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Doran v. Embassy Suites Hotel

United States District Court, N.D. California
Jun 13, 2003
Case No: C 02-1961 EDL (N.D. Cal. Jun. 13, 2003)

Opinion

Case No: C 02-1961 EDL

(Complaint filed on April 22, 2002).

June 13, 2003.

Michael L. Parker, Esq., McCune Harber, LLP, Los Angeles, California, Attorneys for Defendants, DJONT/EPT Leasing, LLC, Promus/Felcor Hotels, LLC, and MHV Joint Venture.

Jennifer L. Steneberg, Esq., Thomas E. Frankovich, Attorneys for Defendants, Jerry Doran and Disability Rights Enforcement, Education Services: Helping you help Others.


STIPULATION OF DISMISSAL AND ORDER THEREON


Plaintiffs JERRY DORAN and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES, by and through their counsel, and defendants DJONT/EPT LEASING, LLC, PROMUS/FELCOR HOTELS, LLC, and MHV JOINT VENTURE, by and through their counsel, stipulate to dismissal of this action in its entirety with prejudice pursuant to Fed.R.Civ.P. 41(a)(1). Outside of the terms of the Mutual Settlement Agreement and Release ("Agreement") herein, each party is to bear its own costs and attorneys' fees. A true and correct copy of the subject Agreement is attached hereto and incorporated herein for reference only as Exhibit "A".

IT IS HEREBY STIPULATED by and between parties to this action through their designated counsel that that above-captioned action be and hereby is dismissed with prejudice pursuant to Federal Rules of Civil Procedure section 41(a)(1).

This stipulation may be executed in counterparts, all of which together shall constitute one original document.

ORDER

Based upon the stipulation of the parties, this action is hereby ordered dismissed with prejudice.

MUTUAL SETTLEMENT AGREEMENT AND RELEASE

THIS MUTUAL SETTLEMENT AND RELEASE is entered into by and between JERRY DORAN, an individual, and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS, a California public benefit corporation (hereinafter referred to as "DORAN/DREES"), on the one hand and DJONT/EPT LEASING, LLC, a Delaware limited liability company, PROMUS/FELCOR HOTELS, LLC, a Delaware limited liability company, and MHV JOINT VENTURE, a Texas general partnership (hereinafter referred to as "EMBASSY"), on the other hand, to resolve any and all disputes including, but not limited to, the equitable relief sought, compensatory damages, attorneys' fees, costs and litigation expenses, arising out of and relating to the action entitled Jerry Doran, an individual; and Disability Rights Enforcement, Education Services: Helping You Help Others, a California public benefit corporation v. Embassy Suites Hotel; DJONT/EPT Leasing, LLC, a Delaware limited liability company and Promus/Felcor Hotels, LLC, a Delaware limited liability company, both dba Embassy Suits Hotel;, and MHV Joint Venture, a Texas general partnership, U.S. District Court, Northern District of California Case No. C 02-1961 EDL.

RECITALS

A. On or about April 22, 2002, DORAN/DREES filed an action entitled Jerry Doran, an individual; and Disability Rights Enforcement, Education Services: Helping You Help Others, a California public benefit corporation v. Embassy Suites Hotel; DJONT/EPT Leasing, LLC, a Delaware limited liability company and Promus/Felcor Hotels, LLC, a Delaware limited liability company, both dba Embassy Suits Hotel;, and MHV Joint Venture, a Texas general partnership, in the United States District Court for the Northern District of California, docketed as Case No. C 02-1961 EDL (the "Action"). The complaint in the Action alleges causes of action for violation of the American Disabilities Act of 1990; California Civil Code §§ 51, 51.5, 52(a), 52.1, 54, 54.1, 54.2, 54.3, and 55, California Health Safety Code § 19955, et seq., and California Business Professions Code § 17200, et seq. The complaint seeks, amongst other relief sought, the removal of architectural barriers and/or changes to policies, practices and procedures.

B. The parties desire to settle and compromise all claims that were or could have been raised in the subject action.

GENERAL TERMS

1. Whenever the singular is used in this Mutual Settlement Agreement and Release, it includes the plural. Whenever the masculine gender is used, it includes the feminine or neuter gender. Whenever the words "complaint," "action" or lawsuit" are used, they include any and all amended complaints, amendments to complaints, cross-complaints, amended cross-complaints, amendments to cross-complaints, complaints in intervention, amended complaints in intervention, and amendments to complaints in intervention. Whenever the word "lien" is used, it includes any and all liens of any type and kind, including but not limited to those provided by law and by contract.

2. DORAN/DREES, in executing this Mutual Settlement Agreement and Release, shall be deemed to have executed this Release for themselves and their heirs, executors, administrators, successors and assigns, and anyone else who may purport to claim an interest by or through them.

3. Whenever the name of a party released and discharged is used, it shall include the shareholders, directors, officers, agents, representatives, employees affiliated entities, parent companies, partners, attorneys, insurers, heirs, executors, beneficiaries, administrators, successors and assigns of the party and all other persons for whose acts and omissions said party may be held liable.

AGREEMENT

1. The above Recitals and General Terms are incorporated in this Agreement.
2. Compensatory Damages

DORAN/DREES (the "Releasors"), in consideration of the sum of $12,000 to Jerry Doran, $1,000 to Disability Rights Enforcement, Education Services, and $26,374 for attorneys' fees, costs and litigation expenses, as total payment and the remedial measures and/or policy, procedure and practice measures to be taken as set forth in paragraph 3, herein, hereby forever release and discharge EMBASSY and its agents, employees, representatives, affiliates, divisions, subsidiaries, partners, associates, principals, attorneys, insurers, predecessors, heirs, beneficiaries, successors and assigns (collectively the "Released Parties") of and from all claims, demands, damages, losses of any kind, liabilities, bodily injury, emotional distress, actions and causes of action of every kind and nature, including attorneys' fees, costs and litigation expenses arising out of and in any way related to the Action, known or unknown, existing, claimed to exist, suspected or unsuspected, or which can ever hereafter arise out of or result from or in connection with any and all acts and omissions of the Released Parties from the beginning of time to and including the date this Agreement is executed by the Releasors, including but not limited to the matters and things described and alleged in the Action. Payment of the settlement monies totaling $39,374 shall be made jointly to Jerry Doran, DREES and Thomas E. Frankovich, APLCS, at 2806 Van Ness Avenue, San Francisco, CA 94109 upon execution by DORAN/DREES and delivery to counsel for EMBASSY of this Mutual Settlement Agreement and Release. Upon receipt of the settlement monies, plaintiffs' counsel shall promptly file a stipulation of dismissal, with prejudice.

3. Equitable Relief

As to the equitable relief demanded by DORAN/DREES, DORAN/DREES agree that as consideration for the settlement, EMBASSY shall cause the following barrier removal to be constructed in accordance with the standards of either Title 24 of the California Building Standards Code or the Americans with Disabilities Act Accessibility Guidelines (ADAAG) of the American Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., as applicable, to ensure complying access to the public accommodation known as EMBASSY SUITES, located at/near 101 McInnis Parkway, San Rafael, California, and thereafter, to maintain such access, as follows:

A. Remove barriers to handicapped access in two additional guestrooms (in addition to the currently existing designated accessible rooms identified in paragraph 31, below) by the installation of roll-in showers and the barrier removal specified in paragraphs 31, 3J, and 3K, below;
B. Provide no-slip, securely mounted tub seats in the currently designated accessible guestrooms Nos. 105, 240, 245, 340, 345, 440 and 445;
C. Provide by May 1, 2004, a concierge counter/desk which complies with ADAAG height and depth requirements which can be used to check-in persons with disabilities instead of lowering the existing counter. A plaque displaying the international symbol of disability shall be affixed to the counter/desk which says in substance, "For use and convenience of our patrons with disabilities." In the alternative, provide either a lowered portion of the main registration counter, slide-out ledge, or provide a compliant auxiliary counter/desk in close proximity to the main counter;
D. Provide a plaque displaying the international symbol of disability at the primary entrance to the hotel;
E. Provide, by December 31, 2003, the appropriate number and type of accessible site entrance signs, which shall include:
i. Warnings signs regarding unauthorized use of disabled parking spaces posted conspicuously at each entrance to off-street parking facilities, or immediately adjacent to and visible from each disabled stall or space. The signage must read: "Unauthorized vehicles parked in designated accessible spaces not displaying distinguishing placards or license plates issued for persons With disabilities may be towed away at owner's expense." Size of lettering on signage must be a minimum of 1" in height. Signs shall not be less than 17" × 22" in size;
ii. At primary public entrances and major junctions along or leading to an accessible route of travel, as determined by EMBASSY, there shall be a sign displaying the international symbol of accessibility;
F. Provide one (1) compliant van accessible parking space, including a van accessible parking sign, by December 31, 2003;
G. Provide a compliant ramp on the north side of the building where two accessible parking spaces are located, to replace the current non-compliant ramp, the next time any re-paving work (excluding routine maintenance and repairs) in the area of the subject parking spaces is performed;
H. Provide and maintain three (3) kits for guestrooms for the hearing impaired by June 30, 2003;
I. Provide in existing rooms Nos. 102, 105, 240, 245, 340, 345, 440, 445 grab bars to the maximum length possible up to 36" in length the next time the hotel is altered;
J. Provide a flexible hand-held sprayer unit with a minimum 60" hose that is within reach range of the seat and mounted at a maximum height of 48" (plus or minus 1" tolerance) above the shower/bathtub floor in existing rooms Nos. 102, 105, 240, 245, 340, 345, 440, 445 by December 31, 2003;
K. Provide that all existing operable parts of the bathroom fixtures and accessories shall be located/mounted at a maximum height of 40" above the floor in existing rooms Nos. 102, 105, 240, 245, 340, 345, 440, 445 by December 31, 2003;
L. Provide one pool lift for the pool and spa within 90 days after the effective date of new ADAAG or California standards regarding pool lifts, whichever is later;
M. Provide access signage by December 31, 2003, on the south side of the hotel where the primary double door entrance to the conference center is located indicating that an accessible ramp and parking is adjacently located (This location is to the right or east as you face the double doors). A minimum of two (2) signs should be used for direction.
4. Notification of Completion

EMBASSY shall notify DORAN/DREES' counsel, Thomas E. Frankovich, in writing, addressed to 2806 Van Ness, San Francisco, CA 94109, when the modifications have been completed as set forth in paragraph 3.

5. Release of Future Claims for Equitable Relief

DORAN/DREES, for themselves and their heirs, successors and anyone else who may purport to have an interest by or through them, further agree that no claim will be made in the future for equitable relief or remedial measures to be undertaken as a result of any alleged discrimination and/or other wrongful conduct by EMBASSY or any condition or alleged architectural barrier at EMBASSY SUITES that existed or is alleged to have existed on the date this agreement is executed, or any other alleged discrimination, wrongful conduct, condition or architectural barrier which was alleged, or which could have been alleged, in the Action.

6. No Admission of Liability

The parties agree that the liability for all claims alleged in the Action is denied by the Released Parties.

7. Waiver of Section 1542 of the Civil Code

DORAN/DREES agree that the provisions of Section 1542 of the Civil Code of the State of California are hereby expressly waived, and they understand that said section provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
8. DORAN/DREES Agree to Execute All Necessary Documents

DORAN/DREES agrees to execute any and all necessary documents necessary to carry out the terms of this Agreement.

9. No Reliance

This Mutual Settlement Agreement and Release is executed without reliance upon representation by either the Settling Parties or any of their representatives.

10. Opportunity to Consult with Counsel

The parties hereto acknowledge that they have had an opportunity to consult with counsel to review this Agreement prior to entering into it. The parties further acknowledge that they have executed this Agreement after having obtained such counsel, or having waived their right and opportunity to do so with a full understanding of the legal effect of this Agreement.

11. DORAN/DREES Have Read Release or Have Had Release Read to Them

DORAN/DREES have each carefully read (or have had read to them) each and every term of this Mutual Settlement Agreement and Release and have received advice of counsel as to the nature and extent of each of the terms and provisions hereof.

12. Co-Participation in the Drafting of this Agreement

Each of the parties hereto represents that he or she fully participated in the drafting and terms of this Agreement. Accordingly, any ambiguities in the terms of this Agreement shall not be construed against any of the parties hereto and any doctrine of law regarding interpretation of any such ambiguities in the terms and provisions of this Agreement against the party drafting this Agreement shall not be applicable.

13. Court Retains Jurisdiction

It is expressly understood and agreed by and between the parties that the court in the above-referenced action will retain jurisdiction over the settlement of this action if necessary to carry out the terms of this Mutual Settlement Agreement and Release, a true and correct copy of which shall be attached to the order of dismissal.

It is further expressly understood and agreed by and between the parties that the court shall also retain jurisdiction to determine the amount of attorneys' fees and litigation expenses, if any, to be awarded to counsel for DORAN/DREES for services necessary to enforce the terms of this Mutual Settlement Agreement and Release. In such event, the fee provisions under the Americans with Disabilities Act of 1990 (42 USD § 12181, et seq.) and/or California Civil Code sections 51, et seq., 54, et seq., 55, et seq., and/or California Business Professions Code Section 17200 shall govern.

14. Agreement of EMBASSY to Carry Out the Terms

(a) The undersigned officer/agent of DJONT/EPT LEASING, LLC, has carefully read this Mutual Settlement Agreement and Release as to the nature and extent of each of the provisions of this Mutual Settlement Agreement and Release and attests that he/she had the authority to execute any and all documents to carry out the terms and provisions set forth herein as such terms and provisions apply to DJONT/EPT LEASING, LLC.

(b) The undersigned officer/agent of PROMUS/FELCOR HOTELS, LLC, has carefully read this Mutual Settlement Agreement and Release as to the nature and extent of each of the provisions of this Mutual Settlement Agreement and Release and attests that he/she had the authority to execute any and all documents to carry out the terms and provisions set forth herein as such terms and provisions apply to PROMUS/FELCOR HOTELS, LLC.

(c) The undersigned officer/agent of MHV JOINT VENTURE, has carefully read this Mutual Settlement Agreement and Release as to the nature and extent of each of the provisions of this Mutual Settlement Agreement and Release and attests that he/she had the authority to execute any and all documents to carry out the terms and provisions set forth herein as such terms and provisions apply to MHV JOINT VENTURE.

15. Integration

No promises, inducements or representations regarding the subject matter of this Mutual Settlement Agreement and Release have been made by any party other than those set forth in this document or incorporated by reference. This Mutual Settlement Agreement and Release supersedes all prior negotiations and understandings concerning the subject matter of this Mutual Settlement Agreement and Release and contains all terms and provisions of the agreement between the parties regarding its subject matter. There are no oral understandings, statements or stipulations bearing on the effect of the Mutual Settlement Agreement and Release that have not been incorporated in this Agreement. This Agreement shall not be amended, supplemented or abrogated other than by a written instrument executed by each of the parties.

16. Dismissal

Upon receipt by DORAN/DREES' counsel of an original copy of this Mutual Settlement Agreement and Release executed by EMBASSY and all monies due hereunder, DORAN/DREES, by and through their counsel, shall file a stipulation for dismissal with prejudice of the Action. A true and correct copy of this Agreement shall be filed with the court, either as an exhibit to the stipulation of dismissal or pursuant to a separate notice of settlement agreement, at the option of Releasors.

17. Force Majeure

Failure of EMBASSY to perform any action required by this Settlement Agreement will not subject it to any liability or remedy for damages or otherwise if such failure is caused in whole or in part by acts of God, fires, accidents, earthquakes, explosions, floods, wars, labor disputes or shortages, riots, sabotage, delays in obtaining permits or any similar circumstances beyond EMBASSY's reasonable control.

18. Counterparts

This Agreement may be executed in counterparts, all of which together shall constitute one and the same Agreement.

IN WITNESS WHEREOF, JERRY DORAN has hereunto set his hand this 6th day of June, 2003.

_________________________ JERRY DORAN

IN WITNESS WHEREOF, PATRICK CONNALLY, as an officer of DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS, a California public benefit corporation, has hereunto set his hand this _____ day of __________, 2003.

_________________________ PATRICK CONNALLY

IN WITNESS WHEREOF, Lawrence D. Robinson, as an officer of DJONT/EPT LEASING, LLC, has hereunto set his hand this 5th day of June, 2003.

_________________________________ Print Name: Lawrence D. Robinson

IN WITNESS WHEREOF, Lawrence D. Robinson, as an officer of PROMUS/FELCOR HOTELS, LLC, has hereunto set his hand this 5th day of June, 2003.

_________________________________ Print Name: Lawrence D. Robinson

IN WITNESS WHEREOF, Lawrence D. Robinson, as an officer of FELCOR LODGING TRUST INCORPORATED, the general partner of a joint venture member of MHV JOINT VENTURE, has hereunto set his hand this 5th day of June, 2003.

_________________________________ Print Name: Lawrence D. Robinson


Summaries of

Doran v. Embassy Suites Hotel

United States District Court, N.D. California
Jun 13, 2003
Case No: C 02-1961 EDL (N.D. Cal. Jun. 13, 2003)
Case details for

Doran v. Embassy Suites Hotel

Case Details

Full title:JERRY DORAN, an individual; and DISABILITY RIGHTS ENFORCEMENT, EDUCATION…

Court:United States District Court, N.D. California

Date published: Jun 13, 2003

Citations

Case No: C 02-1961 EDL (N.D. Cal. Jun. 13, 2003)