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HomeMy WebLinkAboutGilley, Sawyer; 2022-02-17;SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (hereafter referenced as the "Settlement Agreement") is entered into by Plaintiff Sawyer Gilley ("Plaintiff'), and Defendants City of Carlsbad and Choicebox LLC dba Choice Juicery ( collectively hereinafter "Defendants"). All of the above-referenced individuals and/or entities may also be collectively referenced as the "Parties". RECITALS I. Plaintiff has asserted a negligence cause of action against Choicebox and a premises liability cause of action against all Defendants in the lawsuit entitled Gilley v. Choicebox LLC, et. al., in San Diego County Superior Court Case No. 37-2020-00046245-CU-PO-NC, (hereafter referred to as the "Lawsuit"). 2. Defendants have, and continue to, deny liability to Plaintiff under the First Amended Complaint, and have further denied the nature and extent of damages alleged. 3. The Parties have reached a final resolution and settlement of any and all potential claims and causes of action by Plaintiff against Defendants. This Settlement Agreement is entered into for the purposes of Plaintiff resolving and releasing all claims and causes of actions asserted, and all those could have or may be asserted against Defendants, including, but not limited to dismissing the Lawsuit, including any cross actions, with prejudice against all Defendants and DOES. AGREEMENT AND RELEASE 1. PAYMENT AND DISMISSAL Plaintiff agree to dismiss the Lawsuit against all Defendants with prejudice, and to settle and release any and all known, unknown, anticipated and unanticipated claims and damages arising out of, in any way connected to, or resulting from Plaintiffs alleged damages in any way connected to the allegations of Lawsuit against all Defendants and DOES in exchange for the total sum of ten thousand dollars ($10,000.00), each party to bear their own attorneys' fees and costs ("Settlement Amount"). 2. MANNER OF PAYMENT Within thirty (30) days of execution of this Agreement by the Parties, the Settlement Amount shall be sent to counsel for Plaintiff made payable to "Bradley Bostick Client Trust Account tbo Sawyer Gilley." In regard to apportionment of the Settlement Amount, Plaintiff agrees that five thousand dollars ($5,000) are to be paid on behalf of the City of Carlsbad and five thousand dollars ($5,000) are to be paid on behalf of Choicebox LLC dba Choice Juicery, through its insurance carrier, State Farm. Page 1 of6 Within seven (7) calendar days of receipt of the Settlement Amount, counsel for Plaintiff shall file a Request for Dismissal of the entire action with prejudice as to all Defendants and DOES. The Parties agree to bear their own attorneys' fees and costs. Within ten ( I 0) calendar days of the full execution of this Agreement, Defendant City of Carlsbad shall file a Request for Dismissal of its cross complaint against Defendant Choicebox LLC dba Choice Juicery with prejudice. The Parties agree to bear their own attorneys' fees and costs. With respect to the payment of the Settlement Amount, Plaintiff is responsible for the payment of any and all amounts governmental or tax authorities may claim are due, if any, out of the Settlement Amount. Plaintiff acknowledges that Defendants are relying on, among other things, this specific provision in entering into this Settlement Agreement, in paying the Settlement Amount, and that this Settlement Agreement is not contingent upon any particular tax characterization or treatment of the Settlement Amount. 3. RELEASE In consideration of the foregoing payment, Plaintiff hereby irrevocably and unconditionally releases, forever releases, and forever discharges Defendants, their current and former officers, directors, council members, employees, agents, corporate affiliates, contractors, predecessors, heirs, executors, administrators, successors, assigns, insurers, reinsurers, risk pools, joint powers authorities, and all other persons, firms, parent corporations, subsidiaries, affiliates, shareholders, attorneys and representatives, and all persons acting by, through or in concert with them (all of whom are collectively referred herein to as "Released Parties") from any and all claims, causes of action, complaints, charges, demands, liabilities, losses, costs, lien, or expenses of any kind whatsoever (including attorney's fees and costs), known or unknown, suspected or unsuspected, that 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 all Parties execute this Settlement Agreement (the "Released Claims"). Any such act, omission, transaction, or event, should it even arise, come to exist, or be discovered to have existed or arisen, released by this Settlement Agreement is intended to be and therefore so limited to those claims, whether known or unknown, that are related, whether derivative of or directly to, the underlying personal injury action. The Released Claims including, without limitation, any and all attorney's fees and costs related thereto, are forever barred by this Settlement Agreement and without regard to whether those claims are based on any alleged breach of a duty arising in a statute (both California and federal), contract (whether express, oral or implied) or tort; any alleged unlawful act, including without limitation any violation of state or federal law, statute or regulation; any other claim or cause of action; and regardless of the forum in which it might be brought. Page 2 of6 4. REPRESENTATIONS.AND WARRANTIES In further consideration for the above-mentioned value and consideration provided by Defendants, and in settlement of the above-referenced claims and disputes, Plaintiff and Defendants represent and warrant as follows: All Parties represent and warrant that they are ( or their agent, guardian, or representative is) competent and a legal adult in excess of 18 years of age with the legal capacity to understand and to enter into this Agreement. All Parties represent and warrant that they ( or their agent, guardian, or representative) have not previously assigned, transferred, granted or purported to assign, transfer or grant any of the claims, rights, demands or causes of action, whether known or unknown, anticipated or unanticipated, disposed of by this Settlement Agreement. All Parties thereby represent and warrant that they maintain complete authority to enter into this agreement and to forever dismiss and discharge the claims, rights, demands and causes of action, whether known or unknown, anticipated or unanticipated, arising out of, in any way connected to, or resulting from Plaintiff's allegations in the Lawsuit. 5. SECTION 1542 RELEASE Plaintiff expressly agrees that all rights she may have under section 1542 of the Civil Code of the State of California are hereby waived, and Plaintiff acknowledges and understand that this Settlement 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 provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH AND THAT IF KNOWN BY HIM OR HER, MUST WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." COMPROMISE OF A DISPUTED CLAIM The Parties understand and acknowledge that liability is disputed by Defendants and Plaintiff, that this Settlement Agreement constitutes a compromise of disputed claims and shall not be construed as an admission of liability by any of the Parties to this Settlement Agreement. The Parties enter into this Settlement Agreement solely to avoid the uncertainties, delay, and expense of potential litigation and to buy their peace. 6. FEE AND COST WAIVER The Parties to this Settlement 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 of6 8. SATISFACTION OF LIENS In addition to the terms outlined above, Plaintiff agrees to be responsible for the satisfaction of any and all liens which have arisen as a result of, or relating to, the incident( s) described in the Lawsuit herein referenced including, but not limited to, medical evaluation/treatment liens, Medi-Cal, Medicaid, and/or Medicare liens ( and any other governmental healthcare liens), subrogation claims, expert witness liens, liens contractually given for legal representation, and any other liens that may exist. With respect to liens that have been asserted through any government healthcare program related to the injuries alleged in this Lawsuit, Defendant shall pay such lien( s) directly, and deduct that amount from the Settlement Amount. Furthermore, Plaintiff will indemnify and hold Defendants, their attorneys and their insurance companies/risk pools/joint powers authorities harmless from and against any and all past, present or future claims and liens (medical, legal or otherwise), regardless of whether they were known or unknown at the time of executing this Settlement Agreement. If any governmental entity, or anyone acting on behalf of any governmental entity, seeks damages including multiple damages from Defendants, their attorneys and/or their insurance companies/risk pools/joint powers authorities relating to payment by such governmental entity, Plaintiff will indemnity and hold Defendants, their attorneys and their insurance companies/risk pools/joint powers authorities, harmless from any and all such damages, claims, liens, conditional payments and rights to payment, including any attorneys' fees sought by such entities. 9. NO FURTHER CLAIMS Each party to the Agreement expressly agrees that neither they nor their heirs, assigns, executors, administrators, agents, employees, affiliates, managers, owners, or successors, will continue and/or institute any legal or administrative proceedings against the other party, or any person or entity released in this Agreement, before any court, administrative agency, arbitrator, or any other tribunal whatsoever, by reason of any claim, liability or cause of action, whether known or unknown, being released herein. Further, none of the Parties shall aid, cause, or otherwise encourage others, to make, assert, or maintain any action, demand, or lawsuit against the other party, its partners, agents, affiliated entities, successors, employees, heirs, insurers, attorneys, or representatives. 10. INTEGRATION AND INTERPRETATION This Settlement 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. This Settlement 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 Page 4 of6 to choice of law rules. Venue for any action arising out of this agreement shall be in San Diego County, California. 11. SEVERABILITY In the event that any one provision or portion of this Settlement 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 Settlement Agreement subsequent to such severance. 12. ENFORCEABILITY The Parties agree that the Court will retain jurisdiction to enforce this Settlement Agreement pursuant to CCP §664.6. The Parties agree that if either party seeks to enforce this Settlement Agreement, it may be done on an ex parte application, and that the prevailing party shall be entitled to its reasonable attorneys' fees and costs. 13. COMPLETE AGREEMENT No party has made any statement, representation, or promise other than as set forth herein. Any representation, warranty, promise, or condition, whether written or oral, not specifically incorporated herein, shall not be binding upon any of the Parties and Plaintiff acknowledges that in entering into this Agreement, the Parties have not relied upon any representations, promises, or conditions not specifically set forth herein. {Remainder of page intentionally left blank} Page 5 of6 14. COUNTERPARTS This Settlement Agreement may be executed in counterparts, and, when all executed signatures pages are taken together, shall constitute a complete Settlement Agreement. An electronic signature has the same force and effect as an original signature. I HEREBY CERTIFY THAT I HAVE READ THIS ENTIRE AGREEMENT, KNOW THE CONTENTS THEREOF, FULLY UNDERSTAND THE SAME AND INTEND AND AGREE TO BE LEGALLY BOUND THEREBY, AND IN AGREEMENT WITH THE FOREGOING, I HAVE EXECUTED THIS RELEASE ON THE DATE PLACED NEXT TO MY SIGNATURE, IN THE STATE OF CALIFORNIA BY MY OWN FREE HAND. IN WITNESS THEREOF, Plaintiff hereto has executed this Settlement Agreement as of the date specified below. Dated: 1/27/22 ------- Dated: ______ _ Dated: Feb. 10, 2022 Sawyer Gilley Plaintiff Name: Title: Choicebox LLC dba Choice Juicery Name: Cindie K. McMahon Title: Assistant City Attorney City of Carlsbad Page 6 of6 14. COUNTERPARTS This Settlemeot Agreement may be eucuted in wumerparts, and, when all eucuted slpetnm pages are tabn together, shall COIIStitute a complete Settlement Agreement. An clectroolc signature bas the same foroe and effect as an original sipetun,. I DEREBV CER'IDY THAT I HAVE READ THIS ENTIRE AGREEMENT, KNOW TBE CONTENTS TBEREOP, nJLLY UNDERSTAND TBE SAME AND INTEND AND AGREE TO BE LEGALLY BOlJND THERl:BY, AND IN AGREEMENT WITH THE FOREGOING, I HAVE EDCUTED THIS RELEASE ON TBE DATE PLACED NEXT TO MY SIGNATVRE, IN TBE STATE OP CALU'ORNIA BY MY OWN PREE HAND. IN WITNESS THEREOF, PlalnliB'hereto bas eucuted this Seltlemeot Apemeat as of the date spec:ifled below. Dated: 1 l'Zl/22 Dated: Dated: _____ _ Sawyer Gilley PlalnliB' Name: µ 1t HA s tt Ac f\11<-'iiec,iv TIile: e, e; e,, Choicebox LLC db& Choice Juicery Name: Title: City of Carlsbad Page6of6