Abston et al v. City of Merced et al

Filing 30

STIPULATION and ORDER Dismissing Plaintiffs' Fifth Cause of Action With Prejudice and Modifying First Cause of Action signed by Judge Oliver W. Wanger on 1/15/2010. (Esteves, C)

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JOHN L. BURRIS, Esq./ State Bar #69888 BENJAMIN NISENBAUM, Esq./State Bar #222173 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre 7677 Oakport Street, Suite 1120 Oakland, California 94621 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MAUREEN ABSTON, individually, and as Personal Representative of the Estate of RICHARD ABSTON; COREY ABSTON; JACY ABSTON; LINDA ABSTON Plaintiffs, vs. CITY OF MERCED, a municipal corporation; RUSS THOMAS, in his capacity as Sheriff for the CITY OF MERCED; J. HART, individually and in his capacity as a police officer for CITY OF MERCED; B. DALIA, individually, and in his capacity as a police officer for the CITY OF MERCED; N. ARELLANO, individually and her capacity as a police officer for the CITY OF MERCED; S. KENSEY, individually; and DOES 1-25, inclusive, Defendants. / Case No. 1:09-CV-00511 OWW GSA STIPULATION AND ORDER DISMISSING PLAINTIFFS' FIFTH CAUSE OF ACTION WITH PREJUDICE AND MODIFYING FIRST CAUSE OF ACTION

STIPULATION WHEREAS, Plaintiffs have filed a First Amended Complaint in this action, pursuant to stipulation. WHEREAS, the First Amended Complaint contains a cause of action for violation of California Civil Code section 52.1, in the Fifth Cause of Action.
STIPULATION AND (PROPOSED) ORDER DISMISING PLAINTIFFS' FIFTH CAUSE OF ACITON WITH PREJUDICE 1

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WHEREAS, the parties stipulate to dismissal of the Fifth Cause of Action in Plaintiffs' First Amended Complaint, with prejudice, in its entirety as to all claims of violation of California Civil Code section 52.1. WHEREAS, the First Cause of Action, paragraph 38(a), alleges a Fourth Amendment claim on behalf of all plaintiffs. WHEREAS, the parties stipulate that a Fourth Amendment claim can be asserted only on behalf of Decedent RICHARD ABSTON, through the personal representative of his estate, MAUREEN ABSTON. IT IS SO STIPULATED, that the Fifth Cause of Action of the First Amended Complaint should be dismissed with prejudice; and the First Cause of Action, paragraph 38 (a) should be amended to state a Fourth Amendment claim solely on behalf of Decedent RICHARD ABSTON, through the personal representative of his estate, MAUREEN ABSTON.

Respectfully submitted, Dated: January 4, 2010 The Law Offices of John L. Burris

/s/ BENJAMIN NISENBAUM Benjamin Nisenbaum Attorney for Plaintiffs Maureen Abston, Corey Abston; Jacy Abston; Linda abston

STIPULATION AND (PROPOSED) ORDER DISMISING PLAINTIFFS' FIFTH CAUSE OF ACITON WITH PREJUDICE

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Respectfully submitted, Dated: January 4, 2010 EDMUND G. BROWN JR. Attorney General of California JAMES M. SCHIAVENZA Senior Assistant Attorney General /s/ STEVEN M. GEVERCER STEVEN M. GEVERCER Supervising Deputy Attorney General Attorneys for Defendant Shane Kensey

Dated: January 4, 2010

Respectfully submitted, LOW BALL AND LYNCH /s/ DALE ALLEN JR.____ DALE L. ALLEN, JR Attorneys for Defendants City of Merced; Russ Thomas; J. Hart; B. Dalia and N. Arellano

STIPULATION AND (PROPOSED) ORDER DISMISING PLAINTIFFS' FIFTH CAUSE OF ACITON WITH PREJUDICE

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ORDER

PURSUANT TO THE PARTIES' STIPULATIONS, Plaintiffs' Fifth Cause of Action asserted in Plaintiffs' First Amended Complaint, alleging violation of California Civil Code section 52.1, is hereby dismissed with prejudice. The Court takes notice that the Fourth Amendment right to be free from unreasonable searches and seizures asserted in Plaintiffs' First Cause of Action, paragraph 38(a), of Plaintiffs' First Amended Complaint, is asserted solely on behalf of Decedent RICHARD ABSTON, through the personal representative of his estate, MAUREEN ABSTON. IT IS SO ORDERED.

Dated:_January 15, 2010

/s/ OLIVER W. WANGER_____ Honorable Oliver W. Wanger UNITED STATES DISTRICT JUDGE

STIPULATION AND (PROPOSED) ORDER DISMISING PLAINTIFFS' FIFTH CAUSE OF ACITON WITH PREJUDICE

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