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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 -1- 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 -2- SIGNED .ayor, Town of Los Gatos I 2 3 4 5 6 7 8 9 10 11 12 13 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, 14 11 vs. 15 16 17 18 19 20 21 22 23 24 25 26 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: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I 19 20 21 2.2 23 24 25 26 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 i 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. -2- I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GH, MARER 5 FLICKER ,.�a Hr evo AT uw o. •ox ee 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 -3-