Smith et al v. Antioch Unified School District et al

Filing 52

STIPULATION AND ORDER TO FILE FIRST AMENDED COMPLAINT 49 . Signed by Judge Richard Seeborg on 8/2/2016. (afmS, COURT STAFF) (Filed on 8/2/2016)

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1 2 3 4 5 6 7 8 9 PETER W. ALFERT, SBN 83139 HINTON ALFERT, PC 200 Pringle Ave., Suite 450 Walnut Creek, California 94596 Telephone: (925) 279-3009 Facsimile: (925) 279-3342 palfert@hintonalfert.com TODD BOLEY, SBN 68119 MAUREEN FELDMAN, SBN 298417 ZOYA YARNYKH, SBN 258062 LAW OFFICE OF TODD BOLEY 2381 Mariner Square Drive, Suite 280 Alameda, CA 94501 Telephone: (510) 836-4500 Facsimile: (510) 649-5170 boley@boleylaw.com 10 Attorneys for PLAINTIFFS 11 DAVID F. BEACH, SBN 127135 ANNE D’ARCY 232948 PERRY JOHNSON ANDERSON MILLER & MOSKOWITZ, LLP 438 First Street, 4th Floor Santa Rosa, CA 95401 Telephone: (707) 525-8800 Facsimile: (707) 545-9242 beach@perrylaw.net 12 13 14 15 16 Attorneys for DEFENDANTS Tobinworld And Sara Forghani 17 18 19 20 LOIS A. LINDSTROM, SBN 111743 ERICKSEN ARBUTHNOT 2300 Clayton Road, Suite 350 Concord, CA 94520 Telephone: (510) 832-7770 Facsimile: (510) 510) 832-0102 llindstrom@ericksenarbuthnot.com 21 Attorneys for DEFENDANT Andrew Altes 22 23 24 25 26 27 TIMOTHY P. MURPHY, SBN 120920 DOLORES M. DONOHOE, SBN 111432 EDRINGTON, SCHIRMER & MURPHY LLP 2300 Contra Costa Boulevard, Suite 450 Pleasant Hill, CA 94523 Telephone: (925) 827-3300 Facsimile: (925) 827-3320 tmurphy@esmlawfirm.com Attorneys for DEFENDANT Antioch Unified School District 28 PLAINTIFFS’ INITIAL DISCLOSURES -1- 16-CV-01676 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 Case No. 16-cv-01676 4 5 MICHELE SMITH and M.M., a minor by and through his guardian ad litem MICHELLE SMITH 6 7 8 9 The Hon. Richard Seeborg STIPULATION AND [PROPOSED] ORDER TO FILE FIRST AMENDED Plaintiffs, v. ANTIOCH UNIFIED SCHOOL DISTRICT, TOBINWORLD, SARA FORGHANI, ANDREW ALTES and DOES 1-30, Defendants. 10 11 12 13 14 Plaintiffs MICHELE SMITH, acting on her on behalf and as Guardian ad Litem for M.M., 15 (“Plaintiffs”) and Defendants TOBINWORLD, SARA FORGHANI, ANDREW ALTES, and 16 ANTIOCH UNIFIED SCHOOL DISTRICT (hereinafter “AUSD”) jointly submit this Stipulation 17 and [Proposed] Order to File First Amended Complaint. 18 WHEREAS, on April 4, 2016, the Plaintiffs filed the above caption action entitled Michele 19 Smith, et. al., v. Antioch Unified School District, et. al., U.S.D.C. Case No. 3:16-01676-JCS, 20 hereinafter referred to as the “Smith Federal Action”; 21 WHEREAS, previously on April 27, 2016, the Plaintiffs filed a complaint in Contra Costa 22 County Superior Court, entitled Smith, et al., v. Antioch Unified School District, et. al., Superior 23 Court of Contra Costa Case No. CIVMS C16-00782, hereinafter referred to as the “Smith State 24 Action”; 25 WHEREAS, the Smith Federal Action contains federal claims for Violation of Section 504 26 of the Rehabilitation Act of 1973 against Defendant Tobinworld, Violation of Section 504 of the 27 Rehabilitation Act of 1973 against Defendant Antioch Unified, Discrimination in Violation of the 28 Americans with Disabilities Act against Defendant Antioch Unified, Violation of the Unruh Act JOINT STIPULATION AND [PROPOSED] ORDER RE AMENDING COMPLAINT -2- 3:16-cv-0767-RS 1 against Defendant Tobinworld, Violations of the Unfair Business Practices, California Code 2 Section 17200 against Defendant Tobinworld, False Imprisonment against Defendant Altes, 3 Intentional Infliction of Emotional Distress against Defendants Tobinworld, Forghani and Altes, 4 Negligence against Defendants Tobinworld, Forghani and Altes, Negligent Hiring, Supervision or 5 Retention against Defendants Tobinworld and Forghani, Violations of California Education Code 6 Section 220 against Defendant Tobinworld, and Violation of a Mandatory Duty against Defendants 7 Forghani and Altes; 8 WHEREAS, the Smith State Action contains state causes of action for Violations of 9 California Education Code Section 220 against Defendant Antioch Unified and Negligence against 10 Defendant Antioch Unified; 11 12 WHEREAS, the two actions involve common issues of fact and law and involve the same Plaintiffs and Defendants; 13 WHEREAS, this Court has already granted Plaintiffs leave to file a First Amended 14 Compliant in federal court in response to this Court’s ruling on Defendant Tobinworld’s Motion to 15 Dismiss, dated June 28, 2016; 16 WHEREAS, Plaintiffs and Defendant Antioch Unified have met and conferred about ways 17 to proceed with Smith’s State Complaint, and have agreed to amend Smith’s Federal Complaint to 18 include the state causes of action; 19 WHEREAS Plaintiffs shall file a First Amended Complaint on or before July 28, 2016; 20 WHEREAS, as a material condition of agreeing to include the state causes of action against 21 Antioch Unified in the First Amended Complaint, Defendant Antioch Unified waives their 11th 22 Amendment immunity from suit in federal court as to state claims. However, Defendant Antioch 23 Unified expressly does not waive any other defenses to any state causes of action and/or federal 24 claims asserted by the Plaintiffs herein; 25 WHEREAS, Defendants Tobinworld, Forghani and Altes have been informed of the 26 agreement between Plaintiffs and Defendant Antioch Unified to incorporate the state causes of 27 action into the First Amended Complaint, and have no objection to such an amendment; and 28 /// JOINT STIPULATION AND [PROPOSED] ORDER RE AMENDING COMPLAINT -3- 3:16-cv-0767-RS 1 2 3 4 WHEREAS, the parties agree that should the federal court dismiss the federal claims, the litigation shall remain in federal court unless the federal court orders otherwise; IT IS SO STIPULATED: Dated: July 28, 2016 LAW OFFICES OF TODD BOLEY 5 /s/ M Feldman_________________ MAUREEN FELDMAN Attorney for Plaintiffs 6 7 8 Dated: July 28, 2016 HINTON ALFERT, PC /s/ P Alfert____________________ Peter Alfert Attorney for Plaintiffs 9 10 11 Dated: July 28, 2016 PERRY JOHNSON ANDERSON MILLER & MOSKOWITZ, LLP 12 /s/ A D’Arcy__________________ ANNE D’ARCY Attorney for Defendants Tobinworld And Sara Forghani 13 14 15 16 Dated: July 28, 2016 ERICKSEN ARBUTHNOT /s/ L Lindstrom_________________ LOIS A. LINDSTROM Attorney for Defendant Andrew Altes 17 18 19 Dated: July 28, 2016 EDRINGTON, SCHIRMER & MURPHY 20 /s/ D Donohoe____________________ DOLORES DONOHOE Attorney for Defendant Antioch Unified School District 21 22 23 24 25 26 27 28 JOINT STIPULATION AND [PROPOSED] ORDER RE AMENDING COMPLAINT -4- 3:16-cv-0767-RS 1 2 3 PROPOSED ORDER Having read and considered the Joint Stipulation and [Proposed] Order to file First Amended Complaint, 4 5 1. Plaintiffs are granted leave to file a First Amended Complaint in this court on or before July 6 28, 2016. The First Amended Complaint shall combine all the parties and all state causes 7 of action and all federal claims asserted in the two actions. 8 2. Defendants’ response to the First Amended Complaint shall be due on August 18, 2016. 9 3. Plaintiffs shall dismiss the Smith State Action within 10 days of filing the First Amended 10 Complaint with this court. 11 4. By agreeing to the filing of the First Amended Complaint in this court, Defendant Antioch 12 Unified has waived their 11th Amendment immunity from suit in federal court but does not 13 waive any other defenses to any state causes of actions and/or federal claims asserted by 14 Plaintiffs herein. 15 IT IS HEREBY ORDERED. 16 17 August 2, 2016 Dated:____________________________ 18 19 ______________________________ 20 Hon. Judge R. Seeborg 21 22 23 24 25 26 27 28 JOINT STIPULATION AND [PROPOSED] ORDER RE AMENDING COMPLAINT -6- 3:16-cv-0767-RS

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