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HomeMy WebLinkAboutA8950 - JONATHON KALLIS CITY COUNCIL CLOSED SESSIONSETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement ("Agreement") is entered into by and between JONATHAN KALLIS (hereinafter "PLAINTIFF") and CITY OF PALM SPRINGS, SERGEANT STJERNE, OFFICER MOSS, and OFFICER ESCALLADA, (hereinafter "DEFENDANTS") PLAINTIFF and DEFENDANTS shall collectively be referred to as the "Parties." RECITALS I. On August 28, 2020, PLAINTIFF filed a complaint against DEFENDANTS in Case No 5:20-cv-01744RGK-SP in the United States District Court Central District of California ("the Lawsuit"). A First Amended Complaint was filed thereafter. DEFENDANTS deny the allegations - 2. All parties wish to settle fully and finally all controversies and differences arising out of PLAINTIFF'S claims. AGREEMENT Therefore, in consideration of the mutual promises contained herein, the Parties agree as follows: 1. Payment. IN EXCHANGE FOR THE RELEASE OF ALL NAMED AND UNNAMED DEFENDANTS IN THE MATTER OF Case No. 5 20-cv-01744-RGK-SP The City of Palm Springs shall PAY THE FOLLOWING: to PLAINTIFF the sum of Thirty -Nine Thousand and Zero Dollars and Zero Cents (S39,000-00) ("Settlement Amount") The settlement check to PLAINTIFF will be made payable to Carter Law Firm, APC Client Trust Account, Federal Tax 1D No. 84-4714474 to the amount of $39,000.00. Payment of the Settlement Amount shall be paid and delivered via certified mail within 10 business days of all Parties signing the Agreement or October I, 2021, whichever date is earlier PLAINTI F and his attorney shall provide an appropriate W-9 form to DEFENDANTScounsel of record upon request 2. Dismiyyllj Pursuant to Federal Rule of Civil Procedure 41, and current with signing this Agreement, the Parties shall sign a stipulation of dismissal with prejudice of the Lawsuit ("Stipulation") PLAINTIFF shall file the Stipulation within 10 business days of all Parties signing SETTLEMENT AGREEMENT AND RELEASE 55575. iOO2NN296363 2 this Agreement or October I, 2021, which date is earlier. The Parties acknowledge that such dismissal shall have res judicata effect and agree to waive any right they may have to file an appeal therefrom or otherwise pursue an appeal in the Lawsuit 3. Release and Waiver. PLAINTIFF being of lawful age, for himself in his representative and individual capacity, his heirs, executors administrators, successors, beneficiaries, and assigns, HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES the DEFENDANTS as well as their agents, servants, successors, heirs, executors, employees, employers, beneficiaries, administrators, attorneys and all other persons, firms, corporations. subsidiaries, associations or partnerships, or any other entity connected therewith, of and from any and all past or present claims, actions, causes of action, demands, rights, damages, obligations, costs, loss of service, expenses and/or compensation, of any nature whatsoever whether based in tort, contract or other theory of recovery, which the undersigned PLAINTIFF now has or which may hereafter accrue to the undersigned PLAINTIFF on account of, or in any way growing out of, any and all known or unknown, foreseen and unforeseen, injuries and/or damages and the consequences resulting there from, the incidents, casualty or events which occurred on or about July 17, 2019, in the City of Palm Springs, and which has resulted in a claim and/or lawsuit being brought by the undersigned PLAINTIFF and against DEFENDANTS as described in the Lawsuit, and the individuals and entities involved in the negotiations between the parties before and after the filing of the action, all of which are released hereunder, including any potential claims, and all attorneys' fees and costs 4. RML Upon signing this Agreement, PLAINTIFF hereby relinquishes and abandons any and all claims of ownership and/or title in the Smith and Wesson M&P 15 rifle, serial number SZ02387 ("Rifle") mentioned in the Lawsuit Upon the signing of this Agreement by all Parties, the City shall proceed with the destruction of the Rifle 5 New Facts and La rt PLAINTIFF understands that if the facts giving rise to this Agreement are found later to be other or different from the facts now believed by him to be true, SETTLEMENT AGREEMENT AND RELEASE 2 55575 1002?U42963632 or if new facts or law come to the attention of the Parties, or any of them, they accept and assume the risk of such possible difference in the facts or law, and PLAINTIFF agrees that the release above shall be and remain effective, notwithstanding such different or new facts or law 6. Attornev's E"s and Cqjtc. The Parties agree that each side will bear then own attorney's fees and costs. Each Party waives the right, if any, to recover attorney's fees and costs from the other Party or Parties. Liens. The undersigned PLAINTIFF acknowledges that there are no liens or other claims of third parties and agree to hold harmless and indemnify DEFENDANTS, their attorneys and agents, of any and all liens or other claims of third parties which may be asserted for services which have been or may be rendered on behalf of the undersigned and relating to the injuries, damages, and consequences of the events which occurred in the City of Palm Springs and which resulted in a claim and the lawsuit described as Case No 5 20-cv-01744-RGK-SP. & No Inducement The undersigned PLAINTIFF agrees that they have received no inducement, promise, or offer of any kind whatsoever for the consideration delineated hereinabove, and that this Settlement Agreement and Release of All Claims is executed without neliance on any statement or representation by those released or their representatives, or anyone, other than the sole consideration descnbed herein No Admission of Liabilit. It is understood and agreed that this settlement is the compromise of a disputed claim and that the consideration fumished is not to be construed as an admission of liability on the part of those released, and that those parties have denied liability on the claim herein and intend merely to avoid litigation and buy their peace by this compromise DEFENDANTS specifically disclaim any liability for any wrongful acts against PLAINTIFF or any other person on the part of themselves, their employees, agents, and/or representatives in connection with the events that occurred in the City of Palm Springs and as alleged in the Lawsuit SETTLEMENT AGREEMENT AND RELEASE 3 55575 IOD27134296363 2 10 Final Agreement The compromise and settlement which forms the basis of this Settlement Agreement and Release of All Claims has been arrived at after thorough bargaining and negotiation and represents a final, mutually agreeable compromise 11, WaiverofCivil Code 6 1542 PLAINTIFF agreesthat all rights under Section 1542 of the Civil Code of the State of California and of any similar provision of federal law are hereby expressly waived. Section 1542 reads as follows "A general release does not extend to claims which the creditor does not know or suspect to exist in his/her favor at the time of executing the release, which if known by him[her must have materially affected his/her settlement with the debtor " Thus, notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete Release, Plaintiffs acknowledge that this Settlement Agreement and Release contemplates the extinguishment of any and all of then claims in connection with the events that occurred in the City of Palm Springs and as alleged in the Lawsuit 12 Entire Agreement. The undersigned PLAINTIFF agrees that this Settlement Agreement and Release of All Claims contains the entire agreement between the parties hereto and that the terms of this release are contractual and not a mere recital. 13. Binding Effect. PLAINTIFF represents and warrants that no other persons) or entities had any interest in the claims, demands, obligations, or causes of action referred to in this Agreement, that PLAINTIFF has the sole right and exclusive authority to enter into this Agreement, and that PLAINTIFF has not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demand, obligations, or causes of action referred to in this Agreement. 14, Severability. The provisions of this Agreement are severable, and if any portion is found to be unenforceable, the other paragraphs shall remain in full force and effect SETTLEMENT AGREEMENT AND RELEASE 4 55575 1MNU206363.2 15. Entire Agreement. This Settlement Agreement and Release of all Claims contains the entire agreement between the Parties and fully supersedes any prior agreements or understandings between the Parties. 16, Enforcement Each party to this Agreement reserves the right to enforce this Agreement whether in equity or otherwise. In the event that there is a dispute as to whether any Party has breached any of the terms of this Agreement, the prevailing party shall be entitled to reasonable costs and attorneys' fees. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 17 Negotiated Agreement. The Parties acknowledge that the terms of this Agreement, including the waiver and release described above, were negotiated and drafted by the Parties with the assistance of counsel. Accordingly, any rule of construction to the effect that any ambiguity is to be construed against the drafting party shall not apply to the interpretation of this Agreement 18 Counterparts The Parties hereto, and each of them, further agree that this Settlement Agreement and Release of all Claims may be executed in duplicate counterparts 19 Assistance of Counsel. The undersigned PLAINTIFF further agrees that they have read and fully understand this Settlement Agreement and Release of All Claims and that the opportunity has been afforded to discuss the terms and contents of said Release with legal counsel and/or that such a discussion with legal counsel has occurred. CAUTION: READ BEFORE SIGNING DATED: I ATHAN KALLIS DATED CR(f7/UZ.I SERGEA RNE SETTLEMENT AGREEMENT AND RELEASE 5 55575 1002AM296363 2 DATED: 011Za Z1 DATED: r3f= OFFICER MOSS CITY OF PALM SPRINGS APPROVED AS TO FORM AND CONTENT: DATED: _ 1 / ( 3/z ( DATED: 9113f2021 55575.10027%34296363 2 CARTER LAW FIRM, APC By: Z24 C� Corey Carter, Esq. Attorneys of Record for PLAINTIFF, Jonathan Kallis BEST BEST R. KRIEGER uLP., By: Av1 Rutschman, E . Attorneys of Record for DEFENDANTS, City of Palm Springs, Sergeant Kyle Stjeme, Officer William Moss and Officer Edman Escallada SETTLEMENT AGREEMENT AND RELEASE 6 DATED: DATED: _ q// 7 LZ 1 DATED: OFFICER ESCALLADA �~ OFFICER MOSS CITY OF PALM SPRINGS APPROVED AS TO FORM AND CONTENT: DATED: l Z DATED: 9/13/2021 sssrs.iooi I CARTER LAW FIRM, APC By: Corey Carter, Esq. Attorneys of Record for PLAINTIFF, Jonathan Kallis BEST BEST & KRIEGER 0 Attorneys of Record for DEFENDANTS, City of Palm Springs, Sergeant Kyle Stjeme, Officer William Moss and Officer Edman Escallada SETTLEMENT AGREEMENT AND RELEASE 6 DATED: DATED: DATED: OFFICER ESCALLADA A ST6 Clerk q /24 OFFICER MOSS CITY OF PALM SP GS APPROVED AS TO FORM AND CONTENT: DATED: 13 Z DATED: 9/13/2021 55535.100271342%363.2 wD aY CITY COUNCIL ClDaed S2sSID n "� A I wzl q �asv CARTER LAW FIRM, APC By: -- ' Corey Carter, Esq. Attorneys of Record for PLAINTIFF, Jonathan Kallis BES7m; P By: Avi Rutschman, Eft. Attorneys of Record for DEFENDANTS, City of Palm Springs, Sergeant Kyle Stjeme, Officer William Moss and Officer Edman Escallada SETTLEMENT AGREEMENT AND RELEASE 6 Monique Lomeli From: Jeff Ballinger <Jeff.BaIlinger@bbklaw.com> Sent: Monday, September 20, 2021 11:27 AM To: Anthony Mejia; Monique Lomeli Subject: Kallis - Settlement Agreement Attachments: PS_KALLIS - Settlement Agreement - Fully-executed-c1.PDF NOTICE: This message originated outside of The City of Palm Springs -- DO NOT CLICK on links or open attachments unless you are sure the content is safe. Anthony, For the City's records. This was approved by Council in closed session on Sept. 9. Jeff Ballinger (909) 528-9400 Begin forwarded message: From: Julia Hernandez <Julia.Hernandez@bbklaw.com> Date: September 20, 2021 at 11:08:33 AM PDT To: Avi Rutschman <Avi.Rutschman@bbklaw.com>, Jeff Ballinger <Jeff.BalIinger@bbklaw.com>, Richard Egger <Richard.Egger@bbklaw.com> Subject: RE: Kallis - Settlement Agreement Good morning, Here is the fully -executed settlement agreement to send to plaintiff's counsel. It is saved in Agreements in Manage. Thank you, Julia From: Avi Rutschman <Avi.Rutschman@bbklaw.com> Sent: Monday, September 20, 20219:22 AM To: Jeff Ballinger <Jeff.Ball inger@bbklaw.com>; Richard Egger <Richard.Egger@bbklaw.com> Cc: Julia Hernandez <Julia.Hernandez@bbklaw.com> Subject: Kallis - Settlement Agreement Jeff, Rich — All of the parties have signed the settlement agreement in Kallis. I will coordinate with Corey to have a notice of settlement filed with the court. Jeff — do I need to coordinate with finance re production and transmission of the check? The City Manager signed last Wednesday, which triggered the clock (10 business days to get check to Corey). Julia — Can you compile the settlement and signature pages into a single master document for our records and a final version that I can send to Plaintiff's attorney? Thanks. ERROR: rangecheck OFFENDING COMMAND: image OPERAND STACK: --nostringval--