Torre et al-v-City of Salinas

Filing 64

STIPULATION AND ORDER 63 Dismissing Some of Plaintiffs' Claims and Dismissing Defendant Daniel Ortega, City of Salinas Police Chief Daniel Ortega terminated. Signed by Judge Ronald M. Whyte on 8/18/10. (jg, COURT STAFF) (Filed on 8/18/2010)

Torre et al-v-City of Salinas

Doc. 64

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Vanessa W. Vallarta, City Attorney #142404 OFFICE OF THE CITY ATTORNEY 200 Lincoln Avenue Salinas, CA 93901 Telephone: [phone] Facsimile: [phone] Vincent P. Hurley #111215 Amanda M. Cohen #243946 LAW OFFICES OF VINCENT P. HURLEY A Professional Corporation 38 Seascape Village Aptos, California 95003 Telephone: [phone] Facsimile: [phone] *E-FILED - 8/18/10*

Attorneys for Defendants CITY OF SALINAS, CITY OF SALINAS POLICE CHIEF DANIEL ORTEGA, POLICE OFFICER STEVEN MATTOCKS, and POLICE OFFICER ROBERT BALAORO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) ) CITY OF SALINAS, a public entity, CITY ) OF SALINAS POLICE CHIEF DANIEL ) ORTEGA in his individual and official ) capacities, POLICE OFFICER STEVEN ) MATTOCKS, Individually, POLICE ) OFFICER ROBERT BALAORO, ) Individually, and DOES 1 through 10, ) Jointly and Severally, ) ) Defendants. ) ) MARIA IRMA DELA TORRE DECEASED, THROUGH HER SUCCESSOR IN INTEREST, JOSE MAXIMILIANO LICEA ABACA; MARIA DELA TORRE, individually; and JOSE MAXIMILIANO LICEA ABACA, individually Case No: C09-00626 RMW STIPULATION AND [] ORDER DISMISSING SOME OF PLAINTIFFS' CLAIMS AND DISMISSING DEFENDANT DANIEL ORTEGA

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Stipulation and Order Regarding Dismissal of Claims and Defendants Case No. C09-00626 RMW

Dockets.Justia.com

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Attorneys for the parties wish to narrow the issues for Defendants' dispositive motions and trial and, having met and conferred, stipulate as follows: STIPULATIONS REGARDING CLAIMS OF PLAINTIFF MARIA DELA TORRE Defendants dispute whether or not Plaintiff Maria Dela Torre has standing to sue for any cause of action based on the Fourth Amendment, while Plaintiff maintains that she may personally pursue a claim for wrongful death based on a violation of Irma Dela Torre's rights established in the Fourth Amendment. Defendants have agreed not to include in their dispositive motion the issue of whether or not Maria Dela Torre has standing to assert a wrongful death claim in her personal capacity based on a violation of Irma Dela Torre's Fourth Amendment rights or other personal rights under federal or state law, and in their Motion for Summary Judgment Defendants have not challenged Plaintiffs' standing under California Code of Civil Procedure § 377.60 to bring wrongful death claims for violation of Irma Dela Torre's Fourth Amendment rights or Irma Dela Torre's right to be free from common law torts including assault and battery. Plaintiffs Maria Dela Torre and Jose Maximiano Licea Abarca do not claim that they were deprived of their own personal Fourth Amendment rights or that they were personally subjected to assault and battery, as all Fourth Amendment and assault and battery claims are brought pursuant to California Code of Civil Procedure § 377.60 et seq. and/or § 377.20 et seq. Plaintiff, Maria Dela Torre, by this stipulation, dismisses the following Counts of her Complaint: Count Two -- 42 U.S.C. § 1983 ­ Against Defendants City of Salinas and Chief of Police Daniel Ortega; Count Three -- Violation of Civil Code § 52.1 Against All Defendants (without prejudice, subject to survival claim stipulation below); Count Six-- Violation of California Civil Code § 51.7 Against All Defendants. Plaintiff Maria Dela Torre continues to assert her claims against the City of Salinas based on respondeat superior liability for her state law claims. Plaintiff Maria Dela Torre, by this stipulation, dismisses Defendant Daniel Ortega from this lawsuit, each side to bear her, his or its own costs and attorneys fees as they relate to Daniel Ortega.
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Stipulation and Order Regarding Dismissal of Claims and Defendants Case No. C09-00626 RMW

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Plaintiff Maria Dela Torre, by this stipulation, dismisses without prejudice any survival claim pursuant to California Code of Civil Procedure §§ 377.20, 377.30, and 377.32 as successor in interest of Irma Dela Torre, because Maria Dela Torre agrees that Decedent's husband, Plaintiff Jose Maximiano Licea Abarca, appears to have a "superior right to commence the action or proceeding" to bring survival claims as Successor in Interest at this time. This dismissal of Maria Dela Torre's survival claims is without prejudice to lawfully asserting such claims if the Court determines or all parties agree that Plaintiff Jose Maximiano Licea Abarca does not have standing to assert claims of Irma Dela Torre as her successor in interest or if his survival claims are dismissed from this action without his agreement. STIPULATIONS REGARDING CLAIMS OF PLAINTIFF JOSE MAXIMILIANO LICEA ABARCA Plaintiff Jose Maximiano Licea Abarca, individually and as successor in interest of Maria Irma Dela Torre, by this stipulation, dismisses the following Counts of his Complaint: Count Two -- 42 U.S.C. § 1983 -- Against Defendants City of Salinas and Chief of Police Daniel Ortega; Count Six -- Violation of California Civil Code § 51.7 Against All Defendants. JOSE MAXIMILIANO LICEA ABARCA, as an Individual dismisses his claim as to; Count Three -Violation of Civil Code § 52.1 Against All Defendants; He continues to assert the survival claim of Irma Dela Torre as her successor in interest. Jose Maximiano Licea Abarca continues to assert claims against the City of Salinas based on respondeat superior liability for state tort claims. Jose Maximiano Licea Abarca also dismisses individually Count Seven -- Violation of California Civil Code § 51.7 Against Defendants Mattocks and Balaoro and the City of Salinas -plead as liability to a bystander for violation of the California Constitution, but Licea Abarca continues to pursue, in his individual capacity, a State tort "Dillon" claim for injury to a bystander in his Fourth Count for Negligence. /// /// ///

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Stipulation and Order Regarding Dismissal of Claims and Defendants Case No. C09-00626 RMW

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Plaintiff, Jose Maximiano Licea Abarca, by this stipulation, dismisses Defendant Daniel Ortega from this lawsuit, each side to bear her, his or its own costs and attorneys fees as they relate to Daniel Ortega. The parties request that the Court so order. Dated: August 17, 2010 LAW OFFICES OF VINCENT P. HURLEY /s/ Vincent P. Hurley VINCENT P. HURLEY Attorneys for Defendants City of Salinas, et al. By:

Dated: August 16, 2010 CURD, GALINDO & SMITH, LLP By: /s/ Alexis Galindo ALEXIS GALINDO Attorneys for Plaintiff Jose Maximiliano Licea Abarca Dated: August 11, 2010 HADDAD & SHERWIN /s/ Michael J. Haddad MICHAEL J. HADDAD Attorneys for Plaintiff Maria Dela Torre By: ORDER Based on the stipulation of the parties: IT IS ORDERED that Counts Two and Six of Plaintiffs' Complaint are dismissed, and Plaintiffs' Complaint against Defendant Daniel Ortega is dismissed with prejudice with all parties to bear their own costs and attorneys fees as to claims against Daniel Ortega. IT IS FURTHER ORDERED that the wrongful death claims of Plaintiff Maria Dela Torre, and Plaintiff Jose Maximiano Licea Abarca, individually for violation of Cal. Civil Code § 52.1 in Count Three are dismissed with prejudice, and Plaintiff Maria Dela Torre's survival
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Stipulation and Order Regarding Dismissal of Claims and Defendants Case No. C09-00626 RMW

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claim as a successor in interest is dismissed without prejudice. Count Three as pled by Plaintiff Jose Maximiano Licea Abarca as successor in interest to Maria Irma Dela Torre is not dismissed. IT IS FURTHER ORDERED that the Civil Code Section 51.7 claims of Jose Maximiano Licea Abarca as successor in interest to Maria Irma Dela Torre and Jose Maximiano Licea Abarca, individually found in Count Seven are dismissed; however, the negligence State tort claims of both Jose Maximiano Licea Abarca as successor in interest to Maria Irma Dela Torre and Jose Maximiano Licea Abarca individually, found in Count Four and Seven are not dismissed. IT IS FURTHER ORDERED that any claim of Plaintiff Maria Dela Torre as successor in interest of Irma Dela Torre is dismissed without prejudice. 8/18/10

Dated:

Honorable Ronald M. Whyte Judge of the United States District Court Northern District of California

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Stipulation and Order Regarding Dismissal of Claims and Defendants Case No. C09-00626 RMW