Phelan v. Mecom Equipment, LLC et al

Filing 33

STIPULATION and ORDER signed by Judge Frank C. Damrell, Jr on 9/22/10: AGREED STIPULATION re release of certain real property is APPROVED.(Kaminski, H)

Phelan v. Mecom Equipment, LLC et al

Doc. 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PORTER|SCOTT A Professional Corporation JENNIFER E. DUGGAN, ESQ. State Bar No. 183833 MARY EDES, ESQ. State Bar No. 264584 350 University Avenue, Suite 200 Sacramento, CA 95825 Telephone: [phone] Fax: [phone] Attorneys for Michael Phelan, Plaintiff EDMUND G. BROWN JR., State Bar No. 37100 Attorney General of California MARGARITA PADILLA, State Bar No. 99966 Supervising Deputy Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for State of California Department of Toxic Substances Control, Defendant IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL PHELAN,

No. 2:10-cv-01651-FCD-KJN

Plaintiff, AGREED STIPULATION BETWEEN PLAINTIFF MICHAEL PHELAN AND v. DEFENDANT STATE OF CALIFORNIA, DEPARTMENT OF TOXIC SUBSTANCES CONTROL RE RELEASE MECOM EQUIPMENT, LLC, a California OF CERTAIN REAL PROPERTY FROM Limited Liability Company, PAWNEE JUDGMENT LIEN and DISMISSAL LEASING CORPORATION, a California WITH PREJUDICE OF DTSC and Corporation, STATE OF CALIFORNIA, ORDER THEREON California Department of Toxic Substances Control, STATE OF CALIFORNIA, Date: No hearing required Employment Development Department, the Time: UNITED STATES, and all other persons Courtroom: unknown, claiming any right, title, estate, Judge: The Honorable Frank C. Damrell lien, or interest in the real property Trial Date: Not Set described in the Complaint, adverse to Action Filed: June 28, 2010 Plaintiff's ownership or any cloud on Plaintiff's title thereto, Defendants. {00824671.DOC} 1

Stipulation between Plaintiff and Defendant Re: Release of Certain Real Property and Dismissal (2:10-cv-01651)
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff, Michael Phelan, and Defendant, State of California, Department of Toxic Substances Control, enter into this Stipulation and request entry of this Order on the terms set forth herein: RECITALS Whereas, on June 28, 2010, Plaintiff Michael Phelan (Phelan) initiated this action in the United States District Court for the Eastern District of California entitled Michael Phelan v. Mecom Equipment, LLC, et al, No. 2:10-cv-01651-FCD-KJN, against several defendants, including the State of California, Department of Toxic Substances Control (DTSC) and the United States of America, seeking to quiet title to certain real property specified in the Verified Complaint for Quiet Title and Demand for Jury Trial (the Quiet Title Complaint). Whereas Phelan alleges that he purchased certain real property located at 1143 Fremont Street, Colusa, Colusa County, California, Assessor's Parcel Number 001-351-028, and more particularly described in the Quiet Title Complaint as: Lot No. 3 in Block 126 of the City of Colusa, as said lot and block are shown on the official map or plat thereof, filed on March 5, 1855 in the office of the County Clerk of said County of Colusa, State of California. Said real property is referred to hereinafter as the "Fremont Street Property." Whereas Phelan further alleges that he purchased the Fremont Street Property as an investment property from the tax collector of Colusa County, California, in a non-judicial tax delinquency sale and that the deed from the Colusa County tax collector to Phelan was executed and recorded on July 2, 2009, in the official records of the County of Colusa, Instrument Number 2009-2837. Whereas Phelan has represented, under penalty of perjury to DTSC, that he does not personally know Kenneth R. Whitmire or Iva L. Whitmire and that he has he never interacted with them or anyone acting on their behalf, on a personal or business level. Whereas DTSC, an agency of the State of California, alleges that it obtained a judgment in the amount of $151,900, together with interest, against Kenneth R. Whitmire, Iva L. Whitmire and National Environmental Services Corporation (the "Judgment Debtors"), on December 2, 1994, in Sacramento County Superior Court in a matter entitled People of the State of California, {00824671.DOC} 2
Stipulation between Plaintiff and Defendant Re: Release of Certain Real Property and Dismissal (2:10-cv-01651)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ex rel. William F. Soo Hoo, Director, State Department of Toxic Substances Control v. National Environmental Services Corporation, Kenneth R. Whitmire, and Iva L. Whitmire, No. 537257 ("the Whitmire Judgment"). Whereas DTSC further alleges that based on the Whitmire Judgment, that DTSC recorded, through its counsel, an Abstract of Judgment on May 20, 1997, with the Colusa County Recorder's Office, Instrument Number 97-002177, and subsequently, through its counsel of record, renewed and recorded its abstract of judgment on November 4, 2004, Instrument Number 2004-0006251. Whereas DTSC alleges that Kenneth R. Whitmire and Iva L. Whitmire were owners of the Fremont Street Property to which the judgment lien, created by the above referenced recorded abstracts of judgment, attached and that the Judgment Debtors have not satisfied the Whitmire Judgment. Whereas DTSC further alleges that it did not receive notice of the Colusa County Assessor's non-judicial tax-delinquency sale of the Fremont Street Property. Whereas the United States has alleged that it has valid liens against the Fremont Street Property. Whereas Phelan and DTSC wish to resolve this matter solely as to them in accordance with the terms set forth herein. IT IS AGREED AND ORDERED AS FOLLOWS: 1. Within three (3) court days of the entry of this Stipulation and Order by this Court, DTSC will provide by overnight mail to counsel of record for Phelan an executed and notarized "Release From Plaintiff's Judgment Lien Real Property at 1143 Fremont Street, Colusa, Colusa County, CA" ("Release of Fremont Street Property from Judgment Lien"), for recording with the Colusa County clerk-recorder. 2. Within three (3) court days of the receipt of the executed and acknowledged Release of Fremont Street Property from Judgment Lien, Phelan, through his counsel of record, will cause to be recorded with the Colusa County Recorder's office the executed and acknowledged Release of Fremont Street Property from Judgment Lien. {00824671.DOC} 3
Stipulation between Plaintiff and Defendant Re: Release of Certain Real Property and Dismissal (2:10-cv-01651)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3.

Within three (3) court days of the recordation of the Release of Fremont Street Property from Judgment Lien by the Colusa County Recorder's Office, Phelan, through his counsel, shall file in this Court a dismissal of DTSC, with prejudice, from the Quiet Title Action in the substance and form attached hereto as Exhibit B.

4. 5.

This Stipulation cannot be amended without the written consent of Phelan and DTSC. This Stipulation may be signed by Phelan and DTSC in counterparts each of which shall constitute an original and all of which shall constitute one and the same agreement.

6.

This Stipulation and Order thereon are without prejudice to any matters at issue in the Quiet Title Complaint other than those between Phelan and DTSC.

IT IS SO STIPULATED: PORTER|SCOTT

Dated: __9/20/2010_______

By:

_/s/____________________________ JENNIFER E. DUGGAN MARY EDES Attorneys for Michael Phelan, Plaintiff EDMUND G. BROWN JR. Attorney General of California

Dated: __9/21/2010______

By:

_/s/_____________________________ MARGARITA PADILLA Supervising Deputy Attorney General Attorneys for State of California, California Department of Toxic Substances Control, Defendant

{00824671.DOC}

4

Stipulation between Plaintiff and Defendant Re: Release of Certain Real Property and Dismissal (2:10-cv-01651)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS SO ORDERED:

Dated: September 22, 2010

_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

OK2010502810/90153278.doc

{00824671.DOC}

5

Stipulation between Plaintiff and Defendant Re: Release of Certain Real Property and Dismissal (2:10-cv-01651)