CC SR 20181002 E - 6527 Eddinghill Settlement Agreement01203.0031/508055.1
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 10/02/2018
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration and possible action to approve a settlement agreement and stipulated
permanent injunction with Eric Mark and the Eric Mark Trust to settle the City of Rancho
Palos Verdes v. Eric Mark et al. case.
RECOMMENDED COUNCIL ACTION:
1) Approve settlement and stipulated permanent injunction with Eric Mark and the
Eric Mark Trust.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Glen E. Tucker, City Prosecutor
REVIEWED BY: William Wynder, City Attorney
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Settlement Agreement (page A-1)
B. Stipulated Permanent Injunction (page B-1)
BACKGROUND AND DISCUSSION:
Eric Mark and the Eric Mark Trust (“Defendants”) are the owners of a property located
at 6527 Eddinghill Drive in the City of Rancho Palos Verdes (the “Property”). On April
20, 2018, a summons and complaint were served on the Defendants. The Complaint
raised three public nuisance causes of action for the advertisement and operation of a
short-term rental in violation of the City’s Municipal Code Sections 17.02.026(A) and
(B). The Complaint sought to enjoin the Defendants from advertising and operating the
Property has a short-term rental, be ordered to abate all conditions causing the
nuisance, and recover attorney’s fees and costs.
Summary of Settlement
The principal negotiators for the Defendants and the City reached a settlement
agreement (Attachment A) to be executed concurrently with a stipulated permanent
injunction. The proposed terms are as follows:
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1. Settlement Amount – The Defendants must pay the City a total of Ten-Thousand
Dollars ($10,000.00), the amount of the City’s attorney’s fees and enforcement
costs.
2. Time of Payment – The Defendants will make payment to the City no later than
ten (10) days after the City Council approves the settlement agreement.
3. Stipulation to Permanent Injunction – The Defendants consent to the filling and
entry of a Permanent Injunction in favor of the City (Attachment B). The
Permanent Injunction will prevent Defendants from continuing to advertise or
operate a short-term rental.
4. Compliance with the Rancho Palos Verdes Municipal Code – The Defendant
must take all necessary steps to ensure no new violation of RPVMC Sections
17.02.026(A) and (B) occur.
5. Judicial Enforcement of Agreement – In the event a new violation of RPVMC
Sections 17.02.026(A) and (B) is discovered by City Staff, the City may
immediately pursue any remedy permitted by law including judicial enforcement.
The City will also be entitled to reasonable attorney’s fees, costs, and
administrative fines should it have to pursue remedies.
ALTERNATIVES:
In addition to the staff recommendation, the following alternative action is available for
the City Council’s consideration:
1. Deny the settlement agreement and stipulated permanent injunction, and
take case to trial.
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SETTLEMENT AGREEMENT & GENERAL RELEASE OF ALL CLAIMS
This Settlement Agreement and General Release of All Claims (”Agreement”) is entered
into by and between the City of Rancho Palos Verdes (“City”), a municipal corporation, and Eric
Mark, an individual (“Mark”) and the Eric Mark Trust, a trust (“Trust” collectively with Eric Mark
referred hereinafter as the “Defendants”), to terminate fully and finally all disputes between the
Parties arising out of, or related to, the Action defined hereinafter. The City, Mark and Trust may
hereafter be referred to individually as “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, a dispute has arisen between the Parties regarding whether Mark (1) operated a
short-term rental in a single-family residential zoning district, and (2) posted, published, circulated,
broadcasted or maintained an advertisement of a short-term rental for his property located at 6527
Eddinghill Drive in the City of Rancho Palos Verdes (“Property”) in violation of the City of Rancho
Palos Verdes Municipal Code (“RPVMC”) sections 17.02.026 (A) and (B) on or about January 29,
2018 through February 12, 2018 (the “Incident”); and
WHEREAS, the City had issued letters to Mark informing him of the prohibition on the
operation and advertising of short-term rentals on the following dates: September 27, 2016 and
September 15, 2017. In addition, on September 15, 2017, the City issued Administrative Citation
No. 1138 in the amount of $2,500.00 to Mark for the alleged violations of RPVMC sections
17.02.026 (A) and (B) regarding the operation and advertisement of a short-term rental; and
WHEREAS, as a result of the Incident, the City filed a Complaint for Preliminary Injunction
and Permanent Injunction to Abate a Public Nuisance, Los Angeles Superior Court Case No.
BC702161 (the “Complaint”), against the Defendants on April 17, 2018. The Complaint raises three
nuisance causes of action for the operation and advertisement of a short-term rental in violations of
the RPVMC. The City seeks to enjoin the Defendants from operating and advertising his Property
has a short-term rental (the “Action”); and
WHEREAS, Mark filed an Answer to the Complaint on June 14, 2018; and
WHEREAS, the Parties hereto wish to resolve the Action, and to avoid uncertainty and costs
of trial, and any potential appeals therefrom, and to resolve fully and finally all disputes which may
exist by and between the Parties as set forth in the Action.
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TERMS
NOW, THEREFORE, for full and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, and based upon the foregoing recitals and the terms, conditions,
covenants, and agreements contained herein, all Parties hereto agree as follows:
1. Recitals. All recitals are true and correct and are incorporated by references as
thought set forth in full.
2. Stipulation to Permanent Injunction. Defendants consent to the filing and entry of
Permanent Injunction in Favor of the City of Rancho Palos Verdes (“Stipulated Permanent
Injunction”) as reflected in “Exhibit A.” The Parties will execute the Stipulated Permanent
Injunction concurrently with this Agreement.
3. Settlement Amount. Following full execution of this Agreement by the Parties, and
actual receipt of the fully executed Agreement, the Defendants shall pay to the City a total of Ten
Thousand Dollars ($10,000.00), in full consideration and settlement of any and all claims by the City
against Defendants (“Settlement Sum”). Said Settlement Sum constitutes a full and complete
settlement and compromise of any and all disputed claims arising out of or related to the Incident.
Payment will be made in the form of a cashier’s check made payable to the “City of Rancho Palos
Verdes,” no later than 10 days after approvals of this Agreement by the City Council of Rancho
Palos Verdes.
4. General Release. For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Parties do hereby release and forever discharge one another of and from
any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts,
liens, contracts, agreements, promises, liability, claims, demands, loss, costs or expenses, of any
nature whatsoever, known or unknown, fixed or contingent (hereinafter “Claims”), which either
Party may now have or may hereafter have against the other or any of them, by reason of any matter,
cause, or thing whatsoever from the beginning of time to the date hereof constituting, arising out of,
based upon, or relating to the Incident, except for any breach of this Agreement.
5. No Other Pending Actions. The City represents that it has not filed any complaints
or charges against Defendants with any local, state or federal agency or court, or any administrative
body; and that if any such agency or court assumes jurisdiction of any complaint or charge against
Defendant, or its predecessors, successors, heirs, assigns, employees, shareholders, officers,
directors, agents, attorneys, subsidiaries, divisions or affiliated corporations or organizations,
whether previously or hereafter affiliated in any manner, on behalf of the City, whenever filed.
6. No Assignment of Claims. The Parties each warrant that they have made no
assignment, and will make no assignment, of any claim, cause of action, right of action or any right
of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no
other person or entity of any kind had or has any interest in any of the demands, obligations, actions,
causes of action, debts, liabilities, rights, contracts, damages, attorneys' fees, costs, expenses, losses
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or claims referred to herein.
7. Non-Admission of Liability. The Parties acknowledge and agree that this
Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled nor the
terms of this Agreement shall be construed in any manner as an admission of any liability by any
Party hereto, or any of its employees, or any affiliated person(s) or entity/ies.
8. Successors and Assigns. This Agreement, and all the terms and provisions hereof,
shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal
representatives, successors and assigns.
9. Knowing and Voluntary. This Agreement is an important legal document and in all
respects has been voluntarily and knowingly executed by the Parties hereto. The Parties specifically
represent that prior to signing this Agreement they have been provided a reasonable period of time
within which to consider whether to accept this Agreement. The Parties further represent that they
have each carefully read and fully understand all of the provisions of this Agreement, and that they
are voluntarily, knowingly, and without coercion entering into this Agreement based upon their own
judgment.
10. Assistance of Counsel. The Parties each specifically represent that they have
consulted to their satisfaction with and received independent advice from their respective counsel
prior to executing this Agreement concerning the terms and conditions of this Agreement. If no
counsel has been consulted concerning the terms and conditions of this Agreement, then the
respective Party not consulting with counsel specifically represents and affirms that such decision
was knowingly and voluntarily made with the full and complete understanding that the other Party
urges consultation with independent counsel over the terms and conditions of this Agreement.
11. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be considered an original but all of which shall constitute one agreement.
12. Singular and Plural. Whenever required by the context, as used in this Agreement
the singular shall include the plural, and the masculine gender shall include the feminine and the
neuter, and the feminine gender shall include the masculine and the neutral.
13. Compliance with the RPVMC. Defendants shall take all steps necessary to ensure
no new violations of the RPVMC Section 17.02.026 (A) and (B) shall occur. Any new violation
discovered shall constitute a breach of this Agreement.
14. Judicial Enforcement of Agreement. In the event a new violation of RPVMC
Section 17.02.026 (A) or RPVMC Section 17.02.026 (B) is discovered by City Staff, the Parties
acknowledge that the City may immediately pursue any remedy permitted by law, including judicial
enforcement, using this Agreement as a stipulated judgment against the Defendants. Should any
legal action be required to enforce the terms of this Agreement, the City shall be entitled to
reasonable attorneys’ fees, costs and administrative fines in addition to any other relief to which that
party may be entitled.
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15. Injunctive Relief for Breach. The Parties acknowledge and agree that any material
violation of this Agreement is likely to result in immediate and irreparable harm for which monetary
damages are likely to be inadequate. Accordingly, the Parties consent to injunctive and other
appropriate equitable relief upon the institution of proceedings therefor by any other Party in order to
protect the rights of the Parties under this Agreement. Such relief shall be in addition to any other
relief to which the Parties may be entitled at law or in equity.
16. No Third Party Beneficiaries. No person or entity shall be deemed to be a third
Party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to
confer upon any person or entity, other than the Parties hereto, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
17. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this
Agreement be declared void or unenforceable, such portion shall be considered independent and
severable from the remainder, the validity of which shall remain unaffected.
18. Headings. Headings at the beginning of each numbered section of this Agreement
are solely for the convenience of the Parties and are not a substantive part of this Agreement.
19. Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by
them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein
shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the
application of the rules on interpretation of contracts.
20. Waiver. Failure to insist on compliance with any term, covenant or condition
contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor
shall any waiver or relinquishment of any right or power contained in this Agreement at any one
time or more times be deemed a waiver or relinquishment of any right or power at any other time or
times.
21. Non-Confidentiality of Agreement. Defendants acknowledges that the City is a
public entity and as such, the City cannot promise to nor otherwise keep the terms and conditions of
this Agreement confidential. Neither Party is bound by confidentiality.
22. Governing Law. 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 said State without
giving effect to conflicts of laws principles. The Parties further agree that this Agreement may be
enforced by any Party hereto by a motion under Section 664.6 of the California Code of Civil
Procedure, or by any other procedure permitted by law, in the Los Angeles County Superior Court.
23. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties who have executed it and supersedes any and all other agreements, understandings,
negotiations, or discussions, either oral or in writing, express or implied between the Parties to this
Agreement. The Parties to this Agreement each acknowledge that no representations, inducements,
promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting
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on their behalf, which are not embodied in this Agreement, that they have not executed this
Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and
that no representation, inducement, promise, agreement or warranty not contained in this Agreement,
including, but not limited to, any purported supplements, modifications, waivers, or terminations of
this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this
Agreement.
24. Modifications. Any alteration, change, or modification of or to this Agreement shall
be made by written instrument executed by each Party hereto in order to become effective.
25. Authority to Sign. The persons executing this Agreement on behalf of each Party
hereto represent and warrant, with the intention that the other Party rely upon such representation
and warranty, that (i) such Party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this Agreement on behalf of said Party and to bind that Party, including its
members, agents and assigns, (iii) by so executing this Agreement, such Party is formally bound to
the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any
provision of any other agreement to which said Party is bound. .
[SIGNATURES ON THE FOLLOWING PAGE ]
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IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement and
Release of All Claims, and agree to all of the above terms and conditions, on the dates set forth
below.
“City” CITY OF RANCHO PALOS VERDES, a
municipal corporation
Dated: September ___, 2018 By: ______________________________________
DOUGLAS WILLMORE
CITY MANAGER
“Eric Mark” ERIC MARK, an individual
Dated: September ___, 2018 By: _____________________________________
ERIC MARK
“Eric Mark TRUST” ERIC MARK, trustee of the ERIC MARK TRUST
Dated: September ___, 2018 By: _____________________________________
ERIC MARK
APPROVED AS TO FORM:
Dated: September ___, 2018 ALESHIRE & WYNDER, LLP
By: ______________________________________
GLEN E. TUCKER, ESQ.
DEPUTY CITY PROSECUTOR
CITY OF RANCHO PALOS VERDES
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ALESHIRE & WYNDER, LLP WILLIAM W. WYNDER, State Bar No. 84753 wwynder@awattorneys.com GLEN E. TUCKER, State Bar No. 54709 gtucker@awattorneys.com JULIETTE TRAN, State Bar No. 307417 jtran@awattorneys.com ALONDRA ESPINOSA, State Bar No. 315095 aespinosa@awattorneys.com 2361 Rosecrans Ave., Suite 475 El Segundo, California 90245 Telephone: (310) 527-6660 Facsimile: (310) 532-7395 Attorneys for Plaintiff, CITY OF RANCHO PALOS VERDES SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
CITY OF RANCHO PALOS VERDES, a municipal corporation,, Plaintiff, v. ERIC MARK, an individual and as trustee of the ERIC MARK TRUST; ERIC MARK TRUST, and DOES 1 through 100, INCLUSIVE, , Defendants.
Case No. BC702161 STIPULATION AND [PROPOSED] ORDER GRANTING PERMANENT INJUNCTION IN FAVOR OF CITY OF RANCHO PALOS VERDES Assigned for All Purposes to: Hon. Monica Bachner, Dept. 71 Action Filed: April 17, 2018 Trial Date: TBA
WHEREAS, Plaintiff, City of Rancho Palos Verdes (“City”) filed the Complaint for
Preliminary Injunction and Permanent Injunction to Abate a Public Nuisance (“Complaint”) in this
action on April 17, 2018;
WHEREAS, the Complaint seeks injunction relief prohibiting Defendants, Eric Mark and the
Eric Mark Trust (collectively, “Defendants”) from operating a short-term rental property located at
6527 Eddinghill Drive, Rancho Palos, California, (“Property”), APN 7584-008-022, and advertising
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STIPULATION AND ORDER GRANTING PERMANENT INJUNCTION IN FAVOR OF CITY OF
RANCHO PALOS VERDES
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the Property as short-term rental property, in violation of the Rancho Palos Verdes Municipal Code
(“RPVMC”) §§ 17.02.026(A) and 17.02.026(B).
WHEREAS, Defendant Eric Mark answered the Complaint on June 14, 2018;
WHEREAS, Defendants wish to avoid the time and expense of trial, and wish to avoid the
Court’s expenditure of judicial resources, and therefore wish to stipulate to a permanent injunction;
NOW, THEREFORE, the City and Defendants, Eric Mark and the Eric Mark Trust, stipulate
and agree to the following, subject to Court approval:
1. The Court shall issue the Permanent Injunction attached hereto as Exhibit “A”.
Dated: September __, 2018 ALESHIRE & WYNDER, LLP
By:
Glen E. Tucker Attorneys for Plaintiff,
CITY OF RANCHO PALOS VERDES
Dated: September __, 2018 ERIC MARK
By:
Eric Mark, an individual
Dated: September __, 2018 ERIC MARK TRUST
By:
Eric Mark, Trustee of the ERIC MARK TRUST
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STIPULATION AND ORDER GRANTING PERMANENT INJUNCTION IN FAVOR OF CITY OF
RANCHO PALOS VERDES
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ORDER
GOOD CAUSE APPEARING TO THE COURT FROM THE STIPULATION BETWEEN
THE PARTIES,
IT IS ORDERED that:
1. The Court shall sign and enter the Permanent Injunction attached hereto as Exhibit “A”.
Dated:_________________________ _____________________________________
Honorable Monica Bachner
Judge of the Superior Court
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STIPULATION AND ORDER GRANTING PERMANENT INJUNCTION IN FAVOR OF CITY OF
RANCHO PALOS VERDES
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
CITY OF RANCHO PALOS VERDES, a municipal corporation,, Plaintiff, v. ERIC MARK, an individual and as trustee of the ERIC MARK TRUST; ERIC MARK TRUST, and DOES 1 through 100, INCLUSIVE, , Defendants.
Case No. BC702161 [PROPOSED] PERMANENT INJUNCTION Assigned for All Purposes to: Hon. Monica Bachner, Dept. 71 Action Filed: April 17, 2018 Trial Date: TBA
THE PEOPLE OF THE STATE OF CALIFORNIA, TO ANY POLICE OFFICER, FIRE
OFFICIAL, CODE ENFORCEMENT OFFICER, BUILDING OFFICIAL, PUBLIC WORKS
OFFICIAL, CONTRACTOR, OR HEALTH OFFICER ON BEHALF OF THE CITY OF
RANCHO PALOS VERDES, STATE OF CALIFORNIA:
Good cause appearing from the Stipulated and Order of Plaintiff City of Rancho Palos
Verdes and Defendants, Eric Mark and the Eric Mark Trust, dated September ___, 2018, the Court
hereby issued the following Permanent Injunction.
Defendant, Eric Mark and the Eric Mark Trust (collectively “Defendants”), their agents,
officers, employees, volunteers, and all persons acting on behalf of or in concert with Defendants,
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PERMANENT INJUNCTION
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are enjoined and restrained from operating and advertising a short-term rental at 6527 Eddinghill
Drive in the City of Rancho Palos Verdes in violation of the City of Rancho Palos Verdes
Municipal Code sections 17.02.026 (A) and (B).
It is so ordered.
Dated:_________________________ _____________________________________
Honorable Monica Bachner
Judge of the Superior Court
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PERMANENT INJUNCTION
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 2361 Rosecrans Ave., Suite 475, El Segundo, CA 90245.
On September __, 2018, I served true copies of the following document(s) described as [PROPOSED] PERMANENT INJUNCTION on the interested parties in this action as follows:
Sherry Anne Lear Attorney at Law 3828 Carson Street, Suite 100 Torrance, CA 90503 Tel: (310) 303-7950 Fax: (310) 316-0324
Attorneys for Defendant, Eric Mark and Eric Mark Trust
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Aleshire & Wynder, LLP for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at El Segundo, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on September __, 2018, at El Segundo, California.
Monica F. Brandenberg
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PERMANENT INJUNCTION
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