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TY OF FRESNO I
'lO, CALIFOJUHA
AGR EEMENT NO. 15-086
AGREEMENT TO DEFEND PUBLIC OFFICER OR EMPLOYEE
WHEREAS , the undersigned officer or employee is a party defendant in th
following action:
NAME OF CASE : Alexander Gabriel Marez v The County of Fresno, et al.
ACTION NO .: 14CECG03087 COURT: Fresno County Superior Court
WHEREAS , the said officer or employee claims that the said action has arisen out of
alleged acts or omissions which , if they occurred at all , occurred within the course and scope of
his employment as an officer or employee of the County of Fresno or of a Judicial District thereo
and were not the result of fraud , corruption or malice ; and
WHEREAS , the said officer or employee has requested that the County of Fresn
undertake his defense in said action pursuant to Article 4 (commencing with section 825),
Chapter 1, Part 2 , Division 3.6 of Title 1 of the Government Code and said County is willing t
conduct said defense subject to a reservation of its rights to the full extent permitted in said
provision of the Government Code .
NOW, THEREFORE , it is mutually agreed by and between the County of Fresn
and the undersigned officer or employee that the County of Fresno will undertake the defense o
said officer or employee in the aforesaid action subject to reservation by the County of Fresno o
its rights to the full extent to which a public entity is permitted to reserve its rights in defending
public officer or employee under Article 4 (commencing with Section 825) Chapter 1, Part 2 ,
Division 3 .6 of Title 1 of the Government Code . A copy of said provisions of the Governmen
Code is marked Exhibit "A" attached hereto and is by this reference made a part hereof.
Dated this lOth day of March , -=2=0:....:.1.:::.5 ___ , in the County of
Fresno , State of California . COUNTY
APPROVEDASTOLEGALFORM
DANIEL CEDERBORG ,
CO N
ATTEST :
BERNICE E. SEI DEL , Cl erk
Boa rd of Superv isors
By ~.&~
De puty
:y ? -5 -;;---,
Officer or Employee
Ricardo Arroyo
Correctional Officer Ill
EXHIBIT "A"
ARTICLE 4.INDEMNIFICATION OF PUBLIC EMPLOYEES
825. Duty of public entity to pay judgement,compromise,or settlement.
(a)Except as otherwise provided in this section,if an employee or former employee ofa public entity requests
the public entity to defend him or her against any claim or action against him or her for an injury arising out ofan act or
omission occurring within thescope ofhisorher employment as an employee ofthe public entity and the requestismade in
writing not less than 10 days before the day of trial,andthe employee or former employee reasonably cooperates in good
faith in the defenseofthe claim or action,the public entity shall payany judgment based thereon or any compromise or
settlement ofthe claim or action to which the public entity has agreed.
If the public entity conducts the defense ofan employee or former employee againstany claim or action with his
or her reasonable good-faith cooperation,the public entity shall pay any judgment based thereon or any compromise or
settlement ofthe claim or action to which the public entity has agreed.However,where the public'entity conducted the
defense pursuant toan agreement with the employee or former employee reserving the rights ofthe public entity not to pay
the judgment,compromise,or settlement until itis established thatthe injury aroseoutofan actor omission occurring within
the scope of his orher employment as an employee ofthe public entity,the public entity is required to pay the judgment,
compromise,or settlement only ifitis established thatthe injury arose outofan act or omission occurring inthe scope ofhis
orher employment as an employee ofthe public entity.Nothing inthis section authorizes a public entity to paythat partofa
claim or judgment that is for punitive or exemplary damages.
(b)Notwithstanding subdivision (a)oranyother provision of law,a public entity is authorized to paythatpartof
a judgment that isfor punitive or exemplary damages ifthe governing bodyofthat public entity,acting in itssole discretion
except in cases involving an entity ofthe state government,finds all of the following:
(1)The judgment is based on an act or omission of an employee or former employee acting within the course
and scope of his or her employment as an employee of the public entity.
(2) Atthe time of the act giving rise to the liability,the employee or former employee acted, or failed to act, in
good faith,without actual maliceand inthe apparent best interests ofthe public entity.
(3) Payment ofthe claim or judgment would be inthe best interests ofthe publicentity.
As used in this subdivision with respect to an entity of state government,"a decision ofthe governing body"
means the approval ofthe Legislature for payment ofthat part of a judgment that is for punitive damages or exemplary
damages,upon recommendation ofthe appointing power ofthe employee or former employee,based upon the finding by
the Legislature and the appointing authority ofthe existenceofthe three conditions for payment ofa punitive or exemplary
damages claim.The provisions of subdivision (a)ofSection 965.6 shallapplyto the paymentofany claimpursuantto
this subdivision.
The discovery ofthe assets ofa public entity and the introduction of evidence ofthe assets ofa public entity
shall notbe permitted in an action in which itis alleged thata public employee is liable for punitive or exemplary damages.
The possibility that a public entity may pay that part of a judgment that is for punitive damages shall not be
disclosed in any trial in which it is alleged that a publicemployee is liable for punitive or exemplary damages, and that
disclosure shall be grounds for a mistrial.
(c) Except as provided insubdivisionjd), ifthe provisions ofthis section are in conflict wfth the provisions ofa
memorandum of understanding reached pursuant to Chapter 10 (commencing withSection 3500) of Division 4 ofTitle 1,the
memorandum of understanding shall be controlling without further legislative action, except that if those provisions of a
memorandum of understanding require the expenditure of funds,the provisions shallnot become effective unless approved
by the Legislature in the annual Budget Act.
(d)The subject ofpayment of punitive damages pursuant to this section or any other provision oflawshall notbe
a subject ofmeet and confer under the provisions of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1,or
pursuant to any other law or authority.
(e)Nothing in this section shall affect the provisions of Section 818 prohibiting the award of punitive damages
againsta public entity.Thissectionshallnot be construedas a waiverofa public entity's immunity from liability for punitive
damages under Section 1981,1983,or 1985 of Title 42 of the United States Code.
(f)(1) Except as provided in paragraph (2), a publicentityshall not pay a judgment, compromise, or settlement
arising from a claim or action against an elected official,if the claim or action is based on conduct bythe elected official by
wayof tortiously intervening or attempting to intervene in, or by way of tortiously influencing or attempting to influence the
outcome of,any judicial action or proceeding for the benefit of a particular party by contacting the trial judge or any
commissioner,court-appointed arbitrator,court-appointed mediator,or court-appointed special referee assigned to the
matter,or the court clerk,bailiff,or marshalafter an action has been filed,unless he or she was counsel of record acting
lawfully within the scope of his or her employment on behalf of that party.Notwithstanding Section 825.6,if a public entity
conducted the defenseofan elected official againstsucha claim or action and the elected official is found liable bythe trier
offact,the courtshall order the elected official to pay to the publicentitythe cost ofthat defense.
(2)If an elected official is held liable for monetary damages inthe action,the plaintiff shall first seek recovery of
the judgment against the assets of the elected official.If the elected official's assets are insufficient to satisfy the total
judgment,as determined bythe court,the public entity maypaythe deficiency ifthe public entity is authorized by law to pay
that judgment.
(3)To the extent the public entity pays any portion ofthe judgment oris entitled to reimbursement of defense
costs pursuant to paragraph (1),the public entity shall pursue all available creditor's remedies against the elected official,
including garnishment,until that party has fully reimbursed the public entity.
(4)This subdivision shall not apply to any criminal or civil enforcement action brought in the name of the people
ofthe State of California byan elected district attorney,city attorney,or attorney general.
825.2.(a)Subject to subdivision (b),if an employee or former employee ofa public entity pays any claim or
judgment against him,or any portion thereof,that the public entity is required to pay under Section 825,he is entitled to
recover the amount of such payment from the public entity.
(b)If the public entity did not conduct his defense against the action or claim,or if the public entity conducted
such defense pursuant toan agreement with him reserving the rights ofthe public entity against him,an employee or former
employee ofa public entity may recover from the public entity under subdivision (a)only if he establishes that the act or
omission upon which the claim or judgment is based occurred within thescopeof his employment as an employee of the
public entity and the public entity fails to establish that he acted or failed to act because of actual fraud,corruption or actual
malice or that he willfully failed or refused to conduct the defense ofthe claim or action in goo'd faith or to reasonably
cooperate in good faith in thedefense conducted bythe public entity.
(c)If the provisions of this section are in conflict with the provisions ofa memorandum of understanding reached
pursuant to Chapter 12 (commencing with Section 3560)of Division 4 of Title 1,the memorandum of understanding shall be
controlling without further legislative action,except that if such provisions ofa memorandum of understanding require the
expenditure offunds,the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.
825.4.Except as provided in Section 825.6,if a public entity paysany claim or judgment against itself or against
an employee or former employee ofthe public entity,or any portion thereof,for an injury arising out of an act or omission of
the employee or former employee ofthe public entity,heis not liable to indemnify the public entity.
825.6.(a)(1)Except as provided in subdivision (b),if a public entity paysany claim or judgment,orany portion
thereof,either against itself or against an employee or former employee ofthe public entity,for an injury arising out ofanact
or omission ofthe employee or former employee ofthe public entity,the public entity may recover from the employee or
former employee the amount ofthat payment if heorshe acted or failed toact because of actual fraud,corruption,or actual
malice,or willfully failed or refused to conduct the defense of the claim or action in good faith.Except as provided in
paragraph (2)or (3),a public entity may not recover any payments made upon a judgment or claim against an employee or
former employeeifthe public entity conductedhisorherdefense againstthe action or claim.
(2)If a public entity paysany claim or judgment,orany portion thereof,againstan employee or former employee
ofthe public entity for an injury arising outofhisorheract or omission,and if the public entity conducted hisorher defense
against the claim or action pursuant toan agreement with him orher reserving the rights ofthe public entity against him or
her,the public entity may recover the amount ofthe payment from him or her unless he or she establishesthatthe act or
omission upon which the claim or judgment is based occurred within the scope ofhisorher employment as an employee of
the public entity andthe public entity fails to establish thathe orshe acted or failed toact because of actual fraud,corruption,
or actual malice or that he or she willfully failed or refused to reasonably cooperate ingood faithinthe defense conducted by
the public entity.
(3) Ifa publicentitypays any claimorjudgment, or any portionthereof, against an employee orformeremployee
ofthe public entityforan injury arisingout ofhisor her act or omission,and ifthe public entity conductedthe defense against
the claim or action in the absence of an agreement with him or her reserving the rights of the public entity against him or her,
the public entity mayrecoverthe amountofthat payment from him or her ifhe orshe willfully failed pr refusedto reasonably
cooperate ingood faith inthe defense conducted bythe publicentity.
(b)(1)Upon a felony convictionfor a violation of Section 1195 of this code, or of Section 68, 86, 93,165,504,
or 518 of the Penal Code,by an elected official or former elected official of a public entity for an act or omission of that
person while in office,the elected official or former elected official shall forfeit any rights to defense or indemnification under
Section 825 with respect to a claim for damages for an injuryarising from that act or omission.
(2) Ifa public entity pays any claim or judgment,or any portion thereof, either against itselfor against an elected
official or former elected official of the public entity, for an injury arising out of an act or omission of the elected official or
former elected official of the public entity, which act or omission constituted a felony violation of Section 1195 of this code,or
of Section 68, 86, 93,165,504,or 518 of the Penal Code,the public entity shall recover from the elected official or former
elected official the amount of that payment upon the felony conviction of the elected official or former elected official for that
act or omission.Upon that conviction,the public entity shall also recover from the elected official the costs of any defense to
a civil action filed against the elected official for that act or omission.
(c) Ifthe provisions of this section are in conflict with the provisions of a memorandum of understanding reached
pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1,the memorandum of understanding shall be
controlling without further legislative action,except that if the provisions of a memorandum of understanding require the
expenditure offunds,the provisions shall not become effective unless approved by the Legislature inthe annual Budget Act.
Rev.May 2004