Walsh, individually and as Successor-in-Interest to S.W., Deceased v. Tehachapi Unified School District et al

Filing 32

ORDER GRANTING Stipulation RE: Extension of time to Amend Pleadings, leave to amend to add plaintiff, and petition for relief, signed by Magistrate Judge Jennifer L. Thurston on 4/18/2012. (Kusamura, W)

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Michael Kellar (SBN 80251)
ROBINSON & KELLAR
3434 Truxtun Avenue, Suite 150
Bakersfield, CA 93301
Tel. [phone] / Fax [phone]
Email: [e-mail]

5895.047

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Attorneys for Defendants Tehachapi Unified School District,
Dr. Richard Swanson, Susan Ortega, and Paul Kaminski
Daniel P. Barer (SBN 150812)
Girard Fisher (SBN 54007)
POLLAK, VIDA & FISHER
11150 W. Olympic Boulevard, Suite 980
Los Angeles, CA 90064-1839
Tel. [phone] / Fax: [phone]
Email: [e-mail]
Attorneys for Defendant Tehachapi Unified School District

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WENDY WALSH, individually and as
Successor-in-Interest to S. W., Deceased,

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Plaintiff
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v.
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TEHACHAPI UNIFIED SCHOOL DISTRICT; )
SUPERINTENDENT SWANSON; SUSAN
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ORTEGA; MR. KAMINSKY; MS. KIRBY;
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MS. HAIGHT; MRS. KABONIC;
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MR. FEEHAN; and DOES 1 through 100,
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Inclusive,
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Defendants.
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_______________________________________ )

CASE NO. 1:11-CV-01489-LJ0-JLT
ORDER GRANTING STIPULATION RE:
EXTENSION OF TIME TO AMEND
PLEADINGS, LEAVE TO AMEND TO
ADD PLAINTIFF, AND PETITION FOR
RELIEF

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The parties to this action (plaintiff Wendy Walsh; defendants Tehachapi Unified School

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District; Susan Ortega; and Paul Kaminski), as well as prospective plaintiff Sh. W., (collectively,

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“the parties”), through their undersigned counsel, stipulate as follows:

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LA W O FFIC E S O F
P O LLA K , V ID A
& FIS H E R

ORDER GRANTING STIPULATION RE: EXTENSION OF TIME TO AMEND PLEADINGS, LEAVE TO AMEND
TO ADD PLAINTIFF, AND PETITION FOR RELIEF

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WHEREAS:

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1.

Sh. W., brother of decedent S.W., presented an application for leave to present late

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claim under Cal. Gov. Code § 911.4 to the defendant Tehachapi Unified School

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District, with a proof of service dated September 16, 2011, together with a proposed

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claim for damages seeking recovery for events on and after September 19, 2010.

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2.

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The parties have agreed that Sh. W. is not seeking recovery in this action for any
events that occurred before September 19, 2010.

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3.

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In the application Sh. W. represents, and presents evidence, that he was born on
February 21, 1999, indicating that he is a minor.

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4.

Under Cal Gov. Code §§ 911.6(b)(2) and 946.6(c)(2), and Hernandez v. County of

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Los Angeles, 42 Cal.3d 1020, 232 Cal.Rptr. 519 (1986), a claimant against a public

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entity who was a minor throughout the six-month claim-presentation period, and

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who presents an application for leave to present late claim within one year of the

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accrual of the minor’s cause of action, is entitled to leave to present a late claim.

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5.

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Based on the evidence in his application, Sh. W. is entitled to leave to present a late
claim as to damages claimed for events on or after September 19, 2010. And:

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6.

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The interests of the parties and courts are best served by trying the damages claims
of both Sh. W. and plaintiff Wendy Walsh in the same action;

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IT IS THEREFORE STIPULATED THAT:

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LA W O FFIC E S O F
P O LLA K , V ID A
& FIS H E R

7.

Based on the application for leave to present late claim presented within a year of
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ORDER GRANTING STIPULATION RE: EXTENSION OF TIME TO AMEND PLEADINGS, LEAVE TO AMEND
TO ADD PLAINTIFF, AND PETITION FOR RELIEF

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the accrual of his cause of action, and his minority throughout the six-month period

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to present a claim, the California Government Claims Act does not prevent Sh. W.

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from pursuing a cause of action against defendants Tehachapi Unified School

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District, Susan Ortega, and Paul Kaminski, despite his failure to present a claim for

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damages to the defendant District within six months after accrual. Sh. W. need not

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obtain an order of relief under Cal. Gov. Code § 946.6(c) to pursue this cause of

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action against these defendants.

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8.

On or by May 31, 2012, Wendy Walsh and prospective plaintiff Sh. W. may amend

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Wendy Walsh’s First Amended Complaint in this action by filing a Second

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Amended Complaint to add Sh. W. as a plaintiff to the Negligent Infliction of

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Emotional Distress cause of action only, and only in regard to events on or after

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September 19, 2010.

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9.

The parties agree to request the Court to extend the deadline set forth in Paragraph

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III of the December 22, 2011 Scheduling Order in this case for filing of requested

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pleading amendments, either through a stipulation or motion to amend, from

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February 24, 2012 to permit the filing of the Second Amended Complaint described

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in paragraph 8 above on or by May 31, 2012, and to permit defendants to file a

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response to that Second Amended Complaint within 20 days of the date the Second

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Amended Complaint is filed.

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10.

On or by April 20, 2012, the counsel for plaintiff Wendy Walsh and prospective

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plaintiff Sh. W. shall take the hearing on Sh. W.’s Cal. Gov. Code § 946.6 petition

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(currently set for May 1, 2012 in Department 14 of the Kern County Superior

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Court, Case No. S-1500-MS-376) off calendar.

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LA W O FFIC E S O F
P O LLA K , V ID A
& FIS H E R

-3ORDER GRANTING STIPULATION RE: EXTENSION OF TIME TO AMEND PLEADINGS, LEAVE TO AMEND
TO ADD PLAINTIFF, AND PETITION FOR RELIEF

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11.

By entering into this stipulation, defendants Tehachapi Unified School District,

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Susan Ortega, and Paul Kaminski do not waive any procedural or substantive

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claims or defenses in this action, except as expressly set forth above.

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DATED: April 16, 2012

POLLAK, VIDA & FISHER

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By:__________/s/______________________
Daniel P. Barer
Attorneys for Defendant Tehachapi
Unified School District

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DATED: April 16, 2012

ROBINSON & KELLAR

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By:____________/s/____________________
Michael C. Kellar
Attorneys for Defendants Tehachapi
Unified School District, Dr. Richard Swanson,
Susan Ortega, and Paul Kaminski

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DATED: April 16, 2012

RODRIGUEZ & ASSOCIATES

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By:__________/s/______________________
John A. Kawai
Attorneys for plaintiff Wendy Walsh and Prospective
Plaintiff Sh. W.

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ORDER
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Based on the above stipulation, IT IS ORDERED that:

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1.

No later than May 31, 2012, Wendy Walsh and prospective plaintiff Sh. W. may

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amend Wendy Walsh’s First Amended Complaint in this action by filing a Second
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LA W O FFIC E S O F
P O LLA K , V ID A
& FIS H E R

-4ORDER GRANTING STIPULATION RE: EXTENSION OF TIME TO AMEND PLEADINGS, LEAVE TO AMEND
TO ADD PLAINTIFF, AND PETITION FOR RELIEF

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Amended Complaint to add Sh. W. as a plaintiff to the Negligent Infliction of

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Emotional Distress cause of action only, and only in regard to events on or after

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September 19, 2010;

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2.

Defendants SHALL file a responsive pleading within 20 days of the filing of the
Second Amended Complaint.

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IT IS SO ORDERED.

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Dated: April 18, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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LA W O FFIC E S O F
P O LLA K , V ID A
& FIS H E R

-5ORDER GRANTING STIPULATION RE: EXTENSION OF TIME TO AMEND PLEADINGS, LEAVE TO AMEND
TO ADD PLAINTIFF, AND PETITION FOR RELIEF