9.10 Counterparts: This Agreement may be executed in counter-parts 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. 9.11 Effective Date: This Agreement to be effective as of the date all signatures are obtained. IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and mutual release on the date affixed by their signature. Dated: Dated: >^lainliffWilliPlaintfff William HajjHtton-Sp&tf Pilot, El Stevenx<PS#apl£^rxl!>efendant Page 5 of 6 „. y. I acknowledge the above General Release and Settlement Agreement has been explained to my client, and, as necessary, translated. I also approve the above as to form andcpntent. Dated: Dated: Robert J7 Winkler, Attorney lor -Flamtiii, William/Hamilton-Scott Pilot, IE Samuel ®, 0az2J6, Attorney for Defendant, Steven J. Seapker Page 6 of 6 rfTTOKNEY OR PARTY WITHOUT MTO«NI=Y {Nvn» ana Menu)- ROBERT W. BROCKMAN, JR. (SEN 124S4S) SAMUEL C. GAZ20 (SBN 212105) DALEY & HEFT, LLP 462 STEVENS AVE. ,' STE. 201 SOLANA BEACH, CA 92075 ATTORNEY FOR fltoi»j; DEFENDANT r STEVEN J. SEAPKER TELEPHONE NO.; (858) 755-5666 Inuri nam» of coutl and rwnx g( judicial district ana Dranon eoun. if any: SUPERIOR COURT OF CALIFORNIA NORTH COUNTY DIVISION t>i'ego PLAINTIFF/PETITIONER: WILLIAM HAMILTON-SCOTT PILOT, III DEFENDANT/ReSPONDENT: CALIFORNIA INTERSCHOLASTIC FEDERATION-SAN DIEGO SECTION, -et al. FOR COURT USE ONLY REQUEST FOR DISMISSAL I" 'J Personal Injury, Property Damage, or Wrongful Death Cj Motor Vehicle | I Other \_'_\ Family Law f" 1 Emlnant Domain I X I Other (specify): Defamation CASE NUMBER1. JIN050320 I — A conformed copy will not be returned by the clerk unless a method of return Is provided with the document 1. TO THE CLERK: Please dismiss this action as follows: a. (1) CJSj With prejudice (2) [^1) Without prejudice b. (1) [X" I Complaint (2) f~~l Petition (3) I I Cross-complaint filed by (name): (4) £ | Cross-complaint filed by (name): (5) f. T! Entire action of all parties and all causes of action (6) L_J Other (specify):' Date: May 23, 2006 SAMUEL C. GAZZO (TYPE OH PRJNT NAMe Of [_X_J ATTORNEY [ | PARTV WITHOUT ATTORNEY) • if dismissal requested Is of tpuddod partias only, of specified causes of action only, or of tpocrfiad croas-complalnts only, so tlalo and identify (ho panics, causes of action, or o-otc-complarUa to be dismissed on (date): on (date): Attorney or party without attorney for: Defendant STEVEN J. SEAPKER I "I PlaintifWPetitioner I " ~l Cross-complainant I X I Defendant/Respondent 2. TO THE CLERK: Consent to the above dismissal Is hereby given.' Date: May 23, 2006 ROBERT J. WINKLER (TYPE ORPRINT NAME OF |_x jATTORNEv [~IPARTY wrrHOuT ATTORNEY) Attorney or p si ly without attorney for: ' Plaintiff HAMILTON-SCOTT PILOT, III' If a crosa-comptalnl - or Rosponso (Famjy Law) Making atflrmatlva mliol - is on fito, the eltornay for croaa-oompblnani (fospondanl) must aign this conttnt IT required by Coda or CM Procedure tecllon 531(,) or (j). WILLIAM nn Plaint! L~l Cross-complainant 'etitioner | j Defendant/Respondent o, . ,»«• OM "LA/ (To bojeompteted by clerk) 3. [\^_l Dismissal entered as requested on (date): 4. [ ___ I Dismissal entered on (date): as to only (name): 5. I ... .1 Dismissal not entorod as requested for the following reasons (specify): 6. L_L^a- Attorney or party without attorney notified on (date): b. Attorney or party without attorney not notified. Filing party failed to provide f __ I a copy to conform CID means to return conformed copy Date;Clerk, by , Deputy Form Adopica ov ma Juatclal Council of tttlaXS) |Rtv. January \. 1S87] Mamlalory Form REQUEST FOR DISMISSAL Code o' Dvll Procedure, § 4Sl el seq. Cal. Rulcior Coun, rul« 38'J, I233