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HomeMy WebLinkAbout2022-05-26 Mesa settlement agreement and release 5-26-2022 EXECUTED, HILEMAN.pdfRELEASE OF ALL CLAIMS This Settlement Agreement and Release ("Agreement") is made by: Sherry Mesa; Rick Mesa; RV Management Co. ("RV"); and the City of Palm Desert ("City"). The parties listed in the preceding sentence are hereinafter sometimes individually referenced as "Party" and collectively referenced as the "Parties." 1. RECITALS 1.1. Sherry and Rick Mesa (collectively "Plaintiffs") filed Case No. CVPS2103100 in the Superior Court of California for the County of Riverside, claiming damages sustained in connection with Sherry Mesa's fall on or about March 25, 2021 (the "Incident"), and naming as defendants RV and the City. RV endeavored to submit a government claim to the City in anticipation of filing a cross -complaint against the City. These claims shall hereinafter be collectively referenced as the "Litigation." 1.2. This Agreement is intended to resolve the Litigation in its entirety, including all complaints, cross -complaints, and claims for indemnity or contribution, without any admission of wrongdoing. The Parties acknowledge that the Terms set forth below are sufficient consideration for the Agreement. 2. TERMS 2.1. $100,000.00 will be paid to Plaintiffs by or on behalf of RV. 2.2. $100,000.00 will be paid to Plaintiffs by or on behalf of the City. 2.3. The payments described in ¶¶2.1-2.2 above shall be made payable to "Sherry Mesa, Rick Mesa, and Cicalese Jaguar Law Firm, PC" and delivered to Cicalese & Johnson, LLP, 45915 Oasis Street, Indio, California 92201. The payments will become due when this Agreement has been fully executed. 2.4. Within 7 days after receipt of the payments described in ¶¶2.1-2.2 above, Plaintiffs will file a request for dismissal of their complaint in its entirety with prejudice. Plaintiffs agree that, if their complaint is not so dismissed, Plaintiffs will be liable for reasonable attorney fees and costs incurred on behalf of any other Party required to enforce this Agreement. 2.5. Mutual Release by Parties — Except for the obligations of this Agreement, the Parties hereby release and discharge each other, and each of their current and former employees, consultants, agents, assigns, predecessors -in -interest, successors -in -interest, attorneys, insurers, representatives, joint powers insurance authority, indemnitors, and all persons acting by, through or in concert with any of them, (collectively, the "Releasees") from any and all claims, demands, contracts, liabilities, obligations, accounts, expenses, covenants, causes of action, suits, damages, judgments, interest, fees, costs, orders and liabilities, of whatever kind or nature, in law, equity or otherwise, whether known or unknown, suspected or unsuspected, which they ever had, now Page I of 5 Mesa v. RV Management Co., et al. Riverside County Superior Court Case No. CVPS2103100 have, or claim to have, against the Releasees based upon, or arising out of, the Incident or Litigation. 2.6. This Agreement releases all claims for injuries, damages, or losses to each Plaintiff's person and property, real or personal, whether known, unknown, foreseen, unforeseen, patent or latent, which each Plaintiff and each of their respective heirs, agents, executors, administrators, and/or assigns may have against the other Parties or Releasees. 2.7. This release and settlement includes any and all claims and liens for medical services, government benefits, legal services, or liens of any other kind whatsoever, whether actual or asserted, present or prospective, any claims, causes of action, or rights to attorney fees, interest, and costs incurred, whether actual or asserted, present or prospective, as against Releasees. 2.8. Each Party understands and acknowledges the significance and consequence of a specific waiver of the protection of California Civil Code Section 1542. With respect to the matters described in ¶112.5 - 2.7 above, each Party specifically waives the protection of Section 1542 of the California Civil Code, which provides that: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Notwithstanding the waiver of Civil Code Section 1542, the release provided for herein is specific to the matters set forth above in ¶112.5 — 2.7 above and is not intended to create a release as to unrelated claims, or potential claims, between the Parties. 2.9. Plaintiffs each represent that they have not received, and do not expect to receive, Medicare benefits in connection with any injury sustained as a result of the Incident. Plaintiffs waive any private cause of action that each may now or at any later time have against Releasees pursuant to 42 U.S.C. § 1395y in relation to the Incident. Plaintiffs further agree for themselves, their heirs, agents, executors, administrators, and assigns to fully and expressly indemnify, save and hold harmless, and defend Releasees from and against all claims, demands, causes of action, damages, costs, losses, fines, penalties, and liabilities arising out of any lien or claim described herein. Plaintiffs acknowledge their right to seek waiver, compromise, or a reduction of claims, demands, causes of action, damages, costs and losses, and liabilities arising out of any lien or claim described herein. In the event of any claim, lien, demand, cause of action described herein, Plaintiff s agree to cooperate with Releasees to comply with reasonable requests for information or documents, a copy of any settlement agreement, waiver, or other document evidencing resolution. 2.10. The Parties to this Agreement have each been represented by independent legal counsel in negotiating the settlement reflected by this Agreement and in drafting this Agreement. They and their attorneys have made such investigations of the facts concerning this Agreement as they have felt was necessary, they have each relied upon their own and their own legal Page 2 of 5 Mesa v. RV Management Co., et al. Riverside County Superior Court Case No. CVPS2103100 counsel's investigations and not upon any representations of the other Parties in deciding to enter into this Agreement, except for the representations expressly set forth in this Agreement. 2.11 Each Party hereby represents that the release given through this Agreement is freely and voluntarily given. 2.12. Plaintiffs each hereby represent that, at the they sign this Agreement, they are not hospitalized in a medical facility, nor were they admitted to a medical facility within the past 15 days. Plaintiffs further represent that this Release is not executed under duress. 2.13. The language of this Agreement is the product of the mutual effort of the Parties and their respective legal counsel. This Agreement shall be construed fairly as to all Parties, and it shall not be construed for or against any Party based in the extent to which that Party participated in drafting it. 2.14. If any provision of this agreement is determined to be invalid or unenforceable, the remainder shall remain in full force and effect and shall not be affected thereby unless the invalid provision(s) goes to the heart of the agreement and destroys its purpose and intent. 2.15. This Agreement shall be govemed by California law, and the Riverside County Superior Court shall retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enter judgment,pursuant to the terms of the Agreement and to enforce performance in full of the Agreement. The venue for any action relating to this Agreement shall be the Palm Springs branch of the Riverside County Superior Court. 2.16. This Agreement may be pleaded or asserted by or on behalf of the Parties or Releasees as a defense and bar to any action or claim that may be brought against a Party or Releasee by anyone with respect to any of the matters within the scope of this Agreement, excepting only the obligations of this Agreement. 2.17. This Agreement constitutes a single, integrated contract expressing the Parties' entire Agreement concerning its subject matter. All prior discussions and negotiations concerning the subject matter of this Agreement have been merged and integrated into, and are superseded by, this Agreement This Agreement may not be modified except by writing signed by all Parties to be bound by the modification. 2.18. The individuals signing on behalf of any entity represent that they have proper authority to do so 2.19.. This Agreement may be executed in counterparts, including facsimile and electronically transmitted counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. Page 3 of 5 Mesa v. RV Management Co., et al. Riverside County Superior Court Case No. CVPS2103100 CAUTION: READ BEFORE SIGNING DATED: By: DATED: By: SHERRY MESA RICK MESA DATED: RV MANAGEMENT CO. By: (signature) (print name and title) DATED: CITY OF PALM DESERT By; fed Atafri ( rint name d title GTJ-t /4 Page 4 of 5 Mesa v. RV Management Co., et al. Riverside County Superior Court Case No. CVPS2103100 APPROVED AS TO FORM: DATED: CICALESE & JOHNSON, LLP/CICALESE JAGUAR LAW FIRM, PC By: JAMES V. CICALESE COUNSEL FOR SHERRY MESA AND RICK MESA DATED: LAW OFFICES OF JOHN A. HAUSER By: SUZANNE T. NORRIS COUNSEL FOR RV MANAGEMENT CO. DATED: GIBBS & FUERST, LLP By: MICHAEL T. GIBBS KEVIN L. BORGEN ATTORNEYS FOR CITY OF PALM DESERT Page 5 of 5 Mesa v. RV Management Co., et al. Riverside County Superior Court Case No. CVPS2103100