Perez v. Midland Funding, LLC

Filing 40

Order by Hon. Lucy H. Koh granting 39 Stipulation.(lhklc1, COURT STAFF) (Filed on 5/31/2013)

Case5:10-cv-01916-LHK Document39 Filed05/30/13 Page1 of 4

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Ben E. Dupre (SBN # 231191)
([e-mail])
Dupre Law Firm, P.C.
2005 De La Cruz Blvd., Suite 203
Santa Clara, CA 95050
Telephone Number: [phone]
Facsimile Number: [phone]
William E. Kennedy (SBN # 158214)
([e-mail])
Law Office of William E. Kennedy
2797 Park Ave. #201
Santa Clara, CA 95050
Phone: [phone]
Fax: [phone]
Mark Chavez (SBN # 90858)
CHAVEZ & GERTLER, LLP
42 Miller Ave.
Mill Valley, California 94941
Phone: [phone]
Fax: [phone]
Bryan Kemnitzer (SBN # 66401)
KEMNIZER, BARRON & KRIEG
445 Bush Street, 6th Floor
San Francisco, CA 94108
Phone: [phone]
Fax: [phone]
Attorneys for Plaintiff Maria Perez and the Proposed Classes

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION

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MARIA PEREZ on behalf of herself and all
others similarly situated

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Plaintiff,

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v.

Case No. CV 10-01916 LHK
STIPULATION AND [PROPOSED]
ORDER TO STAY PROCEEDINGS
AND ADMINISTRATIVELY CLOSE
FILE PENDING RULING FROM THE
CALIFORNIA SUPREME COURT

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MIDLAND FUNDING, LLC
Defendant.

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///

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STIPULATION AND [PROPOSED] ORDER TO STAY PROCEEDINGS

CV 10-01916

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Case5:10-cv-01916-LHK Document39 Filed05/30/13 Page2 of 4

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WHEREAS, in the Joint Case Management Conference Statement filed by the parties on

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May 21, 2013, defendant Midland Funding, LLC indicated that it intended to file a motion

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to compel arbitration of this matter.

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WHEREAS, the arbitration clause which appears on the purchase contract relating to the

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motor vehicle which plaintiff Maria Perez purchased is substantially similar to the

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arbitration clause in the standard motor vehicle purchase contracts used throughout

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California for a number of years.

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WHEREAS, several state appellate courts, as well as several federal courts have ruled on

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the issue of whether the arbitration clause in such standard contracts is unconscionable
and unenforceable, with varying results.

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WHEREAS, the matter of Sanchez v. Valencia Holding Company, 135 Cal.Rptr.3d 19

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(2011)(review granted) is currently pending in the California Supreme Court, Supreme

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Court Case No. S199119. In that case, review was granted of an appellate court decision

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which held that the standard motor vehicle purchase contract arbitration clause was

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unconscionable. The petition for review was granted on March 21, 2012, and the case has

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been fully briefed since November 13, 2012. On April 25, 2012, the Supreme Court

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granted calendar preference to the case pursuant to California Code of Civil Procedure §

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1291.2.

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WHEREAS, the parties believe that the Supreme Court's decision in Sanchez v. Valencia

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Holding Company may provide clarification concerning the enforceability of the

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arbitration clause present in plaintiff's purchase contract.

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WHEREAS, the parties agree that judicial economy would be best served by placing a

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stay on this litigation pending the California Supreme Court's ruling in Sanchez v.

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Valencia Holding Company.

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STIPULATION AND [PROPOSED] ORDER TO STAY PROCEEDINGS

CV 10-01916

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Case5:10-cv-01916-LHK Document39 Filed05/30/13 Page3 of 4

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NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED between

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Plaintiff MARIA PEREZ and Defendant MIDLAND FUNDING LLC that;

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1) This litigation is stayed pending the California Supreme Court's ruling in Sanchez v.

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Valencia Holding Company;

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2) The court may administratively close the file; and

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3) When a ruling is made in Sanchez v. Valencia Holding Company, the parties shall

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submit a stipulation to lift the stay and re-open this litigation.

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GORDON & REES LLP

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Dated: May 30, 2013

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/s/
.
Tara Martin,
Attorney for Defendant Midland Funding, LLC

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DUPRE LAW FIRM, P.C.
LAW OFFICE OF WILLIAM E. KENNEDY
CHAVEZ & GERTLER, LLP
KEMNITZER, BARRON & KRIEG

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Dated: May 30, 2013

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/s/
.
William E. Kennedy,
Attorney for Maria Perez and the Proposed Class

Attestation

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I hereby attest that concurrence in the filing of this document has been obtained
from each of the other signatories.

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Dated: May 30, 2013

/s/
.
William E. Kennedy,
Attorney for Maria Perez and the Proposed Class

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STIPULATION AND [PROPOSED] ORDER TO STAY PROCEEDINGS

CV 10-01916

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Case5:10-cv-01916-LHK Document39 Filed05/30/13 Page4 of 4

ORDER

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PURSUANT TO STIPULATION, IT IS ORDERED AS FOLLOWS:
1) This litigation is stayed pending the California Supreme Court's ruling in Sanchez v.
Valencia Holding Company, California Supreme Court Case No. 199119;

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2) the court shall administratively close the file; and

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3) when a ruling is made in Sanchez v. Valencia Holding Company, the parties shall

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submit a stipulation to lift the stay and re-open this litigation.

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May 31, 2013
DATED :_________________, 2013.

______________________________
LUCY H. KOH
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER TO STAY PROCEEDINGS

CV 10-01916

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