Duitruk v LQ - 78380 Via Sevilla - 2021 Settlement Agrmt
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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (hereinafter the “Agreement”) is entered by and
between the CITY OF LA QUINTA, a California municipal corporation (“City”), and NEAL
LOHNER and ANNA DUITRUK, the homeowners (“Homeowners”) and is binding and effective
as of the Effective Date (defined below). The City and Homeowners are referred to jointly
hereinafter individually as a “Party” and collectively as the “Parties.” The Parties enter into this
Agreement with reference to the following:
R E C I T A L S
A. WHEREAS, on January 5, 2021, the City issued a citation to Neal Lohner stating
a violation of “LQMC 3.25.070(E) Audible Sound” and that states “La Quinta Municipal Code
3.25.090(F) Successor Provision,” identified as Citation No. LQ#162116 (“Citation”), for the
residential property located at 78380 Via Sevilla, La Quinta, CA 92253 (“Subject Property”),
which operated as a Short Term Vacation Rental (“STVR”) pursuant to La Quinta Municipal Code
chapter 3.25;
B. WHEREAS, Homeowners contend that the violations alleged in the Citation are
not true and the Citation is not valid. The City contends that the Citation is valid.
C. Whereas, Homeowners appealed the Citation; and after an administrative hearing
on August 24, 2021, the Citation was upheld by the Hearing Officer.
D. WHEREAS, on September 21, 2021, Homeowners filed a Petition for Writ of
Administrative Mandamus with the Riverside County Superior Court bearing Case No.
CVPS2105052 (hereinafter “Action”), seeking to challenge the validity of Citation;
E. WHEREAS, without admitting any liability or wrongdoing whatsoever, the Parties
desire to resolve their dispute and have come to a mutually agreeable settlement as reflected in the
terms herein; and
NOW THEREFORE, in consideration of and in exchange for the promises, covenants,
and releases contained herein, and intending to be legally bound, the Parties mutually agree
as follows:
1. Obligations of the City. In consideration of the terms and conditions set forth in
this Agreement, and full compliance thereof by the Homeowners, the City shall dismiss the
Citation with prejudice within five (5) days of the effective date of this Agreement and will provide
to Homeowners, written confirmation of the dismissal of the Citation.
2. Obligations of Homeowners. In consideration of the terms and conditions set forth
in this Agreement, and full compliance thereof by the City, the Homeowners shall dismiss the
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Action with prejudice against the City within five (5) days of receipt of the City’s written
confirmation of dismissal of the Citation, as described hereinabove.
3. Waiver of Costs and Attorney’s Fees. Each party shall be responsible for
his/her/its/their own costs of suit, attorney’s fees and court costs incurred and/or accrued in
connection with the Citation, the prosecution or defense of the Action, the negotiation of the
Agreement, and related matter; each Party specifically waives any and all claims against any other
Party for the recovery of the same.
4. No Admission or Proof of Fault.
Upon full performance by the Parties to this Agreement of their respective obligations set
forth in Sections 1 and 2 above, this Agreement is intended to be and is a compromise between the
Parties, and nothing in this Agreement shall be interpreted, used, or construed as proof of or an
admission of fault or wrongful conduct of any kind by any of the Parties.
5. Releases.
a. Mutual Releases. Except as to the obligations owing in accordance with the
terms of this Agreement, all Parties hereto, on behalf of themselves and their respective
successors, assigns, officials, directors, officers, employees, insurers, lenders, lien holders,
attorneys, agents, and other representatives, do hereby release and forever discharge each other,
and all of their respective past, present and future predecessors, successors, partners, attorneys
and agents, from any and all claims, actions and causes of action, obligations, liabilities,
indebtedness, breaches of duty, claims for injunctive and other equitable relief, suits, liens, losses,
costs or expenses, including attorney’s fees, of any nature whatsoever, known or unknown, fixed
or contingent as of the date of execution of this Agreement relating to the Citation.
b. Release By City: The City hereby releases Homeowners of all claims related to
the Citation. City will not and cannot use the Citation or its contents for any purpose or in any
decision regarding the Subject Property or Homeowners. The dismissal shall act as if the Citation
was never issued. The Release expressly does not include, and nothing in this Agreement does or
shall be deemed as, a release by the City of any claims, actions and causes of action, obligations,
liabilities, indebtedness, breaches of duty, claims for injunctive and other equitable relief, suits,
liens, losses, costs or expenses, against either Homeowners, or both, relating to any other alleged
or actual violation(s) that do not involve the Citation.
c. Release By Homeowners: Homeowners hereby release the City of all claims
related to the Citation.
d. Waiver of Civil Code Section 1542: By releasing and forever discharging
claims both known and unknown as above provided, the Parties expressly waive any rights under
California 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 OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE WHICH IF KNOWN BY HIM
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OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.”
This Agreement shall constitute a full release and settlement in accordance with its terms and
each Party waives and relinquishes any rights and benefits that they have or may have under
section 1542 of the Civil Code of the State of California regarding the Citation and the Action.
Homeowners and City have performed a full and complete investigation of the facts pertaining to
this Agreement, and Homeowners and City acknowledge and agree that they are aware that they
may hereafter discover facts in addition to or different from those which they now know or believe
to be true with respect to the subject matter of the Releases identified in section 5(a)-(c), but it is
their intention hereby to fully and finally forever settle and release any and all matters, disputes
and differences, known or unknown, suspected and unsuspected, which now exist, may exist or
heretofore have existed, as against each other, relating to the Citation and the Action.
6. Effective Date of Agreement.
This Agreement shall be binding and effective as of the latest date on the signature page of
this Agreement, which date shall be the “Effective Date” of this Agreement.
7. Entire Agreement.
This Agreement form the entire agreement of the Parties pertaining to the subject matter
hereof and supersedes any and all prior agreements or understandings, if any, among them
pertaining to the subject matter hereof, and shall not be modified or altered except by a subsequent
written agreement signed pursuant to Section 14 below. This Agreement shall be binding upon
and shall inure to the benefit of the Parties, their respective successors, assigns, officials, directors,
officers, employees, insurers, lenders, lien holders, attorneys, agents, and other representatives.
8. Representations and Warranties.
The Parties, jointly and severally, hereby expressly represent and warrant that they have
not transferred or assigned or attempted to transfer or assign any of the released claims that are
subject to this Agreement. The persons signing this Agreement hereby represent and warrant that
they have the power and authority to bind any Party on whose behalf this Agreement is signed.
The Parties acknowledge and agree that each Party is materially relying upon the representations
and warranties of the other Party set forth in this Agreement. If any representations or warranties
set forth herein are found to be untrue, then such untrue representation and warranty shall be a
material default and a breach of this Agreement.
9. Controlling Law.
This Agreement shall be interpreted and construed in accordance with the laws of the State
of California without regard to conflict of law principles.
10. Attorneys’ Fees and Costs.
In the event that a Party is required to initiate or defend any litigation relating to or arising
out of this Agreement, the prevailing Party shall be entitled to recover from the other Party(ies)
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his/her/its/their reasonable attorneys’ fees in addition to any costs to which such prevailing Party
shall be entitled to recover pursuant to applicable law.
11. Severability
If any provision or part of this Agreement is held, determined, or adjudicated to be invalid,
unenforceable or void for any reason, each such provision shall be severed from the remaining
provisions of the Agreement and shall not affect the validity and enforceability of such remaining
provisions.
12. Review of Agreement.
The Parties each acknowledge and represent that they have read this Agreement, that they
have had the opportunity to consult with their respective attorneys concerning its contents, that the
Agreement is being executed solely in reliance on their respective judgment, belief, and knowledge
of the matters set forth herein and on the advice of their respective attorneys (if any), and that they
enter this Agreement freely and voluntarily.
13. Neutral Interpretation.
The Parties agree that all parts of this Agreement shall in all cases be construed as a whole
according to their fair meaning and shall not be construed strictly for or against any Party hereto.
14. Modification.
This Agreement shall not be modified, amended or supplemented unless such
modifications, amendments or supplements are in writing and signed by all Parties.
15. Enforcement. The Parties agree that this Agreement is enforceable under
California Code of Civil Procedure section 664.6. The Parties also each agree that the Court shall
retain jurisdiction over the Action for the purpose of entering any orders pertaining to enforcement
of this Agreement.
16. Counterparts.
This Agreement may be executed in counterparts and by facsimile or other electronic
delivery, each of which shall be deemed an original and all of which together shall constitute one
and the same instrument.
[signatures on next page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth
below.
Date: November ___, 2021 NEAL LOHNER
By:________________________________
Print Name:
Owner of Property/Holder of STVR Permit
Date: November ___, 2021 ANNA DUITRUK
By:________________________________
Print Name:
Owner of Property/Holder of STVR Permit
Date: November ___, 2021 CITY OF LA QUINTA
___________________________________
By: Jon McMillen
Its: City Manager
ATTEST:
________________________________
Monika Radeva
City Clerk
APPROVED AS TO FORM
By:________________________________
William H. Ihrke
City Attorney
___________________________________________________
onika Radeva
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