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XEROX CORPORATION v. Z & R INVESTMENTS INC.

United States District Court, S.D. California


December 14, 2005.

XEROX CORPORATION, Plaintiff,
v.
Z&R INVESTMENTS, INC., Defendant. AND RELATED THIRD PARTY AND CROSS ACTIONS.

The opinion of the court was delivered by: MARILYN HUFF, District Judge

STIPULATION FOR DISMISSAL; ORDER THEREON

The parties hereto hereby stipulate and agree as follows:

  1. This entire action is hereby dismissed with prejudice, including all related third party and cross actions. Notwithstanding the foregoing, however, the court shall retain jurisdiction in this matter with regard only to plaintiff and cross-defendant XEROX CORPORATION'S ("Xerox") first amended complaint to the extent necessary to enter judgment against defendant Z&R INVESTMENTS, INC. ("ZRI"), ZAREH (Kirk) KRIKORIAN ("Krikorian") and/or KAREN S. STOWE ("Stowe") in the event ZRI, Krikorian and/or Stowe fail to fulfill their obligations to Xerox as delineated herein. ZRI and Krikorian shall be collectively referred to as "ZK". 2. In the event ZK fail to strictly comply with the provisions of paragraph 3 hereof, judgment shall be entered in favor of Xerox and against ZK, jointly and severally, in the sum of $67,500.00 (sixty-seven thousand five hundred dollars), less all amounts that are indeed paid by ZK under this stipulation.

  3. Judgment shall not be entered against ZK so long as ZK strictly complies with the following payment schedule:

  ZK shall pay to Xerox the sum of $67,500.00 (sixty-seven thousand five hundred dollars) as follows:

  (a) ZK shall pay to Xerox the sum of $33,750.00 (thirty-three thousand seven hundred fifty dollars) on December 15, 2005;

  (b) ZK shall pay to Xerox the sum of $33,750.00 (thirty-three thousand seven hundred fifty dollars) on February 15, 2006.

  (c) All payments shall be made payable to "Spector & Bennett Trust Account" and forwarded to Xerox's attorneys of record, Spector & Bennett, A Professional Corporation, located at 50 California Street, 15th Floor, San Francisco, California 94111. All payments shall be made by cashier's check only. A tender in any other form shall be deemed hereunder as the equivalent of no tender at all, enabling Xerox to enter judgment as provided for herein. Notwithstanding anything contained herein to the contrary, to the extent there is a default in payment hereunder by ZK, the sum of $67,500.00 (sixty-seven thousand five hundred dollars), less any amounts paid to Xerox hereunder, shall immediately become due and payable by ZK.

  (d) ZK agree to surrender possession of the following equipment (the "Equipment to be Returned) to Xerox no later than December 15, 2005:

EQUIPMENT SERIAL NO.
Xerox Document Centre 470 NEO-125540
  ZK and Xerox agree to reasonably work together to arrange for a mutually agreeable time no later than December 15, 2005 for Xerox to retrieve the Equipment to be Returned at ZK's San Diego, California facility. ZRI, Krikorian and Stowe each hereby waive in favor of Xerox any right, title or interest which they may maintain to the Equipment to be Returned.

  4. In the event Stowe fails to strictly comply with the provisions of paragraph 5 hereof, judgment shall be entered in favor of Xerox and against Stowe, in the sum of $5,000.00 (five thousand dollars), less all amounts that are indeed paid by Stowe under this stipulation.

  5. Judgment shall not be entered against Stowe so long as Stowe strictly complies with the following payment schedule:

  (a) Stowe shall pay to Xerox the sum of $5,000.00 (five thousand dollars) on December 15, 2005.

  (b) Said payment shall be made payable to "Spector & Bennett Trust Account" and forwarded to Xerox's attorneys of record, Spector & Bennett, A Professional Corporation, located at 50 California Street, 15th Floor, San Francisco, California 94111. Said payment shall be made by cashier's check only. A tender in any other form shall be deemed hereunder as the equivalent of no tender at all, enabling Xerox to enter judgment as provided for herein. Notwithstanding anything contained herein to the contrary, to the extent there is a default in payment hereunder by Stowe, the sum of $5,000.00 (five thousand dollars), less any amounts paid to Xerox hereunder, shall immediately become due and payable by Stowe.

  6. A declaration by Xerox's counsel to the effect that a payment was not received as provided for herein shall constitute prima facie evidence of default and shall be deemed sufficient evidence and cause for the court to enter the appropriate judgment forthwith. All counsel shall be served with any application for entry of judgment.

  7. Xerox does not waive its right to declare this stipulation in default by accepting payments subsequent to an earlier default. 8. To the extent ZK fail to surrender the Equipment to be Returned to Xerox by December 15, 2005, judgment shall be entered in favor of Xerox and against ZK, jointly and severally, for possession of the Equipment to be Returned and for any balance of the $67,500.00 amount ZK is to pay to Xerox hereunder then unpaid.

  9. The parties shall each bear their own attorneys' fees and court costs.

  IT IS SO ORDERED.

20051214

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