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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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Sep-20-2013 03:19 pm
Case Number: CUD-11-635529
Filing Date: Sep-20-2013 03:18 pm
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DECLARATION
ETHEL H. ROSS AS TRUSTEE OF THE ETHEL HILL ROSS VS. CLAUDE ALIX
BERTRAND et al
001004209850
Instructions:
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Bracamontes & Viasak
A Professional Law Corporation
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Michael R. Bracamontes (SBN 242655)
Ryan J. Vlasak (SBN 241581)
Kristen M. Ross (SBN 250917)
BRACAMONTES & VLASAK, P.C.
220 Montgomery Street, Suite 870
San Francisco, CA 94104
Phone: (415) 835-6777
Fax: (415) 835-6780
Attorneys for Defendant Claude Alix Bertrand
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
ETHEL H. ROSS, as trustee of the ETHEL HILL | CASE NO.: CUD-11-635529
ROSS 1998 TRUST,
DEFENDANT CLAUDE-ALIX
Plaintiff, BERTRAND’S REQUEST FOR JUDICIAL
NOTICE IN SUPPORT OF DEFENDANT'S
vs. MOTION FOR RESCISSION OF
SETTLEMENT AGREEMENT
CLAUDE ALIX BERTRAND, et al.,
DATE: October 18, 2013
Defendants. TIME: 9:30 a.m.
DEPT: 501
JUDGE: Hon. Ronald Quidachay
Pursuant to California Evidence Code § 451(a) and § 452(a)-(b), Defendant respectfully requests
the Court judicially notice the following documents:
1. Stipulation for Settlement filed on July 12, 2012.
Dated: September 20, 2013 Respectfully submitted,
Michael Bracamontes, Esq.
BRACAMONTES & VLASAK, P.C.
Attorneys for Defendant
-1-
Ross v. Bertrand, et al. — Defendant’s Request for Judicial Notice re: Motion for Rescission of Settlement AgreementEXHIBIT 1coe YN DH Bw NH KL
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sanpnsceans eponsen
SUPERI
BECKMAN BLAIR LLP > COUNTY OF SAN FRANCISCO
703 Market Street, Suite 1610
San Francisco, California 94103 JUL 12 2012
Tel: (415) 495-8500 CLERK OF THE COURT
Fax: (415) 495-8590 ae__ MARSHA SiH
(Depa Ck
Attorneys for Plaintiff
Plaintiff, ETHEL H. ROSS, as trustee of the ETHEL HILL
ROSS 1998 TRUST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED CIVIL JURISDICTION
ETHEI. H. ROSS, as trustee of the ETHEL Case No.: CUD-11-635529
HULL ROSS 1998 TRUST,
Plaintiff,
STIPULATION FOR SETTLE-
vs. MENT OR, ALTERNATIVELY, FOR
ENTRY OF JUDGMENT
CLAUDE ALIX BERTRAND and DOES 1
through 5, inclusive,
Defendants.
Plaintiff, ETHEL H. ROSS, as trustee of the ETHEL HILL ROSS 1998 TRUST
(hereafter “Ross” or “Plaintiff”) and Defendant CLAUDE ALIX BERTRAND (hereafter
“Bertrand” or “Defendant”) enter into the following stipulated settlement agreement in the
above-entitled action with reference to the real property located at 290 Brentwood Avenue, San
Francisco, CA 94127, together with all attendant garage, storage and common areas (hereafter
“Premises”).
RECITALS: (Pr
A On or about October 1, 2007, Bertrand entered into a written rental agreement with Ross
for the premises located at 290 Brentwood Avenue, San Francisco, CA 94127 oR
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STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENT
EXHIBIT_ACem NN HW Bow
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“Premises”). Said agreement was for a term of 42 months, with rent due in the amount of
$4,000.00 each month for the first 36 months, and increased to $4,400.00 for the remaining six
months, Subsequently, the parties entered into an extension of the rental agreement, for an
additional 48 months, at a monthly rental of $4,200.00.
B. On or about January 4, 2011, Plaintiff filed the instant unlawful detainer action against
defendant alleging that defendant had breached the rental agreement by failing to pay rent when
due, and, after proper service of a notice to cure said default or quit the premises, failed to cure
said default or surrender possession of the premises.
Cc. After negotiation, the parties have agreed to resolve their dispute in the manner and on the
terms set forth below. Both parties agree that this Stipulation may be filed with the court, and
shall constitute the sole terms of the agreement between the parties unless altered, amended or
superseded in writing signed by both parties.
D. It is the intent of the parties that this Stipulation may be filed forthwith after execution (at
the option of Plaintiff who may also elect to withhold filing of the Stipulation until requesting
entry of Judgment as provided herein), but that Judgment shall not be entered unless Defendant
fails to perform their obligations herein, and upon such failure, Plaintiff shall file an ex parte
application for immediate entry of judgment on the terms set forth below.
Stipulated Terms of Conditional Judgment:
1, In the event that Defendant fails to comply with the provisions of this
agreement, Plaintiff shall be entitled to judgment against Defendant CAB for restitution of
possession of the subject premises located at 290 Brentwood Avenue, San Francisco, CA 94127,
including all storage, garage and common areas, and as to all other persons claiming a right of
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STEULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToO IN DH BF ww Mm
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possession through or under defendant. Plaintiff shall also be entitled to a money Judgment
against Defendant BERTRAND for money in the following amounts;
(a) unpaid back rent of $49,200.00;
(b) per diem damages of $147.00 per day from January 1, 2011 through June 30, 2012
in the amount of $81,585.00 (555 times 147.00);
(c) Plaintiff shall be awarded costs of suit in the amount of $500,00, and an amount
representing reasonable attorney’s fees in the amount of $25,000.00.
(@) Defendant shall be credited $8,000.00 for his security deposit, reducing the total
judgment amount from $156,285.00 to $148,285.00
Total Money Judgment including court costs and attorney’s fees awarded to
Plaintiff shall be: $148,285.00.
{e) The rental agreement under which defendant held possession is canceled and the
lease is forfeited.
Conditional Stay of Entry of JUDGMENT
2. If Defendant strictly complies with each obligation set forth below in this paragraph,
plaintiff will not enter Judgment pursuant to this Stipulation for so long as defendant performs all
such obligations until all such obligations are fully performed, at which time this action will be
dismissed with prejudice.
a. Defendant shall deliver to Plaintiff certified funds in the amount of $40,000.00
no later than Wednesday July 11, 2012. This sum represents payment toward
the unlawful detainer unpaid rents.
b. Defendant shall deliver to Plaintiff certified funds in the amount of $4,500.00
no later than Wednesday July 11, 2012. This sum represents payment for rent
for July 2012 pursuant to the conditional rental agreement effective July 1,
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STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToe YN DN
2012, discussed more fully below.
c. Defendant shall deliver to Plaintiff certified funds in the amount of $9,000.00
no later than Wednesday July 11, 2012. This sum represents payment for two
months’ security deposit, pursuant to the conditional rental agreement effective
July 1, 2012, discussed more fully below.
d. Defendant shall deliver to Plaintiff certified funds in the amount of $5,000.00 no later than
Monday, October 1, 2012. This sum represents payment toward the unlawful detainer unpaid
rents and damages.
e. Defendant shall deliver to Plaintiff payments of $2,000.00 per month, on the first day of
each month, for the period of August 1, 2012 through October 1, 2012; payments of $3,000.00
per month, on the first day of each month, for the period of November 1, 2012 through March 1,
2013; payments of $2,000.00 per month, on the first day of each month, for the period of. April 1,
2013 through July 1, 2013, and one payment of $1,000.00 on the first day of August, 2013, all of
which payments shall be applied to the remaining unpaid rent and unlawful detainer damages.
Notwithstanding defendant’s ability or preference, the payments set forth in this subparagraph
may not be prepaid.
f. During the period of August 2012, through December 2012, Defendant shall continue to
deliver to Plaintiff monthly rent payments in the amount of $4,500.00 on the first of each month.
2. During the period of January 1, 2013, through August 31, 2013, Defendant shall continue
to deliver monthly rent payments in the amount of $5,000.00 on the first of each month.
h. All payments received from Defendant during the period from August 1, 2012
through August 31, 2013 shall first be applied to the ongoing monthly rent, no
matter how such payments are denominated and then shall be applied to the
sums due in paragraph d and e, above.
i. Defendant waives the provisions of Civil Code §1479.
j. Acceptance of any of the above sums shall not reinstate Defendant’s tenancy at
the subject premises and shall not constitute a waiver of any claims of Plaintiff
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STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTCe YN DA WH Bw Ww
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for additional unpaid back rent, other than as set forth herein. Should
Defendant offer, tender or deliver any payment after its due date, Plaintiff shall
have the absolute discretion to accept or reject any such offer, tender or
delivery, as she chooses. Acceptance of any payment after its due date shall not
constitute a waiver of defendant’s duty pursuant to this Stipulation to deliver
each and every subsequent payment timely.
k. If Defendant successfully delivers each and every payment set forth in
paragraph 2, plaintiff will dismiss this action with prejudice, and reinstate
defendant's tenancy on the terms of the Conditional Rental Agreement
attached hereto as Exhibit A. In such event, the money judgment will be
deemed satisfied, except for possible application as an ‘offset’ to any claims
asserted by defendant for monies owed him by Plaintiff, as set forth more fully
in Paragraph 18 below.
3. The parties agree that, should judgment be entered, and upon Ross’s recovery of
possession of the Premises from Bertrand, if any personal possessions or other personal property
are left at the premises, such property will be considered refuse and of no value, and the parties
agree that the provisions of California Civil Code Sections 1980 - 1991 have been complied with.
4, The parties agree that defendant has been credited with his original security
deposit of $8,000.00 from the 2007 rental agreement, and Bertrand forfeits, releases, and waives
any and all rights, demands, claims, or causes of action to or for against any person or entity on
account of said original security deposit paid for the premises, or interest accrued.
5. The anticipated security deposit to be credited to defendant’s account pursuant to
the provision of paragraph 2(c) shall be handled according to the provisions of the conditional
rental agreement attached hereto as Exhibit A, and applicable state law.
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Ross v Bertrand, et al. (1
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENT6. Rel of Claims ~ left intentionally blank.
7. Other than as provided for herein, there shall be no further stays of the execution of |
this Judgment for any reason including any stays that may be available under any of the following:
a) a Motion to Set Aside Judgment;
b) a Motion for Relief from Forfeiture; or
c) any state laws or local rule of court or policy providing for a temporary stay
of execution based upon the payment of per diem rent into the Court.
8. Defendant expressly warrants and stipulates that other than his mother Jessie Coles
and his husband James Glasnapp, there are no other known adults in possession of the premises
on the date this document is executed, or who otherwise have any legitimate claim to a right of
possession of those premises through any sub-tenancy, co-tenancy, or assignment of them by
defendant. As to Jessie Coles and James Glasnapp defendant shall be responsible for securing
from said persons their written acknowledgement that any judgment for Possession entered
pursuant to this Stipulation will include such persons as ‘all occupants’ pursuant to Code of Civil
Procedure Section 415.46, all to be delivered to plaintiff's counsel within 30 days of defendant’s
signature hereon.
9. It is expressly understood and agreed that this settlement agreement may not be
altered, amended, modified or otherwise changed in any respect whatsoever except by a writing
duly executed by the parties or their authorized representatives. The parties hereby agree that
they will make no claim at any time or place that this settlement agreement has been orally altered
or modified or otherwise changed by oral communication of any kind or character and this
settlement agreement constitutes the entire agreement between the parties.
10. Upon Defendant’s compliance with each provision of this agreement and
SV. rand, et al. (Limited Jurisdiction Case #CUD-11-635529)
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTsatisfaction of all payments required above, Plaintiff will agree to enter into the new Conditional
Rental Agreement attached hereto as Exhibit A. It is expressly understood that this rental
agreement is contingent on Defendant’s complete and timely performance of each and every
obligation set forth herein, specifically but not limited to payment of each and every money
payment set forth herein. In such event, the rental agreement dated October 1, 2007, and all
addendums, modifications, extensions or other related terms shall be deemed terminated,
canceled and of no force or effect whatsoever (which shall be the same result should judgment be
entered in this matter should defendant breach its terms), and the landlord-tenant relationship
between the parties will be governed by the terms of Exhibit A.
11. This agreement shall be construed and enforced pursuant to the laws of the State of
California and may be signed in counterparts by the parties. Copies of this document, includng
faxed copies, may be used in lieu of the original, and such copies shall be equally admissible in
evidence.
12. Otherwise set forth herein, each side shall bear their own court costs and attorney’s
fees.
13. Each party acknowledges, represents, and warrants that he or she has, in connection
with all negotiations, including review and execution of this stipulation, been represented by,
consulted with and been advised by qualified, or has been advised to seek independent legal counsel,
and that this document has been the product of negotiations between the parties, such that the rule of
Contract interpretation that any ambiguities are to be construed against the drafter shall not apply, and
the document shall be considered drafted equally by both parties.
14. Time is of the very essence of this agreement.
15. If any provision of this settlement agreement, or the application thereof to any
person, or in any circumstance, shall be invalid or unenforceable to any extent, the remainder of this
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‘oss v Bertrand, et al. (Limited Jurisdiction Case #CUD-1 1-635529)
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTCP AD DH em wD BL
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agreement and the application of such provisions to other persons or in other circumstances shall not
be affected thereby and shall be enforced to the greatest extent permitted by law.
16. Should Defendant fail to comply with the express provisions of this Stipulation,
Plaintiff shall, upon 72 hours ex parte notice to Defendant or Defendant’s then-attorney of record,
be entitled to entry of judgment as provided for herein and issuance of a writ of possession for
possession of the subject premises. A Proposed Judgment Pursuant to Stipulation (Exhibit “B”
hereto), containing the identical judgment terms set forth in this Stipulation, shall also be
prepared by the parties, and approved as to form and content by Bertrand or Bertrand’s attorney
of record. Bertrand shall have no defense to such ex parte application, save that a breach did not
occur. Further, in this event, with the sole exception of a motion based on a claim that plaintiff
failed to properly provide notice of the aforesaid ex parte application as required by California
Rules of Court 3.1203, or that an Act of God prevented timely performance by defendant,
defendant expressly waives the tight to any and all relief to set aside the aforesaid stipulated
judgment by way of a motion for relief from forfeiture under any statute or common law,
including but not limited to Code of Civil Procedure §§ 473, 473.5, 1174 or 1179, as defendant’s
only defense to entry of the aforesaid judgment shall solely be a claim that a breach did not occur.
Further, in this event, defendant waives any and all rights to stays of execution and appeal(s) of
the aforesaid judgment.
17. The parties acknowledge that there remain claims by the defendant that
habitability defects not of his making exist at the premises, which require repair and justify a
deduction to accrued per diem and rent going forward. To resolve that issue, the parties agreed to
and did conduct an inspection of the premises Monday July 9, 2012, to allow both parties to
evaluate defendant’s asserted habitability defects. The parties have reached agreement on the
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ss v Bertrand, et al. (Limited Jurisdiction Case #CUD-11-635529) r
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTexistence of any such defects, and which party shall be responsible for its repair or remediation,
and the time allowed for such repair or remediation, However, should a dispute later arise as to
the repairs, the parties agree to seek the assistance of the court’s pre-trial settlement Process to
Tesolve any such issue. In the event the parties are unable to resolve any issue related to repairs,
they will submit the matter to Department 501 (or other department as assigned by the court) on
noticed motion, or ex parte application if circumstances require, for determination of any such
issue. The court shall have discretion to award attorney’s fees to the prevailing party if the court
finds the non-prevailing party acted unreasonably in requiring the matter be submitted to court for
determination.
owing are the list of habi issues which will be ad by whom, and by when:
a. The defendant pointed out certain electrical issues, consisting of a non-working
stove in the kitchen, and non-illuminating ceiling ‘can’ lights in the ‘office’, the master bedroom,
downstairs hall., upstairs hall, upstairs ‘shared’ bathroom, and guest bedroom. He also identified
non-working outlets in the basement laundry room. It is believed these problems stem from what
plaintiff's contractor described as a ‘spark’ in the circuit box/panel in the basement laundry room.
Plaintiff shall retain the services of a licensed electrical contractor forthwith and initiate repairs of
those items.
b. The defendant pointed out certain areas of the premises where rain water leaks into
the house, located at the top of the two large picture windows in the living room, and several of
the windows on the second story of the house (specifically, the windows located in the master
bedroom and blue bedroom), and the downstairs breakfast table area. Defendant will ‘tag’ each
and every window area from the inside, so that the licensed contractor(s) to be hired by plaintiff
can easily locate the problematic areas for repair. Defendant also identified a minor ceiling leak in
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Ross v Bertrand, et al. (Limited Jurisdiction Case #CUD-11-635529)
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTthe other upstairs bedroom. Plaintiff shall retain the services of a licensed contractor forthwith
and initiate repairs of those items. In all repairs done to the premises plaintiff shall select the
person doing repairs and the materials to be used in the repairs.
c There are apparently missing smoke detectors in the house, and plaintiff shall
cause smoke alarms to be installed, with one smoke alarm per bedroom or as otherwise required
by the local fire code (though the alarms will not be ‘hard-wired’ unless required by code, in
which case the cost of the hardwiring shall be evenly split between plaintiff and defendant),
Plaintiff shall also provide any required carbon monoxide detectors. Defendant shall not remove
any such detectors.
d. Plaintiff shall have 90 days from July 10, 2012, or until the end of the day October
8, 2012, to complete the above listed repairs. If all repairs have not been completed, as evidenced
where necessary by a permit ‘sign off” by the applicable county or city department, (or, where no
permit has been necessary, by the declaration of the contractor performing the work), then
defendant shall be entitled to a reduction of monthly rent of $500, to last ona per diem basis until
such repairs have been completed. If the repairs have not been completed in within 180 days of
July 10, 2012, or Monday January 7, 2013, then in addition to the rent reduction, defendant has
the option of terminating the rental relationship, and vacating the premises. In that event,
defendant’s obligations to pay monthly rent, and the ‘catch-up’ payments, shall be deemed
abated, completed and terminated, as of the date defendant completely vacates the premises and
removes all personal property, leaving the premises broom clean and undamaged beyond normal
wear and tear.
e In order for plaintiff to timely initiate and complete all necessary work to the
premises identified above, plaintiff tequires reasonable access to the premises, and the
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STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTCP DDH Bw Bw
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cooperation of defendant in that regard. Both sides have complained about the other’s abuse of
the statutorily outlined right of access to residential premises. However, going forward, the
parties shall strictly observe the provisions of Civil Code Section 1954. Plaintiff will only employ
licensed contractors, and require that such contractors are insured for claims of liability for
damage or theft to the person or possession of the premises being worked at. In those
circumstances, and as necessary to effect timely repairs, defendant shall not impede reasonable
access to the premises, even if such access shall necessarily occur at a time when defendant may
not be home. Any actions by defendant to unreasonably impede repairs and access shall extend
the plaintiff’s repair deadlines commensurately.
£ The above items constitute the entirety of known habitability defects which must
be repaired by plaintiff, or which, to defendant’s knowledge, exist in the premises. Should
defendant discover any future habitability defects, he will contact plaintiff or plaintiff's
designated agent, in writing, as soon as. reasonably practical, with an itemized description of the
defect, and as much detail regarding the cause, extent and location of the defect as possible.
Plaintiff or her agent will promptly undertake investigation to confirm or contest defendant’s
stated defect, and if the defect is substantiated, and not caused by defendant’s want of ordinary
care, plaintiff shall take prompt action to cure the defect. If the defect is not corrected timely
(which shall be determined by all the circumstances), then defendant may submit a petition to the
rent board for a rent reduction. If the defect is reasonably considered life-threatening, as opposed
to a diminished amenity or non-urgent matter, and has not promptly been cured by plaintiff,
defendant must comply with Civil Code Section 1942 in order to employ the repair and deduct
remedy.
g. Other than items as minor as changing a light bulb (to use an example), defendant
il
Ross-v Bertrand, et al, (Limited Jurisdiction Case #CUD-11-635529)
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTshall have no obligation or right to conduct any repairs, work, maintenance etc at or on the
premises. Any such efforts shall be solely the responsibility of plaintiff.
h. Plaintiff reserves her right to assert that the repairs were caused by defendant’s
want of ordinary care, in the event defendant brings claims against plaintiff related to the
premises. Plaintiff reserves all claims other than those expressly settled in this stipulated
agreement.
18. The parties also acknowledge that they have endured a long and tortuous landlord-
tenant relationship, for reasons including their original agreement regarding improvements to and
remodeling of parts of the Premises, compounded by certain water-related events, both of a man-
made and weather made nature. Specifically, Plaintiff claims that defendant was not obligated to
provide services toward the improvement of the premises or remodeling except in tegards to
remodeling of the kitchen as specifically stated in the original rental agreement. Plaintiff claims
that Defendant’s actual efforts in this regard were wildly excessive and beyond the scope of his
limited authority, and that Defendant charged Plaintiff hundreds of thousands of dollars more
than Plaintiff originally agreed to, or ever contemplated she would, spend on said improvements
and remodeling including repairs ostensibly covered by insurance proceeds. For his part,
Defendant claims that he invested hundreds of thousands of dollars in time, money and materials
in the work done at the premises, without sufficient reimbursement, and that all the work he did
was either expressly or impliedly authorized. Because the scope of this aspect of the dispute
between the parties is so broad, it exceeds their ability to resolve in the context of this Stipulation,
which is limited to the specific items covered within it. However, the parties anticipate that they
will resume negotiation or litigation of the competing claims in another forum, either by private
mediation, or a separate lawsuit. In that event, the amounts specified herein may be admissible for
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Ross v Bertrand, et al. (Limited Jurisdiction Case #CUD-11-635529)
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToC Om ND HM eB wD wm
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purposes of such litigation or mediation. And, in the event defendant successfully completes the
obligations set out herein, compelling a dismissal of this case, any claim by Plaintiff for unpaid
rent prior to January 1, 2010, or per diem damages deemed otherwise satisfied by defendant’s
payments provided herein, shall not be waived, and may be asserted against Defendant as both an
offset to his claims, and as affirmative claims for money owed. The Parties stipulate that they will
submit the accounting dispute for the period 2008 to the present to a neutral accountant to be
mutually agreed upon by the parties, and that they will produce all applicable accounting records
(e.g., bills, checks, payments, invoices etc), and that they will endeavor to complete this
accounting by the end of 2012. Any dispute related to the accounting shall be submitted to
Department 501 (or other department as assigned by the court) on noticed motion for
determination of any such issue. The court shall have discretion to award attorney’s fees to the
prevailing party if the court finds the non-prevailing
HOWEVER, IT IS EXPRESSLY UNDERSTOOD AND AGReED THAT NO ISSUE
RELATED TO THE ACCOUNTING SHALL IN ANY WAY AFFECT, LESSEN, DIMINISH
OR IMPACT DEFENDANT’S OBLIGATIONS UNDER THIS STIPULATION REGARDING
PAYMENTS TO BE MADE TO SATISFY THE STIPULATED JUDGMENT.
19. This settlement agreement is made for the benefit of, and is binding upon, the
respective parties’ successors, administrators, heirs, and assigns and may be executed in
counterparts, and when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and taken together shall constitute one and the same
agreement, which shall be binding and effective as to all parties.
(Limited Jurisdiction Case #CUD-11-635529)
Ross v Bertrand, et al. (
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToC em NN DH Rw DY Ee
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purposes of such litigation or mediation. And, in the event defendant successfully completes the
obligations set out herein, compelling a dismissal of this case, any claim by Plaintiff for unpaid
rent prior to January 1, 2010, or per diem damages deemed otherwise satisfied by defendant's
payments provided herein, shall not be waived, and may be asserted against Defendant as both an
offset to his claims, and as affirmative claims for money owed. The parties stipulate that they will
submit the accounting dispute for the period 2008 to the present to a neutral accountant to be
mutually agreed upon by the parties, and that they will produce all applicable accounting records
(e.g., bills, checks, payments, invoices etc), and that they will endeavor to complete this
accounting by the end of 2012. Any dispute related to the accounting shall be submitted to
Department 501 (or other department as assigned by the court) on noticed motion for
determination of any such issue. The court shall have discretion to award attorney’s fees to the
prevailing party if the court finds the non-prevailing acted unreasonably in requiring the matter be
submitted to court for determination.
HOWEVER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT NO ISSUE
RELATED TO THE ACCOUNTING SHALL IN ANY WAY AFFECT, LESSEN, DIMINISH
OR IMPACT DEFENDANT’S OBLIGATIONS UNDER THIS STIPULATION REGARDING
PAYMENTS TO BE MADE TO SATISFY THE STIPULATED JUDGMENT.
19, This settlement agreement is made for the benefit of, and is binding upon, the
respective parties’ successors, administrators, heirs, and assigns and may be executed in
counterparts, and when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and taken together shall constitute one and the same
agreement, which shall be binding and effective as to all parties,
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SO AGREED and STIPULATED
Dated: (V/_,2012
pated: Z//Ay__, 2012
Approved as to form:
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CLA ALIX BERTRAND
Deferidant
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Plaintiff
BECKMAN BLAIR, L
By: Béchart Beckman
Al eys for Plaintiff
Meerder
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EXHIBIT A ~ Conditional Rental Agreement
The rental agreement shall be the standard form residential rental agreement provided by
the San Francisco Apartment Association’s most current version, supplemented by the specific
following terms:
The prior lease would be canceled, and there would be a new one year lease beginning
July 1, 2013. Rent at $4500 per month would be due starting July 1 to Dec. 31, 2012, and
increase to $5,000 per month beginning Jan. 1, 2013. Ifall payments (including the monthly
‘catch-up’ payments under the Stipulation) are delivered on time for the first year ending June 30,
2013, then the lease would be extended for one extra year, to June 30, 2014, on the same terms
and for the same rental amount, and if all payments are made on time during the 2nd year, then
the lease would be extended for another extra year, to June 30, 2015, on the same terms and for
the same rental amount, and if all payments are made on time during the 3nd year, one final year
would be added to extend the rental period to a total of four years, to June 30, 2016, on the same
terms and for the same rental amount, after which the rental agreement would terminate.
However, it is expressly agreed that the Owner of the premises, whether that be Ethel
H.Ross, or another person or persons, retains the option to terminate the fourth year of the rental
agreement to permit the owner or owner's family members to occupy the premises as their
principal residence, in conformance with applicable law.
EA fos
Ross v al. (Limited Jurisdiction Case #CUD-11-635529) Ww D
STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTBracamontes & Vlasak
A Professional Law Corporation
www.bvlawsf.com
Som IN DH PB WHY YE
Ross, et al. v. Bertrand, et al.
Case No.: CUD-11-635529
PROOF OF SERVICE
The undersigned certifies and declares as follows: I am over the age of 18 years and am not a party td
the within action. I am employed in the County of San Francisco, California. On the date shown below,
I served the following document:
1. DEFENDANT CLAUDE-ALIX BERTRAND’S REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANT’S MOTION FOR RESCISSION OF SETTLEMENT
AGREEMENT
in the manner described below to the interested parties herein and addressee(s):
Richard Beckman
Beckman Blair, LLP
703 Market Street # 1610
San Francisco, CA 94103
_X_ MAIL: I placed a true and correct copy thereof in a sealed envelope and caused such envelope to}
be deposited in a United States postal receptacle on that same day, with postage thereon fully prepaid,
addressed to the addressee(s) designated or placing the envelope for collection and mailing following oui
ordinary business practices. I am readily familiar with this business’s practice for collecting and
processing correspondence for mailing. On the same day that correspondence is placed for collection
and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a
sealed envelope with postage fully prepaid.
__ HAND DELIVERY: I placed a true and correct copy thereof in a sealed envelope and delivered
by hand to the addressee(s).
_ FACSIMILE: | caused such document to be served via facsimile on the interested parties at the
facsimile numbers listed above. The fax machine I used complied with California Rule of Court 2.301,
and no error was reported by the machine. Pursuant to California Rule of Court 2.304 I caused the
machine to print a report of the transmission.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed on September 20, 2013 in San Francis Wount California
OA
Andrew Birnbaum
Proof of Service
Preview
IOUT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Sep-20-2013 03:19 pm Case Number: CUD-11-635529 Filing Date: Sep-20-2013 03:18 pm Filed by: Juke Box: 001 Image: 04209850 DECLARATION ETHEL H. ROSS AS TRUSTEE OF THE ETHEL HILL ROSS VS. CLAUDE ALIX BERTRAND et al 001004209850 Instructions: Please place this sheet on top of the document to be scanned.co Oe YN DW BF WN | Se oe oe oe oO ne S www.bvlawsf.com a ® a Bracamontes & Viasak A Professional Law Corporation NN YN YN oe es &@nraRB BERR BSPEe AR Michael R. Bracamontes (SBN 242655) Ryan J. Vlasak (SBN 241581) Kristen M. Ross (SBN 250917) BRACAMONTES & VLASAK, P.C. 220 Montgomery Street, Suite 870 San Francisco, CA 94104 Phone: (415) 835-6777 Fax: (415) 835-6780 Attorneys for Defendant Claude Alix Bertrand SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION ETHEL H. ROSS, as trustee of the ETHEL HILL | CASE NO.: CUD-11-635529 ROSS 1998 TRUST, DEFENDANT CLAUDE-ALIX Plaintiff, BERTRAND’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT'S vs. MOTION FOR RESCISSION OF SETTLEMENT AGREEMENT CLAUDE ALIX BERTRAND, et al., DATE: October 18, 2013 Defendants. TIME: 9:30 a.m. DEPT: 501 JUDGE: Hon. Ronald Quidachay Pursuant to California Evidence Code § 451(a) and § 452(a)-(b), Defendant respectfully requests the Court judicially notice the following documents: 1. Stipulation for Settlement filed on July 12, 2012. Dated: September 20, 2013 Respectfully submitted, Michael Bracamontes, Esq. BRACAMONTES & VLASAK, P.C. Attorneys for Defendant -1- Ross v. Bertrand, et al. — Defendant’s Request for Judicial Notice re: Motion for Rescission of Settlement AgreementEXHIBIT 1coe YN DH Bw NH KL oe ~ oS 12 sanpnsceans eponsen SUPERI BECKMAN BLAIR LLP > COUNTY OF SAN FRANCISCO 703 Market Street, Suite 1610 San Francisco, California 94103 JUL 12 2012 Tel: (415) 495-8500 CLERK OF THE COURT Fax: (415) 495-8590 ae__ MARSHA SiH (Depa Ck Attorneys for Plaintiff Plaintiff, ETHEL H. ROSS, as trustee of the ETHEL HILL ROSS 1998 TRUST SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED CIVIL JURISDICTION ETHEI. H. ROSS, as trustee of the ETHEL Case No.: CUD-11-635529 HULL ROSS 1998 TRUST, Plaintiff, STIPULATION FOR SETTLE- vs. MENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENT CLAUDE ALIX BERTRAND and DOES 1 through 5, inclusive, Defendants. Plaintiff, ETHEL H. ROSS, as trustee of the ETHEL HILL ROSS 1998 TRUST (hereafter “Ross” or “Plaintiff”) and Defendant CLAUDE ALIX BERTRAND (hereafter “Bertrand” or “Defendant”) enter into the following stipulated settlement agreement in the above-entitled action with reference to the real property located at 290 Brentwood Avenue, San Francisco, CA 94127, together with all attendant garage, storage and common areas (hereafter “Premises”). RECITALS: (Pr A On or about October 1, 2007, Bertrand entered into a written rental agreement with Ross for the premises located at 290 Brentwood Avenue, San Francisco, CA 94127 oR 1 Ross v Bertrand, et al. (Limited Jurisdiction Case #CUD-11-635529) STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENT EXHIBIT_ACem NN HW Bow 10 “Premises”). Said agreement was for a term of 42 months, with rent due in the amount of $4,000.00 each month for the first 36 months, and increased to $4,400.00 for the remaining six months, Subsequently, the parties entered into an extension of the rental agreement, for an additional 48 months, at a monthly rental of $4,200.00. B. On or about January 4, 2011, Plaintiff filed the instant unlawful detainer action against defendant alleging that defendant had breached the rental agreement by failing to pay rent when due, and, after proper service of a notice to cure said default or quit the premises, failed to cure said default or surrender possession of the premises. Cc. After negotiation, the parties have agreed to resolve their dispute in the manner and on the terms set forth below. Both parties agree that this Stipulation may be filed with the court, and shall constitute the sole terms of the agreement between the parties unless altered, amended or superseded in writing signed by both parties. D. It is the intent of the parties that this Stipulation may be filed forthwith after execution (at the option of Plaintiff who may also elect to withhold filing of the Stipulation until requesting entry of Judgment as provided herein), but that Judgment shall not be entered unless Defendant fails to perform their obligations herein, and upon such failure, Plaintiff shall file an ex parte application for immediate entry of judgment on the terms set forth below. Stipulated Terms of Conditional Judgment: 1, In the event that Defendant fails to comply with the provisions of this agreement, Plaintiff shall be entitled to judgment against Defendant CAB for restitution of possession of the subject premises located at 290 Brentwood Avenue, San Francisco, CA 94127, including all storage, garage and common areas, and as to all other persons claiming a right of id, et al. (Limited Jurisdiction Case ¥CUD-11- |-635529) STEULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToO IN DH BF ww Mm RB RRR PNR RNR Ye ew ew we ete Stats PN FS SCSVTATEESGH SS possession through or under defendant. Plaintiff shall also be entitled to a money Judgment against Defendant BERTRAND for money in the following amounts; (a) unpaid back rent of $49,200.00; (b) per diem damages of $147.00 per day from January 1, 2011 through June 30, 2012 in the amount of $81,585.00 (555 times 147.00); (c) Plaintiff shall be awarded costs of suit in the amount of $500,00, and an amount representing reasonable attorney’s fees in the amount of $25,000.00. (@) Defendant shall be credited $8,000.00 for his security deposit, reducing the total judgment amount from $156,285.00 to $148,285.00 Total Money Judgment including court costs and attorney’s fees awarded to Plaintiff shall be: $148,285.00. {e) The rental agreement under which defendant held possession is canceled and the lease is forfeited. Conditional Stay of Entry of JUDGMENT 2. If Defendant strictly complies with each obligation set forth below in this paragraph, plaintiff will not enter Judgment pursuant to this Stipulation for so long as defendant performs all such obligations until all such obligations are fully performed, at which time this action will be dismissed with prejudice. a. Defendant shall deliver to Plaintiff certified funds in the amount of $40,000.00 no later than Wednesday July 11, 2012. This sum represents payment toward the unlawful detainer unpaid rents. b. Defendant shall deliver to Plaintiff certified funds in the amount of $4,500.00 no later than Wednesday July 11, 2012. This sum represents payment for rent for July 2012 pursuant to the conditional rental agreement effective July 1, ER /pp Bert etal. (Limited Jurisdiction Case #CUD-11-635529) CF STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToe YN DN 2012, discussed more fully below. c. Defendant shall deliver to Plaintiff certified funds in the amount of $9,000.00 no later than Wednesday July 11, 2012. This sum represents payment for two months’ security deposit, pursuant to the conditional rental agreement effective July 1, 2012, discussed more fully below. d. Defendant shall deliver to Plaintiff certified funds in the amount of $5,000.00 no later than Monday, October 1, 2012. This sum represents payment toward the unlawful detainer unpaid rents and damages. e. Defendant shall deliver to Plaintiff payments of $2,000.00 per month, on the first day of each month, for the period of August 1, 2012 through October 1, 2012; payments of $3,000.00 per month, on the first day of each month, for the period of November 1, 2012 through March 1, 2013; payments of $2,000.00 per month, on the first day of each month, for the period of. April 1, 2013 through July 1, 2013, and one payment of $1,000.00 on the first day of August, 2013, all of which payments shall be applied to the remaining unpaid rent and unlawful detainer damages. Notwithstanding defendant’s ability or preference, the payments set forth in this subparagraph may not be prepaid. f. During the period of August 2012, through December 2012, Defendant shall continue to deliver to Plaintiff monthly rent payments in the amount of $4,500.00 on the first of each month. 2. During the period of January 1, 2013, through August 31, 2013, Defendant shall continue to deliver monthly rent payments in the amount of $5,000.00 on the first of each month. h. All payments received from Defendant during the period from August 1, 2012 through August 31, 2013 shall first be applied to the ongoing monthly rent, no matter how such payments are denominated and then shall be applied to the sums due in paragraph d and e, above. i. Defendant waives the provisions of Civil Code §1479. j. Acceptance of any of the above sums shall not reinstate Defendant’s tenancy at the subject premises and shall not constitute a waiver of any claims of Plaintiff ER. a4 y Be d, et al. (Limited Jurisdiction Case #CUD-11-635529) (/4 STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTCe YN DA WH Bw Ww 10 for additional unpaid back rent, other than as set forth herein. Should Defendant offer, tender or deliver any payment after its due date, Plaintiff shall have the absolute discretion to accept or reject any such offer, tender or delivery, as she chooses. Acceptance of any payment after its due date shall not constitute a waiver of defendant’s duty pursuant to this Stipulation to deliver each and every subsequent payment timely. k. If Defendant successfully delivers each and every payment set forth in paragraph 2, plaintiff will dismiss this action with prejudice, and reinstate defendant's tenancy on the terms of the Conditional Rental Agreement attached hereto as Exhibit A. In such event, the money judgment will be deemed satisfied, except for possible application as an ‘offset’ to any claims asserted by defendant for monies owed him by Plaintiff, as set forth more fully in Paragraph 18 below. 3. The parties agree that, should judgment be entered, and upon Ross’s recovery of possession of the Premises from Bertrand, if any personal possessions or other personal property are left at the premises, such property will be considered refuse and of no value, and the parties agree that the provisions of California Civil Code Sections 1980 - 1991 have been complied with. 4, The parties agree that defendant has been credited with his original security deposit of $8,000.00 from the 2007 rental agreement, and Bertrand forfeits, releases, and waives any and all rights, demands, claims, or causes of action to or for against any person or entity on account of said original security deposit paid for the premises, or interest accrued. 5. The anticipated security deposit to be credited to defendant’s account pursuant to the provision of paragraph 2(c) shall be handled according to the provisions of the conditional rental agreement attached hereto as Exhibit A, and applicable state law. ER zs Ro: rtra} al. (Limited Jurisdiction Case #CUD-11-635529) v Lt Ross v Bertrand, et al. (1 STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENT6. Rel of Claims ~ left intentionally blank. 7. Other than as provided for herein, there shall be no further stays of the execution of | this Judgment for any reason including any stays that may be available under any of the following: a) a Motion to Set Aside Judgment; b) a Motion for Relief from Forfeiture; or c) any state laws or local rule of court or policy providing for a temporary stay of execution based upon the payment of per diem rent into the Court. 8. Defendant expressly warrants and stipulates that other than his mother Jessie Coles and his husband James Glasnapp, there are no other known adults in possession of the premises on the date this document is executed, or who otherwise have any legitimate claim to a right of possession of those premises through any sub-tenancy, co-tenancy, or assignment of them by defendant. As to Jessie Coles and James Glasnapp defendant shall be responsible for securing from said persons their written acknowledgement that any judgment for Possession entered pursuant to this Stipulation will include such persons as ‘all occupants’ pursuant to Code of Civil Procedure Section 415.46, all to be delivered to plaintiff's counsel within 30 days of defendant’s signature hereon. 9. It is expressly understood and agreed that this settlement agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by the parties or their authorized representatives. The parties hereby agree that they will make no claim at any time or place that this settlement agreement has been orally altered or modified or otherwise changed by oral communication of any kind or character and this settlement agreement constitutes the entire agreement between the parties. 10. Upon Defendant’s compliance with each provision of this agreement and SV. rand, et al. (Limited Jurisdiction Case #CUD-11-635529) STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTsatisfaction of all payments required above, Plaintiff will agree to enter into the new Conditional Rental Agreement attached hereto as Exhibit A. It is expressly understood that this rental agreement is contingent on Defendant’s complete and timely performance of each and every obligation set forth herein, specifically but not limited to payment of each and every money payment set forth herein. In such event, the rental agreement dated October 1, 2007, and all addendums, modifications, extensions or other related terms shall be deemed terminated, canceled and of no force or effect whatsoever (which shall be the same result should judgment be entered in this matter should defendant breach its terms), and the landlord-tenant relationship between the parties will be governed by the terms of Exhibit A. 11. This agreement shall be construed and enforced pursuant to the laws of the State of California and may be signed in counterparts by the parties. Copies of this document, includng faxed copies, may be used in lieu of the original, and such copies shall be equally admissible in evidence. 12. Otherwise set forth herein, each side shall bear their own court costs and attorney’s fees. 13. Each party acknowledges, represents, and warrants that he or she has, in connection with all negotiations, including review and execution of this stipulation, been represented by, consulted with and been advised by qualified, or has been advised to seek independent legal counsel, and that this document has been the product of negotiations between the parties, such that the rule of Contract interpretation that any ambiguities are to be construed against the drafter shall not apply, and the document shall be considered drafted equally by both parties. 14. Time is of the very essence of this agreement. 15. If any provision of this settlement agreement, or the application thereof to any person, or in any circumstance, shall be invalid or unenforceable to any extent, the remainder of this ER 2 ‘oss v Bertrand, et al. (Limited Jurisdiction Case #CUD-1 1-635529) STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTCP AD DH em wD BL Ss 11 agreement and the application of such provisions to other persons or in other circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 16. Should Defendant fail to comply with the express provisions of this Stipulation, Plaintiff shall, upon 72 hours ex parte notice to Defendant or Defendant’s then-attorney of record, be entitled to entry of judgment as provided for herein and issuance of a writ of possession for possession of the subject premises. A Proposed Judgment Pursuant to Stipulation (Exhibit “B” hereto), containing the identical judgment terms set forth in this Stipulation, shall also be prepared by the parties, and approved as to form and content by Bertrand or Bertrand’s attorney of record. Bertrand shall have no defense to such ex parte application, save that a breach did not occur. Further, in this event, with the sole exception of a motion based on a claim that plaintiff failed to properly provide notice of the aforesaid ex parte application as required by California Rules of Court 3.1203, or that an Act of God prevented timely performance by defendant, defendant expressly waives the tight to any and all relief to set aside the aforesaid stipulated judgment by way of a motion for relief from forfeiture under any statute or common law, including but not limited to Code of Civil Procedure §§ 473, 473.5, 1174 or 1179, as defendant’s only defense to entry of the aforesaid judgment shall solely be a claim that a breach did not occur. Further, in this event, defendant waives any and all rights to stays of execution and appeal(s) of the aforesaid judgment. 17. The parties acknowledge that there remain claims by the defendant that habitability defects not of his making exist at the premises, which require repair and justify a deduction to accrued per diem and rent going forward. To resolve that issue, the parties agreed to and did conduct an inspection of the premises Monday July 9, 2012, to allow both parties to evaluate defendant’s asserted habitability defects. The parties have reached agreement on the ER. Df 8 ss v Bertrand, et al. (Limited Jurisdiction Case #CUD-11-635529) r STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTexistence of any such defects, and which party shall be responsible for its repair or remediation, and the time allowed for such repair or remediation, However, should a dispute later arise as to the repairs, the parties agree to seek the assistance of the court’s pre-trial settlement Process to Tesolve any such issue. In the event the parties are unable to resolve any issue related to repairs, they will submit the matter to Department 501 (or other department as assigned by the court) on noticed motion, or ex parte application if circumstances require, for determination of any such issue. The court shall have discretion to award attorney’s fees to the prevailing party if the court finds the non-prevailing party acted unreasonably in requiring the matter be submitted to court for determination. owing are the list of habi issues which will be ad by whom, and by when: a. The defendant pointed out certain electrical issues, consisting of a non-working stove in the kitchen, and non-illuminating ceiling ‘can’ lights in the ‘office’, the master bedroom, downstairs hall., upstairs hall, upstairs ‘shared’ bathroom, and guest bedroom. He also identified non-working outlets in the basement laundry room. It is believed these problems stem from what plaintiff's contractor described as a ‘spark’ in the circuit box/panel in the basement laundry room. Plaintiff shall retain the services of a licensed electrical contractor forthwith and initiate repairs of those items. b. The defendant pointed out certain areas of the premises where rain water leaks into the house, located at the top of the two large picture windows in the living room, and several of the windows on the second story of the house (specifically, the windows located in the master bedroom and blue bedroom), and the downstairs breakfast table area. Defendant will ‘tag’ each and every window area from the inside, so that the licensed contractor(s) to be hired by plaintiff can easily locate the problematic areas for repair. Defendant also identified a minor ceiling leak in Ej [ 9 Ross v Bertrand, et al. (Limited Jurisdiction Case #CUD-11-635529) STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTthe other upstairs bedroom. Plaintiff shall retain the services of a licensed contractor forthwith and initiate repairs of those items. In all repairs done to the premises plaintiff shall select the person doing repairs and the materials to be used in the repairs. c There are apparently missing smoke detectors in the house, and plaintiff shall cause smoke alarms to be installed, with one smoke alarm per bedroom or as otherwise required by the local fire code (though the alarms will not be ‘hard-wired’ unless required by code, in which case the cost of the hardwiring shall be evenly split between plaintiff and defendant), Plaintiff shall also provide any required carbon monoxide detectors. Defendant shall not remove any such detectors. d. Plaintiff shall have 90 days from July 10, 2012, or until the end of the day October 8, 2012, to complete the above listed repairs. If all repairs have not been completed, as evidenced where necessary by a permit ‘sign off” by the applicable county or city department, (or, where no permit has been necessary, by the declaration of the contractor performing the work), then defendant shall be entitled to a reduction of monthly rent of $500, to last ona per diem basis until such repairs have been completed. If the repairs have not been completed in within 180 days of July 10, 2012, or Monday January 7, 2013, then in addition to the rent reduction, defendant has the option of terminating the rental relationship, and vacating the premises. In that event, defendant’s obligations to pay monthly rent, and the ‘catch-up’ payments, shall be deemed abated, completed and terminated, as of the date defendant completely vacates the premises and removes all personal property, leaving the premises broom clean and undamaged beyond normal wear and tear. e In order for plaintiff to timely initiate and complete all necessary work to the premises identified above, plaintiff tequires reasonable access to the premises, and the fe he 10 t ‘Limited Jurisdiction Case #CUD-11-635529) 7 7 Ross v Bertrand, et al. ( STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTCP DDH Bw Bw BRP RPP ye NR NY Yew ee ne ee FP NS TSC RU R TESS es cooperation of defendant in that regard. Both sides have complained about the other’s abuse of the statutorily outlined right of access to residential premises. However, going forward, the parties shall strictly observe the provisions of Civil Code Section 1954. Plaintiff will only employ licensed contractors, and require that such contractors are insured for claims of liability for damage or theft to the person or possession of the premises being worked at. In those circumstances, and as necessary to effect timely repairs, defendant shall not impede reasonable access to the premises, even if such access shall necessarily occur at a time when defendant may not be home. Any actions by defendant to unreasonably impede repairs and access shall extend the plaintiff’s repair deadlines commensurately. £ The above items constitute the entirety of known habitability defects which must be repaired by plaintiff, or which, to defendant’s knowledge, exist in the premises. Should defendant discover any future habitability defects, he will contact plaintiff or plaintiff's designated agent, in writing, as soon as. reasonably practical, with an itemized description of the defect, and as much detail regarding the cause, extent and location of the defect as possible. Plaintiff or her agent will promptly undertake investigation to confirm or contest defendant’s stated defect, and if the defect is substantiated, and not caused by defendant’s want of ordinary care, plaintiff shall take prompt action to cure the defect. If the defect is not corrected timely (which shall be determined by all the circumstances), then defendant may submit a petition to the rent board for a rent reduction. If the defect is reasonably considered life-threatening, as opposed to a diminished amenity or non-urgent matter, and has not promptly been cured by plaintiff, defendant must comply with Civil Code Section 1942 in order to employ the repair and deduct remedy. g. Other than items as minor as changing a light bulb (to use an example), defendant il Ross-v Bertrand, et al, (Limited Jurisdiction Case #CUD-11-635529) STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTshall have no obligation or right to conduct any repairs, work, maintenance etc at or on the premises. Any such efforts shall be solely the responsibility of plaintiff. h. Plaintiff reserves her right to assert that the repairs were caused by defendant’s want of ordinary care, in the event defendant brings claims against plaintiff related to the premises. Plaintiff reserves all claims other than those expressly settled in this stipulated agreement. 18. The parties also acknowledge that they have endured a long and tortuous landlord- tenant relationship, for reasons including their original agreement regarding improvements to and remodeling of parts of the Premises, compounded by certain water-related events, both of a man- made and weather made nature. Specifically, Plaintiff claims that defendant was not obligated to provide services toward the improvement of the premises or remodeling except in tegards to remodeling of the kitchen as specifically stated in the original rental agreement. Plaintiff claims that Defendant’s actual efforts in this regard were wildly excessive and beyond the scope of his limited authority, and that Defendant charged Plaintiff hundreds of thousands of dollars more than Plaintiff originally agreed to, or ever contemplated she would, spend on said improvements and remodeling including repairs ostensibly covered by insurance proceeds. For his part, Defendant claims that he invested hundreds of thousands of dollars in time, money and materials in the work done at the premises, without sufficient reimbursement, and that all the work he did was either expressly or impliedly authorized. Because the scope of this aspect of the dispute between the parties is so broad, it exceeds their ability to resolve in the context of this Stipulation, which is limited to the specific items covered within it. However, the parties anticipate that they will resume negotiation or litigation of the competing claims in another forum, either by private mediation, or a separate lawsuit. In that event, the amounts specified herein may be admissible for i he Ross v Bertrand, et al. (Limited Jurisdiction Case #CUD-11-635529) STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToC Om ND HM eB wD wm YN NNN YN WH — oe mes errors SRESEC SURG TEKH rE purposes of such litigation or mediation. And, in the event defendant successfully completes the obligations set out herein, compelling a dismissal of this case, any claim by Plaintiff for unpaid rent prior to January 1, 2010, or per diem damages deemed otherwise satisfied by defendant’s payments provided herein, shall not be waived, and may be asserted against Defendant as both an offset to his claims, and as affirmative claims for money owed. The Parties stipulate that they will submit the accounting dispute for the period 2008 to the present to a neutral accountant to be mutually agreed upon by the parties, and that they will produce all applicable accounting records (e.g., bills, checks, payments, invoices etc), and that they will endeavor to complete this accounting by the end of 2012. Any dispute related to the accounting shall be submitted to Department 501 (or other department as assigned by the court) on noticed motion for determination of any such issue. The court shall have discretion to award attorney’s fees to the prevailing party if the court finds the non-prevailing HOWEVER, IT IS EXPRESSLY UNDERSTOOD AND AGReED THAT NO ISSUE RELATED TO THE ACCOUNTING SHALL IN ANY WAY AFFECT, LESSEN, DIMINISH OR IMPACT DEFENDANT’S OBLIGATIONS UNDER THIS STIPULATION REGARDING PAYMENTS TO BE MADE TO SATISFY THE STIPULATED JUDGMENT. 19. This settlement agreement is made for the benefit of, and is binding upon, the respective parties’ successors, administrators, heirs, and assigns and may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and taken together shall constitute one and the same agreement, which shall be binding and effective as to all parties. (Limited Jurisdiction Case #CUD-11-635529) Ross v Bertrand, et al. ( STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToC em NN DH Rw DY Ee mee ee eo NU ABE GOH IS purposes of such litigation or mediation. And, in the event defendant successfully completes the obligations set out herein, compelling a dismissal of this case, any claim by Plaintiff for unpaid rent prior to January 1, 2010, or per diem damages deemed otherwise satisfied by defendant's payments provided herein, shall not be waived, and may be asserted against Defendant as both an offset to his claims, and as affirmative claims for money owed. The parties stipulate that they will submit the accounting dispute for the period 2008 to the present to a neutral accountant to be mutually agreed upon by the parties, and that they will produce all applicable accounting records (e.g., bills, checks, payments, invoices etc), and that they will endeavor to complete this accounting by the end of 2012. Any dispute related to the accounting shall be submitted to Department 501 (or other department as assigned by the court) on noticed motion for determination of any such issue. The court shall have discretion to award attorney’s fees to the prevailing party if the court finds the non-prevailing acted unreasonably in requiring the matter be submitted to court for determination. HOWEVER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT NO ISSUE RELATED TO THE ACCOUNTING SHALL IN ANY WAY AFFECT, LESSEN, DIMINISH OR IMPACT DEFENDANT’S OBLIGATIONS UNDER THIS STIPULATION REGARDING PAYMENTS TO BE MADE TO SATISFY THE STIPULATED JUDGMENT. 19, This settlement agreement is made for the benefit of, and is binding upon, the respective parties’ successors, administrators, heirs, and assigns and may be executed in counterparts, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and taken together shall constitute one and the same agreement, which shall be binding and effective as to all parties, E R 13 Re Be id, et imited Jurisdiction Case #CUD-11-635529) STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToP ND HW B® ww Ke yvoN yyw Nw N wee eryoanaunk SBR BSC RETR RES S oe SO AGREED and STIPULATED Dated: (V/_,2012 pated: Z//Ay__, 2012 Approved as to form: oN I aed: | (2-( 201 3- (Lot CLA ALIX BERTRAND Deferidant 4 Lh Lf Trustee Plaintiff BECKMAN BLAIR, L By: Béchart Beckman Al eys for Plaintiff Meerder ystfor Defendant jertrani Limited Jurisdiction Case ¥CUD-11-635529) ER pe STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENToe IN DN WH bh WwW Hw 10 EXHIBIT A ~ Conditional Rental Agreement The rental agreement shall be the standard form residential rental agreement provided by the San Francisco Apartment Association’s most current version, supplemented by the specific following terms: The prior lease would be canceled, and there would be a new one year lease beginning July 1, 2013. Rent at $4500 per month would be due starting July 1 to Dec. 31, 2012, and increase to $5,000 per month beginning Jan. 1, 2013. Ifall payments (including the monthly ‘catch-up’ payments under the Stipulation) are delivered on time for the first year ending June 30, 2013, then the lease would be extended for one extra year, to June 30, 2014, on the same terms and for the same rental amount, and if all payments are made on time during the 2nd year, then the lease would be extended for another extra year, to June 30, 2015, on the same terms and for the same rental amount, and if all payments are made on time during the 3nd year, one final year would be added to extend the rental period to a total of four years, to June 30, 2016, on the same terms and for the same rental amount, after which the rental agreement would terminate. However, it is expressly agreed that the Owner of the premises, whether that be Ethel H.Ross, or another person or persons, retains the option to terminate the fourth year of the rental agreement to permit the owner or owner's family members to occupy the premises as their principal residence, in conformance with applicable law. EA fos Ross v al. (Limited Jurisdiction Case #CUD-11-635529) Ww D STIPULATION FOR SETTLEMENT OR, ALTERNATIVELY, FOR ENTRY OF JUDGMENTBracamontes & Vlasak A Professional Law Corporation www.bvlawsf.com Som IN DH PB WHY YE Ross, et al. v. Bertrand, et al. Case No.: CUD-11-635529 PROOF OF SERVICE The undersigned certifies and declares as follows: I am over the age of 18 years and am not a party td the within action. I am employed in the County of San Francisco, California. On the date shown below, I served the following document: 1. DEFENDANT CLAUDE-ALIX BERTRAND’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT’S MOTION FOR RESCISSION OF SETTLEMENT AGREEMENT in the manner described below to the interested parties herein and addressee(s): Richard Beckman Beckman Blair, LLP 703 Market Street # 1610 San Francisco, CA 94103 _X_ MAIL: I placed a true and correct copy thereof in a sealed envelope and caused such envelope to} be deposited in a United States postal receptacle on that same day, with postage thereon fully prepaid, addressed to the addressee(s) designated or placing the envelope for collection and mailing following oui ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. __ HAND DELIVERY: I placed a true and correct copy thereof in a sealed envelope and delivered by hand to the addressee(s). _ FACSIMILE: | caused such document to be served via facsimile on the interested parties at the facsimile numbers listed above. The fax machine I used complied with California Rule of Court 2.301, and no error was reported by the machine. Pursuant to California Rule of Court 2.304 I caused the machine to print a report of the transmission. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 20, 2013 in San Francis Wount California OA Andrew Birnbaum Proof of Service