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FIRST SAN DIEGO PROPERTIES XX v. EXXON COMPANY

United States District Court, S.D. California


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 contamination, if any exists;

  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 decision.

  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 Agreement.

  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 delivered.

  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 herein.

  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 and assigns.

20051005

© 1992-2005 VersusLaw Inc.



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