1982-102-Authoring Abandonment Of Appeal Without PrejudiceRESOLUTION NO. 1.982 -102
RESOLUTION AUTHORIZING ABANDONMENT OF APPEAL
WITHOUT PREJUDICE
WHEREAS: k
1. The Town and the Midpeninsula Regional Open
Space District (MROSD) have entered into a Joint Powers
Agreement (JPA) to acquire portions of the Novitiate property;
2. The original JPA called for an eminent domain
action to be filed in the name of the Town alone, and the
Town did so in Santa Clara County Superior Court Action
7o. 474775, but a demurrer was sustained without leave to
amend based on the fact that the land is not located in the
Town.
3. In order to expedite the joint program of
acquisition, the JPA was amended to allow the District to
file another action in its own name, Santa Clara County
Superior Court Action No. 485442. however, the parties also
agreed to appeal the judgment in the Town action, not for the
purpose of continuing their attempt to acquire the property
in that action, but solely for the purpose of arguing the
theoretical right to condemn only insofar as it bears on the
award of costs and attorney's fees.
4. If the Jesuits obtained a stay in the District
action pending final resolution of the Town action, which
has now been set aside on condition that the Town adopt a
resolution authorizing the filing of an abandonment of the
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appeal in the Town action without prejudice, in the form
set forth in Exhibit "A" attached hereto.
THE TOWN COUNCIL THEREFORE RESOLVES:
The attorneys for the Town and District are hereby
authorized to abandon the appeal in action no. 474775 on the
issue of the Town's attempt to acquire the defendant's property,
said abandonment to take the form set forth in Exhibit "A"
attached hereto.
PASSEL at a regular meeting of the Town Council
of the Town of Los Gatos held on the 18th day of
, 1982, by the following vote:
AYES: COUNCILMEMBERS Ruth Cannon, Brent 11:
uentura,and Peter W. Siemens
NOES: COUNCILMEMBERS MarLyr. J. Rasmussen
ABSTAIN: COUNCILT4EIMBERS None
ABSENT: COUNCILMEM.BERS Thomas J. Ferrito
ATTEST:
Clerk, Town of Los G3, s
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SIGNED
.ayor, Town of Los Gatos
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GERALD Z. tER, Esq.
KEOGH, MARER & FLICKER
P.O. Box 840
Palo Alto, CA 94302
(415) 321 -0947
STANLEY R. NORTON,Esq.
407 Sherman Avenue
Palo Alto, CA 94104
(415) 324 -1366
JOHN H. TALLETT, Esq.
ROGERS, VIZZARD & TALLETT
369 Pine Street
San Francisco, CA 94104
(415) 981 -2470
Attorneys for Plaintiff- Appellant,
TOWN OF LOS GATOS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
TOWN OF LOS GATOS, a
municipal corporation,
Plaintiff-
Appellant,
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wH, MARER & FLICKER
.rmaxeve .1 1AA
o. eox e
ALTO, CAL".`94302
(4151 321 -0940
CALIFORNIA PROVINCE OF
THE SOCIETY OF JESUS,
Defendant -
Respondent
NO. 474775
VOLUNTARY ABANDONMENT PURSUANT TO CALIFORNIA
RULE OF COURT 19(a), WITHOUT PREJUDICE TO ANOTHER
APPEAL, OF' THE APPEAL FROM THAT PART OF THE JUDGMENT
ON THE MERITS FILED ON 1 SEPTEMBER 1981, DISMISSING
THE COMPLAINT AND THE ENTIRE ACTION WITH PREJUDICE
APPELLANT TOWN OF LOS GATOS HEREBY ABANDONS, without prejudi
to another appeal, its appeal from those parts of the Judgment
filed on 1 September 1981 as set forth on page 2, lines 1 through
6 and lines 7 and 8 as follows:
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H. MAKER 6 FLICKER
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
plaintiff does not have the right to exercise the
power of eminent domain to acquire the property
described in the Complaint herein for the purposes
stated in the Complaint and since said defendant
is therefore entitled to a judgment of dismissal
against this plaintiff, this action is hereby
dismissed with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
plaintiff shall 'cake nothing by its Complaint in
this action..."
Notice of Appeal. from the above judgment was filed on 13
October 1981; the record on appeal has not yet been filed in the
Court of Appeal.
This abandonment does not abandon, is not intended to effect,
anD is without prejudice to Appellant's pursuing its appeal from
so much of the same judgment filed 1 September 1.981, as set forth
on page 2, lines 7 through 13 as follows:
"...that defendant CALIFORNIA PROVINCE OF THE SOCIETY
OF JESUS, a California corporation, shall. recover from
plaintiff herein said defendant's costs and its
litigation expenses as defined in California Code of
Civil Procedure X1235.140 and as provided in California
Code of Civil Procedure 81268.610..."
Appellant, TOWN OF LOS GATOS, through its attorneys of record
ROGERS, VIZZARD & 1'AhLETI', represents vents to the Court that it will
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not seek to revive that part of the appeal now abandoned provided
that Santa Clara County Superior Court Action No. 485442, MID -
PENINSULA REGIONAL OPEN SPACE DISTRICT vs. CALIFORNIA PROVINCE OF
THE SOCIETY OF JESUS, is allowed by the Court to proceed according
to law, pursuant to California Code of Civil Procedure §1260.010,
and that this Court's 30 March 1982 Order staying action No.
48544:2 is vacated.
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GH, MARER 5 FLICKER
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ADZ, Cwu F. 96302
<is :�zi.n vxv
This abandonment also does not abandon, is not intended in
any way to affect, and is without prejudice to Appellant's
pursuing its appeal in this action pursuant to its Notice of Appeal
filed on 8 January 1982.
Appellant reserves the right to argue, on both appeals, that
the TOWN OF LOS GATOS does have authority to condemn the
Defendant's real property herein, pursuant to the Joint Powers
Agreement but only insofar as that argument bears upon the award
of attorneys' fees to Defendant by this Court.
In further explanation of and reason for this voluntary
abandonment, Appellant refers herein to the Declaration dated
23-April 1982 of John H. Tallett and the Declaration dated
23 April 1982 of L. Craig Britton, filed in Action No. 485442,
copies of which are attached hereto and incorporated herein by
reference.
Dated: 23 April 1982 ROGERS, VIZZARD & TALLETT
Palo Alto, California STANLEY R. NOTRON
KEOGH, NARER & FLICKER
Attorneys for Plaintiff -
Appellant, TOWN OF .LOS GATOS
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