SPPI-Somersville, Inc. et al v. TRC Companies, Inc. et al

Filing 707

ORDER re Continuing Nuisance & Trespass Claims (tf, COURT STAFF) (Filed on 9/24/2009)

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STIPULATION RE CONTINUING NUISANCE & TRESPASS CLAIMS AGNST GENERATOR DEFENDANTS & PREWETTS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SPPI-SOMERSVILLE, INC., et al., Plaint iffs, v. TRC COMPANIES, INC., et al, Defendants. Case No. C 04-2648 SI Conso lidated with C 07-5824-SI STIPULATION AND [PROPOSED] ORDER DEEMING COURT'S RULING ON CONTINUING NUISANCE AND TRESPASS CLAIMS AGAINST THE "GENERATOR DEFENDANTS" AND THE PREWETTS IN CASE NO. 04-02225 AS THE COURT'S RULING ON PLAINTIFFS' CONTINUING NUISANCE AND TRESPASS CLAIMS AGAINST THE "GENERATOR DEFENDANTS" AND THE PREWETTS IN THIS CASE

SPPI-SOMERSVILLE, INC., SOMERSVILLE-GENTRY, INC., Plaintiffs,

CHEVRON U.S.A., INC., as successor to STANDARD OIL OF CALIFORNIA, INC., Defendants. AND RELATED 3RD PARTY CROSSCLAIMS AND COUNTER-CLAIMS.

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Pursuant to Local Rule 7-12, Plaintiffs SPPI-SOMERSVILLE, INC. ("SPPI") and SOMERSVILLE-GENTRY, INC. ("SGI") (collectively, "Plaintiffs"); Defendants HAROLD WILLIAM PREWETT and MARY GRACE PREWETT BERTSCH (collectively, the "Prewetts"); and Defendants LOCKHEED MARTIN CORPORATION, SHELL OIL COMPANY, BEAZER EAST, INC., USX CORPORATION, UNION PACIFIC RAILROAD COMPANY, EXXON MOBIL CORPORATION, CATERPILLAR INC., AVENTIS CROPSCIENCE USA INC., BOEING SATELLITE SYSTEMS, INC., CHEMICAL & PIGMENT CO., COLGATE-PALMOLIVE COMPANY, COOPER INDUSTRIES, INC., CROMPTON CORPORATION, GAYLORD CONTAINER CORPORATION, GREAT WESTERN CHEMICAL COMPANY, HEWLETT PACKARD COMPANY, NESTLE USA, INC., OCCIDENTAL CHEMICAL CORPORATION, OCEAN VIEW CAPITAL, INC., PACCAR INC., PRO TEC CHEMICAL CO., INC., QUEBECOR PRINTING SAN JOSE, INC., SHULLER INTERNATIONAL, INC., HENRY SIMONSEN, UNION OIL COMPANY OF CALIFORNIA, WITCO CORPORATION, ASHLAND, INC., CROWN BEVERAGE PACKAGING, INC., DOW CHEMICAL COMPANY, E.I. DUPONT DE NEMOURS AND COMPANY, FAIRCHILD SEMICONDUCTOR CORPORATION, FAIRCHILD SEMICONDUCTOR CORPORATION OF CALIFORNIA, RAYCHEM CORPORATION (collect ively, the "Generator Defendants"), by and through their respective undersigned counsel, hereby st ipulate and agree as follows: RECITALS 1. Plaint iffs have pled claims in this action against the Prewetts and against the

Generator Defendants for continuing nuisance and for continuing trespass. 2. In the related case West Coast Homebuilders, Inc. v. Aventis Cropscience et al.

(Case No. 04-02225) also before this Court, the Court granted summary adjudication in favor of the Prewetts and the Generator Defendants on plaintiff West Coast Home Builders' fifth and sixth claims for continuing nuisance and continuing trespass. (Dkt. 247 at 12:5-14:23.) 3. In each action, Plaintiffs assert identical factual and legal grounds for the liability

of the Prewetts and the Generator Defendants pursuant to Plaintiffs' continuing nuisance and 1
STIPULATION RE CONTINUING NUISANCE & TRESPASS CLAIMS AGNST GENERATOR DEFENDANTS & PREWETTS

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continuing trespass claims. 4. In this case, the Court stated in its August 21, 2009, Order Re: Summary Judgment

Motions, as follows: [I]n light of this order and the companion order in West Coast, where the Generator defendants did file an affirmative motion, the Court is of the view that plaintiffs' cont inuing nuisance and trespass claims could not proceed to trial against the Generator defendants. The same holds for plaintiffs' continuing nuisance and trespass claims against the Prewetts, for all of the reasons stated in the West Coast summary judgment order. (Order (Dkt. 517) at p. 30 n. 19.) 5. Plaint iffs believe that the Generator Defendants and the Prewetts do have liability

pursuant to Plaintiffs' continuing nuisance and continuing trespass claims, and disagree with the Court's ruling, but are willing to enter into this stipulated order in light of the Court's statements. The Generator Defendants and the Prewetts dispute that they have any liability. STIPULATION On the condition that it is entered as an Order of the Court, the Parties hereby stipulate that the Court's ruling on the Prewett and Generator Defendants' motion for summary adjudication on plaintiff West Coast Home Builders' causes of action for continuing nuisance and trespass in the related case West Coast Homebuilders, Inc. v. Aventis Cropscience et al. (Case No. 04-02225) shall be treated as a dispositive summary adjudicat ion ruling by the Court of Plaintiffs' causes of action for continuing nuisance and continuing trespass against the Prewetts and the Generator Defendants in this case, so that Plaintiffs in this case would have the same right of appeal on this ruling as plaintiff West Coast Home Builders in Case No. 04-02225. IT IS SO STIPULATED.

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STIPULATION RE CONTINUING NUISANCE & TRESPASS CLAIMS AGNST GENERATOR DEFENDANTS & PREWETTS

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1 DATED: September __, 2009 2 3 4 5 6 7 By: 8 9 10 11 12 13 ruling on the Prewett and Generator Defendants' motion for summary adjudication on plaintiff's 14 15 16 17 nuisance and continuing trespass against the Prewetts and the Generator Defendants in this case, 18 so that Plaintiffs in this case would have the same right of appeal on this ruling as plaintiff West 19 Coast Home Builders in Case No. 04-02225. 20 21 DATED: ________________________ 22 23 24 25 26 27 28 3
STIPULATION RE CONTINUING NUISANCE & TRESPASS CLAIMS AGNST GENERATOR DEFENDANTS & PREWETTS

DOWNEY BRAND LLP By: /s/ Clifton McFarland CLIFTON J. MCFARLAND Attorneys for Defendants PREWETTS and THE GENERATOR DEFENDANTS

DATED: September __, 2009

FARELLA BRAUN + MARTEL LLP /s/ James H. Colopy JAMES H. COLOPY Attorneys for Plaintiffs SPPI-SOMERSVILLE, INC., and SOMERSVILLEGENTRY, INC.

ORDER Pursuant to the foregoing Stipulation of the parties, it is hereby ordered that the Court's

causes of action for continuing nuisance and continuing trespass in the related case West Coast Homebuilders, Inc. v. Aventis Cropscience et al. (Case No. 04-02225) shall be treated as a dispositive summary adjudication ruling by the Court of Plaintiffs' causes of action for continuing

By:_____________________________ _ THE HONORABLE SUSAN ILLSTON UNITED STATES DISTRICT JUDGE