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HomeMy WebLinkAboutBorunda, Richard and Alma; 2021-01-12;SETTLEMENT ACREEMEN'Ir AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (hereafter referenced as the "Agreement"), is entered into by Plaintiff Richard Borunda aka Richard Bomuda, by and through the successor ;of his estate and estate representative, Alma Borunda ("Plaintiff') and Defendant City of Carlsbad. ("Defendant"). Plaintiff and Defendant may be collectively referred to as the "Parties." RECITALS 1.Plaintiff has asserted a civil claim against Defendant including but not limited to those alleged in the lawsuit entitled Bornuda v. City of Carlsbad filed on or about July 26, 2019 in San Diego County Superior Court Case No. 37-2019-00040306 (hereafter referred to as the "Lawsuit"). 2.On March 30, 2020, Plaintiff died from a condition unrelated to the incident that is the subject of the Lawsuit. Plaintiff's widow, Alma Borunda, is the representative of Plaintiffs estate and successor-in-interest to this Lawsuit. 3.Defendant has, and continues to, deny liability to Plaintiff under the Complaint, and has further denied the nature and extent of damages alleged. 4.The Parties through legal counsel engaged in negotiations and have reached a final global resolution and settlement of any and all current and potential claims and causes of action by Plaintiff. This Agreement is entered into for the purposes of resolving and releasing all claims and causes of action asserted, and all those that could have or may be asserted, and for purposes of dismissing the entire Lawsuit with prejudice. AGREEMENT AND RELEASE I. PAYMENT AND DISMISSAL Plaintiff agrees to dismiss the Lawsuit with prejudice, and to settle and release Defendant (and all Released Parties as identified herein) from any and all known, unknown, anticipated and unanticipated claims and damages arising out of, in any way connected to, or resulting from the incident(s)/relationship(s) alleged in the Lawsuit, in exchange for the total sum of Fifteen Thousand Dollars ($15,000.00), each side to bear its own attorneys' fees and costs ("Settlement Amount"). Plaintiff agrees that payment herein and any obligation to tender the Settlement Amount is expressly conditioned upon the releases and commitments made herein. The check shall be made payable to the "Law Office of Paul Mankin, Client Trust Account." The check shall be delivered to tile Law Office of Paul Mankin within 10 days of the full execution of this Agreement. Not later than seven (7) days after tender of the Settlement Amount by (or on behalf of) Defendant, cqunsel for Plaintiff shall file a Request for Dismissal of the entire action with prejudice. Page 1 of 5 2.PAYMENT CHARACTERIZATION With respect to the Settlement Amount, Plaintiff is responsible for the payment of any and all amounts that governmental or tax authorities may claim are due, if any. The settlement and release terms outlined herein are not dependent upon any specific characterization of the claims/injuries/damages being released/satisfied, and the effect of the provisions herein shall not be affected in any way but any sums owed or withheld in relation to such characterization, if any. Plaintiff acknowledges that Defendant is relying on, among other things, this specific provision in entering into this Agreement, in paying the Settlement Amount, and that this Agreement is not contingent upon any particular tax characterization or treatment of the Settlement Amount. 3.RELEASE In consideration of the foregoing payment(s), Plaintiff hereby irrevocably and unconditionally releases and forever releases and discharges Defendant as well as its current and former agents, employee, council members, officers, directors, volunteers, affiliates, contractors, administrators, successors, assigns, insurers, reinsurers, attorneys and representatives (all of whom are collectively referred herein to as "Releasees Parties") of and from any and all claims, causes of action, complaints, charges, demands, liabilities, losses, damages, injuries, costs or expenses of any kind whatsoever (including attorney's fees and costs), known or unknown, suspected or unsuspected, ilhat Plaintiff may now have or has ever had against Released Parties by reason of any act, omission, transaction or event occurring up to and including the date Plaintiff signs this Agreement. Plaintiff further agrees to defend, indemnify and hold Defendant (and Released Parties) harmless from and against liens asserted for medical or related care of Plaintiff as a result of the events/occurrences alleged in the Lawsuit. Plaintiff represents and warrants that if she is presently aware of a lien obligation asserted by State of California, Department of Health Care Services (Medi-Cal), Plaintiff will fully satisfy and discharge the lien obligation out of the Settlement Amount. Plaintiff represents and warrants that she has received no care or treatment for the injuries/damages alleged in this Lawsuit for which any sums remain due and owing, and Plaintiff acknowledges that Defendant is relying on this material representation in reaching the settlement outlined in this Agreement. To the extent any attorney fee/cost liens or liens associated with any expert-relatediwork commissioned on behalf of (or for the benefit of) Plaintiff for the Lawsuit (if any), Plaintiffifurther agrees to satisfy and discharge such liens out of the Settlement Amount, and agrees to defend, indemnify and hold Released Parties harmless from and against such liens, if any. Page 2 of 5 4. SECTION 11542 RELEASE Plaintiff expressly agrees that all rights Plaintiff may have under section 1542 of the Civil Code of the state of California are hereby waived, and Plaintiff acknowledges and understands that this Confidential Agreement has been executed with the express intent of extinguishing all obligations described herein and as provided in Section 1542 of the California Civil Code. Section 1542 provided as follows:• A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CROITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. IRE SERVE 113+1 6, COMPROMISE OF A DISPUTED CLAIM Plaintiff understands and acknowledges that liability is disputed by Defendant, that this Agreement constitutes a compromise of disputed claims and shall not be construed as an admission of liability by any of the Parties to this Agreement. The Parties enter into this Agreement solely to avoid the uncertainties, delay and expense of potential litigation and to buy their peace. 7. REPRESENTATIONS AND WARRANTIES a.In further consideration for the above-mentioned value and consideration provided by Defendant, and in settlement of the above-referenced claims and dispute, Plaintiff represents and warrants as follows: b.Plaintiff is competent and a legal adult of more than 18 years of age with the legal capacity to understand and to enter into this Agreement. c., Plaintiff thereby represents and warrants that she maintains complete authority to enter into this Agreement and to forever release, dismiss and discharge the claims, rights, demands, and causes ofaction, whether known or unknown, anticipated or unanticipated, arising out of, in any way connected to, or resulting from the Lawsuit. 8. FEE AND COST WAIVER The Parties to this Agreement agree to bear their own attorney's fees and costs for prosecution and/or defense of the subject matter and any other expenses for all matters related to or arising from the matter. Page 3 of 5 9.TAXES Defendant provided no tax advice or guidance to Plaintiff or counsel. Plaintiff expressly assumes the obligations, liabilities, and consequences if any, and of whatever nature, arising from the receipt of 'settlement proceeds as a taxable event or transaction. Plaintiff will hold Defendant harmless, defend and indemnity Defendant from any claims related to tax inquiry or tax liability which may apse. Any tax liabilities, debts, or investigations relating to or arising from such tax liabilities or debts are the responsibility of Plaintiff. 10.INTEGRATION This Agreement is the result of negotiation between the Parties and is the fully integrated and final expression of the settlement described herein and supersedes any and all previous written or oral communications. This Agreement may not be altered, changed or amended without a subsequent written document signed by all of the Parties. 11.INTERPRETATION This Agreement shall be deemed to have been executed and delivered within the State of California. The rights and obligations of the Parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California, without regard to choice of law rules. 12.SEVERABIL1TY In the event that any one provision or portion of this Agreement is later determined by a court of competent jurisdiction to be void or voidable, the Parties agree that any such language or provisions shall be severable, and that any such provisions so severed shall not affect the validity of the remainder of the Agreement subsequent to such severance. 13.ENFORCEABILITY The P4rties agree that the Court will retain jurisdiction to enforce this Agreement pursuant to CCP 664.6 The Parties agree that if either party seeks to enforce this Agreement, it may be done on an ex,parte application. Page 4 of 5