Cole et al v. Rocheville et al

Filing 148

STIPULATION AND ORDER re 147 OF VACATURE OF CERTAIN PARTS OF THE COURT'S ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT.(rmwlc1, COURT STAFF) (Filed on 4/30/2012)

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1 2 3 4 5 6 7 Gregory M. Fox, State Bar No. 070876 Dana L. Soong, State Bar No. 168160 BERTRAND, FOX & ELLIOT The Waterfront Building 2749 Hyde Street San Francisco, California 94109 Telephone: (415) 353-0999 Facsimile: (415) 353-0990 Attorneys for Defendants CITY OF SUNNYVALE, CHIEF DON JOHNSON, OFFICER STEVEN ROCHEVILLE, LIEUTENANT TRACY HERN, OFFICER SCOTT CORTESE, And CAPTAIN KELLY FITZGERALD 8 UNITED STATE DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: C08-05017 RMW RUSSELL COLE and STEPHANIE OBERG, 12 Plaintiffs, STIPULATION FOR AND [] ORDER OF VACATURE OF CERTAIN PARTS OF THE COURT'S ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT [Docket No. 137] vs. 13 14 15 16 17 18 SUNNYVALE, CHIEF DON JOHNSON, OFFICER STEVEN ROCHEVILLE, LIEUTENANT TRACY HERN, OFFICER SCOTT CORTESE, and CAPTAIN KELLY FITZGERALD, Defendants. The parties acting by and through their respective attorneys filed Cross Motions for Summary 19 Judgment [Dockets Numbers 111, 119] in the above captioned matter. Following briefing of the 20 Cross Motions and Oral Argument the Court issued its Order Re: Cross Motions for Summary 21 Judgment [Docket Number 137 dated September 14, 2011]. Following the filing of that Order the 22 defendants filed an Appeal to the United States Court of Appeal for the Ninth Circuit [Court of 23 Appeals Docket No. 11-17459]. On Appeal the matter was ordered to Mediation with Circuit 24 Mediator Lisa Jaye. Thanks to the guidance of Mediator Lisa Jaye the parties have reached a global 25 settlement of the entire matter that will result in a dismissal with prejudice of the entire Action 26 including the Appeal (The Settlement.) As part of the Settlement the parties herein Stipulate for an 27 Order to vacate part of the Court's Order Re: Cross Motions for Summary Judgment [Docket 28 Number 137 dated September 14, 2011]. See Exhibit A to this Stipulation: "Letter from Circuit 1 STIPULATION AND [] ORDER 1 Mediator Lisa Jaye to the Court recommending that the Court Order the Stipulation of the Parties re: 2 Vacature of Part of the Order dated September 14, 2011 - Docket Number 137. 3 As part of the Settlement in the Interest of Justice the parties seek vacature of the Court's 4 liability findings against two of the individual defendants officers based on a second search of the 5 plaintiffs' residence for a firearm and the Court's denial of qualified immunity to the same two 6 individual defendant officers for that second search. 7 IT IS HEREBY STIPULATED by and between the parties, plaintiffs Russell Cole and 8 Stephanie Oberg and Defendant City of Sunnyvale, Don Johnson, Kelly Fitzgerald, Tracy Hern, 9 Steven Rocheville, Scott Cortese and the Sunnyvale Police Department (collectively, the “City”), and 10 all Does 1-50 and all Released Persons through their designated counsel for an Order of Vacature of 11 the following parts of the Order Re: Cross Motions for Summary Judgment [Docket Number 137 12 dated September 14, 2011]: Sections II. B.4; F; H and I and Sections III. A. 2, 3, 7, 9 and B.1 which 13 discuss, refer or relate to the two individual officers actions in conducting a second search of 14 plaintiffs' residence for a firearm and their request for qualified immunity for said second search. 15 Each side to bear their own fees and costs. So Stipulated: Dated: April 10, 2012 BERTRAND, FOX & ELLIOT 16 17 18 By: 19 /s/ M. Fox Attorneys for Defendants City of Sunnyvale, Chief Don Johnson, Officer Steven Rocheville, Lieutenant Tracy Hern, Officer Scott Cortese, and Captain Kelly Fitzgerald Gregory 20 21 22 23 Dated: April 10, 2012 KALLIS & ASSOCIATES P.C. 24 25 26 By: /s/ Jeffrey Kallis Attorneys for Plaintiffs Russell Cole and Stephanie Oberg 27 28 2 STIPULATION AND [] ORDER 1 2 Dated: April 10, 2012 BUSTAMANTE O’HARA & GAGLIASSO 3 4 By: 5 6 /s/ Andrew Stearns Steven Berki Attorneys for Plaintiffs Russell Cole and Stephanie Oberg 7 ATTORNEY ATTESTATION 8 I hereby attest that I have on file all holograph signatures for any signatures indicated by a 9 10 “conformed” signature (/s/) within this E-filed document. 11 12 Dated: April 10, 2012 /s/ GREGORY M. FOX 13 14 15 ORDER Good Cause Appearing based on the Stipulation of the Parties and Circuit Mediator's Letter re 16 Settlement of the Case, it is hereby Ordered that with regards to the Court's Order Re: Cross Motions 17 for Summary Judgment [Docket Number 137 dated September 14, 2011]: that the following Sections 18 of that Order are hereby vacated: Sections II. B.4; F; H and I and Sections III. A. 2, 3, 7, 9 and B.1. 19 This order is not an expression by the court as to the correctness of is previous ruling. 20 Each side to bear their own fees and costs 21 22 23 Dated: April 30, 2012 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 3 STIPULATION AND [] ORDER

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