Metropolitan News-Enterprise


Tuesday, July 5, 2016


Page 1


C.A. Tosses Order County Pay Damages Imposed on Deputies




A Los Angeles Superior Court judge erred in granting summary adjudication in favor of three sheriff’s deputies seeking indemnification as a result of a judgment entered against them for beating a jail inmate, this district’s Court of Appeal ruled Friday.

Div. Five held that David Chang, Kris Cordova, and Anthony Pimentel were not entitled to indemnification because there was, “at the very least, a triable issue of fact” as to whether they were guilty of malice in the attack on Alejandro Franco, which resulted in a judgment for more than $650,000 that the county has resisted paying.

According to news accounts, Franco said he was beaten after asking for a clean shirt, saying the one he was wearing had come back from the laundry with a foul odor. Cordova accused him of “trying to get over on me,” he testified, and that night, the three deputies came to his cell to conduct a random search, took him to another area of the jail, and pepper-sprayed his anus and groin, after he was hit repeatedly.

Each of the deputies entered into a defense-and-indemnification agreement with the county, which was a defendant in the action at the time.

Among other things, the agreements each provided that if the case resulted in a claim or judgment against the county, the county “may recover the amount of such payment from you unless...the County fails to establish that you acted or failed to act because of actual fraud, corruption or actual malice, or that you willfully failed or refused to reasonably cooperate in good faith in the defense conducted by the public entity.”

The county won summary judgment shortly before the case went to trial against the deputies.

Fifth Amendment

The three pled the Fifth Amendment. Their attorneys argued that there was little evidence to support the claim, and that the emotional distress that formed the crux of the plaintiff’s alleged damages was actually the result of Franco’s difficult upbringing and drug abuse.

Jurors awarded Franco $85,000 compensatory and $50,000 punitive damages against each defendant. U.S. District Judge Valerie Baker Fairbank—who later left the court due to disability—awarded nearly $7,000 in costs and nearly $$190,000 in attorney fees against the defendants, jointly and severally.

Franco’s counsel sought to collect the judgment by attaching the deputies’ bank accounts, and—in Cordova’s case—garnishing wages from a subsequent job at a hospital, federal court records show.

In the indemnification suit, the three claimed that the county, which defended them under a reservation of rights, was required to pay all but the punitive damages, pursuant to Code of Civil Procedure §825. The statute requires a government agency to defend and indemnify a public employee against claims arising out of an act or omission occurring within the scope of his or her employment.

The county, however, pled an exception under §825.2, which provides in part that “if the public entity conducted such defense pursuant to an agreement with him reserving the rights of the public entity against him, an employee or former employee of a public entity may recover from the public entity…only if…the public entity fails to establish that he acted or failed to act because of actual fraud, corruption or actual malice.”

‘Sensible Interpretation’

Brazile ruled for the deputies, saying the county did not reserve the right to withhold indemnification. But Justice Sandy Kriegler, writing for the Court of Appeal, said the “most sensible interpretation” of §825.2 was “that when a public entity defends an employee under a reservation of rights which includes reserving the right of indemnity for acts or omissions because of actual malice, corruption or actual fraud, then the requirements of section 825.2 must be satisfied to be entitled to indemnification.”

Because the deputies agreed to indemnify the county if they were found to have acted with malice, the justice said, it was implied that the county reserved the right not to indemnify the deputies if they were found to have so acted. “Therefore, the deputies’ motion for summary adjudication of the issue of indemnification should have been denied,” the justice wrote.

The court sent the case back to the trial court for further proceedings on the county’s motion for summary adjudication.

Attorneys on appeal were Thomas C. Hurrell and Melinda Cantrall of Hurrell Cantrall for the county and Green & Shinee’s Elizabeth J. Gibbons and Amanda J. Waters for the deputies.

The case is Chang v. County of Los Angeles, B261194.


Copyright 2016, Metropolitan News Company