Viola Coppola, et al v. Gregory Smith, et al

Filing 445

STIPULATION and ORDER ON UNDISPUTED MATTERS IN LIEU OF SUMMARY JUDGMENT BRIEFING, signed by District Judge Anthony W. Ishii on 10/14/2016. (Kusamura, W)

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GREBEN & ASSOCIATES
125 E. DE LA GUERRA ST., STE 203
SANTA BARBARA, CA 93101
TEL: [phone]
FAX: [phone]

Jan A. Greben, SBN 103464
[e-mail]
Christine M. Monroe, SBN 304573
[e-mail]
Attorneys for Plaintiffs GARY COPPOLA, an individual; GARY COPPOLA, as SUCCESSOR
TRUSTEE OF THE VIOLA M. COPPOLA IRREVOCABLE TRUST; and GARY COPPOLA,
as TRUSTEE OF THE ANTHONY M. COPPOLA TRUST

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA - FRESNO DIVISION

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GARY COPPOLA, an individual, GARY
COPPOLA, as SUCCESSOR TRUSTEE OF
THE VIOLA M. COPPOLA IRREVOCABLE
TRUST; and GARY COPPOLA, as
TRUSTEE OF THE ANTHONY M.
COPPOLA TRUST;
Plaintiffs,

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Case No.: 1:11-CV-01257-AWI-BAM

STIPULATION AND [PROPOSED]
ORDER ON UNDISPUTED MATTERS IN
LIEU OF SUMMARY JUDGMENT
BRIEFING

v.
PARAGON CLEANERS (formerly sued as
GREGORY SMITH, an individual);
RICHARD LASTER, an individual; THE
JANE HIGGINS NASH TRUST; JANE
NASH AS EXECUTOR OF THE ESTATE
OF DECTAUR HIGGINS A/K/A THE
ESTATE OF MABEL ELAINE HIGGINS;
the CITY OF VISALIA, NASH
PROPERTIES LLC [DOE #1], DAVID H.
NASH, as the successor co-trustee of the
JANE NASH TRUST, a trust created under
the terms of the Last Will and Testament of
Mabel Elaine Higgins Testamentary Trust and
commonly known as the Jane Higgins Nash
Trust [DOE #2], RICHARD P. NASH, as the
successor co-trustee of the JANE NASH
TRUST, a trust created under the terms of the
Last Will and Testament of Mabel Elaine
Higgins Testamentary Trust and commonly
known as the Jane Higgins Nash Trust [DOE
#3]

Honorable Judge Anthony W. Ishii

Defendants.
-1STIPULATION AND ORDER ON UNDISPUTED MATTERS IN LIEU OF
SUMMARY JUDGMENT BRIEFING

1:11-CV-01257-AWI-BAM

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Plaintiffs Gary Coppola, an individual, Gary Coppola, as successor trustee of the Viola M.

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Coppola Irrevocable Trust, and Gary Coppola as trustee of the Anthony M. Coppola Trust

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(“Plaintiffs”) and the City of Visalia (“City”) (collectively, “the Parties”) enter the following

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stipulation and request for an Order to narrow the issue for trial and in lieu of briefing these matters

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in summary judgment motions. Good cause exists because this stipulation was reached voluntarily

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and in good faith following the Parties’ meet and confer efforts made pursuant to the Court’s

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Scheduling Order and Local Rule 260 regarding Plaintiffs’ intent to file a motion for partial

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summary judgment.

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The Parties hereby agree, stipulate and request that the Court enter an Order establishing that

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the following facts and elements are undisputed and thus require no proof at trial as to Plaintiffs’

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CERCLA claims.

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1. The City’s sewer mains and trunks, only (without admission of any other portion of the

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sewer system, including the side sewers, laterals and/or wyes), are a facility within the

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meaning of CERCLA.

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2. The City is a covered person within the meaning of 42 U.S.C. § 9607 (a)(1) as the owner
and operator of the sewer mains and trunks (facility).
3. Plaintiffs have incurred at least some necessary response costs to meet the minimal
threshold required for establishing their CERCLA claims against the City.

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As to Plaintiffs’ CERCLA claims, the Parties specifically dispute the third element of

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CERCLA’s prima facie case as to whether “a ‘release’ or ‘threatened release’ of any ‘hazardous

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substance’ [occurred] from the facility.” 42 U.S.C. § 9607 – see e.g. Stevens Creek Assoc. v.

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Barclays Bank of Cal, 915 F.2d 1355, 1358 (1990). Additionally, the issues of allocation and/or

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damages remain an issue for trial and the Parties’ stipulation is not intended to waive any argument

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regarding these matters.

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The Parties further agree, stipulate and request that the Court enter an Order dismissing,

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without leave to amend, the thirty-sixth, thirty-seventh, thirty-eighth and fortieth affirmative

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defenses, only, raised by the City in its Answer to Plaintiffs’ Eighth Amended Complaint [Document

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-2STIPULATION AND ORDER ON UNDISPUTED MATTERS IN LIEU OF
SUMMARY JUDGMENT BRIEFING

1:11-CV-01257-AWI-BAM

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406]. All remaining affirmative defenses raised in the City’s Answer remain operative. The

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dismissal of said affirmative defenses is not intended to operate as an adjudication on the merits, and

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no admission shall be construed as a result of the dismissal.

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Dated: October 14, 2016

GREBEN & ASSOCIATES

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/s/ Christine Monroe
Jan A. Greben
Christine M. Monroe
Attorneys for Plaintiffs and Counter Defendants
GARY COPPOLA, an individual; GARY
COPPOLA, as SUCCESSOR TRUSTEE OF
THE VIOLA M. COPPOLA IRREVOCABLE
TRUST; and GARY COPPOLA, as TRUSTEE
OF THE ANTHONY M. COPPOLA TRUST

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Dated: October 14, 2016

HERR, PEDERSEN & BERGLUND LLP

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/s/ Ron Statler (per authorization)

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Leonard C. Herr
Ron Statler
Attorneys for Defendant CITY OF VISALIA

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[PROPOSED] ORDER

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The Court, finding that the Parties have stipulated and agreed, and good cause appearing
thereon, HEREBY ORDERS:
1. With respect to Plaintiffs’ CERCLA claims, the following facts and elements are
undisputed and thus require no proof at trial:
a. The City’s sewer mains and trunks, only (without admission of any other portion of
the sewer system, including the side sewers, laterals and/or wyes), are a facility
within the meaning of CERCLA.

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-3STIPULATION AND ORDER ON UNDISPUTED MATTERS IN LIEU OF
SUMMARY JUDGMENT BRIEFING

1:11-CV-01257-AWI-BAM

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b. The City is a covered person within the meaning of 42 U.S.C. § 9607 (a)(1) as the
owner and operator of the sewer mains and trunks (facility).
c. Plaintiffs have incurred at least some necessary response costs to meet the minimal
threshold required for establishing their CERCLA claims against the City.

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2. The issue of whether “a ‘release’ or ‘threatened release’ of any ‘hazardous substance’

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[occurred] from the facility” pursuant to 42 U.S.C. § 9607, remains a disputed issue for

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trial as to the City’s liability.

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remain an issue for trial and the Parties’ stipulation is not intended to waive any argument

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regarding these matters.

Additionally, the issues of allocation and/or damages

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3. The City’s thirty-sixth, thirty-seventh, thirty-eighth and fortieth affirmative defenses, as

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set forth in its Answer to the Eighth Amended Complaint in the above captioned case, are

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hereby dismissed without leave to amend, but the dismissal of said affirmative defenses is

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not intended to operate as an adjudication on the merits, and no admission shall be

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construed as a result of the dismissal.

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4. All remaining affirmative defenses raised in the City’s Answer remain operative.

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IT IS SO ORDERED.

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Dated: October 14, 2016

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SENIOR DISTRICT JUDGE

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-4STIPULATION AND ORDER ON UNDISPUTED MATTERS IN LIEU OF
SUMMARY JUDGMENT BRIEFING

1:11-CV-01257-AWI-BAM