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HomeMy WebLinkAboutSHYNN, CHRISTOPHER 19n N-2096-038 Assumption of Defense and Reservation of Rights Agreement This Assumption of Defense and Reservation of Rights Agreement (the "Agreement") is entered into by Christopher Shyan, an individual ("SITYNN"), and the City of Santa Ana ("CITY"). RECITALS A. On or about June 3, 2015 and thereafter, the City was served with three separate lawsuits naming the CITY and SIIYNN as defendants. The lawsuits have all been consolidated into one and are entitled MMZ, by and through her guardian ad litem JAZMIN ZARA TE, as successor in interest to ERNESTO CANEPA, deceased and JAZM. IN ZARA TE, JUANA DIAZ, ERNESTO CANEPA ALVARE7 individually v. CITY OF SANTA ANA, CHRISTOPHER SITYNN, and DOES 1 through 10, INCLUS'I'VE, United States District Court Case No. 8:15-ev-00851; DC by and through his guardian ad litem MARIA GUADALUPE GARCIA v. CITY OF SANTA ANA, CHRISTOPHER SITYNN, and DOES I THROUGH 10; INCLUSIVE, United States District Court Case No.. 8:15-cv-00852; and El.0 and Er.0 by and through their guardian ad litem TERESA GARCIA, individually and as successor in interest to ERNESTO CANEPA, deceased, v. CITY OF SANTA ANA, CHRISTOPHER SITYbi 'h; and DOES 1 THROUGH 10, INCL USIVE, United States District Court Case No. 2:15-ev-04071 (the "Lawsuits"). The Lawsuits assert claims against CITY and all defendants for unreasonable search and seizure -detention and arrest (42 USC section 1983); Unreasonable search and seizure -excessive force (42 USC section 1983); Substantive Due Process (42 USC section 1983); and municipal liability for unconstitutional custom, practice or policy (42 USC section 1983). Plaintiffs seek damages against CITY and SIIYNN, A. Under California Government Code sections 825 and 995, SITYNN has requested that CITY provide his legal defense in the Lawsuit and signed an authorization of defense providing that the City Attorney's Office was authorized to defend him in this matter. C. On October 5, 2015, SITYNN was served with a Notice of Intent to Discipline as a result of the incident that forms the basis for this lawsuit. As a result, the City of Santa Ana has now determined that there is an actual conflict of interest between SITYNN and the CITY warranting that separate counsel be provided to SITYNN for his representation in this matter. D. CITY desires and agrees to provide a legal defense of SITYNN in the Lawsuit on the terms and conditions set forth herein. Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged —including, without limitation, the recitals, the covenants, conditions, representations and warranties set forth in this Agreement — the parties hereto agree as follows: 1. Provision of Defense A. The CITY, at its sole discretion, will select and pay for separate counsel to represent SITYNN in this matter on the condition that SITYNN reasonably and in good faith cooperate in the conduct of SITYNN'S defense with the CITY and understand that the CITY is reserving its rights pursuant to Section 3 of this Agreement. B. SITYNN and CITY agree that this Agreement has been entered into for the benefit of SITYNN and that CITY shall be deemed a third party beneficiary of this Section 1 and Section 2. 2. Acknowled eg ments SITYNN acknowledges that he: A. SITYNN has been advised by the CITY that his interests in the Lawsuit conflict with those of the CITY. B. Has received from CITY and his current counsel a full disclosure of the facts pertaining to present and potential conflicts of interest; C. Has been advised by the CITY to seek independent counsel regarding this Agreement; and D. Consents to representation by counsel of CITY'S choosing in the Lawsuit under these circumstances. 3. Reservation of Rivhts A. Under California Government Code section 825(a), the CITY reserves its rights not to pay any judgment, compromise or settlement on behalf of SITYNN until it is established that the injury complained of in the above -referenced action arose out of an act or omission occurring within the scope of SITYNN'S position and duties as a Police Officer employed by the CITY. B. Under California Government Code section 825.6(a), if the CITY pays any portion of a judgment, compromise or settlement on behalf of SITYNN in connection with the lawsuit, the CITY reserves its right to seek indemnity for such payment from SITYNN, unless SITYNN establish that the action complained of in the Lawsuit arose within the scope of SITYNN'S positions and duties as an employee of the CITY and the CITY cannot establish that SITYNN's actions were the result of actual fraud, corruption or actual malice. C. Under California Government Code section 825.2(b), if the CITY pays any portion of ajudgment, compromise or settlement on SITYNN'S behalf in connection with the Lawsuit, SITYNN may seek recovery of such amount from CITY only if SITYNN establishes that the act or omission upon which the claim or judgment is based occurred within the scope of SITYNN'S position and duties as a Police Officer of the CITY and if the CITY fails to establish that SITYNN acted or failed to act because of actual fraud, corruption, or actual malice, or that SITYNN willfully failed or refused to conduct the defense of the claim or action in good faith, or to reasonably cooperate in good faith in the defense conducted by CITY. 4. Execution of Other Documents SITYNN and the CITY hereto agree that they will cooperate with each other and will execute and deliver, or cause to be delivered, all such other instruments, and will take all such other actions, as any party hereto may reasonably request from time to time in order to effectuate the provisions and purposes hereof. Attorney's Fees If SITYNN or the CITY must bring an action to interpret or enforce any provision of this Agreement, or arising out of a misrepresentation contained in this Agreement, then the prevailing party shall be entitled to recover its actual attorneys' fees incurred in connection with such action. 6. Severability If any provision of this Agreement or application to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than as to which it is so determined invalid or unenforceable, shall not be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent permitted by law. Governing Law and Venue This Agreement shall be construed and enforced in accordance with the laws of the State of California. An action filed pursuant to this Agreement shall be filed in superior court in Orange County, California. Counterparts This Agreement may be executed in counterparts, each of which is deemed to be an original, but such counterparts together shall constitute one in the same instrument. All parties acknowledge receipt of a copy of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Assumption of Defense and Reservation of Rights Agreement, and when fully executed it shall be effective. ATTEST: 'r ' 44q MAR.I ZA Clerk of the Councck EMPLOYEE: Q4SO&SI-i an Individual CITY OF SANTA ANA 1 DAVID CAVAZOS City Manager 2 -25-1 to