Smith et al v. Antioch Unified School District et al
Filing
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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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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
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Attorneys for PLAINTIFFS
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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
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Attorneys for DEFENDANTS Tobinworld
And Sara Forghani
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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
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Attorneys for DEFENDANT Andrew Altes
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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
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PLAINTIFFS’ INITIAL DISCLOSURES
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16-CV-01676
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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Case No. 16-cv-01676
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MICHELE SMITH and M.M., a minor by and
through his guardian ad litem MICHELLE
SMITH
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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.
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Plaintiffs MICHELE SMITH, acting on her on behalf and as Guardian ad Litem for M.M.,
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(“Plaintiffs”) and Defendants TOBINWORLD, SARA FORGHANI, ANDREW ALTES, and
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ANTIOCH UNIFIED SCHOOL DISTRICT (hereinafter “AUSD”) jointly submit this Stipulation
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and [Proposed] Order to File First Amended Complaint.
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WHEREAS, on April 4, 2016, the Plaintiffs filed the above caption action entitled Michele
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Smith, et. al., v. Antioch Unified School District, et. al., U.S.D.C. Case No. 3:16-01676-JCS,
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hereinafter referred to as the “Smith Federal Action”;
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WHEREAS, previously on April 27, 2016, the Plaintiffs filed a complaint in Contra Costa
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County Superior Court, entitled Smith, et al., v. Antioch Unified School District, et. al., Superior
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Court of Contra Costa Case No. CIVMS C16-00782, hereinafter referred to as the “Smith State
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Action”;
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WHEREAS, the Smith Federal Action contains federal claims for Violation of Section 504
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of the Rehabilitation Act of 1973 against Defendant Tobinworld, Violation of Section 504 of the
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Rehabilitation Act of 1973 against Defendant Antioch Unified, Discrimination in Violation of the
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Americans with Disabilities Act against Defendant Antioch Unified, Violation of the Unruh Act
JOINT STIPULATION AND [PROPOSED] ORDER
RE AMENDING COMPLAINT
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3:16-cv-0767-RS
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against Defendant Tobinworld, Violations of the Unfair Business Practices, California Code
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Section 17200 against Defendant Tobinworld, False Imprisonment against Defendant Altes,
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Intentional Infliction of Emotional Distress against Defendants Tobinworld, Forghani and Altes,
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Negligence against Defendants Tobinworld, Forghani and Altes, Negligent Hiring, Supervision or
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Retention against Defendants Tobinworld and Forghani, Violations of California Education Code
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Section 220 against Defendant Tobinworld, and Violation of a Mandatory Duty against Defendants
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Forghani and Altes;
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WHEREAS, the Smith State Action contains state causes of action for Violations of
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California Education Code Section 220 against Defendant Antioch Unified and Negligence against
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Defendant Antioch Unified;
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WHEREAS, the two actions involve common issues of fact and law and involve the same
Plaintiffs and Defendants;
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WHEREAS, this Court has already granted Plaintiffs leave to file a First Amended
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Compliant in federal court in response to this Court’s ruling on Defendant Tobinworld’s Motion to
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Dismiss, dated June 28, 2016;
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WHEREAS, Plaintiffs and Defendant Antioch Unified have met and conferred about ways
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to proceed with Smith’s State Complaint, and have agreed to amend Smith’s Federal Complaint to
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include the state causes of action;
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WHEREAS Plaintiffs shall file a First Amended Complaint on or before July 28, 2016;
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WHEREAS, as a material condition of agreeing to include the state causes of action against
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Antioch Unified in the First Amended Complaint, Defendant Antioch Unified waives their 11th
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Amendment immunity from suit in federal court as to state claims. However, Defendant Antioch
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Unified expressly does not waive any other defenses to any state causes of action and/or federal
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claims asserted by the Plaintiffs herein;
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WHEREAS, Defendants Tobinworld, Forghani and Altes have been informed of the
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agreement between Plaintiffs and Defendant Antioch Unified to incorporate the state causes of
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action into the First Amended Complaint, and have no objection to such an amendment; and
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///
JOINT STIPULATION AND [PROPOSED] ORDER
RE AMENDING COMPLAINT
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3:16-cv-0767-RS
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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
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/s/ M Feldman_________________
MAUREEN FELDMAN
Attorney for Plaintiffs
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Dated: July 28, 2016
HINTON ALFERT, PC
/s/ P Alfert____________________
Peter Alfert
Attorney for Plaintiffs
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Dated: July 28, 2016
PERRY JOHNSON ANDERSON MILLER &
MOSKOWITZ, LLP
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/s/ A D’Arcy__________________
ANNE D’ARCY
Attorney for Defendants Tobinworld
And Sara Forghani
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Dated: July 28, 2016
ERICKSEN ARBUTHNOT
/s/ L Lindstrom_________________
LOIS A. LINDSTROM
Attorney for Defendant Andrew Altes
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Dated: July 28, 2016
EDRINGTON, SCHIRMER & MURPHY
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/s/ D Donohoe____________________
DOLORES DONOHOE
Attorney for Defendant Antioch Unified
School District
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JOINT STIPULATION AND [PROPOSED] ORDER
RE AMENDING COMPLAINT
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3:16-cv-0767-RS
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PROPOSED ORDER
Having read and considered the Joint Stipulation and [Proposed] Order to file First
Amended Complaint,
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1. Plaintiffs are granted leave to file a First Amended Complaint in this court on or before July
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28, 2016. The First Amended Complaint shall combine all the parties and all state causes
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of action and all federal claims asserted in the two actions.
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2. Defendants’ response to the First Amended Complaint shall be due on August 18, 2016.
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3. Plaintiffs shall dismiss the Smith State Action within 10 days of filing the First Amended
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Complaint with this court.
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4. By agreeing to the filing of the First Amended Complaint in this court, Defendant Antioch
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Unified has waived their 11th Amendment immunity from suit in federal court but does not
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waive any other defenses to any state causes of actions and/or federal claims asserted by
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Plaintiffs herein.
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IT IS HEREBY ORDERED.
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August 2, 2016
Dated:____________________________
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______________________________
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Hon. Judge R. Seeborg
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JOINT STIPULATION AND [PROPOSED] ORDER
RE AMENDING COMPLAINT
-6-
3:16-cv-0767-RS
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