HomeMy WebLinkAboutFonberg, Caryn V.; 2024-10-11;Docusign Envelope ID: FBEE2CED-D99A-40FD-A310-83807967BBE6
I. In consideration of the payment of the total sum of$125,000.00 (ONE HUNDRED TWENTY-FIVE
TIIOUSAND DOLLARS AND NO/100), the undersigned, CARYN V. FONBERG, as full payment, the receipt
of which is acknowledged by signature hereunder, does hereby fully release and discharge, for herself and for
her heirs, executors, administrators, successors and assigns, fully and forever, HANSEN RAMMEL BRAUN
CORP. DBA OAK AND ELIXIR, CITY OF CARLSBAD, American Fire & Casualty Company, Liberty
Mutual Insurance their related companies and subsidiaries, and each of said parties' assigns, agents, attorneys,
claims adjusters, officers, directors, servants, stockholders, employees, representatives, successors, and aU others
directly or indirectly liable ("Released Parties") from any and all claims, demands, actions, or causes of actions
for loss, injury, damage, or detriment, whether known or unknown, including any costs, loss of use, loss of
service and companionship, loss of consortium, expenses or loss of income or earning capacity, or any future
developments thereof, in any way resulting from or growing out of any and all known or unknown personal
injuries or property damage resulting to or a result from that certain accident which occurred on or about, July
24, 2021 in Carlsbad, California at or near the sidewalk in front of29 l 7 State St., Carlsbad CA 92008.
The undersigned agrees that this settlement is in full compromise of disputed claims as to both the
issues of liability and as to the nature, extent and pennanency of any such loss, injury, damage or detriment,
and that the payment of said sum is not to be construed as an admission of liability by any party. It is further
agreed that the nature, extent and results of any loss, injury, damage or detriment sustained by the undersigned
may not now be fully known or anticipated, but the undersigned nevertheless desires to settle and compromise
this claim in full.
It is further agreed that the undersigned attorney, Richard S. Sterger, Esq. with Mitchell Law
Corporation, APC, as CARYN V. FONBERG's attorney of record, is authorized in this matter to dismiss,
with prejudice. the Complaint in its entirety in the case entitled CARYN V. FONBERG v. CITY OF
CARLSBAD and OAK + ELIXIR RESTAURANT, et al. Superior Court of California, County of San
Diego -Vista, Case No. 37-2022-00029412-CU-PO-NC.
[t is further agreed that the undersigned attorney, Ranjan A. Lahiri, Esq. as counsel for Defendant
and Cross-Complainant CITY OF CARLSBAD is authorized in this matter to dismiss, with prejudice, tbe
Cross-Complaint in its entirety in the case entitled CITY OF CARLSBAD v. HANSEN RAMMEL
BRAUN CORP. dba OAK.AND ELIXIR, et al. Superior Court of California, County of San Diego -
Vista, Case No. 37-2022-00029412-CU-PO-NC in exchange for a waiver of costs.
2. The undersigned represents and warrants that CARYN V. FONBERG is the sole owner of
the above-mentioned claims, demands, and causes of action, and that no assignment of any claims,
demands, or causes of action have been made to any other person or entity, either expressly or by operation
oflaw, and that the undersigned shall fully pay or otheiwise discharge all liens, including any and all
attorney lien(s), and encumbrances of any type or nature on any recovery sought or obtained in connection
with the action, the injuries and/or the accident, whether or not the Released Parties hereto have knowledge
or have received notice of such liens and/or encumbrances. The undersigned CARYN· V. FONBERG
agrees to defend, bold harmless, and indemnify those parties released herein against any loss, expense, lien.
claims, actions, encumbrances, liability or damage (including costs and attorney's fees) resulting from any
assignment (whether express or by operation oflaw) of any of said claims, demands or causes of action, or
resulting from the undersigned's failure to fully pay or otherwise discharge any liens or encumbrances
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asserted by any person or entity, and/or from any future or additional claims or actions brought against
any of the Released Parties by any additional heirs, whether known or unknown by the undersigned at the
time to the execution of this Release, and regardless of whether or not the undersigned had notice or
knowledge of such liens and/or encumbrances.
3. It is further understood and agreed that all rights under Section 1542 of the Civil Code of
California and any similar law of any state or territory of the United States are hereby expressly waived.
Said section reads as follows:
"Section 1542. General Release -Claims Extinguished. 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."
The undersigned represents and agrees that this waiver of Civil Code Section 1542 is a material
part of the consideration provided by the undersigned in exchange for the consideration paid by the
Released Parties, and the undersigned understands and acknowledges that the Released Parties would not
settle the action in the absence of such waiver.
4. The undersigned further acknowledges that this Release and its reduction to final written
fonn is the result of good faith negotiations between the parties and involving their counsel.
5. It is understood that the facts with respect to which this Release is given may turn out to be
other than, or different from, the facts now believed to be true, and the undersigned, on behalf of herself and
those for whom she have power of attorney, therefore expressly assumes the risk of the facts turning out to
be different than the undersigned believes them to be, and the undersigned agrees that the foregoing Release
shall in all respects be effective and not subject to tennination or rescission because of any such mistaken
belief, specifically, but not limited to, the existence of additional heirs, whether known or unknown at the
time of the execution of this Release. This Release shall not be construed in favor of or against any party
hereto but shall be construed as if all parties hereto participated in its drafting and it is intended to be binding
upon the heirs, personal representatives, assigns and other successors-in-interest of each party for whom this
Release is made or executed.
6. The undersigned further acknowledges that this Release is written notice of settlement of
claimant's third-party liability, pursuant to Business and Professions Code Section 6149.5.
7. The undersigned, CARYN V. FONBERG, agrees to be solely responsible for all common law,
statutory, emergency room, hospital, medical provider and California Civil Code (Section 3045.1, et seq.)
liens, actual orJrospective attorney liens and/or any and all types of liens, known or unknown, and any and
all medical an hospital bills, asserted by any person or entity not a party to this agreement.,, any and all
workers' compensation liens, Medi-Cal hens, Medicare liens/reimbursement right, any and au health care
providers and/or hospitals and/or emergency medical facilities, specifically to include any and all past, present
and prospective liens. medical, health or otherwise, as well as any and all outstanding medical, hospital or
doctor accounts, statements and/or lien(s). Said responsibility on the part of the undersigned shall extend to
all liens arising from any medical/hospital/emerg~ncy treatment rendered on behalf of the undersigned, any
disability payments made to or on behalf of CARYN V. FONBERG. and any and all subrogation claims
arising from the subject incident, including but not limited to any workers' compensation liens, and health care
provider, common law statutory, emergency room, hospital, and California Civil Code (Section 3045.1, et
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seq.), Medi-Cal and Medicare liens. In the event of any legal action or proceeding of any nature instituted by
any third-party against the parties released in this agreement, the undersigned agrees to defend, hold
hannless and indemnify said released parties in any said third-party action.
8. The undersigned agrees to execute and deliver to the Released Parties any and all papers and
instruments that may be deemed necessary or appropriate to institute, prosecute, settle or compromise any
action or claim.
9. The undersigned and her attorneys of record, Mitchell Law Corporation, APC further agree
and represent that there will be one settlement check in the amount of $125,000_00 (ONE HUNDRED
TWENTY-FNE THOUSAND DOLLARS AND NOllO0) made payable to CARYN V. FONBERG and
Mitchell Law Corporation, APC. The settlement check will be paid by the insurer for HANSEN RAMMEL
BRAUN CORP. dba OAK AND ELIXIR. The CITY of CARLSBAD is not paying any money to CARYN
V. FONBERG as part of this settlement
10. This Release shall only apply to the claims asserted by Plaintiff CARYN V. FONBERG in
the case entitled CARYN V. FONBERG v. CITY OF CARLSBAD and OAK+ ELIXIR RESTAURANT,
et al. Superior Court of California, County of San Diego -Vista, Case No. 37-2022-00029412-CU-PO-NC.
Nothing in this settlement a~reement or release shaU be construed as or have the effect of releasing or
dismissmg any claims that tne CITY OF CARLSBAD has or may have against HANSEN RAMMEL
BRA UN CORP. dba OAK AND ELIXIR that do not arise from the instant lawsuit, including but not limited
to the CITY OF CARLSBAD's pending code enforcement matters against HANSEN RAMMEL BRAUN
CORP. dba OAK AND ELIXIR.
l I. There is no prevailing party under this agreement and all parties agree to bear their own
attorneys' fees and costs.
12. The court in which the lawsuit for the occurrence referred to above is pending shall retain
jurisdiction until all tbe terms of the settlement agreement have been carried out.
13. The undersigned declares and represents that CARYN V. FONBERG has been fully advised
by legal counsel with respect to the review and execution of this Release and further declare and represent
that no promise, inducement or agreement not herein expressed has been made to the undersigned and that
this Release contains the entire agreement between the parties hereto and that the tenns of this release are
contractual and not a mere recital.
This Release may be executed by facsimile or DocuSign signature and such signature shall be deemed a
valid and binding original signature.
FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRES THE FOLLOWING TO APPEAR
ON THIS FORM:
ANY PERSON WHO KNOWINGLY PRESENTS FALSE OR FRAUDULENT CLAIM FOR THE
PAYMENT OF A LOSS IS GUILTY OF A CRIME AND MAY BE SUBJECT TO FINES AND
CONFINEMENT IN STATE PRISON.
YOU ARE MAKING A FINAL SETTLEMENT. THIS JS A RELEASE: READ BEFORE SIGNING.
II I
Ill
10/ll/2024 ~a:::-;~
Dated: Plaintiff, C ii;aOONBERG
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