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Resolution No. 8897 1 2 3 4 5 6 RESOLUTION NO. 8897 ~\p A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A JOINT REPRESENTATION AND WAIVER OF CONFLICT LETTER BY AND BETWEEN THE CITY OF VERNON AND LOEB & LOEB 7 WHEREAS, a cross complaint has been filed against the City of 8 Vernon and Leonis C. Malburg, Thomas A. Ybarra, Hilario Gonzales, 9 William Davis, Eric T. Fresch and Bruce V. Malkenhorst, Sr., 10 individually, in LASC Case No. Be 331516 (the "Lawsuit"); and 11 WHEREAS, on November 9, 2005, the City Council of the City of 12 Vernon adopted Resolution Nos. 8891 through 8894 indemnifying, holding 13 harmless and authorizing the defense of Leonis C. Malburg, Thomas A. 14 Ybarra, Hilario Gonzales, and William Davis in the Lawsuit; and 15 WHEREAS, the law firm of Loeb & Loeb ("Loeb") has been 16 providing legal services to the City in the past; and 17 WHEREAS, the City believes that it is to the benefit and best 18 interests of the City that Loeb be employed for the purpose of 19 representing the City of Vernon, Leonis C. Malburg, Thomas A. Ybarra, 20 Hilario Gonzales and William Davis in the Lawsuit regarding any act, 21 failure to act, or omission in the performance of their duties and 22 responsibilities as councilmen of the City of Vernon. 23 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 24 CITY OF VERNON AS FOLLOWS: 25 SECTION 1: The City Council of the City of Vernon hereby 26 finds and determines that the recitals contained hereinabove are true 27 and correct. 28 / / / 19 20 21 22 23 24 25 26 ^, " --:. 1 SECTION 2: The City Council of the City of Vernon hereby 2 approves the Joint Representation and Waiver of Conflict Letter with 3 Loeb and employs Loeb for the purpose of representing the City of 4 Vernon, Leonis C. Malburg, Thomas A. Ybarra, Hilario Gonzales and 5 William Davis in all matters in connection with and in all phases of 6 the Lawsuit. 7 SECTION 3: The City Council of the City of Vernon hereby 8 authorizes the Mayor to execute said Letter Agreement for, and on 9 behalf of, the City of Vernon and the City Clerk is hereby authorized 10 to attest thereto. 11 12 13 14 15 16 17 SECTION 4: The City Council of the City of Vernon hereby directs the Acting City Clerk, or his designee, to send one fully executed Letter Agreement to: Loeb & Loeb Attn. Carla Feldman, Esq. 10100 Santa Monica Blvd., Ste. 2200 Los Angeles, CA 90067-4164 SECTION 5: The Acting City Clerk of the City of Vernon 18 shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 9th day of November, 2005. %~~~~~ . p~ @NIS C. MA URG, Mayor ATTEST: BRUCE V. MALKENHORST, JR., 27 Acting City Clerk 28 - 2 - 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~ " # 1 STATE OF CALIFORNIA 2 3 ss COUNTY OF LOS ANGELES 4 I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8897, was duly adopted by the City Council of .the City of Vernon at a special meeting of the City Council duly held on Wednesday, November 9, 2005, and thereafter was duly signed by the Mayor -Tern of the City of Vernon. BRUCE V. MALKENHORST, JR., Acting City Clerk (SEAL) - 3 - SUPPORTING DOCUMENTS . .,. , . ~\ll~ .~ L&L~' ~ ~ ..1" ~ ~-- ..... ....-~ VNPt/.iosbC00"! LOS ANGELES NEW YORK CHICAGO NASHVILLE LOEB&LOEB LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 10100 SANTA MONICA BOULEVARD SUITE 2200 LOS ANGELES, CA 90067-4164 TELEPHONE: 310.282.2000 FACSIMILE: 310.282.2200 wwwJoeb.com Direct Dial: 310-282-2235 e-mail: cfeldman@loeb.com November 8, 2005 PRIVILEGED AND CONFIDENTIAL VIA MESSENGER City of Vernon c/o Mr. Jeffrey Harrison Karns & Karabian 900 Wilshire Blvd. #530 Los Angeles, CA 90017 Re: Eduardo Olivo v. City of Vernon, Bruce V. Malkenhorst, Eric T. Fresch, John Karns, Leonis Malburg, Hilario Gonzales, William Davis, and Thomas Ybarra [LASC Case No.: BC 331516] File No. 204384-10004 Dear Mr. Harrison: We write to confirm that the City of Vernon (the "City") has asked Loeb & Loeb LLP to jointly represent the City and the individual defendants, Leonis Malburg, Hilario Gonzales, William Davis and Thomas Ybarra (the "Council Members"), in the above entitled Cross-Complaint. As you know, Mr. Olivio has asserted claims against the City and the Council Members. In representing these parties in the litigation, we will have multiple clients instead of one. With regard to this fact, California law dictates that we cannot jointly represent the City and the individual defendants unless we reasonably believe that our ability to represent each party will not be adversely affected and each party consents after full disclosure of the implications of the simultaneous representation and the advantages and risks involved. Specifically, Rule 3-310(C) of the California Rules of Professional Conduct provides as follows: A member of the State Bar shall not without the informed written consent of each client: t '>, LOEB&LOEBLLP City of Vernon November 8, 2005 Page 2 (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict. In addition, Rule 3-310(E) of the Rules of Professional Conduct provides as follows: A member shall not, without the written consent of the client or former client, accept employment adverse to the Glient or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment Based on our conversations in this matter and a review of documents obtained to date, we believe that our representation of the City and the Council Members will not be adversely affected by our joint representation. Neither the City nor the Council Members have informed us of any dispute, factual or otherwise, between the City and the Council Members in relation to the Case Nor has the City or the individual Council Members advised us of any facts that lead us to believe that a claim by either the City or the Council Members against the other would be advisable. It is possible that other circumstances may present a conflict and it is important that the City consider the actual and reasonably foreseeable adverse effects of such a conflict. Among such adverse effects may be our inability (resulting from our attorney-client relationship with each party) to divulge information that may be of importance to the City or Council Members. In addition, our joint representation would prohibit us from asserting any claims that one party may have against the other in this lawsuit, although we are not currently aware of any such claim. Another risk of joint representation is its effect on the attorney-client privilege. In the course of our representation of the City and the Council Members in this litigation, the City's and the Council Members' communications with us are, of course, privileged as against third parties. However, either the City or the Council Members may disclose communications that would otherwise be protected by the attorney-client privilege. For example, if we must withdraw from representing the City or the Council Members, it is possible that the party who is no longer represented by us could disclose the substance of otherwise protected communications. .j. ' LOEB&LOEBLLP City of Vernon November 8, 2005 Page 3 We have explained to the Council Members, via written correspondence, that if a conflict of interest arises, Loeb & Loeb will continue to represent the City and to use information that it obtained during its representation of the City and the Council Members in this Case in any proceeding related to this matter including a proceeding adverse to the Council Members' interests. We have further explained in this correspondence that the Council Members are free to retain their own attorney, and that Loeb & Loeb will help cooperate with such separate counsel in the event that a conflict of interest arises. By executing this letter on behalf of the City, you will confirm that we have disclosed to you the potential conflict of interest in our joint representation of the City and the Council Members as described above, and that you have given your informed consent thereto. Please do not hesitate to call if you have questions, otherwise please sign this letter and return it to me. Thank you for your consideration. Sincerely, ~ Carla Feldman of Loeb & Loeb By signing below, the undersigned acknowledges that he agrees with the foregoing terms. For the City of Vernon ~ j By: _~' . ~' Title: /'1 A- YO R :jyj 20438410004 LAlOO7815.1 .. .., , I ~\ljtk ~ I .('_1 V, 3 LL'>U- ~ ...-~ i'f"Nw.!ceb.cor;1 - LOS ANGELES NEW YORK CHICAGO NASHVILLE LoeB&LoeB LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 10100 SANTA MONICA BOULEVARD SUITE 2200 LOS ANGELES, CA 90067-4164 TELEPHONE: 310.282.2000 FACSIMILE: 310,282,2200 www.loeb.com Direct Dial: 310-282-2235 Direct Fax: 310-919-3893 e-mail: cfe1dman@loeb.com November 8, 2005 PRIVILEGED AND CONFIDENTIAL VIA MESSENGER Mr. William Davis City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Re: Eduardo Olivo v. City ofVemon, Bruce V. Malkenhorst, Eric T. Fresch, John Karns, Leonis Malburg, Hilario Gonzales, William Davis, and Thomas Ybarra [LASC Case No.: Be 331516] File No. 204384-10004 Dear Mr. Davis: The purpose of this letter is to clarify certain matters relating to Loeb & Loeb LLP's ("Loeb & Loeb") representation of both you and the City of Vernon (the "City") in the above matter, subject to your consent. As you are aware, both you and the City have been named Defendants in the above captioned civil cross-complaint. Litigation is a serious matter of consequence both to you and the City. Loeb & Loeb will represent the City in this matter and the City must remain our client throughout the proceeding. However, based upon our review of the file and documentation included therein, it is also our independent professional judgment that Loeb & Loeb can adequately and effectively represent both the City and you, without any adverse consequence to either one of you, at this time. While we look forward to representing both you and the City in defense of this matter, we must reiterate to you certain matters and the possible consequence thereof that you should carefully consider in whether to consent to our representation of you. \~ ~ LOEB&LOEBLLP William Davis November 8, 2005 Page 2 1. Nature of Proceedim! Litigation is frequently a long and arduous process. Both you and the City are entitled to present evidence in defense ofthe allegations. After all parties have presented their sides, however, a jury may find the City or you, either individually or jointly and severally, liable for all or part of the amount demanded in the claim. 2. CooperationIDisclosure of Information You must cooperate fully and completely with all requests made by the City and Loeb & Loeb relating to this matter. This includes a complete and truthful disclosure of all information that you possess and the providing of all pertinent documents to Loeb & Loeb, subject, where appropriate, to agreements protecting such information and documents from disclosure to outside parties. You should understand that either myself or Loeb & Loeb attorneys who have worked on this matter are free at anytime to discuss everything we learn from you with other Loeb & Loeb attorneys or relevant and necessary employees of the City. All information you have or may provide to us, including confidential information, may be used at anytime in the course of evaluating the case, including your conduct and possible settlement with the Cross-Complainant, Mr. Olivo. 3. Possibility of Conflict of Interest/Withdrawal of Representation As noted above, at this time it is our independent professional judgment, based on our discussion and review ofthe facts ofthe case, that Loeb & Loeb is able to represent you and the City adequately and effectively with no adverse consequences to either of you arising from .our joint representation. However, some examples of P9ssible conflict of interest situations which could arise in the future, include: (a) City; or if we became aware that you concealed wrongful conduct from us or the (b) if you took a position contrary to that taken by the City. Ifwe conclude that a conflict of interest has arisen between you and the City such that we can no longer adequately represent you, we will so inform you and may LOEB&LOEBLLP William Davis November 8, 2005 Page 3 have to withdraw from representing you. If you believe a conflict of interest has arisen or is likely to arise between you and the City, you have a similar duty to inform us. In the event a conflict of interest occurs, Loeb & Loeb may continue to represent the City, and to use information that we obtain during the course of this representation of you in this matter in any proceeding related to this matter including a proceeding that may be adverse to your interests. If such circumstances arise, you may be required to represent yourself or to retain your own attorney to continue your defense at your own expense, subject to any indemnification rights you may have. It is important for you to understand that your acceptance of representation by Loeb & Loeb will be considered as constituting your consent to the use of such information in any such proceeding. 4. Possibility of Settlement or Award/Contribution As noted above, either you or the City may decide to settle this matter. You have the right to decide whether you will participate in any settlement including the right not to settle even if the City does. In that event, a conflict could develop requiring our withdrawal as your counsel. In either event, we may ask you to contribute monetarily to the settlement, award or judgment. If you and the City cannot agree on your contribution, whether involving a settlement or award, and if you do not resolve the matter with the City, if the City believes the circumstances warrant, it may seek to sue you for contribution. We could not represent you in such a proceeding. We will be free to disclose any information you gave to us while representing you to the City to assist the City in reaching its conclusion. Obviously, you would have the right to defend against any such claim. However, in such a proceeding, to the extent permitted by law, information we obtained from you and others during the course of such joint representation may be presented against you in an effort to ultimately obtain an award in favor of the City. 5. Separate Counsel You are free to retain your own attorney, at your own expense, at any time. If you choose to retain separate counsel, your attorney would have only your interests to consider during the pendency of the litigation. Your retention of separate counsel does not preclude a cooperative effort between your attorney and Loeb & Loeb. To the contrary, whenever practicable, we would encourage and anticipate a cooperative i ~ ' -~' LOEB&LOEBLLP William Davis November 8, 2005 Page 4 arrangement between separate counsel. Please note that retaining your own counsel does not relieve your obligation as an employee of the City to cooperate with the City and its counsel. Thank you for your consideration. Very truly yours, c~e of Loeb & Loeb LLP :jyj 20438410004 LAI007805.l Following our discussion regarding this matter, the subject ofthe joint representation of both the City and myself, and after carefully reviewing this letter, and having had the opportunity to review the same with my own counsel (if! so choose), I agree to be represented by Loeb & Loeb LLP subject to the understandings and agreements set forth above. ~., .'^() " Date: II-/~ - )..-Oo.s- -William Davi~~ ,I, ~\ll~ ~ L&L1 ~' --:: ....... ~ --: -- :- ~\"NW loeOCOm LOS ANGELES NEW YORK CHICAGO NASHVILLE LOEB&LOEBLLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 10100 SANTA MONICA BOULEVARD SUITE 2200 LOS ANGELES, CA 90067-4164 TELEPHONE: 310,282.2000 FACSIMILE: 310.282.2200 www.Joeb.com Direct Dial: 310-282-2235 Direct Fax: 310-919-3893 e-mail: cfeldman@loeb.com November 8, 2005 PRIVILEGED AND CONFIDENTIAL VIA MESSENGER Hon. Leonis Malburg City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Re: Eduardo Olivo v. City ofVemon, Bruce V. Malkenhorst, Eric T. Fresch, John Karns, Leonis Malburg, Hilario Gonzales, William Davis, and Thomas Ybarra [LASC Case No.: BC 331516] File No. 204384-10004 Dear Hon. Leonis Malburg: The purpose ofthis letter is to clarify certain matters relating to Loeb & Loeb LLP's ("Loeb & Loeb") representation of both you and the City of Vernon (the "City") in the above matter, subject to your consent. As you are aware, both you and the City have been named Defendants in the above captioned civil cross-complaint. Litigation is a serious matter of consequence both to you and the City. Loeb & Loeb will represent the City in this matter and the City must remain our client throughout the proceeding. However, based upon our review of the file and documentation included therein, it is also our independent professional judgment that Loeb & Loeb can adequately and effectively represent both the City and you, without any adverse consequence to either one of you, at this time. While we look forward to representing both you and the City in defense of this matter, we must reiterate to you certain matters and the possible consequence thereof that you should carefully consider in whether to consent to our representation of you. J " LoEB&LOEB LLP Leonis Malburg November 8, 2005 Page 2 1. Nature of Proceeding Litigation is frequently a long and arduous process. Both you and the City are entitled to present evidence in defense of the allegations. After all parties have presented their sides, however, a jury may find the City or you, either individually or jointly and severally, liable for all or part ofthe amount demanded in the claim. 2. CooperationIDisclosure of Information You must cooperate fully and completely with all requests made by the City and Loeb & Loeb relating to this matter. This includes a complete and truthful disclosure of all information that you possess and the providing of all pertinent documents to Loeb & Loeb, subject, where appropriate, to agreements protecting such information and documents from disclosure to outside parties. You should understand that either myself or Loeb & Loeb attorneys who have worked on this matter are free at anytime to discuss everything we learn from you with other Loeb & Loeb attorneys or relevant and necessary employees of the City. All information you have or may provide to us, including confidential information, may be used at anytime in the course of evaluating the case, including your conduct and possible settlement with the Cross-Complainant, Mr. Olivo. 3. Possibility of Conflict of Interest/Withdrawal of Representation As noted above, at this time it is our independent professional judgment, based on our discussion and review ofthe facts ofthe case, that Loeb & Loeb is able to represent you and the City adequately and effectively with no adverse consequences to either of you arising from our joint representation. However, some examples of possible conflict of interest situations which could arise in the future, include: (a) City; or if we became aware that you concealed wrongful conduct from us or the (b) if you took a position contrary to that taken by the City. If we conclude that a conflict of interest has arisen between you and the City such that we can no longer adequately represent you, we will so inform you and may have to withdraw from representing you. If you believe a conflict of interest has arisen or is likely to arise between you and the City, you have a similar duty to inform us. ~ LoEB&LOEBLLP Leonis Malburg November 8, 2005 Page 3 In the event a conflict of interest occurs, Loeb & Loeb may continue to represent the City, and to use information that we obtain during the course ofthis representation of you in this matter in any proceeding related to this matter including a proceeding that may be adverse to your interests. If such circumstances arise, you may be required to represent yourself or to retain your own attorney to continue your defense at your own expense, subject to any indemnification rights you may have. It is important for you to understand that your acceptance of representation by Loeb & Loeb will be considered as constituting your consent to the use of such information in any such proceeding. 4. Possibility of Settlement or Award/Contribution As noted above, either you or the City may decide to settle this matter. You have the right to decide whether you will participate in any settlement including the right not to settle even if the City does. In that event, a conflict could develop requiring our withdrawal as your counsel. In either event, we may ask you to contribute monetarily to the settlement, award or judgment. If you and the City cannot agree on your contribution, whether involving a settlement or award, and if you do not resolve the matter with the City, if the City believes the circumstances warrant, it may seek to sue you for contribution. We could not represent you in such a proceeding. We will be free to disclose any information you gave to us while representing you to the City to assist the City in reaching its conclusion. Obviously, you would have the right to defend against any such claim. However, in such a proceeding, to the extent permitted by law, information we obtained from you and others during the course of such joint representation may be presented against you in an effort to ultimately obtain an award in favor of the City. 5. Separate Counsel You are free to retain your own attorney, at your own expense, at any time. If you choose to retain separate counsel, your attorney would have only your interests to consider during the pendency of the litigation. Your retention of separate counsel does not preclude a cooperative effort between your attorney and Loeb & Loeb. To the contrary, whenever practicable, we would encourage and anticipate a cooperative arrangement between separate counsel. Please note that retaining your own counsel does not relieve your obligation as an employee of the City to cooperate with the City and its counsel. 1 ,- LoEB&LOEBLLP Leonis Malburg November 8, 2005 Page 4 Thank you for your consideration. Very truly yours, ~~~ Carla 1. Feldman of Loeb & Loeb LLP :jyj 20438410004 LAlOO7794.1 Following our discussion regarding this matter, the subject ofthe joint representation of both the City and myself, and after carefully reviewing this letter, and having had the opportunity to review the same with my own counsel (if! so choose), I agree to be represented by Loeb & Loeb LLP subject to the understandings and agreements set forth above. ~~~ ' Date: //-/C-tJ,C;- /' ~tris Malburg " t ~\likd' ~ L&L. Y: ~J ~ ~ -:- ::- WNW.ioeO,CD;n - LOS ANGELES NEW YORK CHICAGO NASHVILLE LOEB&LOEBLLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 10100 SANTA MONICA BOULEVARD SUITE 2200 LOS ANGELES, CA 90067-4164 TELEPHONE: 310.282.2000 FACSIMILE: 310.282.2200 www.loeb.com Direct Dial: 310-282-2235 Direct Fax: 310-919-3893 e-mail: cfeldman@loeb.com November 8, 2005 PRIVILEGED AND CONFIDENTIAL VIA MESSENGER Mr. Thomas Ybarra City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Re: Eduardo Olivo v. City of Vernon, Bruce V. Malkenhorst, Eric T. Fresch, John Karns, Leonis Malburg, Hilario Gonzales, William Davis, and Thomas Ybarra [LASC Case No.: BC 331516] File No. 204384-10004 Dear Mr. Ybarra: The purpose ofthis letter is to clarify certain matters relating to Loeb & Loeb LLP's ("Loeb & Loeb") representation of both you and the City of Vernon (the "City") in the above matter, subject to your consent. As you are aware, both you and the City have been named Defendants in the above captioned civil cross-complaint. Litigation is a serious matter of consequence both to you and the City. Loeb & Loeb will represent the City in this matter and the City must remain our client throughout the proceeding. However, based upon our review of the file and documentation included therein, it is also our independent professional judgment that Loeb & Loeb can adequately and effectively represent both the City and you, without any adverse consequence to either one of you, at this time. While we look forward to representing both you and the City in defense of this matter, we must reiterate to you certain matters and the possible consequence thereof that you should carefully consider in whether to consent to our representation of you. LoEB&LOEBLLP Thomas Ybarra November 8, 2005 Page 2 1. Nature of Proceedin2: Litigation is frequently a long and arduous process. Both you and the City are entitled to present evidence in defense ofthe allegations. After all parties have presented their sides, however, a jury may find the City or you, either individually or jointly and severally, liable for all or part ofthe amount demanded in the claim. 2. CooperationlDisclosure of Information You must cooperate fully and completely with all requests made by the City and Loeb & Loeb relating to this matter. This includes a complete and truthful disclosure of all information that you possess and the providing of all pertinent documents to Loeb & Loeb, subject, where appropriate, to agreements protecting such information and documents from disclosure to outside parties. You should understand that either myself or Loeb & Loeb attorneys who have worked on this matter are free at anytime to discuss everything we learn from you with other Loeb & Loeb attorneys or relevant and necessary employees of the City. All information you have or may provide to us, including confidential information, may be used at anytime in the course of evaluating the case, including your conduct and possible settlement with the Cross-Complainant, Mr. Olivo. 3. Possibility of Conflict of InterestIWithdrawal of Representation As noted above, at this time it is our independent professional judgment, based on our discussion and review of the facts of the case, that Loeb & Loeb is able to represent you and the City adequately and effectively with no adverse consequences to either of you arising from our joint representation. However, some examples of possible conflict of interest situations which could arise in the future, include: (a) City; or if we became aware that you concealed wrongful conduct from us or the (b) if you took a position contrary to that taken by the City. If we conclude that a conflict of interest has arisen between you and the City such that we can no longer adequately represent you, we will so inform you and may have to withdraw from representing you. If you believe a conflict of interest has arisen or is likely to arise between you and the City, you have a similar duty to inform us. LoEB&LOEBLLP Thomas Ybarra November 8, 2005 Page 3 In the event a conflict of interest occurs, Loeb & Loeb may continue to represent the City, and to use information that we obtain during the course ofthis representation of you in this matter in any proceeding related to this matter including a proceeding that may be adverse to your interests. If such circumstances arise, you may be required to represent yourself or to retain your own attorney to continue your defense at your own expense, subject to any indemnification rights you may have. It is important for you to understand that your acceptance of representation by Loeb & Loeb will be considered as constituting your consent to the use of such information in any such proceeding. 4. Possibility of Settlement or Award/Contribution As noted above, either you or the City may decide to settle this matter. You have the right to decide whether you will participate in any settlement including the right not to settle even if the City does. In that event, a conflict could develop requiring our withdrawal as your counsel. In either event, we may ask you to contribute monetarily to the settlement, award or judgment. If you and the City cannot agree on your contribution, whether involving a settlement or award, and if you do not resolve the matter with the City, if the City believes the circumstances warrant, it may seek to sue you for contribution. We could not represent you in such a proceeding. We will be free to disclose any information you gave to us while representing you to the City to assist the City in reaching its conclusion. Obviously, you would have the right to defend against any such claim. However, in such a proceeding, to the extent permitted by law, information we obtained from you and others during the course of such joint representation may be presented against you in an effort to ultimately obtain an award in favor of the City. 5. Separate Counsel You are free to retain your own attorney, at your own expense, at any time. If you choose to retain separate counsel, your attorney would have only your interests to consider during the pendency of the litigation. Your retention of separate counsel does not preclude a cooperative effort between your attorney and Loeb & Loeb. To the contrary, whenever practicable, we would encourage and anticipate a cooperative arrangement between separate counsel. Please note that retaining your own counsel does not relieve your obligation as an employee ofthe City to cooperate with the City and its counsel. '0' LoEB&LOEBLLP Thomas Ybarra November 8, 2005 Page 4 Thank you for your consideration. ;jyj 20438410004 LAI007798.1 Very truly yours, ~m~ C:la J. ~dman of Loeb & Loeb LLP Following our discussion regarding this matter, the subject ofthe joint representation of both the City and myself, and after carefully reviewing this letter, and having had the opportunity to review the same with my own counsel (if I so choose), I agree to be represented by Loeb & Loeb LLP subject to the understandings and agree ents set forth above. Date: AI - I 0 .- tJ 4>' '. .. .. ~\llkd~ ~ L&L. ~ -=.' .~ ~ A_~ viww.loebcom LOS ANGELES NEW YORK CHICAGO NASHVILLE LOEB&LOEB LLP A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Direct Dial: 310-282-2235 Direct Fax: 310-919-3893 e-mail: cfeldman@loeb.com 10100 SANTA MONICA BOULEVARD SUITE 2200 LOS ANGELES, CA 90067-4164 TELEPHONE: 310.282.2000 FACSIMILE: 310.282.2200 www.loeb.com November 8, 2005 VIA MESSENGER Mr. Hilario Gonzales City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 PRIVILEGED AND CONFIDENTIAL Re: Eduardo Olivo v. City of Vernon, Bruce V. Malkenhorst, Eric T. Fresch, John Karns, Leonis Malburg, Hilario Gonzales, William Davis, and Thomas Ybarra [LASC Case No.: BC 331516] File No. 204384-10004 Dear Mr. Gonzales: The purpose ofthis letter is to clarify certain matters relating to Loeb & Loeb LLP's ("Loeb & Loeb") representation of both you and the City of Vernon (the "City") in the above matter, subject to your consent. As you are aware, both you and the City have been named Defendants in the above captioned civil cross-complaint. Litigation is a serious matter of consequence both to you and the City. Loeb & Loeb will represent the City in this matter and the City must remain our client throughout the proceeding. However, based upon our review of the file and documentation included therein, it is also our independent professional judgment that Loeb & Loeb can adequately and effectively represent both the City and you, without any adverse consequence to either one of you, at this time. While we look forward to representing both you and the City in defense of this matter, we must reiterate to you certain matters and the possible consequence thereof that you should carefully consider in whether to consent to our representation of you. " , .~ LoEB&LoEBLLP Hilario Gonzales November 8, 2005 Page 2 1. Nature of Proceedin2: Litigation is frequently a long and arduous process. Both you and the City are entitled to present evidence in defense of the allegations. After all parties have presented their sides, however, a jury may find the City or you, either individually or jointly and severally, liable for all or part ofthe amount demanded in the claim. , 2. CooperationlDisclosure of Information You must cooperate fully and completely with all requests made by the City and Loeb & Loeb relating to this matter. This includes a complete and truthful disclosure of all information that you possess and the providing of all pertinent documents to Loeb & Loeb, subject, where appropriate, to agreements protecting such information and documents from disclosure to outside parties. You should understand that either myself or Loeb & Loeb attorneys who have worked on this matter are free at anytime to discuss everything we learn from you with other Loeb & Loeb attorneys or relevant and necessary employees of the City. All information you have or may provide to us, including confidential information, may be used at anytime in the course of evaluating the case, including your conduct and possible settlement with the Cross-Complainant, Mr. Olivo. 3. Possibility of Conflict of InterestlWithdrawal of Representation As noted above, at this time it is our independent professional judgment, based on our discussion and review ofthe facts ofthe case, that Loeb & Loeb is able to represent you and the City adequately and effectively with no adverse consequences to either of you arising from our joint representation. However, some examples of possible conflict of interest situations which could arise in the future, include: (a) City; or if we became aware that you concealed wrongful conduct from us or the (b) if you took a position contrary to that taken by the City. Ifwe conclude that a conflict of interest has arisen between you and the City such that we can no longer adequately represent you, we will so inform you and may ., I LoEB&LoEBLLP Hilario Gonzales November 8, 2005 Page 3 . have to withdraw from representing you. If you believe a conflict of interest has arisen or is likely to arise between you and the City, you have a similar duty to inform us. In the event a conflict of interest occurs, Loeb & Loeb may continue to represent the City, and to use information that we obtain during the course of this representation of you in this matter in any proceeding related to this matter including a proceeding that may be adverse to your interests. If such circumstances arise, you may be required to represent yourself or to retain your own attorney to continue your defense at your own expense, subject to any indemnification rights you may have. It is important for you to understand that your acceptance of representation by Loeb & Loeb will be considered as constituting your consent to the use of such information in any such proceeding. 4. Possibility of Settlement or Award/Contribution As noted above, either you or the City may decide to settle this matter. You have the right to decide whether you will participate in any settlement including the right not to settle even if the City does. In that event, a conflict could develop requiring our withdrawal as your counsel. In either event, we may ask you to contribute monetarily to the settlement, award or judgment. If you and the City cannot agree on your contribution, whether involving a settlement or award, and if you do not resolve the matter with the City, ifthe City believes the circumstances warrant, it may seek to sue you for contribution. We could not represent you in such a proceeding. We will be free to disclose any information you gave to us while representing you to the City to assist the City in reaching its conclusion. Obviously, you would have the right to defend against any such claim. However, in such a proceeding, to the extent permitted by law, information we obtained from you and others during the course of such joint representation may be presented against you in an effort to ultimately obtain an award in favor of the City. 5. Separate Counsel You are free to retain your own attorney, at your own expense, at any time. If you choose to retain separate counsel, your attorney would have only your interests to consider during the pendency of the litigation. Your retention of separate counsel does not preclude a cooperative effort between your attorney and Loeb & Loeb. To the contrary, whenever practicable, we would encourage and anticipate a cooperative t. -" . , , LOEB&LOEBLLP Hilario Gonzales November 8, 2005 Page 4 arrangement between separate counsel. Please note that retaining your own counsel does not relieve your obligation as an employee of the City to cooperate with the City and its counsel. Thank you for your consideration. Very truly yours, ~ffdmP/' Carla J. Feldman of Loeb & Loeb LLP ;jyj 20438410004 LAI007803.1 Following our discussion regarding this matter, the subject ofthe joint representation of both the City and myself, and after carefully reviewing this letter, and having had the opportunity to review the same with my own counsel (if I so choose), I agree to be represented by Loeb & Loeb LLP subject to the understandings and agreements set forth above. 9~~ Hilario Gonzales Date: '?tmr J () . '2,0/)5