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HomeMy WebLinkAboutLopez, Maria Beatrice Vasquez; 2021-11-17;SETTLEMENT AGREEMENT AND GENERAL RELEASE The parties to this Settlement Agreement and General Release of Claims (the "Agreement") are plaintiff MARIA BEA TRICE VASQUEZ LOPEZ (hereinafter "RELEASOR") on her own behalf; and the defendant CITY OF CARLSBAD, on its own behalf and on behalf of its directors, employees, agents and subsidiaries (collectively "CARLSBAD"). This Agreement is for the benefit ofRELEASOR and CARLSBAD (collectively the "Parties"). FOR AND IN CONSIDERATION OF a valid check in the sum of Forty Thousand Dollars ($40,000.00), payable to "Rosenberg, Shpall and Zeigen, APLC, in trust for Maria B. Vazquez Lopez". RELEASOR and her attorney of record agree to the following Terms and Conditions of this General Release: RECITALS A. MARIA BEATRICE VASQUEZ LOPEZ (hereinafter "RELEASOR") has alleged that she suffered a personal injury related to the trip and fall that occurred on October 11, 2018, on Pio Pico Drive in The City of Carlsbad, State of California; B. All those various claims and causes of action that are at issue and/or are related to that certain litigation pending in the Superior Court of the State of California in and for the County of San Diego, entitled MARIA BEATRICE VASQUEZ LOPEZ v CITY OF CARLSBAD, Case No. 37-2020-00036345-CU-PO-NC (the (the "Action"); C. Defendant CITY OF CARLSBAD, on its own behalf and on behalf of its directors, employees, agents and subsidiaries will be referred to as "CARLSBAD"; D. RELEASOR desires to release CARLSBAD from all possible liability, known or unknown, in connection with the Action pursuant to the full and timely performance of the following Terms and Conditions in the manner prescribed herein. TERMS AND CONDITIONS 1. Incorporation of Recitals. The Parties incorporate herein all of the above recitals as if fully set forth in the body of this Agreement. 2. Good Faith Settlement. The RELEASOR hereto desires to resolve all aspects of the Action that involve each of them and to release CARLSBAD from all possible liability, known or unknown, in connection with eh Action, pursuant to the full and timely performance of the Terms and Conditions in the manner prescribed herein. The Parties hereto agree that the settlement embodies in this Agreement is made in good faith. 3. Benefit of Counsel. The advice of legal counsel has been obtained by RELEASOR in connection with all aspects of the Action and prior to entering into this Agreement. RELEASOR therefore voluntarily executes this Agreement on behalf of herself, each of her relatives, issue, heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, and all persons, firms, associations and/or corporations connected with them, including their II Page Doc ID: 818e6b48c60d750f06e1f6d8dd292fe8040ab642 attorneys, with full knowledge of its significance and with the express intention of affecting its legal consequences. RELEASOR is not relying on any representations, warranties or advice as to the rights, obligations, and terms of this Agreement from CARLSBAD or their attorneys. 4. Payment to RELEASOR. In consideration for the full and timely performance of each of the Terms and Conditions set forth in this Agreement, and in full and final settlement of the Action, RELEASOR and her attorney shall receive the total sum of$40,000.00, in the form of a draft or check payable to "Rosenberg, Shpall and Zeigen, APLC, in trust for Maria B. Vazquez Lopez". The settlement check or draft for the above sum shall be delivered to Chad Edwards, Esq. with Rosenberg, Shpall & Zeigen, APLC, once a fully executed copy of this Agreement and an executed "Dismissal with Prejudice of the Entire Action and All Parties" has been delivered to: Ricardo Baca, Esq. Dean Gazzo Roistacher, LLP 440 Stevens A venue, Suite I 00 Solana Beach, CA 92075 5. Release of CARLSBAD by RELEASOR. In consideration for the full and timely performance of all Terms and Conditions of this Agreement, RELEASOR, on behalf of herself and on behalf of each of her, issue, heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, assigns, and all persons, firms, associations and/or corporations connected with her, including her/his attorneys, hereby release and forever discharge CARLSBAD, and all their employees, trustees, predecessors, successors, assigns, subsidiaries, parent companies, affiliated and related entities, present and former officers, directors, principals, agents, employees, servants, representatives, and all persons, firms, associations and/or corporations connected with them, including without limitation their insurers, sureties and attorneys, who were, are or may ever become liable to RELEASOR of and from any and all claims, demands, causes of action, obligations, liens, taxes, damages, losses, costs, attorneys' fees and expenses of every kind and nature whatsoever, known or unknown, fixed or contingent, including any and all rights to subrogation therefore, which RELEASOR, or her/his family may have had, now have or may hereafter have against CARLSBAD by reason of any matter, cause or thing arising out of and/or connected with the slip and fall incident that took place on October 11, 2018, on Pio Pico Drive in The City of Carlsbad, State of California, including without limitation, all claims and disputes at issue in the Action, any and all claims for incidental, consequential, ensuing and/or resulting damage there from, the prosecution of the complaint, and the defense, handling and/or settlement of the Action, as well as any and all matters raised and/or which could have been raised in the Action or as a result of the slip and fall incident that took place on October 11, 2018, on Pio Pico Drive in The City of Carlsbad, State of California. 6. Waiver. RELEASOR, on behalf of herself and her family, hereby acknowledge that there is a risk that, subsequent to the execution of this Agreement, she may incur, suffer or sustain injury, loss, damage, costs, attorneys' fees, expenses, or any of these, which are in some way caused by and/or connected with the persons, entities and/or matters referred to in the Action, or which are unknown or unanticipated at the time this Agreement is executed, or which are not presently capable of being ascertained. Further, RELEASOR acknowledges that there is a risk 21Page Doc ID: 8f8e6b48c60d750f06e1f6d8dd292fe8040ab642 that such damages as are presently known may become more serious than she now expects or anticipates. Nevertheless, RELEASOR expressly acknowledges that this Agreement has been negotiated and agreed upon in light of those realizations and she thereby expressly waives all rights she may have in such unsuspected claims. In so doing, RELEASOR has had the benefit of counsel, and has been advised of, understands and knowingly, voluntarily and specifically waives all rights she may have under California Civil Code Section 1542, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HA VE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 7. Indemnity. This Agreement is intended to, and RELEASOR warrants that it will, dispose of all liability of CARLSBAD to RELEASOR, her/his relatives, issue, attorneys, agents, heirs, executors, administrators, successors, and assigns. RELEASOR, on behalf of herself and on behalf of her/his issue, relatives, heirs, executors, administrators, attorneys, and/or agents, agree to and will hold harmless and indemnify CARLSBAD of and from any and all liability for any claims arising out of the slip and fall incident that took place on October 11, 2018, on Pio Pico Drive in The City of Carlsbad, State of California, including, but not limited to any and all liens related to any past, present or future medical care. It is expressly agreed and acknowledged that Plaintiffs attorney of record shall be responsible for satisfying any and all statutory rights, liens, claims or right of reimbursement or recovery which exist, or in the future may exist, including, but not limited to, any claims by the California Department of Health Care Services (DHCS) and any claims by CMS for medical care, goods, or services deemed to be related to the slip and fall incident that took place on October 11, 2018, on Pio Pico Drive in The City of Carlsbad, State of California, from the proceeds of the settlement reflected in this Agreement. RELEASOR and her attorney agree to defend, indemnify and hold CARLSBAD harmless from and against any and all statutory rights, liens, claims or right of reimbursement or recovery asserted by all healthcare providers, medical insurance carriers, or governmental entities which may have any interest in or claim against the proceeds of this settlement, expressly including, but not limited to the DHCS, pursuant to Health and Safety Code Section 14124. 70 et seq. and CMS pursuant to the Medicare Secondary Payer Act of 1980 and Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA). Rosenberg, Shpall & Zeigen, APLC, individually and on behalf of RELEASOR, agrees to satisfy any and all claims or liens out of the proceeds of the settlement and bears the burden of determining, negotiating and paying any such conditional payments. RELEASOR expressly agrees to satisfy any and all DHCS and CMS claims or liens out of the proceeds of this settlement. RELEASOR also waives any and all rights to a private cause of action for damages, pursuant to 42 U.S.C. 1395y(b)(3)(A). RELEASOR and her attorneys agree to forward to counsel for CARLSBAD documentation demonstrating satisfaction of the above described liens upon receipt of same. CARLSBAD reserve the right to withhold payment of the above referenced check or draft settlement funds until CARLSBAD is provided with a final lien letter (or similar documentation) reflecting, to CARLSBAD reasonable satisfaction, resolution of any of the above referenced liens. CARLSBAD further reserves the right to directly pay, at 3jPage Doc ID: 818e6b48c60d750f06e1f6d8dd292fe8040ab642 CARLSBAD sole discretion, any liens held by DHCS and/or CMS from the subject settlement funds, before disbursal of remaining settlement funds to RELEASOR. 8. Compromise. This Agreement is the result of a compromise of a disputed claim between RELEASOR and CARLSBAD, and it shall never at any time or for any purpose be considered an admission of liability, fault and/or responsibility by CARLSBAD, nor shall the payment of any sum of money in consideration for the execution of this Agreement constitute or be construed as an admission of any liability, fault or responsibility whatsoever by CARLSBAD. It is expressly acknowledged and understood by RELEASOR that CARLSBAD and each of them, continues to deny any and all liability, fault and/or responsibility for the matters alleged in the Action. 9. Attorneys' Fees. RELEASOR and CARLSBAD acknowledge and agree that they shall bear their own costs, expenses, consultant and expert fees, and attorneys' fees arising out of and/or connected with the slip and fall incident that took place on October 11, 2018, on Pio Pico Drive in The City of Carlsbad, State of California., the negotiation, drafting and execution of this Agreement, and all matters arising out of or connected therewith, except that, in the event any action is brought to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, expenses and costs in addition to all other relief to which that party may be entitled. I 0. Construction of Agreement. This Agreement is the product of negotiation and preparation by and among the Parties to the Action and their respective attorneys. RELEASOR, therefore, expressly acknowledges and agrees that this Agreement shall not be deemed prepared "or drafted by one party or another, or their attorneys, and will be construed accordingly. 11. Governing Law. This Agreement shall in all respects be interpreted in accordance with and governed by the laws of the State of California. 12. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties to the Action and their respective employees, trustees, predecessors, successors, assigns, subsidiaries, affiliated and related entities, present and former officers, directors, principals, agents, employees, servants, representatives, and all persons, firms, associations and/or corporations connected with them, including without limitation their insurers, sureties and attorneys. 13. Severability. If any provision or any part of any provision of this Agreement is, for any reason held to be invalid, unenforceable or contrary to any public policy, law, statute and/or ordinance, then the remainder of this Agreement shall be unaffected thereby and shall remain valid and fully enforceable. 14. Effective Date. This Agreement shall be immediately effective as of the date of its complete execution by RELEAS(?R. 15. Entire Agreement. This Agreement constitutes the entire understanding between RELEASOR and CARLSBAD with regard to the matters herein set forth. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between 41Page Doc ID: 8/8e6b48c60d750f06e1 f6d8dd292fe8040ab642 RELEASOR and CARLSBAD relating to the subject matter of this Agreement, which are not fully expressed herein. 17. Retention of Jurisdiction by Court. RELEASOR and her/his attorney hereby acknowledge and agree that the Superior Court of the State of California in and for the County of San Diego has and shall retain jurisdiction over the Action for all purposes pertaining to execution and performance of the Terms and Conditions set forth herein. 18. Counterparts. This Agreement may be executed in several counterparts and all so executed shall constitute one agreement, which shall be binding upon all Parties hereto, notwithstanding that all Parties' signatures do not appear on the same page. Facsimile transmissions of signed counterparts shall have the same force and effect as an original. Dated : __ 1_1_1_1_5_1_2_0_2_1 __ Dated:_n_//~/lL Sf Page By: ___ JW_~ __ · ~_'<_vl_._f: _____ _ MARIA BEA TRICE VASQUEZ LOPEZ, Plaintiff/Releasor ROSENBERG, SHPALL & ZEIGEN ~--By: __ _:~"----'-=--------- Chad F. Edwards, Esq. Attorneys for Plaintiff/Releasor, MARIA BEATRICE VASQUEZ LOPEZ Doc ID: 8fBe6b48c60d750f06e1f6d8dd292fe8040ab642