Opinion
Case No. CV-10-0325 SI
10-25-2011
DOLLAR TREE STORES, INC., Plaintiff, v. TOYAMA PARTNERS, LLC; PETER PAU d/b/a SAND HILL PROPERTY COMPANY, a sole proprietorship; PETER PAU, in his individual capacity and as partner of SAND HILL PROPERTY MANAGEMENT COMPANY; SUSANNA PAU, in her capacity as partner of SAND HILL PROPERTY MANAGEMENT COMPANY; SAND HILL PROPERTY MANAGEMENT COMPANY, and CAPELLA-MOWRY, LLC, Defendants.
DAVID F. FAUSTMAN (State Bar No. 81862) FOX ROTHSCHILD JAY D. MARINSTEIN ( Pro Hac Vice) PATRICK L. ABRAMOWICH ( Pro Hac Vice) FOX ROTHSCHILD SCOTT R. KIPNIS ( Pro Hac Vice) HOFHEIMER GARTLIR & GROSS, LLP Attorneys for Plaintiff DOLLAR TREE STORES, INC. LISA C. ROBERTS (State Bar No. 111982) PETER M. REHON (State Bar No. 100123) REHON & ROBERTS A Professional Corporation Attorneys for Defendant TOYAMA PARTNERS, LLC; and Defendants and Counterclaimants PETER PAU d/b/a SAND HILL PROPERTY COMPANY, a sole proprietorship; PETER PAU, in his individual capacity and as partner of SAND HILL PROPERTY MANAGEMENT COMPANY; SUSANNA PAU, in her capacity as partner of SAND HILL PROPERTY MANAGEMENT COMPANY; SAND HILL PROPERTY MANAGEMENT COMPANY, and CAPELLA-MOWRY, LLC.
DAVID F. FAUSTMAN (State Bar No. 81862)
FOX ROTHSCHILD
JAY D. MARINSTEIN (Pro Hac Vice)
PATRICK L. ABRAMOWICH (Pro Hac Vice)
FOX ROTHSCHILD
SCOTT R. KIPNIS (Pro Hac Vice)
HOFHEIMER GARTLIR & GROSS, LLP
Attorneys for Plaintiff
DOLLAR TREE STORES, INC.
LISA C. ROBERTS (State Bar No. 111982)
PETER M. REHON (State Bar No. 100123)
REHON & ROBERTS
A Professional Corporation
Attorneys for Defendant TOYAMA
PARTNERS, LLC; and Defendants and
Counterclaimants PETER PAU d/b/a SAND
HILL PROPERTY COMPANY, a sole
proprietorship; PETER PAU, in his individual
capacity and as partner of SAND HILL
PROPERTY MANAGEMENT COMPANY;
SUSANNA PAU, in her capacity as partner of
SAND HILL PROPERTY MANAGEMENT
COMPANY; SAND HILL PROPERTY
MANAGEMENT COMPANY, and
CAPELLA-MOWRY, LLC.
STIPULATION GRANTING LEAVE TO FILE FIRST AMENDED CONSOLIDATED COMPLAINT, TO AMEND PRETRIAL PREPARATION ORDER DATES RELATING TO EXPERT DISCLOSURES AND DISPOSITIVE MOTIONS, AND TO CONDUCT DEPOSITION OF FACT WITNESS AFTER CLOSE OF NONEXPERT DISCOVERY
Honorable Susan Illston
Complaint filed: January 22, 2010
Trial Date: January 17, 2012
Plaintiff Dollar Tree Stores, Inc. ("Dollar Tree") and Defendants Toyama Partners, LLC ("Toyama"), Peter Pau individually and d/b/a Sand Hill Property Company ("Pau"), Susanna Pau ("Ms. Pau"), Sand Hill Property Management Company ("SH Management"), and Capella-Mowry, LLC ("Capella") (collectively, "Defendants" and, with Dollar Tree, the "Parties"), by their undersigned counsel, file the following Stipulation Granting Leave to File First Amended Consolidated Complaint, to Amend Pretrial Preparation Order Dates Relating to Expert Disclosures and Dispositive Motions, and to Conduct Deposition of Fact Witness After Close of Non-Expert Discovery, stating as follows:
1. On September 21, 2011, Defendants served responses to Dollar Tree's requests for admissions and interrogatories. The responses disclosed for the first time that Toyama and Capella executed a Second Amendment to the Sale Agreement for the Mowry Crossing Shopping Center, which bears a date of February 15, 2011, on April 21, 2011.
2. Dollar Tree desires to amend its Consolidated Complaint (Doc. No. 281) to include this fact and assert an alternative fraudulent conveyance theory based thereon.
3. Although Defendants dispute the relevance and significance of the facts stated in paragraph 1 and also dispute the merits of the proposed amendment to the Consolidated Complaint, pursuant to Federal Rule of Civil Procedure 15(a)(2), Defendants have consented to Dollar Tree filing a First Amended Consolidated Complaint, as set forth above, to permit the parties to reach the merits of this dispute more quickly and efficiently.
4. In light of the amendment to Dollar Tree's Consolidated Complaint, the Parties have further agreed to a partial modification of the deadlines set forth in Third Pretrial Preparation Order (Doc. No. 280) and Order granting Stipulation to Amend Pretrial Preparation Order Dates Relating to Expert Witnesses (Doc. No. 315), as follows:
DESIGNATION OF EXPERTS: deft: November 4. 2011;
REBUTTAL: pltf: November 18.2011. Parties SHALL conform to Rule 26(a)(2).
EXPERT DISCOVERY CUTOFF is November 30, 2011.
DISPOSITIVE MOTIONS SHALL be filed by November 4, 2011;
Opp. Due November 16, 2011; Reply Due November 23,2011;
5. The relief sought in the Stipulation will not delay the trial of this matter as those dates are not changed by this Stipulation:
HEARING ON DISPOSITIVE MOTIONS: No later than December 16 2011, at 9:00 a.m.
FURTHER CASE MANAGEMENT CONFERENCE: December 16. 2011, at 3:00 p.m.
PRETRIAL CONFERENCE DATE: 1/24/12, at 3:30 p.m.
JURY TRIAL DATE: 2/6 . 2012, at 8:30 a.m.
6. Due to the scope of the issues and evidence to be addressed, the Parties further stipulate to a 35-page limit for all dispositive motions and responses thereto and request that the Court grant leave accordingly.
7. The Parties also seek an extension of the fact discovery period for the limited purpose of deposing Richard Daniel ("Mr. Daniel"), a former Comerica loan officer.
8. Mr. Daniel was subpoenaed to appear during the discovery period on September 20, 2011, but went to the wrong location because his counsel did not provide him with an amended subpoena. Since that time, Mr. Daniel has actively evaded both Parties' attempts to serve amended subpoenas.
9. Dollar Tree filed a Motion on October 14, 2011 (Doc. No. 324), which Defendants joined separately (Doc. No. 326), requesting that the Court (i) authorize alternate service of a subpoena upon Mr. Daniel, and (ii) extend the fact discovery period for the limited purpose of deposing Mr. Daniel. The Parties propose to depose Mr. Daniel on the first date that Mr. Daniel and counsel are mutually available.
10. At a hearing on October 19, 2011, Judge Vadas stated that he is willing to grant the requested relief concerning Mr. Daniel, provided that Judge Illston approves the limited extension of the fact discovery period. Accordingly, the Parties request such approval herein.
For the foregoing reasons, the Parties respectfully request that the Court enter this Stipulation (i) granting leave for Dollar Tree to file a First Amended Consolidated Complaint; (ii) amending the Pretrial Preparation Order dates for expert disclosures and dispositive motions as set forth above; (iii) granting the Parties leave to file briefs not exceeding 35 pages in support of and in opposition to dispositive motions; and (iv) granting the Parties leave to depose third-party witness Richard Daniel outside of the period for non-expert discovery.
Jay D. Marinstein (Admitted Pro Hac Vice)
FOX ROTHSCHILD LLP
Attorney for Plaintiff
Dollar Tree Stores, Inc.
Peter M. Rehon
REHON & ROBERTS
Attorneys for Defendant TOYAMA PARTNERS, LLC; and
Defendants and Counterclaimants PETER PAU d/b/a SAND HILL
PROPERTY COMPANY, a sole proprietorship; PETER PAU, in
his individual capacity and as partner of SAND HILL PROPERTY
MANAGEMENT COMPANY; SUSANNA PAU, in her capacity a
partner of SAND HILL PROPERTY MANAGEMENT
COMPANY; SAND HILL PROPERTY MANAGEMENT
COMPANY, and CAPELLA-MOWRY, LLC.
PURSUANT TO STIPULATION, IT IS SO ORDERED:
The Honorable Susan Illston
U.S. District Court Judge
Northern District of California