Lewis, et al v. Russell, et al

Filing 433

STIPULATION and ORDER signed by Judge William B. Shubb on 10/16/12 ORDERING that this case is STAYED between City of Davis and Martin Franchises, Inc.; if the settlement cannot be finalized by 11/23/12, the stay of the current proceedings between the City and Martin shall terminate and the proceedings, including the City's Rule 56(d) submission, Martin's opposition thereto, and any rulings by the Court on the Rule 56(d) submission and Martin's summary judgment motion as to the Cit y's CERCLA and nuisance claims, shall recommence and proceed in due course. Should the stay of the current proceedings between them terminate, the City shall have 10 days from such termination to file its Rule 56(d) submission and Martin shall have 10 days from the City's submission to file its opposition thereto. (Benson, A.)

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P. GERHARDT ZACHER (SBN: 043184)
KRISTIN N. REYNA (SBN: 211075)
MATTHEW P. NUGENT (SBN: 214844)
GORDON & REES LLP
101 W. Broadway
Suite 2000
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Cross-Defendant
MARTIN FRANCHISES INC.

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UNITED STATES DISTRICT COURT

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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES H. LEWIS and JANE W. LEWIS, )
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Plaintiffs,
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vs.
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ROBERT D. RUSSELL; BEN J. NEWITT; et )
al.,
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Defendants.
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CITY OF DAVIS,
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Cross-claimant,
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vs.
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ROBERT D. RUSSELL; BEN J. NEWITT; the)
Estate of PHILLIP NEWITT, Deceased; JUNG)
HANG SUH; SOO JUNG SUH; JUNG K.
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SEO; THE DAVIS CENTER, LLC; MELVIN )
R. STOVER, individually and as a trustee of )
the Stover Family Trust; EMILY A. STOVER, )
individually and as a trustee of the Stover
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Family Trust; STOVER FAMILY TRUST;
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RICHARD ALBERT STINCHFIELD,
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individually and as a successor trustee of the )
Robert S. Stinchfield Separate Property
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CASE NO.

2:03-CV-02646-WBS-CKD

STIPULATION OF CROSSCOMPLAINANT CITY OF DAVIS AND
CROSS-DEFENDANT MARTIN
FRANCHISES INC. TO STAY
PROCEEDINGS BETWEEN THEM
PENDING SETTLEMENT; [PROPOSED
ORDER]

-1STIPULATION OF CITY OF DAVIS AND MARTIN TO STAY PROCEEEDINGS BETWEEN THEM
PENDING SETTLEMENT; [PROPOSED] ORDER
CASE NO. 2:03-CV-02646-WBS-CKD

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Revocable Trust, and as trustee of the Barbara
Ellen Stinchfield Testamentary Trust;
ROBERT S. STINCHFIELD SEPARATE
PROPERTY REVOCABLE TRUST; THE
BARBARA ELLEN STINCHFIELD
TESTAMENTARY TRUST; WORKROOM
SUPPLY, INC., a California corporation;
SAFETY-KLEEN CORPORATION, a
California corporation; JENSEN
MANUFACTURING COMPANY; VIC
MANUFACTURING COMPANY USA, a
Minnesota corporation; and MARTIN
FRANCHISES, INC., aka/dba
MARTINIZING DRY CLEANING;

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Cross- Defendants.

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WHEREAS, on October 3, 2012, this Court issued an order granting the motion for

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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101

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summary judgment of MARTIN FRANCHISES, INC. (hereinafter, “MARTIN”) as to the claims

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of the CITY OF DAVIS (“CITY”) against it for negligence, strict product liability, negligence

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per se, and under chapter 33.00 of the Davis Municipal Code [Docket No. 428];

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WHEREAS, on October 3, 2012, this Court issued an order denying the CITY’s motion
for leave to amend its cross-claims against MARTIN [Docket No. 429];

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WHEREAS, on October 3, 2012, this Court issued an order allowing the CITY ten days

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to submit a declaration or affidavit under Federal Rule of Civil Procedure 56(d) seeking time to

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obtain affidavits or declarations or to take discovery to support its opposition to MARTIN’s

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summary judgment motion as to its CERCLA and nuisance claims against MARTIN [Docket

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No. 430];

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WHEREAS, on October 3, 2012, this Court issued an order allowing MARTIN to file an

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opposition to said F.R.C.P. 56(d) submission within ten days of the filing of the CITY’s

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submission [Docket No. 431];

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WHEREAS, on October 3, 2012, this Court postponed its ruling on MARTIN’s summary

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judgment motion on the CITY’s CERCLA and nuisance claims until the Court could consider

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the F.R.C.P. 56(d) request by the CITY [Docket No.430];

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WHEREAS, following the above-cited orders of the Court, the CITY and MARTIN
began a dialogue on the potential settlement of the CITY’s remaining claims against MARTIN;
-2STIPULATION OF CITY OF DAVIS AND MARTIN TO STAY PROCEEEDINGS BETWEEN THEM
PENDING SETTLEMENT; [PROPOSED] ORDER
CASE NO. 2:03-CV-02646-WBS-CKD

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WHEREAS, on October 10, 2012, the CITY and MARTIN reached an agreement on the

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settlement of the CITY’s remaining claims against MARTIN, which is expressly contingent on

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approval of the settlement terms by the City Council and the City’s insurance carriers;

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WHEREAS, pending the finalization of said settlement, the CITY and MARTIN hereby

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stipulate to stay the current proceedings between them, including, the CITY’s Rule 56(d)

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submission, MARTIN’s opposition thereto, and any rulings by this Court on the CITY’s Rule

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56(d) submission and MARTIN’s summary judgment motion as to the CITY’s CERCLA and

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nuisance claims;

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WHEREAS, the CITY and MARTIN hereby stipulate that if the settlement cannot be
finalized within forty-five (45) days of October 10, 2012, that is, by November 23, 2012, the stay

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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101

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of the current proceedings between the CITY and MARTIN shall terminate and the proceedings,

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including the CITY’s Rule 56(d) submission, MARTIN’s opposition thereto, and any rulings by

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the Court on the Rule 56(d) submission and MARTIN’s summary judgment motion as to the

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CITY’s CERCLA and nuisance claims, shall recommence and proceed in due course. The CITY

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and MARTIN further stipulate that, should the stay of the current proceedings between them

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terminate, the CITY shall have ten (10) days from such termination to file its Rule 56(d)

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submission and MARTIN shall have ten (10) days from the CITY’S submission to file its

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opposition thereto.

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IT IS SO STIPULATED.
Dated: October 12, 2012

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GORDON & REES LLP
By:

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Dated: October 12, 2012

/s/ Kristin N. Reyna
Kristin N. Reyna
Attorneys for Cross-Defendant
MARTIN FRANCHISES INC.

COTA COLE LLP

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By:

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/s/ Jennifer Hartman King
Jennifer Hartman King
Miranda Dalju
Attorneys for Cross-complainant
CITY OF DAVIS

-3STIPULATION OF CITY OF DAVIS AND MARTIN TO STAY PROCEEEDINGS BETWEEN THEM
PENDING SETTLEMENT; [PROPOSED] ORDER
CASE NO. 2:03-CV-02646-WBS-CKD

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IT IS SO ORDERED.
DATED: October 16, 2012

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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101

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-4STIPULATION OF CITY OF DAVIS AND MARTIN TO STAY PROCEEEDINGS BETWEEN THEM
PENDING SETTLEMENT; [PROPOSED] ORDER
CASE NO. 2:03-CV-02646-WBS-CKD