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1 ALESHIRE & WYNDER, LLP ANTHONY R. TAYLOR, State Bar No. 208712
2 [email protected] STEPHEN R. ONSTOT, State Bar No. 139319
3 [email protected] JOANNA HERNANDEZ, State Bar No. 293275
4 [email protected] 18881 Von Karman Ave., Suite 1700
5 Irvine, California 92612 Telephone: (949) 223.1170
6 Facsimile: (949) 223.1180
7 Attorneys for Defendants Gloria Carranza, Judy Strattan and Jacqueline
8 Simon
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION
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VICTORIA MUNOZ RICHART,
Plaintiff,
v.
MIRACOSTA COMMUNITY COLLEGE DISTRICT; GLORIA CARRANZA; JUDY STRATTAN; JACQUELINE SIMON; DOES 1 through 100, Inclusiv,
Defenqants.
OJ 130.0001/246810.1
Case No. 37-2011-00083862-CU-OE-NC
Assigned for All Purposes to: Hon. Jacqueline M. Stem, Dept. N-27
EX PARTE APPLICATION RE SETTLEMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANTHONY R. TAYLOR IN SUPPORT THEREOF
[Filed Concurrently with a Proposed Order]
Hearing Date: March 27, 2015 Time: 9:00 a.m. Dept.: N-27
Action Filed: Trial Date:
January 14, 2011 Aoril 10, 2015
EX PARTE APPLICATION RE SETTLEMENT
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TO THE HONORABLE COURT AND ALL PARTIES AND TO THEIR RESPECTIVE
2 ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on March 27, 2015, at 9:00 a.m. in Department N-27 of the
4 above-entitled Court, or as soon thereafter as counsel may be heard, Defendants GLORIA
5 CARRANZA, JUDITH STRA TT AN, AND JACQUELINE SIMON (the "Individual Defendants")
6 apply to the Court ex parte at the date and time provided above for judicial approval or acceptance of
7 a settlement in the case.
8 APPLICATION
9 This ex parte application is made pursuant to California Rules of Court, Rule 3 .1202( c ), based
10 on good cause given the pending trial date in this action of April 10, 2015.
11 The Individual Defendants request that the Court approve or accept the Settlement Agreement
12 filed herewith between plaintiff and the Individual Defendants dated March 26, 2015 (the "Settlement
13 Agreement"). The Individual Defendants are not admitting to any fault, wrongdoing, or liability
14 through this Settlement Agreement. This is a settlement of disputed claims to avoid risks at trial and
15 additional legal fees and costs.
16 The date, time and location of this ex parte application was stipulated to in court on March 26,
17 2015 at approximately 1 :30 p.m.
18 Pursuant to California Rules of Court, Rule 3 .1202(a), the following are the names, addresses,
19 telephone numbers and email addresses of each attorney known to the Parties in this case:
20 Robert P. Ottilie, Esq.
21 LAW OFFICE OF ROBERT P. OTTILE 444 West "C" Street, Suite 320
22 San Diego, CA 92101-3597 ro~ottilielaw.com
23 TeTephone: (619) 231-4841 Facsimile: (619) 231-3293
24 Michael T. Gibbs
25 GIBBS & FUERST 600 B Street, Suite 2300
26 San Diego, CA 92101 [email protected]
27 Tel: (619) 702-3505 Fax: (619) 702-1547
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01130.00011246810.1 -2-EX PARTE APPLICATION RE SETTLEMENT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. LEGAL AUTHORITIES AND ARGUMENTS
3 A. This Ex Parte Application Is Properly Before The Court.
4 Trial in this matter is currently set for April 10, 2015. There is insufficient time to present the
5 settlement discussed in this ex parte application by way of noticed motion to the Court.
6 It is "the strong public policy of this state to encourage the voluntary settlement of litigation."
7 (Osumi v. Sutton (2007) 151Cal.App.4th1359.) Code of Civil Procedure section 664.6 allows courts
8 to enforce the terms of a settlement and to retain jurisdiction of cases after settlement to enforce the
9 terms of the settlement. (See also Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337
10 ["the parties to pending litigation may enter into a final and binding settlement by reciting the terms of
11 their agreement on the record, in the court in which the action is pending."].)
12 B. As Permitted By Applicable Law, The Individual Defendants Have Presented The
13 Court, Through This Ex Parte Application, With An Executed Settlement Agreement.
14 The Individual Defendants and the Plaintiff have executed a settlement agreement.
15 (Declaration of Anthony R. Taylor, at Exhibit "A".) This Court has authority to approve or accept the
16 terms of the same pursuant to Code of Civil Procedure Section 664.6 since the Court has the
17 jurisdiction to enforce its terms.
18 The court in Osumi v. Sutton, supra, recognized that: "it is for the trial court to determine in
19 the first instance whether the parties have entered into an enforceable settlement." (Osumi v. Sutton,
20 supra, at 1360 [emphasis added].) The trial court has the authority to "act as the trier ~f fact,
21 determining whether the parties entered into a valid and binding agreement." (Id.)
22 Ill
23 II I
24 I II
25 I II
26 II I
27 Ill
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01130.00011246810.1 -4-EX PARTE APPLICATION RE SETTLEMENT
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1 II. CONCLUSION
2 Based on the foregoing reasons, the Individual Defendants respectfully request that the Court
3 grant the Ex Parte Application and enter the proposed order lodged concurrently herewith.
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DATED: March 26, 2015
01130.0001/246810.l
ALESHIRE & WYNDER, LLP ANTHONY R. TAYLOR STEPHEN R. ONSTOT JOANNA HERNANDEZ
By:~~ Attorneys for endants G a Carranza, Judy Strattan and Jacqueline Simon
-5-EX PARTE APPLICATION RE SETTLEMENT
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DECLARATION OF ANTHONY R. TAYLOR
I, ANTHONY R. TAYLOR, declare as follows:
1. I am an attorney at law duly licensed to practice before all of the courts of the State of
California, and am a partner of the law firm of Aleshire & Wynder, the attorneys of record for
Defendants, Gloria Carranza, Judith Strattan, and Jacqueline Simon (collectively, the "Individual 6
7 Defendants"), herein. If called as a witness, I could and would testify competently to the matters set
8 forth herein as they are based upon my own personal knowledge. This declaration is submitted in
9 support of this Ex Parte Application.
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2. The date, time and location of this ex parte application was stipulated to in court on
March 26, 2015 at approximately 1 :30 p.m.
3. There are exigent circumstances in this matter requiring that this request be made by
ex parte application rather than a noticed motion, since the instant action is set for trial on April 10, 14
15 2015, with a trial readiness conference scheduled for March 27, 2015.
16 4. The Individual Defendants request that the Court approve or accept the Settlement
17 Agreement filed herewith between plaintiff and the Individual Defendants dated March 26, 2015 (the
18 "Settlement Agreement"). The Individual Defendants are not admitting to any fault, wrongdoing, or
19 liability through this Settlement Agreement. This is a settlement of disputed claims to avoid risks at trial
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21 and additional legal fees and costs. A true and correct copy of the fully executed Settlement Agreement
is attached hereto as Exhibit A. 22
23 I declare under the penalty of perjury under the laws of the State of California that the foregoing
24 is true and correct. Executed on this 26th day of March, 2015, in Irvine, California.
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01130.0001/246810.1 -6-EX PARTE APPLICATION RE SETTLEMENT
EXHIBIT A
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This Settlement and Mutual Release Agreement ("Agreement") is made by DR. VICTORIA MUNOZ RICHART ("Dr. Richart")-and Defendants GLORIA CARRANZA, JUDY STRAITAN, AND JACQUELINE SIMON ("Individual Defendants"). Dr. Richart and the Individual Defendants are hereinafter sometimes individually referenced as "Party" and collectively referenced as the "Parties."
I. RECITALS
This Agreement is executed with reference to the following alleged facts and circumstances:
1.1 On January 14, 2011, Dr. Richart filed an action in the San Diego Superior Court, framed in ten causes of action and naming as defendants MiraCosta Community College District ("MiraCosta") and the Individual Defendants, Case No. 37-2011-00083862-CU-OE-NC ("Richart Litigation"), which included claims described below.
I. I. I Dr. Richart entered into an employment agreement ("Employment Agreement") with MiraCosta effective July 2004 in which she was to have served as the Superintendent/ President at MiraCosta for four years. On two subsequent occasions, the Parties entered into new employment agreements, with the latest agreement having been entered into on July 18, 2006.
I. l .2 In her complaint, Dr. Richart alleges that the Individual Defendants took actions against her commencing in February 2007 that she contended were the cause of damage to her. On or about June 20, 2007, MiraCosta and Dr. Richart, along with all seven individual MiraCosta Trustees (including the Individual Defendants), entered into a Compromise Settlement and Mutual Release Agreement ("Settlement Agreement"). Dr. Richart has contended that agreement was intended to resolve all issues and/or claims among the parties thereto and, among other things, obligated Dr. Richart to vacate the office of Superintendent/President of MiraCosta upon payment of certain consideration and to release MiraCosta of her employment rights after working to the extent requested by the Board thereafter through December 31, 2008.
1.1.3 Subsequent to execution of the Settlement Agreement, a taxpayer, Leon James Page ("Page"), filed an action against MiraCosta and Dr. Richart in San Diego Superior Court Case No. 37-2007-00055219-CU-WM-NC ("Page Litigation") in which he contended that MiraCosta had violated the law (including but not limited to Government Code Section 53260) in entering into the Settlement Agreement with Dr. Richart, naming Dr. Richart only in the sixth cause of action for unjust enrichment in which he sought the return of consideration received by Dr. Richart that she was not otherwise entitled to receive under the law or her employment agreement (as requested specifically in Page Complaint, ~105).
1.1.4 Final judgment in the Page Litigation was entered on October 7, 2010 by the Honorable William S. Dato ("Dato Judgment") in which Judge Dato returned the parties to that action to the "status quo ante" that existed prior to the 2007 Settlement Agreement among other rulings made therein.
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1.1.5 Subsequent to the Dato Judgment, Dr. Richart asserted restoration of her employment rights. MiraCosta disputed Dr. Richart's asserted employment rights.
1.1.6 In the first through ninth causes of action, Dr. Richart alleged claims for: violation of constitutional property interests (including a § 1983 claim); violation of constitutional liberty interests; breach of contract; retaliation under California's Labor Code; retaliation under California's Government Code whistleblower statute; common law wrongful termination; and violation of California Civil Code §52.1 (Bane Act), alleging defendants sought to interfere with her constitutional and statutory rights. Dr. Richart's alternative theories of liability in her complaint were premised upon identical facts incorporated into each cause of action and which were premised upon her claim that the conduct directed at her was for asserting rights allowed by law and in retaliation for taking the described actions specifically as required and permitted by law. Specifically, Dr. Richart contended that actions were taken against her for reasons that included, but were not limited to: her role in reporting and overseeing an investigation into allegations of misconduct and malfeasance at MiraCosta; reporting that information to the Trustees of MiraCosta; in taking personnel actions arising therefrom; reporting the conduct to the San Diego County District Attorney; and, cooperating in an investigation by the office of the District Attorney.
1.1.7 In the tenth cause of action for declaratory relief, Dr. Richart sought a declaration from the court to resolve a dispute between Dr. Richart and MiraCosta with respect to the sums Dr. Richart owed to MiraCosta as a result of the Dato Judgment. Dr. Richart there asked the court to formally determine the amount she owed to MiraCosta and asked that the sum be declared as $785,000, minus $10,000 in payments already made, for a total of $775,000. At the conclusion of the Page Litigation, the Honorable Timothy Casserly had ruled that the Dato Judgment was not a monetary judgment and therefore not subject to collection. In his ruling on a motion for a writ of execution, Judge Casserly ruled that the amount of repayment to MiraCosta by Dr. Richart would be resolved in the tenth cause of action in the Richart Litigation, already on file at the time of Judge Casserly's ruling.
1.2 The Individual Defendants have denied the material allegations of Dr. Richart's complaint and have asserted numerous defenses. All Parties agree that the Individual Defendants are not admitting to any fault, wrongdoing, or liability through this Agreement. This is a settlement of disputed claims to avoid risks at trial to all defendants and additional legal fees and costs.
1.3 The facts and circumstances alleged by the Parties in 1.1 through 1.2 above shall be referred to as the "Incident."
1.4 Prior to filing the Richart Litigation, Dr. Richart alleges that she filed four distinct claims under the California Tort Claims Act, claims which cumulatively totaled in excess of 120 pages. Since 2011, the Parties have engaged in extensive discovery regarding the claims and defenses underlying Dr. Richart's claims. This included multiple sets of written discovery exchanged between the five Parties and 35 percipient depositions, not including experts. MiraCosta responded to 15 related Public Records Act requests. Discovery in the case, even with a stay in the middle of the litigation, extended over more than two years. Seven experts were cumulatively designated by the Parties. Almost 10,000 pages of documents have been exchanged. Trial estimates range up to eight weeks.
1.5 MiraCosta challenged Dr. Richart's claims through multiple dispositive motions, including a motion under California's Anti-SLAPP statute, an appeal from the court's SLAPP ruling to the Fourth District Court of Appeal, and three summary judgment motions. The three Individual Defendants filed a
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demurrer and their own summary judgment motion. All but one of these motions have been ruled upon by the court. All causes of action but one survived the motions.
1.6 Three different mediators beginning in 2010 attempted to reso Ive the dispute. This included the Honorable Leo S. Papas, attorney Timothy Corcoran, and Thomas E. Sharkey who oversaw the final mediation and has overseen the Parties' settlement as reflected herein. Mediations took place, according to Dr. Richart, over at least eight different days, over five years. The settlement included herein has been recommended by mediator Thomas E. Sharkey.
1. 7 This Agreement is intended to resolve, without any admission of wrongdoing, any and all claims and potential claims Dr. Richart may have against the Individual Defendants, and any and all claims the Individual Defendants may have against Dr. Richart as of the date of this Agreement, except as to the specific exemptions set forth in paragraph 2.8 herein. The Parties acknowledge that the terms set forth below are sufficient consideration for the Agreement.
1.8 The effective date of this Agreement shall be deemed to be the date of either approval or acceptance of this Agreement by the Honorable Jacqueline M. Stem of the San Diego Superior Court. Alternatively, if Judge Stern determines she does not have jurisdiction to either accept and/or approve the Agreement, then the effective date will be the date last executed by a Party herein.
1.9 After years of dispute and litigation, the Parties desire to have a global settlement that resolves all claims against all Parties and ends all of the litigation, and the Parties do so in a manner which is consistent with the law.
1.10 Further, consistent with the Parties' desire to have a global settlement and resolve all litigation, the Parties here acknowledge that Dr. Richart is independently negotiating two settlements with MiraCosta, which is represented by separate counsel, the law firm of Gibbs & Fuerst. If those efforts are successful, those two settlements will be reflected in two independent settlement agreements. However, it is a contingency of this Agreement that this Agreement will be binding upon the Parties only when all of the payments in all three of the contemplated settlements have been made and all settlement funds negotiated. If any Party to any of the agreements fails to make any payment within the time specified herein, or if funds do not exist for the satisfactory negotiation of the checks provided, then this Agreement, and the other two, will be void whether or not the Parties have all executed the agreements and whether or not all other payments required hereunder have been made. In the event a failure of consideration results in the voiding of this and the other Agreements as set forth herein, any and all consideration that was provided pursuant to this or the other Agreements shall be immediately returned or withdrawn, as appropriate, to the Party that tendered it, and the Parties will meet with Judge Stern and promptly set the Richart Litigation for trial as against all of the defendants and on all remaining causes of action, not just the Parties hereto.
1.11 The San Diego County Office of Education Risk Management Joint Powers Authority ("JPA'') has tendered its payment limits.
1.12 By letter dated March 9, 2015, Everest National Insurance Company ("Everest") has offered the available remaining policy limits under Everest Policy No. 71P2000015-061, effective July
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1, 2006 to July 1, 2007 to resolve the Richart Litigation.
II. SETTLEMENT
In settlement of all claims alleged by Dr. Richart against the Individual Defendants in the Richart Litigation, with the exceptions identified in paragraph 2.8, and concerning the facts and circumstances set forth relating to the Incident as described above, the Parties agree as follows:
2.1 Through funds paid by Everest and the JPA and its excess carrier on behalf of the Individual Defendants, Five Million Dollars ($5,000,000) shall be payable as set forth herein, and all Parties agree that this payment is made without any admission of fault, wrongdoing or liability by the Individual Defendants as more fully provided in paragraph 1.2, above.
2.2 Payment of the sum set forth in paragraph 2.1 above shall be made within twenty (20) days of the effective date of this Agreement, payable as follows:
2.2.1 Payment of the sum of $2,690,000 shall be made payable to the Robert P. Ottilie Attorney Client Trust Account; and
2.2.2 Payment of the sum of $2,310,000 shall be made payable to Robert P. Ottilie.
2.3 Both payments shall be reported for tax purposes as 1099- MISC.
2.4 Dr. Richart shall file a Request for Dismissal with prejudice of San Diego Superior Court Case No. 37-2011-00083862-CU-OE-NC, as to the Individual Defendants within five (5) business days of all of the following: (1) complete execution of this Agreement; (2) execution of the two aforementioned Agreements with MiraCosta; (3) delivery of all monetary payments contemplated under all three Agreements; and (4) satisfactory negotiation of those payments and compliance with paragraphs 3.1 and 3.2, below. Dr. Richart agrees to cooperate by having her attorney promptly deposit those checks and confirm that the checks have been satisfactorily negotiated by the financial institutions into which they are deposited. The Parties acknowledge that failure to timely receive and successfully negotiate all consideration called for in all three agreements voids this, and the other, Agreement(s) and allows Dr. Richart to set this matter for trial as against all defendants on all issues.
2.5 It is expressly understood that each Party hereto shall bear their own costs and attorney's fees incurred in San Diego Superior Court Case No. 37-2011-00083862-CU-OE-NC and with respect to all other claims released herein. Nothing herein shall affect the Individual Defendants' indemnity and defense rights from third parties pursuant to Government Code Section 825.
2.6 None of the Parties have made any representation to the others regarding the taxability or legal effect of the amounts paid under this Agreement, and none of the Parties are relyingon any statement or representation from any other Party in this regard. Each Party shall be solely responsible for the payment of any taxes and penalties assessed on the settlement amounts, if any.
2. 7 As further consideration for this Agreement, the Parties enter into mutual releases as set forth below.
2. 7 .1 Dr. Richart hereby releases and forever discharges the Individual Defendants, their
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agents, attorneys, insurers, joint powers insurance authority, indemnitors, predecessors, successors, and assigns (collectively "Richart Releasees") from any and all claims, demands, actions, causes of action, suits at law or equity, debts, sums of money, accounts, controversies, rights, damages, penalties, fines, costs, attorney's fees, losses, expenses, contracts, agreements, promises or liabilities whatsoever, known or unknown, suspected to exist, or not suspected to exist, described in San Diego Superior Court Case No. 37-20I I-00083862-CU-OE-NC and otherwise related to the Parties' relationship as described in I. I to I .8 above, up to and including the date of the execution of this Agreement; provided, however, this release does not extend to MiraCosta, which is specifically exempted from inclusion in this release as set forth in 2.8 below.
2.7.2 The Individual Defendants, each individually, hereby release and forever discharge Dr. Richart, her agents, attorneys, predecessors, successors, and assigns (collectively "Individual Defendants Releasees") from any and all claims, demands, actions, causes of action, suits at law or equity, debts, sums of money, accounts, controversies, rights, damages, penalties, fines, costs, attorney's fees, losses, expenses, contracts, agreements, promises or liabilities whatsoever, known or unknown, suspected to exist, or not suspected to exist, described in San Diego Superior Court Case No. 37-201 I-00083862-CU-OE-NC and otherWise related to the Parties' relationship as described in 1.1 to I. 8 above, up to and including the date of the execution of this Agreement; provided, however, this release does not extend to the exempted issue described in 2.8 below.
2.8 Specifically excluded from the releases provided in 2.7.1and2.7.2 above is MiraCosta. Dr. Richart intends to enter into two separate settlement agreements with MiraCosta, and the release language in those agreements will be the controlling release as to MiraCosta and all related entities or individuals (also defined in those agreements as "Releasees") as specifically set forth in those agreements.
2.9 The Parties hereto have read and understand California Civil Code § I542. The Individual Defendants and Dr. Richart both specifically waive and relinquish all rights and benefits afforded to each of them, but only as to each other, under California Civil Code §I 542, which provides as follows:
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 settlement with the debtor.
2. IO This release applies to any and all claims and liens for medical services, government benefits, legal services, or liens of any kind whatsoever, whether actual or asserted, present or prospective, any claims, causes of action, or rights to attorney's fees, penalties, fines, interest, and costs incurred, whether actual or asserted, present or prospective incurred by Dr. Richart. Dr. Richart waives any private cause of action that she may now or at any later time have against any other Party or Individual Defendant Releasees pursuant to 42 U.S.C. § 1395 in relation to the Incident. Dr. Richart further agrees for herself, her heirs, agents, executors, administrators, and assigns to fully and expressly indemnify, save and hold harmless and defend Individual Defendant Releasees from and against all claims, demands, causes of action, damages, costs and losses, and liabilities arising out of any lien or claim described herein. In the event of any claim, lien, demand, or cause of action described herein, Dr. Richart agrees to promptly comply with reasonable requests for information or documents.
2.10.1 The Parties hereto are aware of the provisions of Title 29 of the laws of the United States of America and Chapter 14. The Parties acknowledge this provision is not applicable to the current Agreement.
2.11 The Parties acknowledge that they may hereafter discover facts or circumstances different from, or in addition to, those that they now know or believe to be true with respect to this Agreement and/or
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the released claims, and the Parties agree that this Agreement shall nevertheless be and remain fully effective in all respects. Each Party recognizes the risk that compensation to be paid under this Agreement may be challenged. Each Party represents that it has independently evaluated the risk and has come to its own conclusion regarding the legality of this Agreement. Each Party agrees that it will not initiate, or encourage or cause to be initiated, any challenge to the legality of this Agreement.
2.12 The Parties hereto represent and warrant that they have not heretofore assigned, transferred or purported to assign or transfer, and agree that they will not assign, transfer or purport to assign or transfer, to any person or entity, any liability, claim, demand, action, cause of action, defense, and right which is herein released and discharged as set forth in paragraphs 2.7.1 and 2.7.2 above; and, the Parties hereto shall indemnify and defend each person and entity released and discharged by the provisions of paragraphs 2. 7 .1 and 2. 7 .2 above, and their respective agents, assigns, transferees, representatives, attorneys, insurers, and each of them, and shall defend and hold them harmless, from and against: (i) any liability, claim, demand, or action, cause of action or right assigned or transferred contrary to the foregoing warranty; and (ii) any and all loss, expense and/or liability arising directly or indirectly out of any breach of the foregoing warranty by any party hereto. ·
2.13 This Agreement is a compromise of disputed claims, and nothing contained herein, including the furnishing of any consideration, shall be construed as an admission of any liability or wrongdoing by any person, firm, association or corporation and the Parties agree to avoid further litigation through this settlement.
2.14 Each of the Parties to this Agreement shall hereafter execute all documents and do all acts necessary, convenient or desirable, in the reasonable opinion of the other party, to effect the provisions of this Agreement.
2.15 This Agreement shall be governed by California law and the San Diego Superior Court, specifically the Honorable Jacqueline M. Stem, shall retain jurisdiction pursuant to Code of Civil Procedure §664.6 to enter judgment pursuant to the terms of this Agreement and to enforce performance in full of this Agreement, until performance in full of this settlement has occurred. The Parties agree that any further action related to this Agreement shall be in San Diego County.
2.16 The Parties to this Agreement have each been represented by independent legal counsel in negotiating the settlement reflected by this Agreement and in drafting this Agreement. They and their attorneys have made such investigations of the facts concerning this Agreement as the Parties have felt was necessary. Each Party has relied upon its own and their own legal counsel's investigations and not upon any representations of the other Parties in deciding to enter into this Agreement.
2.17 In an action brought to enforce this Agreement, an action which claims a breach of this Agreement, or an action wherein this Agreement is successfully raised as a defense, the prevailing party or parties shall be entitled to recover reasonable attorney's fees and costs. In any action filed by a third party challenging the legality of this 'Agreement, each Party hereto, if named as a defendant, shall bear its own attorney's fees, costs and expenses. Nothing herein shall affect the Individual Defendants' indemnity and defense rights from third parties pursuant to Government Code Section 825. This provision is not intended to affect or restrict a Party seeking to recover attorney's fees, costs and expenses from the third party who files the challenge.
2.18 The terms of this Agreement shall bind and inure to the benefit of each of the Parties, Richart Releasees, Individual Defendant Releasees their respective attorneys, directors, subsidiaries, affiliates, heirs, successors, assigns, and any other person or entity claiming an interest through any of the Parties.
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2.19 Except as expressly stated herein, nothing contained in this Agreement shall be construed to confer any right, power, or privilege upon any non-party to this Agreement. Except as expressly stated herein, this Agreement shall not be construed as creating any obligation by any Party in favor of a nonparty to this Agreement.
2.20 The language of this Agreement is the product of the mutual effort of the Parties and their respective legal counsel. This Agreement shall be construed fairly as to all Parties, and it shall not be construed for or against any Party on this basis to which that Party participated in drafting it.
2.21 This Agreement may be pleaded or asserted by or on behalf of the Parties or Richart Releasees or Individual Defendant Releasees as a defense and bar to any action or claim that may be brought against a Party or Richart Releasee or Individual Defendant Releasee by anyone with respect to any of the matters within the scope of this Agreement, excepting only the obligations of this Agreement.
2.22 Except for the two Agreements referenced above, this Agreement constitutes a single, integrated contract expressing the Parties' entire Agreement concerning its subject matter. Except as expressed in this Agreement, all prior correspondence, discussions and negotiations among the Parties hereto concerning the subject matter of this Agreement have been merged and integrated into, and are superseded by, this Agreement. This Agreement may not be modified except in writing and signed by all Parties to be bound by the modification.
2.23 This Agreement may be executed in counterparts, including facsimile and electronically submitted counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
2.24 The captions by which the paragraphs and subparagraphs of this Agreement are identified are for convenience only and shall have no effect whatsoever upon its interpretation.
2.25 The Parties agree that none of them, nor their agents, will publicly disclose the content of settlement negotiations or mediation-privileged communications absent a court order to the contrary.
2.26 The Parties recognize that because the Individual Defendants were sued for alleged acts within the course and scope of their official duties as trustees of MiraCosta, any final agreement to which the Individual Defendants, or any of them, and MiraCosta are parties is subject to disclosure pursuant to the Public Records Act.
III. COURT APPROVAL
3.1 A contingency of this Agreement is to submit this executed Agreement and release to the Honorable Jacqueline M. Stern by ex parte application at the earliest available date, to make the settlement a part of the official court record and/or to obtain approval or acceptance of the settlement from Judge Stern.
3 .2 The effective date of this Agreement shall be deemed to be the date of either approval or acceptance of this Agreement by the Honorable Jacqueline M. Stern of the San Diego Superior Court. Alternatively, if Judge Stern determines she does not have jurisdiction to either accept and/or approve the Agreement, then the effective date will be the date last executed by a Party herein.
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PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO THE DATE OF ITS EXECUTION.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THEY HAVE BEEN ADVISED THAT THIS AGREEMENT IS A BINDING AND LEGAL DOCUMENT AND THAT THEY HA VE ACTED VOLUNTARILY AND HAVE NOT RELIED UPON ANY REPRESENTATION MADE BY ANY OTHER PARTY OR ANY OTHER PARTY'S EMPLOYEES OR AGENTS (EXCEPT AS OTHERWISE PROVIDED HEREIN) REGARDING THIS AGREEMENT'S SUBJECT MATTER AND/OR EFFECT.
THE PARTIES HERETO HA VE READ AND FULLY UNDERSTAND THIS AGREEMENT AND VOLUNTARILY AGREE TO ITS TERMS.
AGREED TO AND UNDERSTOOD:
[SIGNATURE PAGE FOLLOWS]
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Dated: March 26, 2015
Dated: March 26, 2015 GLORIA CARRANZA
Dated: March 26, 2015 JUDY STRATTAN
Dated: March 26, 2015 JACQUELINE SIMON
APPROVED AS TO FORM:
Dated: March 26, 2015
LAW OFFICE OF ROBERT P. OTTILIE
By: ~flti~~~~ t2z~lf£~··. '_ ROBERT P. OTilUE !2 Attorney for Plaintiff VICTORIA MUNOZ RICHART
Dated: March 26, 2015
ALESHIRE & WYNDeR LLP
By: _____________ _
ANTHONY R. TAYLOR Attorneys for Defendants GLORlA CARRANZA, JUDY STRAITAN AND JACQUELINE SlMON
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Dated: March 26, 2015 VICTORIA MUNOZ RICHART
Dated: March 26, 2015
Dated: March 26, 2015
Dated: March 26, 2015
APPROVED AS TO FORM:
Dated: March 26, 2015
LAW OFFICE OF ROBERT P. OTTILIE
ROBERT P. OTTILIE Attorney for Plaintiff VICTORIA MUNOZ RICHART
Dated: March 26, 2015
ALESHIRE & WYNDER LLP
I
Attorneys fa efendants L0RIA CARRANZA, JUDY STRATTAN AND JACQUELINE SIMON
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION
11 VICTORIA MUNOZ RICHART, Case No. 37-2011-00083862-CU-OE-NC
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Plaintiff,
v.
MIRACOSTA COMMUNITY COLLEGE DISTRICT; GLORIA CARRANZA; JUDY STRATTAN; JACQUELINE SIMON; DOES 1 through 100, Inclusiv,
Defendants.
Assigned for All Purposes to: Hon. Jacqueline M. Stem, Dept. N-27
[PROPOSED] ORDER GRANTING EX PARTE APPLICATION RE SETTLEMENT
Hearing Date: March 27, 2015 Time: 9:00 a.m. Dept.: N-27
Action Filed: Trial Date:
January 14, 2011 Aoril 10. 2015
The Ex Parte Application of Defendants Gloria Carranza, Judith Strattan, and Jacqueline
Simon (the "Individual Defendants") came on for hearing on March 27, 2015.
THE COURT HA VINO READ AND CONSIDERED THE FOREGOING EX PARTE
APPLICATION HEREBY ORDERS AS FOLLOWS:
1. The Court accepts the Settlement Agreement filed herewith between plaintiff and the
Individual Defendants dated March 26, 2015 (the "Settlement Agreement"). The Settlement
Agreement shall be effective upon the date of this order based upon paragraph 3.2 of the same.
28 I I I
01130.0001/246891.2
[PROPOSED] ORDER GRANTING EX PARTE APPLICATION RE SETTLEMENT
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1 2. The Settlement Agreement shall be governed by California law and the San Diego
2 Superior Court. The Honorable Jacqueline M. Stem shall retain jurisdiction pursuant to Code of Civil
3 Procedure§ 664.6 to enforce the terms of the Settlement Agreement and to enforce performance in
4 full of the Settlement Agreement, until performance in full of this settlement has occurred.
5 IT IS SO ORDERED.
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Dated: March 27, 2015
01130.0001/246891.2 -2-
Hon. Jacqueline M. Stem Judge of the Superior Court
(PROPOSED] ORDER GRANTING EX PARTE APPLICATION RE SETILEMENT
