Tel. #: (213) 473-6875 Fax #: (213) 473-6818
OFFICE OF THE CITY ATTORNEY ROCKARD
J. DELGADILLO
CITY ATTORNEY
June 8, 2009
VIA EMAIL AND US MAIL
Mr. Jeffrey de la Rosa 1880 Morton Avenue Los Angeles, CA 90026 Re:
Jeffrey Peter De La Rosa v. Animal Control Board of the City of Los Angeles, et al. Los Angeles Superior Court Case No. BS 104836 Court of Appeal Case No. B202071
Dear Mr. de la Rosa: On May 11, 2009, the Board of Animal Service Commissioners recommended that this Office attempt to settle the above-referenced litigation on certain terms and if necessary, request authority from City Council to do so. The Board direction was to find an avenue that would allow Stu to live in a secure setting such as with a trainer or in a supervised environment such as a sanctuary and allow him to live out his natural life rather than to have him euthanized. As part of any settlement, the City requires a Waiver and Release of all claims from the plaintiff that waives any claims and in cases such as this, defends and holds the City harmless in order to minimize any future liability to the City. In addition, in this case, we would request a Waiver and Release executed by the trainer, sanctuary, kennel, or other entity where Stu would be living, which would be in the form such as entered into by K9s Only Kennel and approved by this Office, guaranteeing that the entity caring for Stu would carry appropriate insurance and that Stu will not be released. You would be free to visit Stu with the consent of the location. The costs of board and care would be borne exclusively by you. Enclosed please find copies of the proposed draft settlement documents.
AN EQUAL EMPLOYMENT
200
NORTH
MAIN STREET.
ROOM
900 •
OPPORTUNITY LOS ANGELES,
- AFFIRMATIVE CA
ACTION
EMPLOYER
90012-4131 • 213.473-5999 • 213.473.6818
FAX
Mr. Jeffrey de la Rosa June 8, 2009 Page 2
Although you appeared at the Board meeting on May 26, 2009 and indicated a lack of interest in the City's initial gesture of settlement of this case, we nonetheless are sending you the information you requested about what the City would be looking for in a settlement to save your dog. If you have any comments regarding the proposal, please feel free to communicate them to this Office. If you wish to settle along the lines outlined in the attachments, we will submit this matter for approval by the City Council prior to the matter being decided by the Court of Appeal. Very truly yours, .--:-:= c4-~_·_~
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TODD T. LEUNG, Deputy City Attorney TT:ams Encls.
-,•.-'-:.~-=
City of Los Angeles
Department of Animal Services 221 N. Figueroa Street, 5th Floor
Los Angeles, CA 90012
PERMANENT SHELTERING AND CARE WAIVER AND RELEASE ________ .,a licensed kennel (permit # .,City of ______ ) or anyone who may assert any claim by or through either or both of us, do hereby expressly waive, release, discharge, indemnify and hold harmless the City of Los Angeles, including but not limited to the Department of Animal Services (Department), its employees, Commission members, agents, attorneys, and volunteers from any and all claims, demands, causes of action, damages and liability of any kind or description, related to or arising from taking custody and control of the dog named "Stu" A455014, currently impounded by the Department. We are aware that animals respond to situations differently, that such responses may be unpredictable, and that the Department makes no claims, representations, or warranties either express or implied as to the behavior or temperament of the animal. We acknowledge and understand that this animal has been deemed danqerous by the Department of Animal Services. We will house and provide food, water, shelter, exercise, and humane treatment, including proper and routine veterinary care, required and recommended vaccinations, and urgent and emergency care as needed, and not release the dog to anyone, except as we deem proper and then only for a short period of hours for exercise or veterinary care. The cost of the maintenance, care, feeding, veterinarian bills and any other expenses will not be the responsibility of the Department or the City. We acknowledge and agree that the Department retains full legal ownership of the animal and that the animal remains the property of the Department. Under no circumstances will the dog be returned to its previous owner or any individual. We agree to keep Stu at Kennel (permitted kennel - License ,)located at , California, 9__ , and agree not to transfer or move the animal to any other location without the express written consent of the Department. We agree to comply with all local and state laws and ordinances relating to the care of domestic animals, and allow the Department to perform an inspection at any reasonable time at the location.
#
Waiver and Release - Stu
1
We are acting hereunder as independent contractors and not as agents or employees of the City or the Department and neither the City nor the Department shall incur any costs or obligations to us as a result of our actions or duties hereunder. We understand and agree that we may not assign, delegate, subcontract, or otherwise transfer any of our duties or responsibilities hereunder. We possess all necessary City permits and licenses in order to perform the duties and actions hereunder. This Waiver and Release extends to all claims or demands of every nature and kind whatsoever, known or unknown, suspected or unsuspected, existing, claimed to exist, or which may hereinafter arise out of or result from, be in connection with, pertain to, or relate to in any way to our interactions with Stu, and we hereby waive the provisions of Section 1542 of the California Civil Code which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." No member, official, employee, agent, or volunteer of the City shall be personally liable to either of us or any successor in interest, as a result of taking temporary custody and control of Stu, or as the result of any testing or contact with Stu. This Waiver and Release is the only and entire agreement between us and the City and we have not relied on any other statements made by employees or others on behalf of the City or the Department with respect to this matter.
Without limiting my indemnification of the City, we shall provide and maintain at our own expense a program of insurance having the coverage and limits not less than the amounts and types listed on the Required Insurance and Minimum Limits sheet (Form General 146 in Exhibit 1 hereto), covering our actions or duties hereunder. Such insurance shall conform to City requirements established by Charter, ordinance or policy, shall comply with the Insurance Contractual Requirements (Form General 133 in Exhibit 1 hereto) and shall otherwise be in a form acceptable to the Office of the City Administrative Officer, Risk Management. We shall comply with all Insurance Contractual Requirements shown on Exhibit 1 hereto. Exhibit 1 is hereby incorporated by reference and made a part of this Waiver and Release. We are familiar with Stu's history and record, and will knowingly test and/or have contact with Stu with a full understanding of Stu's known and unknown behavioral history and issues and hereby assume all risks relating to Stu. We further understand and acknowledge that it is unlawful for any person to own, possess, harbor or keep any animal declared by the Department, following a hearing, to be dangerous, that we will therefore not allow any person except for our staff, to handle or come into contact with Stu, and that Stu will not be removed even temporarily from the above mentioned facility, except for brief visits at our sole and complete discretion. 2 Waiver and Release - Stu M~",?{){)Q
By signing below, we acknowledge that we have read, fully understand and agree to comply with all of the terms and conditions of this Waiver and Release. Signed:
Dated:
_
Signed:
Dated:
_ (organization's name) (address)
Federal Tax Identification # Los Angeles Business License #
Waiver and Release - Stu
_ (if located in the City)
3
Exhibit 1 Required Insurance and Minimum Limits Name:
Date:
_
Agreement/Reference: Evidence of coverages checked below, with the specified minimum limits, must be submitted and approved prior to start of operations. Amount shown for Automobile Liability is per accident.
_
Limits _
Workers' Compensation - Workers' Compensation (WC) and Employer's Liability (EL)
WC
o Waiver _
~~~ EL of Subrogation in favor of City
o Longshore o Jones Act
& Harbor Workers
General Liability
o Products/Completed o Fire Legal Liability
_
o Sexual Misconduct
Operations _
0
_
_ Automobile Liability (for any and all vehicles used for this Contract, other than commuting to/from work)
_
Professional Liability (Errors and Omissions)
_ Property Insurance (to cover replacement cost of building - as determined by insurance company)
o All Risk Coverage o Flood ------
o Earthquake _
_
o Boiler and Machinery o Builder's Risk o
Pollution Liability
o _
Surety Bonds - Performance and Payment (Labor and Materials) Bonds Crime Insurance
Other:
100 % of Contract Prici
_
Waiver and Release - Stu f\A~n( ')f)f)Q
4
SETTLEMENT AGREEMENT AND FULL RELEASE OF ALL CLAIMS For and in consideration of avoiding the euthanasia of Jeffrey Delarosa's dog Stu!, Jeffrey Delarosa (hereinafter "Delarosa") and his heirs, successors, assigns, and anyone claiming through Delarosa do hereby release, acquit, and forever discharge the City (and its various departments including, but not limited to, Department of Animal Services), and its employees, agents, servants, successors, heirs, executors, administrators, and all other persons, firms, associations, partnerships or corporations in connection herewith, whether or not referred to herein, and including any who may be jointly or severally liable with the parties, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, attorneys fees, of any nature whatsoever, arising out of, or in any way related to the past events and matters complained of and associated with the lawsuit entitled Jeffrey Delarosa v. Animal Control Board of the City of Los Angeles, et al. filed in the Los Angeles Superior Court, Central District, Case Number BSI04836; California Court of Appeal Case Number B202071. Delarosa hereby agrees to bear any and all costs associated with the permanent shelter and any and all carel of Stu. Delarosa also hereby agrees to give up any ownership rights of Stu. Stu will be permanently sheltered and cared for by a licensed/approved trainer, sanctuary, and/or private kennel approved by the City of Los Angeles Board of Animal Services Commissioners. I understand the provisions of Section 1542 of the Civil Code of the State of California reading as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." and do notwithstanding expressly waive its provisions, whether with regard to claims known or unknown. I understand and agree that this settlement is a compromise of doubtful and disputed claims, and that the payment made is not to be construed as an admission of liability on the part of the parties hereby released, and that said parties deny liability therefore and intend merely to be a compromise of a disputed claim. This settlement has been arrived at after thorough bargaining and negotiation, and represents a final mutually agreeable compromise. Delarosa has executed this agreement and release upon his own judgment and upon the advice of his own counsel and not at all in reliance upon any statement or representation
1 Stu has been declared a dangerous animal pursuant to Los Angeles Municipal Code section 53.18.5(m). The General Manager's decision was affirmed by the Board of Animal Services Commissioners on March 8, 2006 following an appeal pursuant to Los Angeles Municipal Code section 53.18.5(q). 2 Including but not limited to any care offered by a veterinarian, specialist, etc.
by any employee, representative or person purporting to represent any other party concerning the nature and the extent of Delarosa's damages or legal liability therefore. Both PARTIES further understand and agree that this release shall not be used as evidence of an admission of liability for claims or damages described herein; that the said agreement and the terms herein is the sole consideration for this release and is in full settlement and satisfaction of Delarosa's claims and causes of action which Delarosa may now have against any other party hereto arising out of matters complained of in the complaint and pleadings herein against the CITY (and its various departments, including but not limited to the Department of Animal Services). There are no other agreements or promises not expressed herein. The terms of this release are contractual. Whenever the singular is used it includes the plural. In the event that any action or proceeding is brought to enforce any of the terms and conditions of this agreement, such action will be brought in the Superior Court for the State of California, Central District. In witness whereof, Jeffrey Delarosa executed this Settlement Agreement and Full Release of All Claims on the day and year appearing below. NOTICE Section 72 of the Penal Code provides: "Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city, district, ward or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony."
DATE: ___
,2009
PLAINTIFF/APPELLANT
Jeffrey Delarosa