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1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102)
ALEXANDER D. PROMM, ESQ. (State Bar No. 318412)
2 GALLOWAY, LUCCHESE, EVERSON & PICCHI
A Professional Corporation
3 2300 Contra Costa Blvd., Suite 350
Pleasant Hill, CA 94523-2398
4 Tel. No. (925) 930-9090
Fax No. (925) 930-9035
5 Email: jpicchi@glattys.com; apromm@glattys.com
6 Attorneys for Defendants
B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and SUNDERLAND |
7 McCUTCHAN, LLP
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SONOMA
10
11
RICHARD ABEL, an individual, Case No. SCV263456
12
Plaintiff, The Honorable Christopher
13 Honigsberg
vs.
14 DECLARATION OF ALEXANDER D.
B. EDWARD McCUTCHAN JR., an PROMM, ESQ. IN SUPPORT OF
15 individual; SUNDERLAND/McCUTCHAN, DEFENDANTS B. EDWARD
LLP, a general partnership; and DOES 1 MCCUTCHAN, JR.; ROBERT J.
16 through 100, inclusive, SUNDERLAND; AND SUNDERLAND |
MCCUTCHAN, LLP’S MOTION TO
17 Defendants. ENFORCE SETTLEMENT AGREEMENT
AND MOTION FOR SANCTIONS UNDER
18 C.C.P. § 128.5
19
Date:
20 Time:
Dept:
21 Date Complaint Filed: November 2, 2018
Trial: January 5, 2024
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24 I, ALEXANDER D. PROMM, ESQ., declare as follows:
25 1. I am an attorney at law duly licensed to practice before all the courts in the
26 State of California and am an attorney with the Pleasant Hill law firm of Galloway,
27 Lucchese, Everson & Picchi, attorneys of record for defendants herein.
28 1
GALLOWAY, LUCCHESE, __________________________________
EVERSON & PICCHI
2300 Contra Costa Blvd.,
SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888
Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND
Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
(925) 930-9090
AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5
1 2. I make this declaration on behalf of said defendant B. EDWARD
2 MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND SUNDERLAND | MCCUTCHAN,
3 LLP in support of the instant Motion to Enforce Settlement Agreement and Motion for
4 Sanctions under C.C.P. § 128.5 from personal knowledge unless otherwise stated, and if
5 called as a witness, I can and will competently testify to the information contained within
6 this declaration.
7 3. Attached hereto as Exhibit “A” is a true and correct copy of the transcript
8 from the mandatory settlement conference on June 6, 2023, in Department 18, with the
9 Honorable Rene Chouteau presiding.
10 4. At the settlement conference on June 6, 2023, Plaintiff Richard Abel agreed
11 to a resolution of being paid $23,000 with the sanctions that have been awarded by the
12 court being vacated, with the agreement that he does need to pay the sanctions owed to
13 the defendants. (See Exhibit “A” ¶ 4:21-27.)
14 5. The terms of the resolution included a dismissal of the action by Mr. Abel
15 against all defendants with prejudice. The parties were then to prepare and sign a mutual
16 release and settlement. (See Exhibit “A” ¶ 4:21-8:24)
17 6. Mr. Picchi stated that he would provide a draft of a release to Mr. Abel which
18 would contain the terms as were outlined on the record on June 6, 2023. (See Exhibit “A”
19 ¶ 6:8-21.)
20 7. Mr. Abel was then to sign and provide the release and a W-9 tax form to Mr.
21 Picchi so that he could be paid. (See Exhibit “A” ¶ 5:18-20.)
22 8. Mr. Abel was also to file and serve a notice of full settlement of the entire
23 case with the court. (See Exhibit “A” ¶ 6:28-7:10.)
24 9. Mr. Abel did indeed file a notice of settlement of entire case on June 9, 2023.
25 A true and correct copy of the Notice of Settlement of Entire Case is attached as Exhibit
26 “B.”
27 10. Plaintiff Richard Abel stated his agreement to the resolution that was
28 2
GALLOWAY, LUCCHESE, __________________________________
EVERSON & PICCHI
2300 Contra Costa Blvd.,
SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888
Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND
Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
(925) 930-9090
AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5
1 discussed orally on the record. (See Exhibit “A” ¶ 4:21-8:24.)
2 11. The time frame discussed on the record for Mr. Abel to comply with the
3 terms of the agreement was between 30 and 45 days. See Exhibit “A” ¶ 6:3-19.)
4 12. The Honorable Rene Chouteau stated at the settlement conference that the
5 agreement was enforceable under CCP 664.6. (See Exhibit “A” ¶ 9:4-6.)
6 13. On June 15, 2023, our office sent an email correspondence to Mr. Abel that
7 contained a draft release for his review, which we also sent by mail. The true and correct
8 copy of that email correspondence is attached hereto as Exhibit “C”.
9 14. A true and correct copy of the draft release that was sent to Mr. Abel on
10 June 15, 2023 is attached hereto as Exhibit “D”.
11 15. On June 22, 2023, I emailed Mr. Abel and followed up on the email
12 regarding the draft release and said that if there were any edits to provide them as soon
13 as possible, and that I would call him if I did not hear back from him. The true and correct
14 copy of that email correspondence is attached hereto as Exhibit “E”.
15 16. On June 22, 2023, I called Mr. Abel as I had not heard a response from him.
16 17. On June 27, 2023, I emailed Mr. Abel again regarding the release. The true
17 and correct copy of that email correspondence is attached hereto as Exhibit “F”.
18 18. On June 27, 2023, I again called Mr. Abel after I did not receive a response.
19 19. On July 10, 2023, I emailed Mr. Abel providing him with notice of our intent
20 to file a motion to enforce the settlement under C.C.P § 664.6 as we had not heard from
21 him regarding the release in several weeks. The true and correct copy of that email
22 correspondence is attached hereto as Exhibit “G”.
23 20. Our office received a letter on July 17, 2023, sent by Mr. Abel which
24 contained the copy of the release that was emailed to Mr. Abel on June 15, 2023. The
25 printed copy had large “X” cross outs on each page and hand writing stating that each
26 page did not comply with the terms of the agreement. There was no attempt to discuss
27 or propose revisions. The true and correct copy of the letter and contents of the letter sent
28 3
GALLOWAY, LUCCHESE, __________________________________
EVERSON & PICCHI
2300 Contra Costa Blvd.,
SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888
Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND
Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
(925) 930-9090
AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5
1 by Mr. Abel is attached hereto as Exhibit “H”.
2 21. Our office has not received any other communication, assent, or revisions
3 from Mr. Abel since the hearing on June 6, 2023.
4 22. Our office spent $609 on the transcript from the June 6, 2023 hearing for
5 the purposes of bringing forth this motion. The true and correct copy of the receipt for the
6 transcript is attached hereto as Exhibit “I”.
7 23. Our office expects to spend 6 hours on the writing of this motion and 3 hours
8 on a reply and arguing of the motion (9 x $205 = $1845). The expected filing and service
9 fee being $158.50 (based on a previous motion’s filing fee). The total costs therefore
10 would be $1845 + $609 + $158.50 = $2,612.50.
11 I declare under penalty of perjury under the laws of the State of California that the
12 foregoing is true and correct.
13
14 Executed this 21st day of July, 2023 at Pleasant Hill, California.
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18 ALEXANDER D. PROMM, ESQ.
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GALLOWAY, LUCCHESE, __________________________________
EVERSON & PICCHI
2300 Contra Costa Blvd.,
SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888
Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND
Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
(925) 930-9090
AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5
EXHIBIT A
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 IN AND FOR THE COUNTY OF SONOMA
3
4 DEPARTMENT 18 HON. RENE CHOUTEAU, JUDGE
5 RICHARD ABEL, an individual, )
)
6 Plaintiff, )
) CASE NO. SCV263456
7 vs. )
)
8 B. EDWARD MCCUTCHAN, JR., an )
individual; )
9 SUNDERLAND/MCCUTCHAN, LLP, a )
general partnership, and DOES)
10 1 through 100, inclusive, )
)
11 Defendants. )
_____________________________)
12
13
14 REPORTER'S REMOTE TRANSCRIPT OF PROCEEDINGS
15 TUESDAY, JUNE 6, 2023
16
17 APPEARANCES OF COUNSEL:
18 For Plaintiff:
RICHARD ABEL
19 IN PROPRIA PERSONA
P.O. Box 9301
20 Santa Rosa, California 95405
perere1@gmail.com
21
22 For Defendants B. Edward GALLOWAY, LUCCHESE, EVERSON
McCutchan, Jr.; Robert J. & PICCHI, APC
23 Sunderland; and Sunderland/ BY: JOSEPH S. PICCHI, ESQ.
McCutchan, LLP: 2300 Contra Costa Boulevard
24 Suite 350
Pleasant Hill, California
25 94523-2398
(925)930-9090
26 jpicchi#glattys.com
27 TAMARA L. CARLSON, C.S.R. 12555
Official Reporter Pro Tempore
28 (APPEARANCES CONTINUED ON THE FOLLOWING PAGE)
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Aiken Welch, A Veritext Company
510-451-1580
1 APPEARANCES (CONTINUED):
2
3 For Defendants, JIM SUNDERLAND MCCUTCHAN, LLP
NORD and DAlE DAVIS BY: EDWARD MCCUTCHAN, JR, ESQ.
4 1083 Vine Street
Suite 907
5 Healdsburg, California 95448
(707)284-5527
6 emccutchan@sunmclaw.com
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1 I N D E X
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3 CHRONOLOGICAL AND ALPHABETICAL INDEX OF WITNESSES
4 NONE
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7 EXHIBITS
8 NONE OFFERED
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Aiken Welch, A Veritext Company
510-451-1580
1 SONOMA, CALIFORNIA (REMOTE); TUESDAY, JUNE 6, 2023
2 10:18 A.M.
3 --oo0oo--
4
5 THE COURT: At this time I'm going to call
6 SCV263456, Abel versus McCutchan.
7 And do both sides wish to state their
8 appearances.
9 Mr. Abel?
10 MR. ABEL: Richard Abel, appearing as
11 self-represented Plaintiff.
12 THE COURT: Thank you.
13 MR. PICCHI: Joseph Picchi, appearing on
14 behalf of Mr. McCutchan and his law firm, Robert
15 Sunderland.
16 THE COURT: Thank you.
17 MR. MCCUTCHAN: And Edward McCutchan on behalf
18 of the Doe defendants, Dale Davis, Justin Hone, Matt
19 Zandek, Bill Hing, Lenora Fong, and Wilsinda Duvall.
20 THE COURT: Thank you.
21 We have reached a resolution in this matter.
22 I'll state the terms at this time.
23 First of all, Mr. Abel is to be paid $23,000,
24 and the sanctions which have been awarded by the court
25 are vacated by the court at this time.
26 And there's also an agreement that he does
27 need to pay them by the defendants.
28 Mr. Abel is to dismiss this action, including
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Aiken Welch, A Veritext Company
510-451-1580
1 all defendants including all Doe defendants. The
2 parties are to sign a mutual release and settlement
3 agreement in which the provisions of Civil Code 1542 are
4 to be waived, and I've explained to Mr. Abel that this
5 includes all claims known and unknown. There are to be
6 no further claims made in regard to these underlying
7 events.
8 The settlement is to be enforced under
9 CCP 664.6. This means that if Mr. Abel is not paid,
10 that he may file a declaration with the court indicating
11 that with notice to the other side and the court will
12 enter a judgment on his settlement.
13 The settlement is to have a confidentiality
14 terms that neither party will discuss the settlement
15 with others and a non-disparagement clause so that
16 neither party will say bad things about the other party
17 in regard to these matters.
18 The formal settlement is to be signed by the
19 parties, and Mr. Abel is to provide a W-9 tax form to
20 Mr. Picchi so that the money can be paid.
21 Now, let me ask first, Mr. Abel, you've heard
22 the terms of the settlement.
23 Are you in agreement with them at this time?
24 MR. ABEL: Yes. Your Honor, I am.
25 But I do have one question.
26 THE COURT: Yes.
27 MR. ABEL: Is there a time frame or deadline
28 for this all to take place?
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Aiken Welch, A Veritext Company
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1 THE COURT: I did not put a formal deadline in
2 the settlement.
3 When is Mr. Abel's payback in this regard?
4 How long does it take?
5 MR. PICCHI: Typically 30 to 45 days.
6 THE COURT: So the money should be paid within
7 30 to 45 days.
8 MR. PICCHI: So just to Mr. Abel is aware, we
9 will draft a release, which I don't know if you've put
10 as a provision and which you've read, but he is supposed
11 to sign a formal settlement agreement, which will have
12 the terms as you've outlined them, Judge. And 30 to 45
13 days from that, as soon as I get the signed release, it
14 goes to the carrier along with your W-9, and they then
15 process it. It could take 45 days, but typically it
16 takes less. So that that's what we're looking at, 30 to
17 45 days from the day we get the release signed, and
18 we'll start working on that today. So hopefully we'll
19 have it to you by the end of the week.
20 Does that give you a sense of where we are?
21 MR. ABEL: Yes.
22 MR. PICCHI: Two other things, Your Honor.
23 This agreement to dismiss is with prejudice --
24 THE COURT: Correct.
25 MR. PICCHI: -- which I did not hear in --
26 THE COURT: I did not say that, that but
27 that's correct.
28 MR. PICCHI: Mr. Abel also needs to be advised
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Aiken Welch, A Veritext Company
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1 that he needs to file and serve a notice of full
2 settlement of the entire case with the court so that
3 everybody is on notice that that has happened.
4 MR. ABEL: Is there a deadline for that too?
5 MR. PICCHI: You should do it as soon as
6 possible because we've settled the case. It's a form,
7 and you can find it in the judicial forms. You just say
8 the case is settled and settled in its entirety and
9 you've filed with the court.
10 MR. ABEL: Okay.
11 MR. PICCHI: I think the judge will probably
12 let everybody know that it has been settled, but you
13 still need to do that. That's the plaintiff's
14 responsibility.
15 THE COURT: Anything else?
16 MR. PICCHI: Is there anything else? I don't
17 think so.
18 Mr. McCutchan will also be signing the release
19 too, and you'll be given a copy of that. Along with
20 that we will send to you a copy of a request for
21 dismissal dismissing the entire case, which you can
22 execute. We'll file and send you a filed endorsed copy
23 once we get that back from the court. These are all
24 just routine paperwork to make sure the case is inactive
25 in the court and it stops.
26 MR. ABEL: One more question, are all the
27 parties going to sign, or only you the attorneys?
28 MR. ABLE: Just and you Mr. McCutchan.
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Aiken Welch, A Veritext Company
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1 MR. ABEL: Are the Doe defendants going to
2 sign?
3 MR. PICCHI: No, we didn't ask them to do
4 that. They're not really direct parties to the
5 settlement. He can sign on behalf of them.
6 MR. ABEL: But if I'm releasing my claims
7 against them, should they not be parties to this?
8 THE COURT: Well, they're appearing to their
9 attorney who will sign the documents on their behalf.
10 MR. PICCHI: Correct.
11 MR. ABEL: Okay.
12 THE COURT: That's standard. If you had an
13 attorney, he would be signing on your behalf.
14 MR. ABEL: I'm just trying to make sure it's
15 binding. If the attorney's signature will bind them,
16 then that's fine.
17 MR. MCCUTCHAN: And the last thing is all
18 heirs, successors, assigns, clients of Sunderland
19 McCutchan, LLP, are dismissed, released as part of this.
20 This thing is gone with prejudice where the carrier will
21 take care of the funds.
22 THE COURT: Okay. So, Mr. Abel, you're in
23 agreement with this? I think you said you are?
24 MR. ABLE: Yes, I am, Your Honor.
25 THE COURT: Let me ask of first Mr. McCutchan.
26 You've heard the terms of the settlement.
27 Are you in full agreement?
28 MR. MCCUTCHAN: Yes, and I agree for myself
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Aiken Welch, A Veritext Company
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1 and my Doe clients and also for the firm and
2 Mr. Sunderland. I got the okay in a text.
3 THE COURT: Thank you.
4 Then the settlement is confirmed, and is
5 enforceable under 664.6 of the Code of Civil Procedure,
6 and I want to thank both sides for their participation.
7 It's been a very difficult case and very long and
8 involved case, and I appreciate your ability to finally
9 resolve it.
10 Madam Court Reporter, I think you've done your
11 job, and I appreciate it.
12 MR. PICCHI: Yes, thank you for making
13 yourself available on short notice.
14 THE COURT: All further hearings are vacated.
15 MR. PICCHI: No need for it. We've settled
16 the case. We'll send a notice of withdraw of the motion
17 for summary judgment once we get the notice of
18 settlement of all parties.
19 THE COURT: And we'll be Abel to terminate the
20 Zoom.
21 (The proceedings concluded at 10:26 a.m.)
22 --ooOoo--
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Aiken Welch, A Veritext Company
510-451-1580
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 IN ND FOR THE COUNTY OF SONOMA
3
4 HON. RENE CHOUTEAU, JUDGE
5 RICHARD ABEL, an individual, )
)
6 Plaintiff, )
) CASE NO. SCV263456
7 vs. )
)
8 B. EDWARD MCCUTCHAN, JR., an )
individual; )
9 SUNDERLAND/MCCUTCHAN, LLP, a )
general partnership, and DOES)
10 1 through 100, inclusive, )
)
11 Defendants. )
_____________________________)
12
13
14 I, Tamara L. Carlson, CSR No. 12555, Certified
15 Shorthand Reporter of the State of California, do hereby
16 certify that the foregoing pages, 1 through 9, are a
17 true and correct transcript of the proceedings held on
18 June 6, 2023, in the above-entitled cause.
19
20 Dated at Ventura, California this 26th day of
21 June, 2023.
22
23
24 <%6898,Signature%>
25 Tamara L. Carlson, CSR No. 12555
Official Reporter Pro Tempore
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Aiken Welch, A Veritext Company
510-451-1580
Exhibit B
CM-200
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY
Richard Abel
2222 Cleveland Avenue #1002
Santa Rosa, CA 95403
TELEPHONE NO.: (707) 340-3894 FAX NO. (Optional):
E-MAIL ADDRESS (OplionaT):
ATTORNEY FOR (Name): pro Se
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
STREET ADDRESS: 600 Administration Drive, Room 107-J
MAILING ADDRESS:
crrv AND ZIP coca. Santa Rosa, CA 95403-2878
BRANCH NAME: Civil - Department 18
PLAINTIFF/PETITIONER:
Richard Abel
DEFENDANT/RESPONDENT:
B. Edward Mccutchan,Jr. et.al.
CASE NUMBER:
SCV-263456
NOTICE OF SETTLEMENT OF ENTIRE CASE JUDGE: C. Honigsberg
DEPT.: 18
NOTICE TO PLAINTIFF OR OTHER PARTY SEEKING RELIEF
You must file a request for dismissal of the entire case within 45 days after the date of the settlement if the settlement is
unconditional.You must file a dismissal of the entire case within 45 days after the date specified in item 1 b below if the settlement
is conditional.Unless you file a dismissal within the required time or have shown good cause before the time for dismissal has
expired why the case should not be dismissed, the court will dismiss the entire case.
To the court, all parties, and any arbitratoror othercourt-connected
ADR neutral involvedIn this case:
1. This entire case has been settled. The settlement is:
a. D Unconditional.A request for dismissal will be filed within 45 days after the date of the settlement.
Date of settlement:
b. CK] Conditional.The settlement agreement conditions dismissal of this matter on the satisfactory completion of
specified terms that are not to be performed within 45 days of the date of the settlement. A request for dismissal will
be filed no later than (date): January 5, 2024
2. Date initial pleading filed: November 2, 2018
3. Next scheduled hearing or conference:
a. Purpose: Note: The Court retains jurisdiction pursuant to CCP 664.6 to enforce settlement.
b. D (1) Date: none set at this time
(2) Time:
(3) Department:
4. Trial date:
a. D No trial date set.
b. CK] (1) Date: January 5, 2024
(2) Time: 8 a.rn.
(3) Department: 18
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date:June 9, 2023
.,.
Richard Abel
(TYPE OR PRINT NAME OF [__] ATTORNEY Li] PARTY WITHOUT ATTORNEY) (SIGNATURE)
Page 1 of2
Cal. Rules of Court, rule 3.1385
Fo:d~1~t6:du~o;;l~~~~~~~~i~se NOTICE OF SETTLEMENT OF ENTIRE CASE www.courts.ca.gov
CM-200 [Rev. January 1, 2007]
CM-200
PLAINTIFF/PETITIONER: Richard Abel CASE NUMBER:
DEFENDANT/RESPONDENT: B. Edward Mccutchan, Jr. et.al. SCV-263456
PROOF OF SERVICE BY FIRST-CLASS MAIL
NOTICE OF SETTLEMENT OF ENTIRE CASE
(NOTE: You cannotserve the Notice of Settlementof Entire Case if you are a party in the action. The personwho served
the noticemustcompletethis proof of service.)
1. I am at least 18 years old and not a party to this action. I am a resident of or employed in the county where the mailing took
place, and my residence or business address is (specify):
5805 Cuneo Court, Santa Rosa, CA 95403
2. I served a copy of the Notice of Settlement of Entire Case by enclosing it in a sealed envelope with postage
fully prepaid and (check one):
a. D deposited the sealed envelope with the United States Postal Service.
b. CJ placed the sealed envelope for collection and processing for mailing, following this business's usual practices,
with which I am readily familiar. On the same day correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service.
3. The Notice of Settlement of Entire Case was mailed:
a. on (date): June 13, 2023
b. from (city and state): Santa Rosa, California (sent by e-mail only)
4. The envelope was addressed and mailed as follows:
a. Name of person served: c. Name of person served:
B. Edward Mccutchan Junior Joseph Picchi
Street address: (by email only) Street address: (by email only)
City: emccutchan@sunmclaw.com City: jpicchi@glattys.com
State and zip code: State and zip code:
b. Name of person served: d. Name of person served:
Street address: Street address:
City: City:
State and zip code: State and zip code:
D Names and addresses of additional persons served are attached. (You may use form POS-030(P).)
5. Number of pages attached _
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: June 13, 2023
Henry Crigler
(TYPE OR PRINT NAME OF OECLARANT) (SIGNATURE OF DECLARANT)
CM-200 [Rev. January 1, 2007] NOTICE OF SETTLEMENT OF ENTIRE CASE Page 2 of 2
Exhibit C
RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT
This Release of Claims and Settlement Agreement (“the Agreement”) is entered into as of
the date last signed by an executing party, by and between RICHARD ABEL (“ABEL”) and B.
EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and SUNDERLAND | McCUTCHAN,
LLP (collectively “SUNDERLAND | McCUTCHAN”). These parties to the Agreement shall be
referred as the “Parties” or a “Party.”
AGREEMENT
Now, therefore, in consideration of the terms, covenants and conditions as set forth in this
Agreement, the Parties agree as follows:
SECTION 1 – RELEASE AND CONSIDERATION
1.1 The purpose of this Agreement is to finally settle, discharge, resolve, and conclude
any and all liabilities, damages, demands, penalties, costs, claims, disputes, losses, judgments,
charges, debts, obligations, agreements, actions, causes of action, obligations, and expenses
(including reasonable attorneys’ fees, costs of suit, and expenses) (collectively “Claims”) by and
between the Parties relating to and/or arising out of or in connection with the Underlying Action,
including, but not limited to, any and all Claims that may have been or could have been alleged
by any Party against any other Party in the Liability Action, or any action or proceeding relating to
the Underlying Action or Liability Action, namely Sonoma County Superior Court Case No. SCV-
263456.
1.2 For and in consideration of the following consideration: (i) $23,000 to be paid to
ABEL by SUNDERLAND | McCUTCHAN through their insurance carrier; and (ii) the mutual
releases and covenants set forth in this Agreement, the Parties hereby release and forever
discharge each other, as well as their agents, employees, insurers, and attorneys, from and
against any and all Claims of any and every kind, nature or character, whatsoever, whether known
or unknown, suspected or unsuspected, actual or potential, absolute or contingent, pending or
anticipated, including without limitation, any Claim for damages as yet not accrued, which any
Party may now or in the future have or claim to have against any other Party, or any of them,
arising out of or in any way related to the Underlying Action, including without limitation, any and
all Claims or causes of action stated in the complaint in the Liability Action, or which could have
been stated or were attempted to be stated in any action or proceeding against any other Party
to this Agreement (collectively “Claims”).
1.3 Each Party covenants and agrees never to commence or prosecute either
individually or on behalf of any other person or entity, against any other Party or any of them, any
action or proceeding based upon, arising out of, or in connection with the Underlying Action, or
any Claim that is the subject matter of this Agreement, and this Agreement shall constitute a
judicial bar to the institution or maintenance of any such action or proceeding.
1.4 There is a risk that, subsequent to the execution of this Agreement, a Party will
incur damage or loss that a Party deems in some way attributable to another Party's prior actions,
but which are unknown and unanticipated at the time this Agreement is signed. Each Party
acknowledges and assumes such risk that damages presently known may become progressive,
greater or more serious than is now known, expected or anticipated.
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1.5 Each Party agrees that if the facts with respect to this Agreement, are found after
this Agreement is entered into are different from the facts now believed to be true, each Party
expressly accepts and assumes the risk of such possible difference in facts and thereby agrees
that this Agreement is and will remain effective notwithstanding such difference in facts.
Each Party acknowledges that they are familiar with and/or have been advised by their
attorneys of the existence and meaning of California Civil Code § 1542, which provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Each Party expressly waives and releases any right or benefit that a Party has or may
have under California Civil Code § 1542.
SECTION 2 – RESOLUTION OF SETTLED ACTIONS
It is the intention of this Agreement to finally and fully settle and resolve all disputes and
controversies by and between the Parties. The resolution of Sonoma County Superior Court
Case No. SCV-263456 by Sunderland | McCutchan is not an admission in any manner of liability
as to ABEL’s claims in this action.
SECTION 3 – ENFORCEMENT OF SETTLEMENT
Any Claim, dispute, or litigation arising out of this Agreement, including any Claim to
enforce or interpret the Parties' rights or obligations under this Agreement, may be referred to and
resolved by the California Superior Court, County of Sonoma, pursuant to Code of Civil Procedure
section 664.6. The Parties stipulate to jurisdiction before said court to enter judgment pursuant
to the terms of the settlement and agreements in this Agreement and to enforce said settlement
until performance in full of the terms of this Agreement.
SECTION 4 – BINDING EFFECT
This Agreement shall be binding on, and inure to the benefit of the successors and assigns
of the Parties. This Agreement shall not be assignable by any Party without the prior written
consent of all Parties.
SECTION 5 – DISCLAIMER OF LIABILITY EFFECT
The Parties agree that this settlement and the execution of the Agreement are the, result
of compromise and are entered into in good faith. The Agreement shall never for any purpose be
considered an admission of liability or responsibility and no past or present wrongdoing by any
other Party shall be implied by such payment or execution. The Parties have entered into this
settlement to avoid the uncertainty and further expense of litigation.
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SECTION 6 – INTEGRATION CLAUSE
The Agreement contains the entire agreement and understanding among the Parties with
respect to the subject matter of the Agreement, and supersedes all prior or contemporaneous oral
or written agreements or understandings. No representation, warranty, condition, understanding,
or agreement of any kind with respect to the subject matter of this Agreement shall be relied upon
by the Parties unless expressly set forth in this Agreement. The Agreement may not be amended
or modified except by an agreement in writing signed by all Parties.
SECTION 7 – FEES AND EXPENSES
The Parties shall bear and pay their respective expenses, including legal fees and costs,
incurred by any of them based on, in connection with, or arising out of the subject matter of this
Release of Claims and Settlement Agreement and the enforcement thereof.
SECTION 8 – WARRANTIES
The Parties each warrant and represent that they have full authority to enter into and
execute this Agreement and to deliver all consideration and take all further actions required under
this Agreement. The Parties each warrant and represent that they have not assigned or
transferred, or purported to assign or transfer to any person not a party to this Agreement, any
claim or cause of action covered by this Agreement or any part or portion thereof. The Parties
agree to indemnify and hold one another harmless from and against any Claim based on, in
connection with or arising out of any such assignment or transfer or purported or claimed
assignment or transfer.
SECTION 9 – CONFIDENTAILITY AND NON-DISPARAGEMENT
The Parties and their attorneys, past and present, agree that the terms and conditions of
this settlement agreement and release shall be confidential, except to the extent that any Party is
required to make disclosure for purposes of income tax consideration, reporting required by any
bank or financial institution, for an application for professional liability insurance, confidentially to
legal counsel, or as required by court order. This confidentiality provision is a material term of
this Agreement, and $1.00 out of the total settlement has been paid to plaintiff as consideration
for the Parties to keep this settlement confidential.
The Parties and their counsel further agree not to refer to the Liability Action by name or
description on any website or in any marketing materials of any kind. To the extent reference
already appears on the Parties or their counsel's website, any such reference shall be immediately
erased and removed from said website.
The Parties agree that their professional and personal reputations are important and
should not be impaired by any Party, or their attorneys, after this Agreement is executed. Plaintiff
therefore agrees not to disparage the professional or personal reputation of defendants, and
defendants and their counsel likewise agree not to disparage Plaintiff’s professional or personal
reputation. Specifically, the Parties agree that they will not disparage, slander, defame, or
otherwise do any acts or make any omissions that a reasonable person would believe could injure
the reputation of the other Party; provided, however, that this paragraph shall not apply to truthful
testimony given in compliance with a lawful subpoena or court order. If any Party is served with
a court order or subpoena that may call for disclosure of information protected by this
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confidentiality provision, before disclosing such information the Party shall promptly provide
written notice of that fact to all other Parties.
SECTION 10 – HEIRS, SUCCESSORS, AND ASSIGNS
The Parties agree that the agreements and other things done or to be done under this
Agreement shall run to and be binding upon their respective heirs, agents, clients, successors,
executors, administrators, guardians, conservators, and assigns.
SECTION 11 – SURVIVAL
All covenants, representations, and warranties set forth in this Agreement shall be deemed
continuing and shall survive the effective date of this Agreement.
SECTION 12 – CONSTRUCTION
The Parties and counsel for the Parties have each reviewed this Agreement and
accordingly the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not he employed in interpreting this Agreement. In the event one
or more of the provisions, or portions thereof, of this Agreement is determined to be illegal or
unenforceable, the remainder of this Agreement shall not be affected and each remaining
provision or portion thereof shall continue to be valid and effective, and shall be enforceable to
the fullest extent permitted by law. The parties shall sign all documents necessary to give full
force and effect to this Agreement. This Agreement is entered into in the state of California and
shall be construed and interpreted in accordance with the laws of the state of California.
SECTION13 – RIGHT TO AN ATTORNEY
The parties confirm that they have received notice of their the right to consult an attorney
regarding the terms and conditions of settlement set forth in this release, and by signing this
release they are acknowledging that they have either consulted an attorney or they are waiving
their right to consult an attorney.
SECTION 14 – LIENS
Mr. Abel has not indicated that there are any liens being asserted by any third party upon any
recovery on the part of plaintiff in this lawsuit. To the extent that there are liens on any recovery
by plaintiff that may be discovered subsequent to the execution of this release, plaintiff will be
responsible for satisfying any such lien and agrees to indemnify, defend and hold harmless
SUNDERLAND | McCUTCHAN, their agents, employees, insurer, and attorneys from any such
lien.
SECTION 15 – COUNTERPARTS/FACSIMILE SIGNATURES
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which when taken together shall be deemed one and the same
instrument. If the Parties utilize email or facsimile transmittal of signed copies of this Agreement,
the Party sending such an email or facsimile copy agrees the other Party may rely on such
emailed or faxed documents as if they bore original signatures(s).
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SECTION 16 – EFFECT OF AGREEMENT
This Agreement may be pleaded as a full and complete defense to, and may be used as
the basis for an injunction against, any action, suit, or other proceeding that may be instituted,
prosecuted, or attempted in breach of this Agreement, except for an action or other proceeding
to enforce or interpret this Agreement.
SECTION 17 – DISMISSAL OF ALL ACTIONS
Upon this Agreement being fully executed, and the consideration set forth in Section 1
having been paid and delivered, ABEL shall dismiss, with prejudice, Sonoma County Superior
Court Case No. SCV-263456 in its entirety against all named parties, including all named DOES
whether they have appeared in this action or not.
SIGNATURES OFTHE PARTIES
I, RICHARD ABEL, having carefully read the contents of this Agreement and understand
the contents of this Agreement and sign the same, as a free act.
DATED: __________________, 2023 by: _____________________________________
RICHARD ABEL
I, B. EDWARD McCUTCHAN, JR., having carefully read the contents of this Agreement,
and having fully discussed with my attorneys the legal effect of each and every provision set forth
in this Agreement, understand the contents of this Agreement and sign the same, as a free act.
DATED: __________________, 2023 by: _____________________________________
B. EDWARD McCUTCHAN, JR.
I, ROBERT J. SUNDERLAND, having carefully read the contents of this Agreement, and
having fully discussed with my attorneys the legal effect of each and every provision set forth in
this Agreement, understand the contents of this Agreement and sign the same, as a free act.
DATED: __________________, 2023 by: _____________________________________
ROBERT J. SUNDERLAND
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I, B. EDWARD McCUTCHAN, JR., as a Representative/Partner of SUNDERLAND |
McCUTCHAN, LLP, having carefully read the contents of this Agreement, and having fully
discussed with my attorneys the legal effect of each and every provision set forth in this
Agreement, understand the contents of this Agreement and sign the same, as a free act.
DATED: __________________, 2023 by: _____________________________________
B. E
Preview
1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102) ALEXANDER D. PROMM, ESQ. (State Bar No. 318412) 2 GALLOWAY, LUCCHESE, EVERSON & PICCHI A Professional Corporation 3 2300 Contra Costa Blvd., Suite 350 Pleasant Hill, CA 94523-2398 4 Tel. No. (925) 930-9090 Fax No. (925) 930-9035 5 Email: jpicchi@glattys.com; apromm@glattys.com 6 Attorneys for Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and SUNDERLAND | 7 McCUTCHAN, LLP 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 11 RICHARD ABEL, an individual, Case No. SCV263456 12 Plaintiff, The Honorable Christopher 13 Honigsberg vs. 14 DECLARATION OF ALEXANDER D. B. EDWARD McCUTCHAN JR., an PROMM, ESQ. IN SUPPORT OF 15 individual; SUNDERLAND/McCUTCHAN, DEFENDANTS B. EDWARD LLP, a general partnership; and DOES 1 MCCUTCHAN, JR.; ROBERT J. 16 through 100, inclusive, SUNDERLAND; AND SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO 17 Defendants. ENFORCE SETTLEMENT AGREEMENT AND MOTION FOR SANCTIONS UNDER 18 C.C.P. § 128.5 19 Date: 20 Time: Dept: 21 Date Complaint Filed: November 2, 2018 Trial: January 5, 2024 22 23 24 I, ALEXANDER D. PROMM, ESQ., declare as follows: 25 1. I am an attorney at law duly licensed to practice before all the courts in the 26 State of California and am an attorney with the Pleasant Hill law firm of Galloway, 27 Lucchese, Everson & Picchi, attorneys of record for defendants herein. 28 1 GALLOWAY, LUCCHESE, __________________________________ EVERSON & PICCHI 2300 Contra Costa Blvd., SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888 Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT (925) 930-9090 AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5 1 2. I make this declaration on behalf of said defendant B. EDWARD 2 MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND SUNDERLAND | MCCUTCHAN, 3 LLP in support of the instant Motion to Enforce Settlement Agreement and Motion for 4 Sanctions under C.C.P. § 128.5 from personal knowledge unless otherwise stated, and if 5 called as a witness, I can and will competently testify to the information contained within 6 this declaration. 7 3. Attached hereto as Exhibit “A” is a true and correct copy of the transcript 8 from the mandatory settlement conference on June 6, 2023, in Department 18, with the 9 Honorable Rene Chouteau presiding. 10 4. At the settlement conference on June 6, 2023, Plaintiff Richard Abel agreed 11 to a resolution of being paid $23,000 with the sanctions that have been awarded by the 12 court being vacated, with the agreement that he does need to pay the sanctions owed to 13 the defendants. (See Exhibit “A” ¶ 4:21-27.) 14 5. The terms of the resolution included a dismissal of the action by Mr. Abel 15 against all defendants with prejudice. The parties were then to prepare and sign a mutual 16 release and settlement. (See Exhibit “A” ¶ 4:21-8:24) 17 6. Mr. Picchi stated that he would provide a draft of a release to Mr. Abel which 18 would contain the terms as were outlined on the record on June 6, 2023. (See Exhibit “A” 19 ¶ 6:8-21.) 20 7. Mr. Abel was then to sign and provide the release and a W-9 tax form to Mr. 21 Picchi so that he could be paid. (See Exhibit “A” ¶ 5:18-20.) 22 8. Mr. Abel was also to file and serve a notice of full settlement of the entire 23 case with the court. (See Exhibit “A” ¶ 6:28-7:10.) 24 9. Mr. Abel did indeed file a notice of settlement of entire case on June 9, 2023. 25 A true and correct copy of the Notice of Settlement of Entire Case is attached as Exhibit 26 “B.” 27 10. Plaintiff Richard Abel stated his agreement to the resolution that was 28 2 GALLOWAY, LUCCHESE, __________________________________ EVERSON & PICCHI 2300 Contra Costa Blvd., SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888 Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT (925) 930-9090 AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5 1 discussed orally on the record. (See Exhibit “A” ¶ 4:21-8:24.) 2 11. The time frame discussed on the record for Mr. Abel to comply with the 3 terms of the agreement was between 30 and 45 days. See Exhibit “A” ¶ 6:3-19.) 4 12. The Honorable Rene Chouteau stated at the settlement conference that the 5 agreement was enforceable under CCP 664.6. (See Exhibit “A” ¶ 9:4-6.) 6 13. On June 15, 2023, our office sent an email correspondence to Mr. Abel that 7 contained a draft release for his review, which we also sent by mail. The true and correct 8 copy of that email correspondence is attached hereto as Exhibit “C”. 9 14. A true and correct copy of the draft release that was sent to Mr. Abel on 10 June 15, 2023 is attached hereto as Exhibit “D”. 11 15. On June 22, 2023, I emailed Mr. Abel and followed up on the email 12 regarding the draft release and said that if there were any edits to provide them as soon 13 as possible, and that I would call him if I did not hear back from him. The true and correct 14 copy of that email correspondence is attached hereto as Exhibit “E”. 15 16. On June 22, 2023, I called Mr. Abel as I had not heard a response from him. 16 17. On June 27, 2023, I emailed Mr. Abel again regarding the release. The true 17 and correct copy of that email correspondence is attached hereto as Exhibit “F”. 18 18. On June 27, 2023, I again called Mr. Abel after I did not receive a response. 19 19. On July 10, 2023, I emailed Mr. Abel providing him with notice of our intent 20 to file a motion to enforce the settlement under C.C.P § 664.6 as we had not heard from 21 him regarding the release in several weeks. The true and correct copy of that email 22 correspondence is attached hereto as Exhibit “G”. 23 20. Our office received a letter on July 17, 2023, sent by Mr. Abel which 24 contained the copy of the release that was emailed to Mr. Abel on June 15, 2023. The 25 printed copy had large “X” cross outs on each page and hand writing stating that each 26 page did not comply with the terms of the agreement. There was no attempt to discuss 27 or propose revisions. The true and correct copy of the letter and contents of the letter sent 28 3 GALLOWAY, LUCCHESE, __________________________________ EVERSON & PICCHI 2300 Contra Costa Blvd., SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888 Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT (925) 930-9090 AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5 1 by Mr. Abel is attached hereto as Exhibit “H”. 2 21. Our office has not received any other communication, assent, or revisions 3 from Mr. Abel since the hearing on June 6, 2023. 4 22. Our office spent $609 on the transcript from the June 6, 2023 hearing for 5 the purposes of bringing forth this motion. The true and correct copy of the receipt for the 6 transcript is attached hereto as Exhibit “I”. 7 23. Our office expects to spend 6 hours on the writing of this motion and 3 hours 8 on a reply and arguing of the motion (9 x $205 = $1845). The expected filing and service 9 fee being $158.50 (based on a previous motion’s filing fee). The total costs therefore 10 would be $1845 + $609 + $158.50 = $2,612.50. 11 I declare under penalty of perjury under the laws of the State of California that the 12 foregoing is true and correct. 13 14 Executed this 21st day of July, 2023 at Pleasant Hill, California. 15 16 17 18 ALEXANDER D. PROMM, ESQ. 19 20 21 22 23 24 25 26 27 28 4 GALLOWAY, LUCCHESE, __________________________________ EVERSON & PICCHI 2300 Contra Costa Blvd., SCV263456: DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF 956-10761/ADP/1292888 Suite 350 DEFENDANTS B. EDWARD MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; AND Pleasant Hill, CA 94523 SUNDERLAND | MCCUTCHAN, LLP’S MOTION TO ENFORCE SETTLEMENT AGREEMENT (925) 930-9090 AND MOTION FOR SANCTIONS UNDER C.C.P. § 128.5 EXHIBIT A 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF SONOMA 3 4 DEPARTMENT 18 HON. RENE CHOUTEAU, JUDGE 5 RICHARD ABEL, an individual, ) ) 6 Plaintiff, ) ) CASE NO. SCV263456 7 vs. ) ) 8 B. EDWARD MCCUTCHAN, JR., an ) individual; ) 9 SUNDERLAND/MCCUTCHAN, LLP, a ) general partnership, and DOES) 10 1 through 100, inclusive, ) ) 11 Defendants. ) _____________________________) 12 13 14 REPORTER'S REMOTE TRANSCRIPT OF PROCEEDINGS 15 TUESDAY, JUNE 6, 2023 16 17 APPEARANCES OF COUNSEL: 18 For Plaintiff: RICHARD ABEL 19 IN PROPRIA PERSONA P.O. Box 9301 20 Santa Rosa, California 95405 perere1@gmail.com 21 22 For Defendants B. Edward GALLOWAY, LUCCHESE, EVERSON McCutchan, Jr.; Robert J. & PICCHI, APC 23 Sunderland; and Sunderland/ BY: JOSEPH S. PICCHI, ESQ. McCutchan, LLP: 2300 Contra Costa Boulevard 24 Suite 350 Pleasant Hill, California 25 94523-2398 (925)930-9090 26 jpicchi#glattys.com 27 TAMARA L. CARLSON, C.S.R. 12555 Official Reporter Pro Tempore 28 (APPEARANCES CONTINUED ON THE FOLLOWING PAGE) Page 1 Aiken Welch, A Veritext Company 510-451-1580 1 APPEARANCES (CONTINUED): 2 3 For Defendants, JIM SUNDERLAND MCCUTCHAN, LLP NORD and DAlE DAVIS BY: EDWARD MCCUTCHAN, JR, ESQ. 4 1083 Vine Street Suite 907 5 Healdsburg, California 95448 (707)284-5527 6 emccutchan@sunmclaw.com 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 2 Aiken Welch, A Veritext Company 510-451-1580 1 I N D E X 2 3 CHRONOLOGICAL AND ALPHABETICAL INDEX OF WITNESSES 4 NONE 5 6 7 EXHIBITS 8 NONE OFFERED 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3 Aiken Welch, A Veritext Company 510-451-1580 1 SONOMA, CALIFORNIA (REMOTE); TUESDAY, JUNE 6, 2023 2 10:18 A.M. 3 --oo0oo-- 4 5 THE COURT: At this time I'm going to call 6 SCV263456, Abel versus McCutchan. 7 And do both sides wish to state their 8 appearances. 9 Mr. Abel? 10 MR. ABEL: Richard Abel, appearing as 11 self-represented Plaintiff. 12 THE COURT: Thank you. 13 MR. PICCHI: Joseph Picchi, appearing on 14 behalf of Mr. McCutchan and his law firm, Robert 15 Sunderland. 16 THE COURT: Thank you. 17 MR. MCCUTCHAN: And Edward McCutchan on behalf 18 of the Doe defendants, Dale Davis, Justin Hone, Matt 19 Zandek, Bill Hing, Lenora Fong, and Wilsinda Duvall. 20 THE COURT: Thank you. 21 We have reached a resolution in this matter. 22 I'll state the terms at this time. 23 First of all, Mr. Abel is to be paid $23,000, 24 and the sanctions which have been awarded by the court 25 are vacated by the court at this time. 26 And there's also an agreement that he does 27 need to pay them by the defendants. 28 Mr. Abel is to dismiss this action, including Page 4 Aiken Welch, A Veritext Company 510-451-1580 1 all defendants including all Doe defendants. The 2 parties are to sign a mutual release and settlement 3 agreement in which the provisions of Civil Code 1542 are 4 to be waived, and I've explained to Mr. Abel that this 5 includes all claims known and unknown. There are to be 6 no further claims made in regard to these underlying 7 events. 8 The settlement is to be enforced under 9 CCP 664.6. This means that if Mr. Abel is not paid, 10 that he may file a declaration with the court indicating 11 that with notice to the other side and the court will 12 enter a judgment on his settlement. 13 The settlement is to have a confidentiality 14 terms that neither party will discuss the settlement 15 with others and a non-disparagement clause so that 16 neither party will say bad things about the other party 17 in regard to these matters. 18 The formal settlement is to be signed by the 19 parties, and Mr. Abel is to provide a W-9 tax form to 20 Mr. Picchi so that the money can be paid. 21 Now, let me ask first, Mr. Abel, you've heard 22 the terms of the settlement. 23 Are you in agreement with them at this time? 24 MR. ABEL: Yes. Your Honor, I am. 25 But I do have one question. 26 THE COURT: Yes. 27 MR. ABEL: Is there a time frame or deadline 28 for this all to take place? Page 5 Aiken Welch, A Veritext Company 510-451-1580 1 THE COURT: I did not put a formal deadline in 2 the settlement. 3 When is Mr. Abel's payback in this regard? 4 How long does it take? 5 MR. PICCHI: Typically 30 to 45 days. 6 THE COURT: So the money should be paid within 7 30 to 45 days. 8 MR. PICCHI: So just to Mr. Abel is aware, we 9 will draft a release, which I don't know if you've put 10 as a provision and which you've read, but he is supposed 11 to sign a formal settlement agreement, which will have 12 the terms as you've outlined them, Judge. And 30 to 45 13 days from that, as soon as I get the signed release, it 14 goes to the carrier along with your W-9, and they then 15 process it. It could take 45 days, but typically it 16 takes less. So that that's what we're looking at, 30 to 17 45 days from the day we get the release signed, and 18 we'll start working on that today. So hopefully we'll 19 have it to you by the end of the week. 20 Does that give you a sense of where we are? 21 MR. ABEL: Yes. 22 MR. PICCHI: Two other things, Your Honor. 23 This agreement to dismiss is with prejudice -- 24 THE COURT: Correct. 25 MR. PICCHI: -- which I did not hear in -- 26 THE COURT: I did not say that, that but 27 that's correct. 28 MR. PICCHI: Mr. Abel also needs to be advised Page 6 Aiken Welch, A Veritext Company 510-451-1580 1 that he needs to file and serve a notice of full 2 settlement of the entire case with the court so that 3 everybody is on notice that that has happened. 4 MR. ABEL: Is there a deadline for that too? 5 MR. PICCHI: You should do it as soon as 6 possible because we've settled the case. It's a form, 7 and you can find it in the judicial forms. You just say 8 the case is settled and settled in its entirety and 9 you've filed with the court. 10 MR. ABEL: Okay. 11 MR. PICCHI: I think the judge will probably 12 let everybody know that it has been settled, but you 13 still need to do that. That's the plaintiff's 14 responsibility. 15 THE COURT: Anything else? 16 MR. PICCHI: Is there anything else? I don't 17 think so. 18 Mr. McCutchan will also be signing the release 19 too, and you'll be given a copy of that. Along with 20 that we will send to you a copy of a request for 21 dismissal dismissing the entire case, which you can 22 execute. We'll file and send you a filed endorsed copy 23 once we get that back from the court. These are all 24 just routine paperwork to make sure the case is inactive 25 in the court and it stops. 26 MR. ABEL: One more question, are all the 27 parties going to sign, or only you the attorneys? 28 MR. ABLE: Just and you Mr. McCutchan. Page 7 Aiken Welch, A Veritext Company 510-451-1580 1 MR. ABEL: Are the Doe defendants going to 2 sign? 3 MR. PICCHI: No, we didn't ask them to do 4 that. They're not really direct parties to the 5 settlement. He can sign on behalf of them. 6 MR. ABEL: But if I'm releasing my claims 7 against them, should they not be parties to this? 8 THE COURT: Well, they're appearing to their 9 attorney who will sign the documents on their behalf. 10 MR. PICCHI: Correct. 11 MR. ABEL: Okay. 12 THE COURT: That's standard. If you had an 13 attorney, he would be signing on your behalf. 14 MR. ABEL: I'm just trying to make sure it's 15 binding. If the attorney's signature will bind them, 16 then that's fine. 17 MR. MCCUTCHAN: And the last thing is all 18 heirs, successors, assigns, clients of Sunderland 19 McCutchan, LLP, are dismissed, released as part of this. 20 This thing is gone with prejudice where the carrier will 21 take care of the funds. 22 THE COURT: Okay. So, Mr. Abel, you're in 23 agreement with this? I think you said you are? 24 MR. ABLE: Yes, I am, Your Honor. 25 THE COURT: Let me ask of first Mr. McCutchan. 26 You've heard the terms of the settlement. 27 Are you in full agreement? 28 MR. MCCUTCHAN: Yes, and I agree for myself Page 8 Aiken Welch, A Veritext Company 510-451-1580 1 and my Doe clients and also for the firm and 2 Mr. Sunderland. I got the okay in a text. 3 THE COURT: Thank you. 4 Then the settlement is confirmed, and is 5 enforceable under 664.6 of the Code of Civil Procedure, 6 and I want to thank both sides for their participation. 7 It's been a very difficult case and very long and 8 involved case, and I appreciate your ability to finally 9 resolve it. 10 Madam Court Reporter, I think you've done your 11 job, and I appreciate it. 12 MR. PICCHI: Yes, thank you for making 13 yourself available on short notice. 14 THE COURT: All further hearings are vacated. 15 MR. PICCHI: No need for it. We've settled 16 the case. We'll send a notice of withdraw of the motion 17 for summary judgment once we get the notice of 18 settlement of all parties. 19 THE COURT: And we'll be Abel to terminate the 20 Zoom. 21 (The proceedings concluded at 10:26 a.m.) 22 --ooOoo-- 23 24 25 26 27 28 Page 9 Aiken Welch, A Veritext Company 510-451-1580 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN ND FOR THE COUNTY OF SONOMA 3 4 HON. RENE CHOUTEAU, JUDGE 5 RICHARD ABEL, an individual, ) ) 6 Plaintiff, ) ) CASE NO. SCV263456 7 vs. ) ) 8 B. EDWARD MCCUTCHAN, JR., an ) individual; ) 9 SUNDERLAND/MCCUTCHAN, LLP, a ) general partnership, and DOES) 10 1 through 100, inclusive, ) ) 11 Defendants. ) _____________________________) 12 13 14 I, Tamara L. Carlson, CSR No. 12555, Certified 15 Shorthand Reporter of the State of California, do hereby 16 certify that the foregoing pages, 1 through 9, are a 17 true and correct transcript of the proceedings held on 18 June 6, 2023, in the above-entitled cause. 19 20 Dated at Ventura, California this 26th day of 21 June, 2023. 22 23 24 <%6898,Signature%> 25 Tamara L. Carlson, CSR No. 12555 Official Reporter Pro Tempore 26 27 28 Page 10 Aiken Welch, A Veritext Company 510-451-1580 Exhibit B CM-200 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY Richard Abel 2222 Cleveland Avenue #1002 Santa Rosa, CA 95403 TELEPHONE NO.: (707) 340-3894 FAX NO. (Optional): E-MAIL ADDRESS (OplionaT): ATTORNEY FOR (Name): pro Se SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA STREET ADDRESS: 600 Administration Drive, Room 107-J MAILING ADDRESS: crrv AND ZIP coca. Santa Rosa, CA 95403-2878 BRANCH NAME: Civil - Department 18 PLAINTIFF/PETITIONER: Richard Abel DEFENDANT/RESPONDENT: B. Edward Mccutchan,Jr. et.al. CASE NUMBER: SCV-263456 NOTICE OF SETTLEMENT OF ENTIRE CASE JUDGE: C. Honigsberg DEPT.: 18 NOTICE TO PLAINTIFF OR OTHER PARTY SEEKING RELIEF You must file a request for dismissal of the entire case within 45 days after the date of the settlement if the settlement is unconditional.You must file a dismissal of the entire case within 45 days after the date specified in item 1 b below if the settlement is conditional.Unless you file a dismissal within the required time or have shown good cause before the time for dismissal has expired why the case should not be dismissed, the court will dismiss the entire case. To the court, all parties, and any arbitratoror othercourt-connected ADR neutral involvedIn this case: 1. This entire case has been settled. The settlement is: a. D Unconditional.A request for dismissal will be filed within 45 days after the date of the settlement. Date of settlement: b. CK] Conditional.The settlement agreement conditions dismissal of this matter on the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement. A request for dismissal will be filed no later than (date): January 5, 2024 2. Date initial pleading filed: November 2, 2018 3. Next scheduled hearing or conference: a. Purpose: Note: The Court retains jurisdiction pursuant to CCP 664.6 to enforce settlement. b. D (1) Date: none set at this time (2) Time: (3) Department: 4. Trial date: a. D No trial date set. b. CK] (1) Date: January 5, 2024 (2) Time: 8 a.rn. (3) Department: 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Date:June 9, 2023 .,. Richard Abel (TYPE OR PRINT NAME OF [__] ATTORNEY Li] PARTY WITHOUT ATTORNEY) (SIGNATURE) Page 1 of2 Cal. Rules of Court, rule 3.1385 Fo:d~1~t6:du~o;;l~~~~~~~~i~se NOTICE OF SETTLEMENT OF ENTIRE CASE www.courts.ca.gov CM-200 [Rev. January 1, 2007] CM-200 PLAINTIFF/PETITIONER: Richard Abel CASE NUMBER: DEFENDANT/RESPONDENT: B. Edward Mccutchan, Jr. et.al. SCV-263456 PROOF OF SERVICE BY FIRST-CLASS MAIL NOTICE OF SETTLEMENT OF ENTIRE CASE (NOTE: You cannotserve the Notice of Settlementof Entire Case if you are a party in the action. The personwho served the noticemustcompletethis proof of service.) 1. I am at least 18 years old and not a party to this action. I am a resident of or employed in the county where the mailing took place, and my residence or business address is (specify): 5805 Cuneo Court, Santa Rosa, CA 95403 2. I served a copy of the Notice of Settlement of Entire Case by enclosing it in a sealed envelope with postage fully prepaid and (check one): a. D deposited the sealed envelope with the United States Postal Service. b. CJ placed the sealed envelope for collection and processing for mailing, following this business's usual practices, with which I am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 3. The Notice of Settlement of Entire Case was mailed: a. on (date): June 13, 2023 b. from (city and state): Santa Rosa, California (sent by e-mail only) 4. The envelope was addressed and mailed as follows: a. Name of person served: c. Name of person served: B. Edward Mccutchan Junior Joseph Picchi Street address: (by email only) Street address: (by email only) City: emccutchan@sunmclaw.com City: jpicchi@glattys.com State and zip code: State and zip code: b. Name of person served: d. Name of person served: Street address: Street address: City: City: State and zip code: State and zip code: D Names and addresses of additional persons served are attached. (You may use form POS-030(P).) 5. Number of pages attached _ I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: June 13, 2023 Henry Crigler (TYPE OR PRINT NAME OF OECLARANT) (SIGNATURE OF DECLARANT) CM-200 [Rev. January 1, 2007] NOTICE OF SETTLEMENT OF ENTIRE CASE Page 2 of 2 Exhibit C RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT This Release of Claims and Settlement Agreement (“the Agreement”) is entered into as of the date last signed by an executing party, by and between RICHARD ABEL (“ABEL”) and B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; and SUNDERLAND | McCUTCHAN, LLP (collectively “SUNDERLAND | McCUTCHAN”). These parties to the Agreement shall be referred as the “Parties” or a “Party.” AGREEMENT Now, therefore, in consideration of the terms, covenants and conditions as set forth in this Agreement, the Parties agree as follows: SECTION 1 – RELEASE AND CONSIDERATION 1.1 The purpose of this Agreement is to finally settle, discharge, resolve, and conclude any and all liabilities, damages, demands, penalties, costs, claims, disputes, losses, judgments, charges, debts, obligations, agreements, actions, causes of action, obligations, and expenses (including reasonable attorneys’ fees, costs of suit, and expenses) (collectively “Claims”) by and between the Parties relating to and/or arising out of or in connection with the Underlying Action, including, but not limited to, any and all Claims that may have been or could have been alleged by any Party against any other Party in the Liability Action, or any action or proceeding relating to the Underlying Action or Liability Action, namely Sonoma County Superior Court Case No. SCV- 263456. 1.2 For and in consideration of the following consideration: (i) $23,000 to be paid to ABEL by SUNDERLAND | McCUTCHAN through their insurance carrier; and (ii) the mutual releases and covenants set forth in this Agreement, the Parties hereby release and forever discharge each other, as well as their agents, employees, insurers, and attorneys, from and against any and all Claims of any and every kind, nature or character, whatsoever, whether known or unknown, suspected or unsuspected, actual or potential, absolute or contingent, pending or anticipated, including without limitation, any Claim for damages as yet not accrued, which any Party may now or in the future have or claim to have against any other Party, or any of them, arising out of or in any way related to the Underlying Action, including without limitation, any and all Claims or causes of action stated in the complaint in the Liability Action, or which could have been stated or were attempted to be stated in any action or proceeding against any other Party to this Agreement (collectively “Claims”). 1.3 Each Party covenants and agrees never to commence or prosecute either individually or on behalf of any other person or entity, against any other Party or any of them, any action or proceeding based upon, arising out of, or in connection with the Underlying Action, or any Claim that is the subject matter of this Agreement, and this Agreement shall constitute a judicial bar to the institution or maintenance of any such action or proceeding. 1.4 There is a risk that, subsequent to the execution of this Agreement, a Party will incur damage or loss that a Party deems in some way attributable to another Party's prior actions, but which are unknown and unanticipated at the time this Agreement is signed. Each Party acknowledges and assumes such risk that damages presently known may become progressive, greater or more serious than is now known, expected or anticipated. 1 956-10761/JSP/1290154.docx 1.5 Each Party agrees that if the facts with respect to this Agreement, are found after this Agreement is entered into are different from the facts now believed to be true, each Party expressly accepts and assumes the risk of such possible difference in facts and thereby agrees that this Agreement is and will remain effective notwithstanding such difference in facts. Each Party acknowledges that they are familiar with and/or have been advised by their attorneys of the existence and meaning of California Civil Code § 1542, which provides that: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. Each Party expressly waives and releases any right or benefit that a Party has or may have under California Civil Code § 1542. SECTION 2 – RESOLUTION OF SETTLED ACTIONS It is the intention of this Agreement to finally and fully settle and resolve all disputes and controversies by and between the Parties. The resolution of Sonoma County Superior Court Case No. SCV-263456 by Sunderland | McCutchan is not an admission in any manner of liability as to ABEL’s claims in this action. SECTION 3 – ENFORCEMENT OF SETTLEMENT Any Claim, dispute, or litigation arising out of this Agreement, including any Claim to enforce or interpret the Parties' rights or obligations under this Agreement, may be referred to and resolved by the California Superior Court, County of Sonoma, pursuant to Code of Civil Procedure section 664.6. The Parties stipulate to jurisdiction before said court to enter judgment pursuant to the terms of the settlement and agreements in this Agreement and to enforce said settlement until performance in full of the terms of this Agreement. SECTION 4 – BINDING EFFECT This Agreement shall be binding on, and inure to the benefit of the successors and assigns of the Parties. This Agreement shall not be assignable by any Party without the prior written consent of all Parties. SECTION 5 – DISCLAIMER OF LIABILITY EFFECT The Parties agree that this settlement and the execution of the Agreement are the, result of compromise and are entered into in good faith. The Agreement shall never for any purpose be considered an admission of liability or responsibility and no past or present wrongdoing by any other Party shall be implied by such payment or execution. The Parties have entered into this settlement to avoid the uncertainty and further expense of litigation. 2 956-10761/JSP/1290154.docx SECTION 6 – INTEGRATION CLAUSE The Agreement contains the entire agreement and understanding among the Parties with respect to the subject matter of the Agreement, and supersedes all prior or contemporaneous oral or written agreements or understandings. No representation, warranty, condition, understanding, or agreement of any kind with respect to the subject matter of this Agreement shall be relied upon by the Parties unless expressly set forth in this Agreement. The Agreement may not be amended or modified except by an agreement in writing signed by all Parties. SECTION 7 – FEES AND EXPENSES The Parties shall bear and pay their respective expenses, including legal fees and costs, incurred by any of them based on, in connection with, or arising out of the subject matter of this Release of Claims and Settlement Agreement and the enforcement thereof. SECTION 8 – WARRANTIES The Parties each warrant and represent that they have full authority to enter into and execute this Agreement and to deliver all consideration and take all further actions required under this Agreement. The Parties each warrant and represent that they have not assigned or transferred, or purported to assign or transfer to any person not a party to this Agreement, any claim or cause of action covered by this Agreement or any part or portion thereof. The Parties agree to indemnify and hold one another harmless from and against any Claim based on, in connection with or arising out of any such assignment or transfer or purported or claimed assignment or transfer. SECTION 9 – CONFIDENTAILITY AND NON-DISPARAGEMENT The Parties and their attorneys, past and present, agree that the terms and conditions of this settlement agreement and release shall be confidential, except to the extent that any Party is required to make disclosure for purposes of income tax consideration, reporting required by any bank or financial institution, for an application for professional liability insurance, confidentially to legal counsel, or as required by court order. This confidentiality provision is a material term of this Agreement, and $1.00 out of the total settlement has been paid to plaintiff as consideration for the Parties to keep this settlement confidential. The Parties and their counsel further agree not to refer to the Liability Action by name or description on any website or in any marketing materials of any kind. To the extent reference already appears on the Parties or their counsel's website, any such reference shall be immediately erased and removed from said website. The Parties agree that their professional and personal reputations are important and should not be impaired by any Party, or their attorneys, after this Agreement is executed. Plaintiff therefore agrees not to disparage the professional or personal reputation of defendants, and defendants and their counsel likewise agree not to disparage Plaintiff’s professional or personal reputation. Specifically, the Parties agree that they will not disparage, slander, defame, or otherwise do any acts or make any omissions that a reasonable person would believe could injure the reputation of the other Party; provided, however, that this paragraph shall not apply to truthful testimony given in compliance with a lawful subpoena or court order. If any Party is served with a court order or subpoena that may call for disclosure of information protected by this 3 956-10761/JSP/1290154.docx confidentiality provision, before disclosing such information the Party shall promptly provide written notice of that fact to all other Parties. SECTION 10 – HEIRS, SUCCESSORS, AND ASSIGNS The Parties agree that the agreements and other things done or to be done under this Agreement shall run to and be binding upon their respective heirs, agents, clients, successors, executors, administrators, guardians, conservators, and assigns. SECTION 11 – SURVIVAL All covenants, representations, and warranties set forth in this Agreement shall be deemed continuing and shall survive the effective date of this Agreement. SECTION 12 – CONSTRUCTION The Parties and counsel for the Parties have each reviewed this Agreement and accordingly the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not he employed in interpreting this Agreement. In the event one or more of the provisions, or portions thereof, of this Agreement is determined to be illegal or unenforceable, the remainder of this Agreement shall not be affected and each remaining provision or portion thereof shall continue to be valid and effective, and shall be enforceable to the fullest extent permitted by law. The parties shall sign all documents necessary to give full force and effect to this Agreement. This Agreement is entered into in the state of California and shall be construed and interpreted in accordance with the laws of the state of California. SECTION13 – RIGHT TO AN ATTORNEY The parties confirm that they have received notice of their the right to consult an attorney regarding the terms and conditions of settlement set forth in this release, and by signing this release they are acknowledging that they have either consulted an attorney or they are waiving their right to consult an attorney. SECTION 14 – LIENS Mr. Abel has not indicated that there are any liens being asserted by any third party upon any recovery on the part of plaintiff in this lawsuit. To the extent that there are liens on any recovery by plaintiff that may be discovered subsequent to the execution of this release, plaintiff will be responsible for satisfying any such lien and agrees to indemnify, defend and hold harmless SUNDERLAND | McCUTCHAN, their agents, employees, insurer, and attorneys from any such lien. SECTION 15 – COUNTERPARTS/FACSIMILE SIGNATURES This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which when taken together shall be deemed one and the same instrument. If the Parties utilize email or facsimile transmittal of signed copies of this Agreement, the Party sending such an email or facsimile copy agrees the other Party may rely on such emailed or faxed documents as if they bore original signatures(s). 4 956-10761/JSP/1290154.docx SECTION 16 – EFFECT OF AGREEMENT This Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit, or other proceeding that may be instituted, prosecuted, or attempted in breach of this Agreement, except for an action or other proceeding to enforce or interpret this Agreement. SECTION 17 – DISMISSAL OF ALL ACTIONS Upon this Agreement being fully executed, and the consideration set forth in Section 1 having been paid and delivered, ABEL shall dismiss, with prejudice, Sonoma County Superior Court Case No. SCV-263456 in its entirety against all named parties, including all named DOES whether they have appeared in this action or not. SIGNATURES OFTHE PARTIES I, RICHARD ABEL, having carefully read the contents of this Agreement and understand the contents of this Agreement and sign the same, as a free act. DATED: __________________, 2023 by: _____________________________________ RICHARD ABEL I, B. EDWARD McCUTCHAN, JR., having carefully read the contents of this Agreement, and having fully discussed with my attorneys the legal effect of each and every provision set forth in this Agreement, understand the contents of this Agreement and sign the same, as a free act. DATED: __________________, 2023 by: _____________________________________ B. EDWARD McCUTCHAN, JR. I, ROBERT J. SUNDERLAND, having carefully read the contents of this Agreement, and having fully discussed with my attorneys the legal effect of each and every provision set forth in this Agreement, understand the contents of this Agreement and sign the same, as a free act. DATED: __________________, 2023 by: _____________________________________ ROBERT J. SUNDERLAND 5 956-10761/JSP/1290154.docx I, B. EDWARD McCUTCHAN, JR., as a Representative/Partner of SUNDERLAND | McCUTCHAN, LLP, having carefully read the contents of this Agreement, and having fully discussed with my attorneys the legal effect of each and every provision set forth in this Agreement, understand the contents of this Agreement and sign the same, as a free act. DATED: __________________, 2023 by: _____________________________________ B. E