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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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
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UNITED STATE DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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Case No.: C08-05017 RMW
RUSSELL COLE and STEPHANIE OBERG,
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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.
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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
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Judgment [Dockets Numbers 111, 119] in the above captioned matter. Following briefing of the
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Cross Motions and Oral Argument the Court issued its Order Re: Cross Motions for Summary
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Judgment [Docket Number 137 dated September 14, 2011]. Following the filing of that Order the
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defendants filed an Appeal to the United States Court of Appeal for the Ninth Circuit [Court of
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Appeals Docket No. 11-17459]. On Appeal the matter was ordered to Mediation with Circuit
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Mediator Lisa Jaye. Thanks to the guidance of Mediator Lisa Jaye the parties have reached a global
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settlement of the entire matter that will result in a dismissal with prejudice of the entire Action
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including the Appeal (The Settlement.) As part of the Settlement the parties herein Stipulate for an
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Order to vacate part of the Court's Order Re: Cross Motions for Summary Judgment [Docket
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Number 137 dated September 14, 2011]. See Exhibit A to this Stipulation: "Letter from Circuit
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STIPULATION AND [] ORDER
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Mediator Lisa Jaye to the Court recommending that the Court Order the Stipulation of the Parties re:
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Vacature of Part of the Order dated September 14, 2011 - Docket Number 137.
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As part of the Settlement in the Interest of Justice the parties seek vacature of the Court's
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liability findings against two of the individual defendants officers based on a second search of the
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plaintiffs' residence for a firearm and the Court's denial of qualified immunity to the same two
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individual defendant officers for that second search.
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IT IS HEREBY STIPULATED by and between the parties, plaintiffs Russell Cole and
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Stephanie Oberg and Defendant City of Sunnyvale, Don Johnson, Kelly Fitzgerald, Tracy Hern,
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Steven Rocheville, Scott Cortese and the Sunnyvale Police Department (collectively, the “City”), and
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all Does 1-50 and all Released Persons through their designated counsel for an Order of Vacature of
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the following parts of the Order Re: Cross Motions for Summary Judgment [Docket Number 137
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dated September 14, 2011]: Sections II. B.4; F; H and I and Sections III. A. 2, 3, 7, 9 and B.1 which
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discuss, refer or relate to the two individual officers actions in conducting a second search of
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plaintiffs' residence for a firearm and their request for qualified immunity for said second search.
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Each side to bear their own fees and costs.
So Stipulated:
Dated: April 10, 2012
BERTRAND, FOX & ELLIOT
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By:
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/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
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Dated: April 10, 2012
KALLIS & ASSOCIATES P.C.
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By:
/s/
Jeffrey Kallis
Attorneys for Plaintiffs
Russell Cole and Stephanie Oberg
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STIPULATION AND [] ORDER
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Dated: April 10, 2012
BUSTAMANTE O’HARA & GAGLIASSO
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By:
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/s/
Andrew Stearns
Steven Berki
Attorneys for Plaintiffs
Russell Cole and Stephanie Oberg
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ATTORNEY ATTESTATION
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I hereby attest that I have on file all holograph signatures for any signatures indicated by a
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“conformed” signature (/s/) within this E-filed document.
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Dated: April 10, 2012
/s/
GREGORY M. FOX
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ORDER
Good Cause Appearing based on the Stipulation of the Parties and Circuit Mediator's Letter re
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Settlement of the Case, it is hereby Ordered that with regards to the Court's Order Re: Cross Motions
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for Summary Judgment [Docket Number 137 dated September 14, 2011]: that the following Sections
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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.
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This order is not an expression by the court as to the correctness of is previous ruling.
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Each side to bear their own fees and costs
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Dated:
April 30, 2012
UNITED STATES DISTRICT JUDGE
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STIPULATION AND [] ORDER
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