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Home My WebLink About04830 - MARY LANCA SETTLEMENT AGREEMENT Mary Lanca 02/00/2004 18:30 FAX 17604188898 GRAHAM Settlement Agr AGREEMENT #4830 M07443, 2-18-04 A" ALESHIRE & 15881 Von Kerman Ave. W'YNDER, LLP srdre400 "k ATTORNEYS AT LAW Irvine.CA 92612 Phone 949.223.1170 www.awarcoroty.�.cam Fu 949.223.1180 February 3,2004 SENDF,R'S E-MAI1.t KGRARAM@AW SA'fTORNEYS.COM SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS iiui Seale.,znt Ag.e :..ent i=_d :ei."' sc of a-re P j 2c eriter- Into b and between MARY LANCA("Plaintiff')and CITY OF PALM SPRINGS,("City"),and the following officers in their official and individual capacities:MICHAEL GOODWIN,ANDREW MILLER, CHIEF CHARLES LEE WEIGEL, and CHIEF GARY JEANDRON,and it is intended by the parties hereto to settle fully and finally all differences between them,including, but in no way limited to,those differences embodied in the action referred to hereinafter. WHEREAS,plaintiff has set forth claims and a lawsuit for damages arising out of an incident which occurred on or about May 4,2002; WHEREAS,these parties are parties to litigation filed in California for the U.S. District Court, Case No. ED CV 03-0489 RT(SGLx); WHEREAS, plaintiff has alleged and there was testimony to the effect that plaintiff suffered both physical and emotional injuries?<?r"Llt of ti a ineiocnt 1y117 1 is the subil-04 Of the above-entitled lawsuit; WHEREAS, plaintiff has agreed to dismiss with prejudice individual Defendants CITY OF PALM SPRINGS, ("City"),and the following officers in their official and individual capacities:MICHAEL GOODWIN, ANDREW MILLER,CHIEF CHARLES LEE WEIGEL, and CHIEF GARY JEANDRON; 02/03/2004 18:00 FAX 17804188808 GRAHAM rd 000 Mary Lanca Settlement and Release Agreement February 3,2004 Page 2 WHEREAS,these parties wish to settle all differences among them,arising out of, or in any way conceming, connected with,or pertaining to the facts, circumstances, events and purported causes of action alleged as a result of the incident occurring on or about May,4, 2002, as alleged in the above-mentioned litigation. NOW, THEREFORE, for full and valuable consideration and based upon the foregoing recitals and terms,conditions, covenants and agreements contained herein, the parties agree as follows: 1. Settlement Payment. The City of Palm Springs will pay plaintiff and her attorney the total sum of Fifty Thousand'Dollars, ($50,000.00), in full consideration and settlement of all claims by plaintiff,including any claims for attorney's fees and litigation costs. Said sum constitutes a full and complete settlement and compromise of the Claims, and of all disputes arising out of or related to the Claim. Payment in full will be made within 10 days of plaintiff's counsel presenting the executed Settlement Agreement to the City's attorney, Karen R. Graham. 2. R::ieas "iiaeiCby rE::ae 3a.'1( fC:Ever cl:�`c�iarge"tI^l"Cc-tEndlan>.S,ni 2r:II' each of their predecessors, successors,assigns,past or present employees(including but not limited to each of the employees identified or accused in the claim),officers, directors, agents, attorneys, 'insurers,subsidiaries, divisions or affiliated corporations or organizations,whether j previously or hereafter affiliated in any manner, ("the Released Parties"), from any and all I claims,demands,causes of action,obligations,damages,attorneys' fees, costs and liabilities of 02/03/2004 18:30 FAX 17604188808 GRAHAM Q004 Mary Lanca Settlement and Release Agreement February 3, 2004 Page 3 any nature whatsoever,whether or not known,suspected or claimed, which plaintiff ever had, Dow has,or may claim to have as of the date of this Agreement against the Released parties (wbether directly or indirectly),or any of them,by reason of any act or omission concerning any matter,cause or thing,including,without limiting the generality or the foregoing,any claims related to or arising out of the claim including any and all claims arising out of the counter claim by MICHAEL GOODWIN,or any claims asserted or which could have been asserted in the claim. 3. Dismissal of Cross-Complaint. Defendant MICHAEL GOODWIN agrees to dismiss his cross complaint against the Plaintiff MARY LANCA. 4. Discovery of Different of Additional Facts. The parties acknowledge that they may hereafter discover facts different from or in addition to those they now know or believe to be true with respect to the claims,demands, causes of action, obligations, damages,and liabilities of any nature whatsoever that are the subject of this Agreement,and they expressly agree to assume the risk of the,possible discovery of additional or different facts,agree that this Ag.oemein S:all be ii.d rernair eri`Vctive in all IespeCiS regardles5 ^.f such aqua icnal or different facts. S. Release of Unknown Claims. The Agreement set forth herein is a general release of ALL claims,demands,causes of action, obligations, damages, and liabilities of any nature whatsoever that are described in the Agreement and are intended to encompass all known 02/03/2004 18:30 FAX 17604180098 GRAHAM Roos Mary Lanca Settlement and Release Agreement February 3,2004 Page 4 and unknown,foreseen and unforeseen claims which the parties may have against each other, except for any claims which may arise from the terms of this Agreement. 6. Waiver of Civil Code Section 1542. The panics expressly waive and relinquish all rights and benefits they may have under Section 1542 of the Civil Code of the State of California, The statute reads as follows: §1542, (General Release—Claims Extinguished.) A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 7. Nan-Admission of Liability.The panics acknowledge and agree that this Agreement is a settlement of disputed claims. Neither the fact that the parties have settled nor the terms of the Agreement shall be construed in any manner as an admission of any liability by defendants or any of their employees, or any affiliated person or entities,all of whom consistently have taken the position that they have no liability whatsoever to plaintiff. 8. No Assignment of Claims. Plaintiff warrants that she has made no assignment, and will make no assignment,of any claim,action,right of action,or any right of any kind whatsoever,embodied in any of the claims and allegations referred to herein,and that no other person or entity of any kind had or has any interest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts,damages,attorneys' fees, costs,expenses, losses or claims referred to herein. I I i 02/03/2004 18:31 FAX 17604188008 GRAHAM 121008 Mary Lanca Settlement and Release Agreement February 3,2004 Page 5 9. Successors and ASSiens. This Agreement,and all the terms and provisions hereof,shall be binding upon and shall inure to the benefit of the parties and their respective heirs,legal representatives,successors and assigns- 10. Knowine and Voiuntarv. The parties spcci caily represent that prier to signing this Agreement,they have been provided a reasonable period of time within which to consider whether to accept this Agreement. The parties represent that they have each carefully read and fully understand all of the provisions of this Agreement,and that they are voluntarily, knowingly,and without coercion entering into this Agreement based upon their own judgment. 11. Assistance of Counsel. The parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Agreement concerning the terms and conditions of this Agreement. 12. Counterparts. This Agreement may be executed in multiple counterparts,each of which shall be considered an original but all of which shall constitute one agreement. 13. Enforcement Costs. Should any legal action be required to enforce the terms of this Agreement,the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. 14. Severability. Should any portion, word, clause,phrase, sentence or paragraph of I this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. I I 02/03/2004 18:31 FAX 17604166638 GRAHAM U007 Mary Lanca Settlement and Release Agreement February 3,2004 Page 6 15. Ambi ui . The parties acknowledge that this Agreement was jointly prepared by them,by and through their respective legal counsel,and any uncertainty or ambiguity existing herein shall not be interpreted against any of the parties,but otherwise shall be interpreted according to the application of the rule on interpretation of contracts. 16. Waiver. Failure to insist on compliance with any term,covenant or condition contained in this Agreement shall not be deemed a waiver of that term,covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times, 17. Governing Law. 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 said state without giving effect to conflict of law principles. 18. Tax Ramifications. Plaintiff understands and agrees that defendants are providing plaintiff with no tax or legal advice,and make no representations regarding tax I obligations or consequences, if any,related to this agreement. Further,the parties have endeavored in good faith to allocate appropriately the payment set forth above. Notwithstanding the foregoing,if any claim is asserted against defendants by any taxing authority with respect to i this payment, plaintiff shall indemnify and hold defendants, and each of them,harmless. 1.9. Entire Agrcement. This Agreement constitutes the entire Agreement between the parties who have executed it and supercedes any and all other agreements, understandings, U<i U3 2UU4 18,36 FAX 116U416608 (GAAHAM 10OU8 Mary Lana Settlement and Release Agreement February 3, 2004 Page 7 negotiations, or discussions, either oral or in writing, express or implied, between the parties to this Agreement. The parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otberwise,have been made by them, or anyone, acting on their behalf, which are not embodied in this Agreement,that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement,promise, agreement or warranty not contained in this Agreement including, but not limited to, any purported supplements, modifications, waivers or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the parties to this Agreement. IN WITNESS THEREOF,the undersigned have executed this Settlement Agreement and Release of All Claims on the date set forth below_ CITY OF PALM SPRINGS DATED: -✓ - SUE, Risk Manager DATED: By: lainti LANCA DATED:_ By: CI ARY JEANDRON 02/03/2004 18:37 FAX 17604166638 GRAHAM Q 012 I It is further stipulated that the Defendant MICHAEL GOODWIN dismisses his counter 2 claim against Plaintiff, MARY LANCA. 3 Respectfully Submitted, 4 S BRUNI BATTERSBY, MCHELANEY, & 6 / BECKS 7 Dated: 1 r 1-0 ell Attorney for Plaintiff, Mary Lanca 9 10 ALESHIRE & WYNAER, LLP 11 12 Dated: 13 BY: KAREN R. GRAHAM Attorney for Defendants, City of Palm Springs, 14 Palm Springs Police Department, Charles Lee Weigel, Gary Jeandron 15 16 CASTLE, PETERSEN & KRAUSE. 17 is Dated: 14 BY: JUSTIAN JUSUF Attorney for Defendants, Officers Goodwin and 20 Miller 21 ORDER: 22 The Court having reviewed the above stipulation, it is so ordered: 23 24 25 Dated: BY: HONORABLE ROBERT TIMLIN 26 UNITED STATES DISTRICT JUDGE I 27 28 I i Stipulation of the Parties for Dismissal of the Action 2 02/03/2004 18:36 FAX 17604166638 GRAHAM 009 Mary Lanca Settlement and Release Agreement February 3, 2004 Page 8 DATED: By: CHARLES LEE WEIGEL DATED: By: MICHAEL GOODWIN DATED:_— By: ANDREW MILLER APPROVED AS TO FORM: DATED: 02 ' 3-O 7 BRU Y, McELHANEY , &B By: ER Attorney for Plaintiff, Mary Lanca DATED: By: KAREN R. GRAHAM Attorney for City of Palm Springs, Palm Springs Police Department; Lee Weigel, Chief Gary Jeandron CASTLE, PETERSEN & KRAUSE DATED: By: JUSTIAN JUSUP Attorney for Michael Goodwin and Andrew Miller 02/03/2004 19:31 FAX 1760416663A GRAHAM U 000 Mary Lanca Settlement and Release Agreement February 3,2004 Page 8 DATED: -?/ e C'' /^G � By: C RLES LEE WE� DATED:_o �� By: MiCHAIE'L GOODW N e DATED: A By. �A DRE MILLER v APPROVED AS TO FORM: DATED: BRUNICK, BATTERSBY, MCELHANEY , &BECKETT By: STEPHEN MILLER Attorney for Plaintiff,Mary Lanca DATED: By,J / IKAREN R. GRAHAM Attorney for City of Palm Springs, Palm Springs Police Department; Lee Weigel, Chief Gary Jeandron CASTLE, PETERSEN&KRAUSE DATED: By: JUSTIAN JUSUF Attorney for Michael Goodwin and Andrew Miller I I 02/18/2004 17:51 FAX 760 323 8178 PALM SPRINGS POLICE DEPT Z 001 02/03/2004 18:31 FAX 176041866JR GRAHAM 0 000 Mary Lanca Settlement and Release Agrcemeat February 3,2004 Page 8 DATED: By: �I LCflIARLES LEE WEIG L DATED: ,/.-�`� -1)t-/ By: �. MICHAEL GO D IN DATED: By. ANDREW MILLER APPROVED AS TO FORM: DATED: BRUNICK, BATTERSBY, McFLHANEY , &BECKETT By. STEPHEN MILLER Attorney for Plaintiff,Mary Lanca DATED: By: KAREN R. GRAHAM Attorney for City of Palm Springs, Palm Springs Police Department; Lee Weigel, Chief Gary Icandron CASTLE, P RSEN &KRAUSE DATED: a7 By: 7[1 IAN J SUF Attorney for Michael Goodwin and Andrew Miller 02/03/2004 18:31 FAX 17604166638 GRAHAM U 010 I= Mary Lanca Settlement and Release Agreement February 3,2004 Page 9 APPROVED AS TO FORM CITY OF PALM SPRINGS A Municipal Corporation DAVID READY City Manager if /ATTEST ( PATRICIA SANDERS City Clerk APPROVED By THE CITY QOUNQN L ✓N ' I� I I