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HomeMy WebLinkAboutTomas M. Gogue, III - Settlement and Release Agreement - 2026 SETTLEMENT AND RELEASE AGREEMENT Tomas M. Gogue III v. City of National City and SDG&E San Diego County Superior Court, Central Division Case No. 37-2024-00031347-CU-PO-CTL This Settlement Agreement and Release Agreement ("Agreement") is entered into by Plaintiff Tomas M. Gogue, III ("Plaintiff') and Defendants City of National City ("City") and San Diego Gas & Electric Company ("SDG&E"). Plaintiff and City and SDG&E are collectively referred to as "the Parties." 1.0 Recitals 1.1 On or about July 3, 2024, Plaintiff filed his Complaint against the City of National City and Does 1 to 20, in the matter of Tomas M. Gogue, III v. City of National City, et al., San Diego County Superior Court, Case Number 37-2024- 00031347-CU-PO-CTL and on August 13,2024 Plaintiff filed a First Amended Complaint naming San Diego Gas & Electric Company as a defendant. On October 16, 2024, the City filed a Cross-Complaint against SDG&E, and on June 30,2025,the City filed a First Amended Cross-Complaint against SDG&E. The complaint, amended complaint, cross-complaint, and amended cross- complaint are referred to hereinafter as the "Action". 1.2 In the Action, Plaintiff alleges that, on or about September 20, 2023, Plaintiff was riding his e-bicycle in the eastbound lane of Valley Road near its intersection with Sweetwater Road in the City when he hit a depression on the paved street and fell. Plaintiff alleges the road was owned and controlled by the City and SDG&E owned and controlled a utility cover in the road. ("the Incident.") In the cross-complaint and amended cross-complaint, the City alleges causes of action arising out of the Incident against SDG&E for equitable and express indemnity, and apportionment of fault and contribution. 1.3 The Parties now desire to settle and resolve all aspects of the issue giving rise to the Action between Plaintiff and City and SDG&E. The Parties acknowledge and agree that this Agreement was bargained for and is the result of arms-lengths negotiations between the Parties and their respective counsel of record, and as the result of a mediation held on January 14, 2026. All parties represent that they understand the meaning and effect of this Agreement,that they are fully competent to enter into it, and that they are doing so knowingly and voluntarily without coercion or duress. 2.0 Settlement Terms 2.1 In full and final settlement of the issues giving rise to the Action, and with respect to any and all damages to Plaintiff arising out of the Incident, as against City and SDG&E, the City and SDG&E agree to pay Plaintiff$75,000, split equally between City and SDG&E ("Settlement Funds") in exchange for Plaintiff filing a dismissal with prejudice with respect to City and SDG&E in full and final settlement and a waiver of all claims asserted, or that could have been asserted, known or unknown, suspected or unsuspected, against the City in the Action. The City shall make a payment in the amount of $37,500 and SDG&F shall make a payment in the amount of$37,500. Both payments shall be made to: "CaseyGerry LLP In Trust For Tomas Gogue"by check pursuant to instructions to be provided by Plaintiffs counsel. Payment shall be made no later than thirty (30) days after the date of the last signature on this Agreement. 2.2 In consideration of the payments and obligations described herein,Plaintiff on his behalf, and all other persons or entities who may make any claim on Plaintiffs behalf or who may take any interest in the matter herein, do release and forever discharge the City, their agents, employees, heirs, assigns, representatives, predecessors, successors, partners, joint venture partners, parent companies, subsidiary companies,affiliates,divisions,directors,officers, members, shareholders, attorneys, and insurance carriers, from any and all claims, demands, rights, and causes of action that have arisen or hereafter may arise out of the Incident giving rise to this Action. The Parties intend that with respect to the matters released herein, this is the broadest release allowable under California law, and is intended to include all damages that could be envisioned to arise from the allegations of the Action. 2.3 Plaintiff agrees, no later than five (5) days after confirming receipt of the Settlement Funds, to file a Request for Dismissal with prejudice of his Complaint in this Action against the City and SDG&E. 2.4 In further consideration of the payments and obligations described herein, the City on its behalf, and all other persons or entities who may make any claim on the City's behalf or who may take any interest in the matter herein, do release and forever discharge SDG&E, its agents, employees, heirs, assigns, representatives, predecessors, successors, partners, joint venture partners, parent companies, subsidiary companies,affiliates,divisions,directors,officers, members, shareholders, attorneys, and insurance carriers, from any and all claims, demands, rights, and causes of action that have arisen or hereafter may arise out of the Incident giving rise to this Action. The Parties intend that with respect to the matters released herein, this is the broadest release allowable under California law, and is intended to include all damages that could be envisioned to arise from the allegations of the Action. 2.5 The City agrees, no later than five (5) days after Plaintiffs filing of a Request for Dismissal with prejudice of his Complaint in this Action against the City and SETTLEMENT AND RELEASE AGREEMENT Tomas Gogue,HI v. City of National City and SDG&E 2 SDG&E, to file a Request for Dismissal with prejudice of its Cross-Complaint in this Action against SDG&E. 2.6 Each party shall bear their own costs and attorney's fees. 2.7 Plaintiff agrees to resolve all bills, costs, claims, liens, and accounts payable asserted against Plaintiff or the City or SDG&E, or the City's or SDG&E's attorneys, by any person or entity arising from the Incident giving rise to the Action. This shall include, but not be limited to, claims by any healthcare providers, government entities, and law firms. Plaintiff agrees to indemnify, hold harmless and defend the City and SDG&E, their attorneys, and their agents and employees, and all other persons, firms, and corporations from and against all such bills,costs, claims,liens, and accounts payable. 2.8 It is expressly understood and acknowledged by Plaintiff that by entering into this agreement,the City and SDG&E do not intend to shift responsibility to the California Medical Assistance Program, ("MediCal") for medical items or services which may be related to Plaintiff's injuries arising out of the Incident. No portion of the settlement amount is being specifically allocated for future medical treatment. Plaintiff has elected to receive the Settlement Amount without the benefit of a formal allocation to be set aside to pay for future medical benefits related to the Incident,and the parties acknowledge that Medi- Cal has no provision for recovery for future medical treatment in any event. Absent further guidance by Medi-Cal,through California Department of Health Care Services or other applicable Regulations, Rules or Memoranda, no legal basis remains to withhold the lump sum distribution and the City has completed the obligation to consider Medi-Cal's interest with this payment that forecloses any reimbursement claim(s) for items and services related to the claim made after the date of this agreement. The Parties acknowledge that no settlement, judgment, or award in any action or claim by a beneficiary to recover damages for injuries, where Medi-Cal has an interest,shall be deemed final or satisfied without first giving Medi-Cal notice and a reasonable opportunity to perfect and to satisfy Medi-Cal's lien. Cal.Welf. & Inst. Code §14124.76(a). With regard to this settlement, Plaintiffs attorney has represented that he has notified Medi-Cal and will satisfy such lien through this settlement. Further, Plaintiff agrees to defend and indemnify the City and SDG&E, and their attorneys, if any action is instituted against it by Medi-Cal for any such lien payment or reimbursement. 2.9 Plaintiff is responsible for all tax liability that does or may result from the payment of the Settlement Funds. Plaintiff acknowledges and agrees that the City and SDG&E have made no representations as to the taxability of the Settlement Funds. Plaintiff agrees to defend,indemnify, and hold harmless the SETTLEMENT AND RELEASE AGREEMENT Tomas Gogue,III v. City of National City and SDG&E 3 City and SDG&E, their attorneys, their agents, and their employees from any and all claims or damages of every kind and character which may ever be asserted by any stranger or third party to this Agreement relating to any claims that the City or SDG&E should have withheld any sums from the Settlement Funds. Plaintiff further agrees not to seek or make any claim or claims against the City or SDG&E for contribution, indemnity, compensation, recompense, damages, costs, or penalties if a determination is made that the Settlement Funds or any portion thereof should not have been treated as non-taxable. In addition, Plaintiff understands and agrees that the City and SDG&E have no duty to defend against any claim or assertion that the Settlement Funds or any portion thereof should be treated as taxable income, nor any obligation to appeal any determination that said sum or any portion thereof should be treated as taxable income. 3.0 Waiver of Civil Code Section 1542 3.1 The Parties,with respect to the releases in this Agreement,waive all rights given by Civil Code section 1542,which is quoted below: "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." The Parties intend to release and discharge all claims, demands, rights, and causes of action of any nature even though some of such damages may not have shown themselves at the time of acceptance of this Agreement. 4.0 Confidentiality as to SDG&E 4.1 Plaintiff and SDG&E expressly acknowledge and agree that they will keep the terms and conditions of this Agreement absolutely confidential and shall not disclose them to any third party, except as provided herein. Plaintiff and SDG&E agree that,except as required by law,statute,or rule of court,they will not disclose or discuss the terms of this Agreement, including, but not limited to, its monetary terms, to any persons or parties other than to an attorney or financial/tax consultant. Plaintiff and SDG&E further agree not to instigate, participate in, engage in disclosing or publicizing to, or respond to any media inquiries regarding the case (including newspaper, periodical, television, radio, internet, and social media), nor publish the terms of this Agreement,including the identity of the Parties, on any social media accounts and/or websites. The Parties acknowledge that the terms of this Agreement are subject to disclosure SETTLEMENT AND RELEASE AGREEMENT Tomas Gogue,Ill v. City of National City and SDG&E 4 pursuant to the California Public Records Act. Plaintiff and SDG&E agree to maintain the terms,but not the fact of the settlement,as confidential as possible under California law. Other than the following four exceptions, Plaintiff and SDG&E may say either that the matter has been satisfactorily resolved or that the case is settled, and that the terms are confidential. Plaintiff and SDG&E may discuss terms: 1. With only those persons with a need to know; 2. With attorneys, accountants, tax advisors, financial advisors, or any government agency, entity, or person so long as they are reasonably required by law; 3. If there is a valid court order for testimony at trial or deposition so long as all other affected Parties receive reasonable notice and the opportunity to object; or 4. If a modification to the confidentiality is agreed upon in writing and signed by the parties affected. The confidentiality provisions set forth in this Section 4.1 shall not apply to the City of National City. 5.0 Enforceability 5.1 The Parties acknowledge and agree that the San Diego County Superior Court, Central Division,and in particular the San Diego County Superior Court Judge assigned to this Action, Honorable Evan P. Kirvin, or his successor, retains jurisdiction over this Agreement. 6.0 No Admission of Liability 6.1 The Parties acknowledge and agree that this Agreement is in settlement of a disputed claim, and no party admits liability or the sufficiency of any claim, cause of action,or allegation.This Agreement does not constitute an admission by any party. 7.0 General Provisions 7.1 This Agreement constitutes the entire understanding of the Parties and supersedes all prior agreements. 7.2 This Agreement may not be modified without the written consent of each of the Parties. 7.3 This Agreement shall be governed in all respects under all applicable federal and California laws. SETTLEMENT AND RELEASE AGREEMENT Tomas Gogue,HI v. City of National City and SDG&E 5 7.4 The Parties acknowledge and agree that all Parties participated in the drafting of this Agreement and waive any rule of contract interpretation which requires or permits ambiguities in the language or meaning of this Agreement to be construed against the drafting party. 7.5 If any portion of this Agreement is deemed void,unenforceable, or contrary to public policy or any law, the remainder of this Agreement shall remain in full force and effect. 7.6 This Agreement may be executed in counterparts which shall be considered together as one Agreement. A fax signature, photocopied signature, or electronic signature shall be deemed the same as an original signature. 7.7 This Agreement shall be binding upon, and inure to the benefit of the Parties, including any other respective directors,officers,agents,shareholders,partners, members, servants, employees, attorneys, affiliates, representatives, heirs, executors, executrix, conservators, successors, assigns, and insurers. 7.8 Each undersigned acknowledges and agrees they are authorized to enter into this Agreement. Dated: Tomas M. Gogue III,Plaintiff Dated: 2 — Z Y —Z�( City of National City Dated: 2/12/2026 ]einif e� i Haidez San Diego Gas &Electric Company SETTLEMENT AND RELEASE AGREEMENT Tomas Gogue,III v. City of National City and SDG&E 6