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HomeMy WebLinkAboutContracts & Agreements_193-2021Settlement Agreement and Release of Claims Gana Ruan v City of Redlands, et al California Superior Court of Superior Court of California County of San Bernardino, Case No CIVDS 1910501 United States Bankruptcy Court for the Central District of California, Riverside Division Case No 6 18-bk-18347-WJ A. PARTIES 1 This Settlement Agreement and Release of Claims (hereinafter "AGREEMENT") is made by, between, and/or on behalf of the following parties (a) A Cisneros, Trustee of the Bankruptcy Estate of Gina Ruan and Santos Ruan in United States Bankruptcy Court for the Central District of California, Riverside Division case number 6 18-bk-18347-WJ (hereinafter referred to as "PLAINTIFF") on the one hand, (b) Defendant, Softscapes the Art of Landscaping (hereinafter referred to as "SOFTSCAPES"), on the other hand, (c) Defendant, FPA6 Sunset View, LLC, (hereinafter referred to as "FPA6"), on the other hand, AND (d) Defendant City of Redlands (hereinafter referred to as "CITY"), on the other hand 2 PLAINTIFF, SOFTSCAPESFPA6, and CITY are at times collectively referred to herein as "SETTLING PARTIES" and individually as "SETTLING PARTY " 3 When referred to herein, SETTLING PARTIES, SETTLING PARTY, PLAINTIFF, SOFTSCAPES,FPA6, and CITY, and each of them, include their heirs, successors, assignees, designees, attorneys, shareholders, members, partners, officers, directors, managers, employees, employers, principals, agents, parent companies, subsidiary companies, affiliated companies, predecessors-m-interest, successors -in -interest, family members, insurers, subcontractors, materials suppliers, manufacturers, design professionals, engineers, and all other affiliated entities, persons, and/or agents, whether or not named as a party to this case, except as expressly set forth herein below B RECITALS 1 WHEREAS, this matter involves claims of alleged bodily injuries, hospital and medical expenses, and other related damages, stemming from an alleged slip and fall incident occurring at or near 1132 Lugonia Ave , Redlands, CA 92374 (hereinafter "SUBJECT PROPERTY") that occurred on September 8, 2018 ("SUBJECT INCIDENT") 1 2 WHEREAS, on October 2, 2018, Gina Ruan and Santos Ruan filed a bankruptcy petition under Chapter 7 of Title 11 of the United States Code as United States Bankruptcy Court for the Central District of California, Riverside Division ("Bankruptcy Court") case number 6 18- bk-18347-WJ ("Bankruptcy Case") 3 WHEREAS, A Cisneros is the duly appointed and acting Chapter 7 Trustee of the Bankruptcy Estate of Gina Ruan and Santos Ruan ("Bankruptcy Estate") 4 WHEREAS, pursuant to 11 U S C § 541, all legal and equitable interest in any claim ansing from the Subject Incident became property of the Bankruptcy Estate upon the filing of the Bankruptcy Case 5 WHEREAS, Gina Ruan's unverified Complaint was filed on April 8, 2019, in the San Bernardino Superior Court, entitled Czty of Redlands, et al , Case Number CIVDS 1910501 and alleging causes of action for negligence, premises liability, against CITY and FPA6 Following, on February 13, 2020, FPA6 filed its First Amended Cross -Complaint, naming SOFTSCAPES, alleging Implied Contractual Indemnity, Equitable Indemnity, Breach of Warranties, Breach of Written Contract, Contribution, and Declaratory relief (hereinafter "ACTION") 6 WHEREAS, SOFTSCAPES,FPA6, and CITY deny and continue to deny any and all liability to PLAINTIFF 7 WHEREAS, the ACTION involves disputed questions of fact and law, and, in order to avoid the uncertainties and costs of further litigation, tnals, and appeals, and without any admission of liability or fault whatsoever, it is the intent of the SETTLING PARTIES to settle and release any and all claims and/or cross -claims between them that currently exist, have previously existed, or may exist in the future arising out of, or related in any way to, the ACTION and/or any and all other allegations, claims, cross -claims, and defenses related to the ACTION NOW, THEREFORE, in consideration of the covenants contained herein, the SETTLING PARTIES do hereby agree as follows C. SETTLEMENT TERMS 1 Incorporation of Recitals The Recitals above are incorporated by reference as though set forth hereinafter 2 Consideration The consideration for settlement of all past, present and future claims of PLAINTIFF against SOFTSCAPES and FPA6 in the ACTION and arising out of or related to the SUBJECT INCIDENT and SUBJECT PROPERTY, and the dismissal of the operative Complaint in this ACTION with prejudice is as follows (a) Within thirty (30) calendar days following receipt of a fully executed copy of this AGREEMENT, and a completed W-9 from the settlement payee, SOFTSCAPES,FPA6, and CITY and/or their insurers shall collectively issue payment to PLAINTIFF as follows 2 (i) A payment of fifty thousand dollars and zero cents ($50,000 00) to A Cisneros, Trustee of the Bankruptcy Estate of Gina Ruan and Santos Ruan by SOFTSCAPES and FPA6, (11) A payment of fifteen thousand dollars and zero cents ($15,000) to A Cisneros, Trustee of the Bankruptcy Estate of Gina Ruan and Santos Ruan by CITY, (b) The above -referenced consideration of SOFTSCAPES,FPA6, and CITY shall be hereinafter referred to as the "SETTLEMENT PAYMENTS " (1) The SETTLEMENT PAYMENTS shall be made payable as follows A Cisneros, Trustee of the Bankruptcy Estate of Gina Ruan and Santos Ruan (n) The SETTLEMENT PAYMENTS shall be mailed to Malcolm ♦ Cisneros, A Law Corporation, Attention A Cisneros, 3403 10th Street, Suite 714, Riverside, CA 92501 (c) PLAINTIFF shall provide his original signature to counsel for SOFTSCAPES,FPA6 and CITY, who will provide a fully -executed copy of this AGREEMENT to all counsel Facsimile or electronic signatures are also acceptable and shall have the same force and effect as an original 3 Subject to Approval of the United States Bankruptcy Court The Parties agree that this Settlement Agreement is subject to the approval of the Bankruptcy Court in the Bankruptcy Case If this Agreement is not approved by the Bankruptcy Court, it will be of no force or effect 4 Dismissal PLAINTIFF agrees to dismiss the ACTION with prejudice within fourteen (14) days of PLAINTIFF'S receipt of the SETTLEMENT PAYMENTS and entry of a Bankruptcy Court order approving this AGREEMENT by filing a Request for Dismissal with Prejudice in the ACTION PLAINTIFF further agrees and represents that, upon execution of this AGREEMENT and dismissal of the ACTION with prejudice, PLAINTIFF will not file any action or proceeding regarding the SUBJECT INCIDENT or in relation, in any way, to the ACTION and that PLAINTIFF'S claims against SOFTSCAPES, FPA6, and CITY will be fully satisfied and resolved through this AGREEMENT SOFTSCAPES, FPA6, and the CITY agree to dismiss all Cross -Claims against one another with prejudice within fourteen (14) days of entry of a Bankruptcy Court order approving this AGREEMENT by filing Requests for Dismissal with Prejudice in the ACTION 5 Release For and in consideration of the terms and conditions outlined herein, SETTLING PARTIES do hereby fully, forever, finally, generally, and completely release, relieve, 3 acquit, remise, and discharge each other from any and all past, present or future claims, demands, covenants, suits, obligations, damages, losses, controversies, costs, expenses, attorney's fees, and compensation of any nature whatsoever, whether based on a tort, contract, or other theory of recovery, rights, liens, claims for bodily and personal injunes, mental or emotional distress, causes of action, appeals, and any other liability of whatever kind and nature, whether currently known or unknown, suspected or unsuspected, which previously existed, currently exist, or hereafter can, shall, or may exist, which directly or indirectly relate to or result from the alleged acts or omissions of SETTLING PARTIES ansing out of the ACTION against SOFTSCAPES,FPA6 and CITY 6 Risk of Unknown Claims SETTLING PARTIES acknowledge that there is a risk that, subsequent to the execution of this AGREEMENT, SETTLING PARTIES may discover, incur, or suffer claims which were unknown or unanticipated at the time this AGREEMENT is executed, including, without limitation, unknown or unanticipated claims which arise from, are based upon, or are related to the ACTION, the SUBJECT PROPERTY, and/or some aspect thereof, which if known by SETTLING PARTIES on the date of this AGREEMENT being executed, may have materially affected their decision to execute this AGREEMENT SETTLING PARTIES expressly assume the risk of such unknown and unanticipated claims and agree that the releases provided in this AGREEMENT apply to all such claims 7 Waiver of Rights Under California Civil Code Section 1542 SETTLING PARTIES expressly acknowledge that they received the advice of legal counsel concerning the provisions of California Cavil Code section 1542, and that they are familiar with the provisions of California Civil Code section 1542, which provide as follows 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, of known by him or her, would have materially affected his or her settlement with the debtor or released party. SETTLING PARTIES further acknowledge that they may have sustained damage, loss, cost, or expense that is presently unknown or unsuspected, and that such damage, loss, cost, or expense as may have been sustained may give rise to additional damage, loss, cost, or expense in the future Nevertheless, SETTLING PARTIES acknowledge that this AGREEMENT has been negotiated and agreed upon in light of this situation, and they hereby expressly waive any and all rights that they have under California Civil Code section 1542, or under any other state or federal law of similar effect, with respect to the releases they provide herein, but only as to the ACTION and the SUBJECT PROPERTY 8 Confidentiality SETTLING PARTIES and their counsel acknowledge that the terms of the settlement and this AGREEMENT are confidential and shall remain confidential SETTLING PARTIES agree that neither them nor their attorneys nor representatives shall reveal to any third person any of the terms, covenants, or conditions of this AGREEMENT, including but not limited to the identities of any SETTLING PARTY, the case number(s), the venue of this ACTION, or the amounts, terms, or conditions of any sums payable to PLAINTIFF as stated herein this AGREEMENT, in any future communications except that a copy of this AGREEMENT will be filed as an Exhibit to Plaintiff's Motion to Approve this Agreement The Motion will be filed in the Bankruptcy Case Nothing in this section, however, shall prevent SETTLING PARTIES or 4 counsel for the Settling Parties to this AGREEMENT from complying with any legal obligation, including under the Public Records Act (Calzfornza Gov Code, § 6250 et seq , PRA) and/or statutory law, which requires one or more of the SETTLING PARTIES to disclose this AGREEMENT, the terms of this AGREEMENT, and/or the transactions contemplated by this AGREEMENT The terms of this provision shall apply except with regard to disclosures (1) to such SETTLING PARTY'S attorneys or tax preparers/advisors who reasonably need to know the information in order to provide professional services to such SETTLING PARTY or such SETTLING PARTY'S counsel, (2) as otherwise required by law, or (3) as necessary to enforce the terms of the AGREEMENT Such confidentiality is a material term of this AGREEMENT D GENERAL PROVISIONS 1 Incorporation of Recitals The Recitals above are incorporated by reference as though set forth hereinafter 2 Binding Effect This AGREEMENT shall be binding upon the SETTLING PARTIES' successors, heirs, assigns, spouses, children, hen claimants, personal representatives, parent corporations, subsidiary corporations, affiliated entities, directors, shareholders, and all others, including but not limited to individuals, partnerships, and corporations connected with the ACTION, previously mentioned herein in this AGREEMENT, except as set forth heremabove 3 Fees and Costs The SETTLING PARTIES shall each bear their own costs, including attorney's fees, expert costs, liens, and any other costs incurred in or with respect to the ACTION, including the preparation, drafting, and execution of this AGREEMENT and with respect to the compliance with their respective obligations as set forth herein 4 Disputes Notwithstanding the above provisions, any disputes concerning application, interpretation, and/or breach of this AGREEMENT arising between the SETTLING PARTIES following execution of this AGREEMENT, shall be submitted to the Bankruptcy Court and the Bankruptcy Court shall have jurisdiction for that purpose The prevailing party in any such subsequent litigation shall be entitled to reasonable attorneys' fees, investigative expenses, expert and consultant fees, and court costs incurred in such an action The venue of any such dispute shall be the Bankruptcy Court, and the controlling law shall be the law of the State of California 5 No Admissions This AGREEMENT is entered into solely for purposes of compromise of the specific disputed claims set forth herein, and each SETTLING PARTY expressly agrees and acknowledges that no other SETTLING PARTY has admitted, and by execution and performance of this AGREEMENT, does not admit, any liability, wrongdoing, or obligation to any other SETTLING PARTY 6 Inclusive Language Whenever in this instrument the context requires the masculine, feminine, and/or neutral gender, each shall be deemed to include the other, and the singular and plural are each deemed to refer to the other 7 Severabihty If any term or provision hereof is deemed illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this 5 AGREEMENT, unless said term or provision is provided herein or determined to be a material term or provision of this AGREEMENT 8 Controlling Law This AGREEMENT, its validity, the construction of its terms, and the interpretation of rights and duties of the parties hereto, shall be governed and construed under the laws of the State of California 9 Understanding of The Agreement This Agreement is contingent upon and expressly conditioned upon the issuance of an order by the Bankruptcy Court in the Bankruptcy Case approving the settlement pursuant to Federal Rule of Bankruptcy Procedure ("FRBP") 9019 The Parties acknowledge that this Agreement is the result of good faith negotiations between the Parties and upon execution, agree not to object to or oppose the motion to approve the settlement pursuant to FRBP 9019 10 Counterparts This AGREEMENT may be executed in one or more counterparts, each of which, after each of the SETTLING PARTIES have signed and delivered, through counsel, at least one such counterpart to each other SETTLING PARTY, shall have the same force and effect as an original executed by all SETTLING PARTIES, and photo copies of signatures shall have the same force and effect as original signatures 11 Fully -Integrated Contract This AGREEMENT contains the entire settlement and release of the SETTLING PARTIES, and the terms of this AGREEMENT are contractual 12 Modification No modification, amendment, or waiver of any of the provisions contained in this AGREEMENT shall be binding unless made in wntmg and signed by all of the affected SETTLING PARTIES and/or by their duly authorized officers or agents 13 Third Party Beneficianes This AGREEMENT is not intended, nor shall rt be construed, to create or confer any rights or benefits in anyone not a party hereto except as expressly provided herein 14 Joint Drafting The SETTLING PARTIES hereby acknowledge and agree that the drafting and finahzmg of this AGREEMENT is the product of a joint effort by all SETTLING PARTIES, and/or their respective legal counsel, and that, as a result, any ambiguity in this AGREEMENT shall not be interpreted to the detnment of any SETTLING PARTY to this AGREEMENT on any basis, including an application of any statutory or common law rule that may construe ambiguity against the drafting party 15 Factual Uncertainty The SETTLING PARTIES hereby acknowledge that each may hereafter discover facts different from and/or in addition to those facts that each may now know or believe to be true, with respect to the claims and/or other matters herein released, and each SETTLING PARTY agrees that this AGREEMENT shall be and remain in full force and effect in all respects, notwithstanding any such later discovered different and/or additional facts 16 Independent Judgment Each of the SETTLING PARTIES executes this AGREEMENT, acting upon his/its independent judgment and with the advice of his/its respective legal counsel, without any representations or inducements, express or implied, of any kind or nature, from each to the other, or from any other party, except as specifically set forth herein 6 17 Legal Representation In reaching this settlement and signing this AGREEMENT, all SETTLING PARTIES have been counseled and/or recommended to seek the advice of an attorney to discuss the facts and circumstances of the ACTION, the settlement reached, and the terms and conditions of this AGREEMENT 18 Ownership of Claims PLAINTIFF represents that he has standing to bnng the claims referenced herein and PLAINTIFF has the authority, standing, and legal right to settle each such claim relating to the ACTION has not sold, transferred, conveyed, assigned, hypothecated, and/or subrogated any of the rights, claims, or causes of action released herein 19 Authonty The undersigned executing this AGREEMENT has authority to do so 20 Effectuation SETTLING PARTIES agree and covenant to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force to the basic terms and intent of this AGREEMENT and which are not inconsistent with its terms 21. Good Faith Settlement. SETTLING PARTIES warrant, represent, and agree that this AGREEMENT has been entered into in good faith, at arm's length, without collusion, and is the production of the negotiation of adverse interests as between the SETTLING PARTIES 22. Voluntary Execution. PLAINTIFF represents and warrants that she understands the contents of this AGREEMENT and has executed it voluntarily IN WITNESS WHEREOF, the undersigned hereto have accepted this AGREEMENT on the dates specific below DATED October , 2021 DATED October fj , 2021 A CISNEROS, TRUSTEE OF THE BANKRUPTCY ESTATE OF GINA RUAN AND SANTOS RUAN SO?TSCAPES THE ART OF LANDSCAPING 7 DATED. October '1 , 2021 DATED October 1 Z , 2021 DATED• October 12, , 2021 22470335 1 10836-0054 M1C' SQ.M.B Yf2L, VICE PRESIDENT OF FPA6 SUNSET VIEW, LLC a Delaware limited liability company `HE CITY OF I EDLA ALIFORN ITS. MA-Yoik, ATTESTATION B DONALDSON edlands City Clerk END OF AGREEMENT