Dector et al v. City of Rohnert Park et al

Filing 17

STIPULATION AND ORDER for Dismissal of First Claim for Relief in First Amended Complaint and Agreement with Respect to Controlling Facts for Purposes of Motion to Dismiss. Signed by Judge Richard Seeborg on 4/26/13. (cl, COURT STAFF) (Filed on 4/29/2013)

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STEVEN C. MITCHELL, ESQ., SBN 124644
ROBERT W. HENKELS, ESQ., SBN 225410
GEARY, SHEA, O’DONNELL, GRATTAN & MITCHELL, P.C.
37 Old Courthouse Square, Fourth Floor
Santa Rosa, California 95404
Telephone: [phone]
Facsimile: 707/545-1876
Attorneys for Defendants
CITY OF ROHNERT PARK and ROHNERT PARK
DEPARTMENT OF PUBLIC SAFETY

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PEDRO DECTOR AND FLORIBERTO PEREZ
OJEDA and all others similarly situated,,

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Plaintiffs,
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v.
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CITY OF ROHNERT PARK, ROHNERT
PARK DEPARTMENT OF PUBLIC SAFETY
and DOES 1-5, inclusive,

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Defendants.
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CASE NO.: C 13-0104 RS
STIPULATION FOR DISMISSAL OF
FIRST CLAIM FOR RELIEF IN FIRST
AMENDED COMPLAINT AND
AGREEMENT WITH RESPECT TO
CONTROLLING FACTS FOR PURPOSES
OF MOTION TO DISMISS; EXTENSION
OF TIME TO FILE MOTION TO
DISMISS; PROPOSED ORDER RE SAME;
[Proposed] ORDER DISMISSING FIRST
CLAIM OF RELIEF IN FIRST AMENDED
COMPLAINT

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TO THIS HONORABLE COURT:

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The parties, by and through their respective counsel, and after careful negotiations regarding

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the factual and legal bases of plaintiffs’ First Amended Complaint and defendants’ expected Motion

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to Dismiss, hereby agree and stipulate as follows:

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

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Plaintiffs filed an Amended Complaint in response to defendants’ prior Motion to

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Dismiss. In accordance with the amended complaint, the hearing on defendants’ Motion to Dismiss

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was taken off calendar. Since that time, the parties have met and conferred with respect to the legal

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and factual bases of plaintiffs’ First Amended Complaint. The parties agree and acknowledge that
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-1Stipulation for Dismissal of First Claim of Relief and Agreement with Respect to Controlling Facts; [Proposed] Order
Dismissing First Claim of Relief with Prejudice

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defendants shall file a renewed Motion to Dismiss challenging the legal bases of plaintiffs’ First

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Amended Complaint. As a result of their discussions, the parties hereby agree that the Court’s

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review of the factual and legal issues raised by plaintiffs’ complaint shall be in accordance with this

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stipulation.
2.

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Defense counsel has provided plaintiffs’ counsel with a police report and other

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official documents related to the impoundment of plaintiffs’ vehicles. Based on the facts contained

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in those documents, some of which materially differ from those stated in the First Amended

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Complaint, plaintiffs have elected not to proceed on the First Cause of Action for Relief for

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Violation of the Fourth Amendment. The parties agree that the Court shall immediately dismiss

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with prejudice the First Claim for Relief for Violation of the Fourth Amendment. Defendants shall

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be entitled to rely upon this Stipulation and shall not be required to raise any argument or establish

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any burden of proof with respect to the Fourth Amendment claims in any Motion to Dismiss or

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subsequent proceedings. In accordance with this Stipulation, subparagraphs (3) and (4) of

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paragraph 39, and paragraphs 55-58, pertaining to the Fourth Amendment claims, shall be

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immediately stricken and shall not be considered by the Court in review of any Motion or in

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subsequent proceedings, and plaintiffs shall not include any similar factual allegations or claims in

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any subsequent amended complaint should leave to amend later be granted.
3.

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Any information contained in any official reports which defendants submit with the

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may not be submitted with the Motion to Dismiss unless plaintiffs’ counsel agrees beforehand that

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the documents are sufficiently reliable for purposes of adjudicating the legal issues raised by the

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First Amended Complaint. Any such agreement shall be noted in the Motion to Dismiss with

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MITCHELL
P.C.

alleged in the First Amended Complaint. Any documents that do not constitute an official report

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GEARY,
SHEA,
O’DONNELL,
GRATTAN &

be taken as true for purposes of review of that motion and shall control over any conflicting facts

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LAW OFFICES OF

Motion to Dismiss, such as police or impound reports, filed in accordance with this Stipulation shall

reference to the documents submitted by defendants in accordance with the agreement.

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///

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///

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///
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-2Stipulation for Dismissal of First Claim of Relief and Agreement with Respect to Controlling Facts; [Proposed] Order
Dismissing First Claim of Relief with Prejudice

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4.

The parties agree and stipulate that the above negotiations and agreements have

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substantially impacted the facts and legal issues presented by the First Amended Complaint and

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the time allotted for defendants to prepare their Motion to Dismiss. Accordingly, the parties agree

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that the time to respond to plaintiffs’ First Amended Complaint shall be extended, and that

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defendants shall file a Motion to Dismiss on or before May 3, 2013. This extension of time for

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defendants to respond does not alter the date of any event or deadline already fixed by this Court.

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This extension of time shall be without prejudice to the parties’ respective rights to request

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additional extensions of time or a continuance of the hearing date on the Motion to Dismiss in

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accordance with law on good cause shown.

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IT IS SO STIPULATED.

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DATED: April 26, 2013

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By

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/s/ Mark T. Clausen
MARK T. CLAUSEN
Attorneys for Plaintiffs
PEDRO DECTOR and FLORIBERTO PEREZ
OJEDA

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DATED: April 26, 2013

GEARY, SHEA, O'DONNELL, GRATTAN &
MITCHELL, P.C.

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By

/s/ Robert W. Henkels
ROBERT W. HENKELS
Attorneys for Defendants
CITY OF ROHNERT PARK and ROHNERT
PARK DEPARTMENT OF PUBLIC SAFETY

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

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________________________________________________________________________________
-3Stipulation for Dismissal of First Claim of Relief and Agreement with Respect to Controlling Facts; [Proposed] Order
Dismissing First Claim of Relief with Prejudice

ORDER

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After review of the parties’ Stipulation, and good cause appearing, the Court hereby orders

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as follows: The First Claim for Relief of plaintiffs’ First Amended Complaint alleging an unlawful

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seizure in violation of the Fourth Amendment is hereby DISMISSED with prejudice. As the parties

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already contemplate a motion to dismiss challenging the legal bases of plaintiffs’ remaining claims

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for relief, plaintiffs are not at this time required to prepare or file an amended complaint consistent

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with this Order. Defendants shall be entitled to file official reports with their Motion that are

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consistent with the parties’ stipulation and the facts therein shall control over allegations in the First

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Amended Complaint for purposes of their Motion to Dismiss.

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IT IS SO ORDERED.

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Dated: 4/26/13
_____________________________________
United States District Court Judge

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

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-4Stipulation for Dismissal of First Claim of Relief and Agreement with Respect to Controlling Facts; [Proposed] Order
Dismissing First Claim of Relief with Prejudice