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S TRADLING Y OCCA C ARLSON & R AUTH
L AW Y E R S NE W PO R T BE A C H

PAUL R. GLASSMAN (State Bar No. 76536) LAURA L. BUCHANAN (State Bar No. 156261) KATHLEEN D. DeVANEY (State Bar No. 156444) STRADLING YOCCA CARLSON & RAUTH A Professional Corporation 100 Wilshire Blvd., Suite 440 Santa Monica, CA 90401 Telephone: (424) 214-7000 Facsimile: (424) 214-7010 E-mail: pglassman@sycr.com lbuchanan@sycr.com kdevaney@sycr.com JAMES F. PENMAN (State Bar No. 91761) CITY ATTORNEY 300 North D STREET, Sixth Floor San Bernardino, CA 92418 Telephone: (909) 384-5355 Facsimile: (909) 384-5238 E-mail: Penman_Ja@sbcity.org Attorneys for Debtor City of San Bernardino UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA RIVERSIDE DIVISION In re: CITY OF SAN BERNARDINO, CALIFORNIA, Debtor. Case No. 6:12-BK-28006-MJ Chapter 9 DECLARATION OF ARTHUR K. CUNNINGHAM IN SUPPORT OF CITY OF SAN BERNARDINO'S MEMORANDUM OF FACTS AND LAW IN SUPPORT OF THE STATEMENT OF QUALIFICATIONS UNDER SECTION 109(C) OF THE BANKRUPTCY CODE

DECLARATION OF ARTHUR K. CUNNINGHAM

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DECLARATION OF ARTHUR K. CUNNINGHAM

I, ARTinJR K. CUNNINGHAM, declare: 1. I am an attorney admitted to practice in California and am a partner in

4 the law firm of Lewis Brisbois Bisgaard & Smith LLP in San Bernardino. I have 5 personal knowledge of the facts stated in this declaration.
6

2.

I was at the times referred to in this declaration, and am now, lead

7 counsel for the City of San Bernardino (City), a defendant in the case of Cedric May 8 Sr. et al v. City of San Bernardino et al., Case No. 5:10-cv-00978-VAP-DTB, 9 currently pending in the United States District Court for the Central District of 10 California (USDC).
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3.

The May case was filed in the USDC on July 2, 2010 by surviving

12 adult and minor family members of a deceased individual. The plaintiffs

13 (collectively referred to in this declaration as "Plaintiffs") alleged that the use of 14 excessive force by officers of the City's police department caused the individual's

15 death. Plaintiffs alleged violations of the decedent's and Plaintiffs' civil rights and
16 sought monetary damages under, inter alia, 42 U.S.C. 1983 (section 1983).
17 Plaintiffs were at the times referred to in this declaration, and are now, represented

18 by attorney Dale K. Galipo and his associates.

19

4.

The May case went to trial in late November and early December 2011.

20 The parties settled during the trial, on December 7, 2011, for a total of$525,000. Of
21 this amount, $325,000 was to go to the adult Plaintiffs and $200,000 to the minor

22 Plaintiffs. At that time, I knew of no reason to believe that the City might be or

23 become unable to pay the settlement in full.

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5.

The City paid the $325,000 to the adult Plaintiffs in January 2012.

25 Before the $200,000 could be paid to the minor Plaintiffs, court approval of the

26 compromise was necessary. Counsel for Plaintiffs filed an ex parte application for

27 approval on May 2, 2012, which the court granted on June 27, 2012. Again, at that
28 time I knew of no reason to believe that the City might be or become unable to pay

1
DEC LARATlON OF ARTHUR K. CUNN1NG1 rAM

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1 the remaining portion of the settlement in full. City's Nonpayment ofRemainder of Settlement 2 3 6. On July 9, 2012, I was advised that the City did not have funds 4 available to pay the remainder of the settlement. Until then, I had no information 5 that the City was unable to pay that amount. 6 7. On July 10,2012, the City's Common Council authorized the filing of 7 a Chapter 9 bankruptcy petition on the City's behalf. I learned of that action the 8 following day, June 11,2012. That same day, I advised Mr. Galipo by email that 9 the City would not be able to pay the remainder of the settlement. 10 8. On July 18, 2012, I received a reply email from Mr. Galipo's associate,

11 Adrienne Quarry. The email demanded immediate payment of the remainder of the 12 settlement, further stating: "If payment is not tendered today, Plaintiffs intend to 13 file ex parte applications to enforce the terms of the settlement agreements and court 14 order by compelling payment from the City's reserves for these cases, along with 15 any attorneys' fees, costs, and contempt fines the court may deem appropriate." A 16 true and correct copy of Ms. Quarry' s email is attached as Exhibit A. 17 9. The City did not make the payment within the time demanded in Ms.

18 Quarry's email. On July 24, 2012, Plaintiffs filed an ex parte application for an 19 order to enforce the settlement. In the application, Plaintiffs sought an order 20 requiring the City to disburse funds in the amount of the remainder of the settlement 21 within 24 hours. The City opposed the application on the grounds that given its 22 financial distress, compelling it to make the payment demanded would impair its

23 ability to continue to provide essential public services and potentially, its ability to
24 meet its payroll obligations. The City did not dispute that it had agreed to pay the 25 amount claimed, and did not oppose the entry of a judgment against it in that 26 amount. 27 10. On July 30, 2012, the court ordered that a judgment be entered against

28 the City for the remaining amount to be paid under the settlement, but did not order
2
DECLARATION OF ARTHUR K. CUNNINGHAM

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1 the City to make the payment. A true and correct copy of the court's order is 2 attached as Exhibit B. In the order, the court noted that the City had said in a public 3 statement that it intended to pay its creditors. The court then stated: "Despite its 4 public representation that it is meeting its financial obligations to its creditors, the 5 City refuses to pay May's children, and intends to unburden itself in bankruptcy, in 6 whole or in part, of the $200,000 debt it owes them." The court went on to state: 7 "The judgment to be entered against the City will be fmal, and Plaintiffs may pursue 8 collection immediately upon its entry, in accordance with the Federal Rules of Civil 9 Procedure."

10

Plaintiffs' Threatened Execution Against City Property

11. On July 31 , 2012, I received an email message from Thomas Seabaugh, 11 12 an associate ofMr. Galipo, demanding payment of the remainder of the settlement. 13 The message stated that if payment was not tendered within 24 hours, Plaintiffs 14 would initiate enforcement proceedings."on an emergency ex parte basis." The 15 message continued:

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17 18 19 20 21 22

"We would seek, inter alia, a writ of execution under Fed.R.Civ.P. 69(a) and a writ of mandate under the California Government Code and Fed.R.Civ.P. 64, in addition to interest from the date of settlement, penalties, and the full amounts of any costs and attorneys' fees incurred in the course of any collection efforts that become necessary.
"We do not find credible statements that there is no money in hand to

satisfy these judgments, in light of the City's projected revenues in excess of $120 million."

23

24 Mr. Seabaugh's message further stated: "We have already begun taking steps to 25 perfect liens against City property." A true and correct copy of Mr. Seabaugh's 26 message is attached as Exhibit C.
27 ///

28 Ill
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DECLARATION OF ARTHUR K. CUNNINGHAM

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I declare under penalty of perjury under the laws of the United States of
, A

2 America that the foregoing is true and correct. Executed on August &L"?2012, at 3 Riverside, California.
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ART

K. CUNNINGHAM

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9 10 11 12 13
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16 17

18 19 20
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DECLARATION OF ARTHUR K. C UNNINGHAM

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Exhibit A

Case 6:12-bk-28006-MJ Cunningham, Arthur

From:

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Sent:
To:

Cc: Subject:

Adrienne Quarry <adriennequarry@gmail.com> Wednesday, July 18, 2012 3:27 PM Cunningham, Arthur Moore, Sharon; Dale Galipo; Tanada, Stephanie Re: May v City of San Bernardino

Dear Art: Thank you for your email and please keep us informed regarding this unfortunate development. It is very concerning that the City approved the settlements and is now suddenly claiming to be insolvent. As you know, one of the most important reasons why the guardian ad litem decided to settle was so that the minors would receive the funds in a timely manner --certainly not serveral months from now. Complicating matters, these funds were supposed to seed an annuity held by a life insurance company that is obligated to pay certain sums pursuant to the order approving the minors' compromise-- including funds for the minors' financial support. If payment is not tendered today, Plaintiffs intend to file ex parte applications to enforce the terms of the settlement agreements and court order by compelling payment from the City's reserves for these cases, along with any attorneys' fees, costs, and contempt fines the court may deem appropriate. First, we do not believe that the obligations to pay would be dischargeable in bankruptcy, because they are for an intentional tort (i.e. "willful and malicious injury" under the Bankruptcy Code). We have also conducted some preliminary research on the preference issue, and even if the obligation were dischargeable, payment pursuant to the settlement agreements and order would constitute a preference. At a minimum, the "contemporaneous exchange for new/subsequent value" exception would apply because the payments are consideration for full releases of Plaintiffs' claims and the dismissal of the cases, which would obviously provide significant value to the City. In alternative to full and immediate payment, Plaintiffs would seek to rescind the agreements and restore the status of quo due to unilateral and/or mutual mistake regarding the City's claimed insolvency. Please let us know your positions regarding the foregoing by tomorrow. Best, Adrienne

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Exhibit B

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PRIORITY SEND
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES-- GENERAL Case No. Title: EDCV 10-00978 VAP(DTBx) Date: July 30, 2012

===============================================================
PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE Marva Dillard Courtroom Deputy None Present Court Reporter ATTORNEYS PRESENT FOR DEFENDANTS: None MINUTE ORDER GRANTING IN PART PLAINTIFFS' EX PARTE APPLICATION (DOC. NO. 92) (IN CHAMBERS)

CEDRICK MAY, SR., et al. -v- CITY OF SAN BERNARDINO

ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS:

On Friday, July 27, 2012, the Court heard argument on Plaintiffs' Ex Parte Application (Doc. No. 92) to enforce a portion of the settlement agreement entered into by Plaintiffs and Defendant City of San Bernardino ("the City"), for the benefit of minors S.D.M. and S.J.M. For the following reasons, the Court GRANTS IN PART Plaintiffs' Application, and will enter judgment in the amount of $200,000 on behalf of Sasha Graves as guardian ad litem for S.D.M. and S.J.M. It is a matter of public knowledge that the City intends to file for bankruptcy protection, though in the meantime, it professes that "it has continued to meet its financial obligations to vendors, creditors, and employees and intends to continue to meet those obligations over time." (Ex. B to Decl. of Dale K. Galipo (Doc. No. 92MINUTES FORM 11 CIVIL-- GEN Initials of Deputy Clerk _md_ Page 1

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EDCV 10-00978 VAP{DTBx) CEDRICK MAY, SR., et al. v. CITY OF SAN BERNARDINO MINUTE ORDER of July 30, 2012

2).) 1 To settle a claim arising out of the death of Cedric May, Jr. in an encounter with the San Bernardino Police Department, the City is obligated to pay $200,000 for the benefit of May's children, S.D.M. and S.J.M. Despite its public representation that it is meeting its financial obligations to its creditors, the City refuses to pay May's children, and intends to unburden itself in bankruptcy, in whole or in part, of the $200,000 debt it owes them. The parties agree that by refusing to pay, the City has repudiated the settlement agreement as to S.D.M. and S.J.M. Plaintiffs seek an order requiring the City to pay the money owed immediately; the City contends that if the Court forces it to make such a payment on the eve of a bankruptcy filing, the payment will be avoided in later bankruptcy proceedings. Plaintiffs' counsel made similar applications in two other cases before this Court, in which the City also intends to repudiate its obligations to his clients, the City's judgment creditors (including other children). For the reasons discussed on the record during the July 27, 2012, hearing, the Court will enter judgment in the amount of $200,000 in favor of Sasha Graves, as guardian ad litem for S.D.M. and S.J.M., and against the City. The Court will not otherwise order the City to pay the settlement amount due at this time. Accord Order, J.A. v. City of San Bernardino, No. EDCV 09-01388-JLQ (C.D. Cal. July 27, 2012); Minute Order, Jackson v. City of San Bernardino, No. CV 09-08671RGK (FFMx) (C.D. Cal. July 26, 2012). Plaintiffs' Application is therefore GRANTED IN PART. The Court will enforce the parties' settlement to the extent it will enter judgment in the amount of $200,000 in favor of Sasha Graves, as guardian ad litem for S.D.M. and S.J.M., and against the City. The judgment to be entered against the City will be final, and Plaintiffs may

The Court notes that as of the date of this Minute Order, the "City of San Bernardino Financial Status Update" attached by Plaintiffs' counsel to his declaration remains posted publicly on the City's web site. MINUTES FORM 11 CIVIL-- GEN Initials of Deputy Clerk _md_ Page2

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EDCV 10-00978 VAP(DTBx) CEDRICK MAY, SR., et al. v. CITY OF SAN BERNARDINO MINUTE ORDER of July 30, 2012

pursue collection immediately upon its entry, in accordance with the Federal Rules of Civil Procedure. Plaintiffs' counsel is directed to submit a proposed judgment to the Court forthwith. IT IS SO ORDERED.

MINUTES FORM 11 CIVIL-- GEN

Initials of Deputy Clerk _md_ Page 3

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Exhibit C

Case 6:12-bk-28006-MJ Cunningham, Arthur

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From: Thomas Seabaugh <tseabaugh@galipolaw.com> Date: July 31, 2012 1:43:20 PM PDT To: "akcatty@lbbslaw.com" <akcatty@lbbslaw.com> Cc: Adrienne Quarry <aquarry@galipolaw.com>, Adrienne Quarry <adriennequarry@gmail.com>, John

Fattahi <jfattahi@gmail.com>, "dalekgalipo@yahoo.com" <dalekgalipo@yahoo.com>

Subject: Re: Cedric May Sr et al v. City of San Bernardino et al (5:10-cv-00978-VAP-DTB)

Sir: In light of the judgment that has recently been entered in the above-referenced case, we ask that you please inform us within the next 24 hours of the City's intentions, specifically with regard to immediate payment. If we do not hear from you, and payment is not tendered within 24 hours, we plan to initiate enforcement proceedings on an emergency ex parte basis. We would seek, inter alia, a writ of execution under Fed.R.Civ.P. 69(a) and a writ of mandate under the California Government Code and Fed.R.Civ.P. 64, in addition to interest from the date of settlement, penalties, and the full amounts of any costs and attorneys' fees incurred in the course of any collection efforts that become necessary. We do not find credible statements that there is no money in hand to satisfy these judgments, in light of the City's projected revenues in excess of $120 million. We also believe that funds to satisfy this judgment would have been and should have been set aside and earmarked upon approval by the City Council. We are not concerned that any payments to plaintiffs in this cases would be set aside as a preferences in any future bankruptcy proceedings, in light of Lewis v. Diethorn, 893 F.2d 648 (3d Cir. 1990) (Debtor's pre petition payment to settle lawsuit was not preferential transfer subject to avoidance). We have already begun taking steps to perfect liens against City property. We also intend, where applicable, to proceed to trial against the individual officers. Finally, we are considering whether Rule 11 sanctions are appropriate against the City as a litigant by reason of its conduct during settlement negotiations.

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We regret that it has come to this. Nevertheless, we still remain hopeful that we will soon hear that the City intends to disburse immediately the funds that were promised and approved. Sincerely, Thomas C. Seabaugh, Esq. LAW OFFICES OF DALE K. GALl PO 21800 Burbank Boulevard, Suite 310 Woodland Hills, California 91637 Telephone: (818) 347-3333 Facsimile: (818) 347-4118 NOTICE: This email and any attachments may be confidential and privileged. If received in error, please contact us and delete all copies.

Thomas C. Seabaugh, Esq. LAW OFFICES OF DALE K. GALl PO 21800 Burbank Boulevard, Suite 310 Woodland Hills, California 91637 Telephone: (818) 347-3333 Facsimile: (818} 347-4118 NOTICE: This email and any attachments may be confidential and privileged. If received in error, please contact us and delete all copies.

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PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 100 Wilshire Blvd., Suite 440, Santa Monica, CA 90401. A true and correct copy of the foregoing document entitled: DECLARATION OF ARTHUR K. CUNNINGHAM IN SUPPORT OF CITY OF SAN BERNARDINO'S MEMORANDUM OF FACTS AND LAW IN SUPPORT OF THE STATEMENT OF QUALIFICATIONS UNDER SECTION 109(C) OF THE BANKRUPTCY CODE will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner stated below: 1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document. On August 31, 2012, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below: Jerrold Abeles abeles.jerry@arentfox.com Joseph M Adams jadams@lawjma.com Andrew K Alper aalper@frandzel.com, efiling@frandzel.com;ekidder@frandzel.com Thomas V Askounis taskounis@askounisdarcy.com Anthony Bisconti tbisconti@bmkattorneys.com Jeffrey E Bjork jbjork@sidley.com Sarah C Boone sboone@marshackhays.com, ecfmarshackhays@gmail.com J Scott Bovitz bovitz@bovitz-spitzer.com Jeffrey W Broker jbroker@brokerlaw.biz Deana M Brown dbrown@milbank.com Michael J Bujold Michael.J.Bujold@usdoj.gov Christina M Craige ccraige@sidley.com Alex Darcy adarcy@askounisdarcy.com Susan S Davis sdavis@coxcastle.com Robert H Dewberry robert.dewberry@dewlaw.net Todd J Dressel dressel@chapman.com, lubecki@chapman.com Chrysta L Elliott elliottc@ballardspahr.com, manthiek@ballardspahr.com Scott Ewing contact@omnimgt.com, sewing@omnimgt.com Paul R. Glassman pglassman@sycr.com Everett L Green everett.l.green@usdoj.gov Chad V Haes chaes@marshackhays.com, ecfmarshackhays@gmail.com James A Hayes jhayes@cwlawyers.com M Jonathan Hayes jhayes@hayesbklaw.com, roksana@hayesbklaw.com;carolyn@hayesbklaw.com;elizabeth@hayesbklaw.com D Edward Hays ehays@marshackhays.com, ecfmarshackhays@gmail.com Eric M Heller eric.m.heller@irscounsel.treas.gov Bonnie M Holcomb bonnie.holcomb@doj.ca.gov Whitman L Holt wholt@ktbslaw.com Michelle C Hribar mch@sdlaborlaw.com Steven J Katzman SKatzman@bmkattorneys.com Jane Kespradit jane.kespradit@limruger.com, amy.lee@limruger.com Mette H Kurth kurth.mette@arentfox.com Richard A Marshack rmarshack@marshackhays.com, lbergini@marshackhays.com;ecfmarshackhays@gmail.com Gregory A Martin gmartin@winston.com
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 2012

F 9013-3.1.PROOF.SERVICE

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David J Mccarty dmccarty@sheppardmullin.com, pibsen@sheppardmullin.com Reed M Mercado rmercado@sheppardmullin.com Aron M Oliner roliner@duanemorris.com Scott H Olson solson@seyfarth.com Dean G Rallis drallis@sulmeyerlaw.com Christopher O Rivas crivas@reedsmith.com Kenneth N Russak krussak@frandzel.com, efiling@frandzel.com;dmoore@frandzel.com Gregory M Salvato gsalvato@salvatolawoffices.com, calendar@salvatolawoffices.com Mark C Schnitzer mschnitzer@rhlaw.com, mschnitzer@verizon.net Benjamin Seigel bseigel@buchalter.com, IFS_filing@buchalter.com Diane S Shaw diane.shaw@doj.ca.gov Jason D Strabo jstrabo@mwe.com, losangelestrialdocket@mwe.com Matthew J Troy matthew.troy@usdoj.gov United States Trustee (RS) ustpregion16.rs.ecf@usdoj.gov Anne A Uyeda auyeda@bmkattorneys.com Annie Verdries verdries@lbbslaw.com Brian D Wesley brian.wesley@doj.ca.gov Service information continued on attached page

2. SERVED BY UNITED STATES MAIL: On _____________, I served the following persons and/or entities at the last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. Service information continued on attached page 3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL (state method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on August 31, 2012, I served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is filed. Honorable Meredith A. Jury (Personal Delivery) U.S. Bankruptcy Court 3420 Twelfth Street, Suite 325 / Courtroom 301 Riverside, CA 92501-3819 Everett L Green (Personal Delivery) Office of the US Trustee 3685 Main St Ste 300 Riverside, CA 92501 Twenty Largest Creditors: Served on counsel via NEF: 2006 City of San Bernardino Taxable Pension Obligation Bonds, 2005, Series A Wells Fargo Bank, N.A. Corporate Trust Services Special Accounts Group Jerrold Abeles abeles.jerry@arentfox.com Mette H Kurth kurth.mette@arentfox.com
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 2012

F 9013-3.1.PROOF.SERVICE

DOCSOC/1580669v1/200430-0003

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Kohl's Corporate Offices N56 W17000 Ridgewood Drive Menomonee Falls, Wisconsin 53051 Scott H Olson solson@seyfarth.com

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US Bank, N.A., Trustee 633 West 5th Street, 24th Floor, Los Angeles, California 90071 Jason D Strabo jstrabo@mwe.com, losangelestrialdocket@mwe.com California Infrastructure Bank and Economic Development Bank 980 9th Street, Suite 900 Sacramento, California 95814 Diane Shaw diane.shaw@doj.ca.gov Marquette Bank, 10000 W 151ST ST, Orland Park, Illinois 60462 Thomas V Askounis taskounis@askounisdarcy.com [The remainder of the List of 20 Largest Creditors are being served by the official claims agent; a separate proof of service will be filed] Service information continued on attached page I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

August 31, 2012

Date

Christine Pesis
Printed Name

/s/ Christine Pesis

Signature

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 2012

F 9013-3.1.PROOF.SERVICE

DOCSOC/1580669v1/200430-0003