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HomeMy WebLinkAboutMCALLISTER - 2005-09-19JJ VAL CITY OF HUNTINGTON BEAC Inter -Department Communication TO: JOAN FLYNN, City Clerk FROM: SCOTT FIELD, Assistant City Attorney DATE: November 30, 2005 SUBJECT: Settlement Agreement between the City and Plaintiff David McAllister Regarding David McAllister v City of Hunlington.Beack At the closed session of September 19, 2005, the City Council authorized the City Administrator to execute a settlement agreement regarding a case entitled McAllister v. City of Huntington Beach. On the same date, the Clerk announced this settlement agreement. Enclosed please find the fully executed settlement agreement. The riginal settlement agreement should be maintained in the permanent records of the Cil y Clerk's office. This is particularly necessary because the agreement governs the City's flit ire conduct regarding recovering costs incurred in responding to accidents resulting from a influence of alcohol or drugs. SCOTT FIELD Assistant City Attorney Attachments G:\FLEAD\Dubray-McAllister\Correspondence\Memo to Clerk.doc (4) September 19, 2005 - Council/Agency Agenda - Page 4 City Attorney reported that Council authorized the City Administrator to enter into a settlement agreement and a courtjudgment in the McAllister v. City of Huntington Beach, et al., class action suit that provides as follows: 1. The City shall refund DUI fees collected during the period between September 2002 and February 2003 where the driver was arrested, but not involved in a traffic accident. This amounts to a refund of approximately $11,300, plus 7% interest, amounting to a total refund of $14,500. 2. The City shall pay $500 directly to the lead plaintiff, plus attorney's fees and costs to his counsel in the amount of $9,600. 3. One-third of the DUI refunds shall be paid over to the Plaintiffs attorneys, plus any refunds not claimed, up to a maximum of $7,000. 4. The City shall enter into a stipulated judgment providing that in the future, it will only collect DUI fees where: (i) there was an auto accident resulting from a driver under the influence of alcohol or drugs, (H) an emergency response vehicle was dispatched Code 3 to the scene of a DUI arrest, or (iii) a pursuit was engaged in of a driver under the influence of alcohol or drugs. Mayor Pro Tem Sullivan clarified that this individual has no relation to the former Mayor. Roll Call Hansen, Coerper, Sullivan, Hardy, Green, Bohr, Cook Present Pledge of Allegiance/Flag Salute — To be led by the Mayor In permitting a nonsectarian invocation, the City does not intend to proselytize or advance any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation. Invocation — To be determined by the Mayor Maria Khani, representing Huntington Beach Interfaith Council Hello and welcome to the Huntington Beach City Council meeting. If you would like to address the Council, please fill out the pink public comment sheet attached to the agenda. After completing the form, hand it to the Sergeant at Arms and he will give it to the City Clerk. As a courtesy to those in attendance, 1 would ask that cellphones and pagers be turned off or set in their silent mode. Thank you. Pursuant to the Brown (Open Meetings) Act the City Clerk Announces Late Communications Received by Her Office Which Pertain to Items on the Agenda (1) The Brown (Open Meetings) Act requires that copies of late communications submitted by City Councilmembers or City Departments are to be made available to the public at the City Council meeting. (2) Late communications submitted by members of the public are to be made available to the public at the City Clerk's Office the morning after the Council meeting. (Late Communications are communications regarding agenda items that have been received by the City Clerk's office following distribution of the agenda packet.) SS (3 items), C-1a, D-5, H-2a SETTLEMENT AGREEMENT Subject to approval of the Court, this Settlement Agreement, is made and entered into by and among (i) Plaintiff David McAllister, individually and on behalf of the Members of the Settlement Class (hereinafter collectively "Plaintiffs") and (ii) City of Huntington Beach (hereinafter "Defendant"). This Settlement Agreement is intended by the Parties, fully, finally and forever, to resolve the Litigation upon the terms and conditions hereof. 1. THE LITIGATION The Settlement Agreement relates to McAllister v. City of Huntington Beach, Case No. 05CCO4676 in the Orange County Superior Court (hereinafter the "Litigation"). The Litigation is a class action in which Plaintiffs seek to stop Defendant's practices of billing "emergency response" costs to persons arrested for driving under the influence of alcohol or drugs ("DUI") in situations in which there has been no "incident resulting in an appropriate emergency response" as that phrase is used in California Government Code section 53150. 2. TERMS OF SETTLEMENT AGREEMENT IT IS HEREBY STIPULATED AND AGREED by and among Plaintiffs and Defendant as follows: 2.1 Definitions. As used in this Settlement Agreement, and any related documents attached hereto as exhibits, which are incorporated by reference herein, the following terms shall have the meanings specified below_ 2.1.1 "Check" means a payment draft, payable on demand, to be transmitted to a Class Member, following Defendant's confirmation, through review of defendant's records, that Class Member is due a refund as provided herein. 2.1.2 "Claim/Change Address Form" means the document to be included with a Class Notice, to be sent by Defendant to Members of the Settlement Class who may be entitled to proceeds of the settlement, as described in this Settlement Agreement. The Claim/Change Address Form is to be used by any Claimant who believes that the amount to which he or she is entitled under the terms of the Settlement Agreement is more than the amount stated in the Class Notice, or to notify the Settlement Administrator of a change of address. The Claim/Change Address Form will appear substantially in the form attached hereto as Exhibit "A" and will be subject to rejection if it is late, or is not properly filled out, or if the information provided is insufficient to demonstrate that Claimant has paid more toward the DUI Cost Bill or received less of a refund thereon than shown by Defendant's records. 2.1.3 "Claimant" is a Class Member who has filed a Claim/Change Address Form other than for the purpose of notifying the Settlement Administrator of a change of address. I As used herein, unless the context otherwise requires, capitalized terms have the meanings ascribed to them in Section 2.1 hereof. City of Huntington Beach Settlement Agreement 2.1.4 "Class Member" means those persons identified in Exhibit F (which list the Defendant warrants includes all persons sent a DUI Cost bills after March 3, 2001), attached hereto, who (1) were charged with a DUI offense, (2) were sent a DUI Cost bill by Defendant between March 3, 2001 and April 15, 2003 (on which date Defendant stopped sending DUI Cost bills to persons who did not cause an Emergency Incident) and (3) did not cause an Emergency Incident related to the DUI offense. 2.1.5 "Class Notice" means the "Notice of Proposed Class Action Settlement and Settlement Hearing," substantially in the form attached hereto as Exhibit "B," to be sent to the Settlement Class. 2.1.6 "Complaint" means the operative complaint in the Litigation at the time this Settlement Agreement is executed in the Litigation. 2.1.7 "Costs of Notice and Administration" means the costs and expenses reasonably and actually incurred in connection with providing Class Notice, administering and distributing any payments to Members of the Settlement Class, processing Claim/Change Address Forms, and paying fees and costs, if any. 2.1.8 "Court" means the Superior Court for the State of California, County of Orange and any Superior Court Judge to which the Litigation may be assigned. 2.1.9 "DUI Costs" are costs as allowed by Government Code section 53150. 2.1.10 "Emergency Incident" for the purposes of defining the Settlement Class occurs when (1) a person is under the influence of an alcoholic beverage or any drug, or the combined influence of an alcoholic beverage and any drug and (2) that person's negligent operation of a motor vehicle caused by that influence proximately causes either (a) an accident or (b) a dispatched "Code 3" emergency response by police or other emergency personnel to the scene of the DUI arrest (neither the flipping on of lights and siren nor the calling in a tow truck would qualify) or (c) a "pursuit" which requires the submission of CHP Form 187 pursuant to Vehicle Code section 14602.1. 2.1.11 "Effective Date" means the date on which the Court signs the Judgment by Stipulation as provided for herein. 2.1.12 "Fee Application" means the request for court approval of the Fee and Expense Payment agreed to by the Parties in this Settlement Agreement, to be submitted to the court by Plaintiff pursuant to the terms of the Preliminary Approval Order. 2.1.13 "Fee and Expense Payment" means the payment for attorneys' fees, class representatives' fees, expenses and costs, as provided for in accordance with this Settlement Agreement. 2.1.14 "Judgment" means the judgment to be rendered by the Court in the Litigation, substantially in the form attached hereto as Exhibit" D." City of Huntington Beach Settlement Agreement 2 2.1.15 "Last Known Address" is the latest address of a Class Member shown on the defendant's records, updated through use of an address updating service selected through agreement of the parties or, if the parties fail to agree, selected by defendant subject to review by the Court at the request of Plaintiff's Counsel. 2.1.16 "Litigation" or "Class Action" means the Litigation as described above. 2.1.17 "Parties" means, collectively, each Defendant and each Plaintiff (on behalf of himself or herself and the Members of the Settlement Class). 2.1.18 "Plaintiffs" means Plaintiff and each of the Members of the Settlement Class. 2.1.19 "Plaintiff's Counsel" means the Law Offices of S. Chandler Visher, 44 Montgomery Street, Suite 3830, San Francisco, California 94104, the Law Offices of Matthew J. Witteman, 582 Market Street, Suite 1007, San Francisco, CA 94104 and Bradley Arnold, Esq., 668 North Coast Hightway Suite 156, Laguna Beach, CA 92651. All payments ordered to be made to Plaintiff's Counsel shall be paid to S. Chandler Visher, Trustee and delivered by overnight delivery to his address. 2.1.20 "Preliminary Approval" means the entry of the Preliminary Approval Order more particularly described elsewhere in this Settlement Agreement. 2.1.21 - "Preliminary Approval Order" means the order to be jointly applied for by The Parties upon execution of this Settlement Agreement, substantially in the form of Exhibit "C" attached hereto. 2.1.22 "Released Claims" means all claims, demands, rights, liabilities and causes of action and any unknown claims as defined in Cal. Civ. Code § 1542 that have been or could have been asserted against Defendant in any forum by Plaintiffs or any of them, or the heirs, successors, and assigns of any of them, arising out of the facts, claims, rights or causes of action that are asserted in the Complaint. 2.1.23 "Settlement Administrator" means the person or agency retained by Defendant to receive and process Claim/Change Address Forms, coordinate the issuance of Checks, and perform whatever other services Defendant deems necessary to properly effectuate the terms of this Settlement Agreement. Defendant may designate itself or one of its officers or departments as the Settlement Administrator. 2.1.24 "Settlement Class" means the class of persons certified by the Court for settlement purposes only and consisting of all Class Members who have not timely requested exclusion from the Settlement Class. 2.1.25 "Settlement Class Member", "Member", or "Member of the Settlement Class" means a person who falls within the definition of the Settlement Class as set forth in this Settlement Agreement and who has not timely requested exclusion from the Settlement Class. City of Huntington Beach Settlement Agreement 2.2 Preliminary Approval Order And Settlement Hearing 2.2.1 Upon execution of this Settlement Agreement, the Parties shall jointly apply to the Court for entry of an order (the "Preliminary Approval Order"), substantially in the form of Exhibit "C" attached hereto. 2.3 Defendant Shall Stop Billing for DUI Costs Except For Emergency Incidents 2.3.1 As of the date this Settlement Agreement was executed, and pending entry of the Preliminary Approval Order, Defendant shall stop all efforts to collect DUI Costs from any Class Member. 2.4 Class Notice: Address Confirmation and Estimated Check Amount 2.4.1 Defendant shall give notice to the Settlement Class by mailing of the Class Notice at the Class Member's Last Known Address, updated as provided for herein. A separate Class Notice shall be sent for each DUI arrest of a Class Member. 2.4.2 The Class Notice shall identify the date of the arrest for which the Class Notice is sent, shall include a statement of the amount of the DUI Cost bill Defendant has sent the Class Member, the amount the Class Member has paid toward such billing and the estimated amount of the Check to such Class Member for that arrest. The Check amount estimate shall be determined by the net DUI Cost paid by the Class Member each day from the receipt of the first payment, interest at 7% per annum simple interest on the net amount paid and a Check date determined by Defendant's best estimate of the date the Check will be issued, less a deduction for attorney fees of 33% of that total. 2.4.3 Defendant shall provide to Plaintiff's counsel a',list identifying the names and addresses of all persons mailed a class notice based upon the list identified in Section 2.1.4 2.4.4 The Class Notice shall include a postage prepaid Address Confirmation Card in form of Exhibit ` E" attached hereto. Return of the Card or the Claim/Change Address Form is a prerequisite for qualification for benefits by Class Members. 2.5 Administration of Settlement Checks for Class Members 2.5.1 Defendant shall be solely responsible for administering, either directly or through the Settlement Administrator, the issuance of the Checks to each Member of the Settlement Class, following Defendant's review of each Class Member's records and confirmation that the Class Member is eligible to receive benefits under the Settlement Agreement. Upon confirmation, Defendant will issue a Check in the amount determined to be due. The amount of the Check shall be as in the Class Notice, with adjustments for changes in the date the check is actually sent and the amount of attorney fees approved by the Court. City of Huntington Beach Settlement Agreement 4 2.5.2 All Checks by Defendant to qualified Settlement Class Members as provided for in this section shall be made within 30 days after the; Effective Date. Any Check returned as undelivered with a new address on the envelope shall be immediately remailed to the new address. Each check shall bear a statement that it is void 180 days after the date of the check. 2.6 Administration of Settlement for Claimants 2.6.1 Defendant shall review the material supplied by each Claimant and determine whether the additional amounts claimed paid were in fact received by defendant or its agents. If a claim is rejected, Defendant will provide information to the Claimant and Plaintiffs Counsel regarding the facts on which such rejection is based and shall advise Claimant that Claimant should contact Plaintiffs Counsel in the event Claimant feels the Claim should be paid. 2.6.2 The deadline for a Claimant to submit the Claim/Change Address Form shall be as set forth in the Preliminary Approval Order. Any Claim/Change Address Form submitted by a Claimant postmarked after that date shall not be accepted and shall be deemed invalid and ineligible for the benefits except as provided in the Class Notice. Claim/Change Address Forms indicating a change of address shall be processed by the Settlement Administrator and used for the mailing of Checks if they are received in time for such use to be practical even though they are received after the deadline. 2.6.3 Checks for at least the amount specified in the Class Notice, unless the mailing date is sooner than estimated in the Class Notice, shall be mailed to Claimants at the same time as Checks to other Class Members. 2.6.4 All checks by Defendant to eligible Claimants based on net payments in addition to those specified in the Class Notice shall be made within 60 days after the Effective Date. Any check returned as undelivered with a new address on the envelope shall be immediately remailed to the new address. 2.7 Credit Reporting Correction 2.7.1 Defendant shall within 60 days after the Effective Date take all steps necessary to ensure that the trade lines with each of the three major credit reporting agencies relating to the failure of Plaintiffs to pay DUI Cost Bills are removed. In the alternative, Defendant shall within 10 days after the Effective Date provide to Plaintiff s counsel a declaration under penalty of perjury from a person with actual knowledge of the facts to the effect that no report to any credit reporting agency was made on account of the failure of any Class Member to pay DUI costs. 2.8 Releases 2.8.1 Upon the Effective Date, except as otherwise provided in this Settlement Agreement, Plaintiff and each of the Members of the Settlement Class, shall be deemed to have, and by operation of the Judgment shall have, fully, finally and forever released, relinquished and discharged all Released Claims against Defendant. City of Huntington Beach Settlement Agreement 2.8.2 It is understood and agreed by the Plaintiff and each of the Members of the Settlement Class that the facts may hereafter turn out to be other than or different from the facts now known to be or believed to be true. Plaintiff and each of the Members of the Settlement Class expressly assume the risk of the facts turning out to be different than they now so appear, and that this Settlement Agreement shall be, in all respects, effective and not subject to termination, rescission, alteration, or other such action by reason of any such difference in facts. Plaintiff and each of the Members of the Settlement Class shall, and hereby do, assume the above -mentioned risks. The release set forth in this Settlement Agreement is expressly intended to cover and include all future damages, defects, and discoveries, including all rights and causes of action arising against Defendant based on the facts stated in the Complaint. Plaintiff and each of the Members of the Settlement Class are aware of the provisions of California Civil Code section 1542, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Plaintiff and each of the Members of the Settlement Class hereby expressly waive the provisions of Civil Code section 1542 as to all matters within the scope of the claims released by this Settlement Agreement. Plaintiff and each of the Members of the Settlement Class hereby warrant and guarantee that they have the full and complete authority to release all such claims on behalf of themselves, and their agents, representatives, heirs, assigns, and successors in interest. Attorneys' Fees, Class Representative Fees and Expenses 2.8.3 Defendant agrees to pay reasonable costs and attorney fees as determined by the Court for time spent or estimated to be spent through the date of the final approval hearing. While the Court retains the discretion to determine reasonable costs and attorneys fees, the Parties agree that a reasonable fee in this matter is determined by the sum of (1) $8,000 payable by Defendant in addition to refunds made to Class Members; (2) 33% of the total amount determined to be due to the Settlement Class before the Class Notice was sent (estimated to be approximately $4,745 including interest) and; (3) the lesser of (a) $7,000 or (b) the dollar amount of refund checks that were not mailed because the Class Member did not return the Address Confirmation Card. The Parties agree that Defendant will pay $1,000 in costs, which the Parties agree is the amount to be allocated to Defendant of costs and expenses of the type normally charged clients incurred in this a related litigation plus the court costs attributable specifically to this action. Defendant agrees not to object to or comment on the Fee Application if it seeks a reasonable fee and costs as set forth above. Plaintiff's counsel agree not to request fees and costs in excess of those set forth above. Refund payments that are not cashed will escheat to the Defendant. City of Huntington Beach Settlement Agreement 6 2.8.4 Defendant agrees to pay Plaintiff, David McAllister, as compensation for the burden of being the class representative the amount of five hundred dollars ($500), in addition to any amount due the Plaintiff as a member of the class. 2.8.5 Defendant shall pay the attorney fees and costs as awarded by the Court and the compensation to the Plaintiff, as approved by the Court, to Plaintiff's Counsel within thirty (30) days after the Effective Date, by delivering a check for the attorney fees and costs determined as of the date of payment made payable to S. Chandler Visher, Trustee; and a separate check payable to Plaintiff. Both checks shall be delivered by courier or overnight delivery service to S. Chandler Visher, 44 Montgomery Street, Suite 3830, San Francisco, California 94104. The remaining balance of the fees shall be paid to S. Chandler Visher, trustee, promptly after the deadlline for all Claimants to submit the Address Confirmation Card as set for in the Judgment by Stipulation has expired and delivered in the same fashion. 2.8.6 In the event the Judgment by Stipulation provided for herein does not become final, all amounts paid by defendant to Plaintiff's counsel and Plaintiff in excess of amounts payable to them in any Judgment that does become final, shall be returned. 2.9 Miscellaneous Provisions 2.9.1 The Parties (i) acknowledge that it is their intent to consummate this Settlement Agreement and (ii) agree to cooperate to the extent necessary to effect and implement all terms and conditions of this Settlement Agreement and to exercise their best efforts to accomplish the foregoing terms and conditions of this Settlement Agreement. 2.9.2 All of the exhibits to this Settlement Agreement are material and integral parts hereof and are fully incorporated herein by this reference. 2.9.3 This is a fully integrated agreement and may be amended or modified only by a written instrument signed by or on behalf of all Parties or their successors -in - interest. 2.9.4 Each counsel or other person executing this Settlement Agreement or any of its exhibits on behalf of any Party hereto hereby warrants that such person has the full authority to do so. 2.9.5 This Settlement Agreement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument. Counsel for the Parties to this Settlement Agreement shall exchange among themselves original signed counterparts. A true copy of the Settlement Agreement with signatures arranged to appear as they would if all signatories signed the same copy of the Settlement Agreement shall be filed with the Court as Exhibit 1 to the Preliminary Approval Order. 2.9.6 The Parties acknowledge that they each participated in drafting this Settlement Agreement, and there shall be no presumption against any Party on the ground City of Huntington Beach Settlement Agreement 7 that such Party was responsible for drafting or preparing this Settlement Agreement or any part hereof. 2.9.7 The waiver by one Party of any breach of this Settlement Agreement by another Party shall not be deemed a waiver of any other prior or subsequent breach of this Settlement Agreement. 2.9.8 The Court shall retain jurisdiction with respect to implementation and enforcement of the terms of this Settlement Agreement, pursuant to Code of Civil Procedure § 664.6, including the alterations of any deadline set forth herein by the Court. 2.9.9 Defendant shall bear all costs of Class Notice and administration of the terms of the Settlement Agreement and no amounts paid therefore shall be deducted from any amount payable as specified herein. 2.9.10 Within 200 days after the Effective Date, Defendant shall file with the Court and submit to Plaintiff's Counsel a declaration containing the following: (i) A statement that Defendant has mailed all the Checks as required herein or, if it has not so mailed all of the Checks, the reasons for such failure; (ii) The differences, if any, between the variable Class Notice information previously provided to Plaintiff's Counsel and the information used to prepare the Checks; (iii) A statement that Defendant has taken all other actions, including deletion of trade lines, required by the Settlement Agreement, or, if not all such actions have been completed, the a description of what actions have been taken and what actions remain to be taken and when they are expected to be completed. IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be executed, by their duly authorized attorneys, this '� day of NO , 200r PLAINTIFF(S): David McAllister By. David McAllister City of Huntington Beach Settlement Agreement Defendant: City of Huntington Beach By: enelo e Culbreth-Gra t Its: City Administrator REVIEWED AND APPROVED AS TO FORM AND RECOMMENDED AS TO SUBSTANCE: LAW OFF1 F S. CHANDLE VISHER Bye S. Chandle' Visher, Esq.- Attorneys for Plaintiff City of Huntington Beach By: Scott Field, Esq., Assistant City Attorney City of Huntington Beach Settlement Agreement 9 EXHIBIT -A DUI COST CLAIM FORM AND CHANGE OF ADDRESS NOTICE McAllister v. City of Huntington Beach 05CCO4676 Superior Court for Orange County NOTE: Use this Claim Form ONLY if(]) paid more net DUI Costs than listed in the Notice or (2) you have changed your name or address from the one to which this Notice was sent. All other qualified Settlement Class members will receive benefits automatically and DO NOT need to complete this Claim Form. If you seek an additional refund you must fill out this Claim Form completely, sign it under penalty of perjury, and mail it to the address given below, postmarked not later than . Claim Forms postmarked after that date will not be accepted. [NAME OF CLASS MEMBER] ADDRESS: [ADDRESS OF CLASS MEMBER] DUI arrest date on which this Notice is based. [Arrest Date]. 1. Current name(s), if different: 2. Current Telephone 3. Current mailing address, if different from above: Check here if you are submitting this form for change of address only: ❑ Street Address: City, State, 1. The City of Huntington Beach determined that you made one or more payments in the total amount of $ toward DUI costs bills based on the arrest date listed above. What total amount do you claim to have paid towards this DUI Cost bill? $ Describe the records you have that show you made payments in this amount: Have you attached copies of these records to this Claim Form? _Yes; _ No If No, please explain: 2. City of Huntington Beach claims that it has previously returned to you is: $. What amount do you claim has been returned to you? $ What are the facts on which you based this claim? ❑ 1. BY MY SIGNATURE BELOW, I HEREBY CERTIFY, UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA, THAT THE FORGOING IS TRUE AND CORRECT Signature Date MAIL YOUR COMPLETED CLAIM FORM TO THE ADDRESS BELOW: Settlement Administrator - [Address] YOUR CLAIM FORM MUST BE POSTMARKED NOT LATER THAN EX A EXHIBIT B SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE DAVID MCALLISTER, Individually and on Behalf of Similarly Situated Persons, Plaintiff, V. City of Huntington Beach, and DOES 1 - 1000 Defendants. No. 05CCO4676 CLASS ACTION NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND SETTLEMENT HEARING Date: Time: PM Dept: I. TO: [NAME OF CLASS MEMBER] ADDRESS: [ADDRESS OF CLASS MEMBER] A. DUI ARREST DATE ON WHICH THIS NOTICE IS BASED: [ARREST DATE]. II. REFUND AMOUNT: $ NOTE: SEND IN THE ADDRESS VERIFICATION CARD TO GET PAID! III. WHY DID I GET THIS NOTICE? The City of Huntington Beach has determined that you were arrested for drunk driving (DUI), that you were billed for police, fire department or other costs associated with that arrest, that you paid part or all of the DUI Cost bill, that you did not cause an Emergency Incident and that it has not repaid to you all of the money you paid. A. THE DUI COSTS SETTLEMENT CLASS This Notice has been sent to any person who (1) was charged with a DUI offense and was sent a DUI Cost billed by Defendant, (2) either was sent the DUI Cost bill or paid some part of the DUI Cost bill to Defendant or its agents from and after March 3, 2001 and ending April 15, 2003 and (3) did not cause an Emergency Incident related to the DUI offense. "DUI Costs" are costs as allowed by Government Code section 53150 and properly billed only to persons who cause an "Emergency Incident". An "Emergency Incident' for the purposes of this settlement City of Huntington Beach Notice of Class Settlement 1 only, occurs when (1) a person is under the influence of an alcoholic beverage or any drug, or the combined influence of an alcoholic beverage and any drug and (2) that person's negligent operation of a motor vehicle caused by that influence proximately causes either (a) an accident or (b) a dispatched "Code 3" emergency response by police or other emergency personnel to the scene of the DUI arrest (neither the flipping on of lights and siren nor the calling in a tow truck would qualify) or (c) a "pursuit" which requires the submission of CHP Form 187 pursuant to the guidelines for Vehicle Code section 14602.1. There will be a hearing on at a.m., before the Honorable of the Orange Superior Court, Courtroom , [Court address], California, to determine if the settlement described in this Notice is fair, reasonable, equitable and adequate. IV. WHAT IS THIS LAWSUIT ABOUT? The lawsuit alleged that City of Huntington Beach billed people arrested for DUI offenses even though those people did not cause an accident or other Emergency Incident. The lawsuit seeks to have the City of Huntington Beach stop billing for costs associated with DUI arrests where there was no accident or other Emergency Incident and to have City of Huntington Beach disgorge the amounts improperly collected after March 3, 2001. V. WHAT SETTLEMENT BENEFITS CAN I GET? The City of Huntington Beach has determined that your Refund Amount, after expected attorney fees, is the amount listed above. A. CALCULATION OF REFUND AMOUNT The amount listed as the "Refund Amount" above was calculated as follows: 1. The City of Huntington Beach determined that you made one or more payments in the total amount of $ toward DUI costs bills based on the arrest date listed above. 2. The amount of such payments that has been previously returned to you is: $ 3. The net amount of DUI Cost bills paid by you, less repayments, is $ . IF YOUR RECORDS SHOW YOUR NET PAYMENT WAS GREATER THAN THIS AMOUNT, YOU MAY FILE A CLAIM FORM. 4. Interest at 7% that will accrue on the net amount from the time of the payments until the expected date of the repayment check is $ The total net payment of DUI Costs with interest is $ 6. The expected 33% attorneys fees you will pay from this net payment is $ City of Huntington Beach Notice of Class Settlement 2 7. The net payment less attorneys' fees is the Refund Amount of $ B. WHAT DO I NEED TO DO TO GET A PAYMENT? YOU MUST SIGN AND RETURN ENCLOSED POSTAGE PREPAID ADDRESS VERIFICATION CARD or a CLAIM FORM. Under this settlement, the person to whom this Notice is addressed will automatically receive a check in the amount listed in the "Refund Amount" above at the address to which this Notice was sent IF THAT ADDRESS HAS BEEN VERIFIED BY RETURN OF THE VERIFICATION CARD. You must send in a Claim Form ONLY if either: 1. The Notice is addressed to you but the name or address on the Notice is not correct; or 2. You claim to be due a refund that is MORE than the "Refund Amount" above. You do not need to send both the Claim Form and the Verification Card, but you MUST send one or the other. VI. WHAT IF I DO NOT WANT THE REFUND OR I WANT TO FILE MY OWN CASE? If you wish to give up your right to receive the check in the amount listed in the "Refund Amount" above you can EXCLUDE yourself (this process is sometimes referred to as "opting out") from the settlement. To be excluded, you MUST send in a written request postmarked no later than to the "Clerk of the Court" at the address listed below. Include in the letter a statement such as "Please exclude me from the Settlement Class", your printed name, your signature and the case number listed above. The letter must be signed by the person(s) to whom this Notice is addressed. Should you elect to exclude yourself from the class settlement: (i) you will not be entitled to receive any settlement benefits from Defendants if and once the settlement is finally approved; (ii) you will not be bound by any further orders or judgment entered for or against the Settlement Class; (iii) you may pursue any individual claims you have against City of Huntington Beach at your own expense; and (iv) you may seek to intervene in this lawsuit as an individual plaintiff at your own expense. Please note that if you exclude yourself, you will not get any payment from this settlement. VII. WHAT IF i WANT TO OBJECT TO THE SETTLEMENT? You may also object to the proposed settlement of the Litigation or to the attorney fee provisions described below. If you wish to object to all or any part of the proposed settlement you must serve Plaintiffs' Counsel at the Law Offices of S. Chandler Visher, 44 Montgomery Street, Suite 380, San Francisco, California 94104, with written objections no later than Vill. SUMMARY OF CLAIMS IN LITIGATION The Settlement Agreement relates to the above captioned Superior Court case (hereinafter the "Litigation"). The Litigation is a class action in whichPlaintiff seeks to stop the City of Huntington Beach Notice of Class Settlement practices of Defendant in collecting money from persons for the cost of their DUI arrests ("DUI" sometimes used hereafter in place of "driving under the influence of alcohol or drugs"), when there has been no emergency "incident" as that term is used under California Government Code section 53150. There has been no court decision that the Plaintiff is entitled to the relief sought and the City of Huntington Beach has asserted various defenses. The refunds are the result of a settlement between the Plaintiff and the City. IX. SCOPE OF SETTLEMENT CLASS Solely for purpose of determining whether the proposed settlement with Defendant should be approved, the Court has certified the Settlement Class in the Litigation as defined above. If you are a member of this Settlement Class, you will receive a refund check if you send in the Address Verification Card or if you file a Claim Form proving you paid more towards a DUI Cost bill than City of Huntington Beach has determined and your Claim is approved. X. PAYMENTS TO ATTORNEYS AND CLASS REPRESENTATIVE Subject to Court approval, attorneys for Plaintiff and for the Settlement Class will be reimbursed for attorneys' fees and costs for prosecuting the Litigation. Defendant will pay to counsel for Plaintiff the sum of $8,000 from funds separate from the amount it owes members of the Settlement Class, which payment does not affect the refund to you. In addition, counsel for Plaintiff will request the Court to order that 33% of the amount due you by City of Huntington Beach be paid by you as attorney fees. The City of Huntington Beach has also agreed to pay as attorney fees up to $7,000 of the funds that would otherwise be paid to class members but is not paid because the Class Member failed to verify his or her address. Defendant shall also pay five hundred dollars ($500) to David McAllister, the Plaintiff class representative in addition to amounts that may be due Plaintiff as a class member. Attorneys for Plaintiff are Matthew J. Witteman, Bradley Arnold and S. Chandler Visher. Other than as paid from your refund, YOU DO NOT HAVE TO PAY ANY ATTORNEY FEES. XI. HOW TO MAKE A CLAIM If you have records that show that the total amount you paid for DUI costs billed to you by the City of Huntington Beach between March 3, 200land April 15, 2003 is more than the amount indicated above or that the amount previously refunded to you is less than the amount indicated above so that the net amount you have paid is greater than the net amount listed above, you may submit a Claim Form. The details of how to fill out the form and to whom it should be sent are on the form. If you need another Claim Form contact Plaintiff's counsel at the address listed in the Further Information section below. City of Huntington Beach Notice of Class settlement 4 XII. WHAT IF THE ADDRESS ON THE NOTICE IS INCORRECT If you are the person to whom the Notice is intended but the address as shown above is incorrect or your name has changed, you may submit a Claim Form. In such cases you may file the Claim Form even though the Refund Amount listed above is correct. XIII. OTHER TERMS OF THE CLASS SETTLEMENT If the Court approves the proposed settlement, it will enter a judgment binding on all members of the Settlement Class who have not excluded themselves (opted out). A. RELEASE OF CLAIMS BY CLASS MEMBERS In return for the settlement benefits, the claims of all members of the Settlement Class against City of Huntington Beach will be dismissed with prejudice and all members of the Settlement Class will release and be permanently barred from thereafter pursuing any and all claims, demands, rights, liabilities and causes of action based on the billing for a payment of DUI Costs. B. CREDIT REPORT CORRECTION The City of Huntington Beach will ensure that failure of any Class Member to pay a DUI Cost bill that was improperly imposed will not appear as a negative item on the Class Member's credit report. XIV. FURTHER INFORMATION This Notice provides only a summary of matters relating to the litigation. You may discuss this with your own attorney or seek Court permission to appear at the fairness hearing through your own attorney. For more detailed information, you may examine the court's file regarding this matter from the hours of 8:00 a.m. to 4:00 p.m. at [clerk of court address]. If you have questions concerning this Notice you may write to counsel for Plaintiffs, S. Chandler Visher, 44 Montgomery Street, Suite 3830, San Francisco, California 94104, or send e-mail to emily@visherlaw.com, or telephone class counsel S. Chandler Visher at (415) 901-0503. DO NOT TELEPHONE THE COURT. Dated: Honorable Judge of the Orange County Superior Court City of Huntington Beach Notice of Class Settlement EXHIBIT C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF S. CHANDLER VISHER S. Chandler Visher, State Bar No. 52957 44 Montgomery Street, Suite 3830 San Francisco, California 94104 Telephone (415) 901-0500 Facsimile (415) 901-0504 Other Counsel listed on signature page Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE DAVID MCALLISTER, Individually and on Behalf of Similarly Situated Persons, Plaintiff, V. CITY OF HUNTINGTON BEACH, and DOES 1 - 1000 Defendants. No. 05CCO4676 ORDER OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS Date: Time: PM Dept: WHEREAS, the Court has received the Settlement Agreement that has been entered by and among (i) Plaintiff David McAllister, on behalf of plaintiff and each of the Persons in the Settlement Class (hereinafter collectively "Plaintiff') and (ii) Defendant. City of Huntington Beach (hereinafter "Defendant"). WHEREAS, the Court has reviewed the Settlement Agreement and its attached exhibits; and, good cause appearing therefor, IT IS HEREBY ORDERED as follows: 1. For purposes of this order, the Court adopts all defined terms as set forth in the Settlement Agreement, attached hereto as Exhibit "1", and incorporated herein by reference ("Settlement Agreement"). CITY OF HUNTINGTON BEACH PRELIMINARY APPROVAL ORDER 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Court preliminarily approves the settlement of the Litigation set forth in the Settlement Agreement as being fair, just, reasonable and adequate to the Settlement Class and its members, subject to further consideration at the Settlement Hearing described below. 3. For purposes of settlement only, and in accordance with the standards set forth in Dunk v. Ford Motor Company (1996) 48 Cal. App. 4th 1794, the Court certifies this Litigation as a class action and certifies a Settlement Class as defined the Settlement Agreement. Plaintiff is approved as the representative of the Settlement Class and the Plaintiff s Counsel are approved as counsel for the Settlement Class. 4. The Court finds that the requirements of California Code of Civil Procedure Section 382 have been satisfied and the Court has made a preliminary determination that Plaintiff is an adequate class representative of the Settlement Class. 5. The Court approves as to form and content for distribution to Persons in the Settlement Class the Notice of Proposed Class Action Settlement and Settlement Hearing, the Claim Form and the Address Verification Card (collectively the "Notice"), substantially in the forms attached to the Settlement Agreement as Exhibits A, B and E. 6. Defendant shall cause to be mailed by U.S. First Class Mail, postage prepaid, the Notice, to all Persons in the Settlement Class to the Class Member's Last Known Address. The initial mailing of the Notice shall be commenced no later than twenty-eight (28) days from the date of this order. Defendant's Counsel shall file with the Court and serve upon Plaintiffs Counsel no later than fourteen (14) days prior to the Settlement Hearing a declaration stating that the mailings have been completed in accordance with the terms of this order and indicating the total dollar amount of the 33% Attorneys Fees payable from the refunds. 7. The Court finds that dissemination of the Notice in the manner required by the preceding paragraph constitutes the best notice practicable under the circumstances to the Persons in the Settlement Class and meets the requirements of California Code of Civil Procedure section 382, and due process under the United States Constitution and any other applicable law and shall constitute due and sufficient notice to all Persons entitled thereto. CITY OF HUNTINGTON BEACH PRELIMINARY APPROVAL ORDER 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Any Person falling within the definition of the Settlement Class may, upon request, be excluded from the settlement. A Person who decides to opt out must send a letter so stating to the address of the Settlement Administrator, as set forth on the Claim Form, and includes in the letter the Person's printed name, signature and the case number listed on the Claim Form. The letter must be postmarked no later than fifteen (15) days before the Settlement Hearing, and must be signed by the Person(s) to whom the Notice was addressed. All Persons who timely submit properly completed Requests for Exclusion in the manner set forth in this paragraph shall have no rights under the Settlement Agreement, as incorporated in the Final Judgment, shall not share in the benefits of the Settlement Agreement and shall not be bound by the Settlement Agreement or the Final Judgment. Plaintiff's Counsel and Defendant's Counsel shall exchange copies of any and all Requests for Exclusion received at least ten (10) days before the Settlement Hearing. 9. If any Person in the Settlement Class does not receive by mail the Class Notice prior to fifteen (15) days before the Settlement Hearing, then that Person shall retain the right to request exclusion from the Settlement Class, but not to object to the settlement. However, this right to request exclusion shall expire on the Effective Date, regardless of whether the Person in the Settlement Class receives the Class Notice, and the Person shall be deemed to be a Settlement Class Member and shall be bound by this Settlement Agreement and the Judgment entered herein. 10. Any Settlement Class Member who claims to have paid a greater amount of DUI costs than listed in the Notice and wishes to receive a Check for an amount greater than the amount specified in the Notice to that Class Member, must timely submit a properly completed Claim Form. To be valid, a Claim Form must be: (1) fully completed and legible in a manner that permits the Settlement Administrator to determine the eligibility of the claim; (2) signed under penalty of perjury that the information in the Claim Form is true and correct; and (3) postmarked for delivery to the Settlement Administrator no later than fifteen (15) days before the Settlement Hearing. 11. Any Settlement Class Member who objects to the proposed settlement set forth in the Settlement Agreement shall have a right to appear and be heard at the Settlement Hearing. CITY OF HUNTINGTON BEACH PRELIMINARY APPROVAL ORDER 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Settlement Class Members who wish to object to all or any part of the proposed settlement must serve written objections on Plaintiff's Counsel no later than fifteen (15) days before the Settlement Hearing. Only Settlement Class Members who have timely served properly completed written notices of objection will be entitled to be heard at the Settlement Hearing unless the Court orders otherwise. No later than ten (7) days prior to the Settlement Hearing Plaintiff s Counsel shall file with the Court and serve Defendant's Counsel with copies of any and all such written notice of objection received. 12. No later than seven (7) days before the Settlement Hearing, Plaintiff may, if Plaintiff wishes, serve and file materials providing additional support of the settlement. Any memorandum responsive to objections filed by class members shall also be served and filed no later than seven (7) days before the Settlement Hearing. 13. No later than twenty (20) days before the Settlement Hearing, Plaintiff shall submit to the Court a Fee Application requesting Court approval of the Fee and Expense Payment set forth in the Settlement Agreement. 14. The Settlement Hearing will be held on , at a.m., in Courtroom of the Superior Court for this County to determine whether the proposed settlement of the Litigation, as set forth in the Settlement Agreement, should be approved as fair, reasonable and adequate to the Settlement Class and its members, whether the Fee Application should be approved, and whether the Judgment approving the settlement should be entered. The Court may adjourn or continue the Settlement Hearing without further notice to Settlement Class Members. 15. Pending determination of final approval of the settlement, Members of the Settlement Class who do not request exclusion are enjoined from bringing or asserting any claim or action that was or could have been asserted in the Litigation and arising out of the Released Claims. 16. Defendant shall have until 30 days after the Effective Date to send Checks to qualified Settlement Class Members in accordance with the Settlement Agreement. Refund checks shall be sent to all Settlement Class Members who have returned a completed Address Verification Card before 30 days after the Effective Date. CITY OF HUNTINGTON BEACH PRELIMINARY APPROVAL ORDER 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. Neither the Settlement Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed as an admission or concession by Defendant of the truth of any of the allegations in the Litigation, or of any liability, fault or wrongdoing of any kind. 18. The Judgment, if entered, will permanently bar and enjoin all Settlement Class Members who do not timely submit a properly completed Claim Form from receiving a Check under the terms of the Settlement greater than the amount set forth in the Notice, and all Settlement Class Members will in all other respects be subject to and bound by the provisions of the Settlement Agreement and the Final Judgment. 19. The Judgment, if entered, will permanently bar and enjoin the Plaintiff and all Settlement Class Members from instituting or prosecuting, in any capacity, any action or proceeding that involves or asserts any of the Released Claims. 20. From the date hereof until entry of Judgment herein, or until new legislation or appellate decisions in California permit it, Defendant, its agents, employees, law enforcement departments, emergency response departments and all Persons with responsibility for billing for DUI Costs are enjoined from collecting or seeking to collect DUI Costs from any Person who did not cause an Emergency Incident. 21. The Court may, for good cause, extend any of the deadlines set forth in this order without further notice to Persons in the Settlement Class. Dated: Judge, Superior Court Approved as to form: Attorney for City of Huntington Beach ADDITIONAL COUNSEL FOR PLAINTIFF: CITY OF HUNTINGTON BEACH PRELIMINARY APPROVAL ORDER 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF MATTHEW J. WITTEMAN Matthew J. Witteman (SBN 142472) 582 Market Street, Suite 1007 San Francisco, CA 94104 (415) 362-3106 (tel.); (415) 362-3316 (fax) BRADLEY ARNOLD, ESQ. (SBN 211996) 668 North Coast Highway Suite 156 Laguna Beach, California 92651 (949) 715-9603 (tel); (831) 480-5766 (fax) CITY OF HUNTINGTON BEACH PRELIMINARY APPROVAL ORDER 0 EXHIBIT D 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF S. CHANDLER VISHER S. Chandler Visher, State Bar No. 52957 44 Montgomery Street, Suite 3830 San Francisco, California 94104 Telephone (415) 901-0500 Facsimile (415) 901-0504 Other Counsel listed on signature page Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE David McAllister Individually and on Behalf of Similarly Situated Persons, Plaintiff, V. City of Huntington Beach and DOES 1 - 1000 Defendants. No. 05CCO4676 JUDGMENT BY STIPULATION Date: Time: PM Dept: Comp amt File WHEREAS, Plaintiff individually and on behalf of the Settlement Class (hereinafter collectively "Plaintiffs") and City of Huntington Beach (hereinafter "Defendant") entered into a Settlement Agreement, a copy of which is attached hereto as Exhibit 1; WHEREAS, on , 200_, upon review of the Settlement Agreement and consideration of the Motion for Preliminary Approval of Settlement Agreement, the Court issued an ORDER OF PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS ("Preliminary Approval Order"), which, among other things, certified a Settlement Class pursuant to California Code of Civil Procedure section 382, for the purposes of settlement only. I CITY OF HUNTINGTON BEACH JUDGMENT I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At a hearing on , 2005, the Court heard the Motion for Final Approval of Settlement Agreement and, finding good cause therefore; IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. The terms of the Settlement Agreement are fair, reasonable and adequate with respect to the Settlement Class and it is finally approved. 2. Capitalized terms used in this Judgment shall have the same meaning as defined in the Settlement Agreement; 3. All preliminary approvals and findings in the Preliminary Approval Order are hereby ordered final; 4. This Court has jurisdiction over the subject matter of the Class Action and overall parties to the Litigation, including all Members of the Settlement Class. 5. The Settlement Agreement is hereby incorporated with and made part of this Judgment. 6. The Notice given to the Settlement Class Members set forth in the Settlement Agreement was the best notice practicable under the circumstances, and said Notice fully satisfied the requirements of the California Code of Civil Procedure and the requirements of due process. 7. All persons who filed timely requests for exclusion from the Settlement Class are excluded from the operation of any part of the Settlement Agreement and shall not be bound by the terms thereof nor receive the benefits thereof. 8. The parties shall consummate the Settlement Agreement in accordance with all of its terms and conditions. 9. The Court finds that the hours listed in the Fee Application filed by Plaintiff's Counsel were reasonably spent in the pursuit of this litigation and that the hourly rates requested therein are reasonable and commensurate with the background and experience of the attorneys and others performing the work and the nature of the work performed. The work described in the Fee Application includes time expended in pursuit of similar claims against other governmental entities. The Court has determined the reasonable attorney fee and cost apportionment to City of Huntington Beach and the Settlement CITY OF HUNTINGTON BEACH JUDGMENT G 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Class from the total of all the work described. The Court determines that a reasonable fee is determined by the sum of. (1) $8,000 payable by Defendant in addition to refunds made to Class Members; (2) 33% of the total amount determined to be due to the Settlement Class before the Class Notice was sent and; (3) the lesser of (a) $7,000 or (b) the dollar amount of refund checks that were not mailed because the Class Member did not timely return the Address Confirmation Card. Costs are awarded Plaintiff in the amount of $1,000 as agreed by the Parties. Refund payments that are not cashed shall be escheated to the Defendant. 10. All Released Claims are hereby fully and finally extinguished, released, relinquished and discharged against Defendant. 11. Plaintiff and each and every Settlement Class Member who has not been excluded from the Settlement Class, individually and representatively, are hereby permanently barred and enjoined from asserting the Released Claims against the Defendant. 12. The incentive award to Plaintiff, David McAllister, of $500 as provided for in the Settlement Agreement is fair and reasonable and is approved. 13. The City of Huntington Beach is permanently enjoined to only bill a motorist arrested for driving under the influence of alcohol and/or drugs (DUI) pursuant to Government Code section 53150 in cases where there was an "Emergency Incident." An Emergency Incident shall be when (1) a person is under the influence of an alcoholic beverage or any drug, or the combined influence of an alcoholic beverage and any drug and (2) that persons's negligent operation of a motor vehicle caused by that influence proximately causes either (a) an accident or (b) a dispatched "Code 3" emergency response by police or other emergency personnel to the scene of the DUI arrest (neither the flipping on of lights and siren nor the calling in a tow truck would qualify) or (c) a "pursuit" which requires the submission of CHP Form 187 pursuant to Vehicle Code section 14602.1. 14. A person shall be deemed to be driving under the influence of alcohol and/or drugs where the arresting officer observes objective symptoms of such influence, and/or blood, urine or breath test indicates the presence of drugs or alcohol in the blood stream. I CITY OF HUNTINGTON BEACH JUDGMENT 3 I 2 3 4 5 6' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. The City shall not impose a DUI billing in any other circumstances, unless there is a material change in the case law as reflected in a published or unpublished decision of California Court of Appeal or the California Supreme Court or a material amendment to Government Code §§ 53150-53158. In determining whether a material change has occurred, the Court shall not apply the "law of the case" doctrine. (See, Davidson v. Superior Court (1999) 70 Cal.AppAth 514. 530, holding that the "law of the case" does not apply where "there has been an intervening change in the law.") 16. Because this Judgment constitutes a prohibitory injunction, the Court retains continuing jurisdiction to modify or dissolve the Judgment, and the City further retains the right to seek relief from the judgment entered pursuant to this Stipulation pursuant to Civil Code Section 3424 in the event of a bona fide, significant change in subsequent law. (See, Sontug Chuin Stores v. Superior Court (1941) 14 Ca1.2d 92 - 94, holding that court has inherent power, upon motion, to modify or vacate a permanent injunction upon a showing that the ends of justice will be served or that there has been a change in the controlling facts.) 17. A person shall be deemed to be driving under the influence of alcohol and/or drgus where the arresting officer observes objective symptoms of such influence, and or a blood, urine or breath test indicates the presence of drugs or alcohol in the blood stream in excess of the applicable legal limit. 18. The Court shall retain continuing jurisdiction over all matters relating to the administration, consummation and enforcement of the Settlement Agreement pursuant to California Code of Civil Procedure § 664.6. Dated: Approved as to form: Attorney for City of Huntington Beach I CITY OF HUNTINGTON BEACH JUDGMENT Judge, Superior Court n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADDITIONAL COUNSEL FOR PLAINTIFF: I CITY OF HUNTINGTON BEACH JUDGMENT LAW OFFICES OF MATTHEW J. WITTEMAN Matthew J. Witteman (SBN 142472) 582 Market Street, Suite 1007 San Francisco, CA 94104 (415) 362-3106 (tel.); (415) 362-3316 (fax) BRADLEY ARNOLD, ESQ. (SBN 211996) 668 North Coast Highway Suite 156 Laguna Beach, California 92651 (949) 715-9603 (tel); (831) 480-5766 (fax) 5 EXHIBIT E DUI COST LITIGATION ADDRESS VERIFICATION CARD McAllister v. City of Huntington Beach 05CCO4676 Superior Court for Orange County NOTE: IF THIS FORM IS NOT RETURNED NO REFUND CHECK WILL BE SENT TO YOU! Use this card to VERIFY YOUR ADDRESS OR CURRENT ADDRESS. [NAME OF CLASS MEMBER] ADDRESS: [ADDRESS OF CLASS MEMBER] DUI arrest date on which this Notice is based: [Arrest Date]. 1. Current name(s), if different: 2. Current Telephone N Current mailing address, if different from above: Street Address: City, State, Zip BY MY SIGNATURE BELOW, I HEREBY CERTIFY, UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA, THAT I AM THE PERSON TO WHOM THIS NOTICE WAS ADDRESSED AND THAT THE FORGOING INFORMATION IS TRUE AND CORRECT Signature Date THIS FORM MUST BE POSTMARKED NOT LATER THAN [A DATE 30 DAYS AFTER THE SETTLEMENT HEARING] EX E [FRONT SIDE OF CARD/ [POSTAGE PEPAID STAMP] [NAME OF SETTLEMENT ADMINISTRATOR] [ADDRESS OF SETTLEMENT ADMINISTRATOR] EX E