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Golden Gate Way, LLC, A California Limited Liability Company v. Jeanne Stewart

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA - OAKLAND DIVISION


September 29, 2011

GOLDEN GATE WAY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
JEANNE STEWART, JEANNE'S HAMLIN CLEANERS, JEANNE STEWART DBA HAMLIN CLEANERS, TOMMY LEE STEWART, LEONARD A. GROSS, LEONARD A. GROSS PROFESSIONAL CORPORATION, MARTINO FAMILY TRUST, PAULINE F. KIDWELL AND GERALD MARTINO, TRUSTEES, ESTATE OF RONALD MONROE, DECEASED, ESTATE OF MATTHEW MONROE, DECEASED AND DOES 1-10, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Judge Donna M. Ryu Magistrate Judge of the Federal District

JOINT STIPULATION FOR ORDER RE FURTHER EXTENSION OF TIME TO COMPLETE MEDIATION; [PROPOSED] ORDER Complaint Filed: 9/22/09 [Assigned for All Purposes to Magistrate Judge Donna Ryu] AND RELATED CROSS-CLAIMS AND COUNTER-CLAIMS.

THE PARTIES HEREBY STIPULATE and respectfully request from the Court as 2 follows: 3 Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 5

WHEREAS from October 2010 to January 2011, environmental consultants 7 Environmental Resources Management ("ERM") have performed and completed an on-8 site investigation on the property located at 3421, 3423, and 3425 Golden Gate Way in 9

WHEREAS this is an action primarily arising under the federal Comprehensive 4 §§9601, et seq. 6 Lafayette, California, which Plaintiffs allege is consistent with the Workplan that ERM 10 submitted to the San Francisco Bay Regional Water Quality Control Board ("RWQCB") 11 on March 6, 2009, and which the RWQCB approved; 12

WHEREAS ERM's on-site investigation consisted of further collection and analysis 13 of soil vapor and groundwater samples, and installation and analysis of monitoring wells, 14 just to name a few, with the objective of characterizing the occurrence of volatile organic 15 compounds ("VOCs") in the relevant property's soil and groundwater and evaluate the 16 potential for migration of VOCs into indoor air and groundwater; 17

WHEREAS in July 2011 the Regional Water Quality Control Board ("RWQCB") 18 issued a draft Tentative Order, ordering the dischargers named in the order to conduct 19 the following activities, among others: operate the soil vapor extraction ('SVE") to 20 address human health risks; conduct quarterly monitoring and sampling of groundwater 21 wells and soil vapor probes; define the lateral extent of contamination in groundwater, 22 including sampling of (i) the adjacent property where an apartment building is located; 23 and (ii) property south of Lafayette Creek; conduct indoor air sampling in buildings 24 underneath the groundwater plume; and propose and implement a remedial action plan; 25 2011 ("Court's CMC Order"), the Court ordered the Parties to participate in mediation 27 through the Northern District of California ADR Program, and to complete mediation on or 28 before September 30, 2011;

WHEREAS pursuant to the Court's CMC Order, on or about August 17, 2011, the 2 Parties agreed to participate in mediation on September 27, 2011, using Mr. Lester Levy 3 of JAMS as mediator. In attempting to schedule the mediation, Plaintiff Golden Gate 4 "Plaintiffs") , through their counsel attempted several times to contact Defendant Gross to 6 remind him of his obligation to participate in mediation pursuant to the Court's CMC 7

WHEREAS the RWQCB's draft Tentative Order named Defendant Leonard Gross 9 as a "discharger" under the Porter-Cologne Act; 10

Plaintiffs to inform counsel that he could not and will not participate in the mediation due 12 to health reasons. Plaintiffs' counsel reminded Defendant Gross that he was indeed 13 ordered by the Court to participate in mediation and that if he could not physically 14 participate in mediation, it is recommended that he retain counsel or have an authorized 15 agent on his behalf appear for the mediation with authority to achieve settlement on his 16 behalf; 17

WHEREAS on September 8, 2011, Defendant Gross, through a letter from his 18 son, informed the Court and Parties that he would not participate in mediation scheduled 19 for September 27, 2011; 20

Jeanne's Hamlin Cleaners, Jeanne Stewart dba Hamlin Cleaners, and Tommy Lee 22 Stewart, believe that Defendant Gross is a significant potentially responsible party to this 23 action and is therefore a vital party to any settlement in this action; 24

WHEREAS on September 19, 2011, the Parties except Defendant Gross 25 participated in a conference call with the mediator Lester Levy. Two days later, on 26 Usak, who informed the Parties that after Mr. Levy spoke with the ADR Program clerk, 28

JOINT STIPULATION FOR ORDER RE FURTHER EXTENSION OF TIME TO COMPLETE MEDIATION;

[PROPOSED] ORDER

Way LLC and Cross-defendant William Peacock and Yolanda Peacock (collectively 5 Order; 8

WHEREAS sometime in late August 2011, Defendant Gross contacted counsel for 11

WHEREAS the Parties, particularly Plaintiffs and Defendants Jeanne Stewart, 21 September 21, 2011, the Parties received a letter from Mr. Levy's case assistant, Patricia 27 Ms. Robin Seifkin, it has been suggested that the mediation should be postponed due in large part to Defendant Gross' inability or failure to participate; 2

WHEREAS on a conference call among and between the Parties (except 3 Parties submit either an ex parte motion to continue the hearing or a joint stipulation to do 5 the same, assuming the Parties are able to obtain Mr. Gross' consent to stipulate; and 6

WHEREAS on September 27, 2011, counsel for Plaintiffs spoke over telephone 7 with Defendant Gross and during this conversation Defendant Gross represented that he 8 does not object to continuing the mediation deadline as proposed in this Stipulation. 9

Defendant Gross) and Ms. Seifkin on September 26, 2011, it was decided that the 4 NOW, THEREFORE, IT IS HEREBY STIPULATED by and between the Parties- 10 and the Parties hereby respectfully request that the Court enter as its order-the 11 following: 12 (2) The Parties shall participate in mediation and the time to complete 14 mediation in this action is extended up to and including November 30, 2011; 15

Court's ADR Program; 17

18 completion of mediation on or before November 18, 2011, "discovery shall be limited to 19 written discovery, plus depositions as follows: the parties may take 1 deposition per party 20 group (e.g., one deposition may be taken of the Hamlin/Stewart party group, Martino 21 party group, etc., for a total of five depositions."

23 previously imposed discovery limitations shall be deemed lifted; and 24 25 mediation briefs that will be set by the mediator, Plaintiffs shall provide detailed cost 26 information to each party in the form of a spreadsheet setting forth investigative costs 27

(incurred and future), costs of remediation (incurred and future), and projected costs for 28 future monitoring, to the extent these amounts differ from the cost information provided

(1) The mediation deadline date of September 30, 2011 is vacated;

(3) The parties are directed to seek a new mediation date through the

(4) Consistent with the Court's CMC Order dated July 13, 2011, prior to

(5) Consistent with the Court's CMC Order, as of December 1, 2011, all

(6) At least 10 days in advance of the due date for the submission of

by Plaintiff to the Parties in preparation for the mediation previously set for September 27, 2 2011.

SIGNATURES UNDER GENERAL ORDER NO. 45

Pursuant to General Order No. 45 of the United States District Court Northern 5 District of California, I, John T. Cu, the ECF User whose User ID and Password are used 6 in the filing of this document hereby attest that the concurrence of the filing of this 7 document has been obtained from each of the other signatories to this document. 8

TES DISTRI A CT S

PURSUANT TO STIPULATION, IT IS SO ORDERED.

E R T T I N IT IS SO ORDERED U AS MODIFIED IA

A

DATED this ____ day of ___________, 2011

Honorable Donna Ryu Court for the Northern District of California

20110929

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