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)

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Case 3:99-cv-03599-MEJ Document 125 Filed 12/04/2008 Page 1 of 4 1 Peter W. McGaw (Bar No. 104691) John L. Kortum (Bar No 148573) 2 J 4 5 ARCHERNORzuS Attorneys At Law 2033 Nofth Main St., Suite 800 P.O. Box 8035 Walnut Creek, CA 94596 Telephone: (925) 930-6600 Facsimile: (925) 930-6620 Attomeys for Defendant 6 7 8 EARLTHOMPSON UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 9 10 11 ROBERT DEPPER, an individual, STUART DEPPER, an individual, CASE NO. C 99-03599 MEJ 72 Plaintiffs, 13 JOINT CASE MANAGEMENT CONFERENCE STATEMENT t4 15 Date: December 11, 2008 Time: 10:00 a.m. GRACE JOHNSON, an individual; EARL THOMPSON, an individual, Defendants. Dept.: The Hon. Maria-Elena James 76 ORDER CONTINUING STATUS CONFERENCE t7 18 AND RELATED COLINTER ACTION. l9 20 27 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 22 23 24 25 26 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. 27 28 JOINT CASE MANAGEMENT CONFERENCE STMT. (-No. C-99-3599 Case 3:99-cv-03599-MEJ Document 125 Filed 12/04/2008 Page 2 of 4 1 SUMMARY OF'FACTS 2 il. 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 J 4 5 6 7 8 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. 9 t0 11 12 13 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 l4 15 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 16 11 18 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 19 20 2L 22 23 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 )L 25 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. 26 27 28 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 Case 3:99-cv-03599-MEJ Document 125 Filed 12/04/2008 Page 3 of 4 1 will not close the site based on risk as iong as free product is present. As a result the parties 2 J 4 5 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 6 7 8 for operation of the MPE system. If approval is obtained, the parties hope to operate the system some period of time. srArus Slo"tro* 9 10 11 h 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 12 13 this further that arise from the environmental contamination. The parties agfeed to conduct 14 15 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 t6 17 18 19 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 20 21 concluded that amount of free product from the site. unfortunately, SoMA's most recent report 22 23 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 24 25 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. 26 27 In addition, 28 soMA received approval frorr the city of oakland of the Tank closure Plan JOINT CASE MANAGEMENT CONFERENCE STMT. (No. C-99-3599 MEÐ Case 3:99-cv-03599-MEJ Document 125 Filed 12/04/2008 Page 4 of 4 1 and the tanks were recently closed in place. Sampling was also conducted in the vicinity of the tanks. 2 J 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. 4 5 6 '7 conJJusroN 8 The parties believe that they are making substantial progress towards resolution ofthis 9 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. l0 t1 t2 13 Dated: Decemb er 4,2008 74 15 Loeb & Loeb LLP ///"ln a/- /,/K fftomeys for Plaintiffs i At Stuart Depper Robert Depper and L6 r'7 18 79 Dated: Decemb er 4,2008 20 27 22 23 24 25 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 26 27 28 Dated: December 4, 2008 S ES D AT T ICT C r009s001/731679-1 ER N F D IS T IC T O R A C LI FO a Judge M a ria-Elen James R NIA IT IS S O ORD ERED RT U O NO JOINT CASE MANAGEMENT STMT. (No. c-99-3s99 MEJ) RT H

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