DocuSign Envelope ID: 9D22B0CE-648A-4E43-BADB-D7E2B26448B7
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (Agreement) is entered into by and between Plaintiff Jose Sotelo ("Plaintiff") and the City of Richmond (the "City"), and Eric Smith, Jr. ("Smith") (collectively, "Defendants") to settle and terminate fully and finally all disputes arising out of the matters described hereinafter as between them. Plaintiff and Defendants are herein individually referred to as "Party" and collectively referred to as the "Parties."
RECITALS
A. On October 25, 2022, Plaintiff initiated the action titled, Sotelo v. City of Richmond, et al, United States District Court Case No. 3:22-cv-06475, alleging three claims for relief, brought under the federal civil rights statute (42 US § 1983) and state law tort and civil rights claims against the City and Richmond Police Officers Karel Marecek and Smith (collectively, the "Officer Defendants"). The lawsuit is referred to herein as the "Action." Officer Karel Marecek has been dismissed from the Action.
The City assumed and has maintained the defense of Smith pursuant to Government Code section 995, and has authority to settle on his behalf.
C. The Parties hereto wish to terminate the Action; to avoid the uncertainty and costs of trial, and any potential appeals therefrom; and to resolve fully and finally all disputes that may exist between the Parties concerning the allegations set forth in the Action; the Parties by this Agreement desire and intend to compromise and settle all claims and controversies among and between one another arising out of or related to the Action.
D. By entering into this Agreement, Defendants make no admission of liability for the claims set forth in the Action. Defendants' agreement to settle Plaintiff's disputed claims shall not be construed in any manner as an admission of any liability by Defendants, which has been vigorously disputed liability since the Action was filed.
II. AGREEMENT AND RELEASE
NOW, THEREFORE, in consideration of the respective promises and representations herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, and without admitting or implying any fault or liability, the Parties agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are hereby referred to, incorporated, and made a part of this Agreement.
Consideration. The City shall pay to Plaintiff the total sum of One Hundred and Five Thousand Dollars and Zero Cents ($105,000.00) (the "Settlement Payment") in full consideration and settlement of any and all claims Plaintiff has or may have against City, the 01337.0038/940212.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
DocuSign Envelope ID: 9D22B0CE-648A-4E43-BADB-D7E2B26448B7 Officer Defendants, and any unnamed Richmond police officers relating to the allegations set forth in the Action. The Settlement Payment shall be made payable to "The Law Office of Gustavo Magaña in Care for Jose Sotelo." The Settlement Payment shall be delivered to:
Gustavo Magaña, Esq.
4701 Patrick Henry Dr., Bldg. 16, Suite 15F
Santa Clara, CA 95054
Settlement Payment Prerequisites. The Settlement Payment shall be delivered within thirty (30) days of the occurrence of all of the following (calculated from the last occurring):
(1) receipt by the City of this Agreement executed by Plaintiff and his counsel, and (2) receipt by the City of IRS Form W-9 from the Law Office of Gustavo Magana.
4. Dismissal of the Action with Prejudice. On October 24, 2023, the Honorable Charles R. Breyer dismissed the Action without prejudice based on the tentative settlement reached on October 23, 2023. Pursuant to the Order issued on October 24, 2023 (Dckt. No. 37), the Action will be dismissed with prejudice within sixty (60) days, unless one of the Parties certifies to the Court that the agreed consideration for the settlement herein has not been delivered.
5. General Release of Claims. Plaintiff hereby fully and forever releases, discharges, and covenants not to sue the City, its officials, consultants, attorneys, agents and employees, Officer Defendants, and any unnamed Richmond Police Department officers (collectively, "Releasees") from and against any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, or expenses, fixed or contingent, whether presently known or unknown, which Plaintiff now has or may hereafter have against the Releasees arising from, or in any way related to, the incident alleged in the Action, or which could have been filed in any action or suit arising from the incident alleged in the Action. The Parties acknowledge and agree that the payment of said Settlement Payment shall and does hereby fully and totally compensate Plaintiff for any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, or expenses, fixed or contingent, whether presently known or unknown, which Plaintiff now has or may hereafter have against the Releasees arising from, or in any way related to, the Action.
6. Personal Injury Claims. The Parties acknowledge and agree that the payment of the Settlement Payment shall and does hereby fully and totally compensate Plaintiff for any and all property damage; personal and physical injury; including without limitation any pain, suffering, emotional distress, anxiety or trauma, and any physical manifestations thereof; and the medical treatments related thereto, arising out of or related to the allegations set forth in the Action. Plaintiff further acknowledges that the injuries sustained by Plaintiff are of such character that the full extent and type of injuries are not known at the date hereof, and it is further understood that said injuries, whether known or unknown at date hereto, might possibly become progressively worse and that, as a result thereof, further damages may be sustained by Plaintiff. Nonetheless, Plaintiff 01337.0038/940212.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
DocuSign Envelope ID: 9D22B0CE-648A-4E43-BADB-D7E2B26448B7 desires to forever and fully release and discharge the City, the Officer Defendants, and any unnamed Richmond Police Department officers, and understands that, by the execution of this Agreement, no further claims may ever be asserted by Plaintiff with respect to the incident alleged in the Action.
7. Discovery of Different or Additional Facts. Plaintiff acknowledges that he may hereafter discover facts different from or in addition to those that he now knows or believes 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 the Release set forth in Paragraph 5 of this Agreement, and expressly agrees to assume the risk of the possible discovery of additional or different facts.
Plaintiff agrees that this Agreement shall be and remain effective in all respects regardless of such additional or different facts.
8. Mutual Release. In consideration of the terms and conditions of this Agreement, and payment of the Settlement Payment and the filing of the Request for Dismissal set forth above, the Parties hereby release and forever discharge each other, their respective elected officials, officers, directors, managers, partners, principals, employees, representatives, agents, insurers, attorneys, subsidiaries, affiliates, and assigns from any and all claims, costs, losses, demands, actions, causes of action, damages and liability of every nature whatsoever, whether known or unknown, suspected and unsuspected, arising out of or relating to in any way to the claims asserted in the Action. This release by the Parties is intended to be a release as to the entire incident, regardless of whether any such claims were pursued in the Action or not.
9. Release of Unknown Claims. The Parties acknowledge that they are familiar with and fully understand Section 1542 of the California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT 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 Parties agree that it is within their contemplation that they may have defenses, claims, demands, actions, causes of action, obligations, damages and liabilities, which may in some way arise from, relate to, or result from the Incident but which are unknown or unanticipated at the time of executing this Agreement. The Parties acknowledge and agree that by reason of this Agreement, they are assuming the risk of such unknown facts and such known and unsuspected claims and demands and they intend and agree that this Agreement applies thereto as related to the Action and/or the Incident notwithstanding the discovery of the existence of any additional or different claims and demands or facts relative thereto. The Parties knowingly and expressively waive the provisions, rights and benefits of Section 1542 of the California Civil Code. 01337.0038/940212.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
DocuSign Envelope ID: 9D22B0CE-648A-4E43-BADB-D7E2B26448B7 Effective Date. The releases as set forth above shall be effective as of the last date of the execution of this Agreement by the Parties and shall extend to all present and/or potential claims, causes of action, costs, or demands which may exist against the City, the Officer Defendants, and any unnamed Richmond Police Department officers, and/or the Releasees up to and including the effective date of this Agreement, regardless of whether such claims, causes of action, costs or demands, are stated, alleged or even suspected by Plaintiff hereto prior to such effective date.
11. Authority to Enter into Agreement. The Parties each represent and warrant that they are the sole owners of the claims, demands, and liabilities which they are releasing, and they have full power to give the releases provided herein. The Parties further represent and warrant that they have not, prior to the execution of this Agreement, assigned to any other person or entity any of the claims being settled, released or waived by the terms of this Agreement.
12. No Admission of Liability. Plaintiff acknowledges and agrees that this Agreement results from a compromise between the Parties and shall not in any way be construed as an admission of liability on the part of any Party to the settlement. Neither the fact that the Parties have settled nor the terms of this Agreement shall be construed in any manner as an admission of any liability by the City, including the Officer Defendants, and attorneys, all of whom have consistently taken the position that there is no liability whatsoever.
13. Attorneys' Fees and Costs. Each Party shall bear their own attorneys' fees, expenses, and costs incurred in connection with the Action, and the Parties expressly waive any claim for recovery of any such attorneys' fees, expenses, and costs. In the event any action at law or in equity is required to enforce any of the provisions or rights under this Agreement, or for breach of any provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs.
14. No Reliance on Representations by Others. The Parties represent that they have relied on their own investigation and judgment in regard to all matters contained herein, including the consequences of this transaction as the result of application of any federal or state tax law, that they have not relied on any representations made by any other party, that this Agreement is entered into by them of their own volition, and that they entered into this Agreement free of any duress, coercion, or undue influence of any source whatsoever.
15. Advice of Counsel. The Parties acknowledge that they have read this Agreement in its entirety; that they have had an opportunity to be advised by counsel of their choice; and that they have full, complete, and total comprehension with respect to the terms of this Agreement.
16. Entire Agreement. This Agreement contains the entire understanding of the Parties concerning this matter. This Agreement may be amended or modified only by a writing executed by all the Parties.
01337.0038/940212.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
DocuSign Envelope ID: 9D22B0CE-648A-4E43-BADB-D7E2B26448B7
17. Governing Law. This Agreement shall be interpreted in accordance with and governed in all respects pursuant to the laws of the State of California.
18. Counterparts. This Agreement may be executed by facsimile in any number of unterparts and signature pages and by different parties on separate counterparts and signatul ages, each of which, when so executed and delivered, shall be an original, and all suc counterparts shall together constitute one and the same instrument.
19. Miscellaneous Provisions.
a. This Agreement is binding upon and shall inure to the benefit of the Parties, their respective agents, employees, boards, representatives, shareholders, officers, directors, partners, divisions, corporations, subsidiaries, parents, affiliates, assigns, heirs, predecessors, and successors, past, present and future, and all of their insurers, guarantors, sureties, and reinsurers. b. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
C. The Parties shall each be deemed to have drafted this Agreement, such that no ambiguity in the Agreement, if any, shall be construed against any Party. d. The Parties agree to perform all acts and execute and deliver all documents necessary to carry out the purpose and intent of this Agreement promptly and in good faith.
IN WITNESS WHEREOF, the Parties have approved and executed this Agreement.
PLAINTIFF:
11/22/2023 DocuSigned by:
Ballad
Dated: By:
Jose Sotelo, an Tidividual
CITY OF RICHMOND:
Dated: By:
Eduardo Martinez, Mayor
APPROVED AS TO FORM ONLY:
The Law Office of Gustavo Magaña
01337.0038/940212.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
DocuSign Envelope ID: 9D22B0CE-648A-4E43-BADB-D7E2B26448B7 Gustavo Magaña
Gustavo Magaña, Counsel for Jose Sotelo
City Attorney, City of Richmond
David J. Aleshire, City Attorney
01337 0038/940212.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE