1 DAVID L. ANDERSON (CABN 149604) United States Attorney 2 SARA WINSLOW (DCBN 457643) Chief, Civil Division 3 KENNETH BRAKEBILL (CABN 196696) Assistant United States Attorney 4 450 Golden Gate Avenue, Box 36055 5 San Francisco, California 94102-3495 Telephone: (415) 436-7167 6 Fax: (415) 436-6748 kenneth.brakebill@usdoj.gov 7 Attorneys for Defendant USA 8

KEKER, VAN NEST & PETERS LLP

9 BENJAMIN D. ROTHSTEIN - # 295720 brothstein@keker.com 10 EMILY A. HASSELBERG - # 326990 ehasselberg@keker.com 11 633 Battery Street San Francisco, CA 94111-1809 12 Telephone: 415 391 5400 Facsimile: 415 397 7188 13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

17 CASE NO. 18-cv-04934 TSH (KAW) 18

AARON HASSAY,

19 Plaintiff STIPULATION OF SETTLEMENT AND 20

DISMISSAL WITH PREJUDICE;

21 v. [PROPOSED] ORDER

22 UNITED STATES OF AMERICA, The Honorable Thomas S. Hixson 23 Defendant.

24 __________________________________________ 25

26 27 1 IT IS HEREBY STIPULATED by and between the undersigned Plaintiff and the UNITED 2 STATES OF AMERICA, by and through their respective attorneys, as follows: 3 WHEREAS, Plaintiff filed the above-captioned action on August 14, 2018; 4 WHEREAS, Plaintiff and Defendant wish to avoid any further litigation and controversy and 5 to settle and compromise fully any and all claims and issues that have been raised, or could have 6 been raised, in this action, which have transpired prior to the execution of this Settlement Agreement 7 ( “Agreement”); 8 NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, 9 and other good and valuable consideration, the Parties agree as follows: 10 1. Agreement to Compromise Claims. The parties do hereby agree to settle and compromise 11 each and every claim of any kind, whether known or unknown, arising directly or indirectly from the 12 acts or omissions that gave rise to the above-captioned action under the terms and conditions set 13 forth in this Agreement. 14 2. Definition of “United States of America.” As used in this Agreement, the United States of 15 America shall include its current and former agents, servants, employees, and attorneys, as well as 16 the San Francisco Veterans Administration Medical Center, and/or its current and former agents, 17 servants, employees, and attorneys. 18 3. Settlement Amount. The United States of America agrees to pay the sum of Seventy-Six 19 Thousand dollars ($76,000.00) (“Settlement Amount”), which sum shall be in full settlement and 20 satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and 21 nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen 22 personal injuries, damage to property and the consequences thereof, resulting, and to result, from the 23 subject matter of this settlement, including any claims for wrongful death, for which Plaintiff or 24 Plaintiff’s guardians, heirs, executors, administrators, or assigns, and each of them, now have or may 25 hereafter acquire against the United States of America. 26 4. Agreement to Facilitate Referral. The United States of America agrees to make good 27 faith efforts to facilitate a referral of Plaintiff, consistent with federal laws and regulations governing 1 mental health treatment in the VA’s Community Care program. Plaintiff understands that this 2 stipulation is not a guarantee that Plaintiff will be found eligible by the VA for such treatment. 3 5. Release. Plaintiff and Plaintiff’s guardians, heirs, executors, administrators or assigns 4 hereby agree to accept the Settlement Amount in full settlement and satisfaction of any and all 5 claims, demands, rights, and causes of action of whatsoever kind and nature, including claims for 6 wrongful death, arising from, and by reason of any and all known and unknown, foreseen and 7 unforeseen personal injuries, damage to property and the consequences thereof which they may have 8 or hereafter acquire against the United States of America on account of the same subject matter that 9 gave rise to the above-captioned action, including any future claim or lawsuit of any kind or type 10 whatsoever, whether known or unknown, and whether for compensatory or exemplary damages. 11 Plaintiff and Plaintiff’s guardians, heirs, executors, administrators or assigns further agree to 12 reimburse, indemnify and hold harmless the United States of America from and against any and all 13 such causes of action, claims, liens, rights, or subrogated or contribution interests incident to or 14 resulting from further litigation or the prosecution of claims by Plaintiff or Plaintiff’s guardians, 15 heirs, executors, administrators or assigns against any third party or against the United States, 16 including claims for wrongful death. 17 6. Dismissal. In consideration of the payment of the Settlement Amount and the other terms 18 of this Agreement, Plaintiff agrees that Execution of this Stipulation and its approval by the Court 19 shall constitute dismissal with prejudice of this case, including all claims asserted in this action, or 20 that could have been asserted in this action, pursuant to Fed. R. Civ. P. 41(a). 21 7. No Admission of Liability. This Stipulation for compromise settlement is not intended to 22 be, and should not be construed as, an admission of liability or fault on the part of the United States, 23 and the United States specifically denies that it is liable to the Plaintiff. This settlement is entered 24 into by all parties for the purpose of compromising disputed claims and avoiding the expenses and 25 risks of further litigation. 26 8. Parties Bear Their Own Fees and Costs. It is also agreed, by and among the parties, that 27 the respective parties will each bear their own costs, fees, and expenses and that any attorney’s fees 1 9. Authority. The signatories to this Agreement warrant and represent that they possess full 2 authority to bind the persons on whose behalf they are signing to the terms of the settlement. 3 10. Waiver of California Civil Code § 1542. The provisions of California Civil Code 4 Section 1542 are set forth below: 5 “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and 6 that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” 7 Plaintiff having been apprised of the statutory language of Civil Code Section 1542 by Plaintiff’s 8 9 attorney, and fully understanding the same, nevertheless elects to waive the benefits of any and all 10 rights Plaintiff may have pursuant to the provision of that statute and any similar provision of federal 11 law. Plaintiff understands that, if the facts concerning Plaintiff’s injury and the liability of the 12 government for damages pertaining thereto are found hereinafter to be other than or different from 13 the facts now believed by them to be true, the Agreement shall be and remain effective 14 notwithstanding such material difference. 15 16 11. Payment by Check. Payment of the Settlement Amount will be made by check for 17 Seventy-Six Thousand dollars ($76,000.00) and made payable to Aaron Hassay, Plaintiff. The 18 check will be mailed to Plaintiff’s attorneys, Benjamin Rothstein and Emily Hasselberg, at the 19 following address: KEKER, VAN NEST & PETERS LLP, 633 Battery Street, San Francisco, CA 20 94111-1809. Plaintiff’s attorneys agree to distribute the settlement proceeds to the Plaintiff. 21 Defendant expects that payment to Plaintiff will be made within ninety (90) days of the execution of 22 this agreement by all parties, but it is possible that payment could take longer to process. 23 12. Tax Liability. There shall be no withholding from this amount. Plaintiff understands 24 that this payment will be reported to the Internal Revenue Service, and that any questions as to the 25 tax liability, if any, as a result of this payment is a matter solely between Plaintiff and the relevant 26 tax authorities. If any withholding or income tax liability is imposed upon Plaintiff based on 27 payment of the Settlement Amount, Plaintiff shall be solely responsible for paying any such 1 agreement by the United States of America concerning the characterization of the Settlement 2 Amount for the purposes of the Internal Revenue Code, Title 26 of the United States Code. 3 13. Treasury Offset Program. Nothing in this Agreement waives or modifies federal, state, 4 or local law pertaining to taxes, offsets, levies, and liens that may apply to this Agreement or the 5 settlement proceeds, and Plaintiff is executing this Agreement without reliance on any representation 6 by Defendant as to the application of any such law. Accordingly, the United States may offset 7 against the Settlement Amount Plaintiff’s delinquent debts to the United States, if any. See Astrue v. 8 Ratliff, 560 U.S. 586 (2010). 9 14. Choice of Law and Venue. This Agreement is governed by the laws of the United 10 States. The exclusive jurisdiction and venue for any dispute relating to this Agreement is the United 11 States District Court for the Northern District of California. The Honorable Kandis A. Westmore 12 shall retain jurisdiction of this Settlement Agreement and the enforcement thereof. 13 15. Construction. Each party hereby stipulates that it has been represented by and has relied 14 upon independent counsel in the negotiations for the preparation of this Agreement, that it has had 15 the contents of the Agreement fully explained to it by such counsel, and is fully aware of and 16 understands all of the terms of the Agreement and the legal consequences thereof, and enters into 17 this Agreement knowingly and voluntarily. For purposes of construction, this Agreement shall be 18 deemed to have been drafted by all Parties to this Agreement and shall not, therefore, be construed 19 against any Party for that reason in any subsequent dispute. 20 16. Severability. If any provision of this Agreement shall be invalid, illegal, or 21 unenforceable, the validity, legality, and enforceability of the remaining provision shall not in any 22 way be affected or impaired thereby. 23 17. Integration. This instrument shall constitute the entire Agreement between the parties, 24 and it is expressly understood and agreed that the Agreement has been freely and voluntarily entered 25 into by the parties hereto with the advice of counsel, who have explained the legal effect of this 26 Agreement. The parties further acknowledge that no warranties or representations have been made 27 on any subject other than as set forth in this Agreement. This Agreement may not be altered, 1 || modified or otherwise changed in any respect except by writing, duly executed by all of the parties 2 || or their authorized representatives. 3 18. Outstanding Liens for Medical Treatment. Plaintiff is solely responsible for satisfying 4 || any and all outstanding liens relating to Plaintiff's medical treatment arising out of the subject matter 5 || of this action. Plaintiff shall indemnify Defendant from any liability Defendant may incur from any 6 || lien claimant arising out of Plaintiff’s failure to satisfy outstanding lien(s). 7 8 || DATED: August 14, 2020 Respectfully submitted, 9 DAVID L. ANDERSON United States Attorney 10 /s/ 11 KENNETH W. BRAKEBILL* Assistant United States Attorney 12 Attorneys for Defendant 13 || DATED: August 14, 2020 {Sf 14 BENJAMIN D. ROTHSTEIN

EMILY A. HASSELBERG

15 KEKER, VAN NEST & PETERS LLP 16 Attorneys for Plaintiff 17 18 || * Jn compliance with Civil Local Rule 5-1(i), the filer of this document attests that all signatories 19 listed have concurred in the filing of this document. 20 21 22 23 PURSUANT TO STIPULATION, IT IS SO ORDERED. 24 25 || Dated: August 14, 2020 LY \.- L} 7

HONORABLE THOMAS S. HIXSON

26 United States Magistrate Judge 27 28

STIPULATION OF SETTLEMENT AND DISMISSAL WITH PREJUDICE: [PROPOSED] ORDER