Palmtree Acquisition Corporation v. Neely et al

Filing 160

ORDER RESETTING CMC TO 6/27/13 at 9:00 a.m. Case Management Conference set for 6/27/2013 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 12/12/12. (bpf, COURT STAFF) (Filed on 12/12/2012)

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Paul Kozachenko, Esq., SBN: 104601
Selena P. Ontiveros, Esq., SBN: 211790
GONSALVES & KOZACHENKO
1133 Auburn Street
Fremont, CA 94538
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
and Third Party Plaintiff
Stark Investment Company

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PALMTREE ACQUISITION
CORPORATION, a Delaware corporation,

Case No. 08-CV-3168-EMC

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JOINT CASE MANAGEMENT
CONFERENCE STATEMENT
ORDER RESETTING CMC
Hon. Edward M. Chen

Plaintiff,
vs.

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Date: December 14, 2012
Time: 9:00 a.m. th
Courtroom: 5, 17 floor

MICHAEL R. NEELY, an individual, PERRY
J. NEELY, an individual; GARY NEELY, an
individual; MICHAEL R. NEELY, PERRY J.
NEELY and GARY NEELY dba MIKE‘S ONE
HOUR CLEANERS; CHARLES FREDERICK
HARTZ dba PAUL’S SPARKLE CLEANERS;
CHARLES F. HARTZ, an individual;
MULTIMATIC CORPORATION, a New
Jersey corporation; WESTERN STATES
DESIGN, a California corporation;
MCCORDUCK PROPERTIES LIVERMORE,
LLC, a Delaware limited liability company
individually and as the successor to JOHN
MCCORDUCK, KATHLEEN MCCORDUCK,
PAMELA MCCORDUCK, SANDRA
MCCORDUCK MARONA, and IMA
FINANCIAL CORPORATION, a California
corporation; STARK INVESTMENT
COMPANY, a California general partnership;
GRUBB & ELLIS REALTY INCOME
TRUST, LIQUIDATING TRUST, a California
trust; and DOES 1-20, inclusive,
Defendants.

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

08-CV-3168-EMC

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THE KIRRBERG CORPORATION, formerly
known as MULTIMATIC CORPORATION, a
New Jersey corporation; and STARK
INVESTMENT COMPANY, L.P., a California
limited partnership,

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Third Party Plaintiffs,
v.
DOROTHY ANDERSON, Trustee of The
Anderson Marital Trust, dated February 28,
1979, as amended and restated August 31, 1994;
and DOROTHY ANDERSON, Trustee of The
Anderson Tax Deferral Trust, dated February
28, 1979, as amended and restated August 31,
1994,

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Third Party Defendants.

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The parties who have appeared in the above-captioned environmental action have met and

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conferred and jointly submit the following Joint Case Management Conference Statement.
1.

Date case was filed: This case was filed on July 1, 2008. The Second Amended

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Complaint was filed on July 14, 2011 and the Fourth Amended Third Party Complaint was filed on

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August 24, 2011.

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2.

List or description of all parties: The parties to this case are as follows:
a. Plaintiff Palmtree Acquisition Corporation, successor to a former owner of the

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Livermore Arcade Shopping Center (“LASC”), one of two shopping centers comprising the subject

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property;

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b. Defendant and Third Party Plaintiff Stark Investment Company, former owner

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of the LASC and Miller’s Outpost Shopping Center (“MOSC”), the second shopping center

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comprising the subject property;

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c. Defendant and Third Party Plaintiff The Kirrberg Corporation fka Multimatic
Corporation, manufacturer of the dry cleaning machine at the LASC;
d. Defendants Michael R. Neely, Perry J. Neely and Gary Neely, individually and
dba Mike’s One Hour Cleaners, the dry cleaning operator at the LASC;
e. Defendant Charles Hartz, individually and dba Paul’s Sparkle Cleaners, the dry
cleaning operator at the MOSC;

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

08-CV-3168-EMC

f. Defendant Western States Design, distributor of the dry cleaning machine at the

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LASC;

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g. Defendant McCorduck Properties Livermore, LLC, current owner of the MOSC;

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h. Defendants John McCorduck, Kathleen McCorduck, Pamela McCorduck and

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Sandra McCorduck Marona, former owners of the MOSC;

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i. Defendant IMA Financial Corporation, former owner of the MOSC; and

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j. Third Party Defendant Dorothy Anderson, Trustee of The Anderson Marital

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Trust, dated February 28, 1979, as amended and restated August 31, 1994 and The Anderson Tax

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Deferral Trust, dated February 28, 1979, as amended and restated August 31, 1994, current owners

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of the LASC.
3.

Summary of all claims, counter-claims, cross-claims, third party claims:
a. Plaintiff claims (1) contribution under CERCLA Sections 107(a) and (e)(2), 42

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U.S.C. §§ 9607(a) and (e)(2), against all Defendants; (2) Declaratory Relief under CERCLA

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against all Defendants; (3) Continuing Public Nuisance against all Defendants; (4) Negligence

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against Defendants Neelys, Multimatic and Western States Design; (5) Equitable Indemnity against

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all Defendants; and (6) Declaratory Relief under state law against all Defendants.
b. Third Party Plaintiffs claim (1) costs under CERCLA Sections 107(a) and (e)(2),

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42 U.S.C. §§ 9607(a) and (e)(2); (2) Declaratory Relief under CERCLA; (3) Equitable Indemnity;

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and (4) Declaratory Relief under state law against all Third Party Defendants.

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4.

Brief description of the event underlying the action: This action is a “re-opener” of a

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prior action that was conditionally settled. The prior action was filed on February 3, 1993 in the

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United States District Court for the Northern District of California and entitled Grubb & Ellis

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Realty Income Trust, Liquidating Trust v. Catellus Development Corp., et al., and related cross-

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actions, Case No. C93-0383 SBA (“Prior Action”). The Prior Action concerned the alleged release

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of dry cleaning solvent perchloroethylene (“PCE”) from the dry cleaning establishments at the

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LASC and MOSC in Livermore, California. The California Regional Water Quality Control Board

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(“RWQCB”) had issued an Order to the potentially responsible parties consisting of dry cleaning

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operators and property owners to remediate the soil and groundwater impacted by PCE

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

08-CV-3168-EMC

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contamination from the centers. Following settlement of the Prior Action, certain parties

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requested, and the RWQCB granted, the establishment of a Containment Zone with a Contingency

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Plan and the RWQCB issued a new order in 1996 to that effect. However, on March 17, 2008 and

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March 21, 2008, the RWQCB issued Directives requiring further investigation and monitoring of

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the PCE contamination, which also potentially impacted the deeper aquifer, thereby allegedly

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triggering the “re-opener” provision in the settlement agreement. Plaintiff Palmtree Acquisition

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Corporation thereafter filed this action on July 1, 2008, seeking contribution under CERCLA and

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damages pursuant to the “re-opener” provision, among other claims.

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5.

Description of relief sought and damages claimed with an explanation as to how

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damages are computed: The parties seek both declaratory and monetary relief through the Second

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Amended Complaint, the Fourth Amended Third Party Complaint and various cross-claims and

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counter-claims which were deemed filed pursuant to Stipulations and Orders filed on August 3,

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2011, October 27, 2011 and November 14, 2011. The parties seek reimbursement and contribution

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of the amounts spent thus far on investigative costs (over $1,000,000) as well as an allocation of

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future investigative costs and remedial measures (to be determined) under CERCLA. The parties

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also seek monetary damages for nuisance and negligence.

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6.

Status of discovery (including any limits or cutoff dates): Since September 2008,

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discovery has been stayed, including initial disclosures, so that the parties could engage in

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mediation. These parties have been mediating this matter with Timothy Gallagher, Esq., along

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with other potentially responsible parties, and are continuing to do so, while simultaneously

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working cooperatively as a group to respond to the RWQCB’s directives and requirements.

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Indeed, Plaintiff and Defendants, with the exception of Grubb & Ellis Realty Income Trust,

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Liquidating Trust, have thus far spent over $1,000,000 since March 2008 in their response efforts,

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including jointly hiring a project manager and technical consultant; directing investigative

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measures and submitting a final technical investigative report; submitting a work plan, directing

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work thereunder and submitting a remedial investigation report with technical findings and

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proposed remedial alternatives; submitted a remedial action plan; and coordinating among the

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various regulatory agencies. The RWQCB is currently reviewing the remedial action plan and

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

08-CV-3168-EMC

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negotiations are under way between the responding parties and a contractor for the implementation

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of the remedial action plan. The parties have nearly finalized a settlement among them, which is

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contingent upon a settlement in another state court case, and are hopeful that a settlement can be

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finalized in both actions by the end of 2012 or at the latest, first quarter of 2013. The parties would

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like to continue working cooperatively towards resolution of this matter and thus propose that the

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discovery stay be continued.
7.

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Procedural history of the case including previous motions decided and/or submitted,

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ADR proceedings or settlement conferences scheduled or concluded, appellate proceedings

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pending or concluded, and any previous referral to a magistrate judge: As described above, the

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parties have been mediating among themselves before Timothy Gallagher, Esq. This case was

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initially referred to Magistrate Judge Chen but then transferred to Judge Patel on April 2, 2010 and

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then reassigned to Judge Chen on June 6, 2011. Motions previously decided in this case consist

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of:
a.

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Application for good faith settlement determination by Plaintiff Palmtree

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Acquisition Corporation and Defendant Northrop Grumman Systems Corporation, granted October

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4, 2010.
b.

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Motion to dismiss the First Amended Third Party Complaint by Third Party

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Defendant Melinda Ellis Evers, Successor Trustee of the Harold A. Ellis, Jr. Revocable Inter Vivos

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Trust, granted without prejudice on October 4, 2010.
c.

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Motion to dismiss the Second Amended Third Party by Third Party

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Defendant Melinda Ellis Evers, Successor Trustee of the Harold A. Ellis, Jr. Revocable Inter Vivos

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Trust, granted with prejudice on February 11, 2011.
d.

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Motion to dismiss one cause of action from the Third Amended Third Party

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Complaint, or in the alternative, for a more definite statement by Third Party Defendant Dorothy

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Anderson, granted without prejudice on August 4, 2011.
e.

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Motion to dismiss the Fourth Amended Third Party Complaint by Third

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Party Defendant Dorothy Anderson, denied on October 24, 2011.

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///

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

08-CV-3168-EMC

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Other deadlines in place (before reassignment), including those for dispositive

motions, pretrial conferences, and trials: None.

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Any requested modification of these dates and reason for the request: None.

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10.

Whether the parties will consent to a magistrate judge for trial: The parties to this

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Joint Case Management Conference Statement do not consent to a magistrate judge for trial.
11.

Whether Judge Chen has previously conducted a settlement conference in this case,

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and if so, whether the parties stipulate to him handling this case for trial pursuant to ADR Local

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Rule 7-2 or request his recusal: Judge Chen has not previously conducted a settlement conference

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in this case.

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12.

If there exists an immediate need for a case management conference to be scheduled

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in the action: The parties believe that substantial progress has been made and is still being made to

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amicably resolve this matter through mediation. The parties are optimistic that they can finalize

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the settlement by the end of this year or the first quarter of 2013, and the parties will apply to the

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Court for a good faith settlement determination. The settlement process has been a bit protracted

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because of the need to settle claims arising in another state court case involving one of the

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Defendants here.

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There is no immediate need for a case management conference to be scheduled. The parties

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propose the scheduling of a further case management conference in six months, in June 2013, so

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that they may continue with mediation efforts and finalize a settlement.

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DATED: December 4, 2012

GONSALVES & KOZACHENKO

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By:

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Attorneys for Defendant & Third Party
Plaintiff Stark Investment Company, a
California limited partnership

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/s/ Selena P. Ontiveros
Selena P. Ontiveros

DATED: December 7, 2012

The Costa Law Firm
By:

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/s/ Daniel P. Costa
Daniel P. Costa

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Attorneys for Defendant & Third Party
Plaintiff Stark Investment Company, a
California limited partnership

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

08-CV-3168-EMC

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DATED: December 4, 2012

Cox, Castle & Nicholson, LLP

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By:

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Attorneys for Plaintiff Palmtree Acquisition
Corporation, a Delaware corporation f/k/a
Catellus Development Corporation

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/s/ Peter Morrisette
Peter Morrisette

DATED: December 7, 2012

Claytor Law Group

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By:

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/s/ James D. Claytor
James D. Claytor

Attorneys for Defendant Western State
Design, a California corporation

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DATED: December 4, 2012

BASSI, EDLIN, HUIE & BLUM LLP
By:

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/s/ Farheena Habib
Farheena Habib

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Attorneys for Defendants Michael R. Neely,
Perry J. Neely, and Gary Neely, dba Mike’s
One Hour Cleaners

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DATED: December 7, 2012

Dongell Lawrence Finney, LLP

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By:

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Attorneys for Defendant & Third Party
Plaintiff The Kirrberg Corporation f/k/a
Multimatic Corporation

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/s/ Thomas A. Vandenberg
Thomas A. Vandenberg

DATED: December 7, 2012

Rogers Joseph O’Donnell

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By:

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/s/ D. Kevin Shipp
D. Kevin Shipp

Attorneys for Defendant Charles Frederick
Hartz, dba Paul’s Sparkle Cleaners

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

08-CV-3168-EMC

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DATED: December 7, 2012

Gordon, Watrous, Ryan, Langley, Bruno &
Paltenghi

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By:

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/s/ Bruce C. Paltenghi
Bruce C. Paltenghi

Attorneys for Defendant McCorduck
Properties Livermore, LLC, a Delaware
limited liability company; John McCorduck;
Kathleen McCorduck; Pamela McCorduck;
and Sandra McCorduck Marona

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DATED: December 7, 2012

Stanzler Law Group
By:

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/s/ Jordan S. Stanzler
Jordan S. Stanzler

Attorneys for Defendant IMA Financial
Corporation, a California corporation

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DATED: December 7, 2012

Paladin Law Group LLP

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By:
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/s/ John Till
John Till

Attorneys for Third Party Defendant Dorothy
Anderson, Trustee of the Anderson Marital
Trust and The Anderson Tax Deferral Trust

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Filer’s Attestation: Pursuant to Local Rule 5-1(i), I attest under penalty of perjury that
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concurrence in the filing of this document has been obtained from its signatories.
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DATED: December 7, 2012

Respectfully submitted,

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/s/ Selena P. Ontiveros
Selena P. Ontiveros

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R NIA

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT

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DISTRIC
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__________________ TES
TA
Edward M. Chen
U.S. District Judge

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S

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IT IS SO ORDERED that the CMC is reset from 12/14/12 to 6/27/13 at 9:00 a.m. A joint CMC
statement shall be filed by 6/20/13.

UNIT
ED

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C

08-CV-3168-EMC