HomeMy WebLinkAboutPinkham, Robyn; Stalzer, Evan & Witgen, Wendy; 2022-08-08;DocuSign Envelope ID: FC1A3A6B-5ED8-4BB3-BD86-EE03CA6BEE79
GENERAL RELEASE
This Global Settlement Agreement and Release, dated June 21, 2022 (hereinafter
"Release"), is intended as a full and complete global and mutual release of any and all past, present
and future claims, lawsuits, demands, actions, causes of action, verdicts, judgments, and awards
of every kind that (1) John Pinkham, individually and as successor-in-interest to the survival action
of Robyn Pinkham, Evan Stalzer, and Wendy Witgen (hereinafter "Plaintiffs"), (2) the City of
Carlsbad (hereinafter "City''), and (3) North County Transit District (hereinafter "District"), have
or could have bad against each other, including all of their employees, officers, directors,
principals, attorneys, contractors, subcontractors, subsidiaries, affiliates, heirs, assigns,
predecessors, and successors in interest, insurers, indemnitors, indemnitees, employees, agents,
and representatives, and any other person or entity that is potentially responsible for the claims
and circumstances of the alleged incident and events on or about June 15, 2019, in the vicinity of
300 Carlsbad Village Drive, Carlsbad, California, and the adjacent parking lot as described in the
Action.
1. Release. Plaintiffs release and give up any and all claims and rights that Plaintiffs
may have against City and District through the date of this Release. In addition, Plaintiffs
specifically release, hold harmless and forever discharge City and District from all legal liability,
including any and all past, present and future claims, demands, actions, causes of action, verdicts,
judgments, and awards of every kind whatsoever for any physical, mental, and/or emotional
injuries, illnesses and/or conditions (including but not limited to all physical, mental, and
emotional injuries arising out of or related to the incident referenced in the Action, and including
the associated risks, natural progression, aggravation, consequences, future manifestation and
treatment, including but not limited to surgery and death, of all such injuries, illnesses and/or
conditions, and the fear of same), damages, costs, expenses, attorneys' fees, expert witness fees,
contribution, indemnity, reimbursement, compensation, and losses of any kind, now existing, or
which may hereafter arise, whether known or unknown, permanent or otherwise, including without
limitation all claims arising from or out of the events alleged to have occurred on or about June
15, 2019, in the vicinity of 300 Carlsbad Village Drive, Carlsbad, California in the City of
Carlsbad, California, including without limitation all claims asserted or that were or could have
been asserted against City and District in the action that was commenced in the Superior Court of
the State of California, County of San Diego, entitled JOHN PINKHAM, individually and as
successor-in-interest to the survival action of ROBYN PINKHAM, EV AN STALZER, an
individual, WENDY WITGEN, an individual,, Plaintiff, vs. SVF, LLC, a limited liability
company, City of Carlsbad, a public entity, North County Transit District, a public entity,
Defendants, Case No. 37-2020-0002446-CU-PO-NC, ("the Action"). Plaintiffs agree to a
stipulated dismissal with prejudice of the entire Action.
By executing this Release, it is Plaintiffs' intention to enter into a final agreement with City
and District, and to ensure that City and District have no further obligations to Plaintiffs for any
payments whatsoever for anything arising out of or in any way related to the Action. Plaintiffs
also warrant that Plaintiffs will not commence, prosecute, or permit to be commenced or
prosecuted against City or District, or any of them, any action or other proceeding based upon any
claims, demands, actions, causes of action, obligations, liabilities, or damages herein released.
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DocuSign Envelope ID: FC1A3A6B-5ED8-4BB3-BD86-EE03CA6BEE79
City and District release and give up and release any and all claims and rights that they
may have against each other through the date of this release arising from June 14, 2019, incident,
including but not limited to any and all past, present and future claims, demands, actions, causes
of action, verdicts, judgments, and awards of every kind whatsoever for any contribution,
indemnity, declaratory relief, reimbursement, compensation, and losses of any kind, now existing,
or which may hereafter arise, whether known or unknown, permanent or otherwise. City and
District agree to a stipulated dismissal with prejudice of the entire Action.
2. Payment. In consideration for this Release, an executed W-9 form for Plaintiffs'
Attorneys and a Dismissal of the entire Action with Prejudice covering each and all of the claims
in the Action, Plaintiffs have agreed to accept from City the .total amount of Two Hundred Fifty
Thousand Dollars ($250,000) and from District the total amount of One Hundred Fifty Thousand
Dollars ($150,000). On behalf of themselves and any other person or entity potentially responsible
for any of the events, incidents, and harm alleged in the Action, within 60 days after Plaintiffs
return originals of this fully executed Release, an executed W-9 form, authorization for the City
and District to file the signed Dismissal of the entire Action with Prejudice, and adequate proof of
Plaintiffs settlement of liens and subrogation claims, City and District will deliver to Panish Shea
& Boyle, LLP, the above described settlement drafts totaling ($400,000=$250,000(City) +
$150,000(District)) payable to "Panish Shea & Boyle, LLP, Client Trust Account" as full and final
settlement of all of Plaintiffs' claims arising from the events, incidents, and harm alleged in the
Action, and Plaintiffs agree to accept that amount as full and final settlement. Plaintiffs authorize
and instruct counsel for City and District to forward the settlement draft to Panish Shea & Boyle,
LLP, without further notice to Plaintiffs, and to file the signed Dismissal of the entire Action with
Prejudice immediately upon sending the checks to Panish Shea & Boyle, LLP. Plaintiffs authorize
and instruct their attorneys of record to dismiss with prejudice any and all lawsuits that are pending
at this time in any court to recover damages arising from any of the events, incidents, and harm
alleged in the Action. Plaintiffs accept this as full payment for entering into this Release. Plaintiffs
agree that they will not seek anything further including any other payment from City and District.
City and District agree that the payments to Plaintiffs are adequate consideration for their
agreements to dismiss each other and give up and release any and all claims and rights that they
may have against each other arising from the June 15, 2019, incident.
3. Liens. To the extent that there are any liens or subrogation claims of any kind with
respect to this Action, whether presently asserted or not, Plaintiffs will be solely responsible for
timely satisfying those liens and subrogation claims, including, without limitation any and all claim
and lien, any workers' compensation liens, health insurance liens, hospital liens, Social Security
liens, no-fault liens, PIP liens, attorneys' liens, and any liens or claims claimed by any healthcare
provider, insurance carrier, BRISA plan, TRICARE, Medi-Cal, Medicare, Medicare Part C and/or
Part D plan, Medicaid, or any other governmental entity. Plaintiffs jointly and severally agree to
indemnify, defend, and hold City and District hannless for any loss or payment City or District
may suffer, including claims, judgments, verdicts, awards, penalties, attorneys' fees, expert
witness fees, costs, damages and/or any other losses that arise out of Plaintiffs' failure to timely
satisfy any and all liens or claims.
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4. Medicare and Future Medical Services. Plaintiffs represent and warrant that they
are not currently Medicare beneficiaries; are not currently eligible for Medicare benefits; do not
have a reasonable expectation of Medicare eligibility within 30 months of the date of this Release;
have not received, and are not receiving, Medicare benefits for the alleged injuries and/or
conditions that form the basis of the Action; and will not apply for or seek to receive Medicare
benefits for the alleged injuries and/or conditions that form the basis of the Action.
Plaintiffs acknowledge and agree that they are solely responsible for the payment of any
and all unpaid medical bills, as well as any and all future medical, psychological, mental health,
and any therapy or counseling services and expenses, and that no other party hereto shall have any
responsibility for same. Plaintiffs agree to indemnify, defend, and hold City and District harmless
for any loss or payment they may suffer, including claims, judgments, verdicts, awards, penalties,
attorneys' fees, expert witness fees, costs, damages and/or any other losses that arise out of their
failure to pay any unpaid medical bills or future medical expenses, or otherwise protect Medicare's
interests, if any, under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b), et seq.
("MSPA"), and its associated regulations. Further, Plaintiffs expressly waive their rights, if any,
to bring a direct action against City and District or any of them under the MSP A.
Plaintiffs agree to provide City and District, within thirty (30) days of any request, any and
all information required for compliance with Section 111 of the Medicare Mandatory Insurance
Reporting requirement, 42 U.S.C. § 1395y(b)(7)&(b)(8). Plaintiffs agree to indemnify, defend,
and hold City and District harmless for any loss or payment they or any of them may suffer,
including claims, judgments, verdicts, awards, penalties, attorneys' fees, expert witness fees, costs,
damages and/or any other losses that arise out of Plaintiffs' failure to do so.
5. No Admissions. The parties agree that by settling this Action, no party shall be
deemed to have admitted liability or fault with respect to the alleged accident or incident giving
rise to the Action or any issues related to the Action and acknowledge and agree that each party
denies any liability or fault.
6. Binding Agreement. Each party is bound by this Release. Anyone who succeeds
to each party's rights and responsibilities, such as Plaintiffs' heirs or the executors of Plaintiffs'
estates, is also bound. This Release is made for each party's benefit and all who succeed to their
rights and responsibilities, including all of their employees, officers, directors, principals,
attorneys, contractors, subcontractors, subsidiaries, affiliates, heirs, assigns, predecessors, and
successors in interest, insurers, indemnitors, indemnitees, employees, agents, and representatives,
and any other person or entity that is potentially responsible for the claims and circumstances of
the alleged incident and events on June 15, 2019, at the Carlsbad Village in Carlsbad, California.
7. Civil Code Section 1542 Waiver. All rights that any party may have under the
provisions of Section 1542 of the Civil Code of the State of California ("Section 1542") or laws of
similar effect are expressly waived. Said section reads as follows:
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DocuSign Envelope ID: FC1A3A6B-5EDB-4BB3-BD86-EE03CA6BEE79
A general release does not extend to claims which the creditor 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.
For purposes of this Release, the term creditor means each party, and the term debtor means
every other party.
Notwithstanding Section 1542 of the Civil Code of the State of California, the parties
expressly consent and agree that this Release shall be given full force and effect according to each
and all of its express terms and provisions, including those relating to unknown and unspecified
claims, legal rights, civil rights, demands, suits, actions, causes of action, injuries of every kind,
physical, mental, and/or emotional injuries, illnesses and/or conditions, damages, costs, expenses,
attorneys' fees, expert witness fees, contribution, indemnity, reimbursement, compensation, and
losses of any kind, including everything that was or could have been asserted in the Action. The
parties acknowledge that the,y may hereafter oiscovei: claims or .fac.ts in addition:-to·, · ox-differ~nt
from, those that they now know·or believe to exist with respe~t tq the .su9ject t;®tt~r<:lftbis Release
and which, if known or suspected at the time of executi:rtg this Re1e.ase, may have mat~riaily
affected this settlement. Nonetheless, each party hereby knowingly and voluntarily waives any
and all right, claim or cause of action that might arise as a result of such different or additional
claims or facts.
8. Governing Law. Any issue concerning the interpretation of this Release or its
effect upon the parties hereto shall be governed by the laws of the State of California.
9. Complete Agreement. The parties understand and agree that this is the complete
agreement between the parties, and that there are no written or oral understandings, agreements or
terms directly or indirectly connected· with this agreement that are not expressly incorporated
herein.
10. Severability. In the event that any provision of this Release is found to be unlawful
or unenforceable, the remaining provisions shall remain in full force and effect.
11. Admissibility. The parties agree to the introduction into evidence of this Release
at any trial, hearing, or inquiry conducted subsequent to the date of execution hereof,
notwithstanding the provisions of Section 12.
12. Counterparts. This Release may be executed in one or more counterparts, all of
which taken together shall constitute one and the same Release. A signed counterpart is as binding
as an original. A facsimile copy of any signature on this Release is as binding as an original.
13. Attorneys' Fees and Costs. Each party will bear their own attorneys' fees, expert
witness fees, expenses, and costs.
14. Signature. The parties represent and warrant that each of them has read this
Release; is competent to understand and enter into this Release; is not under any restraint or duress;
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DocuSlgn Envelope ID: CE0CA56D-D655-41 FF-82B5-ECC26498F50D
has conferred with legal counsel; understand that by executing this Release, each of them has
released their legal rights as stated herein; understand the terms of this Release; understand that
each of them are relying on the promises, representations, and warranties contained herein; and
agree to the terms of this Release.
8/2/2022
Date
8/2/2022
Date
Date
Date
8/8/2022
bate
Date
Date: June _J 2022
{Client Files/01028/4/SFJS069785 l .DOCX}
John Pinkham
Plaintiff
By: _ft/)-________ ~
John Pinkham, as successor-in-interest to the
survival action of Robyn Pinkham
Plaintiff
By:-------------
Evan Stalzer
Plaintiff
By:~----------
Wendy Witgen
Plaintiff
By: -~---o-"-rtl.",~ ..... C~o'-'£--ty..a..?z--~si-r==7--D-is-tr-ic...;..t ~
Matthew 0. Tucker, Executive Director
By: ------------City of Carlsbad
P ANISH SHEA & BOYLE, LLP
David Rudorfer, Esq.
Attorneys for Plaintiffs JOHN PINKHAM,
individually and as successor-in-interest to the
survival action of ROBYN PlNKHAM, EV AN
STALZER, an individual, WENDY WITGEN, an
individual
5
DocuSign Envelope ID: FC1A3A6B-5ED8-4BB3-BD86-EE03CA6BEE79
has conferred with legal counsel; unqerstand that by executing this Release, each of them has
released their legal rights as stated herein; understand the terms of this Release; understand that
each of them are relying on the promises, representations, and warranties contained herein; and
agree to the terms of this Release.
Date
Date
8/1/2022
Date
Date
·Date
Date
Date: June __, 2022
{Client Filcs/0 I 028/4/SE/S069785 I .DOCX}
By:
By:
John Pinkham
Plaintiff
John Pinkham, as successor-in-interest to the
survival action of Robyn Pinkham
Plaintiff
By:__,~=-·_·.·-----
Evan Stalzer
Plaintiff
By:-------~---
Wendy Witgen
Plaintiff
By: ------------North County J:ransit District
By: ------------City of Carlsbad
P ANISH SHEA & BOYLE, LLP
David Rudorfer, Esq.
Attorneys for Plaintiffs JOHN PINKHAM,
individually and as successor-in-interest to the
survival action of ROBYN PIN.KHAM, EV AN
STALZER, an individual, WENDY WITGEN, an
individual
5
DocuSign Envelope ID: 9208A8C7-1ABF-4B74-8A74-8C326C67C189
has conferred with legal counsel; understand that by executing this Release, each of them has
released their legal rights as stated herein; understand the terms of this Release; understand that
each of them are relying on the promises, representations, and warranties contained herein; and
agree to the terms of this Release.
Date
Date
Date
8/1/2022
Date
Date
Date: June _, 2022
{Client Files/OJ 028/4/SFJS069785 I .DOCX)
By: --'-----------John Pinkham
Plaintiff
John Pinkham, as successor-in-interest to the
survival action of Robyn Pinkham
Plaintiff
By, ....... --~-------
Evan Stalzer
Plaintiff
By: ~0-lif-f:"'
Wendy Witgen
Plaintiff
By:-----------
North County Transit District
By: -------------
City of Carlsbad
P ANISH SHEA & BOYLE, LLP
David Rudorfer, Esq.
Attorneys for Plaintiffs JOHN PINKHAM,
individually and as successor-in-interest to the
survival action of ROBYN PINKHAM, EVAN
STALZER, an individual, WENDY WITGEN, an
individual
5
has conferred with legal counsel; understand that by executing this Release, each of them has
released their legal rights as stated herein; understand the terms of this Release; understand that
each of them are relying on the promises, representations, and warranties contained herein; and
agree to the terms of this Release.
Date
Date
Date
Date
Date .
August 3, 2022
Date
August
Date: :June-_l, 2022
{ Client Fi les/0 I 028/4/SF/S069785 l .OOCX}
By: ------------John Pinkham
Plaintiff
By: ------------John Pinkham, as successor-in-interest to the
survival action of Robyn Pinkham
Plaintiff
By: ------------Evan Stalzer
Plaintiff
By: ------------Wendy Witgen
Plaintiff
By: -------------
By:
North County Transit District
~~Jnc,~Jt,
City of Carlsbad
P ANISH SHEA & BOYLE, LLP
&
David Rudorfer, Esq.
Attorneys for Plaintiffs JOHN PINKHAM,
individually and as successor-in-interest to the
survival action of ROBYN PINKHAM, EVAN
STALZER, an individual, WENDY WITGEN, an
individual
5
Date: August 3, 2022
{Client Files/OJ028/4/SEJS0697851.00CX}
MCCUNE & HARBER, LLP
Dana J. McCune, Esq.
Dominic Quiller, Esq.
Attorneys for CITY OF CARLSBAD
DEVANEY PATE MORRIS & CAMERON,
LLP
e:Morris, Esq.
David R. Plancarte, Esq.
Attorneys for NORTH COUNTY TRANSIT
DISTRICT
6