United States District Court, S.D. California
October 5, 2005.
FIRST SAN DIEGO PROPERTIES XX, a California Limited Partnership, Plaintiff,
EXXON COMPANY, U.S.A., a New Jersey Corporation; PARSLEY/KENNEDY COMPANY, a California Corporation; THE DE FREITAS COMPANY, a California Corporation; RACHEL M. FREITAS, President of Parsley/Kennedy Company and President of The De Freitas Company, Defendants.
The opinion of the court was delivered by: M. LORENZ, District Judge
STIPULATION AND ORDER FOR DISMISSAL WITHOUT PREJUDICE
IT IS HEREBY STIPULATED by and between Plaintiff, FIRST SAN
DIEGO PROPERTIES XX ("First San Diego"), a California limited
partnership, LARRY DUARTE and KARILYN DUARTE, Intervenors,
PACIFICA WOODSIDE, Intervenor, EXXON CORPORATION, U.S.A., a New
Jersey corporation, (now known as EXXONMOBIL CORPORATION),
CHEVRON, U.S.A., INC., through their designated counsels, and
PARSELY/KENNEDY COMPANY, a California corporation, DE FREITAS
COMPANY, a California corporation, RACHEL M. FREITAS,
individually and as President of Parsely/Kennedy Company and De
Freitas Company, pursuant to the Federal Rules of Civil Procedure
Rule 41(a)(1)(ii), as follows:
1. The above entitled action ("Action") had been previously
dismissed pursuant to Stipulation and Order filed November 29,
1994. The said Stipulation and Order referenced and incorporated
the Tolling Agreement (attached hereto as Exhibit "1" and
incorporated herein by reference) setting forth the agreement of
the parties to the Action as to the dismissal and the rights and
obligations of the parties thereto.
2. On April 26, 2002, Intervenors, Lawrence Duarte and Karilyn
Duarte filed an Application to Reopen the Action and Motion for
Intervention for the purpose of obtaining the assistance of the
Court in requiring certain defendants to sign an application to
the State of California for cleanup funds. By Order dated June
24, 2002, the Court permitted the Duartes to intervene for the
3. On June 1, 2005, the Court signed the Order Appointing the
Clerk as Elisor to Execute the Assignment of Reimbursement Rights
to the California Underground Storage Tank Cleanup Fund, and the
purpose for which the case was reopened has been accomplished.
4. All parties herein agree that the action shall be dismissed.
This Stipulation and Order incorporates by reference, as though
fully set forth herein, the said Tolling Agreement attached
hereto, and expressly reserves jurisdiction in the United States
District Court for the Southern District of California, to
hereafter enforce this Stipulation, manage the proceedings, and
effectuate its Order and Decree.
5. The parties further stipulate that all rights, claims, and
defenses that each party may have concerning the Action are
hereby preserved to the same extent as such rights, claims and
defenses existed at the time the action was reopened, and that
the reopening of the Action and the subsequent Orders issued
pursuant thereto, and the incorporation of the attached Tolling
Agreement into this Stipulation, shall not affect the said
rights, claims, and defenses of any party. This Stipulation and
Order shall not operate as an adjudication upon the merits.
6. The parties acknowledge the court's entry of dismissal
without prejudice of the entire Action in no way impairs their
enforcement rights and the District Court's jurisdiction so as to
comply with Kokkonen v. Guardian Life Insurance Company of
America (1994) 511 U.S. 375. IT IS SO ORDERED. TOLLING AGREEMENT
This TOLLING AGREEMENT ("Agreement") is made and entered into
by and between the following parties: FIRST SAN DIEGO PROPERTIES
XX, a California limited partnership ("Plaintiff"); EXXON
CORPORATION, a New Jersey corporation, including but not limited
to its unincorporated division, EXXON COMPANY, U.S.A. ("Exxon");
CHEVRON U.S.A. INC., a Pennsylvania corporation ("Chevron");
FOGERTY OIL COMPANY, a California corporation ("Fogerty"); RACHEL
M. FREITAS, an individual; PARSLEY/KENNEDY COMPANY, a California
corporation; and THE DE FREITAS COMPANY, a California corporation
(collectively "Freitas"). As used herein, the term "Defendants"
shall collectively refer to Exxon, Chevron, Fogerty, and Freitas,
and the term "Parties" refers collectively to Plaintiff and
Defendants. Plaintiff and Defendants enter this Agreement with
reference to, and acknowledgment of, the facts recited below:
WHEREAS, there is presently pending in the United States
District Court for the Southern District of California, a lawsuit
entitled First San Diego Properties XX, etc. vs. EXXON COMPANY,
U.S.A., etc., et al., Case No. 93-1429-E (BTM) (hereinafter the
WHEREAS, Plaintiff herein is the plaintiff in the Action and
those parties identified as Defendants herein are named
defendants in the Action;
WHEREAS, the Action pertains to certain real property commonly
referred to as 3148, 3166, and 3194 Midway Drive, City of San
Diego, County of San Diego, State of California (hereinafter the
WHEREAS, the Action involves claims by Plaintiff that the
Subject Property has been contaminated and that Defendants are
responsible for such contamination;
WHEREAS, Defendants, and each of them, dispute Plaintiff's
claims and deny responsibility for such contamination, if any
WHEREAS, Plaintiff is applying to the Underground Storage Tank
Cleanup Fund Program for the State of California ("UST Fund") to
obtain some reimbursement, as permitted by law, for assessment
and remediation of the contamination at the Subject Property;
WHEREAS, Plaintiff had default entered against Freitas (Exhibit
"A") but continued to remain in contact with Freitas regarding
the Action and her required participation in the application to
the UST Fund (Exhibit "B"); WHEREAS, Plaintiff and Defendants wish at this time to avoid
continued litigation pending a decision by the UST Fund on
Plaintiff's application, anticipated to take six months to one
year, and desire to stay the litigation; however, based on the
court's scheduling constraints, the parties agreed to stipulate
to a dismissal without prejudice and enter into this Agreement;
WHEREAS, Plaintiff and Defendants wish further to preserve all
rights, claims, and defenses that each may have concerning the
Action and the alleged contamination of the Subject Property; and
WHEREAS, depending on the decision reached by the UST Fund on
Plaintiff's application, Plaintiff and Defendants wish further to
explore possibilities of settlement of the claims made in the
Action and to avoid the attendant expense and burdens of
continued litigation, but preserve Plaintiff's right to refile
the Action, along with the defendants' defenses, rights, and
privileges, including but not limited to the right to file any
cross-claims, counterclaims or third party claims, as they
presently exist in the Action.
NOW THEREFORE, in recognition of the above-stated recitals of
fact, Plaintiff and Defendants agree as follows:
1. Plaintiff agrees to dismiss the Action, without prejudice,
pending a decision by the UST Fund on Plaintiff's application.
2. Plaintiff agrees to provide reasonable notice to the
Defendants of the filing of the UST Fund application, all
responses or requests received from the UST Fund, and all site
assessment or remediation activities scheduled at the Subject
Property during the pendency of this Agreement.
3. By entering into this Agreement, Defendants do not admit any
liability of any kind or responsibility or obligation for any
contamination on, under, or about the Subject Property or for
cleanup of any such contamination.
4. By entering into this Agreement, Plaintiff does not withdraw
any of the allegations set forth in the first amended complaint,
nor does Plaintiff admit that any applicable statute of
limitations has expired or would expire without this Agreement.
5. Plaintiff and Defendants agree that any and all statutes of
limitations, defenses of estopple, waiver or laches, or any other
time bar defense that one party may have against another party at
the time Plaintiff originally filed the Action, September 20,
1993, are hereby preserved and are not deemed for any reason to
have been waived or modified. 6. Plaintiff and Defendants agree to toll the running of any
applicable statute of limitations or other time bar which pertain
to any claims and/or causes of action which presently exist
relating to the Action. Such tolling period shall extend until
the termination date of this Agreement.
7. Plaintiff and Defendants agree not to assert the defenses of
statute of limitations, estopple, waiver, laches or other time
bar defense based upon delay in re-filing the Action for the
tolling period of this Agreement.
8. Plaintiff agrees not to re-institute litigation against the
Defendants respecting contamination of the Subject Property
before the termination of this Agreement.
9. The effective date of this Agreement shall be the latest
date on which all signatures requested below have been provided.
10. The termination date of this Agreement shall be sixty (60)
days after receipt by Plaintiff of a final determination, after
all applicable appeals, on the UST Fund application. Plaintiff
must provide Defendants notice within ten business days of any
determination by the UST Fund and any applicable appeal of a
11. The parties hereto may extend or modify this Agreement on
mutual consent and in writing.
12. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which shall
constitute one and the same instrument. It shall be necessary to
account for only one fully executed counterpart in proving this
13. All notices provided for under this Agreement shall be
furnished to the undersigned parties and/or their attorneys at
the addresses indicated below. A notice shall be deemed received
by a party if it is: (1) sent by certified mail, return receipt
requested; (2) sent by overnight mail or courier; or (3) hand
14. Except to enforce the terms of this Agreement, or to
respond to assertions about its effect, no Party shall use this
Agreement, or any negotiations leading to it or the negotiation
of its terms, against any other party in the Action, or in any
other lawsuit, hearing or proceeding.
15. This Agreement contains the entire agreement and
understanding of the Parties with respect to the entire subject
matter hereto, and there are no representations, inducements,
promises or agreements, oral or otherwise, not embodied herein.
There are no conditions precedent to the effectiveness of this Agreement other
than as stated herein, and there are no related collateral
agreements existing between the Parties that are not referenced
16. The individuals signing below warrant they are over the age
of eighteen, of sound mind, and are authorized representatives
with authority to sign on behalf of the entities they represent.
17. Nothing contained in this Agreement or in its performance
shall be construed or interpreted as a release, admission, or
waiver by any Party, of any legal right or claim that the Party
may have, other than as governed by this Agreement.
18. This Agreement shall be binding upon and inure to the
benefit of the Parties' respective representatives, successors
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