The opinion of the court was delivered by: The Honorable Edward M. Chen United States Magistrate Judge
STIPULATION AND [PROPOSED] ORDER RE STONEBRAE L.P.'S PARTIAL SUMMARY JUDGMENT MOTION (DKT. # # 149 -151) Trial Date: February 28, 2010
Plaintiff and Counter-Defendant Stonebrae L.P. ("Stonebrae) and Defendant and Counter-Claimant Toll Bros., Inc. ("Toll"), by and through their respective attorneys of record, hereby stipulate and agree as follows:
1. On or about February 16, 2010, Stonebrae filed a motion for partial summary judgment. (Dkt. ## 149-151.) That motion addresses four issues: (i) construction of a permanent clubhouse; (ii) reduction of 3.25 acres of public park spaces;
(iii) construction of "high quality amenities"; and (iv) issuance by the City of Hayward to Toll of 10 building permits. (Dkt. # 149, at p. 1.)
2. The Court continued the hearing on the motion to May 12, 2010.
3. On April 8, 2010, the Court issued its ruling on Stonebrae's motion to dismiss Toll's Counterclaim for breach of the implied covenant of good faith and fair dealing. (Dkt. # 164.)
4. On April 15, 2010, Toll's counsel wrote Stonebrae's counsel advising that Toll was no longer pursuing a claim that Stonebrae breached the Village B Purchase Agreement based on the reduction of 3.25 acres of public parks or the City of Hayward's failure to issue 10 building permits by the scheduled closing date. A true and correct copy of Toll's April 15, 2010 letter is attached hereto as Exhibit A.
5. Toll's withdrawal of its claim that the reduction in the public park space or the City's failure to issue 10 building permits was an event of default entitling Toll to terminate the Village B Purchase Agreement moots those issues in Stonebrae's pending motion for partial summary judgment. (Dkt. # 149.)
6. With respect to the remaining two issues (i.e., construction of a permanent clubhouse or other "high quality amenities"), in light of the Court's ruling on Stonebrae's motion to dismiss (Dkt. # 164), Stonebrae agrees to withdraw its motion for partial summary judgment as to those issues, without prejudice to its right to move for partial summary judgment on these issues at a future date.
7. This Stipulation resolves Stonebrae's pending motion for partial summary judgment. (Dkt. # 149.)
Having considered the foregoing Stipulation, and good cause appearing in support thereof,
IT IS HEREBY ORDERED that the parties' Stipulation is approved.
IT IS FURTHER ORDERED that Stonebrae's pending motion for partial summary judgment is decided on the basis set forth in the Stipulation, and the ...