Loading...
10-1215_SCALZO FAMILY TRUST_Settlement AgreementSETTLEMENT AGREEMENT 1. Introduction. This Settlement Agreement ("Agreement") is made and entered into as of December 15, 2010, among and between the following entities and individuals, both on their own behalf and on behalf of any and all Related Persons and Entities (as defined below): s Plaintiff Martin E. and Marion E. Scalzo Family Trust, Frederick T. Scalzo, and Donna M. Osterrniller, co -trustees (collectively "SFY'); and Defendants City of San Juan Capistrano ("City"), the City Council of the City of San Juan Capistrano ("City Council"), and Nasser Abbaszadeh ("Abbaszadeh") (collectively "Defendants"). 2. Definitions. As used in this Agreement, the following phrases and words have the following meanings: A, "The "2006 Action" means Martin E. and Marion E. Scalzo Family T rust v. City of °San Juan Capistrano and City Council of City of San Juan Capistrano, Grange County Superior Court Case Number 06CC04179, including the two appellate cases, numbers G044137 and G044456 arising out of the judgment and post judgment proceedings therein. "The 2010 Action" means Martin K and Marion E. Scalzo Family Trust v. City of San Juan Capistrano and Nasser Abbaszadeh, Orange County Superior Court Case Number 30-2010-00358880. S. "Claim" or "Claims" shall refer to any and all claims, demands, liabilities, losses, damages, punitive damages, errors, obligations, complaints, cross- complaints, causes of action, negligent acts, negligent omissions, liability without fault, misrepresentations, material omissions, fraud, deceit, fraud in the inducement, mistake, breaches of contract, attorney's fees, expert's fees, and any other actionable omissions, conduct or damage of every kind and nature whatsoever, whether in tort, contract or extracontractual, at law or in equity, actual or contingent, foreseen or unforeseen, known or unknown, past, present. or future. C. "Parties" shall refer to SFT and Defendants. D. "Related Persons and Entities" shall refer to any and all past, present and future parent companies, divisions, subsidiaries, affiliates, partnerships, limited liability partnerships, corporations, limited liability corporations, business entities, members, owners, stockholders, directors, officers, employees, insurers, lenders, mortgage holders, predecessors, predecessors -in -interest, successors, successors - in -interest, assigns, partners, joint venturers, legal representatives, agents, attorneys, heirs, administrators, trusts, trustees, beneficiaries, creditors, assigns, lessees, tenants, residents, legal owners and equitable owners that are related in any way to the Parties. Sealzo Family Trust v. City of San Juan Capistrano, et of Orange County superior Court, Case Nos. 06CCO4179 and 30-2010-00358880. 3, Recitals, This Agreement arises out of the following circumstances: A. The City owns a dedicated drainage easement adjacent to SFT's real property in San Juan Capistrano, California. B. On March 16, 2006, SFT filed the 2006 Action. This action proceeded through the writ of mandate process and ultimately resulted in bench trial and jury trial. A judgment in the amount of $9,410,205.93 was entered against the City in favor of SFT in the 2006 Action. on October 25, 2010. The City appealed that judgment and post judgment rulings. C. On April 1, 2010, SFT filed the 2010 Action. The 2010 Action currently is in the discovery phase, with a trial date in May, 2010. D. The Parties attended several days of Mandatory Settlement Conferences before the Honorable Linda S. Marks, sitting as a settlement conference judge. E. As a result of the Parties' negotiations through business principals and counsel, and with the valuable assistance of Judge Marks, it became clear that the Parties were willing to substantially compromise their claims and defenses in order to avoid the risks, expenses, delays and uncertainties inherent with a trial and appeals of this nature. F. On December 13, 2010, Judge Marrs made a mediator's proposal, which was accepted by SFT on the record, and which the City accepted on the record subject to City Council approval. On December 15, 2010, in a Special Session, the City Council approved the settlement, which was confirmed in writing by the City Attorney. Attached as Exhibit A is the Memorandum for Global Settlement agreed to by the Parties, and which is attached to the court reporter's transcript for the December 13, 2010 proceedings. That agreement is enforceable under Code of Civil Procedure, section 664.6. This agreement is in furtherance of that settlement. 4. Settlement Payment and Dismissal. In return for the releases discussed below, Defendants have agreed to pay to Plaintiffs the sum. of $6,350,000.00. The City will pay SFT a total of $3,175,000.00 by December 31, 2010 and $3,175,000.00 by June 29, 2011. Payment shall be made by wire transfer to the Newrneyer & Dillion Client Trust Account, taxpayer identification number 330051418. The City has agreed that if it is able to fund the second payment of $3,175,000.00 as a result of replenishing the reserves through financing or a bond offering before the June 29, 2011 deadline, it will fund the remainder of the settlement within 72 hours of receiving the funding. Wire transfer instructions were provided to the City's attorneys by e-mail on December 16, 2010. A copy of that e-mail, with wire transfer information, is attached as Exhibit B. 2 Scalzo Family Truvt v. City of San Juan Capistrano, et al. ©rwge County Superior Court, Case loos. 06CCO4179 and 30-2€110-00358880. 5. Final Man Processing. All discretionary issues related to the final map for Tentative Tract Map 16146 -- BellaDonna Estates shall be decided by Sam Shoucair. SFT agrees to exercise due diligence in taking steps to submit information to the City that is necessary for processing of the final map. SFT agrees that initial documents for the final map will be submitted by May 1, 2012. SFT and the City will enter into a Subdivision Improvement Agreement if required. A. SFT understands Sam Shoucair may be unavailable from April 2011 through October 1, 2011. B. if Mr. Shoucair leaves his employment with the City, or is unable to perform this function due to incapacity, the lead contact person for the City concerning the final map will be a person SFT and the City mutually agree upon. If within 10 days after Mr. Shoucair's last day of employment or date of incapacity the parties have not agreed upon someone to replace Mr. Shoucair, the matter will be submitted to the Court to select the City's lead contact person, with each party submitting two names accompanied by each proposed person's curriculum vitae. 6. City's Drainage Easement Work. The Hall & Foreman, Inc, plan from 2007 for improvements to the City's dedicated drainage easement ("Hall & Foreman Plan") will be implemented, operated and maintained by the City at the City's expense. The City's construction work in the City's dedicated drainage easement will be completed consistent with the Hall & Foreman PIan by .Tune 30, 2013. If the City's construction work in the City's dedicated drainage easement is ongoing and SFT, its successors or assigns, has a final map and they are prepared to begin construction, the City agrees to consider construction phasing of the development to allow construction of the area not adjacent to the City's dedicated drainage easement to begin while the City's dedicated drainage easement work is completed. A, The City will cause the City's selected contractor to obtain a performance bond for the benefit of both the City and SFT in an amount equal to 100% of the construction costs to implement the Hall & Foreman Plan. The City will cause the City's selected contractor and/or subcontractor to name SFT as an additional insured on all insurance policies concerning the contractor's and/or subcontractor's work in or near the City's dedicated drainage easement. B. The City will obtain and comply with any necessary resource agency permits, including from the Department of Fish and Game, Water Quality, and the Army Corps of Engineers. C. SFT agrees that the City has the right to use and shall use the Hall & Foreman Plan for the City's construction in the City's dedicated drainage easement. D. SFT agrees that the City has the right, but not the obligation, to use Hall & Foreman, Inc. to supervise construction under the Hall & Foreman Plan. Scalzo Family Trust v. City of San Juan Capistrano, el al. Orange County superior Court, Case Nos. 06CCO4179 and 30-2010-003588$0. E. SFT will dedicate real 'property to the City as indicated in the Hall & Foreman Plan. F, The City agrees to reasonably consider proposed amendments by SFT, its successors or assigns to TTM 16146 to make TTM 16146 consistent with modifications to the City's dedicated. drainage easement as called for in the Hall & Foreman Plan, 7. Temporary Construction Easement. SFT will authorize the City's use of a reasonable portion of SFT's property to access the City's dedicated drainage easement to implement the Hall & Foreman Plan. A temporary construction easement for that purpose will be negotiated between Sam Shoucair and.. George Polycrates. SFTwill provide this temporary construction easement at no cost to the Cty. 8. Mutual releases between SFT and Defendants. SFT and Defendants, on behalf of each of them and on behalf of their Related Persons and Entities, do hereby fully and finally settle, release, acquit and forever discharge each other (and their respective Related Persons and Entities) as to any and all Claims related to or arising out of the 2006 Action and the 2010 Action, 9. Waiver of Civil Code.Section 1542. The Parties acknowledge and understand that there is a risk that, subsequent to the execution ofthis Agreement, they may accrue, obtain, incur, suffer or sustain Claims which in some conceivable way arise out of, are caused by, are connected with, or relate to the Parties (and/or their Related Persons and Entities), which are unknown and unanticipated at the time this Agreement is signed or which are not presently capable of being ascertained. The Parties further acknowledge that there is a risk that any Claims as are known or should be known with respect to the released matters may become more serious than they now expect or anticipate. Nevertheless, the Parties hereby expressly waive all rights they may have in such unknown and unexpected consequences or results as to the released matters. The Parties acknowledge that they have had the benefit of or opportunity to consult with counsel. California Civil Code section 1542 provides: 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 hixn or her must have materially affected his or her settlement with the debtor. The Parties understand and hereby specifically waive any and all rights and benefits under Section 1542 as they relate to the matters released and acknowledge that this settlement would not be made without such a waiver. Initials: "� 10. Dismissals and Continued Jurisdiction. Within 10 days of the earlier of the execution of this memorandum and/or putting the settlement on the record, the City will request the dismissal of its appeals in the 2006 Action and SFT will request the dismissal of the 2006 Action and the 2010 Action. The Honorable Linda Marks shall retain jurisdiction to enforce this Scalzo Family Trust v. City of San Juan Capistrano, et al. Orange County Superior Court, Case Nos. 06CC©4179 and 30-2610-00358880, agreement pursuant to Code of Civil Procedure section 664.6, and pursuant to the agreement between the City and SFT put on the Court's record as further reflected in this Agreement. 11. Notices. In the event any of the Parties provide notice to any other Parties of early compliance or completed compliance with any provisions in this Agreement, notice shall be provided in writing, and deposited in the United States mail, postage prepaid and addressed to the party for whom notice is intended. To SFT: Charles S. Krolikowski, Esq. Neweyer & Dillion, LLP 895 Dove Street, Fifth Floor Newport Beach, CA 92660 With a copy to: Marc Goldstein, Esq. Attorney at Law 620 Newport Center Drive, 11th Floor Newport Beach, CA 92660 To Defendants: Joe Tait, City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 With a copy to: ©rear Sandoval, City Attorney Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 Addresses and recipients for this notice provision may be changed upon written notice to the Parties. 12. Miscellaneous Provisions. A: Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. B. Each of the signatories hereto warrants and represents that he/she/it has not sold, transferred, conveyed, assigned, hypothecated and/or subrogated any of the Claims, rights, or causes of action released herein. C. Except as otherwise provided in this Agreement, the Parties acknowledge and agree that each of them, as between thein, will bear their own costs, expenses and attorneys' fees arising out of and/or connected with the 2006 Action, the 2010 Action and/or the negotiation, drafting and execution of this Agreement, and all matters arising out of or connected therewith. 5 Scalzu Family Trust v. City of San Juan Capistrano, et at. Orange County Superior Court, Case Nos. 06CC04179 and 30-2010-00358880. D. This Agreement is the product of negotiation and preparation by and among the Parties and their respective attorneys. Neither this Agreement nor any provision thereof shall be deemed prepared or drafted by one party or another, or its attorneys, and shall not be construed more strongly against any party. E. This Agreement shall be interpreted in accordance with and governed in all respects by the laws of the State of California. F. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective Related Persons and Entities. G. If any provision or any part of any provision of this Agreement is for any reason held to be invalid, unenforceable or contrary to any public policy, law, statute and/or ordinance, then the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable. H. This Agreement may be executed in counterparts, and all executed counterparts collectively shall constitute an agreement which shall -be binding upon all Parties hereto, notwithstanding that the signatures of all Parties' designated representative's do not appear on the same page. I. The Parties to this Agreement shall execute and deliver any document which is reasonably necessary to achieve the goals and purposes of this Agreement. J. In any action or proceeding relating to this Agreement, the Parties stipulate that a copy of this Agreement may be admissible to the same extent as the original Agreement. K. In the event that any action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases contained in this Agreement, or pertaining to a declaration of rights under this Agreement, the prevailing party shall recover all of that Party's reasonable attorney's fees and costs incurred in each and every such action, suit or other proceedings, including any and all appeals, writs or petitions. L. The Agreement constitutes the entire understanding between and among the Parties with regard to the matters herein set forth. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed. herein. This Agreement shall be interpreted according to its own terms, as 0 kda a Fondly True( Y. Laity gjSan lu ax Cayta r rno. ee al. Orange Coumy Superior Court Case'Nas. 06CCO4170 and 30.2414-0f?JSBitti(1, defined in this Agreement or otherwise according to their ordinary meaning, without any parol evidence. This is an integrated agreement. IN WITNESS OF THEIR AGREEMENT TO THE FOREGOING TERMS, THE PARTIES HAVEEXECUTED THIS AGREEMENT AS INDICATED BELOW, Dated; t5'O %� Martin B. and Marion E, Scalzo Family Trost, Bytonna 4;9:v By , Dated:City of San Juan Capistrano Dated: Dated: By: Joe Tait, City Manager By: - Maria Morris, City Clerk City Council of the City of San Jua:r Capistrano By - Its: Nasser Abbaszadeh By: - Approved as to Form: Dated: __. City of San Juan Capistrano py, 7 Omar Sandoval, City Attorney Scalzo Family Trust v. Cit) of Satz Juan Capistrano, e1 a(. Orange County Superior Court, Case Nos. 06CCO4179 and 30-2010-00358880, defined in this Agreement or otherwise according to their ordinary meaning, without any parol evidence. This is an integrated agreement. IN WITNESS OF THEIR AGREEMENT TO THE FOREGOING TERMS, THE PANTIES HAVE EXECUTED THIS AGREEMENT AS INDICATED BELOW. Dated: Dated: Martin E. and Marion E. Scalzo Family Trust. C Frederick T. Scalzo, co -trustee By: — Donna M. Osterrniller, co -trustee City of San .Than Capistrano 3y: Oe T it, ty Manager By: _ Mar o is, City Ck. Dated: % - 9. _ City Council of the City of San Than Capistrano By: Its:/�- Dated: _ 1 Nasser Abhaszadeh By: Approved as to Foran: Dated: { - _ _� City of San .Tuan Capistrano By: may alRI vol, City Attorney 7 Scalzo Family Trust v. City of San Juan Capistrano, et al. Orange County Suncrior Court, Case Nos. 06CCO4179 and 30-2010-00358880, defined in this Agreement or oil7erw,ise according to their ordinary meaning, without any parol evidence. This is an integrated agte6ix ent. IN WITNESS OF THEIR AGREEMENT TO THE FOREGOING TERMS, THE PAR'T'IES HAVE EXECUTED THIS AGREEMENT AS INDICATED BELOW, Dated: / Martin E. and Marion E. Scalzo ramify `frust. Dated; - City of San Juan Capistrano oe Tait, ity Manager By: Maria Morris, City Cleric Dated: _ - [ 'City Council of the City of San ,harp Capistrano By: Its: Dated: -L4,.,"I / Nasser Abbasaadch By. Approved as to Form- Dated: - - _ City of Sar. Juan Capistrano By:9 4 mar val, City &Att2�—eye- 7 Dated: 2499220,1 Scalzo Family Trust v. City of San Juan Capistrano, et al. Orange County Superior Court, Case Nos. 06CCO4179 and 30-2010-00358880. Martin E. and Marion E. Scalzo Family Trusf By: (I -A Charles S. Krolikowski, Esq,, Co -Counsel for SFT .� r . � ...:.�_ � � - �- Canfrdenleuf Sett;emerl Commv>ricmion Prorecred Under Ev(d Cede, ,¢§ 115i erey., 1119 et..raq. Unn! Cna3+7er-Signed Memorandnin for Global Settlement The Scalzo Family Trust ("Sh"I"') and the City of San Juan Capistrano ("City") enter into this binding memorandum for the resolution ofboth; (i) the lawsuit SFT filed against the City in 2006; as well as (ii) the lawsuit SFT Filed against the City in 2010. 1 1 The City will pay SFT a total of $3,175,€i00.00 by December 31, 2010 and $3,175,00uo by June 29, 201 J. Payment shall be made by wire transfer to the Newmeyer & Dillion Client Trust Account. This is a substantial discount from the current judgment amount of $9,410,205.93, which is accruing interest at a daily rate of $1,804.70 since October 25; 2010. The City has agreed that if it is able to fund the second payment of $3,175,000.00 as a result ofreplenish€ng the reserves through financing or a bond offering before the June 29, 2011 deadline, it will fund the remainder of the seitle7nent within 72 hours of receiving the funding. 2. All discretionary issues related to the final map for Tentative Tract Map 16146 shall be decided by Saar Shoucair. S.FT agrees to exercise due diligence in taking steps to submit information to the City that is necessary for processing of the final map.. SFT agrees that initial documents for the final map will be submitted by May 1, 2012. SFT and the City will enter into a Subdivision lmprovement.Agreement if required. (a) SFT understands Sara Shoucair may be unavailable from April 2011 through October 1, 2011. (b) 1f Mr. Shoucair leaves his employment with the City, or is unable to perforin this function due to incapacity, the lead contact person for the City concerning the final Wrap will be a person SFT and the. City mutually agree upon, lfwithin l0 days after Mr. Shoucair's last day of employment or date of incapacity the parties have not agreed upon someone to replace MT. Shoucair, the matter will be submitted to the Court to select the City's lead contact person, with each party submitting two names accompanied by each proposed person's curriculum vitae, 3. The Hall & Foreman, Inc, plan from 2007 for improvements to the City's dedicated drainage easement ("Hall & Foreman Pian") will be implemented, operated and maintained.by the City at the City's expense. The City's consttvction work in the City's dedicated drainage easement will be completed consistent with the hall & Foreman: Plan. by June 30, 2013. If the CiVs construction work in the City's dedicated drainage easement is ongoing and SFT, its successors or assigns, has a final map and they are prepared to begin construction, the City agrees to consider construction phasing of the development to allow construction of the area not adjacent to the City's dedicated drainage easement to begin while the City's dedicated drainage casement work is completed. (a) The City will cause the City's selected contractor to obtain a performance bond for the benefit of both the City and SFT in au amount equal to 104% of the construction costs to implement the Bali & Foreman Plan. The City will cause the City's selected contractor and/or subcontractor to name SFT as an additional insured on all z466451.7. Ca�xlemteal Seltlwnen! Ccm»sunictrtlo,z Proreeted Ureter Evia' Code, 931152 et.rrtg_, 1119 er seq- Unttl L':outrfer Sia ted insurance policies concerning the contractor's and/or subcontractor's work in or near the City's dedicated drainage easement, (b) Tire City will obtain and comply with any necessary resource agency permits, including from the Department of Fish and Game, Water Quality, and die Army Corns of Engineers. (c) SFT agrees that the City has the right to use and shall rise the Hall &i Foreman Platy for the City's construction in the City's dedicated drainage easement, (d) SFT agrees that the City has the right, but not the obligation, to use Hall & Foreman, TDc, to supervise construction under the Tull & Forenran Flan. (e) SFT will dedicate real property to the City as indicated in the Hall & Foreman Plan, (f) The City agrees to reasonably consider proposed amendments by SFT, its successors or assigns to TTM 16146 to make TTM 16146 consistent with modifications to the City's dedicated drainage easement as called for in the Hall & Foreman Plan. SFT will authorize the City's use of a reasonable portion of Sl T's property to access the City's dedicated drainage easement to implement the Nall & Foreman Plan. A temporary construction easement for that purpose wilt be negotiated between Sam Shoucair and George Folycrates. SPT will provide this temporary construction easement at no cost to the City. 4. The "2006 Action" (Orange County Superior Court Case Number 06CC04179, including the rico appellate cases, numbers G044137 and G044456) and the "24110 Action" (Orange County Superior Court Case Number 30-2010-00358980) will be dismissed with prejudice. Within 14 days of the earlier ofthe execution o€this memorandum and/or putting the settlement an the record, the City will request the dismissal of its appeals in the 2006 ,fiction and SFT will request the dismissal of the 2006 Action and the 2010 Action, The 1Tonorable Linda Marks shall retainjurisdiction to enforce this agreement pursuant to Code of Civil Procedure section 664.6; the agreement between the City and SP1' shall be put on the Court's record. 5. SFT and the City shall enter into a written agreement further memorializing this memorandum wliich shall include waivers of Civil Code section 1542 as to both the 2006 Action and the 2010 Action. SFT and Nasser Abbasxadeh shall enter into a written agreement memorializing their agreement which shall. include waivers of Civil Cade section 1342 as to the 2010 Action. 1l! 246645! 2 Co �denno; SertFemenr E atnmvrricarian Protected Linder EWd Code, §S 115, of seg., 1119 et. sm VnW Cwrter Sq -d 6. SFT, the City and Abbaszadeh agree to bear their own costs and at'torney's fees as to the 2446 Action and the 2010 Action. however, in the event there is a dispute arising oat of or related to this memorandum or the written agreement described in paragraph 6, the parties agree that the prevailing party will be entitled to reasonable attorney's Fees. Dated: December 13, 2010 CZ^� �— 4 Frederick T. Scalzo, Co-Trastee Martin E. & Marion E. Scalzo Farn i ly Trust Dated: December4,_ 2010 City oFSan Juan Capistrano 2466431,2 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER DEPARTMENT C7 MARTIN E. AND MARION E SCALZO FAMILY TRUST, FREDERICK T. SCALZO, CO -TRUSTEE, PETITIONER, VS. THE CITY OF SAN JUAN CAPTSTRANO; THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO; AND DOES 1 THROUGH 50, INCLUSIVE, RESPONDENTS CASE NO. 06CC04119 HONORABLE LINDA S. MARKS, JUDGE PRESIDING REPORTER'S TRANSCRIPT DECEMBER 13, 2010 APPEARANCES OF COUNSEL: FOR PETITIONER: NEWMEYER & DTLLION LLP BY: CHARLES S. KROLTKOWSKT CAROL SHERMAN ZAIST AN D MARC GOLDSTEIN, ESQ. FOR RESPONDENTS: ORIGINAL WOODRUFF, SPRADLIN & SMART BY: ANNA R. SALUSKY AND OMAR SANDOVAL, SAN JUAN CAPISTRANO CITY ATTORNEY ALSO PRESENT: FREDERICK T. SCALZO, PETITIONER CYNTHIA RUSSELL, CITY OF SAN JUAN CAPISTRANO REPRESENTATIVE LISA CHARBONEAU PETERS, CSR 6724, OFFICIAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 SANTA ANA, CALIFORNIA - DECEMBER 13, 2010 AFTERNOON SESSION (PROCEEDINGS IN OPEN COURT:) THE COURT ATTENDANT: COME TO ORDER. DEPARTMENT C7 IS IN SESSION. THE COURT: GOOD AFTERNOON. THE COURT WILL CALL THE MATTER OF SCALZO VS. THE CITY OF SAN JUAN CAPISTRANO. IF I COULD HAVE APPEARANCES, PLEASE. MR. XROLIKOWSKI: YES, YOUR HONOR. CHARLES KROLIKOWSKI ON BEHALF OF THE PLAINTIFF THE SCALZO FAMILY TRUST. MS. ZAIST: CAROL ZAIST ALSO FOR THE FAMILY TRUST. MR. GOLDSTEIN: MARC GOLDSTEIN ALSO FOR THE SCALZO FAMILY TRUST. MR. SCALZO: FREDERICK T. SCALZO FOR THE SCALZO FAMILY. THE COURT: GOOD AFTERNOON. THE PLAINTIFF IS PRESENT WITH HIS COUNSEL THIS AFTERNOON. AND ON BEHALF OF THE DEFENDANT. MS. SALUSKY: ANNA SALUSKY ON BEHALF OF THE CITY OF SAN JUAN CAPISTRANO. MR. SANDOVAL: OMRR SANDOVAL, CITY ATTORNEY, SAN JUAN CAPISTRANO. THE COURT: I'M GOING TO ASK -- WE'VE HAD A LISA CHARBONEAV PETERS, OFFICIAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I&OA 20 21 22 23 24 25 26 E REPRESENTATIVE HERE FOR THE LAST THREE DAYS. MS. RUSSELL: CYNTHIA RUSSELL, CITY OF SAN JUAN CAPISTRANO. THE COURT: THANK YOU VERY MUCH. AND WE HAVE A REPRESENTATIVE FROM THE CITY OF SAN JUAN CAPISTRANO. I THOUGHT THAT AFTER WORKING WITH THIS CASE FOR THE LAST THREE DAYS IN TERMS OF NEGOTIATING A RESOLUTION, THAT THIS COURT IS ACTING IN A CAPACITY OF THAT AS A MEDIATOR AND, AS SUCH, FEELS AT 'THIS JUNCTURE, BASED UPON THE WAY THE NEGOTIATIONS HAVE TAKEN PLACE, THAT THE COURT STANDING IN THE SHOES OF A MEDIATOR WOULD PREPARE OR PROPOSE WHAT WE CALI, A MEDIATOR'S PROPOSAL IN 'TERMS OF SETTLEMENT. THE MEDIATOR'S PROPOSAL AT THIS TIME WOULD INCLUDE THE FOLLOWING PARAMETERS FOR SETTLEMENT. THIS IS BASED UPON THE CITY AT THIS TIME BEING REPRESENTED BY MR. SANDOVAL AND MS. SALUSKY GOING BEFORE THE CITY COUNCIL TO PROVIDE THE FOLLOWING PARAMETERS AS A ME'DIATOR'S PROPOSAL ONCE AGAIN. PROPOSAL FOR TERMS OF SETTLEMENT.WOULD BE AS FOLLOWS: $6.35 MILLION, ONE HALF OF THAT AMOUNT TO BE PAID ON OR BEFORE DECEMBER 31, 2010. THE OTHER HALF WOULD BE PAID WITHIN 180 DAYS, AND THAT WOULD BE 180 DAYS OF DECEMBER 31, 2010. IN ADDITION TO THAT, THERE HAVE BEEN DISCUSSIONS WITH.REGARDS TO EASEMENT REPAIR, INSTALLATION, AND LISA CHARBONEAU PETERS, OFFXCIAL COURT REPORTER 1 2 3 4 5 6 7 m 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 MAINTENANCE WHICH WOULD BECOME THE RESPONSIBILITY OF THE CITY OF SAN JUAN CAPISTRANO. THAT PIECE OF THIS MEDIATOR PROPOSAL HAS ALREADY BEEN ACCEPTED BY THE CITY OF SAN JUAN CAPISTRANO AND IS INCORPORATED BY REFERENCE INTO A DOCUMENT ENTITLED "MEMORANDUM FOR GLOBAL ,SETTLEMENT." THAT MEMORANDUM FOR GLOBAL SETTLEMENT IS A 3 -PAGE DOCUMENT. IT OUTLINES APPROXIMATELY SEVEN CONDITIONS THAT THE CITY OF SAN JUAN CAPISTRANO AND THE SCALZO FAMILY TRUST HAVE AGREED UPON AND WOULD BE INCORPORATED INTO THE FULL AND FINAL SETTLEMENT OF THIS CASE. MY PROPOSAL HAS, AS I UNDERSTOOD IT, BEEN ACCEPTED AT THIS TIME BY PLAINTIFF'S COUNSEL -- BY PLAINTIFI-P. AM T CORRECT IN THAT, MR. SCALZO? MR. KROLIKOWSKI: YES, YOUR HONOR. THERE WAS ONE ADDITIONAL ITEM THAT WE DISCUSSED JUST A FEW MINUTES AGO, THAT IF THE CITY IS ABLE TO OBTAIN FINANCING OR BONDS TO REPLENISH THEIR RESERVES AHEAD OF THE 180 DAYS, THAT THEY, ONCE THOSE RESERVES ARE REPLENISHED, THEY WILL BE ABLE TO PAY THE REMAINDER, THE $3,1.75,000 REMAINDER OF THE TERM WITHIN 72 HOURS AFTER THE FUNDS HAVE BEEN REPLENISHED. SO TO THE EXTENT THEY COULD PAY THE SECOND HALE' SOONER, THEY WOULD BE WILLING TO DO THAT. THE COURT: VERY GOOD. IS THAT CORRECT, MS. RUSSELL: THAT'S CORRECT. THE COURT: MS. RUSSELL IS NODDING HER HEAD AND MSA CHARBOiEAV PETERS, OFFICIAL COURT REPORTER I 2 3 4 5 6 7 8 9 10 11 12 13 14 1.5 16 17 y p 19 20 21 22 23 24 25 ON 0 ALSO IS HERE IN THE CAPACITY AS TREASURER, AS I UNDERSTAND, OF THE CITY OF SAN JUAN CAPISTRANO. SHE HAS BEEN WORKING CLOSELY WITH THIS CASE AS WELL. AND SO THERE SHOULD BE A PROVISO THAT IF THERE CAN BE AN ACCELERATION OF PAYMENT OF THE HALF, THEN THE CITY WOULD BE INCLINED TO MAKE THAT PAYMENT PRIOR TO 180 DAYS. MR. SANDOVAL: YES, YOUR HONOR. THE COURT:. NOW, I NEED TO, FIRST OF ALL, INQUIRE OF MR. SCALZO. I NEED TO ASK YOU, MR. SCALZO, IF THE CITY IS ABLE TO -- AND I'M GOING TO ENCOURAGE IN A MOMENT MR. SANDOVAL WHO IS HERE REPRESENTING AS CITY ATTORNEY THE CITY. I UNDERSTAND IT IS ACCEPTABLE TO YOU AS A MEDIATOR' S PROPOSAL THAT THIS CASE --- YOU WOULD BE WILLING TO ACCEPT THIS FULL AND FINAL SETTLEMENT OF YOUR CLAIM THE AMOUNT OF $6.35 MILLION IN THE PAYMENT PLAN THAT HAS BEEN PROPOSED BY THIS COURT.. IS THAT CORRECT, SIR? MR. SCALZO: THAT'S CORRECT, THE COURT: DO YOU HAVE ANY QUESTIONS ABOUT THIS PROPOSAL THAT YOU WOULD LIKE TO ASK YOUR ATTORNEYS? MR. SCALZO: (NO RESPONSE) THE COURT: WELL, ARE YOU SATISFTED THAT YOU UNDERSTAND ALL OF THE TERMS? THE WITNESS: I ONLY HAVE ONE QUES'T'ION. BUT REALLY IT WOULD BE -- IT ONLY .HAS TO DO WITH THE TIMING OF THE CANYON. BUT THAT'S ABOUT IT. .LISA CHARB02MAD PETERS, OFFICIAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a I''m 41 THE•COURT: ALL RIGHT. I WILL -_ ASSUMING THAT THAT IS AN ISSUE THAT YOU CAN HAVE RESOLVED WITH COUNSEL, MY QUESTION TO YOU IS THAT YOU WILL ACCEPT THE $6.35 MILLION TO BE MADE; IN TWO PAYMENTS, HALF BEFORE THE END OF THE YEAR, 12/31/2010, AND THE OTHER HALF WITHIN 180 DAYS; AND THAT IF THE CITY IS ABLE TO COME UP WITH THAT MONEY SOONER, THEM THAT WOULD BE PAID TO YOU WITHIN A 72 -HOUR TIMEFRAME. IS THAT ACCEPTABLE TO YOU, SIR? MR. SCALZO: THAT'S ACCEPTABLE. THE COURT: AND ALSO ACCEPTABLE IS THE EASEMENT REPAIR? I'M CHARACTERIZING IT THAT WAY, BUT THAT'S ALREADY A PIECE THAT I UNDERSTAND THE CITY IS WILLING TO ENTERTAIN AND THAT HAS ALREADY BEEN PART OF AN AGREED-UPON PROVISION IN THIS SETTLEMENT STRUCTURE. MR. SCALZO: YES. IF THAT HASN'T CHANGED, THEN THAT'S FINE. THE COURT: THAT HAS NOT CHANGED. I WANT TO ALSO ASK YOU THE FOLLOWING. YOU UNDERSTAND THAT I AM MAKING THIS INQUIRY OF YOU. FIRST OF ALL, DO YOU FEEL YOU ARE OF SOUND MIND THIS AFTERNOON? MR. SCALZO: I THINK SO, YES, THE COURT: AND YOU FEEL THAT YOU ARE UNDER NO DURESS OR COERCION IN TERMS OF REACHING THIS SETTLEMENT? AND THAT, OF COURSE, IS DEPENDENT UPON CITY COUNCIL APPROVING IT. MR. SCALZO: CORRECT. LISA CEARl30REAU PETERS, OFFICIAL COURT REFOR 'R 1 2 3 4 5 .6 7 8 9 10 11. 12 13 14 15 16 17 1.8 19 20 21 22 23 24 25 26 CON THE COURT: I ALSO WANT TO ASK YOU AND IMPRESS UPON YOU. YOU UNDERSTAND THAT IF YOU WAKE UP AT 2:00' IN THE MORNING AND YOU SAY, "I DON'T KNOW WHAT I WAS THINKING," THAT IT IS -- MR. SCALZO: I'LL PROBABLY DO THAT. THE COURT: WELL, PROBABLY -- PROBABLY GOING TO BE TOO LATE BECAUSE WE ARE INDICATING THIS FOR THE RECORD. MR. SCALZO: YEAH. THE COURT: COMFORTABLE WITH THAI? MR. SCALZO: I UNDERSTAND. THE COURT: ALL RIGHT. THEN I'M GOING TO TURN TO MR. SANDOVAL. MR. SANDOVAL, WILL YOU BE ABLE TO ACCOMPLISH A SPECIAL SESSION BEFORE THE END OF THE WEEK? MR. SANDOVAL: I WILL TRY, YOUR HONOR. I DON'T KNOW IF I WOULD BE ABLE TO DO THAT. BUT FOR SURE THE ONLY THING I CAN AGREE UPON ON THE RECORD IS THE NEXT SCHEDULED COUNCIL MEETING IS JULY 4, 2011. THE COURT: JANUARY 4. MR. SANDOVAL: I'M SORRY. JANUARY 4, 2011. I WILL WORK WITH STAFF IN TRYING TO PUT TOGETHER A SPECIAL SESSION BEFORE FRIDAY. THE CITY IS GOING ON FURLOUGH FOR TWO WEEKS STARTING DECEMBER 20. THE COURT: ALL, RIGHT. I WOULD LIKE YOU TO REPORT BACK TO THIS COURT TOMORROW MORNING, MORE OR LESS LISA CHARBO"AV PETERS, OFFICIAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1.8 19 20 21 22 23 24 25 26 7 BETWEEN 'TOMORROW MORNING --- BEFORE THE END OF TOMORROW WITH REGARD TO THE ABILITY THAT YOU MIGHT HAVE TO GET A SPECIAL SESSION PUT TOGETHER. I NEED YOU -- SO I'M GOING TO HAVE YOU REPORT BACK TO THIS COURT BEFORE THE END OF DAY TOMORROW. AND THEN IN THE EVENT THAT YOU ARE ABLE TO CONDUCT A SPECIAL SESSION, THEN I'D WANT A REPORT BACK BY FRIDAY MORNING, WHICH WOULD BE THE 17TH. MR. SANDOVAL: YES, YOUR HONOR. THE COURT: ONCE AGAIN, THE CITY SHOULD BE APPRISED, OR THE CITY COUNCIL I SHOULD SAY, THAT THIS IS A MEDIATOR'S PROPOSAL. I THINK A SUFFICIENT INQUIRY HAS BEEN MADE OF MR. SCALZO THAT IF THE CITY COUNCIL IS ABLE TO EFFECTUATE THIS RESOLUTION, 'THEN THAT WILL BE A FULL AND FINAL SETTLEMENT OF THIS CASE. CONTEMPLATED IN THAT SETTLEMENT WHICH I WILL PUT ON THE RECORD WOULD BE A DISMISSAL OF A -- THE CASE -- I DON'T KNOW IF WE HAVE A CASE NUMBER INSIDE. WE DO. MS. ZAIST: YOUR HONOR, IT'S IN PARAGRAPH NUMBER 5 ON THE SECOND PAGE. THE, COURT: CORRECT. IT WOULD BE CONTEMPLATION, THEN, OF THE APPELLATE CASE ALONG WITH THE 201.0 ACTION ENDING IN 358880. SO I IMAGINE THAT THIS THREE-PAGE DOCUMENT THAT I AM REVIEWING WILL BE PRESENTED TO CITY COUNCIL AS WELL BECAUSE I THINK IT FINALIZES ALL OF THE ADDITIONAL TERMS. MR. SANDOVAL: YES. .LISA CHARSONMAU PETERS, OFFICIAL COURT REPORTER 1 2 3 4 5 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 THE COURT: AND UNDERSTANDING BETWEEN THE PARTIES. B SO IF YOU CAN REPORT BACK TO THIS COURT BY I DON'T WANT TO -- YOUR TIMEFRAME TO BE A LITTLE FLEXIBLE -- BY THE END OF TOMORROW AS TO WHETHER SPECIAL SESSION CAN BE EFFECTUATED. AND IF, IN FACT, IT CAN, THEN I WILL HAVE YOU REPORTING BACK TO THIS COURT ON DECEMBER 1V. MR. SANDOVAL: OKAY. YES. THE COURT: THERE'S A COUPLE OF DIFFERENT WAYS YOU CAN HANDLE IT. YOU CAN EITHER CALL COUNSEL, PLAINTIFF'S COUNSEL, TO INFORM THEM; OR I CAN HAVE EVERYONE RETURN TO THIS COURT ON FRIDAY MORNING. MR. KROLIKOWSKI: I WOULD JUST NEED A WRITTEN COMMUNICATION, E-MAIL OR LETTER, SAYING THE CITY COUNCIL HAS ACCEPTED THE TERMS AS OUTLINED TODAY WOULD BE ACCEPTABLE. THE COURT: OKAY. MR. SANDOVAL: THAT WOOLD WORK FOR US. THE COURT: I THINK THAT WILL SAVE MONEY AND TIME AND RESOURCES FOR EVERYONE, I DON'T WANT YOU TO UNNECESSARILY HAVE AN EXPENDITURE. AND EACH TIME YOU COME TO THIS COURTHOUSE, THAT'S WHAT HAPPENS. SO WHY DON'T WE DO IT BY WAY OF A LETTER. BUT INFORM THIS COURT OF THAT SPECIAL SESSION. IF YOU CANNOT EFFECTUATE A SPECIAL SESSION, THEN I WILL LISA CHARBONF-AV PETERS, OFFXCIAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9 LEAVE IT IN YOUR HANDS AFTER JANUARY 4, BUT TO REPORT BACK. IF THERE IS ANY ISSUE OR ANY PROBLEM, THIS COURT WILL CONTINUE TO MONITOR THIS CASE. SO IF THERE'S ANY ISSUE THAT ARISES, CONTACT THE COURT. I WILL MAKE THE TIME TO SEE EVERYONE AGAIN IF NEED BE. MR. SANDOVAL: YES, YOUR HONOR. THE COURT: OKAY, MR. SANDOVAL? MR. SANDOVAL: YES. THE COURT: FAIR ENOUGH? I MEAN THAT WAY IF THERE'S ANY ISSUE THAT ARISES, WE CAN TACKLE IT SOONER THAN .LATER. MR. SANDOVAL: YES. THE CLERK: YOUR HONOR, MAY COUNSEL COMMUNICATE TO THIS COURT VIA E-MAIL? THE COURT: IT IS ACCEPTABLE WITH THIS COURT TO COMMUNICATE BY E-MAIL. AND LET ME JUST MAKE THE RECORD VERY CLEAR HERE, THIS TS NOT A CASE THAT IS PART OF THIS COURT'S INVENTORY. THIS CASE WAS ALREADY HEARD BY A JURY. THIS CASE IS ON APPEAL. THE MATTER PRESENTED ITSELF BEFORE JUDGE MCEACHEN. MY UNDERSTANDING WAS MR. MALCOLM WAS GOING TO HANDLE THE MEDIATION IN THIS CASE. HE APPARENTLY WAS ENGAGED IN TRIAL IN FRONT OF JUDGE MCEACHEN IN JUDGE MCEACHEN'S COURT; AND AS A RESULT, THIS COURT RECEIVED A PHONE CALL TO SEE IF IT WOULD CONDUCT AND HANDLE THE MEDIATION. LISA CHARBObMAU PETERS, O'FICTAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 It -On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{ THAT'S HELPFUL. THERE WAS PARAGRAPH 3 DEALING WITH THE SENTENCE TWO LINES FROM THE END .OF THAT PARAGRAPH. IT SAYS, "CITY AGREES TO CONSIDER MR. SANDOVAL INDICATED THAT THERE ARE DIFFERENT DEFINITIONS OF "PHASING." COULD BE MAP PHASING, COULD BE CONSTRUCTION PHASING. I'VE LEFT IT TO THE PARTIES `TO WORK OUT THE LANGUAGE SO THERE'S A CLEAR UNDERSTANDING AS TO WHAT MAP PHASING MIGHT INVOLVE AND WHAT CONSTRUCTION PHASING WOULD INVOLVE AND BEING ABLE TO MEET THE TERMS AS THEY ARE DEFINED IN PARAGRAPH 3. AND I THINK THAT CAN BE ACCOMPLISHED BETWEEN THE PARTIES. IF THERE'S -- ONCE AGAIN, IF THERE'S ANY LISA CHARBOMAU PETERS, OFFtCXAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11 BREAKDOWN AT ALL IN YOUR DISCUSSIONS -- AND, MR. SCALZO, YOU KNOW THIS COURT WILL MAKE ITSELF AVAILABLE, CONTINUE TO MAKE ITSELF AVAILABLE IN ORDER TO RESOLVE ANY DISPUTED ISSUE THAT MAY ARISE. BUT I 'THINK THE CONSTRUCT FOR SETTLEMENT AND THE ACCEPTANCE BY MR. SCALZO OF A MONETARY NUMBER THAT WILL RESULT IN SETTLEMENT OF THIS CASE CAN NOW BE TAKEN TO CITY COUNCIL. MR. SANDOVAL: YES. AND SO THE COURT KNOWS, AND FOR THE RECORD, WE DID HAVE, A DISCUSSION ABOUT THE PHASING, AND THEY MEANT TO SAY "CONSTRUCTION PHASING." SO IF WE JUST ADD THE WORD "CONSTRUCTION," THEN WERE ALL CLEAR. MS. ZATST: YOUR HONOR, I PROPOSE THAT MY OFFICE IS HAPPY TO TAKE LABORING OR IN FILLING IN THE BLANKS ON THE MEMORANDUM FOR GLOBAL SETTLEMENT THAT THE COURT AND THE CITY HAS IN FRONT OF IT AS WELL. AND WITH THE COURT'S PERMISSION, WE'LL SEND THAT CERTAINLY FIRST TO THE CITY ONCE WE OB'T'AIN 'THEIR APPROVAL WHICH IS CONSISTENT WITH THEIR UNDERSTANDING. WE'LL PROVIDE, THAT TO THE COURT'S CLERK BY E-MAIL SO THAT IT CAN BE ATTACHED TO THE COURT'S -- OR TO THE COURT REPORTER'S TRANSCRIPT AND INCORPORATED BY REFERENCE. THE COURT: MY ONLY QUESTION IS WHAT IS CONTEMPLATED IF YOU CAN'T GET INTO SPECIAL SESSION? PART OF'THE AGREEMENT HERD IS THAT MR. SCALZO RECEIVES HALF OF THE SETTLEMENT MONEYS BY THE END OF THE YEAR. THAT'S WHY LISA, CHARBOMAV PETERS, OFFICIAL COCMT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 ,3 14 15 16 17 18 19 20 21 22 23 24 25 26 12 I'M GOING TO IMPRESS UPON YOU. THE ONLY OTHER OPTION WOULD BE THAT IF THE CITY COUNCIL MEETS, CAN THEY BACKDATE A DRAFT TO THE DATE OF JANUARY -- OR DECEMBER 31? MR. SANDOVAL: I DON'T THINK SO. I -- THE COURT: I DON'T WANT YOU TO HAVE TO COME BACK HERE AGAIN. MR, SANDOVAL: RIGHT. I UNDERSTAND. THE COURT: THAT'S WHY I THINK IT'S EXTREMELY IMPORTANT THAT TO THE EXTENT, MR. SANDOVAL, YOU CAN TRY TO GET INTO A SPECIAL -- CREATE A SPECIAL SESSION. IT'S MONDAY. I UNDERSTAND IT'S THE HOLIDAY WEEK. BUT I'M HOPING YOU'LL BE ABLE TO EFFECTUATE THIS. OKAY. I WILL LEAVE IT TO YOU. I DON'T WANT TO CREATE AN ISSUE WHERE ONE OTHERWISE DOES NOT EXIST AT THE PRESENT TIME, BUT I WANT YOU TO BE MINDFUL OF THIS SO IT DOESN'T BECOME AN ISSUE THAT YOU CAN O'T'HERWISE TACKLE EARLY ON. BUT OBSERVATION AT THIS POINT, NOT SOMETHING THAT WE NEED TO ADDRESS. ALL RIGHT? MR. KROLIKOWSKI: GREAT. THE COURT: GOOD LUCK. MR. KROLIKOWSKI: THANK YOU, YOUR HONOR. MR. GOLDSTEIN: THANK YOU VERY MUCH, YOUR HONOR. THE COURT: ONCE AGAIN, I WILL HAVE MY DOOR OPEN TO YOU TF THERE'S ANYTHING ELSE TRULY THAT YOU NEED TO ASSIST IN RESOLUTION. LISA CHARBONEAU PETERS, OFFICIAL COURT REPORTER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13 MR. SCALZO: HOPEFULLY WE WON'T NEED TO SEE YOU AGAIN, YOUR HONOR. SO HAVE A MERRY CHRISTMAS, AND EVERYBODY ELSE TOO. THE COURT: I WISH THE SAME TO EVERYONE WHO IS HERE. I HOPE THAT THIS WILL PUT YOU ALL -- I'M HOPING THE CITY WILL -- IT WILL, BE ACCEPTABLE AND 'PUT YOU ON A REALLY NEW LEVEL OF UNDERSTANDING AND INTERACTION THAT WILL BE MORE POSITIVE FOR THE FUTURE FOR BOTH SIDES IN JUST' TRYING TO MOVE FORWARD. THE ATTORNEYS: THANK YOU, YOUR HONOR. THE CLERK: DOES ANY PARTY WISH, TO GIVE NOTICE OF THE PROCEEDINGS, OR ARE WE GOING TO WAIT? THE COURT: THIS IS ---- I WILL ASK YOU. I WOULD SUGGEST THAT WE WAIVE ANY NOTICE. THE RECORD WILL SPEAK FOR ITSELF IN TERMS OF WHAT WAS EFFECTUATED AND THE MEDIATOR'S PROPOSAL,. SO IF THERE'S ANY UNCERTAINTY, YOU CAN REFER TO THE RECORD. IS THAT ACCEPTABLE ON BEHALF OF PLAINTIFF? MR. KROLIKOWSKI: YES, YOUR HONOR. THE COURT: AND ON BEHALF OF DEFENDANT? NMR. SANDOVAL: YES, YOUR HONOR. THE COURT: VERY GOOD. ALL RIGHT. VERY GOOD. (PROCEEDINGS CONCLUDED.) .LISA CHARSObWAV PETERS, OFFICIAL COURT REPORTER REPORTER'S CERTIFICATE STATE OF CALIFORNIA ', )Ss. COUNTY OF ORANGE ) I, MSA CHARBONEAU PETERS, CSR 6724, OFFICIAL COURT REPORTER IN AND FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, DO HEREBY CERTIFY THAT THE FOREGOING TRANSCRIPT, CONSISTING OF PAGES 1 THROUGH 13, INCLUSIVE, IS A TRUE AND CORRE'C'T' TRANSCRIPT OF MY SHORTHAND NOTES AND IS A FULL, TRUE, AND CORRECT STATEMENT OF THE PROCEEDINGS HAD IN SAID CAUSE. DATED THIS 27TH DAY OF DECEMBER, 2010. ---- f -f C A- ON AU PETERS, CSR 6724 ZIS.A CaARSOMA,U PEZERS, OFF'XCXA.L COURT PORTER EXHIBIT "H" RE: Scalzo v, SJC: Revised mems ndum of global settlement Evelyn S. Gomez From: Carol S. Zaist [Carol.Zaist@ndif.com] Sent: Thursday, December 16, 2010 8:37 AM To: Omar Sandoval; Anna R. Saiusky Cc: Charles S. Krolikowski Subject: RE: Scalzo v. SJC: Revised memorandum of global settlement Omar and Anna, We understand the City begins its furloughs on Monday and will be closed until after the first of the year. The following is wire transfer information for the settlement payment, so it can be processed before January: Account Name: Newineyer & Dillion Client Trust Account Account Number: 020-0829703 Routing Number: 121000248 Bank. Name: Wells Fargo Bank 500 N. State College Blvd. Suite 3 030 Orange, CA 92868 Bank Contact: Bret Rathwick Phone Number: (714) 385-2003 Please let Chuck or me know if you (or your clients) have logistics questions in getting the wire processed before 12131. 1 believe 12131 is a bank holiday. Please let us know when you anticipate the wire will go through for our tracking purposes and documentation. Thanks, Carol Carol S. Zaist Newmeyer & Dillion, LLP 895 Dove Street, 5th Floor Newport Beach, CA 92660 Main: 949.854.7000 Fax: 949,854.7099 Carol.Zaist[a)ndlf.com www.ndif.com FIk"ase l,Onsidf?[ the ('i1 wifG',`ftnC 1 i1 bG'1`orcf prinlb} j' Ihis 6' -MT Vl From: Charles S. Krolikowski Sent: Wednesday, December 15, 2010 6:30 PM To: 'Omar Sandoval'; Carol S. Zaist; Anna R. Salusky Cc: 'RICK SC,ALZO'; sitcom@earthlink.net Subject: RE: Scalzo v, SJC: Revised memorandum of global settlement Omar, I have spoken with my clients and that is acceptable with respect to Item 4 Thank you for your efforts in getting this resolved, we should probably execute the memorandum and let the court know tomorrow about the resolution. After that, we can work on the more formal document. Thanks. 1/111201.1. Page 1 of 4 RF...,: Scalzo v. SJC : Revised mere -idum of global settlement Page 2 of 4 Chuck From: Omar Sandoval [mailto:OSandoval@wss-law.com] Sent: Wednesday, December 15, 2010 6:23 PM To: Charles S. Krolikowski; Carol S. Zaist; Anna R. Salusky Subject: RE: Scalzo v. SJC: Revised memorandum of global settlement We have a deal. We need one clarification on item 4 to clarify that the temporary access is at no cost to the City. Thanks, Omar Sandoval from smartphone From: Charles S. Krolikowski <Charles.Krollkowski@ndlf.com> Sent: Wednesday, December 15, 2010 1:08 Ply To: Omar Sandoval <OSandoval@wss-law.com>; Carol S. Zalst <Carol.Zaist@ndlf.com>; Anna R. Salusky <ASalusky@wss-law.com> Subject: RE: Scalzo v. SSC: Revised memorandum of global settlement Omar, can you send me a quick email after the meeting today whether we have a deal as I need to get back to Lois regarding an appellate issue and talk to my clients. Thanks. Chuck Sent with Good (www.good.com) -----Original Message ----- From: Omar Sandoval nai'Iio:�iS�aat€iovair iayss,-Iaiv.com1 Sent: Tuesday, December 14, 2010 04:28 PM Pacific Standard Time Ta: Carol S. Zaist, Anna R. Salusky Ce: Charles S. Krolikowski Subject: RE: Scalzo v. SJC: Revised memorandum of global settlement Carol, you can send it to the clerk, I will also present it to the Council tomorrow afternoon. Thanks. Omar. Omar Sandoval, Esq. Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 Main:{714) 558-7000 Fax: (714) 835-7787 Direct Dial: (714) 415-1449 Direct Fax: (714) 415-1149 osandoval@wss-law.com From: Carol S. Zaist [maiito:Caro l.7ai�tdlf.coml Sent:. Tuesday, December 14, 2010 1:59 PM 1/1112011 RE: Scalzo v. SJC: Revised mem ndum of global settlement Page 3 of 4 To: Omar Sandoval; Anna R. Salusky Cc: Charles S. Krolikowski Subject: Scalzo v. SJC: Revised memorandum of global settlement Omar, We have modified paragraph 5 of the attached memorandum of global settlement to incorporate the changes you requested in your email this morning. Please let me know if this now can be sent to the court clerk. `.thank you, Carol Carol S. Zaist Newmeyer & Dillion,1,LP 895 Dove Street, 5th Floor Newport Beach, CA 92660 ]Main: 949.854.7000 Fax: 949.854.7099 Carol.Zaist@ndlf.com<tril.to:C�arol.f�istu).r.�llf.con> www.ndlf.com <filc:, 4'llnb-ita 30i'i7 [ 'I'LOC [?I Igre g� PIease consider the environment before printing this e-mail IRS Circular 230 Disclosure: Pursuant to .Internal Revenuc Service Circular 230, only formal opinions satisfying specific requirements may be relied on for the purpose of avoiding certain penalties under the Internal Revenue Code. Any tax advice contained in this communication (including attachments) does not constitute a formal opinion satisfying such requirements. Accordingly, we must advise you that any such tax advice was not intended or written to be used, and cannot be used, by you or any other person as such an opinion for the purpose of (i) avoiding penalties imposed under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any matters addressed herein. This email and any files transmitted with it may contain confidential information that is legally privileged and is intended solely for the use of the individual or entity to whom they are addressed. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this transmission is S'T'RICTLY PROHIBITED. If you have received this email in error please notify the sender by reply email or by telephone at (949) 854-7000 or (925) 988-3200 and destroy the original transmission and its attachments without reading or saving them in any manner. IRS Circular 230 isclosure: Pursuant to Internal Revenue Service Circular 230, only formal opinions satisfying specific requirements may be relied on for the purpose of avoiding certain penalties under the .Internal Revenue Code. Any tax advice contained in this communication (including attachments) does not constitute a formal opinion satisfying such requirements. Accordingly,, we must advise you that any such tax advice was not intended or written to be used, and cannot be used, by you or any other person as such an opinion for the purpose of (i) avoiding penalties imposed under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any matters addressed herein. 1/11/2011 RE: Scalzo v. SJC: Revised mem, -idum of global settlement Page 4 of 4 This email and any files transmitted with it may contain confidential information that is legally privileged and is. intended solely for the use of the individual or entity to whorn they are addressed. If you are not the intended recipient, or a personresponsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, dissemination, distribution, or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this email in error please notify the sender by reply email or by telephone at (949) 854-7000 or (925) 988-3200 and destroy the original transmission and its attachments without reading or saving them in any manner. 1/11/2011