Jones v. City of Orange Cove

Filing 57

ORDER Re Settlement Agreement Regarding the Third Cause of Action, and DISMISSING the Third Cause of Action signed by Magistrate Judge Dennis L. Beck on 6/29/2010. (Jessen, A)

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Daniel T. McCloskey, Esq. #117560 James F. McBrearty, Esq., #143117 TUTTLE & McCLOSKEY A PROFESSIONAL CORPORATION 750 East Bullard, Suite 101 Fresno, California 93710 Telephone: [phone] Facsimile: [phone] Attorney for Defendant, CITY OF ORANGE COVE

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

SUE JONES, Plaintiff, vs CITY OF ORANGE COVER and DOES 1 through 25, inclusive, Defendants.

Case No. 1:08-CV-00775-LJO-DLB SETTLEMENT AGREEMENT REGARDING THE THIRD CAUSE OF ACTION OF THE COMPLAINT AND ORDER OF DISMISSAL OF THE THIRD CAUSE OF ACTION

RECITALS WHEREAS Sue Jones (hereinafter "Jones") has filed a Complaint against the City of Orange Cove (hereinafter "City") and said Complaint is now pending before this Court; WHEREAS in her third count of the Complaint, Jones claims that the City's ordinance which charged her for water service to apartment units owned by Jones but were unoccupied violated her constitutional rights and sought to declare City Municipal Code Section 3.040.070 unconstitutional; WHEREAS Jones also claimed that the City's requirement for Jones to pay for water service for and on behalf of tenants of other real properties, owned by Jones, which tenants had failed to pay for the water service, violated her due process rights;

SETTLEMENT AGREEMENT REGARDING THIRD CAUSE OF ACTION

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WHEREAS the City had claimed that Jones owned money to the City for past due water service to the vacant units and/or other real properties owned by Jones and rented by Jones to others who had the service in their respective names but failed to pay for the service when they vacated the real property; WHEREAS the parties have agreed to resolve their dispute regarding this claim. The parties hereby jointly agree that: 1. City hereby waives any and all past due money claims it has against Jones for

unpaid water bills for all vacant apartment units which were charged to Jones by the City. 2. City will further agree not to require Jones to pay for the past due water service

fees provided to tenants of Jones who were occupying Jones' properties, who had service turned on in their respective names but failed to pay for the service by the time they vacated the real property. 3. 4. Jones agrees to dismiss her Third Cause of Action against the City. Jones shall, in cooperation with the City, install water main locks for all

apartment units and maintain the locks. The keys to the locks shall be provided to the City upon request. Jones shall pay for the acquisition and installation of all locks. 5. Jones further covenants and agrees that she and/or her agent(s) shall notify the

City once a unit has been occupied and service has been turned on so that the City can bill Jones for the services provided to the said unit. Jones shall do so within five (5) business days after the water has been turned on to a specified unit. 6. Jones further covenants and agrees that she and/or her agent(s) shall notify the

City once a unit becomes unoccupied and the service has been turned off so that the City can stop billing Jones for the services provided to the unit. Jones shall do so within five (5) business days after the water has been turned off to a specified unit. 7. Upon reasonable notice, City shall be entitled to audit compliance by Jones of the

above reporting requirements. 8. The arrangement for water service between Jones and the City shall continue until

the City has installed water meters for each and every unit as required under state law in 2012.

SETTLEMENT AGREEMENT REGARDING THIRD CAUSE OF ACTION

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9.

This agreement does not constitute an admission of liability or wrongdoing by any

party. This agreement also does not constitute an admission of the unconstitutionality of any ordinance or law. 10. The parties agree and understand that in the event that legal proceedings are

initiated for the purpose of enforcing the terms of this agreement, the prevailing party in any such proceeding shall be entitled to an award of reasonable attorney's fees and costs incurred in bringing or defending such action. This agreement does not resolve nor will it set aside Jones' claim against the City on the remainder of her Complaint. It is hereby agreed by the parties. June 23 , 2010. /s/ Sue B. Jones Sue B. Jones, Plaintiff June 28 , 2010. /s/ Alan Bengyel Alan Bengyel, City Manager City of Orange Cove Attorney Approval: Dated: June 28 , 2010. Tuttle & McCloskey A Professional Corporation By /s/ James F. McBrearty James F. McBrearty, Esq. Attorneys for Defendant, City of Orange Cove

June 23

, 2010.

Yarra, Kharazi & Associates By /s/ H. Ty Kharazi H. Ty Kharazi, Esq. Attorneys for Plaintiff, Sue Jones

SETTLEMENT AGREEMENT REGARDING THIRD CAUSE OF ACTION

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DEAC_Signature-END:

ORDER Based on the agreement of the parties as set forth above, the Court hereby orders that the Third Cause of Action be dismissed.

IT IS SO ORDERED. Dated:

June 29, 2010

/s/ Dennis

L. Beck

UNITED STATES MAGISTRATE JUDGE 3b142a

SETTLEMENT AGREEMENT REGARDING THIRD CAUSE OF ACTION

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