1982-104-Authorizing Abandonment Of Appeal Without PrejuduceWHEREAS:
RESOLUTION NO. 1982 -lo4
RESOLUTION AUTHORIZING ABANDONMENT OF APPEAL
WITHOUT PREJUDICE
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 No. 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. 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 appeal in the Town action without prejudice, in the form
set forth in Exhibit "A" attached hereto.
THE TOWN COUNCIL THEREFORE RESOLVES:
1. Resolution No. 1982 -102 is hereby rescinded.
2. 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.
PASSED at a special called meeting of the Town Council
of the Town of Los Gatos held on the 26th day of
1982, by the following vote:
AYES:
COUNCIL
MEMBERS
Ruth Cannon, Thomas J. Ferrito,
Brent N.
Ventura and Peter W. Siemens
NOES:
COUNCIL
MEMBERS
Marlyn J. Rasmussen
ABSTAIN:
COUNCIL
MEMBERS
None
ABSENT:
COUNCIL
MEMBERS
None
SIGNED:
_.-
0 0
THE TOWN OF LOS GATOS
ATTEST:
CLERK F THE TOXIN F LOS GATOSi,>
r
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ON, MARER L FLICKER
o. pos e
Kio. C.111. 94302
(4151 321-0947
GERALD Z. N ER, 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, )
VS. )
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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;N, MARER b FLICKER
.rm o�evw e.vwV
Av0. Cww. 94302
(915) 321 -0940
"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 take 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 1981, 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 §1235.140 and as provided in California
Code of Civil Procedure §1268.610..."
Appellant, TOWN OF LOS GA'1'OS, through its attorneys of record)
ROGERS, VIZZARD & TALLEI'T, represents to the Court that it will
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 DIS'T'RICT 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.
485442 is vacated.
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6H, MARER & FLICKER
.r�an�cr� nr �4w
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1 61 m. Ctu �. 94302
1415) !21-094]
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 Appe
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, MARER & FLICKER
Attorneys for Plaintiff -
Appellant, TOWN OF LOS GATOS
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