Opinion
CHARLES D. MAY, ESQ., GENE B. SHARAGA, ESQ., BRIAN J. KIM, ESQ., THARPE & HOWELL, LLP, Sherman Oaks, California, Attorneys for Defendant, LOWE'S HOME CENTERS, LLC.
TOREM & ASSOCIATES RON TOREM, Attorney for Plaintiff, BELLA PETERSON.
STIPULATION TO CAP PLAINTIFF'S DAMAGES AND REMAND; ORDER MERCED COUNTY SUPERIOR COURT CASE NO. 15CV-02135.
LAWRENCE J. O'NEILL, District Judge.
IT IS HEREBY STIPULATED by and between Plaintiff BELLA PETERSON ("Plaintiff") and Defendant LOWE'S HOME CENTERS, LLC ("Defendant" or "Lowe's"), by and through their counsel of record, as follows:
1. Plaintiff BELLA PETERSON, a resident of California, brought the instant action against defendant LOWE'S HOME CENTERS, LLC, a North Carolina limited liability company, in the Superior Court of California, County of Merced.
2. Plaintiff claims personal injuries arising out of negligence and premises liability causes of action which allegedly occurred on the premises of defendant's retail store located in Merced, California.
3. Plaintiff acknowledges that she claims damages in excess of $75,000.00.
4. On September 3, 2015, Defendant Lowe's removed this matter to the United States District Court for the Eastern District of California pursuant to 28 U.S.C. §§ 1332, 1441 and 1367.
5. Plaintiff hereby agrees and stipulates that her damages, resulting from the alleged incident that occurred on defendant's premises on or about August 10, 2013, that are the subject of the within action (formerly Merced County Superior Court Case No.: 15CV-02135) (hereinafter "the litigation"), are hereby capped at $74,999.99.
6. Plaintiff hereby agrees and stipulates that if her damages should exceed $74,999.99, she hereby waives the right to claim such damages as a result of the litigation.
7. Plaintiff hereby agrees and stipulates that her recovery of damages in the litigation, including but not limited to economic damages and non-economic damages, are hereby capped at $74,999.99.
8. Plaintiff hereby agrees and stipulates that if her recovery of damages in the litigation should exceed $74,999.99, either by verdict or other means, she hereby waives the right to recover any such damages in excess of $74,999.99.
9. Plaintiff hereby agrees and stipulates that should any award or judgment be rendered or entered against defendant with damages in excess of $74,999.99, she will execute any necessary documents to reduce such award or judgment to $74,999.99 in damages, and will not execute on any award or judgment in excess of $74,999.99 in damages. The $74,999.99 cap to recovery of damages does not in any way limit the amount of attorneys' fees and costs that may be awarded to and recovered by plaintiff.
10. The parties hereby agree that because the amount in controversy in this matter does not exceed $75,000, subject matter jurisdiction is lacking.
11. The parties further agree that in light of their agreement to cap Plaintiff's damages at $74,999.99, the matter should be remanded to the Merced County Superior Court, Case No.: 15CV-02135.
12. WHEREFORE, based on the foregoing the parties hereby stipulate and agree that the case be REMANDED to the Merced County Superior Court, Case No.: 15CV-02135.
13. The parties stipulate and request that an Order be issued in accordance with this Stipulation.
IT IS SO ORDERED.