Sinclair et al v. Fox Hollow, et al

Filing 1013

STIPULATION And ORDER Re: (1) Pending Motion For Order Altering Or Amending Order Dismissing Claims Against Mauctrst, LLC And Application For Reconsideration (Docket #s 897 , 900 ); And (2) Entry Of Default Against Mauctrst, LLC, signed by District Judge Anthony W. Ishii on 3/17/2014. (Fahrney, E)

1 McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
2 D. Greg Durbin, #81749
[e-mail]
3 John M. Dunn, #166482
[e-mail]
4 William H. Littlewood, #202877
[e-mail]
5 Daniel S. Cho, #260902
[e-mail]
6 7647 North Fresno Street
Fresno, California 93720
7 Telephone:
[phone]
Facsimile:
[phone]
8
Attorneys for Plaintiffs, Defendants and Cross9 Defendants FOX HOLLOW OF TURLOCK
OWNERS ASSOCIATION and CALIFORNIA
10 EQUITY MANAGEMENT GROUP, INC. and
Defendant and Cross-Defendant ANDREW
11 KATAKIS
12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

14

15 FOX HOLLOW OF TURLOCK OWNERS’
ASSOCIATION, a California Nonprofit
16 Mutual Benefit Corporation; et al.,
17
18

Plaintiffs,
v.

19 RICHARD SINCLAIR, an individual; et al.,
20

Case No. 1:03-CV-05439-AWI-SAB
STIPULATION RE: (1) PENDING
MOTION FOR ORDER ALTERING OR
AMENDING ORDER DISMISSING
CLAIMS AGAINST MAUCTRST, LLC
AND APPLICATION FOR
RECONSIDERATION [DOCKET #S 897,
900]; AND (2) ENTRY OF DEFAULT
AGAINST MAUCTRST, LLC

Defendants.

21
AND CONSOLIDATED ACTIONS
22
23

STIPULATION

24

WHEREAS Plaintiffs Fox Hollow of Turlock Owners Association and California Equity

25 Management Group, Inc. (“Plaintiffs”) filed their Consolidated Amended and Supplemental
26 Complaint for Declaratory and Injunctive Relief and for Damages herein on July 21, 2010 against
27 Gregory Mauchley (“Mr. Mauchley”), Mauctrst, LLC (“Mauctrst”) and others (Docket # 410) (the
28 “Consolidated Amended Complaint”);
MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

1

STIPULATION RE: (1) PENDING MOTION FOR ORDER ALTERING OR AMENDING ORDER DISMISSING
CLAIMS AGAINST MAUCTRST, LLC AND APPLICATION FOR RECONSIDERATION [DOCKET #S 897,
900]; AND (2) ENTRY OF DEFAULT AGAINST MAUCTRST, LLC

1

WHEREAS Mr. Mauchley and others filed their Answer to the Consolidated Amended

2 Complaint and a Cross-Complaint against Plaintiffs and Andrew Katakis (collectively, the
3 “CEMG/Fox Hollow Parties”) on August 10, 2010 (Docket #s 423 & 425);
4

WHEREAS Mauctrst and others filed an Answer to the Consolidated Amended Complaint on

5 January 18, 2011 (Docket # 467);
6

WHEREAS Mauctrst and others had previously filed a First Amended Complaint in one of the

7 actions consolidated herein against the CEMG/Fox Hollow Parties on December 22, 2004 (the

8 “December 22, 2004 Complaint”) (Docket # 80) and the CEMG/Fox Hollow Parties had filed an
9 answer thereto on March 9, 2005 (Docket # 84);
10

WHEREAS the CEMG/Fox Hollow Parties filed a motion herein on November 15, 2012, for

11 Judgment on the Pleadings as to: (1) claims asserted by Mauctrst, LLC in its December 22, 2004 First
12 Amended Complaint; and (2) against Mauctrst, LLC on Plaintiffs’ Consolidated Amended Complaint
13 in which the CEMG/Fox Hollow Parties moved “for an order granting judgment on the pleadings as to
14 (1) claims asserted by Mauctrst, LLC in its December 22, 2004, First Amended Complaint; and (2) an

15 entry of default against Mauctrst, LLC on Fox Hollow HOA’s and CEMG’s Consolidated Amended
16 Supplemental Complaint for Declaratory and Injunctive Relief and Damages (Docket # 410)” (Docket
17 # 869, 2:4-8);
18

WHEREAS Mr. Mauchley and Mauctrst, LLC filed their opposition to said motion on

19 December 21, 2012 (Docket # 878) and the CEMG/Fox Hollow Parties filed their reply in support of
20 such motion on December 28, 2012 (Docket # 880);
21

WHEREAS the Court, in its Order re Motion for Judgment on the Pleadings entered herein on

22 April 15, 2013, (Docket # 892) granted the motion in part and denied it in part, directing: “all claims
23 by and against Mauctrst, LLC are dismissed. Mauctrst, LLC itself is dismissed from the case.”
24 (Docket # 892, 7:8-10);
25

WHEREAS the CEMG/Fox Hollow Parties filed a Motion for an Order Altering or Amending

26 Order Dismissing Claim Asserted against Mauctrst, LLC (Docket # 892) and Vacating Judgment
27 Entered Thereon (Docket # 893) on May 9, 2013 (Docket # 897) and an Application for
28 Reconsideration Pursuant to L.R. 230(j) in Support of Motion by the CEMG/Fox Hollow Parties for
2
MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

STIPULATION RE: (1) PENDING MOTION FOR ORDER ALTERING OR AMENDING ORDER DISMISSING
CLAIMS AGAINST MAUCTRST, LLC AND APPLICATION FOR RECONSIDERATION [DOCKET #S 897,
900]; AND (2) ENTRY OF DEFAULT AGAINST MAUCTRST, LLC

1 an Order Altering or Amended Order Dismissing Claims Asserted against Mauctrst LLC (Docket #
2 892), and Vacating Judgment Entered Thereon (Docket # 900) (collectively the “Motion To Set Aside
3 And For Reconsideration”);
4

WHEREAS Mr. Mauchley and Mauctrst, LLC filed their opposition to the Motion To Set

5 Aside And For Reconsideration on May 31, 2013 (Docket # 914) and the CEMG/Fox Hollow Parties
6 filed their reply in support of such motion on June 10, 2013 (Docket # 917);
7

WHEREAS the Court, by Order entered on June 14, 2013, vacated the hearing on such motion

8 and requested additional briefing (Docket # 920);
9

WHEREAS the CEMG/Fox Hollow Parties provided additional briefing thereon on July 10,

10 2013 (Docket # 940) and Mr. Mauchley and Mauctrst, LLC provided additional briefing thereon on
11 July 31, 2013 (Docket # 960);
12

WHEREAS Mr. Mauchley, on October 4, 2013, filed a Petition under Chapter 11 of the

13 Bankruptcy Code in the United States Bankruptcy Court, District of Utah, Case No. 13-31334 (the
14 “Mauchley bankruptcy”) [Docket # 981];

15

WHEREAS the CEMG/Fox Hollow Parties, Mr. Mauchley, Mauctrst, LLC and Mrs.

16 Mauchley, have reached a global settlement involving the within action, as well as a State Court
17 judgment and a request for an award of attorneys’ fees on appeal, claims of non-dischargability in the
18 Mauchley bankruptcy, and additional claims;
19

WHEREAS, as part of that settlement, the Parties have stipulated and agreed that the Court

20 grant the Motion To Set Aside And For Reconsideration and that a default against Mauctrst, LLC on
21 the Consolidate Amended Complaint be entered herein:
22

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between

23 Plaintiffs and Cross-Defendants Fox Hollow of Turlock Owners Association and California Equity
24 Management Group, and Defendant and Cross-Defendant Andrew Katakis (collectively the
25 “CEMG/Fox Hollow Parties”) on the one hand, and Gregory Mauchley, Diane Mauchley, and
26 Mauctrst, LLC (collectively the “Mauchley Parties”) on the other hand that:
27

1.

Mr. Mauchley and Mauctrst, LLC hereby withdraw their opposition to the Motion To

28 Set Aside And For Reconsideration (Docket #s 914 & 960);
3
MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

STIPULATION RE: (1) PENDING MOTION FOR ORDER ALTERING OR AMENDING ORDER DISMISSING
CLAIMS AGAINST MAUCTRST, LLC AND APPLICATION FOR RECONSIDERATION [DOCKET #S 897,
900]; AND (2) ENTRY OF DEFAULT AGAINST MAUCTRST, LLC

1

2.

Mr. Mauchley and Mauctrst, LLC hereby request the court to grant the Motion To Set

2 Aside And For Reconsideration and vacate the judgment of dismissal in favor of Mauctrst LLC
3 (Docket # 893) while maintaining the order of the court dismissing the December 22, 2004 Complaint
4 as the Mauctrst LLC; and
5

3.

Mr. Mauchley and Mauctrst, LLC hereby request the Court strike the answer of

6 Mauctrst LLC (and only Mauctrst LLC) to the Consolidated Amended Complaint (Docket # 467) and
7 thereon enter the default of Mauctrst LLC on the Consolidated Amended Complaint.

8

.

9 Dated: March ___, 2014

McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP

10
11

By:

12

D. Greg Durbin
John M. Dunn
William H. Littlewood
Daniel S. Cho
Attorneys for Plaintiffs, Defendants and CrossDefendants FOX HOLLOW OF TURLOCK
OWNERS ASSOCIATION and CALIFORNIA
EQUITY MANAGEMENT GROUP, INC. and
Defendant and Cross-Defendant ANDREW
KATAKIS

13
14

15
16
17
18
19

Dated: March ___, 2014

PERKINS, MANN & EVERETT

20
21
22
23

By:
Curtis D. Rindlesbacher
Craig A. Tristao
Attorneys for Defendants Gregory Mauchley and
Mauctrst, LLC

24
25
26
27
28
MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

4
STIPULATION RE: (1) PENDING MOTION FOR ORDER ALTERING OR AMENDING ORDER DISMISSING
CLAIMS AGAINST MAUCTRST, LLC AND APPLICATION FOR RECONSIDERATION [DOCKET #S 897,
900]; AND (2) ENTRY OF DEFAULT AGAINST MAUCTRST, LLC

1 WE HEREBY AGREE TO THIS STIPULATION
2
3 Dated: January 24, 2014
4
5

/s/ Gregory Mauchley
Gregory Mauchley, individually
and on behalf of Mauctrst LLC

6
7

8 Dated: January 24, 2014
9
10
/s/ Diana Mauchley
Diana Mauchley, individually
and on behalf of Mauctrst LLC

11
12
13
ORDER

14

15

THE MAUCHLEY PARTEIS AND THE CEMG/FOX HOLLOW PARTEIS HAVING SO

16 STIPULATED AND AGREED, and good cause appearing, is hereby ordered that:
17

1.

The opposition of Mr. Mauchley and Mauctrst, LLC to the Motion To Set Aside And

18 For Reconsideration (Docket #s 914 & 960) is hereby withdrawn;
19

2.

The Motion To Set Aside And For Reconsideration is hereby granted and the

20 judgment of dismissal in favor of Mauctrst LLC is hereby vacated (Docket # 893) while maintaining
21 the order of the court dismissing the December 22, 2004 Complaint as the Mauctrst LLC; and
22

3.

The answer of Mauctrst LLC (and only Mauctrst LLC) to the Consolidated Amended

23 Complaint (Docket # 467) is hereby struck and the default of Mauctrst LLC on the Consolidated
24 Amended Complaint (Docket # 410) is hereby entered.
25
26 IT IS SO ORDERED.
27 Dated: March 17, 2014
28
MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

SENIOR DISTRICT JUDGE
5
STIPULATION RE: (1) PENDING MOTION FOR ORDER ALTERING OR AMENDING ORDER DISMISSING
CLAIMS AGAINST MAUCTRST, LLC AND APPLICATION FOR RECONSIDERATION [DOCKET #S 897,
900]; AND (2) ENTRY OF DEFAULT AGAINST MAUCTRST, LLC