Opinion
Case No. C 01-2203 EDL
October 2, 2002
Thomas E. Frankovich, A Professional Law Corporation, Attorney's for Plaintiffs, Jerry Doran and Disability Rights Enforcement, Education Services: Helping You Help Others.
Epstein, Becker Green, P.C., Attorneys for Defendants, Norma Belforte, Trustee of the Belforte Family Trust and Marital Deduction Trust 39; Thomas A. Belforte; Joanne L. Belforte; and Arlene M. Balestreri, dba Star Motel.
STIPULATON OF DISMISSAL AND [PROPOSED] ORDER THEREON
Plaintiffs JERRY DORAN, an individual; and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELP OTHERS, a California public benefit corporation, by and through their counsel, and defendants NORMA BELFORTE, Trustee of the BELFORTE FAMILY TRUST and MARITAL DEDUCTION TRUST 39; ThoMAS A. BELFORTE; JOANNE L. BELFORTE; and ARLENE M. BALESTRERI, dba STAR MOTEL, 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 as Exhibit "A."
IT IS HEREBY STIPULATED by and between parties to this action through their designated counsel that the 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.
MUTUAL SETTLEMENT AGREEMENT AND RELEASE
THIS MUTUAL SETTLEMENT AGREEMENT AND RELEASE is entered into by and between JERRY DORAN, an individual, and DISABILITY RIGHTS ENFORCEMENT, EDUCATION SERVICES: HELPING YOU HELPING OTHERS, a California public benefit corporation, (hereinafter referred to as "DORAN/DREES"), on the one hand and NORMA BELFORTE, Trustee of the BELFORTE FAMILY TRUST and MARITAL DEDUCTION TRUST 39, THOMAS A. BELFORTE, JOANNE L. BELFORTE, ARLENE M. BALESTRERI and ROBERT PADILLA (hereinafter referred to as "STAR MOTEL PARTIES"), on the other hand, to resolve all claims, legal and equitable, 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. Star Motel, Norma Belforte, Trustee of the Belforte Family Trust and Marital Deduction Trust 39; Thomas A. Belforte, Joanne L. Belforte; and Arlene M Balesireri, dba Star Motel, U.S. District Court, Northern District of California Case No. C 01-2203 EDL.
RECITALS:
A. On or about June 6, 2001, DORAN/DREES filed the action entitled Jerry Doran, an individual; and Disability Rights Enforcement, Education Services: Helping You Help Others, a California public benefit corporation v. Star Motel; Norma Belforte, Trustee of the Belforte Family Trust and Marital Deduction Trust 39, Thomas A. Belforte; Joanne L. Belforte; and Arlene M Balestreri, dba Star Motel, in the United States District Court for the Northern District of California, docketed as Case No. C 01-2203 EDL (the "Action"). The complaint in the Action alleges causes of action for violation of the Americans with 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 damages, costs, attorney's fees and the removal of architectural barriers and/or changes to policies, practices and procedures.
B. The parties desire to settle and compromise all claims, legal and equitable that were or could have been raised in the subject action.
GENERAL TERMS
1. 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.
2. 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, trustees, 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 into this Agreement.
2. Compensatory Damages
The issues of compensatory damages, including all special and general damages, attorneys' fees, costs and litigation expenses are resolved by the Star Motel Parties paying to DORAN/DREES the sum of thirty five thousand dollars ($35,000). These funds will be deposited into an interest bearing Safe Haven account. This payment shall be made in a lump sum payable to Jerry Doran/Disability Rights Enforcement Education Services and their attorney of record Tom Frankovich on or before June 7, 2002 provided that the parties have executed this Agreement by that date.
3. Equitable Relief
As to the equitable relief demanded by DORAN/DREES, DORAN/DREES agree that as consideration for the settlement, STAR MOTEL PARTIES shall cause modifications to be constructed in compliance with either Title 24 of the California Building Standards Code or the Americans with Disabilities Act Accessibility Guidelines (ADAAG) of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. to ensure complying access to the public accommodation known as STAR MOTEL, located at/near 1727 Lombard Street, San Francisco, California, and thereafter, to maintain such access as follows:
a. provide handicapped accessible parking signage;
b. provide the requisite number of accessible guest rooms which the parties agree are three (3);
c. provide the requisite number of regular disabled parking stall(s);
d. provide a disabled van accessible parking stall;
e. provide an accessible entrance
f provide a handicapped accessible registration counter;
g. implement a policy of "holding" accessible guest rooms for the disabled before selling said guest rooms to the general public.
4. Completion of Work
STAR MOTEL PARTIES shall complete the modifications to the premises, which shall render the premises fully accessible as set forth herein, by July 31, 2004.
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 damages equitable relief or remedial measures to be undertaken as a result of any alleged discrimination and/or other wrongful conduct by STAR MOTEL PARTIES and release each of the Released Parties from any such equitable relief claims arising out of DORAN/DREES' visit to the subject STAR MOTEL on or about June 20, 2000.
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 agree to execute any and all documents necessary to carry out the terms and provisions of this Agreement including a stipulation or order of dismissal.
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. 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.
13. Confidentiality Provision.
The parties agree that the terms and conditions of this Agreement are strictly confidential and shall not be disclosed to any other person except their legal counsel, tax advisors, DORAN'S immediate family members, the taxing authorities in connection with filing federal or state tax returns, or as otherwise required by legal process or applicable law. If DORAN/DREES makes authorized disclosure of this Agreement to such third parties they shall do whatever possible to prevent further dissemination or disclosure of that information by those persons.
In the event that the Settling Parties or DORAN/DREES, or their respective counsel, are the subject of legal process of any kind that seeks the disclosure of any of the matters to be kept confidential under this covenant of confidentiality and nondisclosure, then the Party subjected to the legal process will immediately notify the other Party of the matter so that both Parties may consider what steps they can take to preserve the confidentiality of the matter. This notice will be given by telephone, facsimile transmission or such other means designed to provide the other Party with the most immediate notice of the matter. Notice will be given to counsel for the Settling Parties at the following address, telephone and facsimile numbers:
Joseph D. Miller, Esq. Attorney at Law, EPSTEIN BECKER GREEN, P.C.
Notice will be given to counsel for DORAN/DREES at the following address, telephone and facsimile numbers:
Thomas Frankovich, Jennifer L. Steneberg, The Frankovich Group
The Parties and their counsel will cooperate with each other in their efforts to preserve the confidentiality of all matters covered by this covenant of confidentiality and nondisclosure.
14. Agreement of STAR MOTEL PARTIES to Carry Out the Terms
(a) The undersigned NORMA BELFORTE as Trustee of the BELFORTE FAMILY TRUST and MARITAL DEDUCTION TRUST 39 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 agrees to execute any and all documents to carry out the terms and provisions set forth herein and that she has 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 the trust and will, in fact, carry out the terms.
(b) The undersigned THOMAS A. BELFORTE 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 agrees to execute any and all documents to carry out the terms and provisions set forth herein and that he has 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 him and will, in fact, carry out the terms.
(c) The undersigned JOANNE L. BELFORTE 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 agrees to execute any and all documents to carry out the terms and provisions set forth herein and that she has 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 her and will, in fact, carry out the terms.
(d) The undersigned ARLENE M. BALESTRERI 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 agrees to execute any and all documents to carry out the terms and provisions set forth herein and that she has 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 her and will, in fact, carry out the terms.
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. Counterparts
This Agreement may be executed in counterparts, all of which together shall constitute one in the same Agreement.
17. Attorney's Fees and Costs
Each side agrees to bear their own attorney's fees and costs that have been incurred in connection with this dispute including its resolution.
IN WITNESS WHEREOF, JERRY DORAN has hereunto set his hand this ____ day of 2001.