Rodriguez v. County of Stanislaus, et al.

Filing 115

Stipulation and ORDER Re Defendant State of California's 87 Motion For Partial Summary Judgment signed by Judge Oliver W. Wanger on 4/27/2010. (Esteves, C)

1 Joseph W. Carcione, Jr., Esq. (State Bar No. 56693) Aaron B. Markowitz, Esq. (State Bar No. 220694) 2 CARCIONE, CATTERMOLE, DOLINSKI, OKIMOTO, STUCKY, UKSHINI, 3 MARKOWITZ & CARCIONE, L.L.P. A Professional Corporation 4 601 Brewster Avenue P.O. Box 3389 5 Redwood City, CA 94064 Telephone: [phone] Attorneys for Plaintiffs: 7 LUCIO CORRAL RODRIGUEZ, individually, and as Successor in Interest to the decedents, 8 MARICRUZ CORRAL, IVAN ALEXANDER CORRAL, and LUCIO ANTHONY CORRAL 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 FRESNO DIVISION 12 LU C IO CORRAL RODRIGUEZ, Case No.: 1:08-CV-00856-OWW-GSA 13 in d iv id u ally, and as Successor in Interest to th e decedents, MARICRUZ CORRAL, STIPULATION AND ORDER RE 14 IV A N ALEXANDER CORRAL, and DEFENDANT STATE OF CALIFORNIA'S LU C IO ANTHONY CORRAL, MOTION FOR PARTIAL SUMMARY 15 JUDGMENT
P l a i n t i ff,

16
vs.

17
C O U N T Y OF STANISLAUS, CITY OF

18 M O D E S T O , CITY OF RIVERBANK,
S T A T E OF CALIFORNIA, AMTRAK

Courtroom:3 Judge: Hon. Oliver W. Wanger

19 C A LIF O R N IA , BURLINGTON
N O R T H E R N SANTA FE RAILWAY; and

20 D O E S 1 to 200, __________________________________/ 21 22 23 WHEREAS Plaintiff LUCIO CORRAL RODRIGUEZ, MARICRUZ CORRAL, IVAN

24 A LE X A N D E R CORRAL, and LUCIO ANTHONY CORRAL (hereinafter "Plaintiffs") filed a 25 Complaint in the instant action arising out of a railway grade crossing train-vehicle collision on 26 May 8, 2007, near the intersection of Claribel Road and Terminal Avenue in the County of 27 Stanislaus, naming all defendants as to all causes of action. 28 WHEREAS, Plaintiffs' claim fall into two district categories. There are those claims 1.
177610 / STIPULATION AND ORDER RE DEFENDANT STATE OF CALIFORNIA'S MOTION FOR PARTIAL SUMMARY JUDGMENT

1 based on the ownership, maintenance, condition, and operation of the train, on the one hand, 2 and those claims based on the condition of the grade crossing and the surrounding area on the 3 other. (See Scheduling Conference Order, p. 3, para. 5.) 4 WHEREAS Defendant STATE OF CALIFORNIA has filed a Motion for Partial

5 Summary Judgment as to Plaintiffs' claims based on the condition of the grade crossing and 6 surrounding area where the subject accident of the action occurred. 7 WHEREAS Defendant STATE OF CALIFORNIA has produced a declaration, which

8 avers under penalty of perjury that the State of California does not maintain or perform any 9 maintenance of the realty at the subject crossing or intersection, which declaration is attached 10 hereto as Exhibit A. 11 12 Plaintiffs and Defendant STATE OF CALIFORNIA stipulate and agree as follows: 1. Any reference to the STATE OF CALIFORNIA is stricken from the First Cause

13 of Action, for Premises Liability 14 2. To the extent that the Second Cause of Action alleges any claims against the

15 STATE OF CALIFORNIA based on the condition of the grade crossing and the surrounding 16 real property, those claims are stricken. 17 3. This case continues on against the State of California on other grounds, as this

18 Stipulation and Order will have no impact on Plaintiffs' claims that arise or relate to the 19 operation, ownership, inspection and/or maintenance of the subject train. It should be noted 20 that plaintiffs contend that included in the remaining claims against State are those that arise or 21 relate to the hiring, retention, and/or employment of those persons who did operate, inspect, 22 and/or maintain the subject train. It is State's position to the contrary that the Compliant does 23 not encompass these claims against State which arise or relate to the hiring, retention, and/or 24 employment o those persons who did operate, inspect, and/or maintain the subject train. These 25 parties hereby stipulate that this Stipulation will have no effect or prejudice on Plaintiffs' 26 assertions that these claims are encompassed in Plaintiffs' Complaint, nor upon State's 27 assertion to the contrary that the Complaint does not encompass such claims." 28 4. This stipulation is not intended to have any impact on Plaintiffs' claims against 2.
177610 / STIPULATION AND ORDER RE DEFENDANT STATE OF CALIFORNIA'S MOTION FOR PARTIAL SUMMARY JUDGMENT

1 any of the other defendants to this action, other than the STATE OF CALIFORNIA. 2 3 4 SO STIPULATED AND AGREED. 5 6 7 Dated: April 27, 2010 8 9 10
Dated: April 27, 2010 B y: /s/ Douglas L. Johnson, Esq. Attorney for Defendant S ta te of California - Dept. of Transportation

5. is moot.

Defendant STATE OF CALIFORNIA's Motion for Partial Summary Judgment

CA RCIO N E , CATTERMOLE, DOLINSKI, OKIMOTO, STUCKY, UKSHINI, MA RKO W IT Z & CARCIONE, LLP By: /s/ Aaron B. Markowitz, Esq. Attorney for Plaintiffs

11 12 13 14 IT IS SO ORDERED. 15 Dated: April 27, 2010 16 emm0d6 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

3.
177610 / STIPULATION AND ORDER RE DEFENDANT STATE OF CALIFORNIA'S MOTION FOR PARTIAL SUMMARY JUDGMENT