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Home My WebLink AboutGUZMAN, DAVIDINSURANCE NOT REQUIRED WORK MAY PROCEED CITY CLERK N-2023-228 DATE: 0: coo (n) Assumption of Defense and Reservation of Rights Agreement ( 5, W ; t I1AiNS� 6a This. Assumption of Defense and Reservation.of Rights Agreement (the "Agreement") is entered into by David Guzman; an individual ("Guzman"), and the City of Santa Ana ("City"). RECITALS A. Guzman was an employee of the City and held the position of a law enforcement officer. c� N - r B. On August 28, 2018, a Complaint was filed in the United States District Court, Case No. 8:18-cv-01537-DOC-ADS, entitled, Rogello Reyes v. City of Santa Ana, Kameron Henderson, Matthew D. Wharton, David Guzman; Justin L. Collins, Jonathon Perez, Anh Tits S. Phan, Kenneth Gray, Daniel Carrillo, DOES I through 10. The Complaint alleged civil rights violations and is no longer pending. C. On January 22, 2020, a Complaint was filed in the United States District Court, Case No. 8:20-CV-00071 DOC(ADSx), entitled, Lorena. Reyes v. City of Santa Ana, Kameron Henderson, Matthew D. Wharton, David Gurtnan, Justin L. Collins, Jonathon Perez, Anh Tu S. Phan, Kenneth Gray, Daniel Carrillo and DOES I through 10; The Complaint alleges unlawful / unreasonable seizure of a person, excessive / unreasonable use of force on a person, unreasonable / unlawful envy into and search and seizure of a private residence, and a violation of fourth amendment rights. D. On or about August 27, 2021, s Complaint was filed in the Orange County Superior Court, Case No. 30-2021-0.1218405-CU-CR-CJC, entitled, Rogelio Reyes v. City of Santa Ana, Kameron Henderson, Matthew D. Wharton, David Guzman, Justin L. Collins, JonathanL. Collins, ,Tnathon Perez, Anh TuS Phan, Kenneth Gray, Daniel Carrillo and DOES 1 through 10. The Complaint alleges false arrest / false imprisonment. E. Under California Government Code sections 825 and 995, Guzman previously agreed to allow the City to provide Guzman with a legal defense in the lawsuits mentioned above (the. "Lawsuits"), and signed an authorization of defense providing that the City Attorney's Office was authorized to defend him in the Lawsuits. F. On May 9, 2023, a Complaint was filed in the Orange County Superior Court, Case No. 30-2023-01323955-CU-OE-CJC, entitled, David Guzman v. City ofSanta Ana, a Municipal Corporation; Santa Ana Police Department, a public safety department; DOES 1-X. G. 'The City has since determined that there is a potential conflict and/or an. actual conflict of interest between Guzman and the City which warrants that separate counsel be provided to Guzman for his representation in the Lawsuits. Ii. City desires and agrees to provide a legal defense of Guzman in the Lawsuits 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 The City, at its sole discretion, will -select and pay for separate counsel to represent Guzman, in this matter on the condition that Guzman reasonably and in good faith cooperate: in the conduct of Guzman's defense with the City and understand that the City is reserving its rights pursuant to Section 3 of this Agreement. 2. Acknowledgements Guzman. acknowledges that he;, A. Has been advised by the City that his interests in the Lawsuits conflict or may conflict with those -of the City. B. Has received fi•orn City a fill 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 Lawsuits under these circumstances. 3. Reservation of Ri¢hts A. Linde= California Government Code section 825.(a), the City reserves its rights not to pay any j udgment, compromise or settlement on behalf of Guzman until it is established that the injury complained of in the above -referenced action arose out of an act or omission occurring within tile scope of Guzman°s position and duties as a law enforcement 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 Guzman in connection with the Lawsuits; the City reserves its right to seek indemnity for such payment fiom Guzman, unless Guzman establishes that the action complained of in the Lawsuits arose within the scope of Guzman's position and duties as an employee of the City and the City cannot establish that Guzman's actions were the result of actual fraud, corruption or actual malice. C. Under California Goverment Code section 825.2(b), if the City does, not pay any portion of a judgment; compromise or settlement on Guzman's behalf in correction with the. Lawsuits, Guzman may seek recovery of such amount.frorn City only if Guzman establishes that: (1) the act or omission upon which the claim or judgment is based occurred. within: the scope of Guzman's position and duties as a law enforcement officer of the City, and (2) if the City fails to establish that Guzman acted or failed to act due to actual fraud, corrgption, or actual tuahce,'or that Guzman willfully failed or refused to conduct the defense of the claim or action in good faith,. or that Guzman failed to reasonably cooperate in good. faith in the defense conducted by City. 4. Execution of Other Documents Guzman 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. S. Attornev's pees If Guzman 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. S'everability 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 pot.be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent permitted by law. 7. 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 ht Superior Court in Orange County, California. 8. 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 and may be. transmitted by facsimile or e-mail. 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, [CONTINUED ON NEXT PAGE] N-2023-228 ATTEST: Kristine Ridge F CityManager City of Santa Ana FORMER EMPLOYEE: Da id Guzman Date: k / i- / Z 3 APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: TAMARA BOGOSIAN Senior Assistant City Attorney