stipulation re remand of case dismissal of defendants stilwell and paul and withdrawal of anti-slapp...

8/11/2019 STIPULATION RE REMAND OF CASE DISMISSAL OF DEFENDANTS STILWELL AND PAUL AND WITHDRAWAL OF ANTI-SL

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28STRADLING YOCCACARLSON &RAUTH

L AW YE R SNE W POR T BEACH STIPULATION RE REMAND, DISMISSAL AND WITHDRAWAL (5:14-cv-03084 (RMW), (HRL).)

DOCSOC/1676235v2/102910-0006

JEFFREY A. DINKIN, SBN 111422

[email protected]

ALLISON E. BURNS, SBN 198231

[email protected]

DAVID C. PALMER, SBN 251609

[email protected] YOCCA CARLSON & RAUTHA Professional Corporation

800 Anacapa Street, Suite ASanta Barbara, California 93101

Telephone: (805) 730-6800

Facsimile: (805) 730-6801

Attorneys for Defendants, CITY OFCARMEL-BY-THE SEA; JASON

STILWELL; SUSAN PAUL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE

STEVEN MCINCHAK

Petitioner/Plaintiff,

v.

CITY OF CARMEL-BY-THE-SEA,

JASON STILWELL, CITYADMINISTRATOR OF THE CITY OF

CARMEL-BY-THE-SEA, SUSANPAUL, ADMINISTRATIVE

SERVICES DIRECTOR OF THECITY OF CARMEL-BY-THE-SEA;

and DOES 1 through 50, inclusive,

Defendants.

CASE NO. 5:14-cv-03084 (RMW),(HRL)

STIPULATION RE REMAND OF

CASE, DISMISSAL OF

DEFENDANTS JASON STILWELL

AND SUSAN PAUL AND

WITHDRAWAL OF ANTI-SLAPP

MOTION

Action Filed: June 4, 2014

Trial Date: Not Set

Case5:14-cv-03084-RMW Document16 Filed08/15/14 Page1 of 6


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STRADLING YOCCACARLSON &RAUTH

L AW YE R SNE W POR T BEACH STIPULATION RE REMAND, DISMISSAL AND WITHDRAWAL (5:14-cv-03084 (RMW), (HRL).)DOCSOC/1676235v2/102910-0006

This Stipulation is entered into and between plaintiff Steven McInchak

(Plaintiff) and defendants Jason Stilwell (Mr. Stilwell), Susan Paul (Ms.

Paul) and the City of Carmel-by-the-Sea (City) (referred to herein collectively

as Defendants), through their undersigned counsel. The parties hereby stipulate

to the following:

WHEREAS, Plaintiff filed a Motion to Remand Case to State Court on August

1, 2014;

WHEREAS, Defendants filed a Motion to Strike Certain Claims of Plaintiffs

Petition-Complaint Pursuant to California Code of Civil Procedure Section 425.16

(Anti-SLAPP Motion) on August 1, 2014;

WHEREAS, Defendants find it agreeable to remand this action to state court

and withdraw the Anti-SLAPP Motion in exchange for Plaintiff agreeing to (i)

dismiss Mr. Stilwell and Ms. Paul entirely from this action, without prejudice; and

(ii) amend Plaintiffs Petition-Complaint filed on June 4, 2014 (Original

Complaint) to delete certain language alleging violations of federal law and the

U.S. Constitution.

THEREFORE, IT IS HEREBY STIPULATED AND AGREED AS

FOLLOWS:

1. Plaintiff and Defendants agree to an order of the Court remanding the above-

captioned action to the Superior Court of California, Monterey County.

2.

Within 20 court days after the federal court clerk issues the order of remand

to the clerk of the Superior Court of California, Monterey County (Notice

of Remand), Plaintiff shall dismiss Mr. Stilwell and Ms. Paul from the

above-captioned action, without prejudice, by filing requests for dismissal



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L AWYERS NE W POR T BE AC H

-2-

STIPULATION RE REMAND, DISMISSAL AND WITHDRAWAL(5:14-cv-03084 (RMW), (HRL).)DOCSOC/1676235v2/102910-0006

substantially in the form of Exhibit Aand Exhibit B attached hereto.

3.

Within 20 court days after the Notice of Remand, Plaintiff shall file an

amended complaint in this action, which amended complaint shall have

deleted all language related to federal law and the United States Constitution

located in paragraph 18, at page 7, lines 25 through 26 of the Original

Complaint but shall otherwise be identical to the Original Complaint.

4. Within 20 court days after the Notice of Remand, Defendants shall withdraw

their Anti-SLAPP Motion without prejudice.

5.

Nothing in this stipulation or Defendants withdrawal of their Anti-SLAPP

Motion shall be construed as a waiver of any right, cause of action or

defense by any party.

6. This stipulation may be executed in multiple parts, each of which when so

executed shall be deemed an original and all of which taken together shall

constitute one and the same stipulation.

DATED: August 15, 2014 STONER WELSH & SCHMIDT

By: /s/ Michelle WelshMichelle Welsh

Attorney for PlaintiffSTEVEN MCINCHAK



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L AWYERS NE W POR T BE AC H

-3-

STIPULATION RE REMAND, DISMISSAL AND WITHDRAWAL(5:14-cv-03084 (RMW), (HRL).)DOCSOC/1676235v2/102910-0006

DATED: August 15, 2014 STRADLING YOCCA CARLSON &RAUTHA Professional Corporation

By: /s/ Allison E. BurnsJeffrey A. Dinkin

Allison E. BurnsDavid C. Palmer

Attorneys for DefendantsCITY OF CARMEL-BY-THESEA; JASON STILWELL; SUSANPAUL



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L AWYERS

NE W POR T BE AC HSERVICE LIST

DOCSOC/1676235v2/102910-0006

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CERTIFICATE OF SERVICE

I certify that on August 15, 2014 the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered

users or, if they are not, I hereby certify that a true and correct copy was served inthe manner set forth below:

BY EMAIL: by transmitting via electronic mail the document(s) listed

above to the email address(es) set forth below. BY FACSIMILE: by transmitting via facsimile the document(s) listed

above to the facsimile number(s) set forth below. I certify that saidtransmission was completed without error and that a report was generated by

facsimile machine (949) 725-4100 which confirms said transmission.

BY OVERNIGHT DELIVERY: by placing the document(s) listed abovein a sealed envelope with postage thereon fully prepaid, and delivering viaovernight courier and addressed as set forth below, respectively.

BY MAIL: by placing the document(s) listed above in a sealed envelope

with postage thereon fully prepaid, in the United States Mail in NewportBeach, California, addressed as set forth below.

BY PERSONAL DELIVERY: by causing personal delivery byNationwide Legal, Inc. of the document(s) listed above to the person(s) at

the address(es) set forth below

SEE ATTACHED SERVICE LIST

I am readily familiar with the firms practice of collection and processingcorrespondence for mailing. Under that practice it would be deposited with the

U.S. Postal Service on that same day with postage thereon fully prepaid in theordinary course of business. I am aware that on motion of the party served, serviceis presumed invalid if postal cancellation date or postage meter date is more than

one day after the date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the United States and theState of California that the above is true and correct.

Executed on August 15, 2014, at Newport Beach, California.

/s/ Alicia C. ElamAlicia C. Elam



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L AWYERS

NE W POR T BE AC HPROOF OF SERVICE

DOCSOC/1676235v2/102910-0006

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SERVICE LIST

Steven McInchak v. City of Carmel-by-the-Sea, et al.

Monterey County Superior Court Case No. M128062

Michelle A. Welsh

Stoner, Welsh & Schmidt413 Forest AvenuePacific Grove, CA 93950-4201

Telephone: (831) 373-1993Facsimile: (831) 373-1492

Attorney for Plaintiff/Petitioner

STEVEN MCINCHAK



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Page 4

Case5:14-cv-03084-RMW Document16-1 Filed08/15/14 Page1 of 6

EXHIBIT


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Page 6


PLAINTIFF/PETITIONER:

MCINCHAK

CASE NUMBER:

DEFENDANT/RESPONDENT: CITY OF

CARMEL-BY-THE-SEA, ET AL.

M128062

COURT'S RECOVERY OF WAIVED COURT FEES AND COSTS

If a party whose court fees and costs were initially waived has recovered or will recover 10,000 or

more in value by way of settlement, compromise, arbitration award, mediation settlement, or other

means, the court has a statutory lien

on

that recovery. The court may refuse to dismiss the case until

the lien is satisfied. (Gov. Code 68637.)

Declaration Concerning Waived Court Fees

1.

The

court waived court fees and costs in this action for name):

2. The person named in item 1 is check one below):

a.

0

not recovering anything

of

value by this action.

b. 0

recovering less than 10,000 in value by this action.

c. 0

recovering 10,000 or more in value by this action. If tem

c

is checked, item 3

must

be completed.)

3. 0

All court fees and court costs that were waived in this action have been paid to the court

check one): 0

Yes

I declare under penalty of perjury under the laws of the State of California that the information above is true and correct.

Date:

(TYPE OR PRINT NAME OF D ATIORNEY D PARTY MAKING DECLARATION)

S IGNATURE)

CIV-110 [Rev. January 1, 2013]

REQUEST FOR DISMISSAL

CIV 110

No

a

g

a of

2

Ameriun LegalNet lnc.

fprmsWorkF ow.com


10/16

Page 7


EXHI IT


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PLAINTIFF/PETITIONER:

MCINCHAK

CASE NUMBER:

DEFENDANT/RESPONDENT: CITY

OF CARMEL-BY-THE-SEA, ET AL.

M128062

COURT S RECOVERY OF WAIVED COURT FEES AND COSTS

If a party whose cour t fees and costs were initially waived has recovered or wi ll recover 10,000 or

more in value by way

of

settlement. compromise, arbitration award, mediation settlement, or other

means, the court has a statutory lien on that recovery. The court may refuse to dismiss

the

case until

the lien is satisfied . (Gov. Code, 68637.}

Declaration Concerning Waived Court Fees

1.

The

court waived court fees and costs in this action for

name):

2. The person named in item 1

is

check one below):

a.

D

not recovering anything of value by this action.

b. D recovering less than 10,000 in value by this action.

c. D recovering 10,000 or more in value by this action. If tem

c

is checked, item 3 must be completed.)

3. D All court fees and court costs that were waived in this action have been paid to the cou

rt

check one): D Yes

I declare under penalty of perjury under the laws of the State of California that the information above is true and correct.

Date:

(TYPE

OR

PRINT NAME OF

D ATIORNEYD

PARTY MAKING DECLARATION)

SIGNAT

URE

)

CIV-110[Rev. January 1,

2 131

REQUEST FOR DISMISSAL

CIV-110

o

Page of

AmeriunLega Net, Inc. P

www FOf sWor

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ow.com

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28STRADLING YOCCACARLSON &RAUTH

L AWYERS

NE W POR T BEACH [PROPOSED] ORDER REMANDING ACTION PER STIPULATION (5:14-cv-03084 (RMW), (HRL).)

DOCSOC/1676259v1/102910-0006

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE

STEVEN MCINCHAK

Petitioner/Plaintiff,

v.

CITY OF CARMEL-BY-THE-SEA,JASON STILWELL, CITY

ADMINISTRATOR OF THE CITY OFCARMEL-BY-THE-SEA, SUSAN

PAUL, ADMINISTRATIVE

SERVICES DIRECTOR OF THECITY OF CARMEL-BY-THE-SEA;and DOES 1 through 50, inclusive,

Defendants.

CASE NO. 5:14-cv-03084 (RMW),

(HRL)

[PROPOSED] ORDER

REMANDING ACTION TO STATE

COURT PER STIPULATION

Action Filed: June 4, 2014

Trial Date: Not Set



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L AWYERS NE W POR T BEACH [PROPOSED] ORDER REMANDING ACTION PER STIPULATION (5:14-cv-03084 (RMW), (HRL).)DOCSOC/1676259v1/102910-0006

The STIPULATION RE REMAND OF CASE, DISMISSAL OF

DEFENDANTS JASON STILWELL AND SUSAN PAUL AND

WITHDRAWAL OF ANTI-SLAPP MOTION (Stipulation), filed concurrently

herewith, having been jointly executed by and among Plaintiff Steven McInchak

on the one hand, and Defendants Jason Stilwell, Susan Paul and the City of

Carmel-by-the Sea on the other, and good cause appearing therefor,

IT IS HEREBY ORDERED THAT:

1. The Stipulation be entered.

2.

Pursuant to the Stipulation, the above-captioned action is hereby remanded

to the Superior Court of California, Monterey County. The federal court

clerk is ordered to send a certified copy of this order of remand to the clerk

of the Superior Court of California, Monterey County.

IT IS SO ORDERED.

DATED: ______________

________________________________

JUDGE OF THE UNITED STATES

DISTRICT COURT NORTHERNDISTRICT OF CALIFORNIA



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STRADLING YOCCA

CARLSON &RAUTH L AWYERS


DOCSOC/1676259v1/102910-0006

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CERTIFICATE OF SERVICE

I certify that on August 15, 2014 the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered

users or, if they are not, I hereby certify that a true and correct copy was served inthe manner set forth below:

BY EMAIL: by transmitting via electronic mail the document(s) listed

above to the email address(es) set forth below. BY FACSIMILE: by transmitting via facsimile the document(s) listed

above to the facsimile number(s) set forth below. I certify that saidtransmission was completed without error and that a report was generated by

facsimile machine (949) 725-4100 which confirms said transmission.

BY OVERNIGHT DELIVERY: by placing the document(s) listed abovein a sealed envelope with postage thereon fully prepaid, and delivering viaovernight courier and addressed as set forth below, respectively.

BY MAIL: by placing the document(s) listed above in a sealed envelopewith postage thereon fully prepaid, in the United States Mail in Newport

Beach, California, addressed as set forth below. BY PERSONAL DELIVERY: by causing personal delivery by

Nationwide Legal, Inc. of the document(s) listed above to the person(s) atthe address(es) set forth below

SEE ATTACHED SERVICE LIST

I am readily familiar with the firms practice of collection and processing

correspondence for mailing. Under that practice it would be deposited with theU.S. Postal Service on that same day with postage thereon fully prepaid in the

ordinary course of business. I am aware that on motion of the party served, serviceis presumed invalid if postal cancellation date or postage meter date is more than

one day after the date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the United States and theState of California that the above is true and correct.

Executed on August 15, 2014, at Newport Beach, California.

/s/ Alicia C. ElamAlicia C. Elam



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STRADLING YOCCA

CARLSON &RAUTH L AWYERS


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SERVICE LIST

Steven M cInchak v. City of Carmel-by-the-Sea, et al.

Monterey County Superior Cour t Case No. M128062

Michelle A. Welsh

Stoner, Welsh & Schmidt413 Forest AvenuePacific Grove, CA 93950-4201

Telephone: (831) 373-1993Facsimile: (831) 373-1492

Attorney for Plaintif f/Petitioner

STEVEN MCINCHAK


stipulation re remand of case dismissal of defendants stilwell and paul and withdrawal of anti-slapp...

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