California Court of Appeals, Second District, Fifth Division
from a judgment of the Superior Court of Los Angeles County,
No. BC479858, Kevin Clement Brazile, Judge. Reversed.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Cantrall, Thomas C. Hurrell and Melinda Cantrall for
Defendant and Appellant.
Shinee, Elizabeth J. Gibbons and Amanda J. Waters for
Plaintiffs and Respondents.
by Kriegler, J., with Turner, P. J., and Baker, J.
Cal.Rptr.3d 294] A public entity employer provided a defense
for three employees under a reservation of rights, then
refused to pay the resulting judgment for battery and civil
rights violations on the ground that the employees acted with
actual malice. The employees sought indemnification from
their employer under Government Code section
825. The trial court granted summary [204
Cal.Rptr.3d 295] judgment in favor of the employees. On
appeal, the public entity contends that because the defense
was conducted under a reservation of rights, the employees
had to satisfy the requirements of section 825.2 for
indemnification. We hold that section 825.2 applies when a
public entity employer provides a defense under a reservation
of rights that includes reservation of the right not to
indemnify for acts committed with actual fraud, corruption or
actual malice. An employer's reservation of the right to
indemnity from the employee for acts committed with actual
fraud, corruption or actual malice is necessarily a
reservation of the right not to indemnify the employee for
such acts. We reverse the judgment with directions.
AND PROCEDURAL BACKGROUND
November 5, 2007, Los Angeles County Sheriff's Deputies
David Chang, Anthony Pimentel, and Kris Cordova assaulted
inmate Alejandro Franco, including using pepper spray on his
anus and genital area. Franco brought an action against the
deputies for battery and civil rights violations under 42
United States Code section 1983. ( Franco v. Gennaco
(C.D.Cal., Aug. 11, 2015, No. LA CV 09-00893-VBF-FFMx) (
deputies signed agreements with the County of Los Angeles
(County) setting forth the terms and conditions under which
the County would defend them. The first paragraph of each
agreement listed circumstances under which the County might
withdraw from defending a deputy, including if the County
determined he did not act within the scope of his employment
under section 995.2, subdivision (a)(1), or he acted or
failed to act because of actual fraud, corruption, or actual
malice under section 995.2, subdivision (a)(2).
second paragraph stated circumstances under which the County
might not indemnify the deputy: " In defending you, the
County reserves its right not to pay any judgment, compromise
or settlement on your behalf until it is established that the
injury arose out of an act or omission occurring within the
scope of your employment as an employee or officer of the
County. The County also will not pay any party of a claim or
judgment that is for punitive or exemplary damages. (Section
third paragraph stated circumstances under which the County
might seek indemnification from the deputy: " If the
County pays any claim or judgment, or any portion thereof,
for an injury arising out of your act or omissions, the
County may recover the amount of such payment from you unless
you establish that the act or omission upon which the claim
or judgment is based occurred within the scope of your
employment as an employee or official of the County, and 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.
agreement ended with a recitation in capital letters, "
I request and agree that the County may provide for my
defense in the subject action, subject to the reservations
set forth above. I agree to cooperate fully with the
attorneys the County provides to me, and keep them advised at
all times of my mailing address and telephone number."
September 9, 2010, following a jury trial, the jury found the
deputies violated Franco's federal civil rights, causing
injury or harm to him. The jury also found each of the
deputies acted with malice, oppression or reckless disregard
in violating [204 Cal.Rptr.3d 296] Franco's civil rights.
In addition, the jury found each of the deputies committed
battery on Franco while acting within the course and scope of
their employment with the Los Angeles County Sheriff's