Loading...
HomeMy WebLinkAboutDepretis, Mark William and Nansea Anne & Cross-Defendants; 2024-03-27;DocuSign Envelope ID: 3F4990CD-A576-4B 15-A8CF-B2378E025FC0 SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release (hereinafter "Agreement") is made by and among (1) plaintiffs, MARK WILLIAM DEPRETIS and NANSEA ANNE DEPRETIS as individuals and as trustees for the DePretis Family Trust, GREGORY SCOTT FERRELL, HOLIDAY C. GEIGER and JAMES M. DUNHAM, PETER HARK and JUSTINE HARK as individuals and as Trustees of Hark Family Trust, dated 09/23/2015, COREY KELSEY and MONITA KELSEY, DUSTfN JAMES LOPEZ and JENNIFER MICHELLE LOPEZ, LUCIA SPIELVOGEL, and ERIC W. CREAGH and THERESA L. CREAGH as individuals as Co-trustees of the Creagh Family Trust, on behalf of themselves and their attomey(s), former attorneys, assigns, heirs, successors, agents, and representatives (hereinafter collectively "PLAINTIFFS"), and (2) defendant CITY OF CARLSBAD, on behalf of itself and its mayor, councilpersons, employees, former employees, agents, independent contractors, attorneys, partners, assigns, insurers, and representatives (hereinafter collectively "CITY"), subject to the following terms: RECITALS A. Certain disputes and differences have arisen between PLAfNTIFFS and CITY in connection with a slope failure that occurred in early 2020 on a slope running adjacent to EI Camino Real and between Chestnut Avenue and Tamarack Avenue and behind the PLAINTIFFS' properties located at 4245 Trieste Drive, 4155 Trieste Drive, 43 I 5 Trieste Drive, 4305 Trieste Drive, 42 I 5 Trieste Drive, 4225 Trieste Drive, 4205 Trieste Drive, and 4235 Trieste Drive in Carlsbad, California that caused property damage to PLAINTIFFS ' properties (hereinafter "Subject Incident"). B. On or about June 30, 2020, PLAINTIFFS filed a complaint entitled Mark Depretis, et al. v. City of Carlsbad, et al. in the County of San Diego Superior Court, Case No. 37-2020- 00022447 against CITY alleging causes of action for inverse condemnation, dangerous condition of public property, public nuisance, private nuisance and trespass (hereinafter "Subject Action"). On September 10, 2020, PLAINTIFFS filed a first amended complaint ("FAC") against CITY. On October 13, 2020, CITY filed an answer to the FAC. On May I 0, 2022, CITY filed a cross- complaint against COCOMO PROPERTY MANAGEMENT, INC. and WIND AND SEA PROPERTY MANAGEMENT, L.P. (hereinafter collectively "CROSS-DEFENDANTS") for negligence, full equitable indemnity, partial equitable indemnity, implied indemnity and declaratory relief. On October 17, 2022, PLAINTIFFS filed a second amended complaint against CITY and CROSS-DEFENDANTS ("SAC"). On November 16, 2022, CITY filed an answer to the SAC and filed a first amended cross-complaint against CROSS-DEFENDANTS. C. In resolving the Subject Action, the parties to this Agreement deny any wrongdoing, illegal or unreasonable conduct, statutory violations, or liability whatsoever. Each of the parties to this Agreement has concluded that it is in their/its best interest to settle the differences and disputes for any and all claims arising out of or otherwise related to the subject action, and/or Subject Incident upon the terms and conditions set forth in this Agreement. In doing so, no party admits, concedes, or implies that PLAINTIFFS or CITY has done anything wrong or legally actionable. Pagel of 8 I 3036-0003\2939063v I .doc DocuSign Envelope ID: 3F4990CD-A576-4B15-A8CF-B2378E025FC0 AGREEMENT 1. Before or concurrent with PLAINTIFFS' execution of th is Agreement, PLAINTIFFS' counsel of record will execute a request for dismissal with prejudice of PLAINTIFFS' complaint/action against CITY and deliver the executed request for dismissal with prejudice to CITY's counsel ofrecord for filing with the San Diego Superior Court. The executed request for dismissal will be held by CITY's counsel of record and not filed with the Court until CITY's settlement payment has been tendered to PLAINTIFFS' counsel of record. 2. In consideration of the terms described herein, PLAINTIFFS hereby fully and completely, irrevocably, unconditionally, and expressly release and forever discharge CITY from any and all claims, demands, actions, defenses, rights of offset, liens, expenses, fees, costs, equitable interests, causes of action, and charges of whatever nature and kind, known or unknown, wherever prosecuted, existing on behalf of PLAINTIFFS against CITY from the beginning of time through the effective date of this Agreement and without limitation, arising from, asserted at any time in, or otherwise related to the Subject Action, the Subject Incident, this Agreement, and any other matter regardless of its character or nature. This general release by PLAINTIFFS also includes claims that PLAINTIFFS have or may have had, in law or in equity, existing at any time which arise out of or are related to the facts, events, transactions and occurrences alleged and/or which were capable of being alleged in the Subject Action. 3. In addition to the release set forth in section 2 above, PLAINTIFFS agree to release CITY from all claims relating to the past, present and future repair of the slope involved in the Subject Incident, including but not limited to any claims that the interior or exterior of PLAINTIFFS homes have been damaged by the slope's repair. 4. The parties agree that the release set forth in section 2 above, shall extend to claims whether known or unknown to them and that the release is made with the understanding that it shall include unknown claims contemplated by Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in hi s or her favor at the time of executing the release, if known by him or her, would have materially affected his or her settlement with the debtor or released party." 5. The parties agree that the Civil Code section 1542 release, as discussed in section 4, will apply to the CITY, but will not apply to the contractors involved in the repair and design of the slope involved in the Subject Incident. 6. Within twenty-one (21) days after, (I) the parties have exchanged their executed counterparts of this Agreement, (2) PLAINTIFFS' attorney(s) have provided their firm 's executed W-9 to CITY, and (3) PLAINTIFFS' attomey(s) has delivered the original executed request for dismissal with prejudice to CITY's counsel of record pursuant to section I of this Agreement, CITY will then send PLAINTIFFS a settlement check or wire transfer to PLAINTIFFS' counsel in the amount of $6,200,000.00. These amounts are being paid to compensate the Plaintiffs for the I 3036-0003l2939063v I .doc Page 2 of 8 DocuSign Envelope ID: 3F4990CD-A576-4B15-A8CF-B2378E025FC0 alleged property damage to their homes. The SETTLEMENT AMOUNT shall be made payable to "The Naumann Law Firm Client Trust Account/" If sent via check, then it shall be sent to PLAfNTIFFS' counsel at 10200 Willow Creek Road, Suite 150, San Diego, CA 92131. 7. PLAINTIFFS agree and authorize to have the Agreement recorded as a public record in San Diego County after the settlement funds discussed in section 6 are received. PLAINTIFFS agree to cooperate with PLAINTIFFS' attorney(s) and CITY to have all necessary documents notarized prior to executing and recording the Agreement. CITY will coordinate the notarization and recording of the Agreement. 8. The CITY will complete the repair of the slope involved in the Subject Incident as described in the plans attached to the Declaration of Dr. Macan Doroudian, filed with the Court on March 5, 2024, and attached hereto as Exhibit A. The CITY reserves the right to make changes to the _repair plans as appropriate. The CfTY will provide PLAINTIFFS' attorney(s) a copy of the "as-built" plans when the repair is complete. 9. ln connection with the repair of the slope involved in the Subject Incident, PLAINTIFFS agree to grant CITY access to each of their properties, and execute all necessary documents to grant CITY a temporary construction easement and/or right-of-entry permission to their entire lots. 10. During the slope repair, CITY will remove all necessary structures from the backyards of four properties owned by the following plaintiffs: MARK WILLIAM DEPRETIS and NANSEA ANNE DEPRETIS (4245 Trieste Drive), COREY KELSEY and MONITA KELSEY (4215 Trieste Drive), DUSTJN JAMES LOPEZ and JENNIFER MICHELLE LOPEZ (4225 Trieste Drive), and ERIC W. CREAGH and THERESA L. CREAGH (4235 Trieste Drive) (collectively and hereinafter "The Four Plaintiffs"). The Four Plaintiffs' backyards will be impacted by the repair, and all construction required thereon, as depicted in the repair plans attached to the declaration of Dr. Macan Doroudian and attached hereto as Exhibit A. The City reserves the right to make changes to repair plan as appropriate. I 1. On the properties owned by The Four Plaintiffs, as discussed in section IO above, CITY will remove only those structures, improvements and landscaping necessary to the repair, presently from the property line between (I) The Four Plaintiffs' properties and CITY's property, and (2) approximately three (3) feet from the rear of the structures, including, but not limited to, sheds, walls, fl atwork, drains, landscaping, irrigation lines, etc. At no time is CITY required to replace any removed structure, improvement or landscaping. 12. CITY may remove portions of structures on The Four Plaintiffs' properties, including but not limited to, walls on property lines with adjoining neighbors. At no time is CITY required to remove entire walls or other structures. I 3. Once the slope repair is complete, the CITY will replace any soil removed from The Four Plaintiffs ' properties with similar material(s). 14. CITY will use its best efforts to complete all repairs on the slope involved in the Subject Incident and adjacent properties by October 2024. Page 3 of 8 13036-0003l2939063v I .doc DocuSign Envelope ID: 3F4990CD-A576-4815-A8CF-B2378E025FC0 15. At the conclusion of the slope's repair, The Four Plaintiffs' backyards will be rough and fine graded so that The Four Plaintiffs can complete backyard landscaping improvements. 16. PLAINTIFFS and CITY shall bear their/its attorneys' fees and costs incurred in connection with or otherwise related to the Subject Action, the Subject Incident, the negotiation of this Agreement, all matters and documents referred to in this Agreement, and all related matters. 17. The parties agree that time is of the essence in performing the terms outlined in the Agreement. 18. The parties agree that this Agreement is enforceable pursuant to Code of Civil Procedure section 664.6 ("Section 664.6"). The Honorable James A. Mangione, Department C- 75 of the San Diego Superior Court, will retain jurisdiction pursuant to Section 664.6 and any party may petition Judge Mangione to enforce the tenns of the Agreement. 19. This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced, and governed under the laws of the State of California. 20. This Agreement shall be binding and inure to the benefit of PLAINTIFFS, ClTY, and their heirs, successors, assigns, agents, employees, partners, representatives, and legal representatives. 21. PLAINTIFFS agrees to assume full responsibility for any and all liens asserted against PLAINTIFFS in the subject action or regarding any matter related thereto including, but not limited to, any and all claims, liens, and other entitlements of Medicare or Medi-Cal. 22. PLAINTIFFS agree to defend, indemnify, and hold harmless CITY from and against any and all claims, liens, obligations, liabilities, actions, causes of action, demands for payment, or any other proceedings brought by any individual or entity relating to the facts, events, transactions, and occurrences alleged in or which were capable of being alleged in connection with the Subject Action or otherwise related to the Subject Action and/or Subject Incident. 23. The Agreement does not waive any immunities in the Government Claims Act (Gov. Code,§§ 810 et seq.), the California Emergency Services Act (Gov. Code, §§ 8550 et seq.), or any other applicable law. 24. It is expressly understood and agreed that this Agreement contains the entire agreement and understanding between the parties concerning the subject action, the settlement of the Subject Action, the Subject Incident, and the matters referenced in this Agreement, and supersedes and replaces all prior or contemporaneous negotiations and agreements between the parties whether written or oral. 25. It is expressly understood and agreed that there have been no promises, agreements, representations, warranties or inducements not expressed in writing in thi s Agreement. The parties to this Agreement acknowledge that they have read this document in its entirety and that they have executed it without relying upon any statements, representations, Page 4 of 8 I 3036-0003l2939063v 1.doc DocuSign Envelope ID: 3F4990CD-A576-4B 15-A8CF-B2378E025FC0 warranties, written or oral, not expressly set forth in writing herein. 26. No provision of this Agreement may be waived unless such waiver is in writing and signed by all the parties to this Agreement. Waiver of any one provision shou ld not be deemed to be a waiver of any other provision of this Agreement. This Agreement may be modified or amended only by written agreement executed by all the parties to this Agreement. 27. The parties acknowledge that there are no handwritten provisions in this Agreement. 28. This Agreement may be executed in counterparts and copies of the executed counterparts, including copies of facsimile transmissions, are deemed to be originals. 29. Recitals A, B, and C of this Agreement are incorporated as though fully set forth in this Agreement and are considered a part of this Agreement. 30. Each of the parties warrants and represents that no matter released, compromised, or waived pursuant to this Agreement has been assigned or transferred voluntarily, involuntarily, or by operation of law. 31. Each party to this Agreement has made such investigation of the facts and all other matters pertaining hereto as it deems necessary. The parties hereto agree and acknowledge that they, or any of them, may hereafter discover facts different from or in addition to those they, or any of them, now know or believe to be true. This Agreement is intended to be final and binding regardless of any assertions of misrepresentation, concealment or mistake, and if any party should subsequently discover that any fact relied upon by such party in entering into this Agreement was untrue, or that such party's understanding of the facts or the law was incorrect, such party shall not be entitled to set aside this Agreement. 32. The parties and each of them warrant and represent that they have been represented by independent counsel and that this Agreement has been fully explained to them and they hereby acknowledge that they have read it and fully understand it. 33. This Agreement shall be construed as though each of the parties participated equally in its drafting and, it shall be interpreted, wherever possible, to make it valid and effective. If any part of this Agreement is determined to be invalid, unenforceable or prohibited, only that part should be affected and the rest shall be enforced as written here. 34. Each person signing this Agreement warrants and represents that he or she has the full authority and permission to execute and deliver this document on behalf of the person for whom she/he/it is s igning and to bind his/its respective heirs, executors, administrators, agents, representatives, successors, and assigns. We, the undersigned, certify that we fully understand all the terms and consequences of this Agreement and have executed it voluntarily and of sound mind. Page 5 of 8 I 3036-0003\2939063v I .doc DocuSign Envelope ID: 3F4990CD-A576-4815-A8CF-82378E025FC0 GDocuSlgned by: 3/20/2024 ~c£~4~s DATED: Plaintiff MARK WILLIAM DEPRETIS 3/20/2024 (]~ DATED: 58F9240A04C0406 ... PlaintiffNANSEA ANNE DEPRETIS 3/20/2024 c~;i~fmill DATED: Plaintiff GREGORY SCOTT FERRELL Q DocuSlgned by: 3/20/2024 -&,,~l'U.j {J.j~ DATED: 1207B1E4A1794B4 ... Plaintiff HOLIDAY GEIGER (10ocuSigned by: 3/20/2024 ~207~~4~ DATED: Plaintiff JAMES M. DUHAM 3/20/2024 (!~ned;~ DATED: 853E14F4C4404D9 ... Plaintiff PETER HARK GDocuSlgned by: 3/20/2024 ~~~71~=-DATED: Plaintiff JUSTINE HARK GOocuSlgned by: 3/20/2024 ~~5~;:t DATED: Plaintiff COREY KELSEY GOocuSigned by: 3/20/2024 ~!:22~~~ DATED: PlaintiffMONITA KELSEY [EDocuSlgned by: 3/20/2024 D~~~~,~P-Ei DATED: Page 6 of 8 I 3036-0003l2939063v I .doc DocuSign Envelope ID: 3F4990CD-A576-4B 15-A8CF-B2378E025FC0 3/20/2024 DATED: _________ _ 3/20/2024 DATED: ----------- 3/20/2024 DATED: ----------- 3/20/2024 DATED: ----------- DATED: z_~~ 13036-0003l2939063v I .doc Plaintiff DUSTIN JAMES LOPEZ Plaintiff JENNIFER MICHELLE LOPEZ Plaintiff LUCIA SPIELVOGEL GDocuSlgned by: ~~60.:f Plaintiff ERIC W. CREAGH Defenda t, C Y OF CARLSBAD By: Scott Chadwick, City Manager Page 7 of 8 DocuSign Envelope ID: 3F4990CD-A576-4B 15-A8CF-B2378E025FC0 APPROVED AS TO FORM ONLY 3/20/2024 DA TED: March __ , 2024 DA TED: March __ , 2024 l 3036-0003\2939063v I .doc THE NAUMANN LAW FIRM, P.C. r-: OocuSlgned by: By: L!_~~CEB~:54~, tSov- PHILLIP M. KUNKA, ESQ. Attorneys for Plaintiffs RlCHARDS WATSON & GERSHON, P.C. By: ____________ _ ROBERT C. CECCON, ESQ. Page 8 of 8 Attorneys for Defendant, CITY OF CARLSBAD DATED: March __ , 2024 DA TED: March ~. 2024 13036-0003\2939063v2.doc APPROVED AS TO FORM ONLY THE NAUMANN LAW FIRM, P.C. By: ____________ _ PHILLIP M. KUNKA, ESQ. Attorneys for Plaintiffs RICHARDS WATSON & GERSHON, P.C. By:&/4/C~ Page 8 of 8 ROBERT C. CECCON, ESQ. Attorneys for Defendant, CITY OF CARLSBAD