Stonebrae LP v. Toll Bros Inc et al

Filing 166

STIPULATION AND ORDER re Stonebrae's partial Summary Judgment Motion (149) 165 Stipulation, filed by Stonebrae LP. Signed by Judge Edward M. Chen on 4/20/10. (bpf, COURT STAFF) (Filed on 4/20/2010)

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1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations 2 PHILIP F. ATKINS-PATTENSON, Cal. Bar No. 94901 3 ARTHUR J. FRIEDMAN, Cal. Bar No. 160867 CRAIG A. PINEDO, Cal. Bar No. 191337 4 Four Embarcadero Center, 17th Floor San Francisco, California 94111-4109 5 Telephone: 415-434-9100 Facsimile: 415-434-3947 6 E-Mail: 7 8 COOPER & KIRKHAM, P.C. JOSEF D. COOPER, Cal. Bar No. 53015 9 TRACY R. KIRKHAM, Cal. Bar No. 69913 JOHN D. BOGDANOV, Cal. Bar No. 215830 10 357 Tehama Street, 2nd Floor San Francisco, CA 94103-4169 11 Telephone: 415-788-3030 Facsimile: 415-882-7040 12 E-Mail: 13 14 Attorneys for Plaintiff and Counter-Defendant STONEBRAE L.P. 15 16 17 18 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION) Case No. C 08-00221-EMC STIPULATION AND [PROPOSED] ORDER RE STONEBRAE L.P.'S PARTIAL SUMMARY JUDGMENT MOTION (DKT. # # 149 -151) Trial Date: February 28, 2010 19 STONEBRAE L.P., a Delaware limited partnership, 20 Plaintiff, 21 v. 22 TOLL BROS., INC.; a Pennsylvania 23 corporation; TOLL BROTHERS, INC., a Pennsylvania corporation; DOES 1 through 15, 24 inclusive, 25 26 27 28 Case No. C 08-00221-EMC W02-WEST:FAP\402592600.1 A Defendants. STIPULATION AND ORDER RE MOTION FOR PARTIAL SUMMARY JUDGMENT -1- 1 Plaintiff and Counter-Defendant Stonebrae L.P. ("Stonebrae) and Defendant 2 and Counter-Claimant Toll Bros., Inc. ("Toll"), by and through their respective attorneys 3 of record, hereby stipulate and agree as follows: 4 1. On or about February 16, 2010, Stonebrae filed a motion for partial 5 summary judgment. (Dkt. ## 149-151.) That motion addresses four issues: (i) 6 construction of a permanent clubhouse; (ii) reduction of 3.25 acres of public park spaces; 7 (iii) construction of "high quality amenities"; and (iv) issuance by the City of Hayward to 8 Toll of 10 building permits. (Dkt. # 149, at p. 1.) 9 10 2. 3. The Court continued the hearing on the motion to May 12, 2010. On April 8, 2010, the Court issued its ruling on Stonebrae's motion to 11 dismiss Toll's Counterclaim for breach of the implied covenant of good faith and fair 12 dealing. (Dkt. # 164.) 13 4. On April 15, 2010, Toll's counsel wrote Stonebrae's counsel advising 14 that Toll was no longer pursuing a claim that Stonebrae breached the Village B Purchase 15 Agreement based on the reduction of 3.25 acres of public parks or the City of Hayward's 16 failure to issue 10 building permits by the scheduled closing date. A true and correct copy 17 of Toll's April 15, 2010 letter is attached hereto as Exhibit A. 18 5. Toll's withdrawal of its claim that the reduction in the public park 19 space or the City's failure to issue 10 building permits was an event of default entitling 20 Toll to terminate the Village B Purchase Agreement moots those issues in Stonebrae's 21 pending motion for partial summary judgment. (Dkt. # 149.) 22 6. With respect to the remaining two issues (i.e., construction of a 23 permanent clubhouse or other "high quality amenities"), in light of the Court's ruling on 24 Stonebrae's motion to dismiss (Dkt. # 164), Stonebrae agrees to withdraw its motion for 25 partial summary judgment as to those issues, without prejudice to its right to move for 26 partial summary judgment on these issues at a future date. 27 7. This Stipulation resolves Stonebrae's pending motion for partial -2- 28 summary judgment. (Dkt. # 149.) Case No. C 08-00221-EMC W02-WEST:FAP\402592600.1 A STIPULATION AND ORDER RE MOTION FOR PARTIAL SUMMARY JUDGMENT 1 Dated: April 19, 2010 2 3 4 5 6 7 8 9 Dated: April 19, 2010 10 11 12 13 14 15 16 17 18 19 20 ORDER Having considered the foregoing Stipulation, and good cause appearing in support thereof, IT IS HEREBY ORDERED that the parties' Stipulation is approved. IT IS FURTHER ORDERED that Stonebrae's pending motion for partial By /s/ Christopher J. McNamara CHRISTOPHER J. MCNAMARA Attorneys for Defendant and Counter-Claimant TOLL BROS., INC. KASOWITZ BENSON TORRES & FRIEDMAN LLP By /s/ Philip F. Atkins-Pattenson PHILIP F. ATKINS-PATTENSON Attorneys for Plaintiff and Counter-Defendant STONEBRAE L.P. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP COOPER & KIRKHAM P.C. Case No. C 08-00221-EMC W02-WEST:FAP\402592600.1 A E-3RN STIPULATION AND ORDERC MOTION FOR PARTIAL F RE SUMMARY JUDGMENT D IS T IC T O R A LI 28 FO 27 dwar Judge E d M. Ch en R NIA 21 summary judgment is decided on the basis set forth in the Stipulation, and the hearing date 22 of May 12, 2010 is vacated. S DISTRICT TE 23 C TA 4/20/10 24 Dated: _____________________ _____________________________ The HonorableRDERED Chen Edward M. 25 UNITED O O IS SSTATES MAGISTRATE JUDGE IT 26 RT U O UNIT ED NO S RT H

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