HomeMy WebLinkAboutOpp (Castle, Krause & petersen, LLP) - 2004-10-04i
CITY OF HUNTINGTON BEACH
Inter -Department Communication
TO: 40AN FLYNN, City Clerk
FROM: SCOTT FIELD, Assistant City Attorney
DATE: .dune 2, 2006
SUBJECT: Opp v City of Huntington Beach
Attached please find the original, fully executed Settlement Agreement in the Opp v. _City of
Huntington Beach action. Please keep this Agreement on file in your office. I have also
attached a copy of the Closed Session memo dated October 4, 2004, for your reference
SCOTT FIELD
Assistant City Attorney
Attachments
GARELD . \2006 Mem i 1Memo toClerkre .doc
ps oPP
% .,
IM CITY OF HUNTINGTON BEACH
INTERDEPARTMENT COMMUNICATION
CONFIDENTIAL
ATTORNEY -CLIENT PRIVILEGE
TO: CLOSED SESSION FILE
FROM: JENNIFER McGRATH, City Attorney
DATE: October 4, 2004
SUBJECT: Opp v. City of Huntington Beach, et al.
Court of Appeals, Fourth Appellate Dist., Divn. 3, Case No. G025947 [Opp 1]; and
Opp v. City of Huntington Beach, et al.; Orange County Superior Court
Case No. 748927, Court of Appeals Case No. G030601 [Opp 11].
On Monday, October 4, 2004, the City Council convened in closed session to discuss the referenced matter
pursuant to the litigation exception contained in Government Code Section 54956.9(a).
Five members of the Council were present, including Mayor Cathy Green, Jill Hardy, Gil Coerper, Debbie
Cook,, and Dave Sullivan. Connie Boardman was absent. Also present were City Attorney Jennifer
McGrath, City Administrator Penelope Culbreth-Graft, Assistant City Administrator Bill Workman, Director of
Administrative Services Clay Martin, and Police Chief Kenneth Small.
Council voted to authorize the City Administrator to execute a settlement agreement incorporating the
following terms:
Opp to be paid $400,000 ($200,000 to Opp and $200,000 to his attorneys).
2. The Police Department will purge from its personnel file any references to Opp's prior discipline.
However, the City Attorney's Office will retain its disciplinary files from the jury trial of the case.
Moreover, if any future employer of Opp should contact the City for references, the City is free to
answer honestly. The City will not agree to provide a "no comment" if contacted by a potential
employer for a reference.
3. The City will assist Opp in being vested in PERS by shifting his separation date by few months so
that he has five years of PERS service.
4. The court judgment (including the jury verdict) will be reversed and vacated. This will remove the
punitive damage award against you. As you may recall, the jury found that you acted with malice or
deliberate indifference against the constitutional rights of Mr. Opp. I believe that it is very important to
have that verdict be vacated, and that's why we have insisted at all times that any settlement should
involve a stipulated reversal of the judgment, including the punitive damages.
5. Opp and the City will apply jointly to ask the Court of Appeal to vacate the judgment. Although I expect
the Court of Appeal to agree to the request, there is a possibility they will deny it. If the Court refuses,
then the settlement agreement becomes null and void, and we will -proceed with the appeal.
Vote: 5-0. Absent at vote, Connie Boardman.
closed/04memo/Opp 104-04
4
Closed Session Memo
Opp v. City of H.B.
October 4, 2004, Closed Session
Page 2
Name
Moved
(M)/2na
Aye
No
Abstain
Did Not
Participate
Boardman
✓
Coerper
y/
Cook
Green, C.
M
Hardy
Sullivan
Voting Tally
.�—
J�L� (In r
JENNIFER McGRATH
City Attorney
Attachments: 1. Closed Session Notices
2. Lawsuit Status Sheet
❑ Disclosure Recommended
Disclosure Not Recommended
Legal Justification:
❑ Disclosure would interfere with service of process
❑ Disclosure would impair ability to settle
Explanation:
closed/04memo/Opp 10-4-04
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This settlement agreement and mutual release ("Agreement") is entered into as
of November , 2004, by Franklin Opp ("Opp"), on the one hand, and City of
Huntington Beach, Ronald E. Lowenberg, Jon W. Arnold, Michael Uberuaga, and
William Osness (collectively, the "City") on the other hand.
RECITALS
A. Opp was employed as a detention officer for the City of Huntington -Beach
Police Department from 1990 through 1994.
B. Opp filed a civil rights action against the City, entitled Opp v. City of
Huntington Beach, et al., Orange County Superior Court Case No. 748927, on June 21,
1995 ("Case No. 748927"). On February 21, 2002, judgment on a special verdict was
entered in that proceeding, and on July 2, 2002, attorneys fees were awarded to Opp's
attorney, CASTLE, KRAUSE & PETERSEN, LLP. On April 19, 2002, the City appealed
from the judgment. The appeal, consolidated as Fourth District Court of Appeal, Case
No. G030601, has been fully briefed, except for certain supplemental briefs the Court
has ordered filed ("Case No. G030601"). Case No. 748927, Case No. G030601, the
judgment on a special verdict, and the attorney fee award will be referred to collectively
as, the "Litigation."
C. It is the intention and desire of the Parties to this Agreement to settle,
compromise and resolve all the differences, disagreements and disputes which exist or
field/pleadings/Opp/Settlement Agreement
may exist between them, relating to the disputes which are the subject matter of the
Litigation and Opp's employment with the City of Huntington Beach.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions contained in this Agreement and the valuable consideration to be paid
hereunder, the sufficiency of which is acknowledged, the Parties hereto agree as
follows:
1. Recitals. The above Recitals A through C are incorporated herein as a
material part of this Agreement.
2. Vacation of Judgment and Dismissal of Case No. 748927. The Parties,
concurrently with signing this Agreement, will execute the Joint Application and
Stipulation For Reversal of Judgment and Remand Of Action To Superior Court For
Dismissal With Prejudice (the "Stipulated Reversal") in Case No. 748927, under Code of
Civil Procedure section 128(a)(8), a copy of which is attached hereto as Exhibit A.
Following execution of this Agreement and the attached Stipulated Reversal, Opp shall
cause the Stipulated Reversal to be delivered to the Court no sooner than seven (7)
days after Opp has signed this Agreement, but no later than ten (10) days following the
execution of this Agreement by all Parties.
If the Court of Appeal grants the Stipulated Reversal and issues a decision
essentially providing that, (1) judgment shall be reversed, {2) the Superior Court shall
vacate and set aside the judgment on special verdict and the attorney fee order in Case
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freld/pieadings/Opp/Settlement Agreement
No. 748927 and dismiss Case No. 748927 with prejudice, and (3) the Parties will bear
their own costs on appeal, then this Agreement shall become final and binding, but if the
Court of Appeal does not so decide, then this Agreement shall be null and void.
3. Payment of Settlement Funds.
A. No later than seven (7) days after the Superior Court vacates the
judgment in Case No. 748927 and dismisses the action with prejudice or thirty (30) days
after the Court of Appeal grants the Stipulated Reversal and issues a remittitur ordering
the Superior Court to vacate the judgment in Case No. 748927 and dismiss the action
with prejudice, whichever occurs first, the City shall tender to Opp's attorneys of record
ej-
a eeeliier's'check in the amount of Four Hundred Thousand Dollars and No Cents
($400,000.00), made payable to "CASTLE, PETERSEN & KRAUSE, LLP," by personal
delivery of the same to:
CASTLE, PETERSEN & KRAUSE, LLP
4675 MacArthur Court, Suite 1250
Newport Beach, CA 92660
Said funds are to be paid as damages to make Opp whole. Opp and CASTLE,
PETERSEN & KRAUSE, LLP, will be responsible for their respective tax liability
incurred by them in receiving the settlement funds
B. The Parties agree that City shall report said payment on IRS Form 1099
as compensation paid to CASTLE, PETERSEN & KRAUSE, LLP and shall not withhold
from or remit payment to the Internal Revenue Service on account of such payment.
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field/pleadings/Opp/Settlement Agreement
4. Personnel Files.
A. Within fifteen days of the execution of this Agreement, the City shall
remove from Opp's personnel files maintained by the City Police and Human Resources
Departments any materials referring to the charges, investigation, or discipline of Opp.
B. The City shall not purge any materials referring to the charges,
investigation, or discipline of Opp existing in the files of the City Attorney, or the minutes
of the City Personnel Commission except as required by the California Public Records
Act. Pursuant to the City retention schedule adopted under the Public Records Act, City
Attorney files will be destroyed five (5) years after the case is closed, unless good cause
exists to retain the files, and Personnel Commission minutes are maintained
permanently. Upon the five (5) year anniversary of this Agreement, Opp and/or
CASTLE, PETERSEN & KRAUSE, LLP shall notify the City Attorney that they request
that the City Attorney files regarding Opp's discipline be destroyed. Within thirty (30)
days after receiving such notice, the City Attorney shall then so notify Opp and/or
CASTLE, PETERSEN & KRAUSE LLP, whether the City Attorney will destroy the files
or continue to retain them on the claim that good cause exists.
5. Release.
A. Except for the rights and obligations arising from this Agreement, and as a
material inducement for City to enter into this Agreement, Opp hereby irrevocably and
unconditionally releases and forever discharges City and all of its respective council,
bureaus, officers, agents, employees and all persons who acted on their behalf
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field/pleadings/Opp/Settlement Agreement
(collectively the "Released Parties") of and from any and all matters, claims and suits of
every kind whatsoever, of any nature whatsoever, whether in law or in equity, KNOWN
OR UNKNOWN, suspected or unsuspected, actual or potential, which Opp now has,
owns or holds, or claims to have, own, or hold against each or any of the Released
Parties, at common law or under any statute, rule, regulation, order or law, whether
federal, state, or local, or on any grounds whatsoever, with respect to any act, omission,
event, matter, claim, damage, loss, or injury arising out of the Litigation, Opp's
employment with the City, and/or with respect to any other claim, matter, or event
arising prior to execution of this Agreement by the Parties. This Release includes,
without limitation, any claims Opp may have under the Age Discrimination in
Employment Act (29 U.S.C. §621, et seq.), as amended; the California Fair Employment
and Housing Act (California Government Code §12940 et seq.); the California Family
Rights Act (California Government Code §12945.2, 19702.3 et seq.); California
Government Code §11135; the Unruh and George Civil Rights Acts (California Civil
Code §51 et seq.); the California Labor Code, including, but not limited to, all provisions
of the California Labor Code section 1194 and any related Wage Orders or similar
directives/authorities issued by any Federal or State authority having enforcement
powers; the federal Fair Labor Standards Act and any related Wage Orders or similar
directives/authorities issued by any Federal or State authority having enforcement
powers; the Constitution of the United States; the Constitution of the State of California;
Title VI of the Civil Rights Act of 1964 (42 U.S/C. §2000e et seq.); the Equal Pay Act
(29 U.S.C. §206(d)); the Rehabilitation Act of 1973 (29 U.S.C. §793 et seq.); the family
and Medical Leave Act (29 U.S.C. §2901 et seq.); the Employee Retirement Income
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field/pleadings/Opp/Settlement Agreement
Security Act of 1974, also known as "ERISA" (29 U.S.C. §1001 et seq.); Sections 1981,
1983, 1985, 1986 or 1988 of Title 42 of the United States Code (42 U.S.C. 1981
et seq.); the Americans with Disabilities Act (42 U.S.C. §12101 et seq.); claims of
Retaliation (California Labor Code §1102.5 et seq.); claims of "Whistle -blowing;"
California Workers' Compensation Act (Labor Code §3201 et seq.); claims for breach of
any type of contract, including written, oral or implied contracts, breach of any covenant,
promise, or representation pertaining to Opp's employment, whether express or implied;
claims for negligent hiring, retention, supervision, or investigation; claims for wrongful
termination; claims for discrimination of any type; claims for interference with economic
relations; claims for failure to pay wages and/or benefits of any kind; claims for fraud
and/or misrepresentation of any kind; claims for negligent or intentional infliction of
emotional distress; claims for slander, assault, or battery; and/or, any other claims
arising under any other state or federal provision, act, ordinance, Constitution, law, or
common law.
B. WAIVER OF RIGHT OR CLAIMS PURSUANT TO AGE
DISCRIMINATION CLAIM. Opp specifically acknowledges that pursuant to Title 29 of
the Laws of the United States of America, Chapter 14, entitled "AGE DISCRIMINATION
IN EMPLOYMENT," it shall be unlawful (1) for an employer to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment because of such
individual's age; (2) to limit, segregate, or classify employees in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his/her status as an employee, because of such individual's age; or (3)
to reduce the wage rate of any employee in order to comply with said Chapter. Opp
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field/pleadings/Opp/Settlement Agreement
hereby acknowledges and agrees that he has been given a period of at least twenty-
one (21) days within which to consider entering into this Agreement, and that for a
period of seven (7) calendar days following the execution of this Agreement, Opp may
revoke his agreement to waive his rights under the Age Discrimination in Employment
Act and Opp's waiver of his rights under the Age Discrimination in Employment Act shall
not become effective or enforceable until the revocation period has expired. (29 U.S.C.
Section 626(f)(1)(G).) In regards to this section, Opp specifically acknowledges that he
has received valuable consideration for his waiver of rights, and that he knows of his
right to consult an attorney prior to executing this Agreement.
6. City Release. Except for the rights and obligations arising from this
Agreement, the City hereby releases and discharges Opp of and from any and all
claims, causes of action, or demands, of whatever nature, anticipated or unanticipated,
KNOWN OR UNKNOWN, which exist or may exist on or before the date of execution of
this Agreement by the Parties hereto, which are contained in, may arise out of or be in
any way connected with or related to the Litigation or Opp's employment with the City.
7. No Pending Claims. Opp and the City specifically represent that, other
than the Litigation, there are no pending complaints, grievances or charges against one
another with any state or federal court, any local, state or federal agency, or any
arbitrator, based on any event(s) occurring prior to the date of this Agreement, and that
to the extent either party has any such complaints, grievances or charges pending,
within five (5) days of the date of execution of this Agreement, the party shall take all
steps necessary to effect the dismissal with prejudice or the withdrawal of such
complaints, claims, charges, grievances, accusations, or proceeding of any kind
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field/pleadings/Opp/Settlement Agreement
whatsoever. This Section has no application to Franklin Opp v. City of Huntington
Beach, Huntington Beach Personnel Commission, and Police Chief Ronald Lowenberg,
Orange County Superior Court Case No. 79 56 45, Appeal No. G025947.
8. Waiver of Unknown Claims. It is understood and agreed that the Parties'
releases set forth the above extend to all claims of every kind, nature and description
whatsoever, known or unknown, and any and all rights under provisions of the Civil
Code section 1542 are hereby waived. The Parties expressly acknowledge that they
are familiar with and expressly waive and relinquish every right or benefit they have or
may have under Civil Code section 1542 which reads as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him, must
have materially affected his settlement with the debtor."
9. No Future Employment: Opp shall not seek future employment with any
department or division of the City of Huntington Beach ever again.
10. Entire Agreement. This Agreement contains the sole, complete
and entire agreement and understanding of the Parties concerning the matters
contained in this Agreement and may not be altered, modified or changed in any
manner except by a writing signed by the Parties and acknowledging it as an
alteration, modification, or change of this Agreement. None of the Parties is
relying on any representation other than those expressly set forth in this
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field/pleadings/Opp/Settlement Agreement
Agreement. All prior discussions and negotiations have been and are merged
and integrated into, and superceded by, this Agreement.
11. Warranties. The Parties, and each of them, warrant: (i) that no
other person or entity had or has or claims any interest in any of the claims,
demands, causes of action, obligations, damages, or liabilities covered in this
Agreement; (ii) that they, and each of them, have the sole right and exclusive
authority to execute this Agreement; and (iii) that they have not sold, assigned,
transferred, conveyed or otherwise disposed of any claim, demand, cause of
action, obligation, damage or liability covered in this Agreement.
12. Successors and Assigns. The terms and provisions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the Parties, and each of them.
13. Counsel. In executing this Agreement, each of the Parties
acknowledges that they have consulted with and have had the advice and
counsel of attorneys duly licensed to practice law in all the courts of the State of
California.
14. Further Assurances. Each of the Parties shall promptly execute, as
appropriate, and deliver to the other party any and all additional papers,
documents and other assurances, and shall promptly do any and all acts and
things reasonably necessary in connection with the performance of their
obligations and agreements as expressed in this Agreement.
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field/pleadings/Opp/Settlement Agreement
15. Headings. The headings of this Agreement are for reference
purposes only and shall not limit or define the meaning of the provisions of this
Agreement.
16. Interpretation. This Agreement is made and entered into in the
State of California and shall in all respects be interpreted, enforced and governed
under the laws of the State of California. Each party has cooperated in the
drafting and preparation of this Agreement; hence, this Agreement shall not be
construed against any particular party.
17. Notices. Any notification or communication between the Parties
relating to this Agreement shall be made to the respective party's attorneys of
record, as follows:
If to Opp:
Gregory Petersen, Esq.
Ted Conley, Esq.
Castle, Petersen & Krause LLP
4675 MacArthur Court, Suite 1250
Newport Beach, CA 92660
(949) 417-5600
If to the City:
Jennifer McGrath, City Attorney
Scott Field, Assistant City Attorney
2000 Main Street
Huntington Beach, CA 92648
(714) 536-5555
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field/pleadings/Opp/Settlement Agreement
18. No Admission. Nothing contained in this Agreement shall be
construed as an admission of liability by any party. Each party acknowledges
that the other party denies any liability.
19. Costs. The Parties agree that they will each bear their own costs
and attorney's fess in connection with this Agreement.
20. Effective Date. This Agreement shall become effective when, and only
when, all of the following have occurred: (a) all parties and their counsel have signed
this Agreement; (b) counsel for the parties have executed the Joint Application attached
hereto as Exhibit A; and (c) the Court of Appeal has granted the Stipulated Reversal
and issued the remittitur ordering the Superior Court to vacate the judgment in Case No.
748927 and dismiss the action with prejudice.
21. Counterparts. This Agreement, consisting of /3pages, including
signatures and 12 pages of Exhibits, may be signed in counterparts. When this
Agreement has become effective as provided above, each counterpart shall be deemed
an original, and when taken together with the other signed counterparts, shall constitute
one agreement. A party may deliver a signed counterpart by fax transmission, but any
party doing so shall also immediately mail a signature page with an ink -original
signature.
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field/pleadings/Opp/Settlement Agreement
Nov 16 2004 16:02 Castle, Petersen a Krause 949-417-5650
p.13
IN WITNESS WHEREOF, the Parties have executed this Agreement so that it
may be effective as of t ate first written above.
FRA KLIN E. Opp
CITY OF HUNTINGTON BEACH
By:
PENELOPE CULBRETH-GRAFT,
CITY ADMINISTRATOR
RONALD E. LOWENBERG
JON W. ARNOLD
MICHAEL UBERUAGA
WILLIAM OSNESS
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field/pleadings/OpplSettlement Agreement
IN WITNESS WHEREOF, the Parties have executed this Agreement so that it
may be effective as of the date first written above.
FRANKLIN E. OPP
CITY OF HUNTINGTON BEACH
By:
PENELOPE CU LBRETH-G RAFT,%
CITY ADMINISTRATOR
RONALD E. LOWENBERG
JON W.ARNOLD
MICHAEL UBERUAGA
WILLIAM OSNESS
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field/pleadings/Opp/Settlement Agreement
IN WITNESS WHEREOF, the Parties have executed this Agreement so that it
may be effective as of the date first written above.
FRANKLIN E. OPP
CITY OF HUNTINGTON BEACH
By:
PENELOPE CULBRETH-GRAFT,
CITY ADMINISTRATOR
&JW,7.j( "
ONALD E. L WENBERG 67
JON W.ARNOLD
MICHAEL UBERUAGA
WILLIAM OSNESS
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field/pleadings/Opp/Senlemem Agreemem
IN WITNESS WHEREOF, the Parties have executed this Agreement so that it
may be effective as of the date first written above.
FRANKLIN E. OPP
CITY OF HUNTINGTON BEACH
PENELOPE CULBRETH-GRAFT,
CITY ADMINISTRATOR
RONALD E. LOWENBERG
JONIW.ARNOLD
MICHAEL UBERUAGA
WILLIAM OSNESS
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field/pleadings/Opp/Senlement Agreemem
IN WITNESS WHEREOF, the Parties have executed this Agreement so that it
may be effective as of the date first written above.
FRANKLIN E. OPP
CITY OF HUNTINGTON BEACH
M
PENELOPE CULBRETH-GRAFT,
CITY ADMINISTRATOR
RONALD E. LOWENBERG
JON W. ARNOLD
WILLIAM OSNESS
-1 2-
field/pleadings/Opp/Senlement Agreement
IN WITNESS WHEREOF, the Parties have executed this Agreement so that it
may be effective as of the date first written above.
FRANKLIN E. OPP
CITY OF HUNTINGTON BEACH
By:
PENELOPE CULBRETH-GRAFT,
CITY ADMINISTRATOR
RONALD E. LOWENBERG
JON W. ARNOLD
MICHAEL UBERUAGA
WILLIAM OSNESS
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field/pleadings/Opp/Settlement Agreement
APPROVED AS TO SUBSTANCE AND FORM:
For Opp:
CASTLE, PETERSEN & KRAUSE, LLP
i' '^ f�`
By:
GREGORY PETERSEN, ESQ.
For City of Huntington Beach, Ronald E. Lowenberg
Jon W. Arnold, Roger Parker,
Michael Uberuaga and William Osness:
JENNIFER McGRATH, City Attorney
SCOTT FIELD, Assistant City Attorney
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tieldrPieadings`OppiSeulement Agreemem
APPROVED AS TO SUBSTANCE AND FORM:
For Opp:
CASTLE., PETERSEN & KRAUSE, LLP
BV
RICHAR`D ASTLE, ESQ.
For C4 of Huntington Seadi, Ronald E. Loweriberg
Jon W. Arnold, Roger P"er,
JENNIFER McGRATM, City Attorney
By:,
SCOTT FIELD, Assent City {1ftorney
_I3_
fiek#;�I�adusgsty'4a�slesrtrnt Agrtemoea+
APPROVED AS TO SUBSTANCE AND FORM:
For Opp:
CASTLE, PETERSEN & KRAUSE, LLP
0
GREGORY PETERSEN, ESQ.
For City of Huntington Beach, Ronald E. Lowenberg
Jon W. Arnold, Roger Parker,
Michael Uberuaga and William Osness:
JENNIFER McGRATH, City Attorney
By:
SCOTT FIELD, Assistant City Attorney
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field/pleadings/Opp/Settlement Agreement
EXHIBIT A
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field/pleadings/Opp/Settlement Agreement
4th Civil No. G030601
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
FRANKLIN E. OPP,
Plaintiff, Respondent, and Cross -Appellant
VS.
CITY OF HUNTINGTON BEACH, et al.,
Defendants, Appellants, and Cross -Respondents.
Appeal From The Orange County Superior Court
Honorable James Brooks, Judge
Orange County Superior Court Case No. 748927
JOINT APPLICATION AND STIPULATION FOR REVERSAL
OF JUDGMENT AND REMAND OF ACTION TO SUPERIOR
COURT FOR DISMISSAL WITH PREJUDICE; MEMORANDUM
OF POINTS AND AUTHORITIES
MOORE & RUTTER
Neal Moore, State Bar No. 49666
2120 Main Street, Suite 250
Huntington Beach, California 92648
Telephoner (714) 374-3333
JONES & MAYER
Paul R. Coble, State Bar No. 128173
3777 North Harbor Boulevard
Fullerton, California 92835
Telephone: (714) 446-1400
GREINES, MARTIN, STEIN & RICHLAND LLP
Alison M. Turner, State Bar No. 116210
5700 Wilshire Boulevard, Suite 375
Los Angeles California 90036-3697
Telephone: (310) 859-7811
Attorneys for Defendants, Appellants, and Cross -Respondents
CITY OF HUNTINGTON BEACH, et al.
CASTLE, PETERSEN & KRAUSE, LLP
Gregory G. Petersen, State Bar No. 77744
Ted D. Conley, State Bar No. 202519
4675 MacArthur Court, Suite 1250
Newport Beach, California 92660
Telephone: (949) 417-5610
Attorneys for Plaintiff, Respondent and Cross -Appellant
FRANKLIN E. OPP
4th Civil No. G030601
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
FRANKLIN E. OPP,
Plaintiff, Respondent, and Cross -Appellant
vs.
CITY OF HUNTINGTON BEACH, et al.,
Defendants, Appellants, and Cross -Respondents.
Appeal From The Orange County Superior Court
Honorable James Brooks, Judge
Orange County Superior Court Case No. 748927
JOINT APPLICATION AND STIPULATION FOR REVERSAL
OF JUDGMENT AND REMAND OF ACTION TO SUPERIOR.
COURT FOR DISMISSAL WITH PREJUDICE; MEMORANDUM
OF POINTS AND AUTHORITIES
As part of the settlement of this case, plaintiff, respondent, and
cross -appellant Franklin E. Opp ("plaintiff') and defendants, appellants,
and cross -respondents City of Huntington Beach, Michael Uberuaga,
William Osness, Ronald Lowenberg, and Jon Arnold (collectively,
"defendants"), hereby jointly request this Court to grant this application and
issue an opinion:
1
1. reversing the judgment entered in favor of Franklin E. Opp on
February 21, 2002, including the order awarding him attorney's fees
entered on July 2, 2002, in the case of Opp v. City of Huntington Beach, et
al., Orange County Superior Court Case No. 748927;
2. directing the Superior Court to vacate and set aside the
judgment and attorney fee order and dismiss the action with prejudice on
remand; and
3. directing the parties to bear their own costs on appeal.
The parties further request that the Court issue its opinion and deem
it to be final at the earliest time the Court finds appropriate.
The purpose of this Joint Application and Stipulation for Reversal of
Judgment is to place the parties in the same position they would occupy if
the parties had settled prior to appeal and before the trial and entry of
judgment.
The effectiveness of the settlement is conditioned on this Court's
granting the relief requested in this application.
This Court has the authority to grant the parties' request pursuant to
Code of Civil Procedure section 128, subdivision (a)(8) because there is no
reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal, and the parties' reasons for requesting
reversal outweigh any erosion of public trust that might result from the
nullification of a judgment and any risk that the availability of stipulated
reversal would be a disincentive for pretrial settlement.
2
This Joint Application and Stipulation for Reversal of Judgment, is
made for and based on the reasons stated herein, and in the attached
Memorandum of Points and Authorities.
DATED: November ` gg , 2004
CASTLE, PETERSEN & KRAUSE, LLP
Gregory G. Petersen
Ted D. Conlev
By:
Ted D. Co`ff y
Attorneys for Plaintifff. Respondent, and Cross -
Appellant FRANKLIN E. OPP
DATED: November, 2004
MOORS & RUTTER
Neal Moore
JONES & MAYER
Paul R. Coble
GREINES, MARTIN, STEIN & RICHLAND LLP
Alison M. Turner
By: ;EWE t4j
Alison M. Turner
Attorney for Defendants, Appellants, and Cross -
Respondents CITY OF HUNTINGTON BEACH,
MICHAEL UBERUAGA, WILLIAM OSNESS,
RONALD LOWENBERG, AND JON ARNOLD
3
MEMORANDUM OF POINTS AND AUTHORITIES
I. BACKGROUND.
Plaintiff Franklin E. Opp, a former detention officer in the
Huntington Beach jail and a former reserve police officer, brought this
action for damages against the City of Huntington Beach, his supervisors,
and other officials. His principal challenge was to disciplinary actions in
1993-1994 and to his removal from the reserve officer program in 1997.
He prevailed in a trial by jury on procedural and substantive due process
claims pursuant to 42 U.S.C. section 1983, a compensation claim under the
Fair Labor Standards Act, and a wrongful termination claim under state
law. He was awarded damages, including punitive damages against the
individual defendants, and attorney fees, for a total sum of $833,801.07.
Defendants appealed both the judgment and the fee award. Plaintiff
appealed an aspect of the fee award.
The appeals were briefed. Meanwhile, this Court reached a decision
in another appeal concerning plaintiff and his employer —Opp v. City of
Huntington Beach Personnel Commission, Case No. G025947 ("Opp II).
In that case, plaintiff contended he had been wrongfully terminated from
employment as a detention officer. The trial court agreed with him, but this
Court did not and reversed, holding that the City of Huntington Beach had
not abused its discretion in terminating plaintiff's employment. (See Opp I
Opinion.)
The Court then ordered supplemental briefing in this appeal
regarding the impact of the decision of Opp I on the issues raised. Opening
letter briefs were filed. The time to file responsive letter briefs was tolled
1!
pending court -ordered mediation in this Court's judicial settlement
program. This was the second mediation ordered by the Court during this
appeal. This time, following extensive discussions in the context of the
settlement program, the parties reached agreement on the terms of a
settlement fully disposing of all claims.
Pursuant to the settlement, the parties have agreed to take such
action as is necessary to effect the dismissal of the appeal and the action
without a final judgment being entered. To carry out this agreement, they
hereby stipulate and request that judgment be reversed and vacated with
directions to dismiss the action with prejudice as moot. (See, e.g., County
of Fresno v. Shelton (1998) 66 Cal.AppAth 996, 1005 [settlement
"commonly results in mootness"].) The parties recognize that if
defendants' appeal were to proceed to conclusion, there is a possibility that
the judgment could be reversed, at least in part.
The parties have further agreed that a stipulated reversal is a
condition of the settlement.
II. A STIPULATED REVERSAL OF JUDGMENT IS
WARRANTED.
A. The Governing Law.
Pursuant to Code of Civil Procedure section 128, subdivision (a)(8),
an appellate court has the authority to reverse or vacate a trial court
judgment when the parties stipulate to such action and the court finds that:
(A) There is no reasonable possibility that the
interests of nonparties or the public will be adversely affected
by the reversal
5
(B) The reasons of the parties for requesting
reversal outweigh the erosion of public trust that may result
from the nullification of a judgment and the risk that the
availability of stipulated reversal will reduce the incentive for
pretrial settlement.
(Code Civ. Proc., § 128, subd. (a)(8).)
Because these conditions are met in this case, this Court has the
authority to grant, and should grant, the parties' joint request for a reversal
of the judgment.
B. There Is No Reasonable Possibility That The Interests Of
Nonparties Or The Public Will Be Adversely Affected By
A Stipulated Reversal.
There is no evidence in this case of identifiable nonparties for whom
the judgment might be of value. However, the judgment does involve a
government body and public officials. Further, it involves punitive
damages awarded against public officials. Even so, a stipulated reversal in
this case would not have consequences adversely affecting the public.
First, this is an employment case involving an internal dispute
between an employee and his supervisors on a set of unique, case -specific
facts; it is not a case involving excessive force, for example, where reversal
might well implicate the constitutional rights of ordinary citizens vis-a-vis
government to the extent such a reversal might appear to condone official
misconduct against those citizens. Moreover, the case deals with facts and
circumstances occurring nearly ten (10) years ago. Many of the City
administrators who participated in the events surrounding the case are no
longer with the City.
rZ
Second, the continued viability of the punitive damages award is
uncertain, given the findings of the Appellate Panel in Opp I regarding the
April 17, 1994 incident, should this Court conclude those findings impact
this appeal.
The public interest is actually advanced by cutting short the appeal
process. While the considerable expense of briefing, at least at this stage of
the appeal process, has already been incurred, the public interest is
advanced if taxpayers may be spared the costs of the Court's
decisionmaking should the appeal process resume; in a case of this size and
complexity, such costs are likely to be substantial whether or not the end
result is a determination that reversible error occurred.
Further, this case has been hard fought from the beginning;
presumably it would continue to be, if not ended now. Unclogging court
dockets and saving further legal expense by ending matters now can only
serve the public interest, particular where one of the parties is a public
entity that has better uses for its funds than litigation expenses.
Finally, any historical interest the public may have in the operation
of City business would not be adversely affected by a reversal. The
superior court pleadings, rulings, and transcripts will remain public records.
The fact that a judgment is reversed and vacated does not preclude the
public from finding out that a judgment had at one point been entered.
7
C. The Reasons For Requesting Reversal Outweigh Any
Erosion Of Public Trust That May Result From The
Nullification Of A Judgment And The Risk That The
Availability Of Stipulated Reversal Will Reduce The
Incentive For Pretrial Settlement.
1. The parties' reasons.
In addition to the parties' shared interest in eliminating further
expenditure, the individual defendants have strong personal reasons for
requesting the judgment be vacated. First, a jury has found them liable for
violating plaintiff s due process rights by their employment decisions, and
has imposed a punitive damages award, a result they believe is legally
flawed, for all the reasons set forth in defendants' briefs. The dismissal of
this appeal, leaving the judgment intact, might be taken as their admission
that the verdict and resulting judgment were proper, even where the appeal
is dismissed as part of a settlement. This could negatively impact the
individual defendants' careers. Additionally, there are potential financial
repercussions associated with having a substantial adverse judgment left
standing against them.
The City also has a legitimate reason for seeking vacation of the
judgment. After imposing liability on the individual defendants for their
treatment of plaintiff, the jury went on to find that certain (unspecified)
City policies, customs or practices were unlawful, and that the City
wrongfully terminated plaintiff in violation of (unspecified) public policy.
For reasons discussed in the briefs, the City believes it is entitled to
judgment as a matter of law. Again, dismissing the appeal while leaving the
M.
judgment intact, could be viewed as an admission that the City, as a matter
of practice and policy, violates the rights of its employees, and some future
plaintiff might attempt to use the judgment against the City as "evidence of
such "practice and policy." The City is willing to forego the chance to
obtain vindication, for itself as well as its employees, as long as the
judgment is reversed to eliminate the risk of this occurring.
For his part, plaintiff has reason to end a decade -long dispute with
his former employer and to agree to reversal because he perceives the risk
of reversal in any case. By settling his case, he has the certainty of some
compensation and an end to litigation costs. He also can move on with his
life.
2. Public trust.
It is highly unlikely that a stipulated reversal will result in any
erosion of public trust on the facts of this case. The parties' agreement to
request stipulated reversal was negotiated under the auspices of the judicial
settlement program. "[P]ublic trust in the courts is ... enhanced by
settlements of pending appeals and related litigation." (Union Bank of
California v. Braille Inst. ofAmerica, Inc. (2001) 92 Cal.AppAth 1324,
1331.)
Further,
Lawyers have a duty to resolve disputes on appeal and in the
trial courts if it is possible and appropriate. Public trust in the
legal profession and the judiciary is advanced by
settlements ... premised on an actual judicial error in the trial
court.
(In re Rashad H. (2000) 78 Cal.AppAth 376, 381.)
Vol
A stipulated reversal helps ensure that the public record accurately
reflects both sides' recognition that the judgment against defendants has the
potential of being reversed on appeal. At the same time, a stipulated
reversal will not erase the judgment from the record or hide it from the
public; it simply reflects the parties' agreement that the judgment should
have no lasting legal effect because defendants gave up the right to seek
reversal in favor of settlement. Only in that sense is a stipulated reversal a
"nullification" of the judgment. Erosion of public trust is not a real risk
under such circumstances and in any event is outweighed by the parties'
reasons for agreeing to settlement on these terms.
3. Pre-trial settlement.
Granting a stipulated reversal in this case will not reduce the
incentive for pre-trial settlement. The greatest incentive to settle cases prior
to trial is to avoid the effort, cost, and risks of trial and potential appeal,
and, indeed, to avoid the substantially more costly settlements made at the
post -trial stage of litigation, as this case serves to illustrate.
The City defends against numerous claims every year. A stipulated
reversal in this case will not chill its incentive to settle cases with more than
a minimal potential for liability before trial in order to avoid the risk of
more substantial costs down the line.
10
III. CONCLUSION
For the foregoing reasons, the parties respectfully ask this Court to
grant their request for stipulated reversal of the judgment under Code of
Civil Procedure section 1.28, subdivision (a)(8).
DATED: NovemberL'- , 2004
CASTLE, PETERSEN & KRAUSE, LLP
Gregory G. Petersen
Ted D. Conley
By:
Ted D. Goriley
Attorneys for Plaintiff, Respondent, and Cross -
Appellant FRANKLIN E. OPP
DATED: November 1�5- , 2004
MOORE & RUTTER
Neal Moore
JONES & MAYER.
Paul R. Coble
GREINES, MARTIN, STEIN' & RICHLAND LLP
Alison M. Turner
By: jr - �� 4AA1oZ11
Alison M. Turner
Attorney for Defendants, Appellants, and Cross -
Respondents CITY OF HUNTINGTON BEACH,
MICHAEL UBERUAGA, WILLIAM OSNESS,
RONALD LOWENBERG, AND JON ARNOLD