CCP 1542 in laymans terms please?

[750Chestnut]

California

Can someone tell me in plain english what CCP 1542 means? As a settling defendant, what or what protections am I giving up if anything by signing this?

""10. Except as set out herein, the Parties release all claims and causes of action that each party may have against each other as of the date this stipulation is executed by the respective parties,including those claims and causes of action which are unknown and normally retained under Civil Code Section 1542. This release also binds heirs, assignees, agents, attorneys and successors of the Parties. This waiver and release is further extended to Plaintiff's agents, partners, trustees, attorneys, independent contractors, and all others associated with Plaintiff or acting on behalf of Plaintiff, from the beginning of time up to and including the day this Stipulation is fully executed. Parties warrant that they have read, understood, and knowingly waive the provisions of that Civil Code Section

which reads as follows:

"A general release does not extend to claims which a creditor does not know or suspect to

exist in his or her favor at the time of the execution of the release, which if known by him or

her must have materially affected this settlement with the debtor." ""

Is 1542 a general claim, and so the plaintiff is allowed to find another reason to sue me later, even with regards to what we are settling on. ???
Thanks

 

[quincy]

California

Can someone tell me in plain english what CCP 1542 means? As a settling defendant, what or what protections am I giving up if anything by signing this?

""10. Except as set out herein, the Parties release all claims and causes of action that each party may have against each other as of the date this stipulation is executed by the respective parties,including those claims and causes of action which are unknown and normally retained under Civil Code Section 1542. This release also binds heirs, assignees, agents, attorneys and successors of the Parties. This waiver and release is further extended to Plaintiff's agents, partners, trustees, attorneys, independent contractors, and all others associated with Plaintiff or acting on behalf of Plaintiff, from the beginning of time up to and including the day this Stipulation is fully executed. Parties warrant that they have read, understood, and knowingly waive the provisions of that Civil Code Section

which reads as follows:

"A general release does not extend to claims which a creditor does not know or suspect to

exist in his or her favor at the time of the execution of the release, which if known by him or

her must have materially affected this settlement with the debtor." ""

Is 1542 a general claim, and so the plaintiff is allowed to find another reason to sue me later, even with regards to what we are settling on. ???
Thanks

I answered your question earlier then decided I better review the background information disclosed in your other thread. It didn't tell me much, other than you probably should have had an attorney handle all of this for you.

What "Number 10" in the settlement agreement does is eliminate from all consideration any claims that might otherwise arise from this matter. Upon signing the settlement agreement, the action ends there for all parties - regardless of what may be discovered later pertaining to the matter, that could have or would have benefited one party had it been known at the time.

CCP 1542 allows for property that has already been paid or delivered to be recovered by another state should certain conditions exist. Number 10 in the settlement agreement releases any 1542 claims.

With that said, I recommend you have the agreement reviewed in its entirety by an attorney in your area prior to signing - as it is hard to accurately define the meaning of excerpts when they are taken out of context.

 

[justalayman]

Is 1542 a general claim, and so the plaintiff is allowed to find another reason to sue me later, even with regards to what we are settling on. ???
Thanks

it means if there is a possible claim the creditor is not aware of when signing the release, they can sue you for the new found claim.

 

[quincy]

it means if there is a possible claim the creditor is not aware of when signing the release, they can sue you for the new found claim.

I read Number 10 differently, justalayman.

Number 10 is specifically saying that all claims and causes of action are released, even those discovered later.

Here is a link to California Code of Civil Procedure §1542: http://law.onecle.com/california/civil-procedure/1542.html

Here, for anyone who wants to read it, is a link to 750Chestnut's other thread: https://forum.freeadvice.com/civil-litigation-46/can-i-respond-disagreement-proposed-order-reclassification-leave-604479.html

 

[justalayman]

Um, never mind.

If you leave off the "P" of CCP, it really changes the answer.

Time to try for some sleep.

 

[quincy]

Um, never mind.

If you leave off the "P" of CCP, it really changes the answer.

Time to try for some sleep.

Sleep is good.

Actually, I am not seeing how §1542 plays into any of this at all anyway. I thought 750Chestnut's other thread might enlighten me some. . . . . but it didn't.

 

[750Chestnut]

Thanks Quincy and everyone

The 1542 comes into play as I offered to settle, but only if the "hold harmless" language was in there.

Quincy, I thought you had replied on the other thread as well? Maybe not.

I had an attorney, couldn't keep up with the bills, now pro per. None of the legal assistance programs in Nor Cal, were able to help me with representation--a civil case they do not handle. I have an attorney supervised paralegal helping me, so not entirely alone.

Most of the settlement letter I understand, but wanted to be sure the "hold harmless" language was in there, and that 1542 was, as I read it, that it would cover any possible future claims from this plaintiff. Still, the paralegal and attorney will review it for me and let me know what it all means in laymen's terms.

Thanks so much!

 

[quincy]

The 1542 comes into play as I offered to settle, but only if the "hold harmless" language was in there.

Quincy, I thought you had replied on the other thread as well? Maybe not.

I had an attorney, couldn't keep up with the bills, now pro per. None of the legal assistance programs in Nor Cal, were able to help me with representation--a civil case they do not handle. I have an attorney supervised paralegal helping me, so not entirely alone.

Most of the settlement letter I understand, but wanted to be sure the "hold harmless" language was in there, and that 1542 was, as I read it, that it would cover any possible future claims from this plaintiff. Still, the paralegal and attorney will review it for me and let me know what it all means in laymen's terms.

Thanks so much!

First, I want to say that justalayman was right to drop the "P" from the "CC," as it is California's Civil Code §1542 which applies in your settlement agreement (CC §1542 is quite a bit different from CCP §1542). Here is a link to the proper §1542: http://law.onecle.com/california/civil/1542.html

I understand why people handle their cases on their own, 750Chestnut. The cost of an attorney can often be financially out-of-reach for many. There has been discussion at various times throughout the years of establishing something similar to the public defenders available in criminal cases for civil cases. It would be nice, I think.

It is smart for you to have the paralegal, under the supervision of the attorney, review the settlement agreement prior to signing it. It appears from the section of the agreement you have posted here, though, that if the parties sign this agreement, no future claims can be pursued against you by the plaintiff in this matter.

Good luck.

 

[justalayman]

Now how's that for lucky. I was wrong but ended up being right.

Using CC instead of CCP I agree with Quincy. CC 1542 allows new claims discovered after this settlement so waiving it would remove that right.

Chestnut must remember that if there is ambiguity in the language of the contract it will be read in the most favorable light for the party that did not write it. If chestnut is writing this, he needs to take all efforts that any hold harmless clause is quite clear in its intent. The fact that he is here alone means the clarity is in question.

 

[quincy]

Now how's that for lucky. I was wrong but ended up being right.

Using CC instead of CCP I agree with Quincy. CC 1542 allows new claims discovered after this settlement so waiving it would remove that right.

Chestnut must remember that if there is ambiguity in the language of the contract it will be read in the most favorable light for the party that did not write it. If chestnut is writing this, he needs to take all efforts that any hold harmless clause is quite clear in its intent. The fact that he is here alone means the clarity is in question.

As it turns out, I needed more sleep than you did, justalayman, because after re-reading your post, there was actually nothing incorrect about what you wrote - given the quoted portion you were answering (and the quoted portion was, in fact, one of the questions 750Chestnut asked). The "1542" does mean what you said it meant, when leaving off the extraneous letter P.

My answer, on the other hand, handled the whole of Number 10, which addressed his second question.

So, essentially, although both of us were apparently sleep-deprived, both of our answers were right. Yay for us.

I think the first sentence in Number 10 is fairly easy to understand but it does get a bit confused after that. I agree with you that it is important for 750Chestnut to make sure he understands the agreement in its entirety before signing (and that what he understands the agreement to say is what the other party intended it to mean).

 

[750Chestnut]

You two are almost making me laugh.

Now, I'm totally confused you two!! lol. Will see what my "peeps" say tonite. Here it is again if you've anything further?



">>10. Except as set out herein, the Parties release all claims and causes of action that each

party may have against each other as of the date this stipulation is executed by the respective parties,

including those claims and causes of action which are unknown and normally retained under Civil

Code Section 1542. This release also binds heirs, assignees, agents, attorneys and successors of the

Parties. This waiver and release is further extended to Plaintiff's agents, partners, trustees, attorneys,

independent contractors, and all others associated with Plaintiff or acting on behalf of Plaintiff, from

the beginning of time up to and including the day this Stipulation is fully executed. Parties warrant

that they have read, understood, and knowingly waive the provisions of that Civil Code Section

which reads as follows:

"A general release does not extend to claims which a creditor does not know or suspect to

exist in his or her favor at the time of the execution of the release, which if known by him or

her must have materially affected this settlement with the debtor."


The Parties acknowledge that they voluntarily execute this Stipulation with full knowledge

of its significance and with the express intent to affect the legal consequences provided by Section

1542 of the California Civil Code.<<"

 

[quincy]

Now, I'm totally confused you two!! lol. Will see what my "peeps" say tonite. Here it is again if you've anything further?



">>10. Except as set out herein, the Parties release all claims and causes of action that each

party may have against each other as of the date this stipulation is executed by the respective parties,

including those claims and causes of action which are unknown and normally retained under Civil

Code Section 1542. This release also binds heirs, assignees, agents, attorneys and successors of the

Parties. This waiver and release is further extended to Plaintiff's agents, partners, trustees, attorneys,

independent contractors, and all others associated with Plaintiff or acting on behalf of Plaintiff, from

the beginning of time up to and including the day this Stipulation is fully executed. Parties warrant

that they have read, understood, and knowingly waive the provisions of that Civil Code Section

which reads as follows:

"A general release does not extend to claims which a creditor does not know or suspect to

exist in his or her favor at the time of the execution of the release, which if known by him or

her must have materially affected this settlement with the debtor."


The Parties acknowledge that they voluntarily execute this Stipulation with full knowledge

of its significance and with the express intent to affect the legal consequences provided by Section

1542 of the California Civil Code.<<"

The part that says "Except as set out herein" is the reason why you need to have the entire agreement reviewed, as the part that is not "excepted" can be (and probably is) sort of important.

Other than that, Number 10 releases the plaintiff (and you) from any other claims. Once the agreement is signed by both parties, you cannot come back and sue the plaintiffs and the plaintiffs cannot come back and sue you. Any rights either you or the plaintiff might have had under Section 1542 of the California Civil Code have been waived with this agreement - so anything that is found at a later date that could have been of benefit to you or to your plaintiffs cannot be used as the basis for a suit.

Even though the wording of Number 10 is a little confused, it appears to protect you sufficiently from any future claims arising out of the same transaction that led to this suit.

I recommend you review the entire agreement with your "peeps" prior to signing (and I am assuming your peeps are the attorney and paralegal) so that you have a clear understanding of what you are agreeing to - and it is important to make sure that your understanding is the same as the plaintiff's understanding.

Good luck.


(and I apologize if I added to your confusion with my banter with justalayman)

 

[750Chestnut]

Thanks!

Thanks for clearing that up. Yes, will definitely meet with Para and Legal tonite.

 

[quincy]

Thanks for clearing that up. Yes, will definitely meet with Para and Legal tonite.

Sounds good.

And I hope that, after the settlement agreement is signed and behind you, you will never ever have to go through another "adventure" in civil litigation again.