Opinion
DENNIS J. HERRERA, City Attorney, JOANNE HOEPER, Chief Trial Attorney, MONICA F. WILEY, Deputy City Attorney, San Francisco, California, Attorneys for Defendants, CITY AND COUNTY OF SAN FRANCISCO and MICHAEL HENNESSEY.
FULL AND FINAL RELEASE AND ORDER
CLAUDIA WILKEN, District Judge.
FOR GOOD AND VALUABLE CONSIDERATION, which shall be addressed in more detail below, the sufficiency of which is hereby admitted and acknowledged, NAM NGUYEN, individually and on behalf of his heirs, domestic partners, executors, administrators, and assigns, if any (hereinafter referred to individually and collectively as "RELEASOR"), hereby agrees to fully and forever release and discharge the City and County of San Francisco, and Michael Hennessey, together with their elective and/or appointive boards, agents, servants, employees, consultants, departments, commissioners, officers, and deputies, (hereinafter referred to individually and collectively as "SAN FRANCISCO"), from any and all claims, actions, causes of action, liabilities, damages, demands, attorneys' fees, expenses and costs (including without limitation court costs) of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, which have existed or may have existed, or which do exist, or which hereafter shall or may exist, and which (1) are alleged or set forth or attempted to be set forth in the pleadings on file in that the action entitled "Nam Nguyen v. City and County of San Francisco", being action No. C05-440754 in the Superior Court of the State of California, County of San Francisco, and in the action entitled "Nam Nguyen v. City and County of San Francisco", being action No. C05-03507 CW, in the United States District Court (hereinafter collectively referred to as the "ACTION"), or (2) arise out of or are in any way related to any of the transactions, occurrences, acts or omissions set forth or alleged in any of the pleadings in the Action (hereinafter referred to collectively as the "CLAIMS").
RELEASOR represents and warrants that he has not assigned or transferred, or agreed to assign or transfer, or attempted to assign or transfer, to any third party or entity (including without limitation any insurer) any interest in any of the CLAIMS. RELEASOR agrees to defend, indemnify and hold harmless SAN FRANCISCO against any loss, expense or liability, including without limitation reasonable attorneys' fees, arising from any breach of the foregoing. Furthermore, in the event that SAN FRANCISCO learns that RELEASOR has breached this warranty, SAN FRANCISCO may, at its sole option, elect to rescind this Full and Final Release.
SAN FRANCISCO hereby agrees to apply non-skid adhesive material in one of the dorm shower stall floors located at the San Francisco County Jail at the Hall of Justice as a test of the nonskid adhesive material within sixty (60) days of the execution of this Agreement. In the event that SAN FRANCISCO determines that the test is successful and that the application of the adhesive material will not endanger the health or safety of inmates located in the County Jail facility, SAN FRANCISCO will apply similar non-skid material to other dorm shower stall floors at County Jail facilities in San Francisco in its discretion and as allowed by the budget of the City and County of San Francisco.
RELEASOR agrees to defend, indemnify and hold harmless SAN FRANCISCO against any and all claims by any person or entity purporting to hold any lien, interest, or other claim, whether for medical care, unemployment and/or disability compensation, attorneys' fees, or otherwise, involving RELEASOR and arising in connection with any of the CLAIMS.
RELEASOR certifies that he has read Section 1542 of the California Civil Code, 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 SETTLEMENT WITH THE DEBTOR."
RELEASOR hereby waives application of Section 1542 of the Civil Code. RELEASOR understands and acknowledges that, as a consequence of this waiver of Section 1542, even if RELEASOR should eventually suffer additional or further loss, damages or injury arising out of or in any way related to any of the events which gave rise to the CLAIMS, or any of them, RELEASOR will not be permitted to make any further claims against SAN FRANCISCO to recover for such loss, damages or injury. RELEASOR acknowledges that he intends these consequences even as to claims for personal injury or property damage that may exist as of the date of this Full and Final Release but which RELEASOR does not know exist, and which, if known, would materially affect RELEASOR's decision to execute this Full and Final Release, regardless of whether RELEASOR's lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause.
RELEASOR acknowledges that, in executing this Full and Final Release, he is acting on his own, independent judgment informed by his legal counsel. RELEASOR acknowledges having read this Full and Final Release and having been advised by his attorney as to its meaning and effect. RELEASOR acknowledges and warrants that his execution of this Full and Final Release is free and voluntary. RELEASOR further represents and warrants that, at the time he executed this Full and Final Release, he was not in the period of first physical confinement, whether as an inpatient or outpatient, in a clinic or health facility (as defined in Sections 1203 and 1250 of the Health and Safety Code) as a result of the injury alleged to have given rise to any of the CLAIMS, and that as a result Business and Professions Code Section 6152(b) cannot be used to invalidate this Full and Final Release.
RELEASOR acknowledges that this Full and Final Release contains and constitutes the entire agreement between RELEASOR and SAN FRANCISCO with respect to the CLAIMS. The terms of this Full and Final Release are contractual and not a mere recital. RELEASOR acknowledges that SAN FRANCISCO has made no representations, express or implied, to induce RELEASOR to enter into this Full and Final Release, other than as expressly set forth herein.
No aspect of this Full and Final Release or the settlement which led to it is intended to be nor at any time shall be construed, deemed, or treated in any respect as an admission by SAN FRANCISCO of liability for any purpose. It is expressly understood by RELEASOR that this Full and Final Release does not constitute an admission of the truth or accuracy of any of the allegations made in the complaint on file in the ACTION or of liability for any of the CLAIMS, and that SAN FRANCISCO expressly denies the allegations made in the complaint, as more fully set forth in the answer or other responsive pleadings on file in the ACTION.
If any of the provisions of this Full and Final Release or the application thereof is held to be invalid, its invalidity shall not affect any other provision or application of this Full and Final Release to the extent that such other provision or application can be given effect without the invalid provision or application, and to this end, the provisions of this Full and Final Release are declared and understood to be severable.
RELEASOR understands and acknowledges that both RELEASOR and SAN FRANCISCO shall each bear their own legal expenses, costs and attorney's fees incurred in connection with prosecuting or defending against the ACTION and any of the CLAIMS. None of the parties shall be considered a prevailing party in this ACTION as to any of the CLAIMS.
The parties shall file a Request for Dismissal - Order of Dismissal in the ACTION within five (5) days of the execution of this FULL AND FINAL RELEASE.
RELEASOR and SAN FRANCISCO agree that the United States District Court shall retain jurisdiction in the ACTION for the purpose of carrying out or enforcing the settlement and this FULL AND FINAL RELEASE.
This Full and Final Release and the settlement, which led to it, were fully negotiated with the assistance of counsel and should not be construed more strictly against one party than another.