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HomeMy WebLinkAboutMercado, Abraham & Mary; 2022-11-02;SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of A ll Claims (hereafter referenced as the ·'Settlement Agreeme nt") is ente red into by Plaintiffs Abraham Mercado and Mary Mercado, by and through her Guardian ad Litem Sara Fink (collectively hereinafter "Plaintiffs"), and Defendants City of Carlsbad and Robert Ferris (collectively hereinafter "Defendants"). All of the above-referenced individuals and/or entities may also be coll ectively referenced as the "Parties". RECITALS 1. Plaintiffs have asserted the fo llowing causes of action against all Defendants: (I) general negligence; and (2) motor vehicle negligence in the lawsuit entitled Mercado, et al. v. Ferris, et. al., in San Diego County Superior Court Case No. 37-2022-00007575-CU-PO-NC, (hereafter referred to as the "Lawsuit"). 2. Defendants have, and continue to, dispute liability to Plaintiffs under the Complaint, and have further disputed the nature and extent of damages all eged. 3. The Parties have reached a final resolution and settlement of any and all potential claims and causes of action by Plaintiffs against Defendants. This Settlement Agreement is entered into for the purposes of Plaintiffs 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 with prejudice against all Defendants and DOES. AGREEMENT AND RELEASE 1. PAYMENT AND DISMISSAL Plaintiffs 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 o f Lawsuit against all Defendants and DOES in exchange for the total sum of six hundred thousand dollars ($600,000.00), each party to bear their own attorneys' fees and costs ('·Settlement Amount"). Plainti ffs agree that any obligation to tender the Settlement Amount is expressly conditioned upon the releases and commitments made herein, as well as Defendants' prior receipt of a colllt order both approving the compromise for plaintiff Mary Mercado, a party who lacks capacity, and directing payment of the funds for Plaintiff Mary Mercado's portion of the Settlement Amount. Plaintiffs agree to be solely responsible for the allocation of settlement funds between counsel and each Plaintiff, and further acknowledge that Defendants' obligations with respect to funding are solely to provide the sum total of $600,000, per the terms herein. Page I of 6 2. MANNER OF PAYMENT As referenced, the obligation to tender payment of the Settlement Amount shall arise only upon receipt of a court order both approving the compromise for incapacitated Plaintiff Mary Mercado and directing payment of the funds for Plaintiff Mary Mercado's portion of the Settlement Amount and shall be consistent with the terms outline herein. Within thirty (30) days of execution of this Agreement by the Pa1ties and receipt of the court order approving the compromise for incapacitated Plaintiff Mary Mercado and directing payment of funds for Plaintiff Mary Mercado's portion of the Settlement Amount, the Settlement Amount shall be sent to counsel for Plaintiffs made payable to "Konoske Akiyama & Brust LLP Client Trust Account fbo Abraham Mercado and Mary Mercado" and/or otherwise directed by the order on the compromise. The Parties agree to bear their own attorneys' fees and costs. Within seven (7) calendar days of receipt of the Settlement Amount, counsel for Plaintiffs shall file a Request for Dismissal of the entire action with prej udice as to all Defendants and DOES. With respect to the payment of the Settlement Amount, Plaintiffs are responsible for the payment of any and all amounts governmental or tax authorities may claim are due, if any, out of the Settlement Amount. Plaintiffs acknowledge 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 1n consideration of the foregoing payment, Plaintiffs hereby irrevocably and unco nditionally release, forever release, and forever discharge Defendants, their current and former officers, directors, council members, employees, agents, corporate affiliates, contractors, predecessors, heirs, executors, administrators, successors, assigns, insurers, reinsurers, risk pools, j oint powers authorities, and all other persons, firms, corporations, subsidiaries, affiliates, 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 Plaintiffs may now have or have 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 thi s 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 acti on. 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 Page 2 of 6 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. 4. REPRESENTATIONS AND WARRANTIES ln further consideration for the above-mentioned value and consideration provided by Defendants, and in settlement of the above-referenced claims and disputes, Plaintiffs and Defendants represent and warrant as follows: All Parties represent and warrant that they are (or their agent, guardi an ad !item, 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 Plaintiffs ' allegati ons in the Lawsuit. 5. SECTION 1542 RELEASE Plaintiffs expressly agree that all rights he o r she may have under section 1542 of the Civil Code of the State of California are hereby waived, and P laintiffs acknowledge and understand that this Settlement Agreement has been executed w ith the express intent of extingui shing a ll 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 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 AND THAT, IF KNOWN BY HIM OR HER, WOULD HA VE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 6. COMPROMISE OF A DISPUTED CLAIM The Parties understand and acknowledge that liability is disputed by Defendants and Plaintiffs, that this Settl ement 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 Patt ies enter into this Settlement Agreement solely to avoid the uncertainties, delay, and expense of potential litigation and to buy their peace. Page 3 of 6 7. 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. 8. SATISFACTION OF LIENS ln addition to the terms outlined above, Plaintiffs agree that their counsel, Gregory P. Konoske and Konoske Akiyama & Brust LLP, wi ll be sole ly and exclusively respons ible for the sati sfaction of any and a ll liens which have ari sen 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 w itness liens, liens contractually g iven for legal representation, and any other liens that may exist. Furthermore, Plaintiffs will indemnify and hold Defendants, their attorneys and the ir insurance companies/risk pools/joint powers authorities harmless from and against any and all past, present or future claims and liens (medical, legal o r otherwise), regardless of whether they were known 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/ri sk pools/joint powers authorities relating to payment by such governmental entity, Plaintiffs will indemnity and hold Defendants, their attorneys and their insurance companies/risk pools/joint powers authorities, harmless from any and all such damages, claims, li ens, conditional payme nts 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 he irs, assigns, executors, administrators, agents, employees, affiliates, managers, owners, or successors, w ill 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, arbitrato r, 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 mainta in any action, demand, or lawsuit against the other party, its partners, agents, affiliated entities, successors, employees, heirs, msurers, attorneys, or representatives. 10. INTEGRATION AND INTERPRETATION This Settlement Agreement is the result of negotiation between the Parties and is the fu lly integrated and final expression of the settl ement described herein and supersedes any and all previous written o r oral communications. T his Agreement may not be altered, c hanged, or amended without a s ubsequent written document signed by all of the Parties. Page 4 of 6 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 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 prov1s1on 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 subseque nt to such severance. 12. ENFORCEABILITY The Parties agree that the Court will retain jurisdiction to enforce this Settlement Agreement pursuant to Code of C ivil Procedure section 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 Plaintiffs acknowledges that in entering into this Agreement, the Parties have not relied upon any representations, promises, or conditions not specifically set fo11h herein. 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. { Remainder of page intentionally left blank} Page 5 of 6 DocuSign Envelope ID: 3FBB860C-B4E0--4DF8-B35C-665075O8363F 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, Plaintiffs hereto have executed this Settlement Agreement as of the date specified below. Dated: ------- 11/1/2022 Dated: ------- Dated: ------- Dated: ------- Abraham Mercado Plaintiff GOocuSigned by: $0~ flM;i. AF99487A52B847A. Mary Mercado, by and through her Guardian ad Litem Sara Fink Plaintiff Name: Scott Chadwick Title: City Manager City of Carlsbad Robert Ferris Defendant Page 6 of6 I HEREBY CERTIFY THAT I HAVE READ TIDS 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 HA VE EXECUTED TIDS RELEASE ON THE DATE PLACED NEXT TO MY SIGNATURE, IN THE STATE OF CALIFORNIA BY MY OWN FREE HAND. 1N WITNESS TilEREOF, Plaintiffs hereto have executed this Settlement Agreement as of the date specified below. Dated: // -J._..-).. ~ Dated: _____ _ Dated: _____ _ Dated: _____ _ Abraham Mercado Plaintiff Mary Mercado, by and through her Guardian ad Litem Sara Fink Plaintiff Name: Scott Chadwick Title: City Manager City of Carlsbad Robert Ferris Defendant Page 6 of6 ·-·----· ---- 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 HA VE EXECUTED THIS RELEASE ON THE DATE PLACED NEXT TO MY SIGNATURE, IN THE STATE OF CALIFORNIA BY MY OWN FREE HAND. IN WITNESS THEREOF, Plaintiffs hereto have executed this Settlement Agreement as of the date specified below. Dated: ------- Dated: ------- Dated: 2}1 DC"r:Z:2 Dated: ------- APPROVED AS TO FORM Cindie IC. McMahon, Qly ,.,_,., Abraham Mercado Plaintiff M do, by and through her Gu Litem Sara Fink Pl Name: Scott Chadwick Title: City Manager City of Carlsbad Robert Ferris Defendant ~K-~ b Al~et,Anorne, Cilrol Carllbad. Clltomia Page 6 of6 I lTEREBV CERTIFY THAT I BA VE REAi) 'l'HIS 1':NTuu: AGREJt:MENT, KNOW THE CONTENTS THEREOF, FULLY UNDERSTAND THE SAME AND INTEND AND AGREE TO BE LEGALLY BOUND THEREBY, AND IN AGREEMENT WITH THE FOREGOING, J HAVE EXECUTED THIS RELEASE ON THE DATE PLACED NEXT TO MY SIGNATURE, IN THE STATE OF CALIFORNIA BY MY OWN FREE HAND. 1N WITNESS THEREOF, Plaintiffs hereto have executed this Settlement Agreement as of the date specified below. Dated: _____ _ Dated: Dated: ( ,.'1 ter Z."2 Dated: // -/ -o4!)22 APPROVED Al 10 FORM ClndielC: ~Cir~ ~K-~t-- Abraham Mercado PlaintH:T , by and through her G item Sara Fink p Name: Scott Chadwick Title: City Manager City of Carlsbad ~ Defendant Page 6 of6