Depper, et al v. Johnson, et al

Filing 126

ORDER CONTINUING STATUS CONFERENCE. Signed by Judge Maria-Elena James on 12/4/2008. (mejlc1, COURT STAFF) (Filed on 12/4/2008)

Case 3:99-cv-03599-MEJ

Document 125

Filed 12/04/2008

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Peter W. McGaw (Bar No. 104691) John L. Kortum (Bar No 148573)

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ARCHERNORzuS Attorneys At Law 2033 Nofth Main St., Suite 800 P.O. Box 8035 Walnut Creek, CA 94596 Telephone: [phone] Facsimile: [phone]
Attomeys for Defendant

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EARLTHOMPSON
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ROBERT DEPPER, an individual, STUART DEPPER, an individual,

CASE NO. C 99-03599 MEJ

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Plaintiffs,
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

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Date: December 11, 2008 Time: 10:00 a.m.
GRACE JOHNSON, an individual; EARL THOMPSON, an individual,
Defendants.

Dept.:

The Hon. Maria-Elena James

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ORDER CONTINUING STATUS CONFERENCE

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AND RELATED COLINTER ACTION.

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rNrno*tcrron
Plaintiffs Robert Depper (deceased) and stuart Depper (the "Plaintiffs") and Defendant
Earl Thompson (deceased) or his estate ("Thompson") submit this joint statement to apprise the
Court of the status of this matter. Defendant Grace Johnson obtained a summary judgment in her

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favor and so is not a signatory to this statement. As set forth below, the parties are continuing to work together to investigate the environmental conditions on the property. However, additional time is needed to complete these investigations aĄd to obtain site closure. Accordingly, the
parties jointly request that this case be set for a fuilher status conference in December, 2009.

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JOINT CASE MANAGEMENT CONFERENCE
STMT. (-No. C-99-3599

Case 3:99-cv-03599-MEJ

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SUMMARY OF'FACTS
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Plaintiffs Stuart Depper and Robert Depper formerly operated the Glovatorium and
currently own the Glovatorium property. Robert Depper is deceased. The former owner and
operator ofthe property, Gordon Johnson, is also deceased, and his wife Grace Johnson, has obtained a summary judgment ruing in her favor. The only two remaining parties are Plaintiff
and Mr. Thompson, who owned a building on an adj acent parcel. Mr. Thompson died in Juiy

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2004. A petition for the probate of Mr. Thompson's estate was granted on April 25,2006Although Mr. Thompson never operated a dry cleaning establishment, there were dry cleaning activities in his building prior to his purchase. Plaintiffs contend that contamination emanating from underground storage tanks in front of Mr. Thompson's building, and possibly from under
the building itself, has commingled with contamination emanating from the "Glovatorium" site.

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Mr. Thompson has denied he ės responsible for the underground storage tanks, which are not
located on his property, and also has denied there is any evidence of contaminatėon emanating

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from under hės building. He contended that his properly has been damaged by contamination
emanating from the Depper property. Over the past eight or so years, Plaintiffs have conducted various site investigations, under the supervision ofthe local regulatory agencies, which primarily focused on the Glovatorium

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property. For most of this time, Mr. Thompson did not have sufficient financial resources to
participate in any sėte investigations, either with respect to his own property or with respect to the
allegedly commingled down gradient plume. However, several years ago, Mr. Thompson obtained a defense from one ofhis insurance carriers and, as a result, has participated in the

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further investigations that are needed to resolve this matter. Until the beginning of this year, the
parties believe that these investigations were near completion and that they would shortly be in a

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position to request that the local regulatory agency close the site. Ifthe agencies agreed to close
the site, the parties would be in a positėon to resolve this matter.

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Unforhrnately, thės past Spring, levels of contamination, which had been decreasing,
started to increase. Of particular concem was the presence of free product because the agency
JOINT CASE MANAGEMENT CONFERENC STMT. (No. C-99-3599

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will not close the site based on risk

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iong as free product is present. As a result the parties

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and performed additional investigation and testing to detemine the cause of the ėncreased levels and to see if there are feasible means to address the problem. This ėnvestėgation was successful

indicates that multi-phase extraction ('MPE ') may be a feasible means to address the freeproduct problem at the site. The parties plan to seek insurance carrier approval for continuing

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for operation of the MPE system. If approval is obtained, the parties hope to operate the system
some period of time.

srArus

Slo"tro*

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2002, after a series of expert depositions, the Plaintiffs and Defendant Thompson

resulted in engaged in mediation wėth Lester Levy, Esq. of JAMS. That mediation session

parties agreeing to substantial progress towards settlement. The mediation concluded with the
damages retain ajoint consultant to conduct further investigation and to attempt to bettd quantify

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this further that arise from the environmental contamination. The parties agfeed to conduct

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to a investigation within the context of the on-going mediation. In addition, the parties agreed
agree settlement structufe if, after completion of that additional work, the regulatory agencies agreed to with the scope of remediation currently contemplated by the parties. The parties have

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work together to seek such approval from the regulatory agencies'
The The work contemplated by the mediated agreement has been proceeding'
a significant environmental consultant SOMA has characterized the contamination and removed

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concluded that amount of free product from the site. unfortunately, SoMA's most recent report

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the as ftee product levels, which had previously declined significantly, were increasėng, "/vere these issues musl levels of some groundwater contamination. As noted in the last status report,
addressed before the parties

caĄ seek site closure. As noted above, an assessment of this problem

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to believe indicates that MPE may be effective in addressing the problem. The parties continue

for a low risk that if the immediate problem can be addressed, the site still should be a candidate
closure.

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In addition,
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soMA

received approval frorr the city of oakland of the Tank closure Plan
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and the tanks were recently closed in place. Sampling was also conducted in the vicinity of the tanks.

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It will, however, take additional time to complete implementation of the MPE system and
to obtain closure. The parties have agreed to continue the mediation while the additional site investigation is proceeding and continue to work cooperatėvely towards a final resolution ofthis
matter.

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The parties believe that they are making substantial progress towards resolution ofthis

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matter. The parties request that this effort be facilitated by further continuance of any lėtigation
dates. Therefore, the parties request that the Court set a further status conference for December, 2009.

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Dated: Decemb er 4,2008
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Loeb & Loeb LLP

///"ln a/- /,/K
fftomeys for Plaintiffs i At
Stuart Depper Robert Depper and

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Dated: Decemb er 4,2008
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Good cause appearing, the December 11, 2008 Status Conference is hereby CONTINUED to December 10, 2009 at 10:00 a.m. in Courtroom B. The parties shall file a joint status statement by December 3, 2009. ISTR
UNIT ED

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Dated: December 4, 2008

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JOINT CASE MANAGEMENT STMT. (No. c-99-3s99 MEJ)

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