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FIRST SAN DIEGO PROPERTIES XX v. EXXON COMPANY

October 5, 2005.

FIRST SAN DIEGO PROPERTIES XX, a California Limited Partnership, Plaintiff,
v.
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 purpose stated.

  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 "Action");

  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 "Subject Property");

  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 ...


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