Preview
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 02/24/2022 Time: 1:30 PM
Judicial Officer: Donna D Geck
Deputy Clerk: Clara Sotelo-Martinez Dept: SB Dept 4
Deputy Sheriff: //
Court Reporter: Electronic Recording Case No: 22CV00466
Milton Polsky vs Todd McCleskey
Parties Present:
John Reaves Settlement Master (via Zoom)
Michael B. Damen Plaintiff’s Counsel (via Zoom)
Milton Polsky Plaintiff (via Zoom)
Joan Vignocchi Defendant’s Counsel (via Zoom)
Todd McCleskey Defendant (via Zoom)
NATURE OF PROCEEDINGS: Settlement Conference
The matter proceeds at 2:28 p.m., with appearances as stated above.
Both Counsel advise the Court a settlement agreement has been reached.
Counsel request the Court Trial scheduled March 2, 2022 at 9:00 a.m., be vacated.
The Court hereby vacates the following hearing:
March 2, 2022 at 9:00 AM
Court Trial – Vacated
Geck, Donna D.
SB Dept 4
At 2:29 p.m., Counsel, Michael B. Damen, proceeds to recite the settlement agreement, on the record,
as follows:
The Defendant, Todd McCleskey, has agreed to allow an inspection walk-through of the premises
Tuesday, March 22, 2022 at 11:00 a.m., being conducted by Murphy King Realty Broker. Defendant has
agreed to vacate the premises and specifically to permanently depart the premises and remove and
relocate any and all his personal property from the premises on or before 11:59 p.m., on Tuesday, March
29, 2022. Defendant has also agreed to leave the premises in a clean and undamaged condition;
ordinary wear and tear accepted; including any items noted during the March 22, 2022 inspection.
Defendant agreed to return any and all keys to the premises to Plaintiff’s Realtors: Murphy King Real
Estate. In exchange for Defendant’s timely performance of all the terms and conditions Plaintiff has
agreed to waive any claim for fair market rental value or damages and has agreed to file a Request for
Dismissal with Prejudice after Defendant has timely vacated the premises and preformed in accordance
with the agreement.
In the unlikely event that Defendant fails to vacate the premises by 11:59 p.m., on Tuesday,
March 29, 2022, or otherwise fails to abide by the agreement, he’s agreeing to a Judgment and a Writ of
Execution for Possession of the Premises on Friday, April 1, 2022 at 10:00 a.m., in SB Dept. 4, which
may be taken off calendar if Defendant complies.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
All parties concur to the settlement agreement as recited. A mutual release and waiver were agreed to.
The Court accepts the settlement agreement as read on the record. The court reserves jurisdiction and
admonishes the parties on the settlement agreement being enforceable under CCP 664.6.
The Court set the following hearing:
Future Scheduled Hearings:
Status Hearing
April 1, 2022 at 10:00 AM
Geck, Donna D.
SB Dept 4
At 2:34 p.m., court is adjourned.
Counsel, Joan Vignocchi, provides the Court with a copy of the Settlement and Mutual Release
Agreement as follows:
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
This Settlement and Mutual Release Agreement (hereinafter referred to as the
“Agreement”) is entered into as of the 24th day of February, 2022, in the City of Carpinteria,
California, by and between MILTON POLSKY, Trustee of the Polsky Family Trust dated
September 11, 1998, on behalf of all past, present or future heirs, the Estate of Abraham Polsky,
and any spouses, agents, representatives, attorneys, insurers, predecessors, successors,
beneficiaries and assigns (hereinafter referred to as “Plaintiff”) , and TODD McCLESKEY
(hereinafter referred to as “Defendant”) individually, and on behalf of his past, present or future
heirs, spouses, agents, representatives, attorneys, insurers, predecessors, successors, beneficiaries
and assigns, on the one hand, In consideration of the mutual covenants, conditions and
agreements made herein, the parties agree as follows:
Recitals
A. Plaintiff is the owner of the premises located at 3950 Via Real, #104, Carpinteria,
California 93103 (the “Premises”) where Plaintiff’s brother, ABRAHAM POLSKY, lived until
his death on or about November 30, 2021.
B. Defendant was hired as a caregiver by ABRAHAM POLSKY and, during the last
two years of said employment, was allowed to live in a room in the Premises in partial
consideration for his caregiving services. Defendant has remained at the Premises despite
requests that he vacate the Premises. On or about February 3, 2022, Plaintiff filed an Unlawful
Detainer action against Defendant designated as Santa Barbara Superior Court Case Number
22CV00466 (the “Complaint”).
C. The Parties desire to bring these matters to a conclusion and wish to avoid
incurring further costs and expenses incident to the foregoing dispute and, specifically, desire to
resolve any and all actual or potential claims by them against each other, both known and
unknown, which may have arisen before the execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, the Parties hereby agree as follows:
1. Incorporation By Reference.
The Recitals are incorporated herein by this reference as though fully set forth as part of
the terms of this Agreement.
2. Settlement Terms.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
2.1 In consideration for (a) Defendant’s timely execution of this Agreement;
(b) Defendant’s cooperation with Plaintiff’s appointed agent during an inspection and walk
through of the Premises on Tuesday, March 22, 2022, at 11:00 a.m.; (c) Defendant’s agreement
to vacate the Premises and, specifically, Defendant’s permanent departure and complete removal
and relocation of any and all of Defendant’s personal property from the Premises on or before
11:59 PM on Tuesday, March 29, 2022; (d) Defendant’s agreement to leave said Premises in a
clean and undamaged condition (ordinary wear and tear excepted) including any items noted
during the March 22nd inspection; (e) Defendant’s return of any and all keys to the Premises to
Plaintiff’s realtor (MurphyKing Real Estate at 5441 Carpinteria Avenue, Carpinteria, CA), and
(e) Defendant’s full and timely performance of all of the terms and conditions under this
Agreement, Plaintiff shall waive Plaintiff’s right to receive the fair market rental value of the
Premises and/or other damages from Defendant arising out of Defendant’s occupation of the
Premises and shall file a Request For Dismissal with Prejudice after Defendant has timely
vacated the Premises in accordance herewith.
2.2. In the event that Defendant fails to vacate the Premises by 11:59 PM on
Tuesday, March 29, 2020, and/or otherwise fails to abide by this Agreement, Defendant agrees
that Plaintiff may seek and obtain a Judgment and Writ of Execution for Possession of the
Premises on Friday, April 1, 2022, in Dept 4 (to be scheduled by the Court when this settlement
is reported following the conclusion of the MSC, and which may be taken off calendar by
Plaintiff in the event Defendant timely performs in accordance with this Agreement), or anytime
thereafter on an ex parte basis without further notice, which shall be issued immediately upon the
filing of a Declaration of Default by Plaintiff.
2.3 Plaintiff may additionally, and without limitation, obtain an Amended
Judgment and Writ of Execution in the event of any breach by Defendant based on the fair
market rental value of the premises for each day that Defendant remains at the Premises from
December 1, 2021, until Defendant vacates the Premises, at the agreed upon rate of $36.67 per
day, plus any and all of Plaintiff’s attorneys’ fees, expenses and costs arising in connection with
the enforcement of this Agreement and any subsequent Judgment and Writ of Possession,
including interest at the legal rate. Plaintiff may also attach, garnish, execute, and use any and all
process in aid of execution, and do all acts and exercise all legal rights and remedies to collect
the full amount then owing on any Judgment filed in accordance herewith. This Section shall not
apply in the event that Defendant timely vacates the Premises in accordance herewith.
3. Mutual Release and Waiver.
3.1 Plaintiff and Defendant, individually, and on behalf of their past, present
or future heirs, spouses, agents, representatives, attorneys, insurers, predecessors, successors,
beneficiaries and assigns, release and absolutely and forever discharge each other from any and
all past, present, or future claims, demands, obligations or causes of action, compensatory or
punitive damages, costs, losses, expenses, and compensation, whether based on tort, contract, or
other theories of recovery, which said Parties may have against each other, or which may later
accrue to or be acquired by them, which occurred, existed or accrued prior to the date of this
Agreement, except as set forth herein.
3.2 The Parties each understand and agree that any and all rights granted
under section 1542 of the California Civil Code or any analogous state law or federal law or
regulation are hereby expressly waived. The Parties each understand and agree that, except as set
forth herein, this mutual release applies to any and all claims of every nature and kind, known or
unknown, suspected or unsuspected, vested or contingent, past, present, or future, arising from or
attributable to the prior relationship between Plaintiff and Defendant prior to the date of this
Agreement for damages or losses or injuries allegedly suffered by each other, whether those
SC-2411 (Revised July 1, 2013) MINUTE ORDER
damages or losses or injuries are known or unknown, foreseen or unforeseen, or patent or latent,
which the Parties may have against each other, whether set forth in a pleading, charge, or
complaint referred to herein or not, and that the Parties hereby specifically waive application of
California Civil Code Section 1542.
3.3 Accordingly, the Parties certify by executing this Agreement that they
have read, understood and waived the following provisions of California Civil Code Section
1542:
" 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. "
3.4 The Parties each understand and agree that the significance and
consequences of this waiver of California Civil Code Section 1542 is that even if they should
eventually suffer additional damages arising out of any alleged prior action by each other, they
will not be able to make any claim for those damages that may exist as of the date of this release
but which they do not know exists and which, if known, would materially affect that party’s
decision to execute this release, regardless of whether such lack of knowledge is the result of
ignorance, oversight, error, negligence or any other cause.
4. Review of Agreement By Counsel; Familiarity With Contents and Effect.
The parties expressly declare that each of them has been supplied with and has read a
copy of the foregoing Agreement. The Parties represent that they have had the opportunity to
consult with their attorney regarding the meaning of the terms and conditions contained herein
and fully understand the content and effect of this document. The Parties approve and accept the
terms and provisions of this Agreement and agree to be bound by it. Each Party warrants and
represents that, in executing the Agreement, they have been advised to obtain tax advice from an
accountant of their choice; that they have relied upon said accountant for all tax advice
concerning this Agreement; that the tax consequences (including risks, complications, and costs)
have been completely explained to them by their accountant and/or that they fully understand the
tax consequences of this Agreement. The Parties further acknowledge and represent that they
have not relied on any tax advice or representations regarding tax issues made by the law firm of
Bright & Powell, or each other, and are entering this Agreement based on the tax considerations
as explained by their own accountant and/or based upon their own knowledge of same. Having
considered the foregoing, the Parties approve and accept the terms and provisions of this
Agreement and agree to be bound by it.
5. Entire Agreement.
This Agreement, including the attachments hereto, constitutes the final, complete, and
exclusive statement of the terms of the agreement between the Parties. This Agreement is
intended to supersede any previous oral and/or written agreements or understandings between the
Parties, and their respective representatives. The Parties further expressly agree that the
obligations contained in this Agreement are the sole and only consideration for it, and that no
representations, warranties or inducements have been made by any party or their representatives,
except as specifically set forth in this Agreement.
6. Waiver and Modification.
No breach of this Agreement or of any provision herein can be waived except by an
express written waiver executed by the Party waiving such breach. Waiver of any one breach
shall not be deemed a waiver of any other breach of the same or other provisions of this
Settlement Agreement. This Agreement may only be amended or modified by a writing signed
by all the parties intended to be bound thereby.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
7. Attorneys’ Fees.
The Parties agree to bear their own attorneys’ fees and costs in connection with the
claims released by this Agreement and stipulate and agree that in the event of any action or
proceeding henceforth brought to enforce this Agreement or any of the its terms, the prevailing
party in that action or proceeding shall be entitled to reasonable attorneys’ fees and costs
incurred in connection with the enforcement of this Agreement in that action or proceeding, in
addition to any and all other relief to which the prevailing party may be entitled.
8. Agreement Jointly Drafted.
This Agreement and each of its provisions has been jointly drafted by the Parties. The
Parties hereby confirm that they have insisted on certain changes to the original Agreement and
that those changes have been made. Neither party shall be deemed to have been the drafting
party of this Agreement.
9. Agreement Freely Entered Into.
The Parties represent and agree that this Agreement, and the releases contained in this
Agreement, have been given voluntarily and free from duress or undue influence on the part of
any person released by this Agreement, or by any third party.
10. Approvals and Consents.
Each of the Parties represents and warrants they have full right, power and authority to
enter into this Release on behalf of the Parties hereto, and represent and warrant that they have
not voluntarily or by operation of law, heretofore taken any action to assign, transfer, subrogate,
sell or convey, or to purport to assign, transfer, subrogate, sell or convey any claims or other
matters herein released, to any other person or entity not a party to this Agreement.
11. Judicial Enforcement of Settlement; Successors.
This Agreement shall be final and binding upon the parties, and enforceable by the Court
(which shall have continuing jurisdiction) pursuant to California Code of Civil Procedure Section
664.6 and shall inure to the benefit of and shall be binding upon the heirs, spouses, predecessors,
successors, assigns, representatives, and beneficiaries of the parties, and each of them. In any
action or proceeding to enforce this settlement agreement, the parties expressly agree that this
settlement is: (1) admissible as evidence in a court of law or other legal proceedings and subject
to disclosure as evidence in such proceeding, (2) enforceable and binding in a court of law or
other legal proceedings, and (3) may be disclosed in a court of law or other legal proceedings.
12. Counterparts.
This Agreement may be executed in counterparts and may be submitted by facsimile
transmission with the full force and binding effect as an original.
CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING.
The undersigned have each read and reviewed the foregoing Settlement Agreement and
Mutual Release with their respective attorneys and hereby confirm that they understand the
contents of this Agreement and all of its terms and conditions, and agree to abide by it.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Clara Sotelo-Martinez , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 02/24/2022 Time: 1:30 PM Judicial Officer: Donna D Geck Deputy Clerk: Clara Sotelo-Martinez Dept: SB Dept 4 Deputy Sheriff: // Court Reporter: Electronic Recording Case No: 22CV00466 Milton Polsky vs Todd McCleskey Parties Present: John Reaves Settlement Master (via Zoom) Michael B. Damen Plaintiff’s Counsel (via Zoom) Milton Polsky Plaintiff (via Zoom) Joan Vignocchi Defendant’s Counsel (via Zoom) Todd McCleskey Defendant (via Zoom) NATURE OF PROCEEDINGS: Settlement Conference The matter proceeds at 2:28 p.m., with appearances as stated above. Both Counsel advise the Court a settlement agreement has been reached. Counsel request the Court Trial scheduled March 2, 2022 at 9:00 a.m., be vacated. The Court hereby vacates the following hearing: March 2, 2022 at 9:00 AM Court Trial – Vacated Geck, Donna D. SB Dept 4 At 2:29 p.m., Counsel, Michael B. Damen, proceeds to recite the settlement agreement, on the record, as follows: The Defendant, Todd McCleskey, has agreed to allow an inspection walk-through of the premises Tuesday, March 22, 2022 at 11:00 a.m., being conducted by Murphy King Realty Broker. Defendant has agreed to vacate the premises and specifically to permanently depart the premises and remove and relocate any and all his personal property from the premises on or before 11:59 p.m., on Tuesday, March 29, 2022. Defendant has also agreed to leave the premises in a clean and undamaged condition; ordinary wear and tear accepted; including any items noted during the March 22, 2022 inspection. Defendant agreed to return any and all keys to the premises to Plaintiff’s Realtors: Murphy King Real Estate. In exchange for Defendant’s timely performance of all the terms and conditions Plaintiff has agreed to waive any claim for fair market rental value or damages and has agreed to file a Request for Dismissal with Prejudice after Defendant has timely vacated the premises and preformed in accordance with the agreement. In the unlikely event that Defendant fails to vacate the premises by 11:59 p.m., on Tuesday, March 29, 2022, or otherwise fails to abide by the agreement, he’s agreeing to a Judgment and a Writ of Execution for Possession of the Premises on Friday, April 1, 2022 at 10:00 a.m., in SB Dept. 4, which may be taken off calendar if Defendant complies. SC-2411 (Revised July 1, 2013) MINUTE ORDER All parties concur to the settlement agreement as recited. A mutual release and waiver were agreed to. The Court accepts the settlement agreement as read on the record. The court reserves jurisdiction and admonishes the parties on the settlement agreement being enforceable under CCP 664.6. The Court set the following hearing: Future Scheduled Hearings: Status Hearing April 1, 2022 at 10:00 AM Geck, Donna D. SB Dept 4 At 2:34 p.m., court is adjourned. Counsel, Joan Vignocchi, provides the Court with a copy of the Settlement and Mutual Release Agreement as follows: SETTLEMENT AND MUTUAL RELEASE AGREEMENT This Settlement and Mutual Release Agreement (hereinafter referred to as the “Agreement”) is entered into as of the 24th day of February, 2022, in the City of Carpinteria, California, by and between MILTON POLSKY, Trustee of the Polsky Family Trust dated September 11, 1998, on behalf of all past, present or future heirs, the Estate of Abraham Polsky, and any spouses, agents, representatives, attorneys, insurers, predecessors, successors, beneficiaries and assigns (hereinafter referred to as “Plaintiff”) , and TODD McCLESKEY (hereinafter referred to as “Defendant”) individually, and on behalf of his past, present or future heirs, spouses, agents, representatives, attorneys, insurers, predecessors, successors, beneficiaries and assigns, on the one hand, In consideration of the mutual covenants, conditions and agreements made herein, the parties agree as follows: Recitals A. Plaintiff is the owner of the premises located at 3950 Via Real, #104, Carpinteria, California 93103 (the “Premises”) where Plaintiff’s brother, ABRAHAM POLSKY, lived until his death on or about November 30, 2021. B. Defendant was hired as a caregiver by ABRAHAM POLSKY and, during the last two years of said employment, was allowed to live in a room in the Premises in partial consideration for his caregiving services. Defendant has remained at the Premises despite requests that he vacate the Premises. On or about February 3, 2022, Plaintiff filed an Unlawful Detainer action against Defendant designated as Santa Barbara Superior Court Case Number 22CV00466 (the “Complaint”). C. The Parties desire to bring these matters to a conclusion and wish to avoid incurring further costs and expenses incident to the foregoing dispute and, specifically, desire to resolve any and all actual or potential claims by them against each other, both known and unknown, which may have arisen before the execution of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the Parties hereby agree as follows: 1. Incorporation By Reference. The Recitals are incorporated herein by this reference as though fully set forth as part of the terms of this Agreement. 2. Settlement Terms. SC-2411 (Revised July 1, 2013) MINUTE ORDER 2.1 In consideration for (a) Defendant’s timely execution of this Agreement; (b) Defendant’s cooperation with Plaintiff’s appointed agent during an inspection and walk through of the Premises on Tuesday, March 22, 2022, at 11:00 a.m.; (c) Defendant’s agreement to vacate the Premises and, specifically, Defendant’s permanent departure and complete removal and relocation of any and all of Defendant’s personal property from the Premises on or before 11:59 PM on Tuesday, March 29, 2022; (d) Defendant’s agreement to leave said Premises in a clean and undamaged condition (ordinary wear and tear excepted) including any items noted during the March 22nd inspection; (e) Defendant’s return of any and all keys to the Premises to Plaintiff’s realtor (MurphyKing Real Estate at 5441 Carpinteria Avenue, Carpinteria, CA), and (e) Defendant’s full and timely performance of all of the terms and conditions under this Agreement, Plaintiff shall waive Plaintiff’s right to receive the fair market rental value of the Premises and/or other damages from Defendant arising out of Defendant’s occupation of the Premises and shall file a Request For Dismissal with Prejudice after Defendant has timely vacated the Premises in accordance herewith. 2.2. In the event that Defendant fails to vacate the Premises by 11:59 PM on Tuesday, March 29, 2020, and/or otherwise fails to abide by this Agreement, Defendant agrees that Plaintiff may seek and obtain a Judgment and Writ of Execution for Possession of the Premises on Friday, April 1, 2022, in Dept 4 (to be scheduled by the Court when this settlement is reported following the conclusion of the MSC, and which may be taken off calendar by Plaintiff in the event Defendant timely performs in accordance with this Agreement), or anytime thereafter on an ex parte basis without further notice, which shall be issued immediately upon the filing of a Declaration of Default by Plaintiff. 2.3 Plaintiff may additionally, and without limitation, obtain an Amended Judgment and Writ of Execution in the event of any breach by Defendant based on the fair market rental value of the premises for each day that Defendant remains at the Premises from December 1, 2021, until Defendant vacates the Premises, at the agreed upon rate of $36.67 per day, plus any and all of Plaintiff’s attorneys’ fees, expenses and costs arising in connection with the enforcement of this Agreement and any subsequent Judgment and Writ of Possession, including interest at the legal rate. Plaintiff may also attach, garnish, execute, and use any and all process in aid of execution, and do all acts and exercise all legal rights and remedies to collect the full amount then owing on any Judgment filed in accordance herewith. This Section shall not apply in the event that Defendant timely vacates the Premises in accordance herewith. 3. Mutual Release and Waiver. 3.1 Plaintiff and Defendant, individually, and on behalf of their past, present or future heirs, spouses, agents, representatives, attorneys, insurers, predecessors, successors, beneficiaries and assigns, release and absolutely and forever discharge each other from any and all past, present, or future claims, demands, obligations or causes of action, compensatory or punitive damages, costs, losses, expenses, and compensation, whether based on tort, contract, or other theories of recovery, which said Parties may have against each other, or which may later accrue to or be acquired by them, which occurred, existed or accrued prior to the date of this Agreement, except as set forth herein. 3.2 The Parties each understand and agree that any and all rights granted under section 1542 of the California Civil Code or any analogous state law or federal law or regulation are hereby expressly waived. The Parties each understand and agree that, except as set forth herein, this mutual release applies to any and all claims of every nature and kind, known or unknown, suspected or unsuspected, vested or contingent, past, present, or future, arising from or attributable to the prior relationship between Plaintiff and Defendant prior to the date of this Agreement for damages or losses or injuries allegedly suffered by each other, whether those SC-2411 (Revised July 1, 2013) MINUTE ORDER damages or losses or injuries are known or unknown, foreseen or unforeseen, or patent or latent, which the Parties may have against each other, whether set forth in a pleading, charge, or complaint referred to herein or not, and that the Parties hereby specifically waive application of California Civil Code Section 1542. 3.3 Accordingly, the Parties certify by executing this Agreement that they have read, understood and waived the following provisions of California Civil Code Section 1542: " 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. " 3.4 The Parties each understand and agree that the significance and consequences of this waiver of California Civil Code Section 1542 is that even if they should eventually suffer additional damages arising out of any alleged prior action by each other, they will not be able to make any claim for those damages that may exist as of the date of this release but which they do not know exists and which, if known, would materially affect that party’s decision to execute this release, regardless of whether such lack of knowledge is the result of ignorance, oversight, error, negligence or any other cause. 4. Review of Agreement By Counsel; Familiarity With Contents and Effect. The parties expressly declare that each of them has been supplied with and has read a copy of the foregoing Agreement. The Parties represent that they have had the opportunity to consult with their attorney regarding the meaning of the terms and conditions contained herein and fully understand the content and effect of this document. The Parties approve and accept the terms and provisions of this Agreement and agree to be bound by it. Each Party warrants and represents that, in executing the Agreement, they have been advised to obtain tax advice from an accountant of their choice; that they have relied upon said accountant for all tax advice concerning this Agreement; that the tax consequences (including risks, complications, and costs) have been completely explained to them by their accountant and/or that they fully understand the tax consequences of this Agreement. The Parties further acknowledge and represent that they have not relied on any tax advice or representations regarding tax issues made by the law firm of Bright & Powell, or each other, and are entering this Agreement based on the tax considerations as explained by their own accountant and/or based upon their own knowledge of same. Having considered the foregoing, the Parties approve and accept the terms and provisions of this Agreement and agree to be bound by it. 5. Entire Agreement. This Agreement, including the attachments hereto, constitutes the final, complete, and exclusive statement of the terms of the agreement between the Parties. This Agreement is intended to supersede any previous oral and/or written agreements or understandings between the Parties, and their respective representatives. The Parties further expressly agree that the obligations contained in this Agreement are the sole and only consideration for it, and that no representations, warranties or inducements have been made by any party or their representatives, except as specifically set forth in this Agreement. 6. Waiver and Modification. No breach of this Agreement or of any provision herein can be waived except by an express written waiver executed by the Party waiving such breach. Waiver of any one breach shall not be deemed a waiver of any other breach of the same or other provisions of this Settlement Agreement. This Agreement may only be amended or modified by a writing signed by all the parties intended to be bound thereby. SC-2411 (Revised July 1, 2013) MINUTE ORDER 7. Attorneys’ Fees. The Parties agree to bear their own attorneys’ fees and costs in connection with the claims released by this Agreement and stipulate and agree that in the event of any action or proceeding henceforth brought to enforce this Agreement or any of the its terms, the prevailing party in that action or proceeding shall be entitled to reasonable attorneys’ fees and costs incurred in connection with the enforcement of this Agreement in that action or proceeding, in addition to any and all other relief to which the prevailing party may be entitled. 8. Agreement Jointly Drafted. This Agreement and each of its provisions has been jointly drafted by the Parties. The Parties hereby confirm that they have insisted on certain changes to the original Agreement and that those changes have been made. Neither party shall be deemed to have been the drafting party of this Agreement. 9. Agreement Freely Entered Into. The Parties represent and agree that this Agreement, and the releases contained in this Agreement, have been given voluntarily and free from duress or undue influence on the part of any person released by this Agreement, or by any third party. 10. Approvals and Consents. Each of the Parties represents and warrants they have full right, power and authority to enter into this Release on behalf of the Parties hereto, and represent and warrant that they have not voluntarily or by operation of law, heretofore taken any action to assign, transfer, subrogate, sell or convey, or to purport to assign, transfer, subrogate, sell or convey any claims or other matters herein released, to any other person or entity not a party to this Agreement. 11. Judicial Enforcement of Settlement; Successors. This Agreement shall be final and binding upon the parties, and enforceable by the Court (which shall have continuing jurisdiction) pursuant to California Code of Civil Procedure Section 664.6 and shall inure to the benefit of and shall be binding upon the heirs, spouses, predecessors, successors, assigns, representatives, and beneficiaries of the parties, and each of them. In any action or proceeding to enforce this settlement agreement, the parties expressly agree that this settlement is: (1) admissible as evidence in a court of law or other legal proceedings and subject to disclosure as evidence in such proceeding, (2) enforceable and binding in a court of law or other legal proceedings, and (3) may be disclosed in a court of law or other legal proceedings. 12. Counterparts. This Agreement may be executed in counterparts and may be submitted by facsimile transmission with the full force and binding effect as an original. CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING. The undersigned have each read and reviewed the foregoing Settlement Agreement and Mutual Release with their respective attorneys and hereby confirm that they understand the contents of this Agreement and all of its terms and conditions, and agree to abide by it. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Clara Sotelo-Martinez , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER