Palmtree Acquisition Corporation v. Neely et al

Filing 166

ORDER RESETTING CMC. Case Management Statement due by 12/12/2013. Case Management Conference reset for 12/19/2013 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge EDWARD M. CHEN on 6/26/13. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 6/26/2013)

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COX, CASTLE & NICHOLSON LLP
PETER M. MORRISETTE (STATE BAR NO. 209190)
[e-mail]
555 California Street, 10th Floor
San Francisco, California 94104
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
PALMTREE ACQUISITION CORPORATION, a Delaware
corporation f/k/a Catellus Development Corporation

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PALMTREE ACQUISITION CORPORATION, a
Delaware corporation,
Plaintiff,

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JOINT CASE MANAGEMENT
CONFERENCE STATEMENT

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; JOHN MCCORDUCK, individually;
KATHLEEN MCCORDUCK, individually;
PAMELA MCCORDUCK, individually; SANDRA
MCCORDUCK MARONA, individually; 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,

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HON. EDWARD M. CHEN
DATE: JUNE 27, 2013
TIME: 9:00 A.M.
COURTROOM: 5, 17TH FLOOR

Defendants.

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LAW OFFICES OF

COX, CASTLE &
NICHOLSON LLP
SAN FRANCISCO

EMC

vs.

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CASE NO. CV 08 3168 MHP

057671\5192418v2

JOINT CASE MANAGEMENT STATEMENT

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The parties who have appeared in the above-captioned environmental action have met and
conferred and jointly submit the following Joint Case Management Conference Statement.

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1.

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

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

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filed on August 24, 2011.

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2.

List or description of all parties: The parties to this case are as follows:

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a.

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Plaintiff Palmtree Acquisition Corporation, successor to a former owner

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

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comprising the subject property;

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b.

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Defendant and Third Party Plaintiff Stark Investment Company, former

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

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shopping center comprising the subject property;

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c.

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Defendant and Third Party Plaintiff The Kirrberg Corporation fka

Multimatic Corporation, manufacturer of the dry cleaning machine at the LASC;

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d.

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Defendants Michael R. Neely, Perry J. Neely and Gary Neely,

individually and dba Mike’s One Hour Cleaners, the dry cleaning operator at the

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LASC;

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e.

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Defendant Charles Hartz, individually and dba Paul’s Sparkle Cleaners,

the dry cleaning operator at the MOSC;

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f.

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Defendant Western States Design, distributor of the dry cleaning

machine at the LASC;

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g.

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Defendant McCorduck Properties Livermore, LLC, current owner of the

MOSC;

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h.

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Defendants John McCorduck, Kathleen McCorduck, Pamela

McCorduck and Sandra McCorduck Marona, former owners of the MOSC;

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i.

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

LAW OFFICES OF

COX, CASTLE &
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057671\5192418v2

-2JOINT CASE MANAGEMENT STATEMENT

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j.

Third Party Defendant Dorothy Anderson, Trustee of The Anderson

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Marital Trust, dated February 28, 1979, as amended and restated August 31, 1994 and

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The Anderson Tax Deferral Trust, dated February 28, 1979, as amended and restated

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August 31, 1994, current owners of the LASC.

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3.

Summary of all claims, counter-claims, cross-claims, third party claims:

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a.

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Plaintiff claims (1) contribution under CERCLA Sections 107(a) and

(e)(2), 42 U.S.C. §§ 9607(a) and (e)(2), against all Defendants; (2) Declaratory Relief

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under CERCLA against all Defendants; (3) Continuing Public Nuisance against all

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Defendants; (4) Negligence against Defendants Neelys, Multimatic and Western States

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Design; (5) Equitable Indemnity against all Defendants; and (6) Declaratory Relief

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under state law against all Defendants.

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b.

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Third Party Plaintiffs claim (1) costs under CERCLA Sections 107(a)

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

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Equitable Indemnity; and (4) Declaratory Relief under state law against all Third Party

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Defendants.

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4.

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

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opener” of a prior action that was conditionally settled. The prior action was filed on February 3,

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1993 in the United States District Court for the Northern District of California and entitled Grubb &

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Ellis 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 of

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

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from the centers. Following settlement of the Prior Action, certain parties requested, and the RWQCB

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LAW OFFICES OF

COX, CASTLE &
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057671\5192418v2

-3JOINT CASE MANAGEMENT STATEMENT

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

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new order in 1996 to that effect. However, on March 17, 2008 and March 21, 2008, the RWQCB

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issued Directives requiring further investigation and monitoring of the PCE contamination, which also

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potentially impacted the deeper aquifer, thereby allegedly triggering the “re-opener” provision in the
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settlement agreement. Plaintiff Palmtree Acquisition Corporation filed this action on July 1, 2008,

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seeking contribution under CERCLA and damages pursuant to the “re-opener” provision, among other

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claims.

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5.

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

how damages are computed: The parties seek both declaratory and monetary relief through the
Second Amended Complaint, the Fourth Amended Third Party Complaint and various cross-claims

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and counter-claims which were deemed filed pursuant to Stipulations and Orders filed on August 3,
2011, October 27, 2011 and November 14, 2011. The parties seek reimbursement and contribution of

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

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

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monetary damages for nuisance and negligence.

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6.

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

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2008, 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 with

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

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cooperatively as a group to respond to the RWQCB’s directives and requirements. Indeed, Plaintiff

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and Defendants, with the exception of Grubb & Ellis Realty Income Trust, Liquidating Trust, have

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thus far spent over $1,000,000 since March 2008 in their response efforts: including jointly hiring a

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project manager and technical consultant; directing investigative measures and submitting a final

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technical investigative report; submitting a work plan, directing work thereunder and submitting a
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LAW OFFICES OF

COX, CASTLE &
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057671\5192418v2

-4JOINT CASE MANAGEMENT STATEMENT

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remedial investigation report with technical findings and proposed remedial alternatives; submitting a

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draft remedial action plan; and coordinating among the various regulatory agencies. The responding

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parties and the contractor are currently working with the RWQCB on the approval of a remedial action

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plan for the site. The parties have nearly finalized a settlement among them, which is contingent upon
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a settlement in another state court case involving one of the defendants in this action. A settlement in

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principle in that state court case has been reached, and a settlement agreement is currently being

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prepared. The parties anticipate that both settlements will be final by September 30, 2013. The

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parties would like to continue working cooperatively towards resolution of this matter and thus

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propose that the discovery stay be continued.

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7.

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

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submitted, ADR proceedings or settlement conferences scheduled or concluded, appellate
proceedings pending or concluded, and any previous referral to a magistrate judge: As

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described above, the parties have been mediating among themselves before Timothy Gallagher, Esq.

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This case was initially referred to Magistrate Judge Chen but then transferred to Judge Patel on April

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2, 2010 and then reassigned to Judge Chen on June 6, 2011. Motions previously decided in this case

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consist of:

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a.

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Application for good faith settlement determination by Plaintiff

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Palmtree Acquisition Corporation and Defendant Northrop Grumman Systems

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Corporation, granted October 4, 2010.
b.

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Motion to dismiss the First Amended Third Party Complaint by Third

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Party Defendant Melinda Ellis Evers, Successor Trustee of the Harold A. Ellis, Jr.

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Revocable Inter Vivos 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

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Inter Vivos Trust, granted with prejudice on February 11, 2011.

LAW OFFICES OF

COX, CASTLE &
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057671\5192418v2

-5JOINT CASE MANAGEMENT STATEMENT

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d.

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

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

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Defendant Dorothy Anderson, granted without prejudice on August 4, 2011.

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e.

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Motion to dismiss the Fourth Amended Third Party Complaint by Third

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

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f.

Stipulation and order of good faith settlement determination as to the

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Neely parties, signed January 1, 2013.
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8.

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dispositive motions, pretrial conferences, and trials: None.
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Whether the parties will consent to a magistrate judge for trial: The parties

None.

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Any requested modification of these dates and reason for the request:

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

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

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11.

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Whether Judge Chen has previously conducted a settlement conference in

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

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

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conference in this case.

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12.

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

scheduled in the action: The parties believe that substantial progress is being made to amicably

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resolve this matter through mediation. As noted in the prior joint case management conference
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statement filed on December 7, 2012 (Doc. 159), the parties were optimistic at that time that they

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could finalize the settlement by the first quarter of 2013. Final resolution of this case, however, has

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been delayed because the settlement of this matter is contingent upon the settlement of a state court

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matter involving one of the defendants here. A settlement in principle of the state court matter has

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LAW OFFICES OF

COX, CASTLE &
NICHOLSON LLP
SAN FRANCISCO

057671\5192418v2

-6JOINT CASE MANAGEMENT STATEMENT

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been reached, and a settlement agreement in that matter is now being prepared. Thus, the parties

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anticipate that the settlement agreement in this matter will be executed soon and that a motion for

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good faith settlement determination under state law and contribution protection under CERCLA can

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be filed with this Court by September 2013.
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Therefore there is no immediate need for a case management conference to be scheduled. The

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parties propose the scheduling of a further case management conference in December 2013 or January

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2014, so that they may continue with mediation efforts and finalize a settlement.

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Dated: June 17, 2013

Cox, Castle & Nicholson, LLP
By:

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Dated: June 17, 2013

GONSALVES & KOZACHENKO
By:

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Dated: June 17, 2013

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

/s/ Paul Kozachenko
Paul Kozachenko
Attorneys for Defendant & Third Party
Plaintiff Stark Investment Company, a
California limited partnership

The Costa Law Firm

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By:

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Dated: June 17, 2013

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Claytor Law Group
By:

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/s/ Daniel P. Costa
Daniel P. Costa
Attorneys for Defendant & Third Party
Plaintiff Stark Investment Company, a
California limited partnership

/s/ James D. Claytor
James D. Claytor
Attorneys for Defendant Western State
Design, a California corporation

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LAW OFFICES OF

COX, CASTLE &
NICHOLSON LLP
SAN FRANCISCO

057671\5192418v2

-7JOINT CASE MANAGEMENT STATEMENT

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Dated: June 17, 2013

BASSI, EDLIN, HUIE & BLUM LLP

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By:

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Dated: June 17, 2013

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Dongell Lawrence Finney, LLP
By:

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Dated: June 17, 2013

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

/s/ Thomas A. Vandenberg
Thomas A. Vandenberg
Attorneys for Defendant & Third Party
Plaintiff The Kirrberg Corporation f/k/a
Multimatic Corporation

Rogers Joseph O’Donnell

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By:

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Dated: June 17, 2013

/s/ D. Kevin Shipp
D. Kevin Shipp
Attorneys for Defendant Charles
Frederick Hartz, dba Paul’s Sparkle
Cleaners

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Gordon, Watrous, Ryan, Langley, Bruno &
Paltenghi

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By:

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Dated: June 17, 2013

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Stanzler Law Group
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

/s/ Jordan S. Stanzler
Jordan S. Stanzler
Attorneys for Defendant IMA Financial
Corporation, a California corporation

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LAW OFFICES OF

COX, CASTLE &
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SAN FRANCISCO

057671\5192418v2

-8JOINT CASE MANAGEMENT STATEMENT

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Dated: June 17, 2013

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 concurrence in

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the filing of this document has been obtained from its signatories.

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DATED: June 17, 2013

Respectfully submitted,

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/s/ Peter Morrisette

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Peter Morrisette

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ER

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R NIA
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dwar
Judge E

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en
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D
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S DISTRICT
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An updated joint CMC statement

RT
U
O

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S

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It is so ordered that the CMC is reset for 12/19/13 at 9:00 a.m.
shall be filed by 12/12/13.
_____________________
EDWARD M. CHEN
U.S. DISTRICT JUDGE

UNIT
ED

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F
D IS T IC T O
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057671\5192418v2

-9JOINT CASE MANAGEMENT STATEMENT