SETTLEMENT AGREEMENT

Transcription

1 SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT ( Agreement is entered into as of the last undersigned date (the Execution Date, by and between Stanley H. Epstein and Harriet P. Epstein (the Epsteins or Petitioners, on the one hand, and the City of Santa Monica (the City and Xerox State & Local Solutions, Inc. formerly known as ACS State and Local Solutions, Inc. ( Xerox (collectively Respondents, on the other hand. The Epsteins, the City, and Xerox shall each be referred to as a Party and collectively as the Parties. RECITALS WHEREAS, on or about June 8, 2011, the Epsteins filed a Verified Petition for Writ of Mandate and Complaint for Declaratory Relief in the Superior Court for the State of California, County of Los Angeles, Case No. BS132415, entitled Epstein, et al. v. The City of Santa Monica, et al. (the Lawsuit ; WHEREAS, the Lawsuit alleges that the Respondents violated California Vehicle Code by failing to provide to motorists reasons why their parking tickets were not canceled at an initial review level (Section 40215(a and/or following an administrative hearing and failed to deliver to such motorists the decision of the administrative hearing officer (Section 40215(c(6; WHEREAS, the Lawsuit named, in addition to the City and Xerox, Sheri E. Ross ( Ross as a Respondent; WHEREAS, on or about January 9, 2012, the Court dismissed the Lawsuit against Ross pursuant to the Epsteins request; WHEREAS, on April 2, 2012, ACS State and Local Solutions, Inc. filed a Certificate of Amendment with the State of New York, Department of State changing its name to Xerox State & Local Solutions, Inc.; and WHEREAS, the Parties desire to resolve the Lawsuit in its entirety. NOW THEREFORE, in consideration of the covenants and obligations recited herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: TERMS AND CONDITIONS 1. Respondents Obligations Regarding 302 and 303 Letters 1.1 Respondents warrant and represent that they have used their best efforts to determine that between January 1, 2009, through June 30, 2012, they sent approximately 9, Initial Review Results letters to persons who contested their parking citations ( 302 Motorists. Respondents warrant and represent that they have used their best efforts to determine that between January 1, 2009, through May 23, 2011, they sent approximately 9, Initial Review Results letters to persons who contested their parking citations ( 303 Settlement Agreement Page 1 of 9

2 Motorists. An exemplar of a 302 letter and an exemplar of a 303 letter are attached hereto as Exhibit 1. Respondents further warrant and represent that they have in their possession the names and addresses of the 302 and 303 Motorists to the extent that they were provided to Respondents by the 302 and 303 Motorists or otherwise available to Respondents from a thirdparty source. Should the Respondents locate any additional 302 or 303 Initial Review Results letters after the execution of this Agreement, the persons to whom those 302 and 303 Initial Review Results were mailed shall be respectively considered 302 Motorists and 303 Motorists and the Respondents shall comply with all obligations as to them herein. 1.2 Within 30 days after the Effective Date, which is defined in paragraph 5.1 below, the Respondents shall deliver to each 302 Motorist a copy of the letter and form in which to respond attached in Exhibit 2 of this Agreement (Notice Letter #1, and deliver to each 303 Motorist a copy of the letter and form in which to respond attached in Exhibit 2 of this Agreement ( Notice Letter #2. Notice Letter #1 and Notice Letter #2 shall reference the citation number, the date and time that the citation was issued, the location of the violation, and a description of the type of violation (e.g., red zone, failure to display placard, to the extent such information is available in the etims system. Respondents warrant and represent that the etims system regularly captured information pertaining to the citation number, date, time, location, and type of citation since January 1, Respondents further warrant and represent that they do not believe that said information is missing from the etims system except in limited circumstances (e.g. clerical or officer error. Respondents shall provide a self-addressed envelope with Notice Letter #1 and Notice Letter #2. However, Respondents shall not be required to comply with the requirements in paragraph 1.2 with respect to (a any 302 or 303 Motorist who received a 396 letter described in paragraph 2.1 below and to whom Respondents caused to be sent a letter pursuant to paragraph 2.2 below, or (b any 302 or 303 Motorist who had his or her parking citation cancelled following either an administrative hearing or appeal to the Superior Court. 1.3 For each 302 or 303 Motorist who completes and submits the response form described in paragraph 1.2 within 30 days after Notice Letter #1 and Notice Letter #2 are mailed, the City shall supply the 302 or 303 Motorist the reason which supports its decision upholding the citation ( New Review Letter together with a copy of the motorist s original request for an initial review of his or her parking citation ( Initial Review Request, to the extent that one was submitted and is available to Respondents, within 60 days of receipt. The New Review Letter shall address the basis as to why the 302 or 303 Motorist contested the citation. If the City decides to cancel the citation, any fines previously paid shall be returned to the 302 or 303 Motorist within 45 days. If a 302 or 303 Motorist submitted an Initial Review Request in writing, Respondents warrant and represent that they will use their best efforts to locate the Initial Review Request letters submitted by the 302 or 303 Motorists. If the Respondents cannot locate any underlying document or a copy of a 302 Motorist s or 303 Motorist s original request for an initial review, Respondents shall pay $25 to the motorist within 30 days after the end of the period for all response forms, but in no event shall Respondents be required to pay more than $10,000. If Respondents are unable to locate and provide any underlying document or copy of the original request for an initial review to more than 400 such motorists, the $10,000 shall be distributed to the affected motorists on a pro rata basis. However, if a court determines that the representations and warranties in paragraph 1.1 or contained in the Declaration of Florezel Jose, provided by Xerox and attached as Exhibit 3, were made in bad faith, then the $10,000 cap would not apply to Xerox, and Xerox will be solely responsible for any $25 payments to 303 Settlement Agreement Page 2 of 9

3 Motorists beyond $10,000. In such an event, the City will, upon inquiry from 303 Motorists regarding payment, direct them to an appropriate person at Xerox. Similarly, if a court determines that the representations and warranties contained in the Declaration of Donald Patterson, attached hereto as Exhibit 4, were made in bad faith, then the $10,000 cap would not apply to the City, and the City will be solely responsible for any $25 payments to 302 Motorists beyond $10,000. Xerox warrants and represents that the statements contained in the Declaration of Florezel Jose are accurate. The City warrants and represents that the statements contained in the Declaration of Donald Patterson are accurate. 1.4 Any 302 or 303 Motorist who timely elects to request an administrative hearing after receipt of the New Review Letter shall be entitled to all of the benefits set forth in Vehicle Code 40215(b and (c and 40230, including but not limited to the right to an administrative hearing and the right to a refund of any fines previously paid, if the hearing examiner cancels the citation. The deadline to request an administrative hearing shall be 21 calendar days following the date that the Respondents New Review Letter was mailed. Neither Respondents nor agents of either shall assert any statute of limitations defense based on the date that the original 302 or 303 letter was mailed to the motorist. 2. Respondents Obligations Regarding Hearing Review Letters 2.1 The Respondents warrant and represent that they have used their best efforts to determine that between January 1, 2009, through May 9, 2011, they sent approximately 2, letters to motorists who had requested and attended an administrative hearing and did not have their citations canceled ( Hearing Motorists. The Respondents further warrant and represent that to the best of their knowledge, after diligent inquiry with the appropriate hearing examiner and staff of both Respondents, a hearing examiner drafted and forwarded to the Respondents a written decision for each administrative hearing ( Hearing Decisions and that the 396 letter to the Hearing Motorists did not incorporate said Hearing Decisions. An exemplar of a 396 letter that was in use during the relevant time frame is attached hereto as Exhibit 5. The representations and warranties under this paragraph shall include all statements contained in the Declaration of Florezel Jose. 2.2 Within 60 days after the Effective Date, the Respondents shall deliver to each Hearing Motorist a copy of the letter attached hereto as Exhibit 6 ( Notice Letter #3. Each Notice Letter #3 shall incorporate into the body of the letter the respective Hearing Decision and inform the Hearing Motorist of the procedure for appealing the Hearing Decision to the Superior Court pursuant to Vehicle Code Each Hearing Motorist shall have the right, subject to the jurisdiction of the Superior Court, to appeal the Hearing Decision to the Superior Court pursuant to Vehicle Code If a Hearing Motorist appeals the Hearing Decision to the Superior Court pursuant to Vehicle Code 40230, neither Respondents nor agents of either shall assert any statute of limitations defense based on the date that the original 396 letter was mailed to the motorist. Settlement Agreement Page 3 of 9

4 3. Respondents Additional Obligations 3.1 Respondents represent and warrant that they both are currently complying and will continue to comply with all obligations set forth in Vehicle Code and 40230, including any future amendments thereto, whether existing as currently numbered or as renumbered in the future. With respect to the requirement to provide reasons pursuant to Vehicle Code 40215(a and 40215(c(6, the Respondents and the agents of each, including any hearing examiner working on behalf of the City, shall provide, at a minimum, a reason that addresses the basis as to why the motorist contested the citation. 3.2 The Epsteins may freely distribute any press release to any media outlet at their own discretion. The Parties shall not take any actions to dissuade or deter any media outlet from publishing any press release, advertisement, or statement and hereby consents to such publications, and if asked by a media outlet, the Parties shall inform the outlet that they have no objection to the publication. 3.3 Within 60 days after Respondents have completed all of their obligations pursuant to paragraphs 1.2, 1.3, 2.2, 3.1, and 3.2 above, each Respondent shall forward to the Epsteins attorney, a declaration under penalty of perjury from a person with the responsibility for overseeing compliance with said obligations stating that Respondents have made their best efforts to ensure compliance with said obligations. The City s declaration shall be executed by Don Patterson. Xerox s declaration shall be executed by Florezel Jose. 4. Payment to the Epsteins Attorneys and the Epsteins 4.1 Within ten business days after the Effective Date, Respondents shall pay Sixty- Five Thousand Dollars ($65, in attorney s fees and reimbursement of expenses to the Epsteins attorneys, Krause Kalfayan Benink & Slavens, LLP. Xerox agrees to pay Twelve Thousand Five Hundred Dollars ($12,500 to Stanley H. Epstein and Harriet P. Epstein which it shall provide to the Epsteins attorneys upon execution of this Agreement, to be held in trust until after the Effective Date. Payment shall be delivered to the address of the Epsteins attorneys as identified in paragraph 10.9 below. 5. Dismissal of Lawsuit 5.1 Within five business days after the Execution Date, the Parties shall jointly request that the Court dismiss the entire Lawsuit with prejudice as to the Epsteins and without prejudice as to the putative class. The Parties shall request that the Court retain jurisdiction over the Parties and to enforce the terms of the settlement pursuant to Code of Civil Procedure The request shall be made by submitting a Declaration of Eric J. Benink, Stipulation, and proposed Order of Dismissal substantially in the forms attached hereto as Exhibit 7. The Effective Date shall be the date that the Court enters the Order of Dismissal. Should the Court refuse to enter an Order of Dismissal in substantially the form set forth in Exhibit 7 at any time or by taking no action within six months following the date of filing the request for dismissal, this entire Agreement shall be null and void. The Epsteins further agree to request a dismissal with prejudice of Los Angeles Superior Court Case Number 11C02008, within five business days of the Execution Date to the extent it can be dismissed. Settlement Agreement Page 4 of 9

5 6. Release of Claims & Covenant Not to Sue. In consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt of which is acknowledged, the Parties, on behalf of themselves, their officers, directors, principals, owners, employees, agents, affiliates, attorneys, clients, predecessors, successors, parents, subsidiaries or related companies, and any persons or entities affiliated with them, promise, agree, and release as follows: 6.1 The Epsteins hereby release Respondents and each of their respective officers, directors, principals, owners, employees, agents, affiliates, attorneys, clients, predecessors, successors, parents, subsidiaries or related companies and any persons or entities affiliated with them (the Respondent Releasees from any and all claims, demands, damages, debts, liabilities, actions, and causes of action of every kind and nature whatsoever, now existing or arising at any time in the future, whether now known or unknown related in any way to this Lawsuit and the allegations, claims, and defenses made in the Lawsuit (the Released Claims. The Epsteins and their counsel of record represent and warrant that they are not aware of the intent to file or the existence of any lawsuits or administrative proceedings, including any action that includes class action claims, related in any way to parking citations in the City of Santa Monica. The Epsteins further agree not to bring, join, or participate in any class action related to parking citations in the City of Santa Monica, except to the extent they are legally compelled. Nothing herein shall be deemed to be a release of any claims by any putative class member or any rights provided under this Agreement. Nothing herein shall be deemed to release the Epsteins rights or claims arising from alleged breaches of this Agreement of any kind or nature. 6.2 Respondents hereby release the Epsteins and each of their agents, attorneys, and heirs and any persons or entities affiliated with them from any and all claims, demands, damages, debts, liabilities, actions, and causes of action of every kind and nature whatsoever, now existing or arising at any time in the future, whether now known or unknown, related to the Lawsuit and the allegations, claims, and defenses made in the Lawsuit. Nothing herein shall be deemed to release the Respondents rights or claims arising from alleged breaches of this Agreement of any kind or nature. 7. Waiver of Civil Code Section Except as otherwise provided herein, this Agreement is intended as a full and complete release and discharge of all claims, demands, and causes of action that the Parties may have against each other related to the Lawsuit and the allegations, claims, and defenses made in the Lawsuit and any and all damages arising from, related to or sustained by reason of those claims, demands or causes of action, whether the claims, demands or causes of action or the damages are now known or unknown, expected or unexpected, or have already developed or appeared, or may now be unknown but in the future may appear, develop, or become known. The Parties thus each represent and warrant that they understand and hereby expressly waive any rights or benefits available to them under 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 FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY Settlement Agreement Page 5 of 9

6 HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 8. Representations and Warranties. The Parties represent, warrant, and agree as follows: 8.1 The Parties each represent that (a they know and understand the contents of this Agreement and that this Agreement has been executed voluntarily, (b they have full capacity and authority to settle, compromise, and release their claims and potential claims and to enter into this Agreement, and (c they have had an opportunity to consult with counsel and they have been fully advised by counsel with respect to their rights and obligations and with respect to the execution of this Agreement. 8.2 They have not assigned, transferred, or purported to assign or transfer to any person or entity any matter otherwise released herein. 8.3 Each Party has made an investigation of the facts pertaining to the Parties settlement, this Agreement, and all related matters as it deems necessary. 8.4 In deciding to enter into this Agreement, the Parties have relied solely on the representations and other terms contained or provided for herein, and have not relied on any other representation or statement by any other Party. 8.5 Each person executing this Agreement has the authority to bind that Party. The City represents and warrants that on August 28, 2012, the City Council approved the settlement in this Lawsuit and Rod Gould is authorized to execute this Agreement. 9. Attorneys Fees and Costs. Except as set forth above in paragraphs 4.1 and 10.1, the Parties will bear their own fees, costs, and expenses incurred in connection with the Lawsuit. 10. General 10.1 This Agreement shall be governed by the laws of the State of California. The Parties agree that the Superior Court for the State of California, County of Los Angeles (the Court, shall be the exclusive venue for asserting any claims related to or arising out of the Agreement, including but not limited to any alleged breach of the Agreement. The prevailing party in any action to interpret or enforce this Agreement shall be entitled to his/her/its reasonable attorney s fees, costs, and expenses. The Parties agree that the Court may enter judgment pursuant to the terms of the settlement and shall retain jurisdiction over the Parties to enforce the settlement until performance in full of the terms of the settlement pursuant to Code of Civil Procedure The Epsteins shall have the right to enforce all terms of this Agreement, including but not limited to those terms set forth in 1.2, 1.3, 2.2, and 2.3 that confer a benefit on 303 and 396 Motorists. To avoid any ambiguity, there are no third party beneficiaries of this Agreement. Further, this Agreement is not admissible in any other litigation except in an action to enforce this Agreement This Agreement is the result of the Parties negotiations. All Parties have read and approved the language of this Agreement. The language of this Agreement shall be construed as Settlement Agreement Page 6 of 9

7 a whole according to its fair meaning. This Agreement shall not be construed strictly for or against any of the Parties, but shall be construed as if all Parties jointly prepared this Agreement This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, assigns, legal representatives, and successors in interest This Agreement may be executed in two or more counterparts, each of which will be an original and all of which shall constitute a part of this Agreement. Facsimile signatures shall be deemed as effective as an original signature If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of the Agreement will remain in force The failure by any of the Parties to enforce at any time, or for any period of time, subject to the applicable statute of limitations, any one or more of the terms or conditions of this Agreement shall not be a waiver of such terms or conditions or of such Party s right thereafter to enforce each and every term and condition of this Agreement This Agreement and the terms thereunder may only be amended, modified, or waived by a written instrument that has been executed by the Party sought to be charged with such amendment, modification, or waiver. No waiver of any breach of this Agreement shall be construed as an implied amendment or agreement to amend or modify any provision of this Agreement This Agreement integrates the whole of all agreements and understandings of any sort or character between the Parties concerning the subject matter of the Agreement (including all claims released herein, and supersedes all prior negotiations, discussions, or agreements of any sort whatsoever, whether oral or written, to the extent that such negotiations, discussions, or agreements relate to (a the Lawsuit or (b any claims that a Party against whom this Agreement is sought to be enforced has otherwise released in this Agreement All notices, demands, requests, and other communications related to this Agreement shall be delivered by U.S. Mail and by as follows: For Petitioners Eric J. Benink, Esq. Krause Kalfayan Benink & Slavens, LLP 550 West C Street, Suite 530 San Diego, CA eric@kkbs-law.com Settlement Agreement Page 7 of 9

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9 Dated:, 2012 Rod Gould City Manager For the City of Santa Monica, Respondent Attest: City Clerk Approved as to Form: Marsha Jones Moutrie City Attorney Dated:, 2012 Print Name: Authorized signatory For Xerox State & Local Solutions, Inc. formerly known as ACS State & Local Solutions, Inc. Respondent ACKNOWLEDGMENT OF RECEIPT OF $12,500 PAYMENT Dated:, 2012 Eric J. Benink, Esq. Attorney for Petitioners Settlement Agreement Page 9 of 9

10 EXHIBIT 1

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13 EXHIBIT 2

14 NOTICE LETTER #1

15 Dear Motorist: Two Santa Monica residents, Stanley H. and Harriet P. Epstein, filed a lawsuit challenging the City of Santa Monica s parking citation review procedures. They claim that the reason given in support of the initial review decision upholding some citations was inadequate under the California Vehicle Code. This notice is provided pursuant to a Settlement Agreement reached by the parties. The City has determined that you contested the below parking citation and a letter upholding the citation was mailed to you sometime between January 1, 2009 and June 30, The letter advised you that the City conducted an initial review and confirmed that the citation was properly issued and valid. You were also advised that sufficient proof was not presented to dismiss the parking violation. If you desire a further explanation of why the citation was upheld, complete the form on the reverse side of this letter and return it by one of the following methods: (1 by mail in the enclosed envelope to City of Santa Monica, P.O. Box , Los Angeles, CA ; (2 in person at the West Los Angeles Service Center located at 9911 West Pico Boulevard, Suite B210, Los Angeles, CA 90035; (3 by facsimile at ( ; or (4 by at citation.review@smgov.net. Your completed form must be received within 30 calendar days from the date of this letter. The City will provide a further explanation within 30 days following receipt of the completed form. Please be advised that by requesting a further explanation, the initial review result will most likely not change. After receipt of the further explanation letter, if the initial review result does not change, you will have the opportunity to seek an Administrative Hearing Review. Instructions for requesting an Administrative Hearing Review will be included with the City s further explanation. All questions regarding this notice may be directed to ( or by viewing the Settlement Agreement available at If you received this notice in error, please accept our sincere apology. DATE TIME LOCATION DESCRIPTION OF VIOLATION CITATION NUMBER x x x x X

16 REQUEST FOR FURTHER EXPLANATION FOR UPHOLDING PARKING CITATION I hereby request further information about the parking citation referenced below as contemplated by the notice I received: DATE TIME LOCATION DESCRIPTION OF VIOLATION CITATION NUMBER XXX XXX XXXXXX XXXXXXXXX [CITY TO COPY THIS FROM FRONT] Signature Printed Name Street Address City, State, Zip Telephone No. Address (optional

17 NOTICE LETTER #2

18 Dear Motorist: Two Santa Monica residents, Stanley H. and Harriet P. Epstein, filed a lawsuit challenging the City of Santa Monica s parking citation review procedures. They claim that the reason given in support of the initial review decision upholding some citations was inadequate under the California Vehicle Code. This notice is provided pursuant to a Settlement Agreement reached by the parties. The City has determined that you contested the below parking citation and a letter upholding the citation was mailed to you sometime between January 1, 2009 and May 23, The letter advised you that the City conducted an initial review and confirmed that the citation was properly issued and valid. You were also advised that the reason you provided in support of your request for initial review did not invalidate the citation. If you desire a further explanation of why the citation was upheld, complete the form on the reverse side of this letter and return it by one of the following methods: (1 by mail in the enclosed envelope to City of Santa Monica, P.O. Box , Los Angeles, CA ; (2 in person at the West Los Angeles Service Center located at 9911 West Pico Boulevard, Suite B210, Los Angeles, CA 90035; (3 by facsimile at ( ; or (4 by at citation.review@smgov.net. Your completed form must be received within 30 calendar days from the date of this letter. The City will provide a further explanation within 30 days following receipt of the completed form. Please be advised that by requesting a further explanation, the initial review result will most likely not change. After receipt of the further explanation letter, if the initial review result does not change, you will have the opportunity to seek an Administrative Hearing Review. Instructions for requesting an Administrative Hearing Review will be included with the City s further explanation. All questions regarding this notice may be directed to ( or by viewing the Settlement Agreement available at If you received this notice in error, please accept our sincere apology. DATE TIME LOCATION DESCRIPTION OF VIOLATION CITATION NUMBER x x x x X

19 REQUEST FOR FURTHER EXPLANATION FOR UPHOLDING PARKING CITATION I hereby request further information about the parking citation referenced below as contemplated by the notice I received: DATE TIME LOCATION DESCRIPTION OF VIOLATION CITATION NUMBER XXX XXX XXXXXX XXXXXXXXX [CITY TO COPY THIS FROM FRONT] Signature Printed Name Street Address City, State, Zip Telephone No. Address (optional

20 EXHIBIT 3

21 Janice P. Brown, Esq. ( Stacy L. Fode, Esq. ( Tara M. Jacobson, Esq. ( BROWN LAW GROUP 600 B Street, Suite 1650 San Diego, California Telephone: ( / Facsimile: ( Attorneys for Real Party In Interest, ACS STATE & LOCAL SOLUTIONS, INC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CENTRAL DISTRICT STANLEY MOSK COURTHOUSE HARRIET P. EPSTEIN, an individual; and STANLEY H. EPSTEIN, an individual, on behalf of themselves and all others similarly situated, Petitioners, v. THE CITY OF SANTA MONICA, ACS STATE & LOCAL SOLUTIONS, INC., a New York Corporation, and SHERI E. ROSS, an individual Respondents and Real Parties In Interest. SHERI E. ROSS, an individual, Cross-Complainant, v. THE CITY OF SANTA MONICA, and ACS STATE & LOCAL SOLUTIONS, INC., a New York Corporation. Cross-Defendants. CASE NO.: BS [Assigned For All Purposes to: Hon. John C. Chalfant, Department 85 ] DECLARATION OF FLOREZEL JOSE Complaint Filed: June 8, DECLARATION OF FLOREZEL JOSE

22 I, Florezel Jose, declare: 1. I am an employee of the Real Party In Interest, ACS STATE & LOCAL SOLUTIONS, INC. ( ACS now known as Xerox State & Local Solutions, Inc. My current title is Project Manager for the City of Santa Monica. I have personal knowledge of the facts set forth below and if called to do so, could and would testify competently thereto. 2. Since January 1, 2009 and continuously since that date, it has been ACS s custom and practice to send the motorist s original request for an initial review of his or her parking citation ( Initial Review Request to the City of Santa Monica ( City so that the City could conduct an initial review. It has been the City s custom and practice to send the original Initial Review Requests back to ACS. After ACS receives the original Initial Review Request, it has been its custom and practice to store the Initial Review Requests at an off-site warehouse. After reasonable investigation, I have no belief that such custom and practice has not been followed or that any such Initial Review Request has been destroyed, lost, discarded, or otherwise disposed of whether through the request of ACS, the City or otherwise. I am in a position to know (i of any such failure to follow such custom and practice and (ii of any destruction, loss, discarding, or other disposal. 3. In furtherance of my efforts to provide the information in paragraph 2 hereof, on May 17, 2012, the off-site warehouse was contacted and after reasonable investigation suitable for the purposes of this declaration, I have confirmed that the boxes containing Initial Review Requests remain in storage. 4. The 396 letter is the only letter that was sent between January 1, 2009, through May 9, 2011 to motorists who had requested and attended an administrative hearing (either inperson or by written declaration and did not have their City of Santa Monica parking citations canceled. 5. After May 9, 2011, and continuously since that date, it has been ACS s custom and practice that a customized 396 letter including the full text of the hearing officer s decision be sent to each motorist who had requested and attended an administrative hearing (either inperson or by written declaration and did not have their City of Santa Monica parking citations DECLARATION OF FLOREZEL JOSE

23 canceled. After reasonable investigation, I have no belief that such custom and practice has not been followed. I am in a position to know of any such failure to follow such custom and practice. 6. ACS utilizes a centralized data management department (the Data Center that maintains all ACS data, including that data generated by the City of Santa Monica. I am familiar with ACS s data keeping processes and systems and routinely work with ACS s Data Center to gather data. In this case, I asked the Data Center to extract information about the administrative hearing dates between January 1, 2009 and May 9, I then reviewed the data to determine that approximately 2, letters were sent between January 1, 2009, through May 9, 2011 to motorists who had requested and attended an administrative hearing (either in-person or by written declaration and did not have their City of Santa Monica parking citations canceled. 7. ACS has located and currently saved to the LAN network 100% of administrative hearing date files that contain decisions of the hearing officers for the approximately 2, letters that were sent between January 1, 2009, through May 9, 2011 to motorists who had requested and attended an administrative hearing (either in-person or by written declaration and did not have their City of Santa Monica parking citations canceled. To my knowledge as ACS s Project Manager for the City of Santa Monica, there are no decisions missing for the period January 1, 2009 through May 9, 2011 from these files. negotiations. 8. I understand that this Declaration will be provided to Petitioners during settlement I declare under penalty of perjury under the laws of the State of California that the forgoing is true and correct. Executed this day of August, 2012 in Los Angeles, California. Florezel Jose DECLARATION OF FLOREZEL JOSE

24 EXHIBIT 4

25 MARHSA JONES MOUTRIE City Attorney JOSEPH LAWRENCE Assistant City Attorney JEANETTE SCHACHTNER (SBN MEISHYA YANG (SBN Deputy City Attorneys 1685 Main Street, Room 310 Santa Monica, CA Telephone ( Facsimile ( Attorneys for Respondent and Defendant CITY OF SANTA MONICA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CENTRAL DISTRICT STANLEY MOSK COURTHOUSE HARRIET P. EPSTEIN, an individual; and STANLEY H. EPSTEIN, an individual, on behalf of themselves and all others similarly situated, Petitioners, v. THE CITY OF SANTA MONICA, ACS STATE & LOCAL SOLUTIONS, INC., a New York Corporation, and SHERI E. ROSS, an individual Respondents and Real Parties In Interest. SHERI E. ROSS, an individual, Cross-Complainant, v. THE CITY OF SANTA MONICA, and ACS STATE & LOCAL SOLUTIONS, INC., a New York Corporation. Cross-Defendants. CASE NO.: BS [Assigned For All Purposes to: Hon. John C. Chalfant, Department 85 ] DECLARATION OF DONALD PATTERSON Complaint Filed: June 8, DECLARATION OF DONALD PATTERSON

26 1 2 3 I, Donald Patterson, declare: 1. I am an employee of the City of Santa Monica ( City. My current title is Assistant Director of Finance. Since August 30, 2009, I have had and still have direct responsibility for the 4 management of the City s parking citation process. After I assumed responsibility over management for the City s parking citation process, I met with City and ACS State and Local Solutions, Inc. ( ACS staff who were directly involved in various aspects of parking enforcement, administration, and operations during the time period January 1, 2009 through August 29, 2009 and discussed the matters in paragraphs 2 and 3 hereof. My statements herein 9 for that period are based, in part, on those meetings and conversations. I have personal knowledge of the facts set forth below and if called to do so, could and would testify competently thereto. 2. Since January 1, 2009, and continuously since that date, ACS sent motorists original requests for an initial review of their parking citations (each, an Initial Review Request to the City so that the City could conduct an initial review. It has been the City s custom and practice during all such periods to send the original Initial Review Requests back to ACS via courier. 3. The City did not make, retain, destroy, or otherwise dispose of copies (other than incidental copies of the original Initial Review Requests in its ordinary course of business or ask that ACS or any other entity, including the warehouse in which they are stored, do so. Furthermore, I have no knowledge or information whatsoever that any of the original Initial Review Requests were destroyed or otherwise disposed of. 4. I understand that this Declaration will be provided to Petitioners during settlement negotiations and that Petitioners claim that they are agreeing to retain a $10,000 cap based largely on this Declaration. I declare under penalty of perjury under the laws of the State of California that the forgoing is true and correct. Executed this day ofaugust, 2012 in Santa Monica, California. Donald Patterson DECLARATION OF DONALD PATTERSON

27 EXHIBIT 5

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29 EXHIBIT 6

30 Dear Motorist: Two Santa Monica residents, Stanley H. and Harriet P. Epstein, filed a lawsuit challenging the City s parking citation review procedures. They claim that the Parking Citation Administrative Hearing Notice of Decision letter upholding a parking citation was inadequate under the California Vehicle Code. This notice is provided pursuant to a Settlement Agreement reached by the parties. The City has determined that you contested a parking citation and a Parking Citation Administrative Hearing Notice of Decision was mailed to you sometime between January 1, 2009 and May 13, The letter advised you that the Administrative Hearing Officer reviewed the information you submitted and found the citation to be valid. However, the plaintiffs claim that the complete written decision should have been sent to you. The City is now providing you with the Administrative Hearing Officer s written decision which is as follows: (INSERT FULL DECISION If you are dissatisfied with the Administrative Hearing Officer's decision, you may appeal it to the Superior Court. You must request an appeal within 30 calendar days of the date of this letter. You must file for the appeal in person at the Superior Court at: 1725 Main Street, Santa Monica, CA. There is a $25 filing fee required by the Court, which will be refunded to you, if the judge rules in your favor. You will also need to present this letter at the time the appeal is filed. It will be submitted as evidence for the appeal. A copy of the notice of appeal must be served at least ten (10 days prior to the hearing date either in person or by mail to: City of Santa Monica, th Street, Suite 150, Santa Monica, CA All questions regarding this notice may be directed to ( or by viewing the Settlement Agreement available at If you received this notice in error, please accept our sincere apology.

31 EXHIBIT 7

32 Eric J. Benink, Esq., SBN Mary K. Wyman, Esq., SBN KRAUSE, KALFAYAN, BENINK & SLAVENS LLP 550 West C Street, Suite 530 San Diego, CA Tel: ( Fax: ( ebenink@kkbs-law.com mwyman@kkbs-law.com Attorneys for Petitioners and Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA HARRIET P. EPSTEIN, an individual; STANLEY H. EPSTEIN, an individual, on behalf of themselves and all others similarly situated, v. FOR THE COUNTY OF LOS ANGELES Petitioners and Plaintiffs. THE CITY OF SANTA MONICA, ACS STATE & LOCAL SOLUTIONS, INC., a New York corporation, and SHERI E. ROSS, in individual Respondents and Defendants. I Eric J. Benink declare as follows: Case No.: BS DECLARATION OF ERIC J. BENINK IN SUPPORT OF REQUEST FOR DISMISSAL [C.R.C., Rule 3.770] Dept. 85 Hon. James C. Chalfant 1. I am the attorney for Petitioners Harriet P. Epstein and Stanley H. Epstein (the Petitioners in the above-entitled action. I have personal knowledge of the facts stated below and if called upon, I could and would testify competently thereto. 2. This is a putative class action which has been settled by the parties, subject to a dismissal by the court. I make this declaration pursuant to Cal. Rules Ct., Rule and request that the Court dismiss the entire action with prejudice as to Petitioners and dismiss the 1 DECLARATION OF ERIC J. BENINK CASE NO. BS132415

33 entire action without prejudice as to the putative class members. 3. Rule 3.770(a requires that a request for dismissal of a class action be accompanied by a declaration setting forth detailed facts explaining the consideration, direct or indirect, given for the dismissal. Rule 3.770(b provides that the court may grant the request without a hearing. If the court disapproves the request, notice of the tentative disapproval must be sent to the attorneys of record. Nature of the Case 4. The Epsteins filed this putative class action on June 8, The Petition alleged that Respondents The City of Santa Monica (the City, ACS State & Local Solutions, Inc. ( ACS, and Sheri E. Ross ( Ross violated Vehicle Code by failing to provide to motorists reasons why their parking citations were not canceled after an initial review and following an administrative hearing. The relevant provisions of Section became effective January 1, Settlement Agreement 5. On November 30, 2011 and December 13, 2011, the Epsteins, the City, and ACS attended mediation sessions before Jeffrey Krivis, a highly-experienced mediator. The parties reached a settlement which was memorialized by a fully-executed Settlement Agreement ( Agreement dated xxxx, Attached hereto as Exhibit 1 is a true and correct copy of the Agreement. The Agreement represents all of the terms to which the parties have agreed in connection with this litigation. 6. The highlights of the Agreement are as follows: * The City and ACS will mail to approximately18,000 motorists, a letter that provides an opportunity to seek a further initial review, which will require the City and ACS to provide a reason for not canceling the violation at the initial review stage. * The City and ACS will mail to approximately 2,500 motorists a letter that provides a reason why the violation was not cancelled at the administrative hearing stage. 2 DECLARATION OF ERIC J. BENINK CASE NO. BS132415

34 1 * The City and ACS have agreed to comply with Vehicle Code in the 2 future * The parties have agreed to request a dismissal of this action with prejudice as to the Epsteins and without prejudice as to the putative class members. To the extent that any putative class member is dissatisfied with the relief provided by this Agreement (which would be unlikely the putative class member is not releasing his or her individual claims. * The parties have agreed to request that the Court retain jurisdiction over the parties and to enforce the terms of this Agreement. * The Court must enter a dismissal substantially in the form lodged herewith, including the Court s retention of jurisdiction over the parties and to enforce the terms of the Agreement. * The City and ACS have agreed to pay the Epsteins attorneys $65,000 and ACS has agreed to pay the Epsteins a total of $12,500. Request for Dismissal 7. Because the putative class members are not required to provide any release in exchange for the substantial benefits to be provided to them as part of this settlement, it is appropriate to dismiss their claims against Respondents without prejudice. They will not be prejudiced in any way by the dismissal and in fact, have now been afforded significant benefits that were not originally provided prior to this suit. 8. CRC, Rule 3.770(c states that if the court has not ruled on class certification...the action may be dismissed without notice to the class members if the court finds that the dismissal will not prejudice them. Here, no putative class member will be prejudiced by a dismissal as discussed above. I declare under penalty of perjury that the foregoing is true and correct. Executed on XXXXX, 2012 in San Diego, CA. 28 DECLARATION OF ERIC J. BENINK 3 Eric J. Benink, Esq. CASE NO. BS132415

35 Eric J. Benink, Esq., SBN Mary K. Wyman, Esq., SBN KRAUSE, KALFAYAN, BENINK & SLAVENS LLP 550 West C Street, Suite 530 San Diego, CA Tel: ( Fax: ( ebenink@kkbs-law.com mwyman@kkbs-law.com Attorneys for Petitioners and Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA HARRIET P. EPSTEIN, an individual; STANLEY H. EPSTEIN, an individual, on behalf of themselves and all others similarly situated, v. FOR THE COUNTY OF LOS ANGELES Petitioners and Plaintiffs. THE CITY OF SANTA MONICA, ACS STATE & LOCAL SOLUTIONS, INC., a New York corporation, and SHERI E. ROSS, in individual Respondents and Defendants. Case No.: BS STIPULATION RE: DISMISSAL AND RETENTION OF JURISDICTION PURSUANT TO C.C.P ; [PROPOSED] ORDER THEREON Dept. 85 Hon. James C. Chalfant WHEREAS Harriet P. Epstein and Stanley H. Epstein (the Epsteins, the City of Santa Monica (the City and Xerox State & Local Solutions, Inc. formerly known as ACS State & Local Solutions, Inc. ( Xerox have executed a written Settlement Agreement ( Agreement ; WHEREAS the Agreement provides that the Court shall retain jurisdiction over the parties and to enforce the terms of the Agreement pursuant to C.C.P ; WHEREAS the Agreement provides that the Epsteins dismiss this entire action with prejudice as to themselves and without prejudice as to the putative class; 1 STIPULATION CASE NO. BS132415

36

37 Dated:, 2012 STIPULATION [name], [title] Authorized signatory For Xerox State & Local Solutions, Inc. formerly known as ACS State & Local Solutions, Inc., Respondent 3 CASE NO. BS132415

38 SUPERIOR COURT OF THE STATE OF CALIFORNIA HARRIET P. EPSTEIN, an individual; STANLEY H. EPSTEIN, an individual, on behalf of themselves and all others similarly situated, v. FOR THE COUNTY OF LOS ANGELES Petitioners and Plaintiffs. THE CITY OF SANTA MONICA, ACS STATE & LOCAL SOLUTIONS, INC., a New York corporation, and SHERI E. ROSS, in individual Respondents and Defendants. Case No.: BS [PROPOSED] ORDER OF DISMISSAL Hon. James C. Chalfant Dept. 85 This matter came before the Court pursuant to Cal. Rule Ct., Rule Upon reviewing the Stipulation Re: Dismissal and Retention of Jurisdiction Pursuant to C.C.P ; and Declaration of Eric J. Benink in Support of Request for Dismissal of Action and Exhibit 1 thereto (Settlement Agreement and good cause appearing thereon, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: (1 The Court shall retain jurisdiction over the parties and to enforce the terms of the Settlement Agreement pursuant to C.C.P ; 1 CASE NO. BS132415

39 (2 All of Petitioner Harriet P. Epstein s and Petitioner Stanley H. Epstein s individual claims in the Petition for Writ of Mandate and Complaint for Declaratory Relief filed on June 8, 2011 ( Petition as to all Respondents, including DOE Defendants, are hereby dismissed, with prejudice; (3 The putative class s claims in the Petition as to all Respondents, including DOE defendants, are hereby dismissed, without prejudice; and (4 Petitioners shall give notice of this order. IT IS SO ORDERED DATED: Judge of the Superior Court 2 CASE NO. BS132415