1996-0307_MCLAUGHLIN, C/ F_Settlement Agreement0
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SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made and
entered into in Orange County, California, as of March 7 , 1996, by and among FRANCES N.
McLAUGHLIN, aka CHRIS McLAUGHLIN, individually and dba M & M TRADING and
M & M JEWELERS ("Plaintiff"), on the one hand, and the CITY OF SAN JUAN
CAPISTRANO ("City"), a municipal corporation, and the SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY ("Agency"), on the other hand, with reference
to and based upon the following:
A. Plaintiff was a tenant in certain real property located in the City of San Juan
Capistrano, County of Orange, State of California, commonly known as 31754 Camino
Capistrano, San Juan Capistrano, California 92675, and described as:
A portion of Lot 24 of Tract No. 103 Recorded in book 11, pages
29 to 33 inclusive, of Miscellaneous Maps, Records of Orange
County, California
The parcel described above shall be referred to herein as the "Property."
B. On or about November 10, 1994, Plaintiff submitted a claim for damages to the
City and Agency (the "Claim"), wherein she sought, among other things, tenant relocation,
damages, compensation, and attorneys' fees related to or arising from the Agency's purchase
and subsequent sale of the Property, and the new owner's subsequent actions relating to the
Property and its possession.
C. On or about May 27, 1995, Plaintiff filed an action against the City and Agency
entitled Frances N. McLauehlin. et al. v. San Juan Capistrano Community Redevelopment
Agency. et al., Orange County Superior Court Case No. 747762 (the "Action").
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D. Plaintiff has alleged that as a direct and proximate result of the acts and/or
omissions of City, the Agency, and their agents, employees, and officers, as well as the actions
of the current owner of the Property, Plaintiff has suffered the loss of her tenancy in the
Property, loss of personal property, loss of fixtures and equipment, loss of business goodwill,
moving expenses, lost profits, emotional distress, expert fees, and attorneys' fees, among other
damages and expenses.
E. The City and Agency have denied each of the foregoing allegations and the claim.
F. The parties believe that it would be in their respective best interests to settle their
differences on the terms specified in this Agreement. They have thus executed and delivered
this Agreement in settlement, fully and forever, of all rights, duties, liabilities, claims, demands,
damages, rights of action, and causes of action, whether known or unknown, between said
parties relating in any way to the Action.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the agreements
contained herein, it is mutually agreed upon by and among the parties hereto as follows:
1. ObliEations of the APencv:
The Agency shall tender a draft for the total sum of Forty -Five Thousand Dollars
($45,000.00). Said sum represents Forty Thousand Dollars ($40,000.00) for Plaintiff and Five
Thousand Dollars ($5,000.00) in attorney's fees. Said draft shall be made payable jointly to
FRANCES N. McLAUGHLIN and the law firm of Parker, Milliken, Clark, O'Hara and
Samuelian. Said payment shall be delivered to the law firm of Parker, Milliken, Clark, O'Hara
and Samuelian within five (5) business days after the date upon which this Agreement has been
fully executed by all parties and approved as to form by all counsel.
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2. Oblieations of Plaintiff:
As consideration for the performance of the obligations set forth in Paragraph 1 herein,
Plaintiff shall do both of the following:
(a) Plaintiff shall execute this Agreement;
(b) Plaintiff shall direct her attorney to execute and file the Request for
Dismissal with prejudice as to Frances N. McLaughlin, aka Chris McLaughlin, individually and
dba M & M Trading and M & M Jewelers, only, in the exact form and content as the document
attached hereto as Exhibit "A." This Request for Dismissal shall be filed within five (5)
business days after Plaintiff's counsel's receipt of the draft referred to in Paragraph 1.
3. Release:
(a) In consideration for the agreements of the City and the Agency as set forth
herein, Plaintiff, on behalf of herself, and her family, heirs, guardians, representatives,
attorneys, lenders, lien holders, successors and assigns, does hereby release the City, the
Agency, their past or present councilmembers, Agency members, directors, mayors, managers,
officials, boards, commissions, employees, agents, attorneys, and other representatives, and San
Juan Partners, its past or present principals, partners, agents, employees, attorneys, and other
representatives (collectively the "Released Parties"), of any and all claims, actions and causes
of action, obligations, liabilities, indebtedness, breaches of duty, claims for injunctive and other
equitable relief, suits, liens, losses, costs or expenses, including attorneys' fees, of any nature
whatsoever, known or unknown, fixed or contingent, arising out of, based upon or relating to
the facts or allegations contained in the Recitals herein, in Plaintiff's Claim, in the Action, and
any and all claims relating in any manner to the Property, or arising from or relating to
Plaintiffs tenancy, or the termination thereof.
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(b) Waiver of Civil Code Section 1542: By releasing and forever discharging
claims both known and unknown as above provided, Plaintiff expressly waives any rights under
California Civil Code Section 1542, which provides:
"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 SETTLEAIENT WITII THE
DEBTOR."
Plaintiff waives and relinquishes any rights and benefits which she has or may have under
Section 1542 of the Civil Code of the State of California. Plaintiff has performed a full and
complete investigation of the facts pertaining to the settlement. Nevertheless, Plaintiff
acknowledges that she may hereafter discover facts in addition to or different from those which
she now knows or believes to be true with respect to the subject matter of this Agreement, but
it is her intention hereby to fully and finally forever settle and release any and all matters,
disputes and differences, known or unknown, suspected and unsuspected, which now exist, may
exist or heretofore have existed, as against the Released Parties relating in any way to her Claim
or the Action and, in furtherance of this intention, the release herein given shall be and remain
in effect as a full and complete general release notwithstanding discovery or existence of any
such additional or different facts.
(c) Consultation with Counsel: By initialling below, Plaintiff acknowledges
that she has specifically reviewed with her attorney the meaning and effect of the release set
forth in subparagraph (a), the language from Civil Code Section 1542 quoted in subparagraph
(b), and the waiver contained in subparagraph (b), her attorney has fully explained the impact
of these provisions, and she knowingly accept the risks associated with these provisions.
FRANCES N. McLAUGHLIN W
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By entering into this Agreement, no party hereto admits that the claims or contentions
of the other were or are valid or meritorious. Each party hereto has in the past denied and
continues to deny the claims, assertions, allegations and contentions of the other and this
Agreement and the underlying settlement are strictly for the purposes of compromising a dispute.
5. Advice of Counsel:
The undersigned and each of them hereby declare and represent that in effecting this
Agreement, each has received full legal advice as to their respective legal rights and each hereby
certifies that he, she or it has read all of this Agreement and fully understands the same.
6. Additional Documents and Instruments:
Each of the parties hereto agrees to execute and deliver to each of the other parties hereto
all additional documents, instruments and agreements required to take such additional actions
as are required to implement the terms and conditions of this Agreement.
7. Successors and Assigns:
The parties agree that the rights and obligations arising out of the Agreement, and each
of its terms, shall be assignable and delegable, respectively, and shall inure to the benefit of and
be binding upon the heirs, personal representatives, successors and assigns of the parties, and
each of them.
8. Attorneys' Fees:
In any proceeding at law or in equity to enforce any of the provisions or rights under this
Agreement, the prevailing party shall be entitled to recover from the unsuccessful party all costs,
expenses and reasonable attorneys' fees incurred therein by the prevailing party (including
without limitation such costs, expenses and fees on any appeals) and if such prevailing party
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shall recover judgment in any such action or proceeding, such costs, expenses, including those
of expert witnesses, and attorneys' fees shall be included in and as part of the judgment.
9. Apylicable Law:
The parties hereby agree that this Agreement is made, executed and entered into and is
intended to be performed within the State of California and that this is a California agreement
and is to be construed as such.
10. Integration:
This Agreement contains the entire agreement and understanding concerning the subject
matter herein and supersedes and replaces any prior negotiations and agreements between the
parties, whether written or oral. Each of the parties acknowledges representation by counsel
throughout all negotiations which preceded the execution of this document and the document has
been executed with the consent and upon the advice of counsel. Each of the parties
acknowledges that no party or agent or attorney of any other party has made any promise,
representation, or warranty, express or implied, not contained in this Agreement, to induce the
other party to execute this instrument.
11. Warranty of No Undue Influence:
The parties hereby warrant and represent that they are not aware of any duress, menace,
fraud, coercion, or undue influence which has caused any party to enter into this Agreement.
Each of the parties hereby warrants and represents that it is not aware of any acts or conduct by
which, in executing this Agreement, the mind of any of the parties hereto has been overcome
by the will of another person.
12. Attorneys' Fees and Costs Previously Incurred:
Except as expressly provided in Paragraph 1, above, each party shall be responsible for
her or its own costs, attorneys' fees, and expert witness fees, incurred in connection with each
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of the above -referenced actions, suits and disagreements. Plaintiff and her attorney specifically
acknowledge and agree that in executing this Agreement, they are waiving any and all rights to
recover attorneys' fees, costs, expert witness fees, including any right of recovery under Code
of Civil Procedure Section 1036, other than the Five Thousand Dollars ($5,000.00) provided for
in Paragraph 1.
13. Construction of Agreement:
This Agreement shall be construed as if it were drafted by all parties.
14. Counterparts:
This Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement
and Release.
DATED: March Z, 1996
APPROVED AS TO FORM:
PARKER, MILLIKEN, CLARK,
O'HARA and SAMUELIAN
RICHARD L. FRANCK
By L�—�
Richard L. Franck
Attorneys for Plaintiff
DATED: March _, 1996
CI7
UA
FRANCES N. McLAUG IN
[Signatures Continued on Next Page]
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SAN JUAN CAPISTRANO COMMUNITY
REDEV P AGENCY
DATED: March R , 1996 B
Borg . Scarborough,
Executive Director
APPROVED AS TO FORM:
RICHARD K. DENHALTER
CITY ATTORNEY
By: /_ L� eius
%tichard K. Denhalter 3/7/94
RUTAN & TUCKER
M. KATHERINE JENSON
DAN SLATER
c
By ( `�-
M. Katherine Jenson
Attorneys for City of San Juan
Capistrano and San Juan Capistrano
Community Redevelopment Agency
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Nene. AdMISS and Telephone No. of Attomey(s)
RICHARD L. FRANCK
PARKER, MILLIKEN, CLARK, O'HARA & SAMUELIAN
333 SOUTH HOPE STREET, 27TH FLOOR
LOS ANGELES, CA 90071-1488
(213) 683-6500
State Bar No. 23737
Attorney(s) for-P.LAINTIF.F.. FRANCIS.. N.........
McLAUGHLIN, at al.
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Space Below for Use of Court Clerk only
............ &VRF TQR..... COURT OF CALIFORNIA, COUNTY OF ..Q ?AN.QFi...................
(SUPERIOR, MUNICIPAL, or JUSTICE)
.............................................................................................
(Name of Municipal or Justice Court Diablo or of branch court. It any)
Plaintiff(s): FRANCES N. McLAUGHLIN, at CASENUMRER 747762 [DEPT. 30]
al.
REQUEST FOR DISMISSAL
TYPE OF ACTION
Defendants(s): SAN JUAN CAPISTRANO O Personal Injury, Property Damage and Wrongful Death:
COMMUNITY REDEVELOPMENT AGENCY, at ED Motor Vehicle I= Other
al. M Domestic Relations M Eminent Domain
(Abbreaseearnle) ® Other: (Specify).Inveree..Condemnation;..Lnt:ier—
ference with Contractual Rights; Nuisance
TO THE CLERK: Please dismiss this action as follows: (Check applicable boxes.)
1. ® With prejudice O Without prejudice
2 ® Entire action Complaint only O Petition only Cross-complaint only
® Other: (specify)* AS TO PLAINTIFF FRANCES N. McLAUGHLIN, individually and
dba M & M TRADING and M & M JEWELERS, ONLY
Dated:. M?Kgib..... 7 ..... A-1996...............
BR dismissal requested is of specified PWU69 only. of 11136CHM
muses of action ono a of sp9dffed croes-comploelte only. so
state and Iderltlfy the Partiae. Causes of action Or cross-complaints
to be dismissed.
PARKER, AILLIKEN, CLARK, O'HARA & SAMUELIAN
Attorney(i)1•5r PLAINTIFF FRANCIS N.
McLAUGHLIN, at al.
RICHARD L. FRANCK
TO THE CLERK: Consent to the above dismissal is hereby given.•
Dated: ..............................................
sswhafl a cit as -complaint (or Response Marriage) saeltln0 af irma-
We fallen Is M fee, the attorney(S) for the crone -Complainant
(respondent) must sign this consent When required by CCP
561(1). (2) of (9.
(To be completed by clerk)
Attorney(s)for
(Type or print attorney(s) name(s))
(Type or print attorney(s) name(s))
Q Dismissal entered as requested on..........................................................................................
0 Dismissal entered on ..... :......................... as to only.............................................................,
Dismissal not entered as requested for the following reason(s), and attorney(s) notified on
Dated.........................................................
3 Form Adapted by Rule 982 of
The Judicial council of California
Rralised Effective July 1. 1972
Clerk
, Deputy
REQUEST FOR DISMISSAL Cal. Rules or dun.
EXHIBIT A Rule 1233