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Estate of Renzel v. Estate of Ventura

United States District Court, N.D. California, Oakland Division

July 17, 2019

ESTATE OF ROBERT RENZEL, DECEASED et al., Plaintiffs,
v.
ESTATE OF LUPE VENTURA, DECEASED, et al., Defendants. AND RELATED COUNTERCLAIMS AND CROSSCLAIM.

          BRET A. STONE KIRK M. TRACY PALADIN LAW GROUP® LLP COUNSEL FOR ESTATE OF ROBERT RENZEL, DECEASED, BY AND THROUGH HIS SUCCESSORS IN INTEREST, SUSAN CARTER AND ANN RENZEL SEBASTIAN; ROBERT E. RENZEL TRUST, BY AND THROUGH ITS TRUSTEES, SUSAN CARTER AND ANN RENZEL SEBASTIAN; SUSAN CARTER; ANN RENZEL SEBASTIAN; AND BASCOM AVENUE DEVELOPMENT LLC

          [PROPOSED] ORDER ON JOINT APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT AND ESTABLISHMENT OF THE BASCOM REMEDIATION TRUST

         The Joint Application of Plaintiffs and Counter-Defendants Estate of Robert Renzel, Deceased, by and through his successors in interest, Susan Carter and Ann Renzel Sebastian; Robert E. Renzel Trust, by and through its trustees, Susan Carter and Ann Renzel Sebastian; Susan Carter; Ann Renzel Sebastian; and Bascom Avenue Development LLC, a California limited liability company (collectively, “Renzel”), and Defendants, Counter-Claimants, and Cross-Claimants Carmen Torres and Alfredo Torres (collectively, “Torres”) (Renzel and Torres are collectively referred to as the “Settling Parties”), and related papers were submitted to the Court on June 18, 2019.

         The Court, after considering the Joint Application and related papers, hereby finds:

1. The settlement agreement that is the subject of the Joint Application (the “Agreement”) satisfies the requirements of Code of Civil Procedure (“C.C.P.”) section 877.6 and of Tech-Bilt Inc. v. Woodward Clyde & Associates (1985) 39 Cal.3d 488 and its progeny;
2. The Settling Parties are, concerning the facts and circumstances giving rise to this lawsuit and concerning the lawsuit itself, therefore entitled to the protections of C.C.P. section 877.6 barring any other joint tortfeasor or co-obligor from any further claims against them for equitable comparative contribution, or partial or comparative indemnity, based upon comparative negligence or comparative fault; and
3. The Settling Parties are, therefore, by this Order granted such protection to the fullest extent authorized by C.C.P. section 877.6 as interpreted by Tech-Bilt and its progeny.

         Further, the Court finds that the Bascom Remediation Trust should be, and hereby is, established as a “Qualified Settlement Fund” or “Designated Settlement Fund” pursuant to section 468B of the Internal Revenue Code, 26 U.S.C. § 468B, and Treasury Regulation Section 1.468B-1 (26 C.F.R. 1.468B-1), and in accordance with the terms and conditions of the Declaration of Trust for the Bascom Remediation Trust, attached hereto as Exhibit A and incorporated by reference as though fully set forth herein. The Court shall retain jurisdiction over the Bascom Remediation Trust until Site Closure is obtained or until the Trust Funds are exhausted.

         IT IS SO ORDERED

         EXHIBIT A

         DECLARATION OF TRUST FOR THE BASCOM REMEDIATION TRUST

         This Declaration of Trust for the Bascom Remediation Trust is entered into by Renzel as a result of a settlement in the Action. The Bascom Remediation Trust is established by Court Order consistent with 26 C.F.R. § 1-468B.

         1 Definitions

         Words used in this Trust Declaration are to be taken and understood in their normal and ordinary sense, unless this Trust Declaration indicates that a different meaning is intended. Whenever the following terms, appearing in bold, are used in this Trust Declaration, the meanings of this section apply.

         1.1 “Action” means the lawsuit pending in the United States District Court, Northern District of California, entitled Estate of Robert Renzel, Deceased, et al. v. Estate of Lupe Ventura, et al., Case No. 4:15-cv-1648-HSG, including all counterclaims and cross-claims.

         1.2 “Business Day” means a day on which commercial banks are not authorized or required to close in San Jose, California.

         1.3 “Court” means the United States District Court, Northern District of California in the Action.

         1.4 “Court Order” means the order of the United States District Court, Northern District of California which approves the creation of the Trust.

         1.5 “Effective Date” means the entry of the Court Order creating the Trust.

         1.6 “Renzel” means plaintiffs and counter-defendants Estate of Robert Renzel, Deceased, by and through his successors in interest, Susan Carter and Ann Renzel Sebastian; Robert E. Renzel Trust, by and through its trustees, Susan Carter and Ann Renzel Sebastian; Susan Carter; Ann Renzel Sebastian; and Bascom Avenue Development LLC, or their assignee.

         1.7 “Bascom Remediation Trust” or “Trust” means the entity to be created pursuant to this Trust Declaration upon entry of the Court Order.

         1.8 “Property” means the real property located at 526 S. Bascom Avenue, San Jose, California.

         1.9 “Torres” means Carmen and Alfredo Torres.

         1.10 “Settling Parties” refers to Renzel and Torres.

         1.11 “Settling Party” means one of the Settling Parties.

         1.12 “Site” means the Property and areas to which the PCE contamination has migrated outside the boundaries of the Property.

         1.13 “Site Closure” means:

         1.13.1.1 Certification by the Trustee that all required remedial actions have been completed for the Site; and

         1.13.1.2 Confirmation by the Court of the Trustee's certification that all required remedial actions have been completed; or

         1.13.1.3 Issuance of a writing by the regulatory agency with jurisdiction over the remedial efforts that no further remedial action is required at the Site.

         1.14 “Transferor” mean a person or entity who qualifies as a “transferor” under 26 C.F.R. Section 1-468B.

         1.15 “Trust” means the Bascom Remediation Trust. The purpose of the Trust is to collect and disburse amounts for environmental remediation (as defined in 26 C.F.R. Section 301.7701- 4(e)(1)) of the Site, which is an existing waste site, to resolve, satisfy, mitigate, address, or prevent the liability or potential liability of persons imposed by federal, state, or local environmental laws.

         1.16 “Trust Declaration” means this Declaration of Trust for the Bascom Remediation Trust.

         1.17 “Trustee” means Bret A. Stone, or any successor trustee.

         2 Recitals

         2.1 WHEREAS, the Trust will be established by Court Order approving this Trust Declaration.

         2.2 WHEREAS, Renzel wishes to retain the Trustee, and the Trustee wishes to be retained as trustee of the Trust in accordance ...


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